United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER REGARDING THE GOVERNMENT'S
NOTICES OF INTENT TO OFFER 404(b) EVIDENCE (DOC.
CARAM STEEH UNITED STATES DISTRICT JUDGE
John Trotter, II, M.D., and Elaine Lovett are charged with
health care fraud conspiracy and three counts of health care
fraud. This matter is before the Court on the
Government's notice of intent to offer Rule 404(b)
evidence at trial against Trotter and Lovett. (Doc. 136).
Defendants responded to this notice, to which the Government
replied. The Court dispensed with oral argument in accordance
with E.D. Mich. L.R. 7.1(f)(2). For the reasons stated below,
the Court will permit this evidence.
One of the superseding indictment charges Lovett and Trotter
with conspiring with each other, Michelle Freeman, and Andrew
Hardy, Jr., M.D., to knowingly and willfully execute a scheme
to defraud Medicare and to obtain money by making materially
false and fraudulent representations on claim forms
submitted. The conspiracy is alleged to have occurred from
May 2008 to May 2014. The indictment specifies that the
defendants conspired to unlawfully enrich themselves by
submitting false claims to Medicare for physician visits that
were not medically necessary, not provided, and/or not
eligible for reimbursement; concealing the submission of
false and fraudulent claims; and diverting proceeds of this
fraud for their personal use and benefit. (Doc. 90 at ¶
achieve this end, the defendants and Freeman allegedly used
and/or purchased existing Medicare providers numbers,
submitted false claims using provider numbers without the
permission of those providers, submitted false statements for
services not provided as billed, submitted claims for
services provided by an unlicensed doctor, and submitted
false enrollment materials that did not disclose
Trotter's ownership interest.
Two, Three, and Four allege that Trotter and Lovett executed
a scheme to defraud Medicare by submitting false claims for
services that were not rendered and were not medically
government alleges the following facts regarding the proposed
other act evidence. In approximately late 2012 or early 2013,
Trotter and ABIX Solutions, Inc. (ABIX), Lovett's billing
company, arranged to bill Medicare under Dr. George
Evans' Medicare Provider Identification Number (PIN).
Despite this billing, Evans never treated any of
Trotter's patients and never managed or supervised any
other purported practitioners. Evans retained approximately
five to ten percent of the reimbursements. Lovett, through
ABIX, also retained a percentage of the reimbursements in
return for billing the claims and apportioning the funds
between Trotter and Evans.
is relevant “if it has any tendency to make a fact more
or less probable than it would be without the evidence; and
the fact is of consequence in determining the action.”
Fed.R.Evid. 401. Even if evidence is relevant, it may be
inadmissible under another Federal Rule of Evidence.
of a crime, wrong, or other act” is prohibited at trial
when used “to prove a person's character in order
to show that on a particular occasion the person acted in
accordance with the character.” Fed.R.Evid.
404(b)(1). But, such “evidence may be
admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” Fed.R.Evid.
Court “must apply a three-step analysis to evaluate the
admissibility of evidence under Rule 404(b).”
United States v. Hardy, 228 F.3d 745, 750 (6th Cir.
2000). First, the party seeking to admit 404(b) evidence must
demonstrate that the other bad acts occurred. Id.
(citing United States v. Johnson, 27 F.3d 1186, 1190
(6th Cir. 1994)). Second, the offering party must cite a
specific purpose for which the evidence is offered.
Id. “[T]he government's purpose in
introducing the evidence must be to prove a fact that the
defendant has placed, or conceivably will place, in issue, or
a fact that the statutory elements obligate the government to
prove.” United States v. Bell, 516 F.3d 432,
442 (6th Cir. 2008). Essentially, the offering party
“must show the evidence is probative of a material
issue other than character.” Hardy, 228 F.3d
at 750. Finally, the Court must find that the evidence's
probative value is not substantially outweighed by the risk
of unfair prejudice. Id.; see also Fed. R.
not clear whether defense counsel intends to raise a
Fed.R.Evid. 402 objection in addition to their objection
under Fed.R.Evid. 404(b). Nevertheless, the Court, will
address admissibility under both rules.
counsel argues that the proposed other act evidence is
“not relevant to the charges set forth in the
Superseding Indictment.” (Doc. 140 at PageID 1833).
This argument fails. Whether defendants conspired to commit
and did in fact commit health care fraud is a fact of
consequence. Evidence that Trotter arranged to improperly
bill his claims under Evan's PIN, and that Lovett
facilitated and benefitted from this arrangement, has a
tendency to make this fact more probable. Defense counsel
themselves highlight the relevance of this evidence, stating
that the issue with other act evidence “is not that it
is irrelevant, but, to the contrary, that using bad acts
evidence can ‘weigh too much with the ...