In United States v. Melgen, No. 18-10991 (July 31, 2020) (Grant, Martin, Lagoa), the Court affirmed the defendant’s Medicare fraud convictions and sentence.
First, the Court rejected the defendant’s argument that the district court erred by giving the pattern instruction on materiality. The Court rejected the defendant’s reliance on a Supreme Court case addressing the False Claims Act.
Second, the Court found no error in the introduction of summary charts comparing the defendant’s billing to peer physicians. The charts were admissible under Rule 1006. The Confrontation Clause did not permit the defendant to cross examine decision-makers about the criteria used to make the charts (namely, the prosecutors). And no expert witness was required to admit the charts.
Third, the Court rejected five errors about his trial. First, the district court did not err in admitting evidence of multi-dosing, since it was probative of his profit motive. Second, no mistrial was required due to a witness’ false testimony because the court immediately issued a thorough curative instruction. Third, the court’s refusal to instruct the jury that a sample of patient files was not statistically random did not require a mistrial, because the court instructed the jury to disregard any statements concerning statistical confidence. Fourth, the district court did not commit plain error by giving the jury unredacted copies of the indictment because the court told the jury that it was not evidence of guilt and there was no potential prejudice. Finally, no mistrial was required by contact between the government and defense witnesses after the court conducted a hearing and determined that the contact had not been prejudicial or altered any testimony.
Fourth, the Court concluded that sufficient evidence supported the convictions, as the defendant’s argument went to the weight of the evidence.
Fifth, the Court upheld the denial of a motion for new trial based on a Brady violation, which was based on medical testimony by a government witness at sentencing. This testimony was neither new nor likely to change the outcome of the trial. And it was merely impeachment evidence, and so not the basis of a new trial under Rule 33.
Finally, as to the sentence, the Court found no clear error in the loss amount, as the government presented enough evidence that the sample patient group was representative of the defendant’s patient population. And his below-guideline sentence was not substantively unreasonable.