Case No. 18-6180, 2020 WL 104597
Decided January 7, 2020
Defendant Dr. Anis Chalhoub appealed his conviction from the United States District Court for the Eastern District of Kentucky. Dr. Chalhoub was convicted on one count of health care fraud under 18 U.S.C. § 1347. The Sixth Circuit affirmed the district court’s opinion rejecting the Dr. Chalhoub’s challenges regarding the evidence presented during trial.
Dr. Anis Chalhoub had a busy cardiology practice in London, Kentucky. He owned his own practice, which he sold to St. Joseph Hospital in 2010. He joined the hospital as a full-time employee. He worked long hours, had a full patient list, and preformed many procedures. In one particular year, Dr. Chalhoub conducted 2,000 more office visits than the average cardiologist. Dr. Chalhoub was compensated at a rate which considered the services he performed. The government grew suspicious that he was preforming medically unnecessary procedures and then billing the insurers, including Medicare. In response, the hospital hired an outside firm to review Dr. Chalhoub’s patient records. A review of twelve pacemaker patients deemed all procedures medically unnecessary. Dr. Chalhoub was fired by the hospital.
Shortly thereafter, the government indicted Dr. Chalhoub on one count health care fraud. At trial, the government offered testimony from an expert witness and other practicing physicians in Kentucky. The evidence primarily focused on Dr. Chalhoub’s installation of pacemakers. The expert witness identified twenty-seven patients that received unnecessary pacemakers. Other witnesses testified that they had turned down or turned off the pacemakers of approximately twenty patients treated by Dr. Chalhoub. In its closing argument, the government suggested there were fifty other examples of pacemakers that Dr. Chalhoub had installed unnecessarily. The number of alleged affected patients exponentially increased the trial. The jury ultimately convicted Dr. Chalhoub and he was sentenced to three and a half years in prison.
In his appeal, Dr. Chalhoub argued the district court made four evidentiary errors. The first error pertains to the district court’s admission of witness testimony regarding the twenty unnamed, former patients of Dr. Chalhoub that needed their pacemakers turned down or taken out. Dr. Chalhoub argued he was prejudiced under Rule 403 because he did not receive notice or information relating to these patients. The Court found sympathy in this argument, and even shared that if this was the only evidence offered against Dr. Chalhoub he would have a meritorious claim. Nonetheless, the Court ruled that the government had sufficient evidence to sustain his conviction.
The Court noted that this argument would have been better offered as a due process violation. In fact, it even goes through some of this analysis after finding his briefing on this point unclear. Dr. Chalhoub argued that a defendant has a right to know the names of his purported victims, so he can build a defense. The Court responded that the constitutional right to present a defense encompasses two categories – notice and the right to be heard. Dr. Chalhoub believes he did not have an opportunity to defend himself against these allegations. The Court found that assertion unpersuasive given the defendant’s right to cross-examine the witnesses during trial. The Court also found he did not have a valid argument that he was denied an opportunity to he heard.
Similarly, Dr. Chalhoub challenged the testimony related to the twenty unnamed patients by highlighting that the district court did not include those patients in its loss amount calculation for sentencing. The Court easily found no inconsistencies explaining that the loss amounts are factual findings by the Court. To include the twenty unnamed patients for sentencing, the government needed to prove their inclusion by a preponderance of the evidence. The standard for admission at trial is lower – evidence is admissible if it meets the relevancy standard. In other words, evidence must have a tendency to make a fact more or less probable than it would be without evidence and that fact is of consequence in determining the action. See Fed. Rule Evid. 401. The Court found that it was appropriate for the testimony to meet the lower standard for admission, but no the higher preponderance stand for sentencing purposes.
Dr. Chalhoub’s next argument challenged the admissibility of the government’s statements made during closing remarks concerning fifty other patients. He argued that this summation, which was not supported by any evidence, caused prejudice. He mentioned there may have been an overlap in the twenty-seven patients discussed by the expert and the fifty others the government mentioned. The Court found that the jury did not rely on the twenty or fifty unnamed patients to convict Dr. Chalhoub. The government indicted, and the jury found, Dr. Chalhoub for one count health care fraud and the evidence was sufficient for such conviction.
Lastly, Dr. Chalhoub argues that the weight of the evidence against him was insufficient to convict him. In a motion for a bill of particulars, Dr. Chalhoub asked the government to provide details about the “other medically unnecessary procedures and services” he alleged performed. At trial, witnesses discussed the high number of diagnostic tests Dr. Chalhoub ordered. In his appeal, Dr. Chalhoub argued these vague remarks were prejudicial and the government failed to prove accuracy of the assertions. Again, the Sixth Circuit found that Dr. Chalhoub’s argument failed. Dr. Chalhoub had a chance to cross-examine these witnesses who testified that he conducted too many procedures.
This affirmation by the Sixth Circuit allows for admissibility of testimony at trial without any prior notice and advanced warning because the defendant is given the ability to cross-examine those individuals. Additionally, this decision clarifies that statements made during trial or closing remarks must only meet the relevancy standard so long as it can be shown that the jury did not rely on those statements in finding their conviction.