                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-6-2008

USA v. Bell
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4648




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"USA v. Bell" (2008). 2008 Decisions. Paper 1049.
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                                                   NOT PRECEDENTIAL
                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                   No. 06-4648/4649
                                    _____________

                          UNITED STATES OF AMERICA

                                            v.

                                   MARTHA BELL,
                                          Appellant in No. 06-4648

             ATRIUM I NURSING AND REHABILITATION CENTER,
                                     Appellant in No. 06-4649.
                            _______________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                                 (D.C. No. 04-cr-0212)
                    District Judge: Honorable Terrence F. McVerry
                                   _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   June 3, 2008

                     Before: FISHER, JORDAN, Circuit Judges,
                            and YOHN*, District Judge.

                                  Filed June 6, 2008
                                  _______________

                              OPINION OF THE COURT
                                  _______________

_______________
  *Honorable William H. Yohn, Jr., Senior Judge, United States District Court for the
Eastern District of Pennsylvania, sitting by designation.
JORDAN, Circuit Judge.

          Martha Bell appeals from the October 31, 2006 judgment of conviction entered by

the United States District Court for the Western District of Pennsylvania, after a jury

found her guilty of health care fraud, in violation of 18 U.S.C. § 1347, and making false

statements relating to health care matters, in violation of 18 U.S.C. § 1035(a)(2). We will

affirm.

I.        Background

          On August 24, 2004, an eleven count indictment was filed against Atrium I

Nursing and Rehabilitation Center (“Atrium”) and its operator, Bell, charging them with

one count of health care fraud (Count 1) and ten counts of false statements relating to

health care matters (Counts 2 through 11). United States v. Bell, No. 04-212, 2006 WL

952214, at *1 (W.D. Pa. Apr. 12, 2006) (“Bell I”). A jury trial began on July 19, 2005,

and on August 24, 2005, the jury “rendered a unanimous verdict as to each defendant.”

Id. Bell was found guilty on Counts 1-6, 8, 10, and 11, and Atrium was found guilty on

all counts. Id. On November 18, 2005, the District Court denied Atrium’s and Bell’s

motions for judgment of acquittal, and, on April 12, 2006, denied their motions for

reconsideration of the November 18th decision. Id. at *2. On May 16, 2006, the Court

denied Atrium’s and Bell’s motions for a new trial based on the government’s alleged

violations of Brady v. Maryland, 373 U.S. 83 (1963). U.S. v. Bell, No. 04-212, 2006 WL

1330200, at *1 (W.D. Pa. May 16, 2006) (“Bell II”).



                                              2
       On October 27, 2006, Atrium was sentenced to five years probation and a fine of

$490,000. Bell was sentenced to sixty months of incarceration followed by a term of

supervised release of three years and a fine of $50,000. The Court entered the judgments

of conviction and sentence on October 31, 2006. This appeal followed.1

II.    Discussion 2

       Bell argues that there was insufficient evidence presented at trial to convict her of

health care fraud. She also challenges the sufficiency of the evidence as to her conviction

for making false statements relating to health care matters as set forth in Count 3 of the

indictment. Finally, Bell argues that the District Court erred in failing to grant her motion

for a new trial based on the government’s alleged failure to comply with its disclosure

obligations under Brady.



  1
    Atrium was dissolved by a December 26, 2007 Order of the Court of Common Pleas
of Allegheny County, Pennsylvania. On January 9, 2008, that Court appointed Robert B.
Stein, Esquire, as Atrium’s receiver. Atrium had filed an appeal but, by letter dated May
9, 2008, Mr. Stein stated on Atrium’s behalf that, “the appeal in [this case] is to be
withdrawn.” We therefore treat Atrium’s appeal as abandoned and address only Bell’s
arguments.
  2
    The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291. We review challenges to the sufficiency of the
evidence “in the light most favorable to the government, and will sustain the verdict if
any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” United States v. Hodge, 321 F.3d 429, 439 (3d Cir. 2003) (citation
omitted). When a motion for a new trial is based on a Brady claim, which “presents
questions of law as well as questions of fact, we will conduct a de novo review of the
district court’s conclusions of law as well as a clearly erroneous review of any findings of
fact.” United States v. Pelullo, 399 F.3d 197, 202 (3d Cir. 2005) (internal quotation
marks and citations omitted).

                                              3
       A. Count 1

       Bell first challenges the sufficiency of the evidence as to her conviction for health

care fraud (Count 1 of the indictment). She argues that the government failed to

demonstrate the “execution of a scheme or artifice to defraud” as required by 18 U.S.C. §

1347.3 Bell says the evidence demonstrates only that she “violated general administrative

regulations,” but that it does not establish criminal conduct. (Appellant’s Brief at 38.)

       We disagree. Viewing the evidence in the light most favorable to the government,

the record amply supports that Bell knowingly engaged in a scheme with the specific

intent to defraud Medicare and Medicaid in connection with both the delivery of and

payment for health care benefits, items, and services. For example, Bell directed

Atrium’s employees to falsify records so that they did not accurately reflect the deplorable

conditions at Atrium.4 The falsified records were then provided to the Pennsylvania


  3
    The statute provides:
       Whoever knowingly and willfully executes, or attempts to execute, a
       scheme or artifice -
       (1) to defraud any health care benefit program; or
       (2) to obtain, by means of false or fraudulent pretenses, representations, or
       promises, any of the money or property owned by, or under the custody or
       control of, any health care benefit program,
in connection with the delivery of or payment for health care benefits, items, or services,
shall be fined under this title or imprisoned not more than 10 years, or both. ...
18 U.S.C. § 1347.
  4
   A detailed recounting of the depredations Bell inflicted on Atrium residents is
unnecessary. Suffice it to say that the accounts are genuinely heartbreaking – accounts of
helpless, elderly and infirm residents left to lie in their own waste, one with an empty
oxygen canister, another with undissolved medication in her mouth for hours, another
with bruises and open sores, and so on and on, all being left with no protection from the

                                             4
Department of Health (“DOH”) for the specific purpose of deceiving it into believing that

Atrium complied with applicable regulations, so that Atrium would maintain its

certification under Medicare and Medicaid and, hence, the flow of government money.

Bell was properly found guilty of health care fraud “based upon a scheme to falsify

records” that she used “in an attempt to conceal from state and federal regulatory agencies

the substandard care which was being provided to residents at Atrium.” Bell I, 2006 WL

952214 at *2. Sufficient evidence supports Bell’s conviction on Count 1 of the

indictment.

         B. Count 3

         Bell also argues that there was insufficient evidence presented at trial to convict

her of Count 3 of the indictment. Count 3 charged Bell with making false statements in

connection with Mabel Taylor’s death while she was a resident at Atrium, in violation of

18 U.S.C. § 1035(a)(2).5


violent outbursts of other senile and understandably frustrated residents, and this while
Bell lined her pockets and left vendors unpaid. The temporary administrator who took
over management of the facility from Bell indicated that, though he had taken over other
problem facilities in the past, he had never seen anything like the conditions he
encountered at Atrium. (Appendix at 2905.)
  5
      The statute provides:
         (a) Whoever, in any matter involving a health care benefit program,
         knowingly and willfully...
         (2) makes any materially false, fictitious, or fraudulent statements or
         representations, or makes or uses any materially false writing or document
         knowing the same to contain any materially false, fictitious, or fraudulent
         statement or entry, in connection with the delivery of or payment for health
         care benefits, items or services, shall be fined under this title or imprisoned

                                                5
       On the evening of October 25, 2001, Taylor wandered into Atrium’s courtyard and

could not get back into the building because the doors were malfunctioning. She was

found dead in the courtyard at 4:00 a.m. on October 26, 2001. On October 29, 2001, Bell

asked Harold Whipkey, an Atrium employee, to prepare a written statement that he saw

Taylor inside on the night that she died. Whipkey complied and prepared two statements

to that effect. However, Bell knew full well that Whipkey’s statements were false and

that he was actually at a bar on the evening that Taylor died.

       Bell argues that Whipkey’s false statements did not “involv[e] a health care benefit

program” because they were made “in relationship to the police investigation and had

nothing to do with health care or a health care benefit program.” (Appellant’s Brief at

49.) However, Whipkey’s false statements were provided to the DOH in connection with

its abuse investigation after Taylor’s death, thereby implicating Atrium’s receipt of

Medicare and Medicaid funding. Further, Atrium was a qualifying “health care benefit

program” because it was receiving funds under Medicare and Medicaid, and Whipkey’s

false statements obviously related to care given – or not given – by Atrium. As the



       not more than 5 years, or both.
       (b) As used in this section, the term “health care benefit program” has the
       meaning given such term in section 24(b) of this title.
18 U.S.C. § 1035(a)(2).
       The term “health care benefit program” is defined as “any public or private plan or
contract, affecting commerce, under which any medical benefit, item or service is
provided to any individual, and includes any individual or entity who is providing a
medical benefit, item, or service for which payment may be made under the plan or
contract.” 18 U.S.C. § 24(b).

                                             6
government points out, the “false statements at issue concerned health care services that

had been provided to Ms. Taylor at Atrium on the night of her death. Thus, the false

statements were in fact made in connection with the delivery of health care services, as is

required to sustain a conviction under § 1035(a)(2).” (Appellee’s Brief at 53.) Viewing

the evidence in the light most favorable to the government, it is clear that there is

sufficient evidence to sustain Bell’s conviction on Count 3 of the indictment.

       C. Alleged Brady Violations

       As for the Brady violations that Bell alleges, she makes essentially the same

arguments on appeal as she did to the District Court in support of her motion for a new

trial. She argues that the government withheld correspondence with United States

Senator Rick Santorum that she herself authored and received on Atrium’s behalf. She

also contends that certain out-of-court statements by two government witnesses were not

disclosed prior to trial.

       In denying Bell’s motion for a new trial, the District Court applied the appropriate

legal standard, which it summarized as follows:

       [To] establish a Brady due process violation, a defendant must show that (1)
       evidence was suppressed; (2) the suppressed evidence was favorable to the
       defendant; and, (3) the suppressed evidence was either material to guilt or
       to punishment. ... However, the government is not obliged under Brady to
       furnish a defendant with information which he already has or, with any
       reasonable diligence, he can obtain himself.




                                              7
Bell II, 2006 WL 1330200 at *2 (citations and internal quotation marks omitted). The

Court then “f[ound] and rule[d] that the correspondence which ... Bell sent to and

received from Senator Santorum is simply not Brady material” because “Bell was the

sender and receiver of both of these letters[,]” and “there is no indication or allegation

that these letters were either sent to or in the possession of the government ... .” Id. The

Court concluded that Bell thus “failed to establish that” the correspondence between

herself and Senator Santorum was “suppressed within the meaning of Brady,” and she,

“therefore, failed to establish a Brady violation.” Id. There is no error of fact or law in

that conclusion.

       The District Court also “f[ound] and rule[d] that [Bell] failed to establish that the

alleged statements of [the government witnesses] were suppressed within the meaning of

Brady” because there was no “evidence to support [Bell’s] claim that the government had

possession, either actual or constructive, of [those] statements ... and failed to provide

same to [Bell]. Accordingly, [Bell has] failed to establish a Brady violation.” Id. at *3.

Again, the District Court did not err as a matter of fact or law in reaching that conclusion.


III.   Conclusion

       For the foregoing reasons, Bell’s judgment of conviction will be affirmed.




                                              8
