United States District Court, E.D. New York
L. IRIZARRY, CHIEF JUDGE.
28, 2016, a jury convicted Syed Imran Ahmed, M.D.
(“Defendant”) of one count of health care fraud
(Count One), three counts of making false statements in
connection with the delivery of or payment for health care
benefits, items, or services (Counts Two, Three and Four),
and two counts of money laundering (Counts Five and Six). On
September 9, 2016, the government submitted a proposed order
of forfeiture of specific assets pursuant to 18 U.S.C.
§§ 982(a)(1), (7), and the parties briefed their
respective positions on the appropriateness of forfeiture.
See Gov't. Mot. for Forfeiture of Property and
Forfeiture Money J. (“Government's Motion” or
“Gov't. Mot.”), Dkt. Entry No. 203; Def. Opp.
to Gov't. Mot. (“Def. Opp.”), Dkt Entry No.
206; Reply in Further Supp. of Gov't. Mot.
(“Gov't. Reply”), Dkt. Entry No. 208.
25, 2017, the Court granted in part the Government's
Motion, holding that Defendant is liable for and must forfeit
at least $3, 090, 044.10, which represents the entire amount
sought by the government for the Class I and Class II Claims.
United States v. Ahmed, 2017 WL 3149336, at *21
(E.D.N.Y. July 25, 2017). The Court rejected the
government's argument that the calculated fraud rate for
the Class II Claims could be extrapolated to the Class III
Claims. Id. at *20. However, the Court permitted the
government to submit a declaration setting forth the results
of a remittance-to-operating-room-log analysis of the not yet
reviewed Class III Modifier 78 claims, or, in the
alternative, demonstrate why the Class II fraud rate can be
extrapolated reliably to the Class III claims. Id.
September 1, 2017, the government submitted a renewed motion
for forfeiture for the Class III claims (“Class III
Motion”), which was accompanied by the declaration of
Health and Human Services Investigator Susan G. O'Connor
(“Investigator O'Connor”). See
Gov't Class III Claims Mot. of Forfeiture (“Class
III Mot.”), Dkt. Entry No. 218; Declaration of Susan G.
O'Connor (“O'Connor Decl.”), Dkt. Entry
No. 218-2. Defendant opposed the government's motion.
See Def.'s Opp'n to Gov't Class III Mot.
(“Class III Opp'n”), Dkt. Entry No. 221. The
government filed a reply in further support of its motion,
which requested a lesser forfeiture amount for the Class III
Claims than originally requested based on certain errors in
its analysis pointed out by Defendant. See Gov't
Reply in Support of Class III Mot. (“Class III
Reply”), Dkt. Entry No. 224. For the reasons set forth
below, the government's motion is granted as provided in
the Class III Reply.
with the facts and procedural history of this case is
presumed. Rather than argue for extrapolation,
Investigator O'Connor undertook the same operating room
log analysis previously performed by Agent Giambalvo for the
Class II Claims that had been approved by the Court, and
“methodically reviewed the operating room logs entry by
entry and determined whether or not each had a corresponding
claim submitted for the same patient on the same date of
service. Class III Mot. at 1-2. Investigator O'Connor
“‘found that a total of $4, 433, 029.50, or
approximately 98% of the total amount paid for Class III
Claims' was not supported by corresponding operating room
logs.” Id. at 3 (quoting O'Connor Decl. at
¶ 8). The government contends that Investigator
O'Connor's analysis satisfies the preponderance of
the evidence standard with respect to the Class III Claims.
Defendant opposes the government's Class III Motion on
three grounds: Investigator O'Connor's analysis (1)
lists nearly 560 claims from 2010 as not having operating
room logs, even though no logs were subpoenaed or produced
for 2010, and the indictment only charges post-January 2011
conduct; (2) is unreliable in that, in at least one instance
related to patient L.C., it determined there was no operating
room record for an “abdominal debridement” even
though there is a corresponding operating room record for a
“Debridement of Wound, ” and (3) “fails to
take into account obvious instances of date mistakes.”
Class III Opp'n at 2-3. Defendant argues that these
fundamental flaws in the government's third attempt at
this analysis require the Court to reject the motion for
forfeiture with respect to the Class III Claims. Id.
response, the government: (1) concedes that the 2010 claims
were included in error, and withdraws those claims; (2)
concedes that the inclusion of the entry for patient L.C. was
“due to human error, ” and agrees that $698.83
should be deducted from the Class III Claims; and (3)
disagrees that Investigator O'Connor failed to account
for obvious date mistakes, but agrees that a deduction of
$573.78 is warranted for one additional procedure for which
there was an operating room log on a nearby date. Class III
Reply at 1-4. The government additionally contends that it
“is not aware of any other errors in Investigator
O'Connor's review, nor has the defense pointed out
any further errors in Investigator O'Connor's
work-product.” Id. at 2.
government bears the burden of establishing the amount to be
forfeited by a preponderance of the evidence. United
States v. Gaskin, 364 F.3d 438, 461 (2d Cir. 2004)
(“Because criminal forfeiture is viewed as part of the
sentencing process, the government need prove facts
supporting forfeiture only by a preponderance of the
evidence.”) (citations omitted). In making its
forfeiture calculation, the Court may rely “on evidence
already in the record . . . and on any additional evidence or
information submitted by the parties and accepted by the
court as relevant and reliable.” Fed. R. Crim. P.
32(b)(1)(B); See United States v. Capoccia, 503 F.3d
103, 110 (2d Cir. 2007) (finding nothing in the Federal Rules
of Evidence nor any other rule prohibited the admission of
hearsay at a forfeiture hearing).
Court finds that the Defendant is liable for and must forfeit
$4, 175, 964.85 for the Class 111 Claims. While it is
disturbing that, after several attempts at moving for
forfeiture, the government's Class III Motion contained
numerous obvious and substantial errors in its calculation of
the forfeiture amount for the Class III Claims, the
government has acknowledged and corrected these errors and
revised the forfeiture amount it seeks for the Class III
Claims. See Class III Reply at 1, 4. The government
reached the Class III Claims forfeiture amount using the same
analysis that it used for the Class II Claims, which the
Court previously adopted: identifying the total dollar amount
of billed procedures for which there was no corresponding
operating room log. See Class III Mot. at 2;
Ahmed, 2017 WL 3149336, at *5. The errors in the
government's motion, which the government has since
corrected, do not undermine the Court's conclusion that
the government has demonstrated by a preponderance of the
evidence that the Defendant is liable for and must forfeit
the revised total for the Class III Claims as set out in the
government's reply. Accordingly, the government's
Class III Motion is granted as provided in the Class III
Court finds that the Defendant is liable for and must forfeit
$4, 175, 964.85, which represents the entire revised amount
sought by the government for the Class III Claims, and brings
the total amount of ...