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Akande v. Commonwealth

Court of Appeals of Kentucky

November 30, 2018

EZEKIEL O. AKANDE APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

          APPEAL FROM PULASKI CIRCUIT COURT HONORABLE DAVID A. TAPP, JUDGE ACTION NO. 16-CR-00327

          BRIEF AND ORAL ARGUMENT FOR APPELLANT: Kent Wicker Louisville, Kentucky

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Jesse L. Robbins Assistant Attorney General Frankfort, Kentucky

          ORAL ARGUMENT FOR APPELLEE: Wesley W. Duke Jessica Williamson Assistant Attorney General Frankfort, Kentucky

          BEFORE: COMBS, JOHNSON, [1] AND J. LAMBERT, JUDGES.

          OPINION

          JOHNSON, JUDGE

         Following trial, a jury found Ezekiel O. Akande, M.D., guilty of various offenses related to his billing practices for patients who were part of the Medicaid and Managed Care Organizations System ("Medicaid"). Akande now appeals from the judgment convicting him of those offenses and sentencing him to five years' imprisonment. After reviewing the record in conjunction with applicable legal authority, we reverse the judgment of the Pulaski Circuit Court.

         BACKGROUND

         In 2012, Akande began the practice of medicine in Kentucky, locating his office in Somerset. As part of his specialty in pain management, Akande treated patients who were part of the Medicaid system. Medicaid paid Akande based upon the services he provided each patient and, in addition, Akande could charge Medicaid for providing patients with smoking cessation counseling. In regard to payment for providing smoking cessation counseling, Medicaid authorizes payment to a physician for one rate if he counsels a patient for 3 to 10 minutes and a higher rate if he counsels the patient for more than 10 minutes. From 2012 to 2016, out of the more than $ 2 million Akande billed Medicaid, he received $10, 228.84 for providing smoking and tobacco cessation counseling.

         On July 6, 2016, the Pulaski County grand jury returned an indictment against Akande on two counts of theft by unlawful taking of property valued at $10, 000 or more and two counts of Kentucky Medical Assistance Program fraud involving his billing for smoking and tobacco cessation counseling. After trial, the jury convicted Akande on count one of the indictment, unlawful taking of property valued at $10, 000 or more, [2] and on count three, devising or engaging in a scheme to defraud the Kentucky Medical Assistance Program.[3] After a jury trial, the jury returned a verdict, acquitting Akande on counts two and four of the indictment, but finding him guilty on counts one and three of the indictment. In the course of the proceedings, Akande made a motion for a directed verdict of acquittal which was denied by the trial court.

         On April 24, 2017, the trial court entered judgment sentencing Akande to five years in prison on count one and one year on count three, to run concurrently. The trial court declined to grant him probation or conditional discharge on the basis that it would unduly depreciate the seriousness of his crimes. On May 4, 2017, the trial court ordered Akande to pay $10, 228.84 in restitution to the Kentucky Medical Assistance Program.

         This appeal followed.

         ANALYSIS

         Akande raises four issues to support his contention that the judgment against him must be reversed: that no reasonable jury could convict him of Medicaid fraud; that the trial court erred in denying him a directed verdict on the issue of theft by unlawful taking; that the trial court erred in admitting the testimony of Dr. David Hiestand, Chief Medical Officer at Aetna ...


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