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United States v. Soliman

July 1, 2008


The opinion of the court was delivered by: Honorable Richard J. Arcara Chief Judge United States District Court



The defendant, Ezzat M. Soliman, is a physician practicing medicine in the Western District of New York. On August 2, 2006, the defendant was charged in a 64-count Indictment with engaging in a scheme to defraud health care benefit programs in violation of 18 U.S.C. § 1347. The matter was referred to Magistrate Judge Hugh B. Scott for pretrial proceedings.

The defendant filed a motion to dismiss the Indictment on the grounds that:

(1) the Indictment is facially insufficient; (2) the Indictment is multiplicitous; and (3) the statute at issue exceeds Congress' authority under the Commerce Clause. The government opposes those motions and on March 18, 2008, Magistrate Judge Scott recommended that the motions to dismiss be granted.

The government filed objections and the defendant filed a response. On May 30, 2008, the Court heard argument on the objections.

For the reasons stated, the Court finds that: (1) the Indictment sufficiently alleges violations of 18 U.S.C. § 1347; (2) the Indictment is not multiplicitous; and (3) the statute is a constitutionally valid exercise of Congressional authority under the Commerce Clause.


1. Validity of the Indictment

Rule 7(c) of the Federal Rules of Criminal Procedure requires that an indictment contain a "plain, concise and definite written statement of the essential facts constituting the offense charged." Id. This rule satisfies a defendant's Sixth Amendment right to be informed of the nature and cause of the accusation; prevents a defendant from being subject to double jeopardy; and serves the Fifth Amendment's protection against prosecutions for crimes based on evidence not presented to a grand jury. SeeUnited States v. Walsh, 194 F.3d 37, 44 (2d Cir. 1999).

"It is well-established that '[a]n indictment is sufficient when it charges a crime with sufficient precision to inform the defendant of the charges he must meet and with enough detail that he may plead double jeopardy in a future prosecution based on the same set of events.'" Id. (quotingUnited States v. Stavroulakis, 952 F.2d 686, 693 (2d Cir.), cert. denied, 504 U.S. 926 (1992)). The Second Circuit has "consistently upheld indictments that do little more than track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime." Id. (internal quotation omitted). As the Supreme Court recently reiterated, an indictment has "two constitutional requirements: 'first, [it must] contain[] the elements of the offense charged and fairly inform[] a defendant of the charge against which he must defend, and, second, [it must] enable[] him to plead an acquittal or conviction in bar of future prosecutions for the same offense." United States v. Resendiz-Ponce, 127 S.Ct. 782, 788 (2007) (quoting Hamling v. United States, 418 U.S. 87, 117 (1974)).

The Indictment in this case meets those constitutional requirements. The Indictment tracks the language of the statute and alleges that the defendant: did knowingly and willfully execute, and attempt to execute, a scheme and artifice to defraud Health Care Benefit Programs . . . and to obtain, by means of false and fraudulent pretenses, representations and promises, money and property owned by, and under the custody or control of, said Health Care Benefit Programs in connection with the delivery of and payment for helath care benefits, items, and services.

See Indictment, at ¶ 1. The Indictment then goes on to describe with specificity the alleged scheme which, according to the government, involved "up-coding," that is, the practice of charging a health care benefit program for a clinical service that was reimbursable at a higher rate than appropriate for the service. The Indictment alleges that the defendant had a practice of charging for services at the highest based numerical code applicable for office-based evaluation and management visits even though the services preformed during those visits did not warrant billing at that numerical code. The Indictment then contains a "table of counts" which identifies 64 different occasions during which the defendant is alleged to have executed the scheme to defraud described in the Indictment. As to each count, the Indictment identifies the date that the service was performed, the health care benefit program that is alleged to be the victim of that count (either Univera, Medicare or Excellus), the claim number under which the claim was submitted and the alleged improper billing code used. The Indictment also alleges that each of the alleged victims - Medicare, Univera and Excellus - are all "health care benefit programs" as defined in 18 U.S.C. § 24(b). See Indictment, at ¶ 11.

The defendant argues, and the Magistrate Judge agrees, that the Indictment is deficient because it fails to allege that the scheme to defraud had an effect on interstate ...

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