United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANTS' MOTIONS FOR
JUDGMENT OF ACQUITTAL (DOC. 184 AND 186) AND MOTIONS FOR NEW
TRIAL (DOC. 185 AND 187)
CARAM STEEH UNITED STATES DISTRICT JUDGE.
April 28, 2017, following a 14 day trial, defendants Johnny
Trotter, II, M.D., and Elaine Lovett were convicted of
conspiracy to commit health care fraud or wire fraud, and
three counts of health care fraud. (Doc. 174). This matter is
before the Court on Motions for Judgment of Acquittal
Pursuant to Fed. R. Crim. P. 29 by Trotter, (Doc. 184), and
Lovett, (Doc. 186) as well as Motions for New Trial Pursuant
to Fed. R. Crim. P. 33 by Trotter, (Doc. 185), and Lovett
(Doc. 187). For the reasons stated below, defendants'
motions are DENIED.
Motion for Acquittal Pursuant to Federal Rule of Criminal
defendant claiming insufficiency of the evidence bears a
heavy burden.” United States v. Maliszewski,
161 F.3d 992, 1005 (6th Cir.1998). “In reviewing a
claim of insufficient evidence, ‘the relevant question
is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt.'” United States v.
Salgado, 250 F.3d 4338, 446 (6th Cir. 2001) (emphasis in
original) (quoting Jackson v. Virginia, 443 U.S.
307, 319 (1979)). The Government “must present
substantial evidence as to each element of the
offense.” Brown v. Davis, 752 F.2d 1142, 1145
(6th Cir. 1985) (internal citations omitted).
“Substantial evidence is more than a scintilla. It
means such relevant evidence as a reasonable mind might
accept to support a conclusion. It is evidence affording a
substantial basis of fact from which the fact in issue can be
reasonably inferred.” United States v. Martin,
375 F.2d 956, 957 (6th Cir. 1967). “The government may
meet its burden through circumstantial evidence alone, and
such evidence need not exclude every possible hypothesis
except that of guilt.” Salgado, 250 F.3d at
446 (citing United States v. Jackson, 55 F.3d 1219,
1225 (6th Cir. 1995)). “In assessing the sufficiency of
the evidence, ‘we do not weigh the evidence, assess the
credibility of the witnesses, or substitute our judgment for
that of the jury.'” Id. (citing United
States v. Wright, 16 F.3d 1429, 1440 (6th Cir. 1994)).
Moreover, the court must “draw all available inferences
and resolve all issues of credibility in favor of the
jury's verdict.” Id. (citing
Maliszewski, 161 F.3d at 1006).
Motion for New Trial Pursuant to Federal Rule of Criminal
Rule of Criminal Procedure 33(a) provides that “[u]pon
the defendant's motion, the court may vacate any judgment
and grant a new trial if the interest of justice so
requires.” Fed. R. Crim. P. 33(a). “When faced
with a Rule 33 motion, unlike a motion for judgment of
acquittal under Rule 29, the district court may weigh the
evidence and assess the credibility of the witnesses;
‘[i]t has often been said that [the trial judge] sits
as a thirteenth juror' when considering a Rule 33
motion.” United States v. Curry, No. 13-20887,
2016 WL 4662339, at *3 (E.D. Mich. Sept. 7, 2016) (quoting
United States v. Lutz, 154 F.3d 581, 589 (6th Cir.
1998)). “A motion for new trial is premised on the
argument that the jury's verdict was against the manifest
weight of the evidence.” Id. (citing
United States v. Hughes, 505 F.3d 578, 593 (6th Cir.
2007)). “Such motions are generally granted only in the
extraordinary circumstance where the evidence preponderates
heavily against the verdict. Id. (citing
Hughes, 505 F.3d at 592-93). “In general,
motions for a new trial are disfavored and should be granted
with caution.” Id. (citing United States
v. Seago, 930 F.2d 482, 488 (6th Cir. 1991)). “The
defendant bears the burden of proving that a new trial is
warranted.” Id. (citing United States v.
Davis, 15 F.3d 526, 531 (6th Cir. 1994)).
Motion for Acquittal
Count I, Conspiracy
convict defendants of conspiracy, the Government had to prove
that they knowingly and voluntarily joined and participated
in an agreement to defraud Medicare. 18 U.S.C. § 1349;
Sixth Circuit Pattern Jury Instruction 3.01A Commentary Note.
18 U.S.C. § 1349 does not require the Government to
prove an overt act. Further, the Government need not prove a
formal agreement, written or spoken. Sixth Circuit Pattern
Jury Instruction 3.02. Nor is it required to prove that a
defendant “knew every detail or the identity of all the
other members involved in the conspiracy.” United
States v. Crossley, 224 F.3d 847, 856 (6th Cir. 2000)
(internal citations omitted). The Government must simply
prove that a defendant “knew the object of the
conspiracy and voluntarily associated himself with it to
further its objectives.” Id. (internal
citations omitted). “[A]n agreement must be shown
beyond a reasonable doubt, ” but “the connection
between the defendant and the conspiracy need only be slight,
and the Government is only required to prove that the
defendant was a party to the general conspiratorial
agreement.” Salgado, 250 F.3d at 447 (internal
citations omitted). Such an agreement may be explicit or the
Government may rely solely on “circumstantial evidence
that reasonably supports an inference of participation in
some common plan.” United States v. White, 492
F.3d 380, 395 (6th Cir. 2007) (internal citations omitted).
But “a line must be drawn between valid circumstantial
evidence, and evidence which requires a leap of faith in
order to support a conviction.” United States v.
White, 932 F.2d 588, 590 (6th Cir. 1991).
argue that the Government failed to prove an agreement to
defraud. In support, defendants state that they were unaware
that Michelle Freeman had failed to identify JTPFS Management
on Medicare Enrollment Application forms known as CMS 855.
Although Trotter testified to this point, the jury had the
right to weigh this statement against other evidence in the
case, including his statement to his attorneys that he did
not want to disclose his ownership or management interest
because he would thereafter be flagged by Medicare.
raise two additional allegations, first, that Lovett
testified that no one asked her to falsify billing
information, and that, even if someone had, she would not
have done so. Second, that the testimony of Agent Warren and
Fed.R.Evid. 404(b) witness Beth Jenkins improperly suggested
that fraud was committed by collecting blank billing sheets
and later manipulating them at Abix. The jury had the right
to weigh this against other evidence in the case, including
the testimony of Bianca Johnson and Jenkins. Johnson
testified that Lovett routinely altered the billing sheets
Trotter delivered to Abix and instructed her staff to do the
same. Johnson also testified that Lovett directed her staff
to fraudulently add diagnosis codes to at least 85 percent of
Trotter's claims and instructed them to rewrite claim
forms or fill out blank claim forms with the aid of a cheat
sheet. Furthermore, Jenkins testified that Lovett instructed
her to hire individuals to create false progress notes and
bill for services that Lovett knew had not occurred. Jenkins
also testified that, when Medicare audited her company,
Lovett advised her on how to circumvent the audit and create
a new company with a straw owner.
defendants argue that the only evidence connecting them to
each other is the innocent fact that Trotter used
Lovett's company, Abix, to bill his claims. In addition
to the evidence described above, this statement is refuted by
evidence that the defendants billed Medicare for services
that were never provided and evidence of their efforts to
circumvent prepayment review through the use of entities that
did not disclose Trotter's ownership or management
interest. Furthermore, the defendants' own testimony
revealed that Trotter frequently visited Abix to discuss
billing, including the types of claims and the rendering
physician and office.
also argue that, even if there was a conspiracy, the
Government did not prove that they joined knowingly and
voluntarily. Lovett asserts that she did not know which
services were not rendered or not medically necessary.
Trotter compares his case to United States v.
Agbebiyi, 575 F. App'x 624 (6th Cir. 2014), where
the Sixth Circuit affirmed a conviction for health care
fraud. Trotter compares the evidence presented in
Agbebiyi with that in his case, and asserts that he
must be acquitted because there is no evidence that nerve
blocks were objectively unreasonable, or that any test
results were physiologically impossible, or that any patient
received compensation for visiting his clinics. Trotter also
says there is no evidence that he performed a nerve block
over a patient's objection, that he knew of or authorized
falsifying patient charts or billing records, that he knew of
the incomplete CMS 885 forms, or that he instructed someone
to falsify CMS 1500 health insurance claim forms.
Government is not required to prove that defendants
“knew every detail or the identity of all the other
members involved in the conspiracy.” Crossley,
224 F.3d at 856. Instead, it need only prove that they
“knew the object of the conspiracy and voluntarily
associated himself with it to further its objectives.”
Id. The Government's evidence satisfies this
burden. It includes information that that Trotter recruited
family members to act as sham owners, exploited other
physicians' provider numbers, and lied to his attorneys.
It also includes information that Lovett listed her son and
his wife, not Trotter, as the owner for Healthcare
Administrative Services in order to circumvent prepayment
review by concealing Trotter's ownership or management
Trotter argues that the Government failed to prove an overt
act to advance the conspiracy. But U.S.C. § 1349 does
not require the Government to prove an overt act. Viewing the
evidence in the light most favorable to the prosecution, the
Court finds that the ...