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September 18, 2017

"Why Did a Federal Judge Sentence a Terminally Ill Mother to 75 Years for Health Care Fraud?"

The question in the title of this post is the headline of this recent law.com article about a notable (and notably harsh) federal sentencing.  Here are some of the details, with some commentary to follow:

A federal judge in Texas sentenced a terminally ill woman to 75 years in prison last month for bilking Medicare — an apparent record sentence for the U.S. Department of Justice for health care fraud.

Marie Neba, 53, of Sugar Land, Texas, was sentenced by U.S. District Judge Melinda Harmon of the Southern District of Texas on eight counts stemming from her role in a $13 million Medicare fraud scheme.  Neba, the owner and director of nursing at a Houston home health agency, was convicted after a two-week jury trial last November.  At the sentencing on Aug. 11, the government recommended a 35-year imprisonment, said Michael Khouri, who started representing Neba as her private attorney shortly after the trial... 

The unusually lengthy sentence for what health care fraud legal experts call a relatively routine case has them scratching their heads, even in this recent era of the federal government’s crackdown on health care fraud.  Neba, the mother of 7-year-old twin sons, was diagnosed in May with stage IV metastatic breast cancer that has spread to her lungs and bones, according to Khouri, who has filed an appeal of the conviction and the sentence.  She currently is receiving chemotherapy treatments and is in custody in a federal detention center.  “Marie Neba is a mother, a wife and a human being who is dying. If there is any defendant that stands before the court that deserves a below-guideline sentence … it’s this woman that stands before you,” Khouri argued before Harmon at the sentencing hearing, according to a transcript recently obtained by ALM....

Patrick Cotter, a former federal prosecutor who heads the government interaction and white-collar practice group at Greensfelder, Hemker & Gale in Chicago, said given the circumstances, he would have expected Neba to receive a sentence of several years in prison.  “Nothing is surprising in that she went to jail and not for six months,” he said. “But how you get anything close to 75 years is beyond me and makes no sense at all.  In 35 years, I have never heard of the government’s [prison term] recommendation being doubled by the judge, particularly when the government is asking for a tough sentence anyway.”

Gejaa Gobena, a litigation partner at Hogan Lovells and former chief of the DOJ Criminal Division’s Health Care Fraud Unit, concurred. “We prosecuted hundreds of cases and never had a sentence approaching anywhere near this,” Gobena said.

Legally, the answer to how the long sentence came about is not that difficult: Harmon, applying several enhancements under the federal sentencing guidelines, imposed the statutory maximum prison term on each charge, and then ran them consecutively.  “I am not a heartless person. I think I am not. I hope I am not,” Harmon told Neba before announcing the sentence. “It must be a terrible experience that you are going through, Ms. Neba, and I don’t want you to think that by sentencing you to what I am going to sentence you to that I’m trying to heap more difficulties on you because I am not. … It’s just the way the system works, the way the law works. You have been found guilty of a number of counts by a jury, and this is what happens.”

Even so, historically, the case is highly unusual, breaking the previous record by 25 years.  Since a pair of U.S. Supreme Court decisions in December 2007 that reaffirmed that the federal sentencing guidelines are merely advisory, federal trial judges have much greater latitude to impose what they think are appropriate sentences, even if the guidelines call for higher or lower sentences.  The longest health care fraud sentence prior to Neba’s came in 2011, when Lawrence Duran, the owner of a Miami-area mental health care company, was sentenced to 50 years for orchestrating a $205 million Medicare scheme that defrauded vulnerable patients with dementia and substance abuse. The next longest? Forty-five years in 2015 for a Detroit doctor who gave chemotherapy to healthy patients, whom federal prosecutors then called the “most egregious fraudster in the history of this country.”

According to court documents, Neba, from 2006 to 2015, conspired with others to defraud Medicare by submitting more than $10 million in false claims for home health services provided through Fiango Home Healthcare Inc., owned by Neba and her husband and co-defendant, Ebong Tilong. Using that money, Neba paid illegal kickbacks to patient recruiters for referrals and to Medicare beneficiaries who allowed Fiango to use their Medicare information to bill for home health services that were not medically necessary nor provided, and, all told, received $13 million in ill-gotten Medicare payments, the documents said.

Neba was convicted of one count of conspiracy to commit health care fraud, three counts of health care fraud, one count of conspiracy to pay and receive health care kickbacks, one count of payment and receipt of health care kickbacks, one count of conspiracy to launder monetary instruments and one count of making health care false statements.

Four co-defendants, including Tilong, have pleaded guilty in the case. He is scheduled to be sentenced on Oct. 13....

Harmon, through her case manager, declined to comment on the case. The transcript, however, reveals several factors that influenced her decision to impose the lengthy prison term, including: “Most importantly,” Neba’s sentencing guideline range of life imprisonment (though Harmon was proscribed by statutory maximums from imposing a life sentence);..... Neba’s attempt to obstruct justice by telling a co-defendant, before arraignment in the federal courthouse, “to keep to her story,” specifically “not to tell anybody that she, [the co-defendant], was paying the patients.”

Neba’s decision to go to trial on the charges, rather than plead guilty and provide some sort of government assistance, also played a role in her sentence. Had she pleaded guilty to one or more of the charges “at the very beginning without obstruction of justice,” and received the highest credit for cooperation for doing so, Neba’s sentencing guideline range would have been 14.5 years, federal prosecutor William Chang told Harmon during the hearing. “Had the same thing happened and she received no [credit] whatsoever, it would be 21.8 years,” he added. “If she had gone to trial and been convicted, but no obstruction of justice, the sentence would have been 30 years on the calculation of the guidelines. So, we want the court to understand the United States’ principal position for what it seeks.”

Khouri, Neba’s attorney, said he plans to challenge on appeal the manner in which the sentencing guideline range was calculated and argue, among other matters, that the sentence is excessive.

I have quoted so much of this press report because the more details it provides, the more perverse the entire federal sentencing system seems along with the perversity of this particularly extreme sentence. For starters, though we supposedly have a federal sentencing system designed to sentence a defendant based principally on the seriousness of her offense, this defendant's guideline range ballooned from less than 15 years imprisonment to life imprisonment essentially because she put the government to its burden of proof at a trial and said the wrong thing to a co-defendant.

Trial penalty guideline calculations notwithstanding, now that the guidelines are advisory, a prosecutor and a judge would need to be able to justify such an extreme functional LWOP sentence based on all the 3553(a) statutory factors. No matter how seriously one regards health care fraud, I cannot fully understand how any of these factors (save the guideline range) can support this extreme sentence in this not-so-extreme case of fraud.  If reasonableness review has any substance whatsoever, and if the facts in this article are accurate, it seems to me that this sentence ought to be found substantive unreasonable.

September 18, 2017 at 08:35 PM | Permalink

Comments

"Deputy Attorney General Rod J. Rosenstein Delivers a Constitution Day Address"

Prosecutorial discretion is the major theme.

"Prosecutors have broad authority to decide what crimes to investigate, which people to prosecute, and what charges to file."

https://www.justice.gov/opa/speech/deputy-attorney-general-rod-j-rosenstein-delivers-constitution-day-address

Posted by: Joe | Sep 18, 2017 9:30:27 PM

The judge appears to have imposed the statutory maximum for each of the eight counts of conviction, with all of them running consecutively to each other.

Glancing at the sentencing transcript, the district court adopted the PSR's Guidelines calculation, which called for a life sentence (total offense level of 43, and a criminal history category of I). This shows the absurdity of the current fraud guideline, which focuses excessively on loss amount. Under the law of the Fifth Circuit (assuming no errors in the Guidelines calculation), this within-Guidelines sentence is "presumptively reasonable." While this presumption of reasonableness is theoretically rebutable, I'd be curious to know if any defendant has ever actually rebutted it in the Fifth. I doubt it.

The saddest part is that the defendant may well die before the appellate process concludes, given her late-stage cancer. This would actually be boon for her surviving family, since a defendant's death during the appellate process abates ab initio the entire criminal proceeding, and would thus vacate the $13,000,000+ forfeiture money judgment (likely imposed in violation of the Excessive Fines Clause and contrary to Honeycutt) as well as the separate $13,000,000+ restitution order.

Posted by: Anon | Sep 18, 2017 9:30:46 PM

As to the main article, the judge's attempt to wash his hands of blame is not totally convincing given the guidelines are merely advisory. If she does die, to be blunt about that, even a relatively reasonable sentence might mean the appeals process would be outstanding before she does. A small solace for her personally, perhaps, since there are children involved. Less ideal for the public good generally.

Posted by: Joe | Sep 18, 2017 9:52:09 PM

I'm sorry but a fraud of this magnitude is fully deserving of execution, given that outcome is barred a functional life sentence is a more than appropriate substitute.

Posted by: Soronel Haetir | Sep 18, 2017 9:55:38 PM

She should receive the Italian death penalty, her crime causing damages exceeding the value of a human life.

In addition, the tax payer may end up spending $million for her health care. Whatever insurance covers her, it is cancelled. All costs are to the prison.

Posted by: David Behar | Sep 18, 2017 10:58:38 PM

Perhaps, the defendant will use her skills to help the prison get her expensive health care without paying for it.

Posted by: David Behar | Sep 18, 2017 11:30:25 PM

And if she's still alive when the appellate process runs (assuming the sentence stands at anything more than a functional life sentence) I would say she is no longer entitled to life-extending treatment, only hospice type pain relief.

Posted by: Soronel Haetir | Sep 19, 2017 12:49:56 AM

https://goo.gl/VL17PN
read

Posted by: Naomi | Sep 19, 2017 6:03:56 AM

If she's terminally ill, then the sentence is like one of those 1000 year sentences I think you used to see in Oklahoma. In any event, Doug, I am curious why you think that the "functionality" of this sentence matters all that much? If the fact that this is a "functional LWOP sentence" has a big impact on what the sentence should be, then the necessary implications of that view far-ranging.

The sentence seems extreme to me when compared to others--but I don't have a problem with it. (By the way, the bogus chemo guy should have gotten the death penalty.) I don't know why the judge didn't just give her the guidelines sentence and be done with it given, as a practical matter, she ain't serving 75 years.

Posted by: federalist | Sep 19, 2017 11:38:18 AM

should say "are far-ranging"

Posted by: federalist | Sep 19, 2017 11:38:45 AM

Various times there is a symbolic quality to these sentences -- many times, it is not likely or even possible for the person to serve the sentence applied. There is a theoretical chance in various cases that one or more of the sentences will drop away because of problems with the convictions etc. But, it often seems largely symbolic, to underline the breadth of the crimes.

Posted by: Joe | Sep 19, 2017 12:21:17 PM

Federalist,

As I understand it her guideline recommendation was for life but the statutory max was 20 years. The judge ran the sentences consecutively in order to approximate a life sentence.

Posted by: Soronel Haetir | Sep 19, 2017 12:42:54 PM

Federalist,

This was a within-Guidelines sentence (at least assuming the PSR was correct in its Guidelines calculation). The Guidelines called for life, which exceed the statutory maximums of every count of conviction, which varied from 5-20 years. So the judge imposed consecutive statutory maximum sentences on each count, which came to 75 years.

Because the sentence is within the Guidelines range, appellate substantive reasonableness review will essentially be a rubber stamp. And under Harmelin v. Michigan and Lockyer v. Adrade, Eighth Amendment proportionality review in the non-capital context is largely a dead letter.

Posted by: Anon | Sep 19, 2017 2:03:45 PM

Going back to the opening post:

"this defendant's guideline range ballooned from less than 15 years imprisonment to life imprisonment essentially because she put the government to its burden of proof at a trial and said the wrong thing to a co-defendant"

The wrong thing? That's one way to put it. Going by the summary provided (as usual, I'm somewhat wary about doing so alone, but will for the sake of a rough sense of things), the "wrong thing" happened to "obstruct justice." Yes, this can be verbal. The summary noted "no cooperation" might lose you about seven years. But, she didn't merely not cooperate. She obstructed. This to me essentially warrants losing some years.

My first link provides examples of what happens with you don't plea, but without going, we are talking over 20 years now. For someone who might not last a fraction of that. But, anyway, the legitimacy of encouraging plea bargain by this point is accepted. So, again, we are talking, what, approaching thirty years?

That does sound like enough, so the jump to 75 is a bit absurd, but we aren't talking a twenty year old here who very well might get out at 50. We are talking a middle aged woman with cancer. So, the sentence to me is largely symbolic. There is a certain gratuitous nature to it, and that has emotional appeal, but push come to shove, just how much does it mean in this case?

OTOH, it can serve as a precedent, and the principles defended can help a defendant where it might matter more. As to the 8th Amendment claim, Prof. Berman has pushed for more teeth there, but for now, the Supreme Court simply does not apply that to non-capital / offenses by minors. A case where she would get 30 years anyway does not seem such a blatant case where the Supreme Court would intervene.

So, the best hope there is non-8A arguments, such as reasonableness review or in some other case the breadth of a statute or vagueness or whatever. Which has been at times successful.

Posted by: Joe | Sep 19, 2017 2:35:39 PM

"Italian death penalty"
Disgusting as Always.

Posted by: Claudio Giusti | Sep 20, 2017 11:13:42 AM

I found most notable the quoted comments from judge to defendant, where the judge is wringing her hands about whether she (herself) is a good person, or perhaps too vengeful or harsh. But then she took the easy way out, and told the defendant the law made her do it, as if she slept through the training on advisory guidelines. Instead of hiding behind the guidelines, she should have acknowledged how much excitement and holy pleasure it gave her to unleash and unload and rain down upon the miserable defendant. Double the government recommendation? What a rush!

Posted by: iggybosh | Sep 24, 2017 7:22:38 AM

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