United States v. Shankman, 13 F. Supp. 2d 1358 (S.D. Ga. 1998)

*1359 *1360 *1361 Jeffrey J. Buerstatte, Assistant U.S. Attorney, Savannah, GA, for Plaintiff.

John J. Ossick, Jr., Kingsland, GA, John Eric Bumgartner, Whelchel, Brown, Readdick & Bumgartner, Brunswick, GA, James A. Yancey, Jr., James V. Pleasants, Brunswick, GA, M. Theodore Solomon, II, Solomon & Edgar, Alma, GA, W. Grady Pedrick, for Defendants.

ALAIMO, District Judge.

Mary Jane Pedrick ("Pedrick") was convicted by a jury of one count of conspiracy in violation of 18 U.S.C.A. § 371 (Supp.1998) and eighty-nine counts of mail and wire fraud in violation of 18 U.S.C.A. §§ 1341 & 1343 (Supp.1998). Currently before the Court are Pedrick's Motion for Judgment of Acquittal pursuant to Federal Rule of Criminal Procedure 29 and her Motion for a New Trial pursuant to Federal Rule of Criminal Procedure 33. For the following reasons, Pedrick's Motion for Judgment of Acquittal will be DENIED, and Pedrick's Motion for New Trial will be GRANTED.

Pedrick was tried together with Co-Defendant, Andrew S. Shankman ("Shankman"). The charges against the Defendants stemmed from the operation of Shankman/Davidson Psychiatric Management, Incorporated ("Shankman/Davidson"). Shankman performed psychiatric services, and Thomas Davidson ("Davidson") coordinated the administrative aspects of the firm. Shankman/Davidson employed Pedrick as the chief therapist.

Shankman/Davidson provided psychiatric services to patients who either came to an office of the firm or were in nursing homes. Therapists were employed to travel to nursing homes throughout Florida and Georgia. The main office of Shankman/Davidson, located on St. Simons Island, Georgia, provided each therapist with a daily "flow sheet" of patients to see. The therapist would indicate on the flow sheet which patients they had seen and the therapy rendered. After the therapist finished seeing the patients listed on the sheet, the flow sheets were delivered to the main office to be assigned billing codes.^[1] The employees in the main office were trained in the billing process and were responsible for assigning the billing codes. Medicare and Medicaid payments provided the largest source of revenue for Shankman/Davidson.

The Government investigated the firm for fraudulent claims against government insurance programs, specifically, Medicare, Medicaid, and CHAMPUS.^[2] The Government contended that therapists were seeing patients without the supervision of a licensed psychiatrist, in violation of the insurance programs' requirement that a psychiatrist be present. The Government's allegations of fraudulent claims also were based on the extraordinary number of patients seen each day, improper use of billing codes when making claims to the Government programs, and false entries in patients' records. After investigation, the Government charged Pedrick with conspiracy to commit mail and wire fraud and with the commission of mail and wire fraud.^[3] During the trial, the jury heard testimony from the Defendants,^[4] several of Shankman's former patients, undercover agents, and expert witnesses. After deliberation, the jury returned guilty verdicts against both Shankman and Pedrick on all counts.

*1362 Pedrick now claims that, due to the insufficiency of the evidence presented by the Government at trial on the conspiracy charge, she is entitled to either a judgment of acquittal or a new trial. Pedrick also contends that she is entitled to a new trial because the Government improperly relied upon evidence that she had violated civil regulations. The Government, however, asserts that the weight of the evidence in this case precludes

[1] Billing codes are five digit numbers used by Government programs and insurance companies to describe certain services.

[2] CHAMPUS is the Civilian Health and Medical Program of the Uniformed Services and is designed to provide benefits for individuals with specified relationships with the armed services.

[3] Shankman/Davidson filed its Medicare and Medicaid claims electronically. Shankman/Davidson sent CHAMPUS claims through the United States mail.

[4] Co-Defendants, Thomas Davidson and Michael Davidson, who had previously pled guilty, testified at the trial, as well as both Shankman and Pedrick.