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14-3170-cr United States v. Seitz UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 15th day of January, two thousand sixteen. 5 6 PRESENT: AMALYA L. KEARSE, 7 DENNIS JACOBS, 8 CHESTER J. STRAUB, 9 Circuit Judges. 10 11 - - - - - - - - - - - - - - - - - - - -X 12 UNITED STATES OF AMERICA, 13 Appellee, 14 15 -v.- 14-3170-cr 16 17 JAY SEITZ, 18 Defendant-Appellant. 19 - - - - - - - - - - - - - - - - - - - -X 20 21 FOR APPELLANT: ERIC M. CREIZMAN, Creizman PLLC, 22 New York, NY. 23 24 FOR APPELLEE: BRIAN R. BLAIS (Kristy J. 25 Greenberg, Michael A. Levy, on 26 the brief), for Preet Bharara, 27 United States Attorney for the 28 Southern District of New York, 29 New York, NY. 1 1 Appeal from a judgment of the United States District 2 Court for the Southern District of New York (Stein, J.). 3 4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 5 AND DECREED that the judgment of the district court be 6 AFFIRMED. 7 8 Jay Seitz appeals from the judgment of the United 9 States District Court for the Southern District of New York 10 (Stein, J.) convicting him of (i) mail fraud, (ii) health 11 care fraud, and (iii) conspiracy to commit mail and health 12 care fraud. Seitz was sentenced chiefly to 24 months’ 13 imprisonment. Seitz challenges the sufficiency of the 14 evidence underlying his convictions and argues that the 15 government elicited testimony that deprived him of a fair 16 trial. We assume the parties’ familiarity with the 17 underlying facts, the procedural history, and the issues 18 presented for review. 19 20 1. A defendant challenging the sufficiency of the 21 evidence underlying his conviction at trial “bears a heavy 22 burden” because our standard of review is “exceedingly 23 deferential”: we “must view the evidence in the light most 24 favorable to the government, crediting every inference that 25 could have been drawn in the government’s favor,” and we 26 will uphold the judgment if “any rational trier of fact 27 could have found the essential elements of the crime beyond 28 a reasonable doubt.” United States v. Coplan,
703 F.3d 46, 29 62 (2d Cir. 2012) (internal quotation marks omitted). 30 31 The evidence establishes that Seitz knew or consciously 32 avoided knowing that (i) the claims falsely represented that 33 he actually performed the specified treatments, (ii) he was 34 not permitted to bill for treatment done by unlicensed 35 social workers, and (iii) the claims included medically 36 unnecessary or fabricated treatments. Seitz signed numerous 37 claims forms, each of which (falsely) represented that Seitz 38 was the “treating provider” and (falsely) represented that 39 the treatment was done by a psychologist, rather than a 40 social worker. Not only were these representations false, 41 they also concealed that unlicensed social workers were 42 performing the actual treatments. Seitz also signed 43 treatment notes that were merely fill-in-the-blank templates 44 that often produced inconsistent or inaccurate results. 2 1 Once insurance companies began rejecting his original 2 company’s claims, Seitz formed a new company, that was 3 identical in its personnel and practices but with a 4 different name, for the submission of claims. Finally, 5 Seitz received enormous amounts of money for doing what 6 amounted to very litte work. The jury had a more than 7 adequate basis for concluding that Seitz intended to commit 8 fraud, knew he was committing fraud, and had conspired to 9 commit fraud. 10 11 2. To succeed on a claim of prosecutorial misconduct 12 based on conduct at trial, a defendant must show that the 13 prosecutor’s conduct caused “substantial prejudice” such 14 that the defendant was deprived of a fair trial. United 15 States v. Tocco,
135 F.3d 116, 130 (2d Cir. 1998); see also 16 United States v. Locascio,
6 F.3d 924, 945-46 (2d Cir. 17 1993). To assess whether substantial prejudice exists, we 18 weigh “the severity of the misconduct, the measures adopted 19 to cure [it], and the certainty of conviction absent the 20 misconduct.” United States v. Elias,
285 F.3d 183, 190 (2d 21 Cir. 2002). 22 23 Seitz fails to identify any prosecutorial misconduct, 24 let alone misconduct that substantially prejudiced him at 25 trial. Seitz points to an alleged mixup by the insurance 26 company investigator as to whether the billing was done by 27 Seitz, personally, or his professional corporation, Jay 28 Psychological. But this distinction was trivial. The 29 witness testified that she was investigating both “Dr. Jay 30 Seitz” and “Jay Psychological, PC.” Seitz also complains of 31 testimony the government elicited from the insurance company 32 investigator identifying Seitz’s signature. But whatever 33 ambiguity existed as to the insurance company investigator’s 34 identification of a signature being similar to other 35 signatures, purportedly of Seitz, was clarified by the 36 district court and by defense counsel’s cross-examination. 37 In any event, this alleged misconduct likewise concerns a 38 minor matter; other witnesses testified at trial that they 39 had personally seen Seitz sign his corporations’ bills and 40 treatment notes. 41 42 3 1 Accordingly, and finding no merit in Seitz’s other 2 arguments, we hereby AFFIRM the judgment of the district 3 court. 4 5 FOR THE COURT: 6 CATHERINE O’HAGAN WOLFE, CLERK 7 4
Document Info
Docket Number: 14-3170-cr
Citation Numbers: 627 F. App'x 44
Filed Date: 1/15/2016
Precedential Status: Non-Precedential
Modified Date: 1/13/2023