Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Kogan

United States District Court, S.D. New York

December 21, 2017

UNITED STATES OF AMERICA,
v.
ILYA KOGAN AND ASHRAF HASAN-HAFEZ, Defendants.

          JOON H. KIM Acting United States Attorney Southern District of New York By: Catherine Geddes, Esq. Jessica Greenwood, Esq. Jonathan Cohen, Esq. Noah Solowiejczyk, Esq. Attorney for Plaintiff

          BARKET MARION EPSTEIN & KEARON, LLP By: Bruce Barket, Esq. Alexander Klein, Esq. Attorney for Defendant Ilya Kogan

          THE ZUPPA FIRM PLLC By: Raymond Zuppa, Esq. Attorney for Defendant Ashraf Hasan-Hafez

          OPINION

          ROBERT W. SWEET, D.J.

         Defendants Ashraf Hasan-Hafez ("Hasan-Hafez") and Ilya Kogan ("Kogan") (collectively, the "Defendants") have jointly moved this Court for an order compelling the Government (the "Government" or the "United States") to provide a bill of particulars, and to compel the Government to produce certain recently discovered Brady materials. Additionally, Hasan-Hafez has individually moved, pursuant to Federal Rule of Criminal Procedure 12 (b), to dismiss a portion of the superseding indictment (the "Superseding Indictment") as time-barred. For the reasons set forth below, the Defendants' motions are denied.

         I. Facts & Prior Proceedings

         The factual background and procedural history of this litigation is detailed in prior Opinions of this Court, familiarity with which is assumed. See United States v. Hasan-Hafez, No. 16 Cr. 221 (RWS) (S.D.N.Y. July 20, 2017); United States v. Hasan-Hafez, No. SI 16 Cr. 221 (RWS), 2017 WL 4402577, *1 (S.D.N.Y. Oct. 3, 2017).

         On December 18, 2015, the Government charged Kogan with conspiracy to commit health care fraud, in violation of 18 U.S.C. § 1349, and health care fraud, in violation of 18 U.S.C. §§ 1347, 2. (Compl. ¶¶ 1-4.) On March 29, 2016, in a Superseding Indictment, a Grand Jury charged both Hasan-Hafez and Kogan with the aforementioned crimes. (SI ¶¶ 1-4.J[1] The criminal complaint ("Complaint") and Superseding Indictment allege the following facts, summarized as follows here. The Defendants "[f]rom at least in or about January 2010 through at least in or about August 2013, in the Southern District of New York and elsewhere, " committed the crimes of conspiracy to commit health care fraud and health care fraud. (Compl. ¶¶ 1, 3.) Further, they allege that Hasan-Hafez was the owner of a physical therapy practice, Excellent Care Physical Therapy, P.C. ("Excellent Care"), which operated in the vicinity of 1684 East 18th Street, Brooklyn, New York 11229 (the "East 18th Street Clinic" or the "Clinic"), and that he employed individuals who provided physical therapy services to patients at the Clinic. (Compl. ¶ 8.) They further allege that Kogan was the owner of an acupuncture company, Zen Acupuncture ("Zen Acupuncture"), which also operated its practice at the East 18th Street Clinic, and that Kogan performed acupuncture on patients at the Clinic. (Compl. ¶ 8.) The Complaint and Superseding Indictment allege that Kogan and Hasan-Hafez instructed Clinic employees to "falsely represent[] that certain health care services had been provided to patients, " (see SI ¶ 1) and "knowingly and willfully did execute, and attempt to execute, a scheme and artifice to defraud a health care benefit program and to obtain . . . money and property owned by ... a health care benefit program, namely Medicare and Medicaid, " (see SI ¶ 4.)[2]

         The Center for Medicare and Medicaid Services ("CMS") received an anonymous letter providing that the East 18th Street Clinic was engaging in fraud, specifically by performing services, including acupuncture, not covered by Medicare, and then submitting Medicare reimbursement claims falsely stating that covered services had in fact been provided. (Compl. ¶ 9.) As part of its investigation, the Government debriefed with several cooperating witnesses who had previously worked at the East 18th Street Clinic. (Compl. ¶ 9.) For example, according to Cooperating Witness 1 ("CW-1"), who allegedly reported directly to Kogan from about November 2012 through about March 2013, when, as frequently occurred, a patient arrived at the Clinic without a referral for physical therapy from an outside doctor, the patient was referred to an in-house part-time doctor or physician's assistant who would then write a prescription for physical therapy. (Compl. ¶ 10.) After writing the prescription for the patient, the doctor or physician's assistant would allegedly direct the patient to the acupuncturist or massage therapist. (Compl. ¶ 10.) CW-1 further alleged that the Clinic required patients to see this doctor or physician's assistant about once per month, regardless of need, in order to continue receiving massage and/or acupuncture services from the Clinic. (Compl. ¶ 10.)

         Moreover, as relevant here, according to Cooperating Witness 2 ("CW-2"), who is alleged to have worked at the Clinic as the primary physical therapist from about April 2010 through about October 2012, shortly after beginning employment at the Clinic, CW-2 received pressure from Kogan to add information to Superbills and patient notes indicating that physical therapy services had been provided to patients when, in actuality, they had not been. (Compl. ¶ 11.) The Complaint also alleges that as part of the investigation into the charges, the Government interviewed employees at a company that assists health care providers with the process of submitting bills to Medicare as well as Medicare and Medicaid beneficiaries. (Compl. ¶¶ 12, 14.)

         The parties engaged in discovery on May 23, 2016, wherein the Government produced approximately 125, 000 items, consisting of undercover surveillance video and reports, bank records, Medicare and Medicaid documents, medical charts, and patient records. (See Gov't Opp'n Br. 2; Hasan-Hafez Mot. for Bill of Particulars 6; Kogan Br. 2.) Further, the Government produced a chart on September 14, 2016 showing the results of interviews with thirty patients for whom Medicare or Medicaid had been billed from the East 18th Street Clinic. (See Gov't Opp'n Br. 3.) The chart compared the services for which Medicare or Medicaid were billed with the services the patients reported receiving when they were interviewed. (See Gov't Opp'n Br. 3.) On October 30, 2017, the Government provided the Defendants with a version of this chart that contained the names of each of the interviewed patients. (See Gov't Opp'n Br. 3.)

         As relevant to this motion, on March 27, 2017, Hasan-Hafez moved this Court to compel the Government to produce certain documents, including, broadly, the identity and full statements of all potential witnesses, including coconspirators, cooperating witnesses, and patients; Brady material; Giglio and Jencks Act material; Rule 404(b) material; and billing records that relate to a particular clinic address. This motion to compel was denied on July 21, 2017, as was Hasan-Hafez's motion for reconsideration, on October 3, 2017.

         The Defendants have now jointly moved to compel the Government for a bill of particulars and for certain recently discovered Brady materials, and Hasan-Hafez has individually moved to dismiss a portion of the Superseding Indictment as barred by the statute of limitations. The instant motions were filed on November 3, 2017. The motions to compel a bill of particulars and to compel Brady material were argued on November 29, 2017, and Hasan-Hafez's motion to dismiss was taken on submission on that same date, at which point all motions were marked fully submitted. The motion to compel Brady material was resolved by the parties and is now moot.[3]

         II. The Defendants' Motions to Compel a Bill of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.