United States v. Curtis Holden , 806 F.3d 1227 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30308
Plaintiff-Appellee,
D.C. No.
v. 2:11-cr-02064-
RHW-1
CURTIS T. HOLDEN, DBA Advanced
Podiatry Specialists PS,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Eastern District of Washington
Robert H. Whaley, Senior District Judge, Presiding
Argued and Submitted
September 1, 2015—Seattle, Washington
Filed December 3, 2015
Before: Michael Daly Hawkins, Ronald M. Gould,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Gould
2 UNITED STATES V. HOLDEN
SUMMARY*
Criminal Law
The panel affirmed a conviction for thirty-two counts of
health care fraud in violation of 18 U.S.C. § 1347.
The panel rejected the defendant’s contention that revised
Count 41 was barred by the statute of limitations. The panel
held that health care fraud in violation of § 1347 is a
continuing offense, and that so long as the indictment was, as
here, written so as to allege only one execution of an ongoing
scheme, the government may charge a single health care
fraud scheme even when several acts in furtherance of the
scheme fall outside the statute of limitations.
The panel rejected the defendant’s contentions that
revised Count 41 impermissibly broadened the charges
against him, that revised Count 41 did not allege an execution
of a fraudulent scheme, and that the Second Superseding
Indictment improperly expanded the original indictment.
The panel resolved other issues in a concurrently-filed
memorandum disposition.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. HOLDEN 3
COUNSEL
Beth Mary Bollinger (argued), Spokane, Washington, for
Defendant-Appellant.
Mary K. Dimke (argued)and Aine Ahmed, Assistant United
States Attorneys; Michael C. Ormsby, United States
Attorney, Yakima, Washington, for Plaintiff-Appellee.
OPINION
GOULD, Circuit Judge:
Dr. Curtis Holden appeals from his jury conviction for
thirty-two counts of health care fraud in violation of
18 U.S.C. § 1347. We focus on Holden’s challenges to the
original and superseding indictments the government brought
against him.1 We must decide: (1) whether revised Count 41
was barred by the statute of limitations; (2) whether revised
Count 41 improperly broadened the charges against Holden;
(3) whether revised Count 41 alleged an execution of a
fraudulent scheme; and (4) whether the inclusion of two
counts in the superseding indictment resulted in a
constructive amendment to the original indictment. We have
jurisdiction under 18 U.S.C. § 1291, and we affirm.
I
Defendant-Appellant Dr. Curtis Holden is a podiatrist and
the owner of Advanced Podiatry Specialists, P.S. (“Advanced
1
We resolve all other issues and affirm the district court in a
memorandum disposition filed concurrently with this opinion.
4 UNITED STATES V. HOLDEN
Podiatry”) in Yakima, Washington. Holden, along with other
podiatrists employed at Advanced Podiatry, treated patients
covered by Medicare, Medicaid, Washington State
Department of Labor and Industries, and private insurance
programs.
On April 21, 2011, the government brought a 59-count
indictment against Holden, charging fifty-six counts of health
care fraud under 18 U.S.C. § 1347 and three counts of “false
statements relating to health care matters,” violating
18 U.S.C. § 1035. Holden moved to dismiss Counts 41–56,
seventeen alleged false bills stemming from a single visit to
a nursing home on January 6, 2006, as being outside of the
five-year statute of limitations set by 18 U.S.C. § 3282(a). In
response, the government argued that: (1) the limitations
period did not begin to run until Holden received the
payments for his fraudulent claims, some of which were
received after April 6, 2006; and (2) the seventeen counts
were part of a “continuing scheme to defraud,” and as such,
the limitations period ran from the date of the last execution
of the scheme. The district court partially rejected both of the
government’s arguments, ruling that, although healthcare
fraud might be a continuing offense, it could not be when the
government charged each alleged fraudulent act as a separate
count. Further, the district court concluded that even though
the execution of a health care fraud scheme was not complete
until the defendant received the proceeds, the government
could only show a single count—Count 42—where the date
of payment placed the indictment within the statute of
limitations. The district court dismissed Counts 41 and 43–56
without prejudice.
On June 19, 2012, the government filed its Second
Superseding Indictment, in which the sixteen dismissed
UNITED STATES V. HOLDEN 5
counts were consolidated with the original Count 42 to create
a revised Count 41. The government contended that the new
count alleged a continuing scheme to defraud. Revised Count
41 read:
That on or about the date of service of January
6, 2006 and continuing through the date of the
last payment of claims submitted for that date
of service on February 27, 2007, in the
Eastern District of Washington, CURTIS T.
HOLDEN, dba ADVANCED PODIATRY,
knowingly and willfully executed and
attempted to execute the above-described
scheme and artifice to obtain, by means of
materially false and fraudulent pretenses,
representations and promises, money owned
by and under the custody of Medicare . . . in
connection with the delivery of and payment
for health care benefits, items and services by
submitting or causing to be submitted claims
for payment from Medicare which falsely
represented the service of an “Evaluation and
Management” office visit for patients seen at
Garden Village, a skilled nursing facility,
when, in fact, an Evaluation and Management
visit was not the service provided, all in
violation of 18 U.S.C. § 1347(2).
Holden once again filed a motion to dismiss arguing that
the superseding indictment violated the statute of limitations.
He contended that revised Count 41 still violated the five-
year statute of limitations, and also substantially broadened
the language of the original indictment, such that it did not
relate back to the original indictment and the limitations
6 UNITED STATES V. HOLDEN
period was not tolled. The district court denied the motion,
holding that Holden had adequate notice of all the charges
against him, and that “the Superseding Indictment did not
‘substantially or materially’ broaden the charges against
[Holden],” tolling the statute of limitations.
After a seven-day trial, the jury convicted Holden of
thirty-two counts of health care fraud, acquitting him of
Counts 1–2, 11–13, 19–20, 22–23, and 42–44.
II
On appeal, Holden challenges the Second Superseding
Indictment on several grounds. He contends that revised
Count 41 should have been dismissed because it violated the
statute of limitations under 18 U.S.C. § 3282(a), broadened
the charges against him, and failed to allege an execution of
a fraudulent scheme. Further, he argues that Counts 42–44
resulted in an impermissible, constructive amendment to the
original indictment.
We review the sufficiency of an indictment de novo,
United States v. Lazarenko, 564 F.3d 1026, 1033 (9th Cir.
2009), and also review a district court’s decision not to
dismiss an indictment on statute of limitations grounds de
novo, United States v. Leo Sure Chief, 438 F.3d 920, 922 (9th
Cir. 2006). A claim of constructive amendment to an
indictment previously raised below is likewise reviewed de
novo. United States v. Ward, 747 F.3d 1184, 1188 (9th Cir.
2014).
UNITED STATES V. HOLDEN 7
A. Statute of Limitations
We first assess whether the district court erred by
allowing the Second Superseding Indictment, which
consolidated original Counts 41–56 to create revised Count
41. The district court permitted revised Count 41 by
reasoning that health care fraud is a continuing offense.
A continuing offense “involves (1) an ongoing course of
conduct that causes (2) a harm that lasts as long as that course
of conduct persists.” United States v. Morales, 11 F.3d 915,
921 (9th Cir. 1993). Unlike most crimes, it is only after this
ongoing course of conduct is complete that the “crime is
complete” for statute of limitations purposes. Toussie v.
United States, 397 U.S. 112, 115 (1970). Thus, a continuing
offense punishes “each execution of a fraudulent scheme
rather than each act in furtherance of such a scheme . . . .”
United States v. Molinaro, 11 F.3d 853, 859 (9th Cir. 1993).
The Supreme Court has held an offense is “continuing” when
either: (1) “the explicit language of the substantive criminal
statute compels such a conclusion”; or (2) “the nature of the
crime involved is such that Congress must assuredly have
intended that it be treated as continuing one.” Toussie,
397 U.S. at 115.
We have not previously considered whether health care
fraud in violation of 18 U.S.C. § 1347 is a continuing offense.
The Fifth Circuit has, however, evaluated this issue in United
States v. Hickman, 331 F.3d 439, 445–46 (5th Cir. 2003).
The court there held that § 1347 is a continuing offense,
making analogy to 18 U.S.C. § 1344, which criminalizes
bank fraud. Id. Because the Fifth Circuit had already held
that § 1344 was a continuing offense, and because § 1347 was
modeled after § 1344 with nearly identical language and
8 UNITED STATES V. HOLDEN
structure, the court concluded that § 1347 must also, by
analogy, be a continuing offense. Id.
Like the Fifth Circuit, we have already held that § 1344
is a continuing offense. See United States v. Najjor, 255 F.3d
979, 983–84 (9th Cir. 2001); United States v. Nash, 115 F.3d
1431, 1441 (9th Cir. 1997). We have also held that § 1344 is
to be used as an interpretive model for § 1347. See United
States v. Awad, 551 F.3d 930, 937–38 (9th Cir. 2009). We
agree with the Fifth Circuit and hold that health care fraud in
violation of 18 U.S.C. § 1347 is a continuing offense.
Yet, that does not completely resolve the question before
us. Some of the counts in the original indictment were
dismissed as barred by the statute of limitations period under
18 U.S.C. § 3282(a). Though the government may be
allowed to allege that many fraudulent acts make up a single
scheme, it does not necessarily follow that the government
may combine those acts into a single charge when some acts
fall outside the statute of limitations. Thus, the district court
was only justified in permitting revised Count 41 if the
multiple acts completed in relation to the 2006 nursing home
visit could be charged together as a single scheme to avoid
statute of limitation problems.
In light of Awad, the government could charge Holden’s
fraudulently submitted claims as multiple counts. See Awad,
551 F.3d at 937–38. However, the government was not
precluded from charging all of the claims as a single count.
In Awad, we held that “each execution of the [health care]
scheme to defraud may be charged as a separate count,” not
that it must be. Id. at 938 (emphasis added). This reasoning
is reinforced by our precedent involving duplicity challenges,
where we previously have held that an act which could
UNITED STATES V. HOLDEN 9
constitute an independent execution of a bank fraud scheme
in violation of 18 U.S.C. § 1344 did not need to be charged as
a separate count. United States v. King, 200 F.3d 1207, 1213
(9th Cir. 1999) (answering in the negative whether “an act
which can be viewed as an independent execution of a
scheme must be charged in a separate count.”). So long as the
“indictment was written so as to allege only one execution of
an ongoing scheme,” id., we hold that the government may
charge a single health care fraud scheme in violation of
18 U.S.C. § 1347 even when several acts in furtherance of the
scheme fall outside the statute of limitations.
In the Second Superseding Indictment, the government
was careful to allege only one execution of an ongoing
scheme in relation to the services performed at the nursing
home in 2006. “Holden . . . knowingly and willfully executed
and attempted to execute the above-described scheme and
artifice to obtain, by means of materially false and fraudulent
pretenses, representations and promises, money owned by
and under the custody and control of Medicare . . . .” Though
some acts in furtherance of the alleged scheme may have
been outside the statute of limitations, the scheme, as charged
in revised Count 41, was within the five-year period under
18 U.S.C. § 3282(a).
Though the parties disagree as to what act constitutes the
“execution” of a scheme in violation of 18 U.S.C. § 1347, we
need not decide that issue. Holden’s final fraudulent claim
was submitted on February 14, 2007, and the payment for that
claim came two days later on February 16, 2007. Regardless
of whether the execution occurs at submission or receipt of
payment, the alleged scheme was executed less than five
years before the original indictment was filed on April 21,
2011.
10 UNITED STATES V. HOLDEN
We conclude that the district court did not err by allowing
the government to proceed on revised Count 41. Health care
fraud in violation of 18 U.S.C. § 1347 is a continuing offense,
which may be properly charged as a single scheme in a single
count.
B. Other Indictment Challenges
We reject Holden’s other challenges to the indictment.
First, Holden contends that revised Count 41 impermissibly
broadened the charges against him by including facts
substantially different from those alleged in the original
Counts 41–56. If a district court dismisses an indictment, or
a portion of an indictment, the savings clause of 18 U.S.C.
§ 3288 permits the government to return a new indictment
after the statute of limitations has expired, so long as it is
done within six months of the dismissal. United States v.
W.R. Grace, 504 F.3d 745, 753 (9th Cir. 2007) (quoting
United States v. Charnay, 537 F.2d 341, 354 (9th Cir. 1976)).
Specifically, Holden argues that the new charge exposed
him to liability for any patient seen at the nursing home for
up to fourteen months, the time period alleged in revised
Count 41. But his claims are based on a misreading of the
superseding indictment. “An indictment must be read in its
entirety and construed in accord with common sense and
practicality.” United States v. Alber, 56 F.3d 1106, 1111 (9th
Cir. 1995). In the Second Superseding Indictment, the
government simply included the start and end dates of
Holden’s alleged fraudulent scheme, which began on the date
of service—January 6, 2006—and ended on the final date that
Advanced Podiatry received payment for a fraudulent
claim—February 27, 2007. “The test for sufficiency of the
indictment is ‘not whether it could have been framed in a
UNITED STATES V. HOLDEN 11
more satisfactory manner, but whether it conforms to minimal
constitutional standards.’” Awad, 551 F.3d at 935 (quoting
United States v. Hinton, 222 F.3d 664, 672 (9th Cir. 2000)).
And here, Holden had sufficient notice of the charges brought
against him. The government did exactly what the district
court said would be permissible when the district court
dismissed Counts 41 and 43–56 without prejudice—combine
the seventeen fraudulent billings as a single count. We
conclude that revised Count 41 was based on “the same
factual allegations as the original indictment,” United States
v. Hickey, 580 F.3d 922, 929 (9th Cir. 2009), and did not
substantially broaden the charges against him.
Second, for the first time on appeal, Holden argues that
revised Count 41 did not allege an execution of a fraudulent
scheme. The indictment must be “liberally construed in favor
of validity,” United States v. James, 980 F.3d 1314, 1316 (9th
Cir. 1992), and “it is only required that ‘the necessary facts
appear in any form or by fair construction can be found
within the terms of the indictment,’” id. at 1317 (quoting
Kaneshiro v. United States, 445 F.2d 1266, 1269 (9th Cir.
1971)). Here, the Second Superseding Indictment alleged an
execution of a scheme, as it stated that Holden “submi[tted]
or caus[ed] to be submitted claims for payment from
Medicare which falsely represented the service of an
‘Evaluation and Management’ office visit for patients seen at
Garden Village, a skilled nursing facility, when, in fact, an
Evaluation and Management visit was not the service
provided.” Moreover, given the context of revised Count 41,
discussed above, Holden also had notice of the charges
against him.
Finally, Holden contends that the Second Superseding
Indictment “improperly expanded” the original indictment by
12 UNITED STATES V. HOLDEN
including Counts 42–44, which alleged illegal conduct in
2010. However, as the government notes, there is no dispute
that Counts 42–44 were returned by the grand jury, and the
evidence presented in support of those counts does not vary
or expand the indictment in any material way.
III
We affirm the jury conviction finding Holden guilty of
thirty-two counts of health care fraud in violation of
18 U.S.C. § 1347.
AFFIRMED.