United States v. Clark

26 F. App'x 422
Court of Appeals for the Sixth Circuit·Decided December 14, 2001·No. No. 00-1743·Published·Cited by 6 cases

Opinion

PER CURIAM.

Clark appeals his conviction on two counts of mail fraud, in violation of 18 U.S.C. § 1341, and two counts of health care fraud, in violation of 18 U.S.C. § 1347. Clark, operating as W.G. Clark Counseling Center, is alleged to have fraudulently billed Medicare and Blue Cross/Blue Shield of Michigan (“BCBS”) for substance abuse counseling he did not perform.

On appeal, Clark makes six arguments: (1) that the district court erred in permitting inadmissible prior bad acts evidence; (2) that the court erred in permitting additional prejudicial evidence; (3) that the prosecutor knowingly misled the jury with a false statement in his closing argument; (4) that the court erred in denying Clark an adjournment at the start of his trial and denying him permission to fire his attorney; (5) that there was insufficient evidence to convict Clark on the two charges related to BCBS; and (6) that the court erred in sentencing Clark by increasing his base offense level for obstruction of justice. For the reasons set forth below, we affirm Clark’s convictions and sentence.

I

Clark, a former Detroit police officer, incorporated and operated W.G. Clark Counseling Center, which held itself out as providing substance abuse counseling. The Center registered with Medicare and with BCBS, submitting documentation stating that two medical doctors, Carl Fowler and James Beale, and a psychiatric social worker, Valerie Sanford, would be providing the services. All three of these individuals have since testified that they did not work with the Center, that their information was used fraudulently, and that their signatures on the registration documents were forged.

In 1996 and 1997, Clark submitted to Medicare and BCBS bills totaling in excess of three hundred thousand dollars. With regard to the Medicare submissions, the government presented the testimony of Medicare recipients for whom bills for treatment were submitted. Each of the recipients testified either that they had never been treated at the Center or that they were treated fewer times than indicated on the submitted bills. With regard to the BCBS submissions, Clark submitted bills for services provided by physicians who evidence showed had not provided the claimed services.

Clark’s principal defense was that, since he did not understand the billing procedures of the two insurers, he relied on a man named Ron Hawkins to do his billing. Hawkins worked at Lifeline, a Chicago-based substance treatment center, and Clark alleged that Hawkins combined Clark’s billing with his own. According to Clark’s defense, Hawkins would submit both sets of bills under Clark’s business name; Clark would then deposit the insurers’ checks and pay to Hawkins in cash the portion of each check that Hawkins would tell Clark represented Hawkins’s billings.

Clark’s trial was initially scheduled to begin on January 26, 1999. Clark requested and received two adjournments, and then discharged his retained lawyer and requested court-appointed counsel. Clark then requested, and was denied, another adjournment, and trial began on August 31, 1999. On the first day of trial, Clark moved to discharge his court-appointed attorney, and the court denied his motion. [426]*426Clark was convicted on all four counts and was sentenced to concurrent terms of 30 months of imprisonment on each count, to be followed by three years of supervised release; he was also ordered to pay $324,413.55 in restitution.

Clark now appeals various rulings and actions of the district court and the prosecutor during and after his trial. Clark argues that in two separate instances the court impermissibly permitted the introduction of prejudicial evidence, that the prosecutor committed misconduct by knowingly misleading the jury in his closing argument, that the court erred in denying his last-minute motion for an adjournment or alternatively his motion for new counsel, that there was insufficient evidence to support one of his convictions, and that the court erred in sentencing him.

II

The Prosecution’s Cross-Examination of Clark with Regard to his Polygraph Business

In his trial testimony, Clark testified at length regarding his 13-year career as a Detroit police officer, discussing the specialized training he had received as an officer, the units he had worked in, and how he had used his police training to begin operating a polygraph business on the side while still an officer. The prosecution then cross-examined Clark about his polygraph business, asking whether the Chief of Police had ordered him at one point to stop conducting criminal polygraphs as part of his business. Clark initially answered, “[n]ot exactly,” but when presented with a transcript of his police disciplinary hearing for his actions, Clark admitted to being ordered to cease conducting criminal polygraphs but having continued to do so in violation of the order.

Defense counsel objected to this cross-examination at trial, but the court allowed it under Federal Rule of Evidence 404(a)(1) (allowing an exception to the general rule that character evidence is inadmissible in cases where “[ejvidence of a pertinent trait of character [is] offered by an accused, or by the prosecution to rebut the same”). Clark now argues that his ruling was incorrect and that the admission of this testimony prejudiced him.

The government argues that the subject of Clark’s polygraph business was proper under the Federal Rules of Evidence because Clark had already put his character at issue through his testimony and that of one of his witnesses. First, the government argues that by testifying about his experience, training, and various positions as a police officer and how he used his police training to start the polygraph business while still an officer, Clark opened the door for questions about his record as a police officer and the legitimacy of his polygraph business. Additionally, prior to his testimony, Clark called FBI Special Agent David Hervey to testify that Clark had once reported possible corruption in city contracts and had assisted in the investigation of this report by wearing a recording device to a meeting with a city official. In response to a prosecution objection on relevancy grounds, defense counsel stated that the testimony was to elicit character evidence showing Clark’s honesty (apparently to draw an inference that the FBI trusted Clark’s honesty enough to use him in an investigation). The government contends that, having put his own honesty at issue, the Federal Rules allow “the prosecution to rebut the same.” Fed. R. Evid. 404(a)(1).

Under Rule 404(a)(1), “evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same” is admissible. Fed. R. Evid. [427]*427404(a)(1). It is well-settled that “[o]nce the defendant has ‘opened the door’ by offering evidence as to his good character, the prosecution may rebut that evidence.” United States v. McGuire, 744 F.2d 1197, 1204 (6th Cir.1984).

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United States v. Clark, 26 F. App'x 422 (6th Cir. 2001).

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