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United States v. Vadim Nekritin and Gor Loshakov

May 3, 2011

UNITED STATES,
v.
VADIM NEKRITIN AND GOR LOSHAKOV,
DEFENDANTS.



The opinion of the court was delivered by: Matsumoto, United States District Judge:

MEMORANDUM & ORDER

An eight-count Superseding Indictment, filed on July 15, 2010, charges defendants Vadim Nekritin ("Nekritin") and Igor Loshakov ("Loshakov") (collectively, "defendants") with one count of conspiring to commit health care fraud in violation of 18 U.S.C. §§ 1347,*fn1 1349*fn2 and 3551*fn3 et seq. and seven counts of health care fraud in violation of 18 U.S.C. §§ 1347, 2*fn4 and 3551 et seq. (ECF No. 27, Superseding Indictment ("Ind‟t") ¶¶ 18-21.) The Superseding Indictment also contains a criminal forfeiture allegation pursuant to 18 U.S.C. § 982.*fn5 (Ind‟t at 8-9, ¶¶ 17-18.*fn6 ) Presently before the court are: (1) Nekritin‟s motion for severance and for a bill of particulars, in which Loshakov joins; and (2) Loshakov‟s motion for severance or dismissal of the Superseding Indictment. (ECF No. 45, Motion for Bill of Particulars and to Sever by Vadim Nekritin ("Nekritin Mot."); ECF No. 47, Motion to Sever and/or Dismiss by Igor Loshakov ("Loshakov Mot.").) For the reasons set forth below, defendants‟ motion to sever is denied, Loshakov‟s motion to dismiss the Superseding Indictment is denied, and defendants‟ motion for a bill of particulars is granted in part and denied in part.

BACKGROUND

The facts, as set out in the Superseding Indictment, the Complaint, and the parties‟ submissions, are as follows:

Nekritin and Loshakov are licensed podiatrists with medical practices in New York and certified to participate in Medicare, a federal health care program, and Medicaid, a medical assistance program, funded in part by the federal government.

(Ind‟t ¶¶ 1-2, 13-15; ECF No. 1, Complaint and Affidavit in Support of Application for Arrest Warrant ("Compl.") ¶¶ 7, 15, 17, 19, 21-24; ECF No. 49, Response in Opposition to Motions for Bill of Particulars and to Sever ("Gov‟t Resp.") at 2-3.) Nekritin owned a clinic at Avenue U in Brooklyn, New York (the "Avenue U location"), and also maintained two practices in Forrest Hills and Far Rockaway, New York. (Ind‟t ¶ 15; Compl. ¶¶ 19, 22-23; Gov‟t Resp. at 3; ECF No. 45-2, Affidavit of Vadim Nekritin ("Nekritin Aff.") at 1.) Loshakov maintained a separate practice in Gravesend Neck Avenue in Brooklyn, New York, and at times worked out of Nekritin‟s Forrest Hills and Avenue U locations. (Ind‟t ¶ 15; Compl. ¶¶ 21-22, 24; Gov‟t Resp. at 3; Nekritin Aff. at 2.) Loshakov indicated in his Medicare application that he was employed by VYN Podiatry, a corporation owned by Nekritin, and his Medicare correspondence should be sent to the Avenue U location. (Compl. ¶ 21; Gov‟t Resp. at 3.) In addition, Loshakov used the standard patient charts and billing forms that were used by Nekritin and other podiatrists at the Avenue U location, and billing forms relating to care provided by Loshakov contained the header "VADIM NEKRITIN DPM." (Gov‟t Resp. at 3.) The defendants, at times, treated the same patients. (Id.; Ind‟t ¶ 15; Compl. ¶ 22.)

The government alleges that the defendants solicited Medicare and Medicaid beneficiaries and provided them with a variety of podiatric services. (Ind‟t ¶ 16; Gov‟t Resp. at 3.) Between 2005 and 2010, according to the government, the defendants falsely billed Medicare and Medicaid for a number of chemical cauterizations*fn7 that they did not in fact perform. (Ind‟t ¶ 17; Compl. ¶¶ 25-29; Gov‟t Resp. at 3-4.)

By motion dated March 3, 2011, defendant Nekritin moves for (1) severance from his co-defendant Loshakov, pursuant to Federal Rules of Criminal Procedure 8(b) and 14; and (2) a bill of particulars pursuant to Federal Rule of Criminal Procedure 7(f). (Nekritin Mot.) By motion dated March 3, 2011, defendant Loshakov moved for severance from co-defendant Nekritin or dismissal of the Superseding Indictment. (Loshakov Mot.) In addition, Loshakov indicated that he incorporated and agreed with Nekritin‟s submissions. (Id.) The government filed an opposition to defendants‟ motions on March 21, 2011. (Gov‟t Resp.) Defendants did not file replies, despite having the opportunity to do so. Each ground for relief requested is discussed below.

DISCUSSION

A.Severance Pursuant to Fed. R. Crim. P. 8(b)

Defendants move for severance pursuant to Federal Rule of Criminal Procedure 8(b), arguing that joinder is improper absent a "common plan or scheme" or "substantial identity of facts or participants," and that "a common sense approach does not show a substantial identity of facts or participants, making joinder improper." (ECF No. 46, Memorandum of Law in Support of Motion for Bill of Particulars and to Sever ("Nekritin Mem.") at 2-4.) Loshakov further argues that the government cannot show that defendants were partners in practice at the Avenue U location, mandating severance. (Loshakov Mot. at 5.*fn8 ) The government opposes severance, arguing that the Superseding Indictment alleges that defendants Nekritin and Loshakov were co-conspirators and participated in the same series of acts or transactions, and that joinder pursuant to Rule 8(b) is proper. (Gov‟t Resp. at 11.) Because the court finds that the Superseding Indictment alleges that the defendants participated in a common plan or scheme, the defendants are properly joined pursuant to Rule 8(b).

a.Legal Standard

Federal Rule of Criminal Procedure 8(a) governs the joinder of offenses, and Federal Rule of Criminal Procedure 8(b) governs the joinder of defendants. Fed. R. Crim. P. 8(a)-(b). Where there is joinder of both offenses and defendants, courts should apply Rule 8(b) to determine whether joinder is proper. See United States v. Turoff, 853 F.2d 1037, 1043 (2d Cir. 1988); see also United States v. Attanasio, 870 F.2d 809, 814 (2d Cir. 1989) ("Where, as here, the joinder involves both multiple offenses and multiple defendants, Rule 8(b) must be applied."). Rule 8(b) allows joinder of two defendants if "if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses." Fed. R. Crim. P. 8(b). Further, the rule provides that "[t]he defendants may be charged in one or more counts together or separately" and that "[a]ll defendants need not be charged in each count." Id.

The Second Circuit has interpreted the "same series of acts or transactions" language of Rule 8(b) to mean that "joinder is proper where two or more persons‟ criminal acts are unified by some substantial identity of facts or participants, or arise out of a common plan or scheme." United States v. Rittweger, 524 F.3d 171, 177 (2d Cir. 2008) (internal quotation marks and citations omitted); see also United States v. Stewart, 433 F.3d 273, 314 (2d Cir. 2006) (noting that Rule 8(b) language has been interpreted to mean that the charged offense must be unified by substantial identity of facts and defendants, or a common plan or scheme); Attanasio, 870 F.2d at 815 (similar). Courts must "apply a "commonsense rule‟ to decide whether, in light of the factual overlap among charges, joint proceedings would produce sufficient efficiencies such that joinder is proper notwithstanding the possibility of prejudice to either or both of the defendants resulting from the joinder." Rittweger, 524 F.3d at 177 (internal quotation marks and citations omitted). Further, "[u]nder the plain language of Rule 8(b), the decision to join parties turns on what is "alleged‟ in the "indictment,‟" not what the facts will or are expected to show at trial. Id. at 178.

b.Application

Based on the record before the court, defendants Nekritin and Loshakov are properly joined pursuant to Rule 8(b). The Superseding Indictment alleges that the defendants participated in the same conspiracy to commit health care fraud by submitting claims to Medicare and Medicaid for chemical cauterizations that they did not perform. (Ind‟t ¶¶ 17-21; see also Gov‟t Resp. at 11-12.) Further, the Superseding Indictment alleges that the defendants submitted these false claims, in part, while working out of the same office, treating some of the same patients, and using the same billing forms. (Ind‟t ¶¶ 15-17; Gov‟t Resp. at 11-12.) Therefore, defendants Nekritin and Loshakov participated in the "same series of acts or transactions" in that the offenses "arise out of a common plan or scheme," i.e. the conspiracy to defraud Medicare and Medicaid. See Rittweger, 524 F.3d at 177; see also Fed. R. Crim. P. 8(b). Severance of their trials would require the ...


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