United States v. Mathieu

U
19-4238 (L)
United States v. Mathieu

                       UNITED STATES COURT OF APPEALS
                           FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order
filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

         At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 5th day of May, two thousand twenty-one.


         PRESENT:          Guido Calabresi,
                           Barrington D. Parker,
                           Steven J. Menashi,
                                  Circuit Judges.
____________________________________________

United States of America,

                 Appellee,

           v.                                             Nos. 19-4238 (L), 20-480 (Con)

Paul J. Mathieu,

                 Defendant-Appellant. *
____________________________________________



*   The Clerk of Court is directed to amend the caption as set forth above.
For Appellee:                           DAVID RAYMOND LEWIS, Assistant United
                                        States Attorney (Stephen J. Ritchin, Timothy
                                        V. Capozzi, Thomas McKay, Assistant
                                        United States Attorneys, on the brief), for
                                        Audrey Strauss, United States Attorney for
                                        the Southern District of New York, New
                                        York, NY.


For Defendant-Appellant:                JOSEPH W. MARTINI, Spears Manning &
                                        Martini, LLC, Southport, CT.



      Appeal from a judgment of the United States District Court for the Southern

District of New York (Schofield, J.).

      Upon due consideration, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court is AFFIRMED.


      Defendant-Appellant Paul J. Mathieu appeals from a judgment of

conviction entered on December 12, 2019, following a six-week trial. On appeal he

argues that his judgment should be reversed, or that he be granted a new trial,

because of multiple instances of prosecutorial misconduct at trial, erroneously

admitted evidence at trial, and insufficient evidence at trial to establish his

knowledge and intent. He also argues that the district court’s forfeiture order


                                          2
should be vacated in part because he did not exercise sufficient control over certain

categories of the money judgment to justify forfeiture over those amounts. We

disagree and AFFIRM the district court’s judgment in full. We assume the parties’

familiarity with the underlying facts, the procedural history of the case, and the

issues on appeal.

                                          I

      Mathieu, a board-certified physician, organized a large healthcare scheme

that defrauded the federal Medicare and New York State Medicaid programs of

tens of millions of dollars. Mathieu established clinics that he unlawfully operated

with his co-conspirator, Aleksandr Burman, who was not a licensed medical

professional and who could not own a medical professional corporation under

New York law. In addition to representing himself as the owner of the clinics,

Mathieu signed prescriptions and superbills for medically unnecessary adult

incontinence diapers for patients he never examined.

      At trial, the government presented evidence of the fraudulent scheme,

including testimony from cooperating witnesses confirming that they prepared

the fraudulent patient charts, superbills, and prescriptions that Mathieu signed in

furtherance of the scheme; stacks of fabricated prescriptions signed by Mathieu;

                                         3
and checks from Burman’s medical supply company signed by Burman to

Mathieu with the dates on the checks corresponding to the dates of the fabricated

prescriptions. The government also introduced a letter from the Office of the

Medicaid Inspector General (the “OMIG letter”) which notified Mathieu that he

was the top-ranked prescriber of adult diapers based on Medicaid claims data that

compared his claims with that of other health care providers in New York (the

“Peer Comparison Evidence”). Evidence at trial also showed that Mathieu

maintained two bank accounts at Citibank and TD Bank from which Mathieu

distributed proceeds of the scheme and into which Medicare deposited funds at

Mathieu’s direction.

      After a six-week jury trial, the jury found Mathieu guilty of conspiracy to

commit health care fraud, mail fraud and wire fraud, conspiracy to make false

statements relating to health care matters, and the substantive crimes of health care

fraud, mail fraud, and wire fraud. 1




1 Co-defendant Hatem Behiry was also found guilty on all five counts of the indictment.
Seven other co-defendants pleaded guilty before trial. Aleksandr Burman also pleaded
guilty to participating in the same conspiracy and health care fraud scheme, in United
States v. Burman, No. 16-CR-190 (S.D.N.Y.).

                                          4
                                          II

      Mathieu argues that a new trial is warranted pursuant to Federal Rule of

Criminal Procedure Rule 33 because the government engaged in multiple

instances of prosecutorial misconduct at trial. Mathieu first argues that the

prosecution improperly asked him to opine on the credibility of other witnesses

by asking Mathieu during cross-examination if he thought the testimony of the

government’s cooperating witnesses was “true,” “untrue,” “false,” “all false,”

“completely wrong,” “wrong” or “mistaken.” Trial Tr. 2749-61, 2763-64, 2769,

2828. Mathieu contends that the government compounded these errors at

summation by characterizing Mathieu’s testimony as “lies,” “absurd lies,” an

“imaginary story, “this lie,” and a “crazy” and “ridiculous story.” Trial Tr. 3265,

3309-12. This argument fails.


      The district court did not abuse its discretion by denying Mathieu’s motion

for a new trial on the basis of prosecutorial misconduct. See United States v. Forbes,

790 F.3d 403

, 406 (2d Cir. 2015) (reviewing a district court’s denial of a Rule 33

motion for a new trial for abuse of discretion). First, Mathieu is unable to show

that the prosecution’s questions during cross-examination were improper. We

have distinguished between cross-examination questions that compel a defendant

                                          5
to characterize a government witness as a liar—which are improper—and those

that compel a defendant merely to characterize a government witness’s testimony

as mistaken. See United States v. Gaind, 

31 F.3d 73

, 77 (2d Cir. 1994) (“[T]here is a

significant difference between these formulations. Asking a witness whether a

previous witness who gave conflicting testimony is ‘mistaken’ highlights the

objective conflict without requiring the witness to condemn the prior witness as a

purveyor of deliberate falsehood, i.e., a ‘liar.’”). The prosecution’s questions here

fall on the proper side of the line. 2

       Mathieu’s argument that the government compounded the problem at

summation similarly falls short. Given the volume of evidence introduced at trial

by the government against Mathieu, the prosecution’s statements, “when viewed


2 We need not decide whether United States v. Richter, 

826 F.2d 206

(2d Cir. 1987), applies
to cases, such as this one, involving cooperating witnesses. In Richter we held that
prosecutorial statements asking the jury to contrast the defendant’s credibility with that
of the government’s witness who was a law enforcement agent was prejudicial error
because the jury may perceive law enforcement agents to be truthful.

Id. at 208-10.

Mathieu argues the same logic applies to government cooperators. But here, the
cooperators were participants in the charged criminal activity, and it is unclear why the
jury would be likely to presume their truthfulness. Indeed, the district court instructed
the jury that it could consider the “fact that a witness is an accomplice … as bearing upon
her credibility” but cautioned against assuming “that simply because a person has
admitted participating in one or more crimes, she is incapable of telling the truth about
what happened.” App’x 157. This instruction would have been unnecessary if the jury
were inclined to regard the government cooperators as highly credible.

                                            6
against the entire argument to the jury, and in the context of the entire trial,” were

not “so severe and significant as to have substantially prejudiced [Mathieu],

depriving him of a fair trial.” United States v. Farhane, 

634 F.3d 127

, 167 (2d Cir.

2011) (internal quotation marks omitted). We are reinforced in this conclusion

because (1) the charges against Mathieu required the jury to evaluate his

credibility; (2) Mathieu’s statements that he did not commit the crimes with which

he was charged and that he did not take the actions that the government witnesses

described put his credibility at issue; and (3) Mathieu himself questioned the

credibility of the government witnesses, calling their testimony “remarkably

incredible,” “rehearsed testimony,” “so rehearsed and so predictable,” “[s]imply

incredible claims,” a “stunning example of rehearsed testimony,” “incredible,”

and “simply incredible,” and suggesting that the witnesses “have an incredible

motive to lie.” Trial Tr. at 3338, 3339, 3347, 3351, 3348.


      In any event, any errors arising from the challenged statements were

harmless. Mathieu’s own testimony at trial showed that he knowingly and

willfully misrepresented to Medicare and Medicaid that he was the owner of

clinics that his co-defendant Burman owned and controlled. The government also

offered, among other evidence, (1) witness testimony that Mathieu signed charts

                                           7
and prescriptions based on a list provided by Universal Supply Depot (“USD”), a

medical supply company operated by Burman and his wife, which Mathieu faxed

to the clinics without Mathieu’s seeing or examining the patients listed; (2) stacks

of prescriptions from the days Mathieu did not see patients and which Mathieu

admitted at trial that he had signed; (3) cell site evidence that placed Mathieu in

South Brooklyn, where the clinics were located, for a few hours on days and at

times when the clinics were closed to patients; (4) checks from USD signed by

Burman to Mathieu with the dates on the checks corresponding to the dates of the

signed prescriptions; and (5) witness testimony that Burman and Mathieu met

more than 10 times to discuss prescriptions and that Burman emerged from those

meetings with signed prescriptions that Burman asked to be delivered to USD.

Given the volume of this evidence at trial and the strength of the government’s

case against Mathieu, any error stemming from the prosecution’s questions and

statements about truthfulness did not alter the verdict. See United States v. McGinn,

787 F.3d 116

, 127 (2d Cir. 2015).

                                         III


      The district court also did not abuse its discretion by admitting the OMIG

letter that notified Mathieu that he was the top-ranked prescriber of adult diapers

                                         8
as well as the related peer comparison evidence that compared Mathieu’s claims

data with other health care providers in New York. Evidence of disproportionately

high billing and prescription of adult diapers in comparison to other providers

tends to prove the fraudulent scheme, and the district court did not err in so

concluding.


      Moreover, the OMIG letter was probative of Mathieu’s knowledge of and

intent to further the fraudulent scheme. Mathieu reiterates his argument that he

did not receive the OMIG Letter—because it was sent to the wrong address—and

therefore the letter cannot show his knowledge of the fraudulent scheme. Yet the

district court acknowledged that the OMIG Letter was admissible as proof of

Mathieu’s knowledge and intent only because the government proffered

witnesses who testified that the mail was forwarded to Mathieu’s correct address.

The district court acted within its discretion to conclude that the circumstances

surrounding Mathieu’s receipt of the OMIG Letter presented a question of fact for

the jury and that the defense could (and did) seek to undermine the credibility of

the government’s witnesses and otherwise present Mathieu’s version of the facts.




                                        9
      Reviewing the district court’s ruling under the “highly deferential

standard” we apply to evidentiary rulings under Rule 403, we conclude that it was

not erroneous to admit the peer comparison evidence or the OMIG Letter. United

States v. Coppola, 

671 F.3d 220

, 244 (2d Cir. 2012).

                                           IV

      Finally, Mathieu argues that the district court’s forfeiture order should be

vacated in part because he did not exercise sufficient control over two collections

of checks that Mathieu signed: one from the Citibank account and the other from

the TD Bank account. “On appeal from a forfeiture order, we review the district

court’s legal conclusions de novo and its factual findings for clear error.” United

States v. Annabi, 

746 F.3d 83

, 85 (2d Cir. 2014).


      When forfeiture is sought in the form of a personal money judgment, the

district court “must determine the amount of money that the defendant will be

ordered to pay.” Fed. R. Crim. P. 32.2(b)(l)(A). Under Rule 32.2, “the court may

determine whether a property is subject to forfeiture ‘based on evidence already

in the record,’ Fed. R. Crim. P. 32.2(b)(l)(B), including testimony at the earlier

trial.” United States v. Sabhnani, 

599 F.3d 215

, 262 (2d Cir. 2010). “District courts are

afforded broad discretion in calculating illicit gains based on the circumstances of

                                           10
a case.” United States v. Walters, 

910 F.3d 11

, 32 (2d Cir. 2018). “The calculation of

forfeiture amounts is not an exact science,” and therefore district courts “need only

make a reasonable estimate of the loss, given the available information.” United

States v. Treacy, 

639 F.3d 32

, 48 (2d Cir. 2011). The district court may “make

reasonable extrapolations from the evidence established by a preponderance of the

evidence at the sentencing proceeding.”

Id.

The district court

did not err in ordering forfeiture in the amount of

$760,539, calculated in part from the disputed checks signed by Mathieu from two

separate bank accounts that he controlled. The district court made several findings

based on the evidence introduced at trial. The district court considered and

rejected Mathieu’s argument that only his co-conspirators controlled and

distributed funds from both accounts. First, the district court rejected Mathieu’s

testimony that he “rarely looked” at the Citibank account because, the district

court explained, Mathieu was the “sole signatory” for the account, Mathieu had

deposited more than ninety checks into the account, and Medicare deposited

funds into this account at Mathieu’s direction. Special App’x 79-80.

      The district court also considered and rejected Mathieu’s argument he was

unaware of activity in the TD Bank Account because he had signed ninety blank

                                         11
checks from that account in “one sitting” without knowing how the checks would

be addressed. The district court was unpersuaded because—among the ninety

checks signed by Mathieu—there were interspersed checks signed by Burman,

indicating that the checks could not have been signed in one sitting. The district

court rejected Mathieu’s “insufficient control” argument for the additional reasons

that Mathieu was a co-signatory on the TD Bank Account, he signed Medicare and

Medicaid enrollment documents in which he claimed to be the owner of the Ocean

View clinic for which the account was established, Medicare deposited funds into

the account at Mathieu’s direction, and at trial, he testified to signing eighty-seven

checks from the account.

      Accordingly, the evidence established that Mathieu had sufficient control

over the assets in both challenged accounts. For that reason, the district court’s

determination of forfeiture was not erroneous. 3




3 Mathieu’s reliance on Honeycutt v. United States, 

137 S. Ct. 1626

(2017), in which the
Court held that the defendant, who managed sales and inventory for a hardware store
owned by his brother, did not acquire or control any of the criminal proceeds beyond his
own salary

, id. at 1635,

is unavailing. Unlike the circumstances in Honeycutt, Mathieu was
a signatory on the disputed accounts (and even the sole signatory on the Citibank account)
from which he distributed fraud proceeds and into which he deposited fraud proceeds
and directed Medicare to deposit funds.

                                           12
                                  *     *     *

         We have considered Mathieu’s remaining arguments, including his

challenge to the sufficiency of the evidence. We conclude that those arguments are

without merit. For the foregoing reasons, we AFFIRM the judgment of the district

court.

                                      FOR THE COURT:
                                      Catherine O’Hagan Wolfe, Clerk of Court




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