United States District Court, E.D. Virginia, Alexandria Division
CLAUDE M. HILTON, District Judge.
THIS MATTER comes before the Court on Petitioner's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255.
I. STATEMENT OF FACTS
Irvine Johnston King and Petitioner (collectively, "the Kings") owned and operated Bright Beginnings Healthcare Services, Inc. ("Bright Beginnings"), a home health care business located in Woodbridge, Virginia. Bright Beginnings provided nurses and nursing aides to approximately twenty-five Medicaid patients and a few patients covered by private health insurance. Apart from the Kings, generally no more than three part-time employees worked for the company at a given time, providing patient care and staffing the office.
The company was to submit claims to Medicaid and other insurers stating the number of hours it provided patient services, along with other information, including the dates and modes of service. Bright Beginnings was required to complete and maintain documentation including records signed by the nurse or aide who rendered a given service, along with the patient (or patient's family member) who confirmed the records' accuracy. Instead, Bright Beginnings repeatedly submitted inflated claims for services that were never provided.
In May 2009, an outside firm retained by Virginia Medicaid audited Bright Beginnings. The audit included a multi-day visit to Bright Beginnings' office to review patient files for documentation supporting the claims. During the on-site visit, three auditors reviewed 501 pages of nursing documentation for a total of six Bright Beginnings patients. After matching those six patients' Medicaid claims with the supporting documentation that Bright Beginnings provided the auditors during the onsite visit, the auditing firm made a preliminary report regarding apparent discrepancies. The firm gave Bright Beginnings an opportunity to submit additional records. Bright Beginnings submitted an additional 114 pages of documents to substantiate the Medicaid claims submitted for the six patients. The records appeared fabricated: the supplemental records contained signature blocks bearing identical photocopied signatures from patients and their family members.
The auditors notified Bright Beginnings that the audit revealed that Medicaid had overpaid Bright Beginnings by approximately $435, 000 for services related to the six patients at issue. The notice advised Bright Beginnings that it could appeal the finding. Mr. King, on behalf of Bright Beginnings, informed the auditors that the company wished to appeal the finding. Mrs. King took part in the in-person meeting regarding the audit appeal.
In April 2010, 11 months after the initial visit, Bright Beginnings provided the auditors an additional 1907 pages of documents-nearly four times what was initially provided to the auditors. This additional production included records that also bore indicia of fraud: repetitive summaries of nurses' observations of patients for different visits on different days, supposedly written by different nurses; nursing documentation intended to back up the summary forms collected during the on-site visit that included start and end times that did not correspond with those summary forms; time sheets reflecting 16 hours of daily patient services supposedly provided by Mrs. King herself; and signature blocks bearing the identical photocopied signature of patients or their family members.
Bright Beginnings employee Violet Kincaid ("Kincaid"), who was asked to help organize documents to be tendered to the auditors during the appeal process, made similar observations. The documents she compiled had patient notes in the same handwriting but were signed by different nurses. Some of the nurses' signatures were misspelled. Patients' vital signs were the same day after day, shift after shift. Patient family members' signatures were cut from one document and taped onto others, then photocopied. Dates on records documenting visits had been redacted with white out. Records reflecting criminal background checks for nurses included earlier dates taped over later dates on which the reports had actually been run so that the date of the reports matched the nurses' hiring dates, an important consideration when seeking reimbursement for claims related to services performed by those nurses. Kincaid observed hundreds of pages of documents that included these irregularities.
During a search of Bright Beginnings, the Government discovered an array of physically manipulated records, including documents with notations in ink while signatures were photocopied, photocopied signatures taped over signature lines, whited-out signatures and dates on signature lines, whited-out headers and footers, and sections that had been cut out. In addition, records of patient care supposedly performed by three nurses who never worked at Bright Beginnings were found during the search and provided to the auditors.
Nadia Kanu, a nurse and friend familiar with Mrs. King's handwriting, identified signatures appearing to be those of Amanda Drah as Mrs. King's handwriting. In Mr. King's presence, Mrs. King frequently forged the signature of nurse Isha Marah ("Marah") on records relating to services Marah never provided. Mrs. King also populated patient notes with records bearing nurse Hannah Kanu's forged signature. In addition, Mrs. King, again in Mr. King's presence, forged the signature of a patient's mother by holding forms to a window and then tracing the signature onto those forms. Records tendered during the audit appeal and collected during the search revealed other nursing documentation in support of claims for services supposedly provided by nurses who never worked for the patients at issue. Kincaid performed the Medicaid billing for Bright Beginnings for approximately two weeks in October 2009, after which time Mr. King took over that task. The claims were submitted electronically.
Once Mr. King took over the billing, Kincaid, and later administrative assistant Tiffany Ferguson ("Ferguson"), used the nurses' documentation to create weekly summaries of the hours each nurse had worked. Kincaid and Ferguson provided those summaries to Mr. King. Although the hours reflected in their summaries matched the original records, they were inconsistent with the hours Bright Beginnings submitted to Medicaid for the corresponding patients and time periods. Mrs. King provided handwritten patient notes written in her own handwriting and asked Ferguson to transcribe them onto nursing records. Nurse Nadia Kanu also provided Mrs. King with patient notes that Kanu had transcribed onto otherwise blank nursing documentation lacking patient names.
In addition, in late 2009, during the period of time between the auditors' initial on-site visit and Bright Beginnings' submission of additional documents in connection with its audit appeal, both Mr. King and Mrs. King presented a stack of blank nurse's time sheets to a patient's father and asked him to sign them. The records were completed thereafter, including the names of nurses, two of whom never provided any services to that particular patient and one of whom never worked at Bright Beginnings at all.
As part of the fraud, Bright Beginnings billed Medicaid for home health services that the Kings knew had not been provided to patients during times when those patients were in the hospital and therefore receiving nursing care from the hospital staff, when the historic snowstorms of the winter of 2009-2010 prevented nurses from traveling to patients' homes, when the patient was traveling outside the country, and when the patient had discontinued his relationship with Bright Beginnings.
Mrs. King hired one individual, Nenneh Blell ("Blell"), to provide licensed practical nurse ("LPN") services despite knowing that she was not an LPN and directed her to work under someone else's name. Mr. King also knew Blell was not an LPN and that she was working for Bright Beginnings under a false name. Mrs. King instructed Blell to persuade a patient's mother to lie to Medicaid by stating that Bright Beginnings provided certain services that it did not provide, and that a registered nurse had performed the required monthly visits when in fact the nurse had not. To induce Blell to follow her instructions, Mrs. King, in Mr. King's presence, informed her that if the Kings went down, they would take Blell with them. Similarly, Mr. King later informed Blell that she must persuade the patient's mother to comply, and that if he and Mrs. King went to jail, Blell would also go to jail.
II. PROCEDURAL HISTORY
This case was originally prosecuted by the Office of the Attorney General for the Commonwealth of Virginia and was subsequently charged federally. Petitioner was indicted by a Virginia grand jury on September 6, 2011, for felony forgery in violation of Virginia State Code § 18.2-172. Mr. King was also indicted by a Virginia grand jury on September 6, 2011, for felony false statement for payment in violation of Virginia State Code § 32.1-314. If the parties resolved the issue globally, Mr. King would be subject to federal charges. Mr. King's counsel, John Iweanoge, was in contact with Assistant Attorney General Steven Grist (AAG Grist) regarding a plea offer no later than December 1, 2011. On December 1, 2011, AAG Grist emailed what he termed a slightly modified plea offer from the Commonwealth of Virginia to John Iweanoge for Mr. King, which included references to a federal offer as well as a misdemeanor plea for Petitioner. Mr. Iweanoge acknowledged receipt of the Commonwealth's plea offer on December 1, 2011. On March 5, 2012, AAG Grist again forwarded his original email to Mr. Iweanoge, including notes on which terms changed, as well as references to the "Federal Statement of Facts" and "Federal Plea Agreement." Further, AAG Grist indicated that Assistant United States Attorney Tim Belevetz (AUSA Belevetz) would be the appropriate contact for the federal plea offer. AAG Grist also indicated that the plea offer to Aisha King had been withdrawn. Mr. Iweanoge responded on March 5, 2012, indicating that he spoke with Petitioner and that Mr. King wanted to take advantage of the original plea offer, which included terms for Mrs. King. He further indicated that the terms would be acceptable to Mr. King but that they were held up by how Petitioner's case would be handled. It appears that the Commonwealth did not elect to reopen its initial global plea offer. Federal discussions progressed. It further appears that this is the plea offer that the Kings intend to reference when they indicate: "[t]he Commonwealth offered a favorable plea deal involving a misdemeanor conviction and no prison sentence for Mrs. King, and a felony conviction with a reduced sentencing loss for Mr. King. But the Commonwealth withdrew its offer before the Kings could act upon it."
Around the same time, Mrs. King's attorney for the state matter, Abu Kolokoh, was negotiating with AAG Grist and AUSA Belevetz. On March 23, 2012, AAG Grist sent Mr. Kolokoh a plea offer for Mrs. King. AAG Grist set out specifics for the federal plea. Petitioner forwarded the plea offer from her attorney to Mr. Iweanoge, her husband's attorney, on March 27, 2012. On April 18, 2012, Mr. Kalokoh emailed AUSA Belevetz indicating that Mrs. King "has not made a decision" and that he would need to speak with Mr. King's attorney before communicating whether they would accept the plea. He indicated he would provide a final answer by April 24, 2012.
On April 19, 2012, AUSA Tim Belevetz sent a letter to John Iweanoge in reference to a plea offer for Mr. King "that [they] began discussing in December 2011." The letter indicated that the offer would expire on April 26, 2012, at noon. On April 19, 2012, Mr. Belevetz sent a letter to Mr. Kalokoh for Mrs. King with substantially the same content as the plea offer letter he sent to Mr. King. Both Kings subsequently received an extension of the plea offer until May 25, 2012.
On April 25, 2012, Mr. Pritchard sent the Petitioner the following email:
As I mentioned on the phone, the U.S. Attorney was not willing to move tomorrow's noon deadline for the plea offer. He says all of the relevant information was given to Mr. Kalokoh months ago and they want to move forward with the case. Here is the latest with respect to the plea:
The general parameters for the plea offer (set forth in the April 19th letter) remain the same. This means if you plead guilty you will have a total offense level of 21, with a sentencing range of 37-46 months. Today, Mr. Belevetz agreed that they would not prosecute you for any other possible charges and he also would not object to us arguing for a sentence below the guideline range. In other words, the government will argue for a sentence within the 37-46 month range; however we are free to argue that the sentence should be lower than that. Ultimately the decision lies with the judge.
Mr. Belevetz also agreed to keep the loss amount open if we agree to the plea by noon tomorrow. With this concession, the loss value would not exceed its current level $400, 000-$999, 999; however it may come down if the government can not show us sufficient proof of the actual damages. As we discussed, the loss value plays a large part in the sentencing guidelines and a reduction in the ...