United States v. Yielding, No. 10-1117 (8th Cir. 2011)
Annotate this CaseDefendant was found guilty of two federal offenses: one count of aiding and abetting a violation of the so-called Medicare anti-kickback statute, in violation of 42 U.S.C. 1320a-7b(b)(2) and 18 U.S.C. 2, and one count of aiding and abetting the falsification of a document, in violation of 18 U.S.C. 1519 and 2. Defendant raised several claims on appeal. The court held that the district court did not err in admitting testimony concerning statements made by defendant's wife during her interview with the FBI; in admitting evidence under Federal Rule of Evidence 404(b) that defendant stole funds from previous employers in the healthcare industry; in denying defendant's motion to dismiss count one of the second superseding indictment, which charged a violation of the anti-kickback statute; by refusing to hold an evidentiary hearing on defendant's motion to suppress statements and to declare his proffer agreement unenforceable; and by granting in part the spouse's attorneys' motion to quash a subpoena requiring one of the representatives to produce his entire file regarding the representation of the spouse who was now deceased. The court also held that the district court's jury instructions regarding count one were not erroneous. The court held, however, that the district court erred in calculating the amount of loss under Guidelines 2B4.1 when it used the loss to the victims, rather than the benefit to defendant, as the measure of loss. Therefore, the court concluded that there was procedural error and defendant's sentence was vacated. The court finally vacated the restitution order and remanded for further proceedings. The court rejected defendant's remaining claims.
Court Description: Criminal case - criminal law. Admission of FBI agent's testimony about a purported loan was not error as the statement was not hearsay and was not testimonial; any error concerning admission of FBI agent's testimony regarding employment status of a person involved in the kickback scheme was harmless; no error in admitting evidence under Rule 404(b) that defendant stole funds from previous employers in the healthcare industry; even if count I language charging violation of the anti-kickback statute was duplicitous, any error was cured by the court's limiting instruction; count was not barred by the statute of limitations; district court did not err in refusing to hold an evidentiary hearing on defendant's motion to suppress; no error in denying granting a motion to quash by the attorneys who represented defendant's deceased wife as the information defendant sought to present at trial was protected by the attorney-client privilege which defendant, as her personal representative, could not waive under these circumstances; no error in jury instructions on the anti-kickback charge; challenges to conviction for violating 28 U.S.C. Sec. 1519 rejected as the statute does not violate the Due Process clause of the Fifth Amendment, and the evidence was sufficient to support conviction for violating the statute; district court erred in calculating the amount of loss under Guidelines Sec. 2B4.1 when it used the loss to the victims, rather than the benefit to defendant, as the measure of loss; no error in imposing enhancements under Guidelines Sec. 3C1.1 and 3B1.1(c); restitution order vacated.
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