verdict and a mistrial was declared. The court granted Binder’s motion for
acquittal in June 2014. The government seeks to preclude evidence of this prior
acquittal. Defendant Binder responds that he does not intend to offer evidence of
his prior acquittal. To the extent this motion is not moot, the court will deny it
without prejudice.

VIII. Government’s Omnibus Motion in Limine

The government has filed an “omnibus” motion in limine, seeking to
preclude the introduction of various categories of evidence or argument, such as
the criminal records of any witnesses, hearsay evidence, discovery disputes, jury
nullification, plea negotiations, etc. Disputes about this evidence are more
properly resolved at trial. The court will deny the government’s motion without
prejudice.

ORDER

IT IS HEREBY ORDERED that Goldfein and Binder’s motions to dismiss
for multiplicity (Docket Nos. 105, 110) are DENIED.

IT IS FURTHER ORDERED that Goldfein’s motion to dismiss for
vindictive prosecution (Docket No. 104) is DENIED.

IT IS FURTHER ORDERED that Binder’s motion for a bill of particulars

(Docket No. 109) is DENIED.

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Albernaz v. United States, 450 U.S. 333 (1981). In Albernaz, the Supreme Court
found that the defendants could be charged under two different conspiracy
statutes, even though the charges arose from a single agreement:

Petitioners’ contention that a single conspiracy which
violates both § 846 and § 963 constitutes the “same
offense” for double jeopardy purposes is wrong. . . . It is
well settled that a single transaction can give rise to
distinct offenses under separate statutes without
violating the Double Jeopardy Clause. This is true even
though the “single transaction” is an agreement or
conspiracy.

Albernaz v. United States, 450 U.S. 333, 344 (1981).

Counts 1 and 32 of the first superseding indictment charge separate
offenses, even if they arise from the same agreement. Accordingly, the court will
deny Defendants’ motion to dismiss for multiplicity.

II. Goldfein’s Motion to Dismiss for Vindictive Prosecution

Defendant Goldfein was indicted on November 26, 2013, on one count of
conspiracy to commit health care fraud, and four substantive counts of health care
fraud. The government and Goldfein engaged in plea negotiations, during which
the government played a video of a May 22, 2013 meeting at Goldfein’s office.
Goldfein’s counsel told the government that he did not believe the video would be

admissible in court. Ultimately, Goldfein rejected the government’s plea offer.

-5-


provided voluminous discovery, the court will deny Defendant Binder’s motion
for a bill of particulars.
IV. Defendant Sokoll’s Motion for Severance

Defendant Sokoll has requested that he be severed for the purpose of trial.
He claims that his present health condition prevents him from going to trial at this
time and requests that his trial be adjourned for three to six months. (Trial was
scheduled for June 13, 2016, but it has since been adjourned to November 8,
2016.) On December 20, 2015, Sokoll was diagnosed with necrotizing fasciitis
(“flesh eating bacteria”), which affected his lower back, buttocks, and perineum.
He lapsed into a coma and was admitted to the intensive care unit. He recovered
from the coma and underwent fifteen surgeries to remove infected issue and
decrease the open wound on his sacrum. He is currently weak, but undergoing
physical therapy. Sokoll has provided a detailed letter from his physician
outlining a long list of his ailments. His doctor is of the opinion that, as a result of
Sokoll’s medications, pain, fatigue, and the open wound on his sacrum, he is
unable to assist his counsel in his own defense. His doctor expects that he will
improve within three to six months.

Sokoll’s medical condition appears to preclude his appearance at trial at this

time. Given that trial is currently scheduled for November 8, 2016, however,

-10-


or constitutional right.” United States v. Poole, 407 F.3d 767, 774 (6" Cir. 2005).
To demonstrate prosecutorial vindictiveness, a defendant must show

(1) exercise of a protected right; (2) the prosecutor’s

“stake” in the exercise of that right; (3) the

unreasonableness of the prosecutor’s conduct; and,

presumably, (4) that the prosecution was initiated with

the intent to punish the plaintiff for the exercise of the

protected right. Thus, a person claiming to be

vindictively prosecuted, must show that the prosecutor

had some “stake” in deterring the petitioner’s exercise of

his rights, and that the prosecutor’s conduct was

somehow unreasonable.
United States v. Dupree, 323 F.3d 480, 489 (6" Cir. 2003). In the plea bargaining
context, however, a prosecutor may threaten to charge a defendant with a more
serious crime if he does not plead guilty. Bordenkircher, 434 U.S. at 363-65
(“[I]in the ‘give-and-take’ of plea bargaining, there is no such element of
punishment or retaliation so long as the accused is free to accept or reject the
prosecution’s offer.”). “[T]he Supreme Court long ago adopted the position that
the prosecution may legitimately threaten to bring harsher charges in order to
induce a defendant into pleading guilty, despite the fact that the harsher charges, if
brought, might appear to penalize a defendant for exercising his right to trial.”

United States v. LaDeau, 734 F.3d 561, 566, 569 (6" Cir. 2013).

Here, the government brought additional charges against Goldfein as a

7.


In January 2015, DOJ attorney Matthew Thuesen informed Goldfein’s
counsel that he had decided to file a superseding indictment with additional
conspiracy and substantive counts in order to be able to introduce the May 22,
2013 video into evidence at trial. Defendant contends that the government’s
actions were a vindictive response to Defendant’s rejection of the plea offer and
the inadmissibility of the video.

The government contends that after obtaining the original indictment, it
continued to investigate Defendant Goldfein and his co-conspirators. The
government states that its decision to seek a superseding indictment was “based on
a number of factors including the strong evidence that the defendants had
committed the additional charged offenses and the fact that Ms. Kassab’s identity
[a confidential informant] had been revealed and she was no longer an active
confidential source.” Govt. Br. at 5.

“Tn our system, so long as the prosecutor has probable cause to believe that
the accused committed an offense defined by statute, the decision whether or not
to prosecute, and what charge to file or bring before a grand jury, generally rests
entirely in his discretion.” Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).
This discretion is limited, however, by the requirements of due process, which

“prohibits an individual from being punished for exercising a protected statutory

-6-


indictment fails to inform him when he entered the alleged conspiracy and which
specific patient visits were fraudulent. The government responds that the
indictment is detailed and that it has provided Defendants with voluminous
discovery.

When, as here, the indictment sets forth the elements of the offense charged
and sufficiently apprises Defendant of the charges to enable him to prepare for
trial, a bill of particulars is not warranted. See United States v. Cox, 2012 WL
6568088 at *1 (E.D. Mich. Dec. 14, 2012) (O’Meara, J.). In addition, “[w]here the
indictment fails to provide the full panoply of such information, a bill of
particulars is nonetheless unnecessary if the information is available through some
other satisfactory form, such as discovery.” United States v. Blanchard, 542 F.3d
1133, 1140-41 (7" Cir. 2008). Indeed, the type of information that Defendant is
requesting — such as specific Medicare claims involved in the conspiracy — is not
the proper subject of a bill of particulars. See United States v. Elhorr, 2014 WL
5511502 at *2 (E.D. Mich. Oct. 31, 2014) (Edmunds, J.); United States v.
Salisbury, 983 F.2d 1369, 1375 (6" Cir. 1993) (noting a bill of particulars “is not
meant as a tool for the defense to obtain detailed disclosure of all evidence held by
the government before trial”).

Because the indictment is sufficiently detailed and the government has

-9-


UNITED STATES DISTRICT COURT |
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LE

JUL 18 2016

UNITED STATES OF AMERICA, CLERK'S OFFICE
U.S. DISTRICT COURT
ANN ARBOR, MI
Plaintiff,
Case No. 13-20882
v.
Hon. John Corbett O’Meara

AARON GOLDFEIN, M.D., et al.,

Defendants.

OPINION AND ORDER

Before the court are several pretrial motions filed by the parties: (1)
Defendants Goldfein and Binder’s motions to dismiss Counts 1 and 32 for
multiplicity; (2) Defendant Goldfein’s motion to dismiss first superseding
indictment for vindictive prosecution; (3) Defendant Binder’s motion for a bill of
particulars; (4) Defendant Sokoll’s motion to sever due to medical incapacity; (5)
Defendant Goldfein’s motion in limine regarding board certification status and
administrative actions; (6) the government’s motion in limine to preclude
Defendants from introducing evidence of lawful/good conduct; (7) the
government’s motion in limine to preclude Defendants from introducing evidence
of prior acquittal of William Binder; and (8) the government’s omnibus motion in

limine.


Goldfein had not seen the patients and the prescriptions were unnecessary. The
government contends that the administrative action is admissible to show that
Goldfein knew that prescribing controlled substances without having seen a
patient or without a medical need is wrong and that his conduct was not
accidental.

Courts have admitted evidence of prior administrative actions when, as here,
the evidence is probative of the defendant’s intent and knowledge. United States v.
Logan, 250 F.3d 350, 369 (6" Cir. 2001), abrogated on other grounds by Fed. R.
Evid. 408. Any danger of unfair prejudice may be mitigated by appropriate jury
instructions; moreover, “[e]vidence that is prejudicial only in the sense that it
paints the defendant in a bad light is not unfairly prejudicial pursuant to Rule
403.” Id.

Defendant argues that the consent order is inadmissible as evidence of
settlement negotiations pursuant to Rule 408. Evidence of settlement discussions
is inadmissible under Rule 408 only “to prove or disprove the validity or amount
of a disputed claim or to impeach by a prior inconsistent statement or a
contradiction.” Fed. R. Civ. P. 408(a). On the other hand, such evidence is
admissible to show a defendant’s state of mind, which is the government’s purpose

in offering it here. See McAuliffe v. United States, 514 Fed. Appx. 542, 549-50

-12-


severance is not necessary. The court will deny Sokoll’s motion without
prejudice.
V. Goldfein’s Motion in Limine regarding Board Certification Status

Defendant Goldfein seeks to exclude evidence regarding (1) his lack of
board certification in any area of medical specialty care; and (2) any past
administrative actions against him, including a 2009 administrative complaint
filed by the Disciplinary Subcommittee of the Michigan Board of Medicine.

The government responds that it does not intend to offer evidence regarding
Goldfein’s lack of board certification, unless the defendant “opens the door” to
such evidence.

The administrative complaint alleged that Goldfein prescribed OxyContin to
patients that he had not examined and to those whose medical records did not
support such a prescription. Goldfein entered into a consent order regarding the
allegations and was placed on probation for one year. The government contends
that the evidence is admissible as other acts evidence pursuant to Rule 404(b).
According to the government, the evidence is admissible to show intent,
knowledge, absence of mistake, and lack of accident. Similar to the allegations in
the administrative action, the indictment alleges that Goldfein permitted other

individuals to prescribe medication under his name and DEA number, when

-ll-


result of the failure of the plea bargaining process. Such circumstances do not
support a finding of vindictiveness. See United States v. Suarez, 263 F.3d 468,
479 (6" Cir. 2001) (“[I]f the charges are brought simply as the result of failure of
the plea bargaining process, they are not vindictive.”). Nor does Goldfein’s
contention that the government was responding to the potential inadmissibility of
the May 2013 video. Goldfein cannot show that the prosecution had any
particular “stake” in preventing him from filing a motion to exclude that evidence,

which is routinely done. See Suarez, 263 F.3d at 480 (“It is unrealistic to assume

that a prosecutor’s probable response to such motions is to seek to penalize and to
deter.” ) (citation omitted). The court will deny Goldfein’s motion to dismiss for
prosecutorial vindictiveness.
III. Binder’s Motion for a Bill of Particulars

Defendant Binder has moved for a bill of particulars. See Fed. R. Crim. P.
7(f). A bill of particulars insures that the defendant understands the nature of the
charges so he can adequately prepare for trial and minimizes the danger of unfair
surprise. The granting of a bill of particulars is within the district court’s
discretion. See United States v. Robinson, 390 F.3d 853 (6" Cir. 2004).

The indictment charges a broad conspiracy to commit health care fraud and

wire fraud from December 2008 to December 2013. Binder contends that the

-8-


Defendants do not dispute that the Blockburger test is met, but rather argue

that the court should undertake the analysis set forth in United States v. Sinito, 723

F.2d 1250, 1256 (6" Cir. 1984). In Sinito, the defendant was charged with a RICO
conspiracy and found guilty. Subsequently, the defendant was charged in a second
RICO conspiracy in a different indictment. In determining whether the second
conspiracy charge violated the Double Jeopardy Clause, the Sixth Circuit
questioned whether “the particular acts alleged in the indictment are part of a
larger, unified conspiracy for which the defendant has already been prosecuted.”
Id. at 1258.

The government argues that Sinito applies in the context of successive

prosecutions under the same conspiracy statute, when there is a danger that a
defendant is to be punished twice for the same offense. When, as here, the
government charges a defendant under two different conspiracy statutes, the
multiplicity problem does not exist, because Congress has created two separate
offenses. See United States v. Nakashian, 820 F.2d 549, 553-54 (2d Cir. 1987)
(“[T]he issue in multiplicity cases is the unauthorized imposition of multiple
punishments for the same conduct, and Congress obviates any multiplicity
problems by creating different offenses which prescribe multiple punishment.”).

Further, applying the Sinito test under these circumstances is contrary to

-4-


IT IS FURTHER ORDERED that Sokoll’s motion to sever (Docket No.
114) is DENIED WITHOUT PREJUDICE.

IT IS FURTHER ORDERED that Goldfein’s motion in limine regarding
board certification status (Docket No. 103) is DENIED WITHOUT PREJUDICE.

IT IS FURTHER ORDERED that the government’s motion in limine to
preclude Defendants from introducing evidence of legitimate conduct (Docket No.
107) is DENIED WITHOUT PREJUDICE.

IT IS FURTHER ORDERED that the government’s motion in limine to
preclude Defendants from introducing evidence of prior acquittal of William
Binder (Docket No. 108) is DENIED WITHOUT PREJUDICE.

IT IS FURTHER ORDERED that the government’s omnibus motion in

limine (Docket No. 106) is DENIED WITHOUT PREJUDICE.

Dated: Julyf 2016

ohn Corbett O’ Meara
United States District Judge

-15-


although Counts | and 32 charge two conspiracies, they are in fact the same
conspiracy. “‘Multiplicity’ is charging a single offense in more than one count in

an indictment.” United States v. Swafford, 512 F.3d 833, 844 (6" Cir. 2008).

Multiplicity may result in a defendant being punished twice for the same crime, in
violation of the Constitution’s Double Jeopardy Clause, “or may unfairly suggest
that more than one crime has been committed.” Id. However, a defendant may be
charged with multiple offenses based on the same underlying conduct as long as
each offense requires proof of an element that the other does not. Blockburger v.
United States, 284 U.S. 299, 304 (1932); United States v. Kelly, 204 F.3d 652, 656
(6" Cir. 2000) (citing Blockburger).

Count | charges a conspiracy to commit health care fraud and wire fraud, in
violation of 18 U.S.C. § 1349, whereas Count 32 charges a conspiracy to pay and
receive kickbacks, in violation of 18 U.S.C. § 371. These are separate offenses
that each require proof that the other does not, thus meeting the Blockburger test.
See, e.g., United States v. Fowler, F.3d _, 2016 WL 1381907 at *8 n.4 (6" Cir.
Apr. 7, 2016) (convictions for both conspiracy to commit health care fraud, in
violation of 18 U.S.C. § 1349, and conspiracy to pay or receive healthcare
kickbacks, in violation of 18 U.S.C. § 371, do not violate Double Jeopardy

Clause).

3-


BACKGROUND FACTS

Defendants are alleged to have committed health care fraud. A grand jury
returned the first superseding indictment on June 9, 2015, against Aaron Goldfein,
M.D., William Sokoll, M.D., William Binder, M.D., Muhammad Zafar, Tariq
Khan, and Ghulam Shakir.' The indictment sets forth thirty-six counts, as follows:
Count 1, conspiracy to commit health care fraud and wire fraud, in violation of 18
USS.C. § 1349; Counts 2-16, health care fraud, in violation of 18 U.S.C. §1347;
Counts 17-31, wire fraud; and Count 32, conspiracy to pay and receive kickbacks,
in violation of 18 U.S.C. § 371. The government alleges that Defendants
fraudulently billed Medicare for physician home visits that were not medically
necessary and not provided, billed for physician home visits that were not
provided by licensed physicians, and billed for home visits when referrals for
those services were obtained through the payment of kickbacks.

LAW AND ANALYSIS
IL Goldfein and Binder’s Motions to Dismiss for Multiplicity
Defendants Goldfein and Binder contend that Counts 1 and 32 suffer from

multiplicity and must be consolidated or dismissed. According to Defendants,

' Tariq Khan pleaded guilty to Count 1 on May 12, 2016. Muhammad Zafar
has apparently absconded to Pakistan. Ghulam Shakir has also presumably fled.

2-


(6" Cir. 2013). Nonetheless, the court will deny Defendant’s motion, without
prejudice, so that it may evaluate the evidence in the proper context at trial.

VI. Government’s Motion in Limine to Preclude Defendants from
Introducing Evidence of Legitimate or Good Conduct

The government seeks to preclude Defendants from introducing “good acts”
evidence — that they genuinely provided medically necessary services to their
patients or that no kickbacks were paid in connection with services provided to
certain patients. See United States v. Dimora, 750 F.3d 619, 630 (6" Cir. 2014)
(“For the same reason that prior ‘bad acts’ may not be used to show a
predisposition to commit crimes, prior ‘good acts’ generally may not be used to
show a predisposition not to commit crimes.”). Defendant responds that a general,
blanket prohibition of such evidence is improper at this stage and that the better
course is to defer a ruling until trial so that questions of foundation, relevancy, and
potential prejudice may be resolved the context of the specific evidence received.
Consistent with the court’s practice, the court will deny the government’s motion
without prejudice.

VII. Government’s Motion in Limine to Preclude Defendants from
Introducing Evidence of Prior Acquittal of William Binder

In 2013, Defendant Binder was charged in a separate case with one count of

unlawfully distributing controlled substances. A jury was unable to reach a

-13-