United States v. Rigo

86 F. Supp. 3d 235, 2015 WL 394074
CourtDistrict Court, S.D. New York
DecidedJanuary 29, 2015
DocketNo. 13 Cr. 897 (RWS)
StatusPublished
Cited by2 cases

This text of 86 F. Supp. 3d 235 (United States v. Rigo) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Rigo, 86 F. Supp. 3d 235, 2015 WL 394074 (S.D.N.Y. 2015).

Opinion

OPINION

SWEET, District Judge.

Defendant Bladimir Rigo (“Rigo” or “Defendant”) sought and obtained a hearing under United States v. Fatico to contest the amount of loss attributable to him pursuant to his guilty plea to one count of Conspiracy to Commit Healthcare Fraud and one count of Conspiracy to Commit Adulteration Offenses and the Unlawful Wholesale Distribution of Prescription Drugs. Upon the findings set forth below, the loss attributable to Rigo is $2.9 million.

Prior Proceedings

Plaintiff the United States of America (the “Government”) charged Rigo by criminal complaint in September 2013 and, in November 2013, a grand jury returned indictment 13 Cr. 897(RWS) similarly charging the Defendant with one count of [237]*237conspiracy to commit healthcare fraud and one count of conspiring to commit adulteration and unlawful wholesale distribution of prescription medications. Rigo pled guilty to both counts on April 23, 2014 before the Honorable Kevin N. Fox, United States Magistrate Judge. During the course of his allocution, Rigo admitted to his participation in the charged scheme as follows:

During the years mainly 2010 to 2012, but also in previous years, I agreed with others to buy and to sell medicines that had been prescribed to patients with insurance, Medicaid, without having a license to sell them or to buy them. On occasion the medications had the labels removed or cleaned up in order for them to be sold.

(Tr. 15:19-24.)

On September 11, 2014, Rigo requested a hearing pursuant to United States v. Fatico, 603 F.2d 1053 (2d Cir.1979), in order to resolve a dispute between the parties concerning the amount of loss attributable to him as a result of the offense conduct. The hearing took place in November 2014 and final argument was heard on December 2, 2014, at which point the motion was marked fully submitted.

Evidence Adduced at the Hearing

The Conspiracy and the Government’s Investigation

Between 2010 and 2012, the Government conducted a nationwide investigation into the unlawful diversion and trafficking of prescription drugs that were previously dispensed to Medicaid recipients into an underground secondhand market. See Mohan Deck Ex. A (Pre-Sentencing Report dated July 22, 2014, (“PSR”)) ¶8. Rigo was convicted as a result of this investigation.

The scheme worked as follows: first, the lowest level participants in the scheme (the “Insurance Beneficiaries”) filled prescriptions for month-long supplies of drugs at pharmacies throughout the country, including in the Southern District of New York and in the Newark, New Jersey area. These Insurance Beneficiaries were typically HIV or AIDS patients who paid little or no money for the drugs in question because their insurance plans, typically Medicaid, covered the costs. The Insurance Beneficiaries then sold their bottles of medications to other participants in the scheme, referred to in the investigation as “Collectors,” for cash at locations like street corners and bodegas. Mr. Arcadio Reyes-Arias (“Reyes-Arias” or “Chino”) and Mr. Rogelio Leyba (“Leyba”) were two such Collectors. Collectors, in turn, sold the secondhand bottles they collected to Rigo and other “Aggregators,” scheme participants who typically bought large quantities of secondhand drugs from multiple Collectors. Eventually, the secondhand drugs made their way to corrupt distributors and pharmacies willing to re-dispense these drugs to unsuspecting consumers.

Health care benefit programs, such as Medicaid, were generally defrauded twice with respect to each bottle dispensed in the scheme. On the front end, a health care benefit program was fraudulently induced into paying for these drugs under the false representation that these drugs would be taken by the Insurance Beneficiary to whom they were dispensed. The scheme participants then also sought to defraud health care benefit programs again on the back end of the scheme. By concealing the source of the bottles and the fact that the bottles have been previously dispensed, the scheme participants attempt to have the bottles re-dispensed as new, legitimately obtained drugs by pharmacies, thereby fraudulently inducing [238]*238health care benefit programs like Medicaid to pay for the same bottle a second time.

Rigo’s Role

Rigo was an Aggregator based in the Newark, New Jersey area, who operated as a part of the scheme between at least 2000 and his arrest in 2013. During that time period, Rigo aggregated bottles of these secondhand medications by employing Collectors in his bodega to purchase these medicines from Insurance Beneficiaries on the streets of Newark and by buying bottles from independent Collectors, i.e., scheme participants who worked on their own to buy these bottles from Medicaid patients before selling them to Aggregators. In July 2012, agents working with the Department of Justice arrested 48. individuals in 6 states and charged them with crimes related to the conspiracy. Just prior to those arrests, agents in New York engaged in an undercover operation designed to identify additional targets. In a month and a half, undercover agents twice purchased prescription medicines from Mr. Hermenegildo Fernandez (“Fernandez” or “Poncho”). The agents arrested Fernandez, and he became a cooperating witness for the Government. Fernandez offered to set up additional targets, and in August and November 2012, while wearing a wire, he purchased drugs from Leyba. Following Leyba’s arrest, Leyba offered to set up additional targets in an effort to become a cooperating witness for the Government, but was unsuccessful and as a result not “signed up” as a cooperator. Meanwhile, Fernandez set up Reyes-Arias as another target. In October 2012 and again in December 2012, Fernandez, again wearing a wire, bought drugs from Reyes-Arias, whom agents arrested and charged following the second sale.

In connection with all three arrests, the Government executed search warrants at stash house locations used by Reyes-Arias, Leyba, and Fernandez. On June 5, 2012, agents searched Fernandez’s warehouse in North Bergen, New Jersey. Hr’g Tr. 29:12-13, 141:11-15. As a result of that search, they recovered over 10,000 bottles of prescription drugs, as well as bottles, bags, and other supplies for the drug business. Id. at 29:14-20. On December 20, concurrent with their arrests, agents searched the apartments of Reyes-Arias and Leyba. Id. at 114:24-25, 121:6-11; Mohan Deck Ex. C (Rao 3502-1) at 14:7-13, 20:10-15. From Reyes-Arias’s apartment, agents seized 481 prescription-drug containers, which included bottles of medication, syringes and patches, as well as cleaning supplies. Mohan Deck Ex. C (Rao 3502-1) at 20:19-26; Mohan Deck Ex. D (GX-218); Hr’g Tr. 121:23-122:21. From Leyba’s apartment, agents seized 482 prescription-drug containers. Mohan Deck Ex. E (GX-219); Mohan Deck Ex. C (Rao 3502-1) at 14:22-15:4.

During the course of their investigation, agents did not recover evidence tying Rigo to the searched stash houses, to the drugs the drugs seized during the six hand-to-hand transactions supporting the arrests of Fernandez, Leyba, and Reyes-Arias, or otherwise identifying Rigo as a co-conspirator. Hr’g Tr. 29:21-30:2, 135:3-12,151:4-152:9. In July or August 2012, Fernandez contacted Rigo to schedule a meeting. Id. at 27:23-28:1.

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Related

United States v. Rigo
649 F. App'x 107 (Second Circuit, 2016)
15-1914-Cr
Second Circuit, 2016

Cite This Page — Counsel Stack

Bluebook (online)
86 F. Supp. 3d 235, 2015 WL 394074, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rigo-nysd-2015.