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United States v. Trotter

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

September 18, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JOHNNY TROTTER, II, M.D. and ELAINE LOVETT, Defendants.

          OPINION AND ORDER DENYING DEFENDANTS' MOTIONS FOR JUDGMENT OF ACQUITTAL (DOC. 184 AND 186) AND MOTIONS FOR NEW TRIAL (DOC. 185 AND 187)

          GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE.

         On 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.

         I. Legal Standard

         A. Motion for Acquittal Pursuant to Federal Rule of Criminal Procedure 29

         “[A] 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).

         B. Motion for New Trial Pursuant to Federal Rule of Criminal Procedure 33

         Federal 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)).

         II. Discussion

         A. Motion for Acquittal

         1. Count I, Conspiracy

         To 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).

         Defendants 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.

         Defendants 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.

         Finally, 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.

         Defendants 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.

         The 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 interest.

         Finally, 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 ...


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