Henry Jones and Chikenna Jones are appealing decisions from the United States District Court for the Middle District of Louisiana regarding their involvement in Medicare fraud. Henry's appeal concerns the denial of motions to dismiss an indictment based on double jeopardy and multiplicity claims, while Chikenna's appeal addresses denials of motions to substitute her counsel in separate cases. The court has affirmed the district court's decisions.
The background reveals that Henry Jones was indicted in three cases related to Medicare fraud, while Chikenna was indicted in two of the same cases. The indictments cite the Medicare Program, which provides healthcare benefits primarily to the elderly, blind, and disabled. Specifically, Medicare Part B covers durable medical equipment (DME) and is administered by Cigna Government Services in Louisiana. DME companies, physicians, and other providers seeking reimbursement must obtain a supplier number and submit claims for payment, which are typically paid directly to the providers by Medicare, following necessary assignments from beneficiaries.
The Ngari indictment charged Nnanta Felix Ngari with one count of Conspiracy to Commit Health Care Fraud under 18 U.S.C. 1349, covering the period from December 2, 2003, to March 7, 2009, and one count of Conspiracy to Defraud the United States and to Pay Health Care Kickbacks under 18 U.S.C. 371, from March 16, 2004, to January 26, 2007. The indictment centered on Unique Medical Solution, Inc. (Unique), allegedly owned by Ngari, which was purportedly involved in providing Durable Medical Equipment (DME) to Medicare beneficiaries. Unique had a Medicare provider number and could receive reimbursement for medically necessary DME. The government claimed that physician Sofjan Lamid wrote prescriptions for medically unnecessary DME, and patient recruiters Henry and Ernest Payne directed beneficiaries to Unique for fraudulent claims. Ngari, Henry, and Ernest agreed to pay kickbacks for these referrals. Henry was convicted on both conspiracy counts.
In the subsequent Jones case, a superseding indictment included charges of conspiracy under 18 U.S.C. 1349 and 18 U.S.C. 371, involving four entities: Healthcare 1, LLC, Lifeline Healthcare Services, Inc., Medical 1 Patient Services, LLC, and Rose Medical Equipment, Inc. Henry and Chikenna, identified as corporate officers of Healthcare 1, Lifeline, and Medical 1, allegedly acquired Rose Medical and engaged in similar fraudulent activities, including paying kickbacks to patient recruiters for Medicare beneficiaries' information and fraudulent prescriptions. Nine additional co-defendants were implicated as patient recruiters for the involved entities. Henry and Chikenna submitted fraudulent Medicare claims through Rose Medical. Chikenna's motion to substitute retained counsel was denied by the district court, and while both Henry and Chikenna pleaded guilty, Henry did not appeal, whereas Chikenna appealed the court's decision regarding her counsel.
The McKenzie case involved an indictment alleging two conspiracies: one violating 18 U.S.C. § 1349 from approximately October 28, 2004, to October 25, 2010, and another violating 18 U.S.C. § 371 from approximately December 22, 2006, to May 7, 2010. The indictment centered on McKenzie Healthcare Solutions, Inc., with Shedrick O. McKenzie identified as a corporate officer. Jo Francis was accused of writing unnecessary prescriptions for durable medical equipment (DME) for Medicare beneficiaries, enabling Solutions to submit fraudulent claims. From January 2010 to October 2010, Henry was also implicated as an operator of Solutions, while Chikenna served as a corporate officer during the same period. They faced allegations of paying kickbacks to patient recruiters for Medicare beneficiary information and fraudulent prescriptions.
Before trial, Henry moved to dismiss the indictment on double jeopardy and multiplicity grounds, but the district court denied this motion. Thirteen days prior to trial, Chikenna sought to replace her court-appointed counsel, which was also denied. Both defendants were subsequently convicted by a jury. Following the trial, Henry filed a second dismissal motion, which was again denied, leading to his appeal concerning the double jeopardy claim. He argued that the prosecution violated the Double Jeopardy Clause, claiming it charged him for conduct already covered in the Ngari case. The government refuted these assertions. The appellate review of the district court's dismissal denial is conducted de novo, adhering to the factual findings unless clearly erroneous. The Fifth Amendment protects against double jeopardy, where jeopardy attaches upon a guilty plea or when a jury is empaneled for a trial. Henry was a defendant in three separate legal cases.
In the Ngari case, jeopardy was established when jurors were sworn on August 1, 2011, while in the McKenzie case, it attached on November 7, 2011. In the Jones case, jeopardy began with Henry’s plea acceptance on January 12, 2012. The government contends that the Jones case cannot cause a double jeopardy violation in the McKenzie case, as jeopardy had already attached in Ngari but not in Jones at the time McKenzie’s jeopardy attached. The analysis focuses solely on whether the McKenzie indictment violates double jeopardy concerning the Ngari conviction.
Double jeopardy claims necessitate a burden-shifting analysis; if a defendant presents a prima facie nonfrivolous claim, the government must prove by a preponderance of the evidence that the indictments involve separate crimes. The document does not address whether Henry has established a prima facie nonfrivolous claim. Such a claim can be supported through indictments, documentation of earlier charges, or personal testimony.
For conspiracy cases, key to double jeopardy is the determination of whether there was one or multiple agreements. To assess this, five factors are evaluated: timing, co-conspirators, statutory offenses, overt acts charged, and locations of events. These factors are not individually decisive; they must be considered collectively.
The Ngari indictment posited two conspiracies, one from December 2003 to March 2009 and another within that timeframe. The McKenzie indictment also alleged two conspiracies, one from October 2004 to October 2010, with a similar temporal overlap. However, the government argues that Henry's conduct in McKenzie did not overlap with Ngari, as Ngari's conspiracy concluded in March 2009, while McKenzie’s allegations against Henry began in January 2010. Since Henry was the only indicted conspirator in both cases and there was no overlap in the timing of his actions, the timing factor suggests that Ngari and McKenzie involve separate conspiracies.
Four defendants were involved in the Ngari case and six in the McKenzie case, with Henry being the only defendant charged in both. The government claims Henry served as a recruiter in the Ngari case and as a company operator in the McKenzie case. Citing the El-Mezain precedent, the court emphasized that the overlap of key personnel and their roles is critical in determining whether a single conspiracy exists. Felix Ngari was identified as the central figure in the Ngari conspiracy, but there is no evidence linking him to the McKenzie case, where Shedrick McKenzie is considered the key organizer. Henry's differing roles in the two cases—recruiter in Ngari and operator in McKenzie—indicate two separate conspiracies.
Regarding the statutory offenses, the charges in both cases are identical, but the court highlighted that identical charges can still represent distinct conspiracies. The nature and scope of the activities targeted by the government also differentiate the two cases. Henry argued that all cases involved similar goals related to Medicare fraud through unnecessary DME equipment and illegal kickbacks. However, the government contended that the Ngari conspiracy aimed to enrich Felix Ngari and his associates, while the McKenzie conspiracy sought to benefit Shedrick McKenzie and his group. Additionally, the government noted that Henry’s involvement in the McKenzie conspiracy began years after its inception, reinforcing the distinction between the two conspiracies. The government rejected Henry's claims that it acknowledged a single conspiracy, clarifying that references to an "overlapping nature" pertained to other cases.
The government references United States v. Felix, establishing that mere overlap in proof between prosecutions does not constitute a double jeopardy violation. Henry's assertion that the government admitted to a single conspiracy is countered by the government, which clarifies that the cited records only demonstrate connections between the Jones and McKenzie cases, not the Ngari and McKenzie conspiracies. Henry fails to present evidence supporting his claim of a shared conspiracy between Ngari and McKenzie.
The evaluation of the conspiracies' goals reveals that the objectives were distinct: Ngari aimed to enrich individuals associated with Unique, while McKenzie sought to benefit those linked to Solutions. Henry's involvement in McKenzie occurred only after that conspiracy had been active for years, further indicating their differences. Although the conduct was similar, the scope was different—Ngari focused on Unique and McKenzie on Solutions.
Regarding the location of events, while both conspiracies occurred in the same Louisiana area, this factor alone does not establish a single conspiracy. After assessing five factors, only two—location and statutory crimes—suggest a single conspiracy, while the timing, participants, goals, and nature of the conduct indicate two separate conspiracies. Thus, the government's prosecution of Henry in the McKenzie case following his Ngari conviction does not violate double jeopardy principles.
In terms of multiplicity, which concerns charging a single offense in multiple counts, the government argues the McKenzie indictment is not multiplicitous, citing Albernaz v. United States, as each conspiracy statute contains unique elements. Henry briefly claims the indictment violates multiplicity rules, but this assertion lacks substantial support.
The Supreme Court in Albernaz referenced the Blockburger test, which helps determine congressional intent regarding separate sanctions for multiple offenses from a single act. The McKenzie indictment charges Henry with conspiracy under 18 U.S.C. § 371 and § 1349, noting that § 371 has an overt-act requirement while § 1349 does not. Additionally, the conspiracy charge under § 1349 pertains to a different title than Henry's conviction under § 371. Consequently, there was no multiplicity violation found.
Chikenna appealed, claiming her constitutional right to choose counsel was violated when her motions for substitution of counsel were denied. She cited United States v. Gonzalez-Lopez and sought to align with the Seventh Circuit’s ruling in United States v. Sellers, which reversed a denial of a continuance for substitute counsel. The government countered that the right to counsel is not absolute and must be weighed against the court's scheduling needs, asserting that the trial court did not abuse its discretion.
On October 25, 2011, shortly before her trial, Chikenna filed motions to substitute her retained attorney, Stephen Spring, for court-appointed counsel, Michael Fiser. In the subsequent hearing, Chikenna criticized Fiser for lack of communication and preparation. Fiser countered that he had thoroughly reviewed case documents and had discussed the case with Chikenna, but avoided contacting potential witnesses who were represented by counsel. The district court highlighted the impracticality of preparing a new attorney in just one week, considering the complexity and volume of the case materials.
The trial is set for two weeks, involving numerous witnesses and documents, making it impractical for new counsel to adequately prepare in that timeframe. The district court reviewed the previous eight months of the McKenzie case and questioned Chikenna about her delay in seeking new counsel. Chikenna indicated she had attempted to make Spring co-counsel since August, but no progress was made. The government raised concerns about potential conflicts from Spring’s prior involvement and outlined how a continuance would prejudice their case. Spring testified about his attempts to join Chikenna’s defense, noting a response from Fiser indicating that the CJA rules prevented his entry. The district court considered the motion to substitute counsel under Gandy v. State of Alabama, balancing the defendant's right to choose counsel with the public interest in efficient criminal justice administration. Key factors included the right to a speedy trial, adequate preparation, witness confrontation, and the court's schedule. The court concluded that a continuance would be necessary if new counsel joined, and noted no evidence suggested Fiser had been ineffective. It observed a disconnect in communication between Chikenna and Fiser, labeling her complaints as speculative. Ultimately, the district court denied Chikenna's motions to substitute counsel, affirming the limits on the right to counsel of choice as established by the Supreme Court, which emphasizes the trial court's discretion in maintaining fairness and ethical standards in legal proceedings.
The district court had to weigh Chikenna’s right to choose her counsel against the fairness of the proceedings and the court's schedule. Although the court based its decision on a balancing test from Gandy rather than the one from Gonzalez-Lopez, it adequately considered the factors from Gonzalez-Lopez. Chikenna contended that a de novo standard of review was applicable to her appeal regarding the refusal to allow a substitution of counsel, citing United States v. Simpson. Simpson states that while Sixth Amendment claims are reviewed de novo, if no violation occurred, the trial court's decision is reviewed for abuse of discretion. The government, however, argued for an abuse of discretion standard, referencing cases including Gonzalez-Lopez, which emphasizes the trial court's broad discretion.
The court concluded that the Gonzalez-Lopez balancing test applies and determined that the district court did not abuse its discretion in denying Chikenna's request to substitute counsel. Chikenna expressed a desire for Spring to represent her, believing her current attorney, Fiser, was inadequately prepared. The district court recognized her preference but did not share her concerns regarding Fiser. It noted that the right to counsel of choice does not necessitate an informed decision by the defendant.
The court also analyzed the fairness implications of allowing the substitution. It noted that permitting Spring to take over would necessitate a continuance, which could prejudice the government, especially given the complexity of the case. The district court's consideration of Chikenna's reasons for wanting a different attorney was significant and distinguished this case from the Seventh Circuit's decision in United States v. Sellers, where the court failed to consider the defendant's rationale for requesting new counsel.
The government expressed concerns about incurring substantial additional costs if Chikenna's trial were delayed, especially since a co-defendant was expected to plead guilty, which could impact the trial's timing. Chikenna's dissatisfaction with her attorney, Fiser, was deemed speculative and unfounded by the district court, which noted that she did not contest this finding on appeal. Furthermore, Chikenna's counsel could not demonstrate any specific unfairness resulting from the denial of her request for a new attorney, except for her preference for counsel choice. Chikenna's request for substitution was made late in the proceedings, despite her awareness of her desire for Spring to assist as early as August 2011; she only filed her motion on October 25, 2011, and did not show diligence in pursuing this change. The district court also highlighted potential issues with the availability of a critical witness, Dr. Francis, during a continuance. While Chikenna noted that Dr. Francis was not called at trial, she did not provide evidence suggesting that his non-involvement was known at the time of her motion. Ultimately, the district court determined that fairness considerations weighed against granting the substitution. During the substitution hearing, the court indicated that a new attorney would require significant time to prepare, which would necessitate a continuance, and while it would have been ideal for the court to inquire about Spring's preparation time, it concluded such an inquiry was unnecessary given the court's familiarity with the case.
The district court recognized that a meaningful continuance for Chikenna would require several days, with initial delays potentially leading to several months of postponement due to the court’s calendar. Citing the Seventh Circuit's opinion in Sellers, Chikenna argued that even a month-long delay could be outweighed by a defendant's right to chosen counsel; however, the anticipated delay in her case was significantly longer and therefore distinct from the "month or so" referenced in Sellers. Chikenna noted that trial dates can become available when cases settle, referencing the court's schedule opening in January. Nonetheless, she did not demonstrate that the court had specific available dates at the time of her motion. The district court, evaluating the situation, concluded that granting the substitution would necessitate a lengthy delay, which weighed heavily against it. Chikenna’s constitutional right to counsel of choice had to be balanced against fairness and the court's scheduling needs. The district court determined that this balance did not favor granting the substitution and did not abuse its discretion in denying her motions. The conclusion affirmed that the conspiracies in the Ngari and McKenzie cases were separate, and thus, no double jeopardy or multiplicity violation occurred.
