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United States v. Jaber

United States District Court, E.D. Missouri, Eastern Division

September 4, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
GHUFRAN JABER, Defendant.

          MEMORANDUM, ORDER, AND RECOMMENDATIONS OF MAGISTRATE JUDGE

          John M. Bodenhausen, United States Magistrate Judge.

         Defendant Ghufran Jaber is charged in two different Indictments with various forms of health care fraud.[1] Currently before the Court are the following motions filed on behalf of Jaber: (1) motion to dismiss the Indictment in No. 4:18 CR 1018 JAR (ECF No. 61); (2) motion to dismiss the Indictment in No. 4:18 CR 1029 JAR (ECF No. 38); (3) motion for bill of particulars with respect to the Indictment in No. 4:18 CR 1029 JAR (ECF No. 43); (4) motion to suppress statements in both cases (ECF Nos. 62 and 39 respectively). The government opposes each motion. Pretrial matters have been referred to the undersigned United States Magistrate Judge, under 28 U.S.C. § 636(b).

         RELEVANT PRODECURAL BACKGROUND

         Jaber is charged in two separate indictments with crimes which the undersigned will generally refer to as health care fraud. According to the government, Jaber provided home health services to various persons in the Eastern District of Missouri. The essence of the charges is that Jaber submitted false claims for services she did not provide.

         The Indictment in No. 4:18 CR 1018 JAR alleges that a person named Haider Albab[2] received “Personal Care Services and Homemaker Chore Services, … referred to as ‘home health services,' through the Missouri Medicaid Program between February 1, 2013 and September 30, 2018.” (ECF No. 1 at ¶ 6) That Indictment further alleges that, between June 2016 and November 2017, Jaber provided home health services to Albab. Count 1 alleges that Jaber and Albab conspired to defraud a health benefit program (i.e., Missouri Medicaid), in violation of 18 U.S.C. § 1349, by submitting falsified time sheets claiming that Jaber provided services to Albab on dates when Albab was, in fact, out of the United States. Counts 2 and 3 of the Indictment in No. 4:18 CR 1018 JAR allege individual acts of health care fraud, in violation of 18 U.S.C. § 1347, based on the same conspiracy alleged in Count 1. Counts 4 and 5 allege specific instances of false statements Jaber made in relation to a health care program, in violation of 18 U.S.C. § 1035(a)(2), also based on the same conduct alleged in Count 1.

         The Indictment in No. 4:18 CR 1029 JAR is similar in that it alleges that Jaber provided false information in connection with services provided pursuant to the Missouri Medicaid Program. This second Indictment alleges a single scheme to commit health care fraud, in violation of 18 U.S.C. § 1347, with ten specific instances charged in Counts 1-10. The second Indictment alleges that Jaber submitted false claims for home health services regarding the clients listed in each specific count.

         On June 26, 2019, the Court held an evidentiary hearing on Jaber's motions. Jaber was present with Justin Gelfand, her attorney for both cases. The government was represented by AUSA Tracy Berry. Ms. Samira Hicks interpreted the proceedings for Jaber who speaks Arabic. The government presented the testimony of one witness, Julie Pleimann, an investigator with the Special Investigations Unit of the Missouri Department of Health and Senior Services. The government also introduced the following exhibits: [3]

Gov't Exh. 1 Resume of Julie Pleimann, Investigator Gov't Exh. 2 Report of Investigation by Julie Pleimann (partial copy)
Gov't Exh. 4 CD-ROM - Recording of Interview of Ghufran Jaber (initial interview)
Gov't Exh. 5 CD-ROM - Recording of Interview of Ghufran Jaber (continuation of interview)
Gov't Exh. 6 Copy of ID Badge/Credentials of Julie Pleimann

         Defense counsel cross examined Investigator Pleimann extensively and offered one exhibit, namely Def. Exh. A - Report of Investigation of Julie Pleimann (full copy).

         At the conclusion of the hearing, the parties indicated that they would rest on their briefs with respect to Jaber's motions to dismiss the indictments and motion for a bill of particulars. The parties requested leave to file post-hearing memoranda with respect to Jaber's motions to suppress statements. Those memoranda have now been filed.

         Based on the testimony and evidence adduced at the evidentiary hearing, having had the opportunity to observe the demeanor and evaluate the credibility of the witness, having carefully reviewed the exhibits submitted by both parties, and having fully considered the parties' arguments and written submissions, the undersigned makes the following findings of fact, conclusions of law, order, and recommendation.

         FINDINGS OF FACT

         Defendant Ghufran Jaber is originally from Jordan, speaks Arabic, and has limited English-language skills. Jaber also has a limited formal education and purports to be illiterate. According to the government, Jaber worked as a home health care aid in and around the St. Louis area.

         Julie Pleimann was the sole witness at the June 26, 2019, evidentiary hearing. Pleimann is an investigator with the Missouri Department of Health and Senior Services. At all times relevant to the matters currently before the Court, Investigator Pleimann's official title was “Investigator II” and her duties included investigating allegations of abuse and neglect and Medicaid fraud in relation to elderly and disabled persons in Missouri. (See Gov't Exhs. 1, 6)

         Investigator Pleimann testified that, on May 11, 2018, she initiated an investigation of Jaber as a result of a tip made to a hotline in Jefferson City, MO. The tip involved allegations of falsified timesheets. (See Gov't Exh. 5) On June 18, 2018, Investigator Pleimann interviewed Jaber. (See Gov't Exhs. 4, 5) On June 19, 2018, Investigator Pleimann submitted her Report of Investigation. (See Gov't Exh. 5 and Def. Exh. A)

         Investigator Pleimann's June 18th interview of Jaber occurred at the home of Khelood Alyahya. Alyahya was one of Jaber's home health care clients. Investigator Pleimann intended to interview both Alyahya and Jaber; she timed her interview to coincide with a time when she expected Jaber to be present. Prior to the interview, Investigator Pleimann requested the assistance of an Arabic-language interpreter. Investigator Pleimann selected an interpreting service-Bilingual International-and that service provided the interpreter. The interpreter accompanied Investigator Pleimann and interpreted the interviews.[4] When Investigator Pleimann arrived at Alyahya's home, Jaber was not present. Investigator Pleimann interviewed Khelood Alyahya first. That interview was recorded. (See Gov't Exh. 4) After completing that interview, Investigator Pleimann turned off her recorder while waiting for Jaber to arrive.

         When Jaber arrived, Investigator Pleimann re-activated her recorder. Investigator Pleimann told Jaber that she worked for the State of Missouri and that she needed to speak with Jaber. Investigator Pleimann advised Jaber that Pleimann's job was to make sure that Jaber was doing her job. The recording of the interviews indicates that Investigator Pleimann was courteous and cordial for the entire time she interacted with both Alyahya and Jaber. Investigator Pleimann's statements and conduct reflect an effort to avoid offending Alyahya and Jaber. For example, Investigator Pleimann advised each interviewee when she was going to physically approach them to show them documents. The recording also reflects that the interaction was not confrontational. Investigator Pleimann asked Jaber numerous open-ended questions. Investigator Pleimann also prepared documents to show Jaber and explained to Jaber how those documents and circumstances indicated that Jaber had provided false timesheet information. For example, Investigator Pleimann explained that Jaber had provided timesheets indicating she provided services for a client who was in the hospital and, therefore, not home to receive Jaber's services.

         At no time during the interview did Investigator Pleimann advise Jaber of any of the so-called Miranda rights. Investigator Pleimann did not tell that Jaber was free to leave or that Jaber did not have to answer her questions. Investigator Pleimann was not armed, did not display any badge, but her official identification card was likely visible from a lanyard around her neck. (See Gov't Exh. 6) Investigator Pleimann never restrained Jaber's freedom of movement in any way. To the contrary, Jaber was allowed to make a call. Investigator Pleimann did not know the extent of Jaber's education but understood that she had a limited ability to read or write. Investigator Pleimann was not aware that persons from Jordan do not believe that they are free to disregard questions from government officials.

         At one point during the interview, Jaber stated something that the interpreter translated as “I quit.” Investigator Pleimann testified that she did not take Jaber's statement as an indication that she wanted to terminate the interview, but rather as a reference to providing home health services. Having reviewed the recording of that interview, the undersigned credits Investigator Pleimann's testimony regarding the context of Jaber's statement, “I quit.” Shortly after Jaber used the word “quit, ” she also apologized for anything wrong. Later in the interview, Jaber again stated that she quit a prior client and only worked for Khelood Alyahya.

         Investigator Pleimann is not a law enforcement officer with arrest power and she never suggested that Jaber might be arrested. Rather, Investigator Pleimann explained to Jaber what would happen after the interview. This explanation involved administrative matters. For example, Investigator Pleimann explained that she would write a report and send it to Health and Senior Services in Jefferson City, Missouri. Thereafter, authorities would decide what action to take against Jaber. Investigator Pleimann stated that she did not know what would happen, but she believed it likely that Jaber would eventually be banned from providing home health care services. Investigator Pleimann also advised that the agencies Jaber worked for would have to payback any improperly paid funds.

         The Jaber interview continued until Investigator Pleimann completed her questioning and turned off her recorder. As Investigator Pleimann was leaving the residence, Jaber approached her, touched her arm, and indicated that she wished to continue her conversation with Investigator Pleimann. At that point, Investigator Pleimann re-activated her recorder and continued her discussion with Jaber. (See Gov't Exh. 5) After concluding her discussion, Investigator Pleimann left the residence. Jaber was not arrested or restrained in any way.

         On June 19, 2018, one day after interviewing Jaber, Investigator Pleimann submitted her report to an Office of General Counsel with the Missouri Department of Health and Senior Services, and she made a referral to Missouri Medicaid Audit and Compliance. (See Gov't Exh. 2) Investigator Pleimann did not make any direct referral to any criminal law enforcement agency, but her report listed Jaber as a “suspect.” Investigator Pleimann did not become aware of a criminal investigation involving Jaber until sometime in the fall of 2018.

         Additional findings of fact are included in the discussion below.

         DISCUSSION

         I. Motion to Dismiss Indictments

         Jaber moves the Court to dismiss all charges in both Indictments for failure to state an offense. Jaber advances substantially the same argument relative to both Indictments. According to Jaber, even if the Court accepts each of the allegations as true, the Indictments are fatally flawed because Jaber never defrauded, obtained money from or under the control of, or made a false statement to a “health care benefit program.” Rather, according to Jaber, the government merely alleges that Jaber defrauded, obtained money under the control of, or made false statements to her employers, not to the Missouri Medicaid Program. According to Jaber, “it is legally insufficient for the Government to merely infer that Jaber's employers received money from Medicaid and that, therefore, the money the employers subsequently paid Jaber-i.e. her wages-constituted Medicaid funds.” (See No. 4:18 CR 1018 JAR, ECF No. 61 at p. 4)

         The government contends that Jaber's argument is, in essence, a contention that the government cannot prove the elements of the charged offenses. Further, the government argues that none of the charged offenses require a defendant to present false information (e.g., false timesheets) directly to the health care benefit program (in this case, Medicaid), or receive funds directly from that program.

         “An indictment is legally sufficient on its face if it contains all of the essential elements of the offense charged, fairly informs the defendant of the charges against which [she] must defend, and alleges sufficient information to allow a defendant to plead a conviction or acquittal as a bar to a subsequent prosecution.” United States v. Steffan, 687 F.3d 1104, 1109 (8th Cir. 2012) (citations and quotations omitted); see also Hamling v. United States, 418 U.S. 87, 117 (1974). Indictments are not reviewed “in a hyper technical fashion and should be ‘deemed sufficient unless no reasonable construction can be said to charge the offense.'” United States v, O'Hagan, 139 F.3d 641, 651 (8th Cir. 1998) (quoting United States v. Morris, 18 F.3d 562, 568 (8th Cir. 1994)). “Furthermore, ‘[a]n indictment is normally sufficient if its language tracks the statutory language.” United States v. Hayes, 574 F.3d 460, 472 (8th Cir. 2009) (quoting United States v. Sewell, 513 F.3d 820, 821 (8th Cir. 2008)). An indictment is insufficient on its face if a substantive essential element is omitted. See Sewell, ...


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