United States v. McGill

128 F. Supp. 3d 863, 2015 U.S. Dist. LEXIS 121832, 2015 WL 5315788
CourtDistrict Court, E.D. Pennsylvania
DecidedSeptember 11, 2015
DocketCRIMINAL ACTION No. 12-112-01
StatusPublished
Cited by5 cases

This text of 128 F. Supp. 3d 863 (United States v. McGill) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. McGill, 128 F. Supp. 3d 863, 2015 U.S. Dist. LEXIS 121832, 2015 WL 5315788 (E.D. Pa. 2015).

Opinion

MEMORANDUM

EDUARDO C. ROBRENO, District Judge

Before the Court is Defendant McGill’s motion to plead nolo contendere or make an Alford plea as to Count One of the indictment charging conspiracy to commit healthcare fraud pursuant to 18 U.S.C. § 1349. For the reasons that follow, the Court will reject the proffer of such plea.

I. BACKGROUND

On March 21, 2012, Defendant Patricia McGill was charged by indictment with conspiring to commit healthcare fraud under 18 U.S.C. § 1349 (Count One) and substantive counts of healthcare fraud in violation of 18 U.S.C. § 1347 (Counts Two through Fourteen) in connection with her role at a Philadelphia hospice provider, Health Care Hospice, Inc. (“HCH”). ECF No. 1. Fifteen other defendants charged with various levels of involvement in the same healthcare fraud scheme previously entered guilty pleas or have been convicted at trial.1 Defendant McGill is one of [866]*866the few remaining defendants.2

Trial of this matter was previously scheduled to begin on September 1, 2015. However, immediately prior to the start of jury selection, Defendant’s counsel made an oral motion for the Court to accept a nolo contendere plea or Alford plea. See Scheduling Order (ECF No. 323). Specifically, defense counsel explained that Defendant McGill was willing to admit that she aided and abetted the commission of the healthcare fraud charges set forth in Counts Two through Fourteen of the indictment, but she refused to admit that she conspired to commit healthcare fraud as charged in Count One. Based on this turn of events, this Court continued the trial until September 9, 2015, and ordered the parties to submit written briefs as to whether the Court should accept a nolo contendere plea or Alford plea under the circumstances of this case. See Scheduling Order (ECF No. 323). Both Defendant McGill and the Government have submitted such briefs, and a hearing on this motion was held on September 9, 2015.

If this case proceeds to trial, the Government contends it would prove the following facts:3

HCH, a for-profit hospice provider, was incorporated in 1999 under the laws of the Commonwealth of Pennsylvania. HCH was in the business of providing hospice services for patients at nursing homes, hospitals, and private residences. HCH received Medicare, Medicaid, and private insurance reimbursement for providing home care and in-facility care to purportedly terminally ill patients with life expectancy prognoses of six months or less.

Defendant McGill, a registered nurse, was employed at HCH and served as the Director of Nursing and Clinical Services commencing in or about 2005. In that capacity, she was responsible for the planning, implementation, and evaluation of HCH’s hospice services in accordance with local, state, and federal regulations. Defendant McGill also supervised clinical nursing staff, which included reviewing staff documentation and patient charts to assure quality and appropriateness for hospice service and maintaining records of patient visits. Defendant McGill was supervised by the Director and owner of HCH, Alex Pugman,4 who conceived and orchestrated a plan to defraud Medicare of approximately $16 million dollars from about January 2005 through December 2008. The scheme involved falsification of nursing notes and home health aide documentation and other records, which were reviewed by Defendant McGill.

With the above-mentioned indictment, Defendant McGill was charged with knowingly authorizing the admission and main[867]*867tenance of ineligible patients for hospice services, resulting in fraudulent healthcare insurance claims submitted by HCH totaling approximately $9,328,000, and authorizing HCH staff to falsely document more costly levels of hospice services resulting in fraudulent claims totaling approximately $325,000. ECFNo. 1.

II. LEGAL STANDARD

A. Nolo Contendere Pleas

1. Federal Rule of Criminal Procedure 11 and Nolo Contendere Pleas Generally

Under Federal Rule of Criminal Procedure 11, a defendant may plead not guilty, guilty, or nolo contendere. Fed.R.Crim.P. 11(a)(1). A plea of nolo contendere, however, requires consent of the court. Id. Before accepting a plea of nolo contendere, Rule 11 instructs that “the court must consider the parties’ views and the public interest in the effective administration of justice.” Fed.R.Crim.P. 11(a)(3). “[T]he reason for considering these factors is that nolo pleas come with various costs and benefits, and the court must ensure that in the case before it the benefits outweigh the costs.” United States v. Mancinas-Flores, 588 F.3d 677, 682 (9th Cir.2009). Rule 11 is silent with respect to what, if anything, the court must consider before rejecting a nolo plea.

While the Third Circuit has not ruled on this issue, other courts of appeals have held that a district court has broad discretion in determining whether to accept a nolo plea and may reject the plea if it determines that accepting the nolo plea is not in the public interest. See, e.g., Mancinas-Flores, 588 F.3d at 682; United States v. Buonocore, 416 F.3d 1124, 1131 (10th Cir.2005) (“One of the most important characteristics of the plea of nolo contendere ... is that its acceptance by the court is not a matter of right of the defendant but is entirely within the discretion of the court.” (internal quotation marks omitted)); United States v. David E. Thompson, Inc., 621 F.2d 1147, 1150 (1st Cir.1980) (“Acceptance of a nolo plea is solely a matter of grace.” (internal quotation marks omitted)); United States v. Soltow, 444 F.2d 59, 60 (10th Cir.1971) (“[T]he acceptance of [a nolo] plea is a matter solely within the discretion of the court.”). This is consistent with the Notes of the Advisory Committee from the 1974 amendments to Federal Rule of Criminal Procedure 11, which provide that “the balancing of the interests is left to the trial judge,” so long as the judge “take[s] into account the larger public interest in the effective administration of justice.” Fed. R.Crim.P. 11, Advisory Comm. Note to 1974 Amend.

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Cite This Page — Counsel Stack

Bluebook (online)
128 F. Supp. 3d 863, 2015 U.S. Dist. LEXIS 121832, 2015 WL 5315788, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mcgill-paed-2015.