United States District Court, D. Nevada
For Kevin Bang Winn, Defendant: Gabriel L Grasso, LEAD ATTORNEY, Gabriel L. Grasso, P.C., Las Vegas, NV.
For USA, Plaintiff: Crane M Pomerantz, LEAD ATTORNEY, U.S. Attorney, Las Vegas, NV.
Gloria M. Navarro, Chief United States District Judge.
Pending before the Court is the Motion to Dismiss Indictment (ECF No. 32) filed by Defendant Kevin Bang Winn (" Defendant" ) on April 21, 2014. The government filed a Response to the Motion (ECF No. 33) on April 29, 2014, and Defendant filed his Reply (ECF No. 34) on May 5, 2014. The motion was referred to the Honorable Peggy A. Leen, United States Magistrate Judge, for a report of findings and recommendations pursuant to 28 U.S.C. § § 636 (b)(1)(B). On July 21, 2014, Judge Leen entered a Report and Recommendation (ECF No. 38) granting in part and denying in part Defendant's motion. The government subsequently filed an Objection (ECF No. 42) to the Report and Recommendation on July 31, 2014, and Defendant filed his Response to the Objection (ECF No. 44) on August 15, 2014.
On July 31, 2013, a federal grand jury returned an Indictment (ECF No. 1) against Defendant, charging him with eleven counts of Health Care Fraud -- Medicare in violation of 18 U.S.C. § 1347. The Indictment charges that between March 2006 and August 2008, Defendant knowingly and willfully executed a scheme to defraud a healthcare benefit program and to obtain by fraudulent representations money owed by and under the custody of the federal Medicare program in connection with delivery of, and payment for, health care benefits. (Indictment ¶ 1, ECF No. 1). The scheme allegedly involved fraudulently billing Medicare for
durable medical equipment (" DME" ) which were not provided to patients and were not medically necessary. ( Id.). Specifically, the Indictment alleges that Defendant operated Desert Medical Equipment (" Desert" ), a durable medical supply company in Las Vegas, Nevada, and during the period between March 2006 and August 2008, Medicare paid $640,000 to Desert on fraudulently submitted DME claims for DME that were never provided to Desert's customers. ( Id. at ¶ ¶ 2-7).
In his Motion to Dismiss, Defendant argues that he had completely disassociated himself from the fraudulent scheme by June of 2008 when he moved from Las Vegas to California and ceased all contact with Desert. (Mot. to Dismiss 2:7-3:25, ECF No. 32). He therefore contends that because charges of health care fraud under 18 U.S.C. § 1347 are subject to a five year statute of limitations, the Indictment--which was filed five years and one month after he left Desert--must be dismissed. ( Id. 4:2-6:6). It its Response, the government conceded that the operative dates for the charges brought pursuant 18 U.S.C. § 1347 are the dates on which fraudulent requests for payment are submitted to Medicare and that the requests relevant to Counts One through Five in the Indictment were submitted more than five years before the Grand Jury returned the Indictment. (Response 2:3-14, ECF No. 33). However, the government contended that all the counts were still charged within the five-year statute of limitations because health care fraud is a continuing offense, so the statute of limitations does not begin to run until the entire crime is completed. ( Id. 2:9-4:11 (citing United States v. Mermelstein, 487 F.Supp.2d 240, 253 (E.D.N.Y. 2007) (" Continuing offenses . . . are not barred by the statute of limitations if the alleged conduct continues to a date within the limitations period." ); Toussie v. United States, 397 U.S. 112, 115, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970) (noting that the applicable statute of limitations for continuing crimes is delayed until the entire crime is completed)).
In her Report and Recommendation, Judge Leen noted that, regardless of whether health care fraud is a continuing offense or not, Desert's allegedly fraudulent requests for payment relating to Counts Six through Nine and Counts Ten and Eleven were submitted to Medicare on August 4, 2008 and August 25, 2008, respectively. (Report and Recommendation 4:10-14, ECF No. 38). Therefore, these counts clearly fell within the statute of limitations and should not be dismissed. ( Id.). However, Judge Leen determined that health care fraud was not a continuing offense and that Counts One through Five in the Indictment are time barred and should be dismissed. ( Id. 19:12-22:7). She therefore recommended that this Court grant in part and deny in part Defendant's Motion to Dismiss. ( Id. 22:9-23:2).
II. LEGAL STANDARD
A party may file specific written objections to the findings and recommendations of a United States Magistrate Judge made pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B); D. Nev. R. IB 3-2. Upon the filing of such objections, the Court must make a de novo determination of those portions of the Report to which objections are made. Id. The Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. 28 U.S.C. § 636(b)(1); D. Nev. IB 3-2(b).
Pursuant to Rule 12(b) of the Federal Rules of Criminal Procedure, " [a]ny defense, objection, or request which is capable of determination without the trial of ...