United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
Rebecca Grady Jennings, District Judge United States District
August 30, 2018, a jury convicted Defendant, Ledinson Chavez,
of conspiracy to commit health care fraud in violation of 18
U.S.C. §§ 1347 and 1349 (Count 1), health care
fraud in violation of 18 U.S.C. §§ 1347 and 2
(Count 2), aggravated identity theft in violation of 18
U.S.C. §§ 1028A(a)(1), 1028A(c)5, and 2 (Count 13),
and conspiracy to commit money laundering in violation of 18
U.S.C. §§ 1956(h) and 1956(a)(1)(B)(i) (Count 16).
[DE 399, Jury Verdict; DE 207, Indictment]. Chavez now moves
for an order compelling the United States to produce
documents cataloguing the items in Sergio Betancourt's
possession at the time of each of his arrests. [DE 398]. The
United States filed a Response [DE 411], and Chavez did not
file a reply. Chavez also moves for judgment of acquittal on
Count 13 under Federal Rule of Criminal Procedure 29 [DE 410]
and judgment of acquittal on Count 16 under Rule 29 or, in
the alternative, a new trial on Count 16 under Rule 33 [DE
451]. The United States filed Responses [DE 419; DE 455], and
Chavez filed Replies [DE 438; DE 460]. These matters are ripe
considered the parties' filings and the applicable law,
the Court DENIES Chavez's Motion for
Documents Reflecting Inventory of Items in the Possession of
Sergio Betancourt on Each Date of His Arrest [DE 398];
DENIES Chavez's Motion for Judgment of
Acquittal on Count 13 [DE 410]; and DENIES
Chavez's Motion for Judgment of Acquittal or for a New
Trial on Count 16 [DE 451].
Motion for Documents Reflecting Inventory of Items in the
Possession of Sergio Betancourt on Each Date
of His Arrest
has filed a Motion seeking “inventories of items seized
from Sergio Betancourt at the time of his arrest in June 2015
as well as during his arrest in 2017.” [DE 398 at
2891]. Chavez argues these documents are “material to
preparing the defense.” Id. The United States
has filed a Response, arguing that Rule 16 does not require
it to produce documents at this stage of the
proceedings-i.e., after a jury has already found
Chavez guilty. [DE 411 at 3001-02]. The United States also
asserts that even if Rule 16 did require disclosure at this
stage, the documents requested are not material to preparing
Chavez's defense. Id. at 3003. Regardless, the
United States claims that the documents sought do not exist,
and Rule 16 does not require the whole cloth creation of such
documents. Id. at 3002-04. Finally, the United
States claims that Chavez may obtain any existing documents
by contacting the Deputy Marshals involved in coordinating
Sergio Betancourt's 2015 and 2017 arrests. Id.
requires the United States to “permit the defendant to
inspect and to copy or photograph books, papers, documents,
data, photographs, tangible objects, buildings or
places” in the United States' “possession,
custody, or control” that are “material to
preparing the defense.” Fed. R. Crim. P.
16(a)(1)(E)(i). Thus, by its own terms, Rule 16 is limited to
documents that are “within the government's
possession, custody, or control.” Further, Rule 16 only
applies to documents that already exist, and the United
States is not required to create new documents for discovery
purposes. See, e.g., United States v.
Amaya-Manzanares, 377 F.3d 39, 42-43 (1st Cir. 2004)
(“Rule 16(a)(1)(E) did not apply to a the document
until it was created.”); United States v.
Kahl, 583 F.2d 1351, 1354 (5th Cir. 1978) (upholding a
district court's refusal to grant discovery of government
statistical compilations because such compilations did not
exist); United States v. Schembari, 484 F.2d 931,
935 (4th Cir. 1973) (“[T]he government cannot disclose
what it does not have … ”); United States v.
Harper, 432 F.2d 100, 102 (5th Cir. 1970) (holding that
“the failure to produce non-required records when they
do not exist” does not violate the Jencks Act).
the United States affirmatively represents that no inventory
records exist. [DE 411 at 3003-04]. If the documents do not
exist, the United States is not required to manufacture them.
Further, the United States has provided Chavez with the
opportunity to conduct further discovery on this point by
contacting the Deputy Marshals involved in the arrests of
Sergio Betancourt. Id. at 3004. This will allow
Chavez to discover information regarding what was in
Betancourt's possession at the time of his arrests.
Accordingly, the Court denies Chavez's Motion.
Motions for Judgment of Acquittal Under Rule 29
moves for judgment of acquittal under Rule 29 for Counts 13
[DE 410] and 16 [DE 451]. A court should grant a motion for
judgment of acquittal under Rule 29 only when the evidence
admitted at trial, viewed in the light most favorable to the
United States, was insufficient to permit a rational trier of
fact to find guilt beyond a reasonable doubt. United
States v. Connery, 867 F.2d 929, 930 (6th Cir. 1989)
(citations omitted). Grant of a motion of acquittal is
“confined to cases where the prosecution's failure
is clear.” Id. (citing Burks v. United
States, 437 U.S. 1, 17 (1978)). In evaluating challenges
to sufficiency of evidence, courts must not “weigh the
evidence presented, consider the credibility of witnesses, or
substitute [its] judgment for that of the jury.”
United States v. Siemaszko, 612 F.3d 450, 462 (6th
Cir. 2010) (citations and quotation omitted).
“Circumstantial evidence alone is sufficient to sustain
a conviction and such evidence need not ‘remove every
reasonable hypothesis except that of guilt.'”
United States v. Meyer, 359 F.3d 820, 826 (6th Cir.
2004) (quoting United States v. Ellzey, 874 F.2d
324, 328 (6th Cir. 1989) (citation and quotation omitted)).
Count 13-Aggravated Identity Theft
argues that the United States failed to present sufficient
evidence upon which a reasonable jury could find Chavez
guilty of aggravated identity theft under 18 U.S.C. §
1028A. [DE 410 at 2995]. 18 U.S.C. § 1028A
“imposes a two-year sentence for anyone who, [i] during
and in relation to any felony violation enumerated in
subsection (c), [ii] knowingly transfers, possesses, or uses,
[iii] without lawful authority, [iv] a means of
identification of another person.” United States v.
Michael, 882 F.3d 624 (6th Cir. 2018). Health care fraud
is a predicate felony for aggravated identity theft. 18
U.S.C. §§ 1028A(c)(5), 1347; United States v.
Abdur-Rahman, 708 F.3d 98, 100-01 (2d Cir. 2013). And
anyone who “aids, abets, counsels, commands, induces or
procures” the commission of a felony is punishable as a
principal. 18 U.S.C. § 2. Aiding and abetting requires
an “affirmative act in furtherance of the offense, with
the intent of facilitating the offense's
commission.” United States v. Carbins, 882
F.3d 557, 563 (5th Cir. 2018).
case, chiropractor Todd Black testified that his license,
social security card, and chiropractor license were used to
credential Ledic Therapy Group Corp. (“Ledic
Therapy”) without Black's consent. [DE 429, Aug.
17, 2018 Tr. Vol. 5, 4082:15-25, 4083:1-16]. Black had
originally supplied this information to Betancourt and Oskel
Lezcano to credential Med Center Chiropractic & Rehab,
LLC. [DE 429, Aug. 17, 2018 Tr. Vol. 5, 3958:11-17]. Black
did not consent to the use of his information to credential
any other clinic. Id. Indeed, it is undisputed that
Black's driver's license, social security number, and
chiropractor license are “means of
identification” that were used to credential Ledic
Therapy without lawful authority under 18 U.S.C. §
1028A. But Chavez argues that the United States failed to
show Chavez personally “transferred, possessed, or
used” Black's identity in credentialing the clinic.
[DE 410 at 2995].
Chavez is correct that the United States offered no direct
evidence at trial that Chavez personally transmitted
Black's documents to credential Ledic Therapy, there was
ample circumstantial evidence upon which a reasonable jury
could find Chavez guilty of aggravated identity theft.
Chavez's name appears as the incorporator of Ledic
Therapy with the Kentucky of Secretary of State. [DE 307 at
1679-80]. Chavez's driver's license and social
security number were in the credentialing documents
transmitted to United Health Care along with Black's
driver's license, social security number, and
chiropractor license. [DE 428, Aug. 15, 2018 Tr. Vol. 3,
3881:7-21]. Chavez managed the Klondike Lane clinic where
Black was a chiropractor. [DE 385, Aug. 21, 2018 Tr. Vol. II,
2704:2-5]. And, when Betancourt asked Chavez about a clinic
Lezcano had set up for Betancourt, Chavez said, “it was
fine ‘cause [Chavez] had his own-like, his own office -
his own clinic.” Id. at 2703:25, 2704:1. The
United States asked Betancourt, “Was that the Ledic
Therapy?” Id. at 2704:4. Betancourt answered,
“Yes.” Id. at 2704:5. A jury could
reasonably rely on these facts to infer that Chavez, as head
of Ledic Therapy, knowingly transmitted Black's means of
identification to credential Ledic Therapy without
nonetheless argues that the credentialing documents cannot be
considered because the United States did not prove that
Chavez signed the letter contained within the credentialing
documents transmitted to United Health Care. [DE 410 at
2995]. As both parties note, this issue was discussed
extensively at trial. [DE 410 at 2995; DE 419 at 3163]. The
Court admitted the Secretary of State records under Federal
Rule of Evidence 803(6) but instructed the jury not to
consider documents for any other purpose than notice that
such document was filed and processed, and not for the truth
of the matter asserted or validity of Chavez's signature,
which was hearsay within hearsay not subject to any
exception. [DE 429, Aug. 17, 2018 Tr. Vol. V, 3974:14-23].
The Court admitted the ...