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United States v. Robinett

United States District Court, N.D. Texas, Dallas Division

April 5, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
KELLY ROBINETT, Defendant.

          MEMORANDUM OPINION AND ORDER

          SIDNEY A. FITZWATER UNITED STATES DISTRICT JUDGE.

         Defendant Kelly Robinett (“Robinett”), who is charged in various counts of a multicount superseding indictment (“indictment”) with the offenses of conspiracy to commit healthcare fraud and healthcare fraud, [1] moves under Fed. R. Crim. P. 12(b)(1)[2] to dismiss Counts 1, 4, 5, and 6[3] of the superseding indictment, or, alternatively, for a bill of particulars. Concluding that the indictment provides sufficient notice of the offenses charged and that no other reasons warrant dismissal or a bill of particulars, the court denies the motion.

         I

         Defendants in this case are physicians and other individuals who were associated with Timely Home Health Services, Inc. The indictment charges in Count 1 that defendants conspired to commit healthcare fraud, in violation of 18 U.S.C. § 1349, and in Counts 2 through 6 that defendants committed healthcare fraud, in violation of 18 U.S.C. § 1347. Robinett moves to dismiss Counts 1, 4, 5, and 6 of the indictment (the four counts in which he is charged). The government opposes the motion.

         II

         The court begins with Robinett's motion to dismiss Count 1, the conspiracy count.

         A

         Robinett moves to dismiss Count 1 on the ground that it lacks sufficiency. He maintains that the indictment fails to adequately apprise him of the nature of the charges against him and fails to include the elements of Count 1; many of the allegations in the indictment do not refer to him, and that those that do are conclusory and do not meet the constitutional standards for an indictment; the indictment fails to specify what direct connection (i.e., communications, understandings, agreements, or otherwise) he had with the other named defendants; nothing in the indictment directly links him to any of the named defendants he is alleged to have conspired with, and Count 1 therefore fails to state an element of the offense, i.e., that he had a meeting of the minds with the named defendants or unnamed coconspirators regarding the alleged conspiracy; Count 1 should be dismissed as facially insufficient as to him for failing to allege any agreement between him and the alleged coconspirators, which is a necessary element of a conspiracy offense; and Count 1 is at odds with Counts 4 through 6 because Count 1 alleges that defendants engaged in a conspiracy from January 2007 through September 2015, but Counts 4 through 6 cover fewer than six months during the latter half of 2013.

         The government responds that the indictment provides more than sufficient detail as to how Robinett is alleged to have violated the law; Count 1 sets forth each element of conspiracy to commit health care fraud; and it is not necessary that the indictment describe any agreement between the coconspirators or plead that all members of a conspiracy knew one another or all of the unlawful elements of the scheme.

         B

         To be sufficient, an indictment must “‘allege each essential element of the offense charged so as to enable the accused to prepare his defense and to allow the accused to invoke the double jeopardy clause in any subsequent proceeding.'” United States v. Lawrence, 727 F.3d 386, 397 (5th Cir. 2013) (quoting United States v. Morrow, 177 F.3d 272, 296 (5th Cir. 1999)). “Thus, an indictment is sufficient if it ‘contains the elements of the offense charged and fairly informs the defendant of the charge against which he must defend.'” Id. (quoting United States v. Fuller, 974 F.2d 1474, 1480 (5th Cir. 1992)). “It is not necessary for an indictment to go further and to allege in detail the factual proof that will be relied upon to support the charges.” United States v. Crippen, 579 F.2d 340, 342 (5th Cir. 1978) (citations omitted). “Generally, an indictment which follows the language of the statute under which it is brought is sufficient to give a defendant notice of the crime of which he is charged.” United States v. Thomas, 348 F.3d 78, 82 (5th Cir. 2003); see also United States v. Massey, 849 F.3d 262, 264 (5th Cir. 2017); United States v. Hagmann, 950 F.2d 175, 182-83 (5th Cir. 1991). When the court decides a motion to dismiss the indictment for failure to state an offense, it is required to “take the allegations of the indictment as true and to determine whether an offense has been stated.” United States v. Kay, 359 F.3d 738, 742 (5th Cir. 2004) (quoting United States v. Hogue, 132 F.3d 1087, 1089 (5th Cir. 1998)).

         C

         Count 1 charges all defendants with conspiracy to commit healthcare fraud, in violation of 18 U.S.C. § 1349. Section 1349 provides: “Any person who attempts or conspires to commit any offense under this chapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.” Id. The essential elements of a conspiracy are an agreement by two or more persons to combine efforts for an illegal purpose and an overt act by one of the members in furtherance of the agreement. United States v. Gordon, 780 F.2d 1165, 1170 (5th Cir. 1986) (citation omitted); see also United States v. Delgado, 668 F.3d 219, 226 (5th Cir. 2012) (“To prove conspiracy to commit healthcare fraud, violating 18 U.S.C. § 1349, the government must establish the existence of an agreement between two or more people to pursue the offense of fraud; the defendant knew of the agreement; and the defendant voluntarily participated in the conspiracy.” (citation omitted)). “[C]onspiracy incorporates willfulness and specific intent, ” and “intent to accomplish an object cannot be alleged more clearly than by stating that parties conspired to accomplish it.” Gordon, 780 F.2d at 1170 (quoting United States v. Purvis, 580 F.2d 853, 859 (5th Cir. 1978)). “A conspiracy indictment is sufficient if it sets out the essential elements of the charge and lists overt acts committed in furtherance of the conspiracy.” Id.

         Count 1 of the indictment charges that all six defendants

did knowingly and willfully combine, conspire, confederate and agree with each other and others, known and unknown to the Grand Jury . . . to knowingly and willfully execute a scheme and artifice to defraud a healthcare benefit program affecting commerce . . . that is, Medicare, and to obtain, by means of materially false and fraudulent pretenses, representations, and promises, money and property owned by, and under the custody and control of [Medicare] in connection with the delivery of and payment for healthcare benefits, items, and services.

Indictment ¶ 20. The indictment also alleges the purpose of the conspiracy and the manner and means by which defendants sought to accomplish the purpose of the conspiracy, and it includes factual allegations pertaining to each defendant's alleged role in the conspiracy. Id. ¶¶ 21-29. The indictment charges that defendants caused the submission and concealment of false and fraudulent claims to Medicare and caused the diversion of the proceeds of the fraud for their personal use and benefit to unlawfully enrich themselves. Regarding Robinett's alleged role in the conspiracy, the indictment charges that other defendants and coconspirators provided and caused to be provided false and fraudulent plans of care to Robinett; that Robinett “would falsely certify that beneficiaries qualified for home health care, ” id. at ΒΆ 27, despite the fact that the beneficiaries were not under his care and did not qualify for home health care; that ...


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