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United States v. ArrowMed Ambulance, Inc.

United States District Court, E.D. Kentucky, Central Division, Lexington

June 13, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ARROWMED AMBULANCE, INC., et al., Defendant.

          MEMORANDUM OPINION AND ORDER

          JOSEPH M. HOOD, SENIOR U.S. DISTRICT JUDGE

         This matter is before the Court on the Defendant Arrow-Med Ambulance, Inc.'s (“Arrow-Med”) “Motion to Alter or Amend Judgment.” [DE 223]. The Court having reviewed the Defendant Arrow-Med Ambulance, Inc.'s Motion [DE 223] and the United States' Response [DE 228], and for the reasons set forth herein below, IT IS ORDERED that the Defendant's motion [DE 223] be, and hereby is, DENIED.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On June 1, 2017, Arrow-Med was charged with one violation of 18 U.S.C. § 1349 and 14 violations of 18 U.S.C. § 1347 and 18 U.S.C. § 2. [DE 1]. On July 31, 2018, Arrow-Med pleaded guilty to two counts of healthcare fraud involving the unnecessary ambulance transports of two patients which occurred on July 10, 2014 and September 10, 2014, i.e., Counts 7 and 8 of the Indictment, in violation of 18 U.S.C. § 1347. [DE 152]. The government agreed to dismiss the remaining 13 counts at sentencing. [DE 152].

         Pursuant to the plea agreement, Arrow-Med agreed to the imposition of a money judgment in the amount of $249, 539.00, jointly and severally liable with Jay Arrowwood and Lesa Arrowwood. [DE 152 at 4, PageID #1076]. The fine range calculated under the guidelines was $240, 000.00 to $480, 000.00. On May 14, 2019, the Court entered a judgment against Arrow-Med, assessing a fine of $240, 000.00. [DE 221].

         On May 24, 2019, Arrow-Med moved pursuant to Federal Rule of Civil Procedure 59(e), requesting the Court to alter and/or amend judgment. [DE 223]. In particular, Arrow-Med argues that the Court should reduce the judgment amount based on its “inability to pay” or, alternatively, set a “reasonable payment schedule” to pay the fine. [Id. at 2, PageID #2250]. In support, Arrow-Med contends that its eventual settlement of related civil False Claims Act[1] had not occurred by the time the United States Probation Office was conducting its presentence investigation, and therefore the settlement was not considered when determining Arrow-Med's ability to pay for purposes of the presentence report and subsequent sentencing. [Id. at 1-2, PageID #2249-50]. As a result, Arrow-Med requests the Court to make a “significant downward departure from the guideline range in assessing the fine amount, or, alternatively grant the Defendant the ability to make reasonable installments over a period of several months or years.” [Id. at 3, PageID #223].

         At this Court's direction, [DE 224], the United States filed its response on June 4, 2019. The United States makes two arguments in opposition to the Arrow-Med's motion. [DE 223]. First, it argues that the Court lacks jurisdiction to alter or amend the fine. [DE 228 at 1-3, PageID #2284-86]. Second, the United States contends that regardless of the Court's jurisdiction the facts support the $240, 000.00 fine. [Id. at 3-6, PageID #2286-2288]. As a result, Arrow-Med's motion is now ripe for review.

         II. Analysis

         We find no legal basis to support Arrow-Med's request to alter or amend its criminal fine. At the outset, the Court must note that Arrow-Med has cited no legal grounds - save for Federal Rule of Civil Procedure 59(e) - as to why the Court should alter and/or amend the judgment imposing a criminal fine on Arrow-Med. [DE 223]. The language of Joint Local Rule of Criminal Procedure 12.1(a) provides as follows:

Except for routine motions - such as motions for an extension of time - a motion must state with particularity the grounds for the motion, the relief sought, and the legal argument necessary to support it.

         Even in pro se cases, this Court has no authority to create arguments for moving parties. See Coleman v. Shoney's Inc., 79 Fed. App'x. 115, 157 (6th Cir. 2003). Without some effort at legal argumentation, a party cannot meet the standard set forth in LCrR 12.1(a).

         In the instant case, the Arrow-Med points only to Fed.R.Civ.P. 59(e), a civil rule, to support its argument that the Court should alter or amend its judgment imposing a fine on Arrow-Med in this criminal action. [DE 223 at 1, PageID #2249]. Arrow-Med makes no argument as to how or why Fed.R.Civ.P. 59(e) would apply in a criminal case. As a result, we find Arrow-Med's citation of a single, inapplicable civil rule fails to meet the requirements of LCrR 12.1(a).

         Even so, the Court finds no other legal authority supporting Arrow-Med's request to alter or amend its criminal fine. The United States correctly notes that the language of 18 U.S.C. § 3572(c) provides three mechanisms to alter or amend a criminal fine. [DE 228]; see also, United States v. Brumfield, 125 F.Supp.3d 648, 650 (W.D. Mich. 2015). First, a sentence to pay a fine may be subsequently modified or remitted under 18 U.S.C. § 3573. Second, a criminal fine may be corrected under Federal Rule of Criminal Procedure 35 and 18 U.S.C. § 3742. Third, a criminal fine may be appealed and modified under 18 U.S.C. § 3742. In the instant action, none of the three mechanisms for altering or amending Arrow-Med's criminal fine are available to Arrow-Med.

         First, as noted above, under certain circumstances a fine may be modified or remitted under 18 U.S.C. § 3573. However, the language of the statute provides that this may only occur in the Court's discretion “[u]pon petition of the Government showing that reasonable efforts to collect a fine or assessment are not likely to be effective...” Id. As the Sixth Circuit has confirmed, “...the statutory authorization for the government to petition for rescission of a fine, 18 U.S.C. § 3573, is not available to a defendant.” United States v. Mays, 67 Fed.Appx. 868, 869 (6th Cir. 2003) (emphasis in original) (internal citation ...


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