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United States v. Cwibeker

United States District Court, E.D. New York

December 31, 2014

UNITED STATES OF AMERICA,
v.
MELVIN CWIBEKER, also known as

For the Government: Charles Peter Kelly, Esq., United States Attorneys Office, Eastern District of New York, Central Islip, NY.

For CWIBEKER: John Martin, Esq., Robert Alexander Del Giorno, Garfunkel Wild, Great Neck, NY; Bruce Loren Wenger, Esq., Wenger & Arlin Esqs. LLP, New York, NY.

MEMORANDUM AND ORDER

Joanna Seybert, United States District Judge.

Before the Court is the motion of Melvin Cwibeker (" Cwibeker" or " Defendant") to suppress the evidence seized following the Government's March 26, 2012 search of his residence and home office. For the following reasons, the Court DENIES Defendant's motion.

BACKGROUND

Defendant is charged with one count of Conspiracy to Commit Health Care Fraud in violation of 18 U.S.C. § 1349, one count of Healthcare Fraud in violation of 18 U.S.C. § 1839, one count of Conspiracy to Commit Wire Fraud in violation of 18 U.S.C. § 1349, three counts of Aggravated Identity Theft in violation of 18 U.S.C. § 1028A, one count of Money Laundering in violation of 18 U.S.C. § 1956(a), three counts of Engaging in Unlawful Monetary Transactions in violation of 18 U.S.C. § 1957, and one count of Obstruction of a Federal Audit in violation of 18 U.S.C. § 1516. (See Superseding Indictment, Docket Entry 83.) The charges arise from Defendant's role in a scheme that involved submitting claims to Medicare for fictitious or otherwise non-compensable patient services.

I. The Investigation

Defendant is the owner of Mel Cwibecker, D.C., located in Woodmere, New York. Defendant is a licensed chiropractor who provides services to residents at various assisted living facilities in Brooklyn, Queens, the Bronx, Westchester, and Richmond Counties. Many of his patients are covered by Medicare. Thus, to receive compensation for services rendered to those patients, Defendant is required to submit a claim to Medicare. The claim form requires the provider to certify that the services were " medically indicated and necessary for the health of the patient and were personally furnished." See Health Insurance Claim Form (Form HFCA-1500), 2, available at http://www.usrds.org/forms/ 08_1500_Health_Insurance_Claim.pdf.

In 2009, Safeguard Services, a private company contracted by the United States Government to audit and analyze certain financial data related to Medicare claims, recommended that officials at the United States Department of Health and Human Services, Offices of the Inspector General (" DHHS-OIC") investigate Defendant's business. DHHS-OIC Special Agent Elysia Doherty (" Agent Doherty") led the ensuing investigation. Agent Doherty inspected Defendant's Medicare billing records, conducted visual surveillance of Defendant, and interviewed Defendant's patients. (Doherty Aff., Docket Entry 92-4, Exhibit D, ¶ ¶ 19, 23.)

Agent Doherty's investigation revealed evidence of a number of days where the medical services claimed to have been rendered by Defendant would have been impossible to perform in a single day. (Doherty Aff. ¶ 19.) Between January 2006 and December 2009, Agent Doherty concluded that Defendant was submitting claims to Medicare for treating between 100 and 250 patients per day. (Doherty Aff. ¶ 19.) Doing so would have required Defendant to visit and provide compensable care at assisted living facilities in the Bronx, Brooklyn, New Rochelle, Mohegan Park in Peekskill, Queens, and other counties in a single day. (Doherty Aff. ¶ 19.) Agent Doherty also learned that Defendant had claimed to have treated over 1, 000 patients between June 17, 2010 and July 1, 2010, while data from his passport showed that he had traveled to Israel during those same dates. (Doherty Aff. ¶ 22.) In another instance, Agent Doherty found that Defendant had filed claim forms seeking reimbursement for services rendered between January 24, 2010 and January 28, 2010, while data from his passport showed that Defendant had traveled to Barbados during those dates. (Doherty Aff. ¶ 21.) Moreover, a DHHS-OIC agent spoke with a Medicare beneficiary that indicated that she had been seen by Defendant on one occasion. Defendant had submitted claims seeking reimbursement for twenty-six treatments to that beneficiary. (Doherty Aff. ¶ 24.)

II. The Search Warrant

In March 2012, working with the United States Attorneys Office for the Eastern District of New York, Agent Doherty signed an affidavit in support of an application for a warrant to search Defendant's home office for evidence related to the suspected Health Care Fraud (the " Doherty Affidavit, " or the " Affidavit"). The Affidavit sets out, in detail, the evidence already amassed against Defendant and the laws that he was suspected of violating. The Affidavit concludes, " your deponent respectfully requests that this Court issue a search warrant . . . authorizing the seizure of the items described in Attachment B, which constitute evidence, contraband, fruits, and other items related to violations of the specified federal offenses." [1] (Doherty Aff. ¶ 36.) Magistrate Judge William Wall, on March 22, 2012, found that the Affidavit established probable cause to search Defendant's home office and authorized the requested search warrant (the " Search Warrant"). (See Search Warrant, Docket Entry 92-2.)

Attachment B to the Search Warrant listed the items to be seized. Eleven categories of items were listed:

1. Documents constituting, concerning, or relating to patient files, bills, invoices, and claims for payment or reimbursement for services billed, provided, or alleged to have been provided to patients to include, but not limited to, reimbursement claim forms (under Medicare), explanations of medical benefits, dispensing orders, detailed written orders or prescriptions, certificates of medical necessity, information from the treating physician(s) concerning the patients' diagnosis, and proof of delivery of services and/or items that were submitted by any representative acting on behalf of CWIBEKER or for reimbursement by Medicare;
2. All contracts, agreements, papers, and affiliated records constituting, concerning, or relating to providing of services by CWIBEKER or any representative acting on their behalf, to include, but not limited to, contracts, invoices, and receipts;
3. All letters constituting, concerning, or relating to efforts to collect co payments [sic] and/or deductibles for individuals that receive health care coverage from Medicare;
4. All correspondence and cancelled checks relating to notice of overpayment and request for refunds from Medicare;
5. All correspondence to and from Medicare including, but not limited to, manuals, advisories, newsletters, ...

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