The opinion
Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
6-6-2008
USA v. Atrium I Nursing
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4649
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"USA v. Atrium I Nursing" (2008). 2008 Decisions. Paper 1048.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1048
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 06-4648/4649
_____________
UNITED STATES OF AMERICA
v.
MARTHA BELL,
Appellant in No. 06-4648
ATRIUM I NURSING AND REHABILITATION CENTER,
Appellant in No. 06-4649.
_______________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 04-cr-0212)
District Judge: Honorable Terrence F. McVerry
_______________
Submitted Under Third Circuit LAR 34.1(a)
June 3, 2008
Before: FISHER, JORDAN, Circuit Judges,
and YOHN*, District Judge.
Filed June 6, 2008
_______________
OPINION OF THE COURT
_______________
_______________
*Honorable William H. Yohn, Jr., Senior Judge, United States District Court for the
Eastern District of Pennsylvania, sitting by designation.
JORDAN, Circuit Judge.
Martha Bell appeals from the October 31, 2006 judgment of conviction entered by
the United States District Court for the Western District of Pennsylvania, after a jury
found her guilty of health care fraud, in violation of 18 U.S.C. § 1347, and making false
statements relating to health care matters, in violation of 18 U.S.C. § 1035(a)(2). We will
affirm.
I. Background
On August 24, 2004, an eleven count indictment was filed against Atrium I
Nursing and Rehabilitation Center (“Atrium”) and its operator, Bell, charging them with
one count of health care fraud (Count 1) and ten counts of false statements relating to
health care matters (Counts 2 through 11). United States v. Bell, No. 04-212, 2006 WL
952214, at *1 (W.D. Pa. Apr. 12, 2006) (“Bell I”). A jury trial began on July 19, 2005,
and on August 24, 2005, the jury “rendered a unanimous verdict as to each defendant.”
Id. Bell was found guilty on Counts 1-6, 8, 10, and 11, and Atrium was found guilty on
all counts. Id. On November 18, 2005, the District Court denied Atrium’s and Bell’s
motions for judgment of acquittal, and, on April 12, 2006, denied their motions for
reconsideration of the November 18th decision. Id. at *2. On May 16, 2006, the Court
denied Atrium’s and Bell’s motions for a new trial based on the government’s alleged
violations of Brady v. Maryland, 373 U.S. 83 (1963). U.S. v. Bell, No. 04-212, 2006 WL
1330200, at *1 (W.D. Pa. May 16, 2006) (“Bell II”).
2
On October 27, 2006, Atrium was sentenced to five years probation and a fine of
$490,000. Bell was sentenced to sixty months of incarceration followed by a term of
supervised release of three years and a fine of $50,000. The Court entered the judgments
of conviction and sentence on October 31, 2006. This appeal followed.1
II. Discussion 2
Bell argues that there was insufficient evidence presented at trial to convict her of
health care fraud. She also challenges the sufficiency of the evidence as to her conviction
for making false statements relating to health care matters as set forth in Count 3 of the
indictment. Finally, Bell argues that the District Court erred in failing to grant her motion
for a new trial based on the government’s alleged failure to comply with its disclosure
obligations under Brady.
1
Atrium was dissolved by a December 26, 2007 Order of the Court of Common Pleas
of Allegheny County, Pennsylvania. On January 9, 2008, that Court appointed Robert B.
Stein, Esquire, as Atrium’s receiver. Atrium had filed an appeal but, by letter dated May
9, 2008, Mr. Stein stated on Atrium’s behalf that, “the appeal in [this case] is to be
withdrawn.” We therefore treat Atrium’s appeal as abandoned and address only Bell’s
arguments.
2
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291. We review challenges to the sufficiency of the
evidence “in the light most favorable to the government, and will sustain the verdict if
any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” United States v. Hodge, 321 F.3d 429, 439 (3d Cir. 2003) (citation
omitted). When a motion for a new trial is based on a Brady claim, which “presents
questions of law as well as questions of fact, we will conduct a de novo review of the
district court’s conclusions of law as well as a clearly erroneous review of any findings of
fact.” United States v. Pelullo, 399 F.3d 197, 202 (3d Cir. 2005) (internal quotation
marks and citations omitted).
3
A. Count 1
Bell first challenges the sufficiency of the evidence as to her conviction for health
care fraud (Count 1 of the indictment). She argues that the government failed to
demonstrate the “execution of a scheme or artifice to defraud” as required by 18 U.S.C. §
1347.3 Bell says the evidence demonstrates only that she “violated general administrative
regulations,” but that it does not establish criminal conduct. (Appellant’s Brief at 38.)
We disagree. Viewing the evidence in the light most favorable to the government,
the record amply supports that Bell knowingly engaged in a scheme with the specific
intent to defraud Medicare and Medicaid in connection with both the delivery of and
payment for health care benefits, items, and services. For example, Bell directed
Atrium’s employees to falsify records so that they did not accurately reflect the deplorable
conditions at Atrium.4 The falsified records were then provided to the Pennsylvania
3
The statute provides:
Whoever knowingly and willfully executes, or attempts to execute, a
scheme or artifice -
(1) to defraud any health care benefit program; or
(2) to obtain, by means of false or fraudulent pretenses, representations, or
promises, any of the money or property owned by, or under the custody or
control of, any health care benefit program,
in connection with the delivery of or payment for health care benefits, items, or services,
shall be fined under this title or imprisoned not more than 10 years, or both. ...
18 U.S.C. § 1347.
4
A detailed recounting of the depredations Bell inflicted on Atrium residents is
unnecessary. Suffice it to say that the accounts are genuinely heartbreaking – accounts of
helpless, elderly and infirm residents left to lie in their own waste, one with an empty
oxygen canister, another with undissolved medication in her mouth for hours, another
with bruises and open sores, and so on and on, all being left with no protection from the
4
Department of Health (“DOH”) for the specific purpose of deceiving it into believing that
Atrium complied with applicable regulations, so that Atrium would maintain its
certification under Medicare and Medicaid and, hence, the flow of government money.
Bell was properly found guilty of health care fraud “based upon a scheme to falsify
records” that she used “in an attempt to conceal from state and federal regulatory agencies
the substandard care which was being provided to residents at Atrium.” Bell I, 2006 WL
952214 at *2. Sufficient evidence supports Bell’s conviction on Count 1 of the
indictment.
B. Count 3
Bell also argues that there was insufficient evidence presented at trial to convict
her of Count 3 of the indictment. Count 3 charged Bell with making false statements in
connection with Mabel Taylor’s death while she was a resident at Atrium, in violation of
18 U.S.C. § 1035(a)(2).5
violent outbursts of other senile and understandably frustrated residents, and this while
Bell lined her pockets and left vendors unpaid. The temporary administrator who took
over management of the facility from Bell indicated that, though he had taken over other
problem facilities in the past, he had never seen anything like the conditions he
encountered at Atrium. (Appendix at 2905.)
5
The statute provides:
(a) Whoever, in any matter involving a health care benefit program,
knowingly and willfully...
(2) makes any materially false, fictitious, or fraudulent statements or
representations, or makes or uses any materially false writing or document
knowing the same to contain any materially false, fictitious, or fraudulent
statement or entry, in connection with the delivery of or payment for health
care benefits, items or services, shall be fined under this title or imprisoned
5
On the evening of October 25, 2001, Taylor wandered into Atrium’s courtyard and
could not get back into the building because the doors were malfunctioning. She was
found dead in the courtyard at 4:00 a.m. on October 26, 2001. On October 29, 2001, Bell
asked Harold Whipkey, an Atrium employee, to prepare a written statement that he saw
Taylor inside on the night that she died. Whipkey complied and prepared two statements
to that effect. However, Bell knew full well that Whipkey’s statements were false and
that he was actually at a bar on the evening that Taylor died.
Bell argues that Whipkey’s false statements did not “involv[e] a health care benefit
program” because they were made “in relationship to the police investigation and had
nothing to do with health care or a health care benefit program.” (Appellant’s Brief at
49.) However, Whipkey’s false statements were provided to the DOH in connection with
its abuse investigation after Taylor’s death, thereby implicating Atrium’s receipt of
Medicare and Medicaid funding. Further, Atrium was a qualifying “health care benefit
program” because it was receiving funds under Medicare and Medicaid, and Whipkey’s
false statements obviously related to care given – or not given – by Atrium. As the
not more than 5 years, or both.
(b) As used in this section, the term “health care benefit program” has the
meaning given such term in section 24(b) of this title.
18 U.S.C. § 1035(a)(2).
The term “health care benefit program” is defined as “any public or private plan or
contract, affecting commerce, under which any medical benefit, item or service is
provided to any individual, and includes any individual or entity who is providing a
medical benefit, item, or service for which payment may be made under the plan or
contract.” 18 U.S.C. § 24(b).
6
government points out, the “false statements at issue concerned health care services that
had been provided to Ms. Taylor at Atrium on the night of her death. Thus, the false
statements were in fact made in connection with the delivery of health care services, as is
required to sustain a conviction under § 1035(a)(2).” (Appellee’s Brief at 53.) Viewing
the evidence in the light most favorable to the government, it is clear that there is
sufficient evidence to sustain Bell’s conviction on Count 3 of the indictment.
C. Alleged Brady Violations
As for the Brady violations that Bell alleges, she makes essentially the same
arguments on appeal as she did to the District Court in support of her motion for a new
trial. She argues that the government withheld correspondence with United States
Senator Rick Santorum that she herself authored and received on Atrium’s behalf. She
also contends that certain out-of-court statements by two government witnesses were not
disclosed prior to trial.
In denying Bell’s motion for a new trial, the District Court applied the appropriate
legal standard, which it summarized as follows:
[To] establish a Brady due process violation, a defendant must show that (1)
evidence was suppressed; (2) the suppressed evidence was favorable to the
defendant; and, (3) the suppressed evidence was either material to guilt or
to punishment. ... However, the government is not obliged under Brady to
furnish a defendant with information which he already has or, with any
reasonable diligence, he can obtain himself.
7
Bell II, 2006 WL 1330200 at *2 (citations and internal quotation marks omitted). The
Court then “f[ound] and rule[d] that the correspondence which ... Bell sent to and
received from Senator Santorum is simply not Brady material” because “Bell was the
sender and receiver of both of these letters[,]” and “there is no indication or allegation
that these letters were either sent to or in the possession of the government ... .” Id. The
Court concluded that Bell thus “failed to establish that” the correspondence between
herself and Senator Santorum was “suppressed within the meaning of Brady,” and she,
“therefore, failed to establish a Brady violation.” Id. There is no error of fact or law in
that conclusion.
The District Court also “f[ound] and rule[d] that [Bell] failed to establish that the
alleged statements of [the government witnesses] were suppressed within the meaning of
Brady” because there was no “evidence to support [Bell’s] claim that the government had
possession, either actual or constructive, of [those] statements ... and failed to provide
same to [Bell]. Accordingly, [Bell has] failed to establish a Brady violation.” Id. at *3.
Again, the District Court did not err as a matter of fact or law in reaching that conclusion.
III. Conclusion
For the foregoing reasons, Bell’s judgment of conviction will be affirmed.
8