UNITED STATES ATTORNEY’S OFFICE Torre Chardón, Suite 1201 350 Carlos Chardón Street San Juan, Puerto Rico 00918 Phone Number: (787)766-5656 Facsimile: (787)766-6219 rafael.j.lopez@usdoj.gov Case 3:16-cv-02364-SCC Document 17-1 Filed 04/28/17 Page 4 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO FRANCISCO CINTRON ACEVEDO, Plaintiff v. DR. THOMAS E. PRICE, Secretary, United States Department of Health and Human Services, Defendant. CIVIL NO. 16-2364 (GAG)(SCC) MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE COURT: COMES NOW, Defendant, the Secretary of the United States Department of Health and Human Services (HHS), Dr. Thomas E. Price, through the undersigned attorney, and very respectfully STATES and PRAYS as follows: I. INTRODUCTION On February 26, 2014, Francisco Cintrón Acevedo (Cintrón or Plaintiff) was indicted in this Court on counts of health care fraud in violation 18 U.S.C. §§ 1347 and 2; conspiracy to commit health care fraud in violation of 18 U.S.C. §§ and 1349; and misbranding and adulterating prescription medications with the intent to mislead and defraud in violation of 21 U.S.C. §§ 331(k), 333(a)(2), 351(a)(2)(A) and (B), and 352(a), (b), and (o). Specifically, Cintrón facilitated and caused the adulteration and misbranding of prescription drugs Levalbuterol and Budesinide, and subsequently billed Medicare.

III. Lack of Standing and Subject Matter Jurisdiction Although Relator’s SAC does not clearly articulate a recognizable claim for relief or cause of action, it references claimed violations of Social Security Act § 1128A(a)(1) (codified at 42 U.S.C. § 1320a-7a(a)(1)) and criminal violations of 18 U.S.C. § 1035 and 18 U.S.C. § 1347. Unlike the FCA, these statutes do not contain citizen suit provisions that allow commencement of an action on behalf of the United States.

at 32. In this case, the government alleged that the underlying predicate offenses, or specified unlawful activity, that generated the laundered funds were Conspiracy to Commit Health Care Fraud, in violation of 18 U.S.C. § 1349; Health Care Fraud, in violation of 18 U.S.C. § 1347; 4 The defense alleges that Ms. McPherson stated she reported the lack of services to Global, which does not make sense because she continued to collect money from her aides. Def.

8) to the federal anti-kickback statute, the False Claims Act, and the Civil Monetary Penalties Law, but these statutes address seeking reimbursement from the federal government. Plaintiff also argues that the "routine waiver of personal copay obligations constitutes financial inducements that are deemed illegal kickbacks and amounts to criminal health care fraud," citing 18 U.S.C. §§ 1347, 1349. Pl.

Defendant Luis has not been charged under that statute, and it has not been alleged in this case. Thus, United States v. Medina, 485 F.3d 1291 (11th Cir. 2007), is not applicable here, as it addressed the sufficiency of the evidence in a conviction under 18 U.S.C. § 1347 and the propriety of the sentence imposed by the district court.4 4 Defendant Luis cites two other cases that are also irrelevant on this issue. The decision in United States v. Brown, 988 F.2d 658, 664 (6th Cir. 1993), came several years before Section 1345 was amended in 1996 to allow for broad asset freezes in health care fraud cases.

See Compl., ¶¶ 14, 30, 45, 48 and 77. While finding that plaintiff did not know of the scheme to defraud the United States, the Judge adjudicated on January 27, 2015 that plaintiff was guilty of conspiracy to commit health care fraud in violation of 18 U.S.C. §§ 1347 and of conspiracy to commit money laundering and to engage in monetary transactions in criminally derived property exceeding $10,000 in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i), 1956(h) and 1957. See Judgment in a Criminal Case, attached hereto as Exh.

2. On May 19, 2015, a grand jury indicted Defendant on seventeen counts of health care fraud, a violation of 18 U.S.C. §§ 1347 and 2, in the above-captioned case. 3.

For the reasons explained below, this Court should reject Petitioner’s Objections, and adopt in full without an evidentiary hearing the thoughtful and carefully-reasoned forty-nine page Report and Recommendation (the “R&R”) issued by Magistrate Judge O’Sullivan on May 6, 2014. I. PROCEDURAL HISTORY On January 31 2013, a grand jury sitting in the Southern District of Florida returned a Superseding Indictment charging Petitioner with one count of conspiracy to commit health care Case 1:14-cv-20564-CMA Document 35 Entered on FLSD Docket 07/28/2014 Page 1 of 16 2 fraud in violation of 18 U.S.C. § 1349 (Count 1 of the Superseding Indictment) and four counts of health care fraud in violation of 18 U.S.C. § 1347 (Counts 7 through 10 of the Superseding Indictment). (See United States v. Eason, et.

The United States, by and through undersigned counsel, hereby seeks an order: (1) precluding Defendant Kallen-Zury from asserting an advice of counsel or good faith defense at trial (either via counsel, other witnesses/evidence, or her own testimony) or, in the alternative; (2) for an order permitting the government to investigate and take discovery on relevant communications by and between Defendant Kallen-Zury and her counsel. FACTUAL BACKGROUND I. INDICTMENT AND CHARGES On October 2, 2012, a grand jury sitting in the Southern District of Florida, Miami Division, returned a 16-count indictment charging Kallen-Zury in 14 counts. The grand jury charged Kallen-Zury with one count of conspiracy to commit wire fraud and health care fraud, in violation of 18 U.S.C. § 1349, five counts of wire fraud, in violation of 18 U.S.C. § 1343, two Case 1:12-cr-20757-JEM Document 156 Entered on FLSD Docket 01/20/2013 Page 1 of 10 2 counts of health care fraud, in violation of 18 U.S.C. § 1347, one count of conspiracy to pay and receive health care bribes and kickbacks, and to defraud the government, in violation of 18 U.S.C. § 371, and five counts of paying health care bribes and kickbacks, in violation of 42 U.S.C. § 1320a-7b(b)(2). The statutory maximum sentence Kallen-Zury faces for these crimes in 170 years’ incarceration.

To the extent that the cooperators paid kickbacks to patients or duped defendant into billing Medicare for services not rendered in violation of company policy that defendant Luis strived to enforce, then she is not criminally liable. If defendant can prove to the court that upwards of 90% of the Medicare revenues related to qualified patients who received necessary care without any kickbacks, that will reduce the potential forfeiture and render implausible Case 1:12-cv-23588-PCH Document 53 Entered on FLSD Docket 11/26/2012 Page 9 of 11 The government argues that Medina is not applicable because defendant Luis6 has not been charged under 18 U.S.C. § 1347 (health care fraud). DE: 49 at 6.