United States District Court, E.D. New York
Charles Peter Kelly, Esq., United States Attorney's Office Eastern District of New York, Central Islip, NY, for the Government.
John Martin, Esq., Robert Alexander Del Giorno, Esq., Garfunkel Wild, Great Neck, NY, Bruce Loren Wenger, Esq., Wenger & Arlin Esqs. LLP, New York, NY, for CWIBEKER.
MEMORANDUM AND ORDER
JOANNA SEYBERT, District Judge.
Before the Court is the motion of defendant Melvin Cwibeker ("Cwibeker" or "Defendant") to unseal a portion of the grand jury minutes or, alternatively, to dismiss counts four through six of the Superseding Indictment (Docket Entry 69.) For the following reasons, Defendant's motion is DENIED.
Defendant is charged with one count of Conspiracy to Commit Health Care Fraud in violation of 18 U.S.C. § 1349, one count of Health Care Fraud in violation of 18 U.S.C. § 1347, 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 crimes of which Defendant is accused relate to his role in a scheme that involved billing Medicare for fictitious or otherwise non-compensable treatments purportedly rendered to residents of various assisted living facilities. (Superseding Indictment, ¶ 10.) According to the Superseding Indictment, Defendant and his co-conspirators would visit various assisted living facilities across Long Island and New York City, but they would not provide any Medicare reimbursable services during those visits. (Superseding Indictment, ¶ 11.) After each visit, Defendant or a co-conspirator would generate a list of all the patients purportedly treated that day. (Superseding Indictment, ¶ 12.) In some cases, the list would include every resident in a given facility. Defendant would use that list to submit to Medicare fictitious claims seeking reimbursement for treatments that Defendant knew had not been performed. (Superseding Indictment, ¶ 12.)
In one instance, investigators interviewed a resident of one of the assisted living facilities that Defendant frequented. While the resident recalled being treated by Defendant on one occasion, Defendant had submitted claim forms to Medicare for twenty-six separate and compensable treatments of that resident. (Doherty Aff., Docket Entry 92-4, Exhibit D, ¶ 24.)
The Medicare reimbursement form requires the medical provider to submit information identifying the patient to whom treatment was rendered, including their name, date of birth, PIN, and Social Security Number. (Superseding Indictment, ¶ 16.) Defendant's charges of Aggravated Identity Theft thus arise from his alleged unlawful use of the means of identification of the residents that he fraudulently claimed to have treated. The Government does not dispute that Defendant legally obtained this information from the residents in the first instance, and he therefore did not "steal" the identities as the term is colloquially used. Nonetheless, the Government asserts, Defendant's subsequent unlawful use of those means of identification to submit fraudulent Medicare claims is sufficient to sustain a charge of Aggravated Identity Theft under 18 U.S.C. § 1028A.
On December 8, 2013, Defendant moved to unseal a portion of the grand jury minutes or, in the alternative, to dismiss the Aggravated Identity Theft counts. Defendant insists that the grand jury minutes must be inspected because it is likely that the grand jury was not properly instructed on the effect that the consent of the residents to the use of their identifying information could have on a charge of Aggravated Identity Theft. (Def. Mot., Docket Entry 69; Martin Declaration, Docket Entry 69-1.) The Government opposed Defendant's motion on January 22, 2014. (Gov't's Mem. in Opp., Docket Entry 73.) Defendant Replied on February 7, 2014. (Def's Reply, Docket Entry 77.)
I. Motion to Unseal the Grand Jury Minutes
The Court will first discuss the legal standard applicable to a motion to unseal the minutes of grand jury proceedings before applying ...