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United States v. Ubanwa

United States District Court, N.D. Indiana, Hammond Division

November 15, 2019




         This 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.


         On 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 different means.

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.

         Carlos 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.

         On 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.


         The Defendant requests that the Court, pursuant to its supervisory power, dismiss the Grand Jury's Indictment. The Defendant's request is DENIED.

         The 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.”).

         Pursuant 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.

         Nevertheless, 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 ...

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