United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING MOTION TO DISMISS OR COMPEL
ELECTION OF COUNTS
H. CLELAND UNITED STATES DISTRICT JUDGE
Millicent Traylor is charged by the Government's
Superseding Indictment with one count of conspiracy to commit
health care fraud in violation of 18 U.S.C. § 1349, one
count of conspiracy to pay and receive health care kickbacks
in violation of 18 U.S.C. § 371, and five counts of
health care fraud in violation of 18 U.S.C. § 1347.
Defendant argues that Counts 1 and 2 are duplicative in
violation of her Constitutional rights. She asks this court
to dismiss Count 2 or to compel the Government to pursue only
one of the counts at trial. (Dkt. #99.) Upon review of the
parties' briefs and based on basic principles of law, the
court will conclude that the Government's indictment is
not multiplicious and deny Defendant's motion.
is charging a single offense in more than one count in an
indictment.” United States v. Swafford, 512
F.3d 833, 844 (6th Cir. 2008) (quoting United States v.
Lemons, 941 F.2d 309, 317 (5th Cir. 1991)) (internal
quotation marks omitted). The Double Jeopardy clause of the
Fifth Amendment of the Constitution protects an individual
from being punished twice for the same offense. See Abney
v. United States, 431 U.S. 651, 661 (1977). This
protection prohibits multiplicity because it includes a
prohibition against putting an individual on trial twice for
the same offense. Id. “However, a single
transaction can give rise to distinct offenses under separate
statutes without violating the Double Jeopardy Clause.”
United States v. DeCarlo, 434 F.3d 447, 454 (6th
determine whether charges are multiplicitous, [the courts]
generally analyze, under Blockburger v. United
States, 284 U.S. 299 (1932), whether each charge
requires proof of a fact that the other charge does not; if
each charge does, then the charges accuse different crimes
and are therefore not multiplicitous.” United
States v. Myers, 854 F.3d 341, 355 (6th Cir. 2017).
“‘[T]he Blockburger test focuses on the
proof necessary to prove the statutory elements of each
offense, rather than on the actual evidence to be presented
at trial.'” Christian v. Wellington, 739
F.3d 294, 298 (6th Cir. 2014) (quoting Illinois v.
Vitale, 447 U.S. 410, 416 (1980).
Count I of the Government's superseding indictment
Defendant is charged with conspiracy to commit healthcare
fraud in violation of 18 U.S.C. § 1349. To prove that
Defendant committed this offense the Government must show
that Defendant entered into an agreement to,
knowingly and willfully execute, or attempt to execute, a
scheme or artifice-
(1) to defraud any health care benefit program; or
(2) to obtain, by means of false or fraudulent pretenses,
or promises, any of the money or property owned by, or under
the custody or control of, any health care benefit program,
in connection with the delivery of or payment for health care
benefits, items, or services . . . . 18 U.S.C. § 1347.
Count II of the Government's superseding indictment
Defendant is charged with conspiracy to pay and receive
health care kickbacks in violation of 18 U.S.C. § 371.
To prove that Defendant committed this offense the Government
must show that first that Defendant agreed with two or more
persons to commit an offense against the United States, in
this case, receiving kickbacks in return for goods or
services paid for by a federal healthcare program. 18 U.S.C.
§ 371. This offense requires proof that Defendant,
knowingly and willfully solicit[ed] or receive[ed] any
remuneration (including any kickback, bribe, or rebate)
directly or indirectly, overtly or covertly, in cash or in
(A) in return for referring an individual to a person for the
furnishing or arranging for the furnishing of any item or
service for which payment may be made in whole or in part
under a Federal health care program, or
(B) in return for purchasing, leasing, ordering, or arranging
for or recommending purchasing, leasing, or ordering any
good, facility, service, or item for which payment may be
made in whole or in part under a Federal health ...