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United States v. Agbebiyi

United States District Court, E.D. Michigan, Southern Division

December 14, 2016

United States of America, Movant,
v.
Jonathan Agbebiyi, Respondent. Civil No. 15-13523

          ORDER DENYING MOTION UNDER 28 U.S.C. §2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE [368]

          ARTHUR J. TARNOW SENIOR UNITED STATES DISTRICT JUDGE.

         On October 7, 2015, Movant, through an attorney, filed a Motion under 28 U.S.C. §2255 to Vacate, Set Aside, or Correct Sentence. [368]. The Government responded on December 1, 2015 [372], and Movant, through an attorney, filed a notice of supplemental authority on August 30, 2016 [378]. For the reasons stated below, Movant's Motion to Vacate [368] is DENIED and Movant is denied a certificate of appealability.

         Procedural Background

         On February 17, 2011, Movant was indicted, alongside ten other individuals, for conspiracy to commit healthcare fraud. [3 at Pg ID 7-17]. Movant then filed a notice of appeal on November 28, 2012. He raised three issues: (1) that the District Court committed plain error by failing to specifically determine the amount of loss attributable to Movant from his time participating in the conspiracy; (2) that his sentence violated the Sixth Amendment, because the amount of loss used in determining the Guidelines based offense level enhancement, and the amount of restitution was not determined by the jury; and (3) that he was entitled to a judgment of acquittal on the conspiracy charge. A panel of the Sixth Circuit Court of Appeals rejected his arguments and affirmed his sentence in an Opinion issued on August 8, 2014.

         Factual Background

         On appeal from Movant's conviction, the Sixth Circuit summarized the background of this case, in pertinent part, as follows:

In 2007, Karina Hernandez moved from Miami, Florida, to the Detroit, Michigan, area. Hernandez, who had a high-school education, planned to open a clinic for the purpose of providing diagnostic testing which could be billed to Medicare. Hernandez admitted that she opened the clinic for the purpose of defrauding Medicare. Marieva Briceno (Hernandez's mother), Juan Villa (Hernandez's brother-in-law), Dora Binimelis and Emilio Haver were also involved in this scheme.
Hernandez first opened Blessed Medical Clinic (“Blessed”), in Livonia, Michigan, with the assistance of her mother and Dora Binimelis. Hernandez later opened the Alpha & Omega Medical Clinic (“Alpha & Omega”) and the Manuel Medical Clinic (“Manuel”)…All three clinics were located in the same building and shared equipment…
In order to bill Medicare, the clinics were required to employ doctors to work at the clinics. The clinics provided the doctors with forms to order diagnostic tests, such as EKGs and nerve conduction tests…
Doctor Agbebiyi, who specialized as a gynecologist, obstetrician and general family doctor, worked for the clinics from April, 2008, through January 15, 2010. Hernandez interviewed Agbebiyi for the position and gave him a tour of the clinic to show him the diagnostic equipment. Hernandez explained to Agbebiyi that after he had seen a patient, the patient would be referred for diagnostic tests. According to the Government, Agbebiyi ordered numerous diagnostic tests without any legitimate medical purpose so that the clinic could generate profits from Medicare reimbursement revenues. Agbebiyi worked for the clinics on a part-time basis from April of 2008 to January of 2010, and was paid $100 per hour. After Hernandez opened Manuel, Agbebiyi agreed to work there for his hourly rate plus fifteen percent of the total amount being billed by the three clinics.
The clinics employed drivers who were paid to find patients who were Medicare-eligible and bring them to the clinics. The goal was to make money for the clinics when the clinics' doctor referred patients for diagnostic tests. The drivers were organized by Hernandez's husband, Santiago Villa. Isaac Carr, one of the drivers used by the clinics, testified that he would go to soup kitchens and recruit persons who had a Medicare card to go to the clinics for cash. Carr was paid $50 for every patient he brought to the clinic, and the patient was also paid $50…Agbebiyi knew that the clinics paid a driver to bring in patients.
The patients were coached to say they had certain symptoms, such as lower back pain, headaches, or swollen knees…Dr. Agbebiyi billed Medicare for eighteen nerve conduction studies administered to Madden. No one from the clinic ever called Madden to talk to her about the results of these tests.
Ultrasound tests were performed at the clinics by Kim Seung Hee, a certified ultrasound technician who worked at the clinics for seven to eight months until June, 2009. Hee testified that some patients stated they came to the clinic for prescriptions, and objected or threatened her when she started to perform the ultrasound tests ordered by Agbebiyi. On those occasions, Agbebiyi instructed her to go ahead and do the tests. Occasionally when she informed Agbebiyi that a patient had received ultrasound tests within the past two or three months for which no results had been received, Agbebiyi instructed her to go ahead and perform the test anyway. Hee observed diagnostic tests being performed at the clinic even when no doctor was present. Hernandez and Juan Villa forced her to perform ultrasounds even when Agbebiyi was not there. When Hee informed Agbebiyi about this, he would look at the chart, see the patient, and tell her to do the ultrasound…
After seeing a patient, Agbebiyi would tell Oliver which tests were ordered for the patient, and would give her the patient's prescriptions. The prescriptions were given to her rather than to the patients because the patients would leave before taking the tests if the prescriptions were given to them directly. Many patients also complained to Agbebiyi about having to take the tests. They received their prescriptions for drugs such as Vicodin, Metformin, and Xanax after taking the tests.
At trial, the government presented the testimony of Dr. James Teener, M.D., a neurologist with board certifications in neuromuscular and electrodiagnostic medicine. Dr. Teener explained that a nerve conduction test involves placing electrodes on the skin at the location of specific muscles under study. The electrodes are connected to a computer. The nerve is stimulated with an electrical impulse, and the result of exciting the nerve is recorded. The study is designed by the physician, although the test can be performed by a technologist. The technologist must complete six months of observational training and another three to four months of work with intense supervision before being permitted to give the test independently. Usually obstetricians are not trained in nerve conduction studies. Teener's usual practice is to remain in or near the room to observe the administration of the test and to explain the results to the patient.
Teener testified that, as a nerve specialist, he orders a nerve conduction study for one-half to two-thirds of his patients, but that it is very uncommon to administer a nerve conduction study repeatedly to the same patient. He examined nerve conduction test results in fifteen to twenty patient files from the clinics, and found that none of the tests were done properly. Nerve conduction studies are almost always done in conjunction with a needle electromyography test, which is typically done at the same visit as the nerve conduction test and involves the discomfort of inserting a needle into the muscle. The needle examination was not done in any of the patient files he reviewed.
Teener also testified that the transcranial Doppler test, an ultrasound test used to evaluate the velocity of blood flow within the brain, is infrequently administered because the test is inaccurate and CAT scans and MRIs give a picture of what the blood vessels look like. The transcranial Doppler test would not be an appropriate test for someone complaining of a headache.
Medicare was billed for 537 patients under Agbebiyi's provider number for services dating from April 29, 2008, through January 29, 2010. Ninety-three percent of Agbebiyi's patients (499 patients) received surface nerve conduction tests. Medicare was billed $2, 265, 665 for *629 these tests, and Medicare reimbursed the clinics for $1, 125, 634. Claims were submitted to Medicare for sixty-nine percent of Agbebiyi's patients (372 patients) for transcranial Doppler tests in the amount of $178, 702, and Medicare reimbursed those claims in the amount of $88, 171. Only one patient out of the 537 patients seen by Agbebiyi did not receive either the nerve conduction or transcranial Doppler test. Medicare was also billed under Agbebiyi's provider number for H-Reflex studies in the amount of $97, 650, and Medicare reimbursed these claims in the amount of $38, 686. The claims submitted for these three tests totaled $2, 542, 017, and Medicare reimbursed the clinics for the three tests in the amount of $1, 252, 491.
These three tests were just a fraction of the types of tests ordered by Agbebiyi. For example, the record indicates that from July 1, 2008, through November 23, 2009, Blessed and Manuel billed Medicare $14, 540.24 under Agbebiyi's provider number for office visits and tests which included venipuncture, electrocardiogram, nystagmus tests, a caloric vestibular test, and oscillating tracking test, a sinusoidal rotational test, and an electro-oculography test.
In April of 2008, Agbebiyi received his first payment from the clinics, made payable in his name. From May, 2008, through January, 2010, the payments were made by the clinics to Harmony International. Agbebiyi is the agent for Harmony Health Choice, and he worked at the Harmony International Clinic. In his individual capacity and in his capacity with Harmony International, Agbebiyi was paid a total of $183, 476.69 by the clinics from April, 2008, through January, 2010. A chart showing a combination of the payments to Agbebiyi and Harmony International from bank records along with the payments by Medicare to the three clinics ...

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