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United States v. Kartashyan

July 23, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
GEVORK KARTASHYAN, DEFENDANT.



The opinion of the court was delivered by: Stephen V. Wilson United States District Judge

I. INTRODUCTION

ORDER DENYING DEFENDANT'S MOTION TO DISMISS FOR PROSECUTORIAL MISCONDUCT [102]

Defendant Gevork Kartashyan ("Defendant") seeks to dismiss the First Superseding Indictment due to alleged prosecutorial misconduct before the grand jury. Specifically, Defendant takes issue with the following statements made by AUSA Baum and/or FBI Agent Jennifer Doss before the grand jury:

(1) In response to a question from a grand juror, AUSA Baum said:

Let's be clear. I mean we probably should explain, briefly explain, what the Medicare standards are. The kind of wheelchairs that are being supplied, these are the kind of wheelchairs you have when you have a life event that completely disables you; so it's the kind of wheelchair that Christopher Reeve would be rolling around in.

Defendant argues that this statement by AUSA Baum did not accurately represent the applicable Medicare requirements for qualification for one of these wheelchairs. Indeed, the applicable regulation does not say that an individual has to be "completely disabled" or paralyzed like Christopher Reeve. The regulation states that a patient must have a "mobility limitation that significantly impairs his/her ability to participate in one or more mobility-related activities of daily living such as toileting, feeding, dressing, grooming, and bathing in customary locations in the home." (TR, Ex. 19, at 38.)

(2) The following statement was made by FBI Agent Doss:

Part of Medicare rules and regulations -- this may be getting way too technical, but there's something called Local Coverage Determinations. And these are the rules to live by if you're a durable medical equipment supplier. . . . First, they have to determine whether they have upper mobility limitation. . . .

Before you can supply this kind of wheelchair, you have to make sure the person you're supplying has these kinds of limitations.

Defendant argues that this statement makes it appear that Defendant had a legal obligation to make an independent evaluation as to whether the beneficiary had upper body mobility limitations before delivering the wheelchair to the beneficiary.

(3) FBI Agent Doss also made the following statement before the grand jury:

[Defendant is] required to know the Medicare standards for going out and doing these deliveries and making sure the people receiving the wheelchairs understand the standards and making sure that he does a home assessment, being that he takes those steps and those actions and knowing that, when he goes out to deliver a wheelchair, that he's not doing all of the requirements that are required by Medicare when he makes those deliveries. So he's taking those steps, which means he's working towards the fraud.

Defendant argues that this testimony was misleading because it gave the impression that Defendant had a legal obligation to read the ...


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