United States v. Eugene Goldman

607 F. App'x 171
CourtCourt of Appeals for the Third Circuit
DecidedApril 8, 2015
Docket13-4336
StatusUnpublished
Cited by10 cases

This text of 607 F. App'x 171 (United States v. Eugene Goldman) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Eugene Goldman, 607 F. App'x 171 (3d Cir. 2015).

Opinion

OPINION *

AMBRO, Circuit Judge.

Eugene Goldman, M.D., was convicted of four counts of receiving payment for Medicare referrals under 42 U.S.C. § 1320a-7b(b)(l)(A) (the “Anti-Kickback Statute”) and conspiracy to do the same, 18 U.S.C. § 371. The District Court sentenced him to 51 months of incarceration and a three-year term of supervised release. A condition of his supervised release is that Goldman must refrain from practicing medicine for its duration. Goldman appeals his conviction and sentence, and we affirm both.

I.

Goldman had a geriatric medicine practice in Northeast Philadelphia. In December 2000, he secured the position of Medical Director of Home Care Hospice (“HCH”). Alex Pugman served as Director of HCH, and his wife, Svetlana Ganetsky, was the Development Executive, responsible for marketing HCH to doctors and other healthcare professionals. According to his contract, Goldman was responsible for quality assurance, consultations, and the occasional meeting. In reality, his job was to refer patients to HCH.

Goldman was paid for the number of patients he referred to HCH and the length of their stay. Early in his relationship with HCH, Goldman was paid $200 per referral. By 2011, he received $400 per referral, with an additional $150 for each patient who stayed longer than a month. Ganetsky paid Goldman each month by check. Between 2002 and 2012, Goldman referred more than 400 Medicare patients to HCH and received approximately $310,000 in return.

In 2006 the FBI and Department of Health & Human Services began investigating HCH for Medicare fraud. The FBI followed up in 2008 by obtaining a search warrant and seizing over 500 boxes of documents and information from HCH’s servers. Shortly after the raid, Ganetsky and Pugman approached the FBI and agreed to cooperate in the investigation. Ganet-sky then recorded several meetings at which she paid Goldman for his referrals. Ganetsky made these payments with funds drawn from an account opened by the FBI for the investigation.

In June 2012 a grand jury indicted Goldman. A jury convicted him. a year later.

II.

Goldman challenges his conviction on three grounds. First, he claims that the evidence against him at trial was insufficient to support the jury’s findings that he received “remuneration” and that he did so knowingly. As this argument is raised for the first time on appeal, we review for plain error, which means to reverse there must be error, it must be plain to detect, and it must affect substantial rights. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Moreover, it must “seriously affect- the fairness, integrity or pubic perception of judicial proceedings.” Id. (citations omitted).

The elements of an Anti-Kickback Statute violation are that the defendant (1) *174 “knowingly and willfully”; (2) “solicit[ed] or receive[d] any remuneration” (3) “in return for referring an individual to a person for the furnishing ... of any item or service for which payment may be made in whole or in part under a Federal health care program.” 42 U.S.C. § 1320a-7b(b)(l)(A). Goldman argues that because the payments were provided in a “sting operation” with “sting money,” which neither the FBI nor Ganetsky ever intended as actual payment for referrals, he was not in fact remunerated for patient referrals and thus did not violate the Anti-Kickback Statute.

This argument mischaracterizes the definition of remuneration. The Anti-Kickback Statute forbids “receiv[ing] any remuneration (including any kickback, bribe, or rebate)” in return for a referral, including remuneration paid “directly or indirectly, overtly or covertly, in cash or in kind.” Id. § 1320a-7b(b)(l) (emphasis added). “Remuneration” means “[payment” or “compensation.” Black’s Law Dictionary 1409 (9th ed.2009). The statute’s prohibition is broad: physicians may not accept “any” payment in exchange for referrals. Nor does the law limit “remuneration” by the type or source of the payment. If, for example, a defendant receives “cash,” 42 U.S.C. § 1320a-7b(b)(l), or a check that can be reduced to cash, United States v. Vernon, 723 F.3d 1234, 1253 (11th Cir.2013), in exchange for a referral, he has received illegal “remuneration” within the meaning of the Anti-Kickback Statute.

Goldman made referrals to HCH and in return was paid cash and checks. He received checks on January 9, 2009, and February 6, 2009, and a cash payment on March 12, 2009. Each of these payments was accompanied by a list of the referrals for which he was being compensated. Goldman accepted the cash, and he deposited the checks into his bank account. Each time he accepted a payment, Goldman received “remuneration” in exchange for a referral. The fact that it was sting money was irrelevant — it was still a payment, and Goldman still received it for making referrals, making it illegal “remuneration.”

Next, Goldman claims that the jury was improperly charged on the willfulness element of the Anti-Kickback Statute. He argues that instead of instructing the jury that his conduct was willful if he “knew his conduct was unlawful and intended to do something the law forbids,” the District Court should have required the jury to find that he knew of the provision of the Anti-Kickback Statute under which he was charged and specifically intended to violate it. As with his first claim, Goldman raises this argument for the first time on appeal, and we again review for plain error.

The standard of willfulness Goldman seeks is reserved for “highly technical statutes that present the danger of ensnaring individuals engaged in apparently innocent conduct.” United States v. Starnes, 583 F.3d 196, 211 (3d Cir.2009). In these rare instances, the danger of punishing seemingly innocent conduct justifies “carv[ing] out an exception to the traditional rule that ignorance of the law is no excuse.” Bryan v. United States, 524 U.S. 184, 195, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998) (internal quotation marks omitted).

The District Court correctly instructed the jury on willfulness. The Anti-Kickback Statute is not “highly technical.” Doctors are supposed to make decisions based on medical necessity, not their own fiscal interests; for that reason “taking ... kickbacks for medical referrals is hardly the sort of activity a person might expect to be legal.” United States v. Starks, 157 F.3d 833, 838 (11th Cir.1998); see also United States v. Jain,

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607 F. App'x 171, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-eugene-goldman-ca3-2015.