United States v. Seitz , 627 F. App'x 44 ( 2016 )


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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