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United States v. Poimboeuf

United States District Court, W.D. Louisiana, Shreveport Division

October 10, 2019





         Before the Court is a Motion to Dismiss Superseding Indictment (Record Document 78) filed by Defendant Robert C. Poimboeuf and Defendant Donna G. Poimboeuf (“the Poimboeufs” or “the Defendants”). The Poimboeufs move the Court to dismiss the Superseding Indictment for ongoing violations of their constitutional rights guaranteed by the Fifth and Sixth Amendments. See id. More specifically, the Poimboeufs contend “dismissal of the Superseding Indictment is necessary because the United States, acting through the Secretary of Health and Human Services and the Secretary's Medicare Administrative Contractor, Novitas Solutions, Inc., unlawfully seized prior to [I]ndictment more than $4.1 million dollars from the Defendants and has refused to return the money desperately needed by the Poimboeufs to secure counsel of their choice and to permit their attorneys to prepare and present the Poimboeufs' defense to the criminal charges in the Superseding Indictment.” Id. at 1-2. The Government has opposed the motion on multiple grounds. See Record Document 80. For the reasons set forth below, Defendants' Motion to Dismiss Superseding Indictment (Record Document 78) is DENIED.


         The Poimboeufs have been charged in a Superseding Indictment with one count of conspiracy to defraud the United States and five counts of making false statements on income tax returns. See Record Document 29. The Superseding Indictment alleges that as part of the manner and means used to accomplish the object of the conspiracy, the Poimboeufs “withheld financial information from Accounting Firms A and B so that revenue earned by D&G [Holdings, LLC] would not be reported on their tax returns. The information withheld included bank account information and Forms 1099 issued to D&G by its customers.” Id. at 3.[1]

         The Defendants refer extensively in the instant motion to an opinion issued on July 2, 2019 by the United States Court of Appeals for the Fifth Circuit. See D&G Holdings, L.L.C. v. Azar, 776 Fed.App'x 845 (5th Cir. 2019). Key portions of the Fifth Circuit's opinion are set forth below:

The parties have asked us to decide a jurisdictional question regarding a claim for repayment of Medicare benefits wrongly recouped by a Medicare Administrative Contractor (“MAC”).
D&G Holdings, LLC, is a Medicare supplier that provides lab services to nursing homes and other homebound people in Louisiana. In 2011, a Medicare Zone Program Integrity Contractor (“ZPIC”) audited D&G's Medicare claims. Three years later, the ZPIC concluded that D&G had overbilled the Medicare program and had consequently received $8.3 million in excess Medicare reimbursements. Novitas Solutions, Inc., the MAC for Louisiana, relied on the ZPIC's finding and instructed D&G to refund the full amount. D&G challenged Novitas's overpayment determination through the harrowing labyrinth of Medicare appeals.
For over three years, D&G slogged through this administrative morass. It emerged victorious: [In 2017, ] [t]he Council overturned the overpayment determination. When an overpayment determination is overturned, the money recouped from a Medicare provider during the administrative-appeals process must be returned. 42 U.S.C. § 1395ddd(f)(2)(B). D&G has waited for this repayment. It has never come.
So D&G resorted to the federal courts. It sued the Secretary of the Department of Health and Human Services (“Secretary”), invoking the district court's jurisdiction under § 405(g). D&G alleged that the Secretary must return the recouped money under § 1395ddd(f)(2)(B). D&G further alleged that the total amount recouped-and the amount it was therefore owed under § 1395ddd(f)(2)(B)-was $4.1 million, plus interest. On the same day D&G filed its complaint, Novitas without explanation made a single $1.8 million payment to D&G.
The district court dismissed D&G's complaint for lack of subject matter jurisdiction under § 405(g). This appeal followed. D&G asks us to find jurisdiction under § 405(g) or, in the alternative, allow it to add a mandamus claim to its complaint.

Id. at *1-2 (emphasis added). The Fifth Circuit ultimately vacated the district court's judgment and remanded the case for reconsideration of the jurisdictional issue in light of In re Benjamin, 924 F.3d 180 (5th Cir. 2019). See id. The Fifth Circuit did not “address the correctness of the district court's July 27, 2018 opinion, ” except for one aspect. Id. The Fifth Circuit stated that the district court's characterization of Novitas's decision to issue D&G a check for $1.8 million as an initial determination under Medicare Act was wrong. See id. Later, the Fifth Circuit granted the United States' motion for an extension of time to file a petition for rehearing until October 16, 2019. See Record Document 33 in D&G Holdings, LLC v. Alex M. Azar, II, Secretary of the U.S. Dep't of Health and Human Servs., Civil Action No. 17-1045 (Western District of Louisiana). To date, the civil matter remains at the Fifth Circuit.

         Relying upon the facts set forth above in relation to D&G's claim for repayment of Medicare benefits wrongly recouped by a MAC, the Defendants argue the United States Attorney's Office for the Western District of Louisiana “chose to seek the Indictment and Superseding Indictment in this case while knowing that the government was also engaged in the pre-trial restraint of the Poimboeufs' innocent money (e.g., the approximately $3 million dollars of untainted funds that must be returned to them).” Record Document 78 at 5. The Defendants contend “the government cannot, consistent with the Fifth and Sixth Amendments . . ., restrain ‘innocent' money needed for the Poimboeufs' defense and simultaneously pursue criminal charges against them.” Id. at 5-6.

         LAW ...

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