United States District Court, N.D. Indiana, Hammond Division
THERESA L. SPRINGMANN CHIEF JUDGE
OPINION AND ORDER
matter is before the Court on the Defendant's Motion to
Dismiss Indictment [ECF No. 25], filed on September 13, 2019.
For the reasons stated below, this Motion is DENIED.
February 21, 2018, FBI Agent Charles Pawelko appeared before
a Grand Jury. Ex. B, p. 3, ECF No. 25-2. Agent Pawelko stated
that he had investigated Defendant Basil Ubanwa, who was the
operator of Northwest Ambulance Services, Inc. Id.
Agent Pawelko testified that “[t]he basis for the
investigation was us receiving information that this
particular ambulance company was transporting individuals and
billing Medicare and being reimbursed by Medicare for
transporting these individuals when these people did not
qualify for ambulance transportation.” Id. at
3. Agent Pawelko explained that the FBI had conducted
“surveillance of ambulance transports by this company.
We've spoken to employees of the company, former
employees of the company, family members of the patients, you
know, lots of document reviews, spoke with the biller for the
company during the timeframe that we were
investigating.” Id. at 4. Based upon this
investigation, Agent Pawelko testified as follows:
Based on-based on the people we had spoken to and the things
we've reviewed, it does appear that, number one, the
majority of people that Northwest was transporting during the
time of our investigation were patients being transported to
and from dialysis, which is a form of - it's a
nonemergency transportation. And so far, what we've seen
does support the allegation that they are transporting
patients who do not qualify for this type of transportation.
There's many indicators that these patients are capable
of being transported to dialysis and other places by
Id. at 4-5. The Prosecutor also asked the following
question: “Generally, what are the rules for ambulance
transportation for nonemergency travel like, for example, to
dialysis?” Id. at 4. Agent Pawelko answered as
follows: “Sure. Just a generic way of putting it is
that the person only qualifies if they cannot be transported
safely by any other means.” Id.
Trevino, an Emergency Medical Technician and employee of
Northwest Ambulance, was then called to testify before the
Grand Jury. Ex. C, pp. 2, 5-6, ECF No. 25-3. In essence,
Trevino testified that the Defendant directed his employees
to alter and fabricate documents so that Medicare would
reimburse Northwest Ambulance for transporting patients who
did not qualify for ambulance transportation. See, e.g.,
Id. at 12, 24-27, 44-45, 52. The Prosecutor also
discussed various patients that Northwest Ambulance had
transported, and Trevino offered his opinion on whether those
patients qualified for transport under the applicable
Medicare regulations. Id. at 29, 31, 34. The
Prosecutor also asked Trevino the following question:
“how many millions of dollars was paid out by Medicaid
for the transportation of [the] patients?” Id.
at 54. Trevino responded that he did not know. Id.
The Prosecutor then asked a follow up question: “Would
it surprise you to know it's 3 or 4 million
dollars?” Id. Trevino answered, “That is
surprising, yes.” Id.
October 17, 2018, the Grand Jury charged Defendant with (1)
one count of conspiracy to commit health care fraud; (2) ten
counts of health care fraud; and (3) one count of Medicaid
health care fraud. See Indictment, ECF No. 1; 18 U.S.C.
§§ 371, 1347. On September 13, 2019, the Defendant
filed the instant Motion to Dismiss Indictment.
Defendant requests that the Court, pursuant to its
supervisory power, dismiss the Grand Jury's Indictment.
The Defendant's request is DENIED.
Grand Jury Clause of the Fifth Amendment provides that
“[n]o person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury . . . .'” U.S. Const.
amend. V. “The grand jury is a body known to the common
law, to which is committed the duty of inquiring whether
there be probable cause to believe the defendant guilty of
the offense charged.” Beavers v. Henkel, 194
U.S. 73, 84 (1904); see also United States v.
Williams, 504 U.S. 36, 51 (1992) (“It is axiomatic
that the grand jury sits not to determine guilt or innocence,
but to assess whether there is adequate basis for bringing a
criminal charge.”). “The grand jury gets to
say-without any review, oversight, or second-guessing-
whether probable cause exists to think that a person
committed a crime.” Kaley v. United States,
571 U.S. 320, 328 (2014); see also Costello v. United
States, 350 U.S. 359, 363 (1956) (“An indictment
returned by a legally constituted and unbiased grand jury . .
. is enough to call for trial of the charge on the merits.
The Fifth Amendment requires nothing more.”).
to its supervisory authority, the district court may
“dismiss an indictment because of misconduct before the
grand jury, at least where that misconduct amounts to a
violation of one of those ‘few, clear rules which were
carefully drafted and approved by this Court and by Congress
to ensure the integrity of the grand jury's
functions[.]'” Williams, 504 U.S. at 46 (quoting
United States v. Mechanik, 475 U.S. 66, 74 (1986)
(O'Connor, J., concurring)). Pursuant to 18 U.S.C. §
1623, it is unlawful to knowingly make a false statement
before a grand jury; likewise, pursuant to 18 U.S.C. §
1622, it is unlawful to procure another to commit perjury. 18
U.S.C. §§ 1622, 1623(a); see also Williams, 504
U.S. at 46 n. 6.
absent discrimination in the selection of a grand jury,
“a district court may not dismiss an indictment for
errors in grand jury proceedings unless such errors
prejudiced the defendants.” Bank of Nova Scotia v.
United States, 487 U.S. 250, 254, 256-57 (1998); see
United States v. Vincent, 416 F.3d 593, 602 (7th
Cir. 2005). “Prejudice occurs if a ‘violation
substantially influenced the grand jury's decision to
indict, or if there is grave doubt that the decision to
indict was free from the substantial influence' of the
violation.” United States v. Anderson, 61 F.3d
1290, 1296 (7th Cir. 1995) (quoting Bank of Nova Scotia, 487
U.S. at 256). “This general rule encompasses claims of
prosecutorial misconduct during the grand jury
proceedings.” Anderson, 61 F.3d at 1296.
It is a
criminal offense to conspire to “defraud the United
States, or any agency thereof in any manner or for any
purpose.” 18 U.S.C. § 371; see United States
v. Kelerchian,937 F.3d 895, 905 (7th Cir. 2019).
Furthermore, it is a criminal offense to knowingly and
willfully execute, or attempt to execute, a scheme to defraud
any health care benefit program. 18 U.S.C. § 1347(a);
see United States v. Bek,493 F.3d 790, 801 (7th
Cir. 2007). “Under the Medicare Act, health care
providers are entitled to reimbursement for the
‘reasonable cost' of medical services they provide
to Medicare beneficiaries.” Abraham Lincoln
Mem'l Hosp. v. Sebelius, 698 F.3d 536, 541 (7th Cir.
2012) (citing 42 U.S.C. § 1395f(b)(1); 42 C.F.R. §
413.9(a)). Medicare covers ambulance services so long as
certain conditions are met. See 42 C.F.R. § 410.40(a).
In pertinent part, nonemergency ambulance transportation is
appropriate “if either: the beneficiary is
bed-confined, and it is documented that the beneficiary's
condition is such that other methods of transportation are
contraindicated; or, if his or her medical condition,
regardless of bed ...