The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
MEMORANDUM OPINION AND ORDER
On July 13, 2012, after an eight-day trial, a jury convicted Jacqueline L. Wheeler of one count of health care fraud, in violation of 18 U.S.C. Â§ 1347 (Count 1), and thirty-four counts of false statements relating to health care matters, in violation of 18 U.S.C. Â§ 1035 (Counts 2 through 35).*fn1 The convictions were based on bills that she had submitted to the District of Columbia Medicaid program for payment for services which she claimed to have provided to D.C. Medicaid beneficiaries between January 2006 through April 2008. Pending before the Court are defendant's motions for acquittal and new trial under Rules 29 and 30 and dismissal of Counts 2 through 35 as multiplicitous. For the reasons stated herein, defendant's motions will be denied.
Rule 29(a) of the Federal Rules of Criminal Procedure provides that "[i]f the jury has returned a guilty verdict, the court may set aside the verdict and enter an acquittal." In reviewing a post-verdict motion for judgment of acquittal under Rule 29, a court "must view the evidence in the light most favorable to the verdict." United States v. Campbell, 702 F.2d 262, 264 (D.C. Cir. 1983). A motion for a judgment of acquittal should be denied when the evidence is "sufficient to permit a rational trier of fact to find all the essential elements of the crime beyond a reasonable doubt. Typically, the jury's determination will stand unless no reasonable juror could have found a defendant guilty beyond a reasonable doubt." United States v. Cook, 526 F. Supp. 2d 10, 18 (D.D.C. 2007), aff'd, 330 Fed. Appx. 1, 2 (D.C. Cir. 2009) (internal citations and quotation marks omitted).
Defendant moves pursuant to Rule 29(c) for a judgment notwithstanding the jury's verdict on all counts. She argues that the evidence presented at trial did not support the inference that she "'knowingly and willfully' intended to defraud D.C. Medicaid, as is required under both Â§ 1347 and Â§ 1035." (Def.'s Mot. at 2.)
In "most cases in which the defendant's state of mind is at issue, it may be near impossible to establish the requisite mens rea through direct evidence" and therefore proof of intent must be inferred from circumstantial evidence. United States v. Schaffer, 183 F.3d 833, 843 (D.C. Cir. 1999) (citing, inter alia, Chedick v. Nash, 151 F.3d 1077, 1083 (D.C. Cir. 1998) (despite absence of smoking gun, jury entitled to infer intent to defraud from circumstantial evidence)). In a Â§ 1347 case, "'intent [to defraud] can be inferred from efforts to conceal the unlawful activity, from misrepresentations, from proof of knowledge, and from profits.'" United States v. Dearing, 504 F.3d 897, 901 (9th Cir. 2007) (quoting United States v. Davis, 490 F.3d 541, 549 (6th Cir. 2007)); see also United States v. Jemal, No. 05-0359, 2007 U.S. Dist. LEXIS 21356, at *17-20 (D.D.C. Mar. 12, 2007).
In this case, the government presented compelling circumstantial evidence to support the conviction. It showed that defendant was the Chief Executive Officer and an owner of the Health Advocacy Center ("HAC"), the registered D.C. Medicaid provider, during the relevant time period. As defendant concedes, it showed that "Wheeler was responsible for the majority if not all of the [D.C. Medicaid] billing" on behalf of HAC. (Def.'s Mot. at 5.) Moreover, multiple witnesses testified that she controlled financial matters and was the only person who prepared and submitted claims to D.C. Medicaid.
The evidence also showed that hundreds of false claims were submitted, on behalf of HAC, to D.C. Medicaid for manual therapy services. Some of these claims were for services that could not have been rendered to patients because they were not at HAC, but rather were hospitalized at another facility. In other cases, bills were submitted that made "impossible" claims, i.e., that twenty-four hours of massage therapy had been provided to a single patient in one day. The government also introduced bills that had been submitted for services that HAC could not provide, because, according to some of the witnesses, HAC did not have the necessary equipment.
The government presented evidence that HAC received more than $3 million for approximately 600 false manual therapy claims submitted during the time period covered by the indictment. This money was deposited into bank accounts controlled by Wheeler. It also presented evidence that Wheeler purchased numerous cars and attempted to buy property in Florida. While defendant argues that these expenditures were not lavish (Def.'s Reply at 5), she cannot seriously dispute that she personally benefitted financially from receipt of the millions of dollars in unearned D.C. Medicaid funds. See United States v. Bradley, 644 F.3d 1213, 1247 (11th Cir. 2011) (receipt of disproportionate profits from scheme permits inference of intent to defraud).
Finally, the jury heard testimony that would allow it to conclude that Wheeler intended to conceal her billing practices. For example, Acquinette Robinson testified that Wheeler refused to let special agents enter the Sheridan Office and, at 4:00 a.m. the following morning, she moved all the patient files from HAC to her home in Chevy Chase, Maryland. From this testimony, the jury could infer that Wheeler intended to hide information-or conceal the absence of any supporting documentation-relating to her Medicaid claims.
Moreover, defendant's Rule 29 challenge rests primarily on disputed issues of fact- whether HAC had the necessary equipment for certain services; whether any other HAC employees ever submitted bills; whether Wheeler actually reviewed bills rather than merely submitted them; and whether her sudden removal of patient files from the HAC facility suggests an intent to conceal fraudulent billing. (See Def.'s Mot. at 4-5; Def.'s Reply at 3-5). *fn2 However, the existence of disputed factual issues is not grounds to overturn a jury's verdict. Ultimately, the evidence admitted at trial and the inferences that can be drawn therefrom were sufficient for a jury to find that the defendant had the requisite knowledge and intent to defraud the D.C. Medicaid program. Even if the resolution of factual disputes was a close call (which it was not), "'the evidence reasonably permits a verdict of acquittal or a verdict of guilt, in which case the decision was for the jury to make.'" United States v. Cabrera, 734 F. Supp. 2d 66, 87 (D.D.C. 2010) (quoting United States v. Curley, 160 F.2d 229, 237 (D.C. Cir. 1947)).
Federal Rule of Criminal Procedure 33 permits "a court [to] vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). "The Rule does not define 'interests of justice' and the courts have had little success in trying to generalize its meaning." United States v. Cabrera, 734 F. Supp. 2d 66, 87 (D.D.C. 2010) (quoting United States v. Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989)). "Nevertheless, courts have interpreted the rule to require a new trial 'in the interests of justice' in a variety of situations in which the substantial rights of the defendant have been jeopardized by errors or omissions during trial." Id. A defendant has a heavy burden under Fed. R. Crim. P. 33(a). "[T]he evidence must preponderate heavily against the verdict, such that it would be a miscarriage of justice to let the verdict stand . . . . This power should be exercised with caution, and is invoked only in ...