     14-3170-cr
     United States v. Seitz

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 15th day of January, two thousand sixteen.
 5
 6       PRESENT: AMALYA L. KEARSE,
 7                DENNIS JACOBS,
 8                CHESTER J. STRAUB,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               14-3170-cr
16
17       JAY SEITZ,
18                Defendant-Appellant.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        ERIC M. CREIZMAN, Creizman PLLC,
22                                             New York, NY.
23
24       FOR APPELLEE:                         BRIAN R. BLAIS (Kristy J.
25                                             Greenberg, Michael A. Levy, on
26                                             the brief), for Preet Bharara,
27                                             United States Attorney for the
28                                             Southern District of New York,
29                                             New York, NY.

                                                  1
 1        Appeal from a judgment of the United States District
 2   Court for the Southern District of New York (Stein, J.).
 3
 4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 5   AND DECREED that the judgment of the district court be
 6   AFFIRMED.
 7
 8        Jay Seitz appeals from the judgment of the United
 9   States District Court for the Southern District of New York
10   (Stein, J.) convicting him of (i) mail fraud, (ii) health
11   care fraud, and (iii) conspiracy to commit mail and health
12   care fraud. Seitz was sentenced chiefly to 24 months’
13   imprisonment. Seitz challenges the sufficiency of the
14   evidence underlying his convictions and argues that the
15   government elicited testimony that deprived him of a fair
16   trial. We assume the parties’ familiarity with the
17   underlying facts, the procedural history, and the issues
18   presented for review.
19
20        1. A defendant challenging the sufficiency of the
21   evidence underlying his conviction at trial “bears a heavy
22   burden” because our standard of review is “exceedingly
23   deferential”: we “must view the evidence in the light most
24   favorable to the government, crediting every inference that
25   could have been drawn in the government’s favor,” and we
26   will uphold the judgment if “any rational trier of fact
27   could have found the essential elements of the crime beyond
28   a reasonable doubt.” United States v. Coplan, 703 F.3d 46,
29   62 (2d Cir. 2012) (internal quotation marks omitted).
30
31        The evidence establishes that Seitz knew or consciously
32   avoided knowing that (i) the claims falsely represented that
33   he actually performed the specified treatments, (ii) he was
34   not permitted to bill for treatment done by unlicensed
35   social workers, and (iii) the claims included medically
36   unnecessary or fabricated treatments. Seitz signed numerous
37   claims forms, each of which (falsely) represented that Seitz
38   was the “treating provider” and (falsely) represented that
39   the treatment was done by a psychologist, rather than a
40   social worker. Not only were these representations false,
41   they also concealed that unlicensed social workers were
42   performing the actual treatments. Seitz also signed
43   treatment notes that were merely fill-in-the-blank templates
44   that often produced inconsistent or inaccurate results.

                                  2
 1   Once insurance companies began rejecting his original
 2   company’s claims, Seitz formed a new company, that was
 3   identical in its personnel and practices but with a
 4   different name, for the submission of claims. Finally,
 5   Seitz received enormous amounts of money for doing what
 6   amounted to very litte work. The jury had a more than
 7   adequate basis for concluding that Seitz intended to commit
 8   fraud, knew he was committing fraud, and had conspired to
 9   commit fraud.
10
11        2. To succeed on a claim of prosecutorial misconduct
12   based on conduct at trial, a defendant must show that the
13   prosecutor’s conduct caused “substantial prejudice” such
14   that the defendant was deprived of a fair trial. United
15   States v. Tocco, 135 F.3d 116, 130 (2d Cir. 1998); see also
16   United States v. Locascio, 6 F.3d 924, 945-46 (2d Cir.
17   1993). To assess whether substantial prejudice exists, we
18   weigh “the severity of the misconduct, the measures adopted
19   to cure [it], and the certainty of conviction absent the
20   misconduct.” United States v. Elias, 285 F.3d 183, 190 (2d
21   Cir. 2002).
22
23        Seitz fails to identify any prosecutorial misconduct,
24   let alone misconduct that substantially prejudiced him at
25   trial. Seitz points to an alleged mixup by the insurance
26   company investigator as to whether the billing was done by
27   Seitz, personally, or his professional corporation, Jay
28   Psychological. But this distinction was trivial. The
29   witness testified that she was investigating both “Dr. Jay
30   Seitz” and “Jay Psychological, PC.” Seitz also complains of
31   testimony the government elicited from the insurance company
32   investigator identifying Seitz’s signature. But whatever
33   ambiguity existed as to the insurance company investigator’s
34   identification of a signature being similar to other
35   signatures, purportedly of Seitz, was clarified by the
36   district court and by defense counsel’s cross-examination.
37   In any event, this alleged misconduct likewise concerns a
38   minor matter; other witnesses testified at trial that they
39   had personally seen Seitz sign his corporations’ bills and
40   treatment notes.
41
42




                                  3
1        Accordingly, and finding no merit in Seitz’s other
2   arguments, we hereby AFFIRM the judgment of the district
3   court.
4
5                              FOR THE COURT:
6                              CATHERINE O’HAGAN WOLFE, CLERK
7




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