United States District Court, D. Minnesota
Michael Maria and John E. Kokkinen, Assistant United States
Attorneys, Counsel for Plaintiff.
C. Engh, Counsel for Defendant Angela April Schulz.
Richard J. Malacko, Counsel for Defendant Yahye Mohamed
W. DeVore Counsel for Defendant Temitayo Ifeloju Olusholda
Zayed, Dorsey & Whitney LLP, Counsel for Defendant
Abdisalan Abdulahab Hussein.
M. Ventura, Counsel for Defendant Mukhtar Yusuf Hassan.
Michael J. Davis United States District Court Judge
above-entitled matter also comes before the Court upon the
Report and Recommendation of United States Magistrate Judge
Franklin L. Noel dated February 8, 2018. No objections having
been filed to said Report and Recommendation and based upon
the files, records, and proceedings herein, the Court adopts
the Report and Recommendation of United States Magistrate
Judge Noel dated February 8, 2018.
on September 29, 2017, Defendant Abdisalan Abdulahab Hussein
filed a Motion as to the Superseding Indictment Renewing All
Motions Previously Filed as to the Original Indictment.
[Docket No. 233] Within that motion, Hussein renewed his
Motion to Dismiss the Indictment. [Docket No. 100] On,
February 8, 2018, Magistrate Judge Noel granted Hussein's
motion to renew all previously filed motions. [Docket No.
279] In the same Order, Magistrate Judge Noel ruled on all
renewed motions except for Hussein's Motion to Dismiss
the Indictment [Docket No. 100]. Hussein's motion to
dismiss was not addressed in the February 8, 2018 Report and
Recommendation. Therefore, the Court addresses Hussein's
renewed motion to dismiss at this time.
An indictment is sufficient if it contains the elements of
the offense charged, lets the defendant know what he needs to
do to defend himself, and would allow him to plead a former
acquittal or conviction if he were charged with a similar
offense. Usually an indictment that tracks the statutory
language is sufficient.
United States v. Whitlow, 815 F.3d 430, 433 (8th
Cir. 2016) (citations omitted).
Superseding Indictment in this case meets the aforementioned
standard for the charged conspiracy offense and the mail
fraud offenses. The Court further notes that the charges in
this case are based not only on a theory that a chiropractor
commits fraud by billing an insurance company for
noncompensable claims based on services provided to a patient
who was brought to the clinic through a kickback payment to a
runner, but also on allegations that the chiropractor billed
the insurance company for treatments that were not medically
necessary and for services not actually provided.
(Superseding Indictment ¶¶ 1, 3, 4-9, 15, 18-20.)
The Superseding Indictment asserts that all of these
allegations were part of a scheme to defraud insurance
companies. Moreover, as the Eighth Circuit Jury Instructions
for the underlying substantive offense recognize, more than
one theory of a scheme to defraud may be presented to the
jury. See Eighth Circuit Manual of Model Jury
Instructions (Criminal) (2014) §§ 6.18.1341 n.2.
The Court further notes that the conspiracy charge in the
Superseding Indictment is, in fact, a conspiracy count under
18 U.S.C. § 1349. “[A] conspiracy conviction under
§ 1349 does not require proof of an overt act.”
United States v. Roy, 783 F.3d 418, 420 (2d Cir.
2015). See also Eighth Circuit Manual of Model Jury
Instructions (Criminal) (2014) § 5.06A-1 n.2.
“under the No-Fault Act, insurance companies have a
right to deny paying benefits based on grounds other than the
necessity and reasonableness of the medical treatment.”
Liberty Mut. Fire Ins. Co. v. Acute Care Chiropractic
Clinic P.A., 88 F.Supp.3d 985, 1008 (D. Minn. 2015).
See also United States v. Gabinskaya, 829 F.3d 127,
133-34 (2d Cir. 2016) (upholding convictions for conspiracy
to commit mail fraud and conspiracy to commit health care
fraud, among other offenses, based on physician conspiring to
submit claims to no-fault automobile insurance companies that
were ineligible for payment under New York law because the
physician was not the actual owner of the clinic). A claim
can be fraudulent based on the withholding of a material fact
from the insurance company, even when that material fact does
not implicate medical necessity. Thus, if a claim is
ineligible for compensation due to violation of the runner
statute, that fact could be material to an insurance company.
See Minn. Stat. § 609.612, subd. 2. Here, the
Government has adequately alleged that the existence of
kickback payments to runners is a material fact to insurance
companies and that Defendants took steps to conceal this
material fact. (Superseding Indictment ¶¶ 16-17,
States v. Jain, 93 F.3d 436 (8th Cir. 1996), is
inapposite because, there, the alleged victims of the mail
fraud were the patients and there was no evidence of harm;
here, the Government alleges that the automobile insurance
companies were the victims, that the victims were billed for
services that were not medically necessary or were not
provided, and that the non-disclosure of the runner payments
was a “material fact” to those insurance
companies (Superseding Indictment ¶ 21). Finally,
Illinois Farmers Ins. Co. v. Mobile Diagnostic Imaging,
Inc., No. 13-CV-2820 (PJS/TNL), 2014 WL 4104789, at
*9-10 (D. Minn. Aug. 19, 2014), did not address the runner
statute, and Illinois Farmers Ins. Co. v. Guthman,
No. CV 17-270 (RHK/SER), 2017 WL 3971867, at *6 (D. Minn.
Sept. 7, 2017), addressed a civil complaint in which the