United States v. Viral Thaker , 579 F. App'x 449 ( 2014 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 14a0706n.06
Nos. 13-1164/1173/1182/1215/1216
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Sep 08, 2014
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE EASTERN
BABUBHAI PATEL, BRIJESH RAWAL, KOMAL )
DISTRICT OF MICHIGAN
ACHARYA, VIRAL THAKER, and LOKESH )
TAYAL, )
OPINION
)
Defendants-Appellants. )
BEFORE: COLE, Chief Judge; BOGGS and STRANCH, Circuit Judges.
STRANCH, Circuit Judge. In these consolidated cases, five defendants pursue direct
appeals after they were convicted by a jury and sentenced for their roles in conspiracies to
commit health care fraud and to distribute prescription drugs in Detroit over a period of five
years. The leader of these conspiracies, Babubhai Patel, was a registered pharmacist and
businessman who owned or controlled at least twenty pharmacies in Michigan. He hired other
pharmacists, including his co-defendants Brijesh Rawal, Viral Thaker, and Lokesh Tayal, to
assist him in defrauding Medicare, Medicaid, and Blue Cross/Blue Shield of Michigan of
approximately $18.9 million. These co-conspirators unlawfully distributed millions of dosage
units of controlled substances. Komal Acharya was involved in a personal relationship with
Patel and assisted him as a member of the health care fraud conspiracy.
Nos. 13-1164/1173/1182/1215/1216
United States v. Babubhai Patel, et al.
Patel, Rawal, Thaker, and Tayal challenge the district court’s denial of their motions to
suppress evidence obtained through a Title III wiretap on two cell phones used by Patel. They
contend that the government failed to prove necessity for the wiretaps, failed to inform the
issuing court that translators would monitor the phone lines, and failed to minimize nonpertinent
calls. Thaker, Tayal, and Acharya each argue that the government’s evidence was insufficient to
convict them. Patel challenges the procedural reasonableness of his sentence.1 We AFFIRM the
defendants’ convictions and Patel’s sentence.
I. BACKGROUND
The conspiracies began in January 2006 and ended in August 2011 when Patel and his
associates were arrested, effectively ending their illegal activities. The number of pharmacies
controlled by Patel varied over time, and he changed their corporate structures frequently. Patel
hired all of the staff and supervised the pharmacy operations.
The scheme to defraud insurers depended on the participation of physicians, pharmacists,
recruiters, and patients. Patel paid cash bribes to physicians to entice them to write patient
prescriptions for expensive medications and controlled substances that could be billed to
Medicare, Medicaid, or private insurers through the Patel pharmacies. He paid kickbacks to
managers of health-related companies so that they would send patients to his pharmacies, and he
employed “marketers” to recruit “patients” directly from the streets.
1
After oral argument, Rawal sought to adopt that portion of Patel’s brief discussing the
sentencing argument. Fed. R. App. P. 28(i). Rawal did not raise any sentencing issues in his
opening or reply briefs in this court, his counsel did not mention during oral argument that any
error occurred during the sentencing, and he has not explained how Patel’s arguments apply to
his own factual situation. Under the circumstances, Rawal’s belated Rule 28(i) letter is
insufficient to preserve a sentencing issue for appeal. See United States v. Hough, 276 F.3d 884,
891 (6th Cir. 2002); United States v. Elder, 90 F.3d 1110, 1118 (6th Cir. 1996).
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Pharmacists facilitated the criminal activity by charging insurers for expensive
medications that were ordered from wholesale distributors and held in inventory but not
dispensed to patients. These surplus medications were later returned to the supplier for credit or
sold on the black market. Pharmacists also billed insurers for controlled substances that the
pharmacists knew were illegally prescribed. These controlled medications included
hydrocodone (Vicodin, Lortab), oxycodone (Oxycontin), alprazolam (Xanax), and codeine-
infused cough syrup. When filling prescriptions, the pharmacists usually “shorted” the number
of dosage units placed in the medication vials for patients, billed the insurers for the full drug
quantities prescribed, and then sold the excess pills on the street.
A significant portion of the prescription fraud was perpetrated through Visiting Doctors
for America (VDA), a physician group that purported to provide home doctor visits to patients.
Marketers recruited “patients” from homeless shelters and soup kitchens by offering them small
amounts of cash or controlled substances. The marketers transported the “patients” to a VDA
physician, who performed cursory examinations of the “patients” while they sat together in one
room. VDA staff provided the co-conspirators with dummy patient files and blank prescription
pads previously signed by a physician or physician’s assistant. Mehul Patel and later Arpit Patel,
neither of whom is a physician, wrote prescriptions for controlled medications and expensive
non-controlled medications on these blank, pre-signed prescription pads. The prescriptions were
taken to the Patel pharmacies, where the pharmacists used the dummy patient files to enter
patient profiles into the computer database, billed for all of the medications prescribed, but filled
only the controlled medications. The controlled substances were then distributed, or sold on the
street.
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Patel paid his pharmacists salaries, bonuses, and twenty percent of pharmacy profits to
encourage them to engage in fraudulent practices. The pharmacies distributed nearly 500,000
dosage units of Schedule II controlled substances (including oxycodone), approximately
4.9 million dosage units of Schedule III controlled substances (including hydrocodone), nearly
2.3 million dosage units of Schedule IV controlled substances (including alprazolam), and
approximately 2.5 million dosage units of Schedule V controlled substances. Between 2006 and
2011, the Patel pharmacies billed Medicare approximately $37,770,557; Medicaid approximately
$23,134,691; and Blue Cross/Blue Shield of Michigan approximately $6,359,872.
Babubhai Patel was convicted of health care fraud conspiracy in violation of 18 U.S.C.
§ 1349 (count 1), drug conspiracy in violation of 21 U.S.C. § 846 (count 15), ten counts of aiding
and abetting health care fraud in violation of 18 U.S.C. § 1347 & § 2 (counts 2–5, 7–9, 12–14),
and fourteen counts of aiding and abetting the unlawful distribution of controlled substances in
violation of 21 U.S.C. § 841(a)(1) & 18 U.S.C. § 2 (counts 20–32, 34). He was acquitted on
three counts of aiding and abetting health care fraud (counts 6, 10–11) and five counts of aiding
and abetting the unlawful distribution of oxycodone and hydrocodone (counts 16–19, 33). The
district court sentenced him to a total term of imprisonment of 204 months, supervised release of
three years, and payment of restitution in the total amount of $18,955,869.
Brijesh Rawal was convicted of health care fraud conspiracy (count 1), drug conspiracy
(count 15), one count of aiding and abetting health care fraud (count 5), and three counts of
aiding and abetting unlawful distribution of controlled substances (counts 24–26). The district
court sentenced him to a total term of imprisonment of 68 months, supervised release of three
years, and payment of restitution in the amount of $1,761,217.
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Viral Thaker was convicted of health care fraud conspiracy (count 1), drug conspiracy
(count 15), two counts of aiding and abetting health care fraud (counts 10–11), and two counts of
aiding and abetting unlawful distribution of controlled substances (counts 30–31). The district
court sentenced him to a total term of imprisonment of 24 months, no supervised release with
immediate deportation, and payment of restitution in the amount of $215,053.
Lokesh Tayal was convicted of health care fraud conspiracy (count 1) and drug
conspiracy (count 15). The district court sentenced him to a total term of imprisonment of
68 months, no supervised release with immediate deportation, and payment of restitution in the
amount of $3,658,174.
Komal Acharya was convicted of health care fraud conspiracy (count 1). The district
court sentenced her to a term of three years of probation and restitution in the amount of
$500,000.
We have jurisdiction of these appeals pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742.
II. ANALYSIS
A. Denial of the motion to suppress evidence
Defendants Patel, Rawal, Thaker, and Tayal challenge the district court’s denial of their
motions to suppress evidence obtained through the Title III wiretap, as well as all fruit of that
evidence. In examining the denial of a motion to suppress, we review the district court’s factual
findings for clear error and its conclusions of law de novo. United States v. Poulsen, 655 F.3d
492, 503 (6th Cir. 2011). “It is well settled that in seeking suppression of evidence the burden of
proof is upon the defendant to display a violation of some constitutional or statutory right
justifying suppression.” United States v. Rodriguez-Suazo, 346 F.3d 637, 643 (6th Cir. 2003)
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(quoting United States v. Feldman, 606 F.2d 673, 679 n.11 (6th Cir. 1979)); United States v.
Giacalone, 853 F.2d 470, 482 (6th Cir. 1988); United States v. Smith, 783 F.2d 648, 650 (6th Cir.
1986). The defendant who requests suppression bears the burden of production and persuasion.
United States v. Chaar, 137 F.3d 359, 363 (6th Cir. 1998); Giacalone, 853 F.2d at 482. We
consider the evidence in the light most favorable to the government. Rodriguez-Suazo, 346 F.3d
at 643.
1. Title III’s necessity requirement
Congress granted statutory authority for law enforcement interception of private
telephone conversations when it passed Title III of the Omnibus Crime Control and Safe Streets
Act of 1968, 18 U.S.C. §§ 2510–20. The statute permits a federal judge to issue a wiretap order
if the government establishes, in addition to specified probable cause requirements, that “normal
investigative procedures have been tried and have failed or reasonably appear to be unlikely to
succeed if tried or to be too dangerous,” and that the wiretap application includes “a full and
complete statement” in that regard. 18 U.S.C. § 2518(3)(c), (1)(c); United States v. Rice,
478 F.3d 704, 709–10 (6th Cir. 2007); United States v. Ogburn, 288 F. App’x 226, 236 (6th Cir.
2008).
This provision of Title III, which is known as the “necessity” or “needs” requirement,
was added to “ensure that a wiretap ‘is not resorted to in situations where traditional
investigative techniques would suffice to expose the crime.’” United States v. Alfano, 838 F.2d
158, 163 (6th Cir. 1988) (quoting United States v. Kahn, 415 U.S. 143, 153 n.12 (1974)).
Although a wiretap cannot be used as a routine initial step in criminal investigations, United
States v. Landmesser, 553 F.2d 17, 20 (6th Cir. 1977), a wiretap does not have to be the last
resort, id., and “the government is not required to prove that every other conceivable method [of
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investigation] has been tried and failed or that all avenues of investigation have been exhausted,”
Alfano, 838 F.2d at 163. “All that is required is that the investigators give serious consideration
to the non-wiretap techniques prior to applying for wiretap authority and that the court be
informed of the reasons for the investigators’ belief that such non-wiretap techniques have been
or will likely be inadequate.” United States v. Lambert, 771 F.2d 83, 91 (6th Cir. 1985).
Congress intended for courts to examine the sufficiency of the government’s wiretap
applications through the lenses of practicality and common sense, Landmesser, 553 F.2d at 20,
and consequently, we give great deference to the district court’s decision to grant a wiretap
application, Giacalone, 853 F.2d at 479. Having carefully reviewed each wiretap application,
and applying great deference as the law requires, the district court did not err in determining that
the government sufficiently established necessity to justify wiretap interception of Patel’s cell
phones.
The initial wiretap application and each of the six extension applications were supported
by agent affidavits describing numerous law enforcement investigative techniques that were
considered or used to infiltrate Patel’s organization. These affidavits explained at length both the
progress achieved and the obstacles encountered in using confidential informants, undercover
agents, audio and video recordings, surveillance, pole cameras, consensual telephone calls, pen
registers, toll records, trash pulls, search warrants, and interviews. The affidavits explained in
depth why ordinary methods of investigation failed to achieve all of law enforcement’s
objectives, why other methods were contemplated but determined to be unlikely to succeed if
attempted, and why certain methods would be likely to alert the co-conspirators to the ongoing
investigation. Wiretap interception of communications was necessary to penetrate the
conspiracies in order to learn the following: the extent of Patel’s organization; the names and
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roles of recruiters, pharmacists, doctors, and other medical professionals and companies involved
in the scheme; Patel’s money laundering methods; and Patel’s methods for concealing the
activities of his organization.
Each wiretap application supplied more than sufficient factual information to permit the
district court to decide whether a Title III wiretap was necessary to the ongoing investigation.
We have no concern that the wiretap was used as a routine first step in a criminal investigation
that could have utilized only traditional investigative techniques to expose the crime. See Kahn,
415 U.S. at 153 n.12; Alfano, 838 F.2d at 163; Landmesser, 553 F.2d at 20. In addition, the
continuing need for wiretap interception was thoroughly established in the extension
applications. See United States v. Corrado, 227 F.3d 528, 539 (6th Cir. 2000). Because the
district court’s decisions to approve the wiretap applications were amply supported by the
showing of necessity and those decisions are entitled to deference, we affirm on this issue. See
Giacalone, 853 F.2d at 479; Alfano, 838 F.2d at 163; Lambert, 771 F.2d at 91.
2. The minimization requirement
Title III requires law enforcement agents executing a wiretap order “to minimize the
interception of communications not otherwise subject to interception under this chapter . . . . In
the event the intercepted communication is in a code or foreign language, and an expert in that
foreign language or code is not reasonably available during the interception period, minimization
may be accomplished as soon as practicable after such interception.” 18 U.S.C. § 2518(5). The
same subsection of the statute provides that “[a]n interception under this chapter may be
conducted in whole or in part by Government personnel, or by an individual operating under a
contract with the Government, acting under the supervision of an investigative or law
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The defendants sought suppression of evidence obtained through the wiretaps on the
ground that the agents failed to comply with the minimization requirements. First, they contend
that the government failed to disclose to the district court, upon seeking the initial wiretap
authorization order, that intercepted calls would be monitored primarily by foreign language
translators and not by federal drug agents. Second, they argue that the translators did not
properly minimize the intercepted, non-pertinent calls, and drug agents failed to provide proper
instruction and supervision. Third, Patel argues that all of his calls with his attorneys were
intercepted.
a. Interception of calls by translators
The government does not deny that its agents knew before applying for the wiretap order
that most of the intercepted conversations would be spoken in a Hindu dialect. Within hours
after the district court issued the initial wiretap authorization order on January 10, 2011, the
wiretaps were in place and translators were situated at the monitoring stations listening to the
intercepted calls under the supervision of a law enforcement agent. The government informed
the district court about the large volume of foreign language calls and the use of translators in the
first 10-day report submitted to the court. The government repeated the same disclosure in the
first wiretap extension application submitted to the court on February 8, 2011.
The government argues that it was not required to obtain court preauthorization to use
translators during call interception because § 2518(5) expressly states that “[a]n
interception . . . may be conducted in whole or in part by Government personnel, or by an
individual operating under a contract with the Government, acting under the supervision of an
investigative or law enforcement officer authorized to conduct the interception.” Congress
added this language to the statute in 1986 “to free field agents from the relatively routine activity
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of monitoring interceptions so that they can engage in other law enforcement activities.” S. Rep.
No. 541, reprinted in, 1986 U.S.C.C.A.N. 3555, 3585. Had Congress wanted to impose a
requirement that the government notify the court about the use of translators, the government
contends, Congress could have included it in the “full and complete statement” mandate of
§ 2518(1). Congress did not do so, leading to the inference that the statute does not require
notice to the court in the wiretap application of the intended use of translators to monitor
intercepted telephone calls. Because the translators provided services to the government under
contract and because they were directly supervised by a law enforcement agent present at the
monitoring stations, the government asserts that no violation of the wiretap statute occurred to
warrant suppression of the evidence obtained through call interception.
The defendants rely on a First Circuit case, United States v. Lopez, 300 F.3d 46, 55 (1st
Cir. 2002), which held “that the government must disclose, as a part of its application for a
wiretap warrant, any intention to utilize the services of civilian monitors in the execution of the
warrant.” In that case, the government relied on civilian monitors working under contract with
the government to listen to intercepted calls, perform minimization, and provide some translation
services. Id. at 50. The First Circuit reasoned that § 2518(1) placed on the government a duty of
candor to the tribunal to make a “full and complete” disclosure in the wiretap application of the
intended use of civilian monitors. Nonetheless, the First Circuit upheld the wiretap in that case
because it was conducted in a manner that preserved the core protective purposes of Title III. Id.
at 56. In the twelve years since Lopez was decided, only one other federal circuit has cited the
case and did so for a point not relevant here. See United States v. Yarbrough, 527 F.3d 1092,
1098 (10th Cir. 2008).
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We conclude that the statutory language controls over the Lopez opinion. See Bates v.
United States, 522 U.S. 23, 29 (1997) (“The text of [the statute] does not include an ‘intent to
defraud’ state of mind requirement, and we ordinarily resist reading words or elements into a
statute that do not appear on its face”). The statute allows a wiretap to be conducted by
“Government personnel,” which may include both law enforcement agents and civilians
employed by the government. The statute also permits the wiretap to be conducted by “an
individual operating under a contract with the Government” as long as that person is supervised
by a law enforcement officer who is authorized in the wiretap order to intercept communications.
The statute does not require the “individual” working under contract to be a law enforcement
agent. Further, the statute does not state that translators are authorized to intercept and translate
only foreign language calls, as Patel argues. Finally, the statute does not require the government
to disclose the planned use of translators to the authorizing court at the time wiretap
authorization is sought.
Even the Lopez court recognized that whether civilian monitors are employed does not
“affect the likelihood that the wiretap would be authorized in the first place” nor does “it increase
the wiretap’s intrusion on privacy interests.” Lopez, 300 F.3d at 55. Here, the primary purposes
of Title III were not frustrated by using qualified foreign language translators to understand the
substance of the calls intercepted. Id. A wiretap would be meaningless if English-speaking
monitoring agents could not understand the communications taking place between co-
conspirators. And while encouraging government candor to the court is certainly a worthy
objective, in this case the government disclosed to the court ten days after the wiretap began that
most of the intercepted calls were spoken in Hindu dialect and that translators were necessary to
help the government understand the communications. There is no indication that an agent
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provided a false affidavit to the court to obtain wiretap authorization, as was the case in United
States v. Rice, 478 F.3d 704, 707, 710–11 (6th Cir. 2007).
In making its oral ruling on the motion to suppress, the district court stated, “I think there
has to be some showing of deliberate violation of the rules.” Although the defendants now
challenge that standard as applied by the district court, the comment appears to have been drawn
from Lopez, where the First Circuit ultimately decided that the government’s violation in failing
to give notice of civilian monitors had not been knowing and willful. See Lopez, 300 F.3d at 56.
We apply our own law in affirming the district court’s finding that the defendants did not carry
their burden to show a violation of § 2518(5). See Rodriguez-Suazo, 346 F.3d at 643; Chaar,
137 F.3d at 363.
b. Minimization of nonpertinent calls, including privileged calls
Section 2518(5) requires that electronic surveillance “shall be conducted in such a way as
to minimize the interception of communications not otherwise subject to interception under this
chapter . . . .” In analyzing under the Fourth Amendment the reach of governmental intrusions
into personal privacy, the Supreme Court has “undertaken an objective assessment of an officer’s
actions in light of the facts and circumstances then known to him.” Scott v. United States,
436 U.S. 128, 137 (1978). The Fourth Amendment “itself proscribes only ‘unreasonable’
searches and seizures,” id., and in Terry v. Ohio, 392 U.S. 1, 21–22 (1968), “the Court
emphasized the objective aspect of the term ‘reasonable.’” Scott, 436 U.S. at 137.
In applying “reasonableness” in the wiretap context, the focus must be “on the agents’
actions not their motives.” Id. at 139. And “[b]ecause of the necessarily ad hoc nature of any
determination of reasonableness, there can be no inflexible rule of law which will decide every
case.” Id. The wiretap statute “does not forbid the interception of all nonrelevant conversations,
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but rather instructs the agents to conduct the surveillance in such a manner as to ‘minimize’ the
interception of such conversations.” Id. at 140. Whether the agents have complied with the
minimization requirement “will depend on the facts and circumstances of each case.” Id.Here, the defendants initially challenged the monitors’ performance in minimizing calls
by gathering a random sample of the intercepted calls and suggesting that the percentage of
intercepted nonpertinent calls was too high and that the percentage of minimized calls was too
low. But “blind reliance on the percentage of nonpertinent calls intercepted is not a sure guide to
the correct answer.” Scott, 436 U.S. at 140. While percentages may be helpful,
there are surely cases, such as the one at bar, where the percentage of nonpertinent
calls is relatively high and yet their interception was still reasonable. The reasons
for this may be many. Many of the nonpertinent calls may have been very short.
Others may have been one-time only calls. Still other calls may have been
ambiguous in nature or apparently involved guarded or coded language. In all
these circumstances agents can hardly be expected to know that the calls are not
pertinent prior to their termination.
Id.A more useful approach than percentages, the Supreme Court explained in Scott, is to
consider the circumstances surrounding the wiretap. Id. When agents are investigating what is
“thought to be a widespread conspiracy more extensive surveillance may be justified in an
attempt to determine the precise scope of the enterprise. And it is possible that many more of the
conversations will be permissibly interceptible because they will involve one or more of the co-
conspirators.” Id. During the early stages of wiretapping, “agents may be forced to intercept all
calls to establish categories of nonpertinent calls which will not be intercepted thereafter.” Id. at
141. Interception of those same kinds of calls may be unreasonable later, after the non-pertinent
categories of calls have been identified. Id. Agents who listen to one-time conversations that
defy categorization do not violate the minimization requirement, and other scenarios may come
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up “where patterns of nonpertinent calls do not appear. In these circumstances it may not be
unreasonable to intercept almost every short conversation because the determination of relevancy
cannot be made before the call is completed.” Id. at 141–42.
In Scott, the Supreme Court found no Fourth Amendment violation where forty percent
of the intercepted calls were “clearly narcotics related” and where many of the remaining calls
were “very short.” Id. In a case presenting a “wide-ranging conspiracy with a large number of
participants, even a seasoned listener would have been hard pressed to determine with any
precision the relevancy of many of the calls before they were completed.” Id. at 142. Further, a
large number of calls were ambiguous, “making characterization virtually impossible until the
completion of these calls.” Id.In applying Scott’s principles of reasonableness in the minimization of wiretapped calls,
we consider three factors: “the nature and scope of the criminal investigation; the Government’s
reasonable expectations of the character of conversations; and, the extent of judicial supervision
over the surveillance.” United States v. Feldman, 606 F.2d 673, 678 (6th Cir. 1979) (and cases
cited therein). Defendants must carry the burden to establish that “the monitoring agents
exhibited a high disregard for appellants’ privacy rights or that they did not do all they
reasonably could to avoid unnecessary intrusions.” Id. at 679. “It is not enough for the
defendants to identify particular calls which they contend should not have been intercepted; they
must establish a pattern of interception of innocent conversations which developed over the
period of the wiretap.” United States v. Lawson, 780 F.2d 535, 540 (6th Cir. 1985).
The defendants did not carry their burdens of production and of persuasion to show that
the government failed to comply with the minimization requirements. See Giacalone, 853 F.2d
at 482. Although the district court held an evidentiary hearing at the defendants’ request, DEA
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Agent Parkison’s testimony at the hearing supported the government’s position, and the
defendants did not present any contradictory evidence.
Agent Parkison informed the wire monitors about their responsibility to minimize calls
that did not relate to the investigation or that were covered by the attorney-client privilege. He
required them to discuss their minimization duties with a federal prosecutor before intercepting
any calls. A law enforcement agent was present in the monitoring room at all times to supervise
the wiretap and answer any questions of the translators about minimizing phone calls.
The monitors intercepted business calls to and from Patel because these calls were either
blatantly incriminating—Patel was bribing doctors or discussing drugs that had been billed for
but not dispensed—or Patel was discussing conspiracy-related matters, such as meeting with
doctors he was recruiting into the conspiracy or opening and closing pharmacies. The monitors
also intercepted calls pertaining to Patel’s assets, including his many discussions about
purchasing gas stations, motels, and other property, because the investigators were tracking
money laundering. The monitors listened to certain calls concerning Patel’s family because at
least one family member was involved in the conspiracy and because Patel held $600,000 in a
bank account in the name of a family member. The monitors also intercepted some of Patel’s
personal calls if the calls also involved the conspiracies. For example, one call between Patel
and Acharya included both a personal exchange and a discussion of six of Patel’s corporations
held in Acharya’s name. Patel told Acharya that there would soon be $18 million deposited into
the corporate accounts.
Early in the initial wiretap period, monitors intercepted a few calls involving non-
privileged communications between Patel and his attorneys. Concerned that attorney-client
privileged calls would occur in the future, the government promptly established a “filter team”
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comprised of agents and a prosecutor who were not working on the Patel case. Whenever a
monitor intercepted a call between Patel and an attorney, the monitor transferred the call to a
filter team member and the agent assigned to the filter team made the determination whether to
minimize the call under standard minimization practices. Upon minimizing a call, the recording
system generated an entry, which permitted agents later to request a system report detailing
which of the calls had been minimized. After each call was complete, a filter team agent
accessed the call, wrote a summary of the call or transcribed it, and provided that document to
the prosecutor supervising the filter team. That prosecutor, with advice from the Criminal Chief
of the United States Attorney’s Office, determined whether the call contained privileged
attorney-client communications or whether the call should be turned over to the conspiracy
investigators and prosecutors.
The establishment of the filter team was reported to the district court within the first
thirty days after the wiretap began, and the court approved the procedure. None of the
intercepted attorney-client calls were ever provided to the investigators and prosecutors who
conducted the conspiracy investigation. Agents employed a special procedure so that privileged
calls were never placed on either the evidence discs or the working copy discs given to the
agents and prosecutors handling the conspiracy investigation. The parties stipulated that Patel’s
attorney received a disc containing a copy of all of the attorney-client privileged calls, yet Patel
produced no evidence that the government filter team intercepted his calls in violation of the
attorney-client privilege. He also did not dispute Agent Parkison’s testimony that none of the
attorney-client calls intercepted by the filter team were disclosed to the investigation team. See
United States v. Warshak, 631 F.3d 266, 294–95 (6th Cir. 2010) (“[T]here is no indication that
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the government made any direct use of the privileged communications, either at trial or before
the grand jury.”).
In every ten-day report provided to the court, Agent Parkison included data about the
minimization rate of phone calls intercepted on Patel’s phones. He testified during the
evidentiary hearing that 5,952 calls were intercepted that were sixty seconds or more in length
and of those, 685 calls or 11.5 percent, were minimized. The defendants did not produce any
evidence to contradict Agent Parkison’s testimony, despite their earlier demand for the
evidentiary hearing and their strenuous argument that the wiretap was structurally flawed.
In light of this factual record, the district court did not err in ruling that the government
demonstrated substantial compliance with the minimization provision of the wiretap statute and
the wiretap authorization orders. The defendants did not establish that “the monitoring agents
exhibited a high disregard” for their privacy rights or that the agents “did not do all they
reasonably could to avoid unnecessary intrusions.” Feldman, 606 F.2d at 679. The defendants
made no showing that the agents and monitors engaged in an improper pattern of intercepting
innocent conversations over the period of the wiretap. See Lawson, 780 F.2d at 540.
Taking all of the circumstances of the wiretap into account, the agents and the prosecutor
charged with supervising the operation acted reasonably and did not violate the defendants’
Fourth Amendment or statutory rights. See Scott, 436 U.S. at 137–40. We recognize the
inherent danger in allowing government agents on a filter team to listen to a target’s
conversations with his attorneys without minimization. See In re Grand Jury Subpoenas,
454 F.3d 511, 523 (6th Cir. 2006). There was no proof presented, however, that the monitoring
agents and translators failed to abide by the limitations set forth in the wiretap authorization
orders. This is not a case like United States v. George, 465 F.2d 772, 775 (6th Cir. 1972), where
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the “protective limitations” of the wiretap authorization order “were completely defeated.”
Moreover, the evidentiary record in this case is far different from the factual records presented to
the courts in United States v. Renzi, 722 F. Supp. 2d 1100 (D. Ariz. 2010), and United States v.
Simels, No. 08-CR-640, 2009 WL 1924746 (E.D.N.Y. July 2, 2009). In those cases, the district
courts suppressed all evidence obtained through electronic surveillance because the proof
established that agents unlawfully intercepted privileged attorney-client calls. Here, no such
proof was presented. Because the district court did not err in ruling that the government met the
minimization requirement of the wiretap statute, we affirm on this ground.
B. Sufficiency of the evidence
Three defendants—Tayal, Thaker, and Acharya—challenge the sufficiency of the
government’s proof to convict them of various crimes. Their attacks on the evidence are without
merit, and we affirm the convictions of each defendant.
The district court has authority to set aside a verdict of guilty and enter a judgment of
acquittal. Fed. R. Crim. P. 29(c)(2). In reviewing the district court’s decision on a motion for
judgment of acquittal, we evaluate the evidence in a light most favorable to the government and
decide whether any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. United States v. Mack, 729 F.3d 594, 603 (6th Cir. 2013). We may
not reweigh the evidence, United States v. Mathis, 738 F.3d 719, 735 (6th Cir. 2013), and the
defendant must carry a “very heavy burden” to prevail on a sufficiency challenge. United States
v. Clay, 667 F.3d 689, 693 (6th Cir. 2012) (internal quotation marks omitted).
Any person who conspires to commit health care fraud may be convicted of a federal
offense. 18 U.S.C. § 1349. An individual commits health care fraud by “knowingly and
willfully execut[ing] or attempt[ing] to execute a scheme or artifice . . . to defraud any health
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care benefit program[] or . . . 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.” 18 U.S.C. § 1347(a). A person who commits health care fraud
“need not have actual knowledge” of the statute forbidding the conduct “or specific intent to
commit a violation” of the statute. 18 U.S.C. § 1347(b). To establish the crime of conspiracy to
commit health care fraud, the government must prove an agreement between two or more people
to act together to commit the offense and an overt act in furtherance of that agreement. United
States v. Hunt, 521 F.3d 636, 647 (6th Cir. 2008). The government does not have to show a
formal written agreement and it is enough to convict if the government “demonstrate[s] a tacit or
mutual understanding among the parties.” Id. There is no requirement that the government
present direct evidence of the conspiracy; circumstantial evidence is sufficient if a reasonable
person could interpret the evidence to show participation in a common plan. Id.It is also unlawful for any person to knowingly or intentionally distribute controlled
substances, 21 U.S.C. § 841(a), or to conspire to commit that offense, 21 U.S.C. § 846. To prove
a conspiracy to distribute controlled substances, the government must present proof beyond a
reasonable doubt of an agreement to violate the drug laws and proof that each conspirator knew
of, intended to join, and participated in the conspiracy. United States v. Volkman, 736 F.3d
1013, 1024 (6th Cir. 2013). The government is not required to prove an overt act under § 846.
United States v. Shabani, 513 U.S. 10, 15 (1994).
Because the essence of the crime of conspiracy is agreement, the government must prove
that each member of a conspiracy agreed to participate in what he knew to be a collective
venture directed toward a common goal. Id. (internal quotation marks omitted). “A conspirator
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must intend to further an endeavor which, if completed, would satisfy all of the elements of a
substantive criminal offense, but it suffices that he adopt the goal of furthering or facilitating the
criminal endeavor.” Salinas v. United States, 522 U.S. 52, 65 (1997). The conspirator may do
this “in any number of ways short of agreeing to undertake all of the acts necessary for the
crime’s completion. One can be a conspirator by agreeing to facilitate only some of the acts
leading to the substantive offense.” Id.
1. Lokesh Tayal
Defendant Lokesh Tayal, a pharmacist, contends that the government failed to produce
evidence that he voluntarily joined and participated in the conspiracies to commit health care
fraud and to distribute controlled substances with the knowledge and intent to further the
objectives of the conspiracies. He claims there was no evidence that he took direction from Patel
with regard to filling prescriptions and distributing medications illegally. He argues that the
proof that he may have filled the VDA prescriptions is not sufficient to show that he knowingly
joined with Patel and others to further the two conspiracies charged in the indictment.
Tayal cannot succeed in his appeal because the evidence was sufficient to prove his
involvement in both conspiracies. Arpit Patel, a pharmacy technician, told the jury that he
worked with Tayal at Grand River Pharmacy for approximately three years. He observed Tayal
regularly bill for expensive brand-name medications but not dispense them to patients, in order
to generate a huge profit for the pharmacy. Arpit Patel knew that Tayal ordered medications
from the drug supplier so that, if there were an insurance audit, the type and quantity of
medications brought into stock would match the pharmacy billings. The medications that were
not actually dispensed were held for a week to fifteen days and then returned to the supplier for
credit.
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Arpit Patel also testified that he delivered fraudulent VDA patient prescriptions to
pharmacies controlled by Babubhai Patel, including the Grand River Pharmacy where Tayal
worked as the pharmacist. He delivered two prescriptions for each patient. One prescribed two
to three controlled medications; the other prescribed between three and six noncontrolled
medications. Arpit Patel observed as Tayal created patient profiles in the computer system and
billed for all of the prescriptions, but filled only the controlled medications. Tayal’s initials on
pharmacy documents identified him as the filling pharmacist on VDA prescriptions. For some
VDA prescriptions, Tayal chose which medications to bill for, actually billed for them, and then
directed Arpit Patel to write the prescriptions for those medications on a presigned, blank
prescription pad.
Other evidence against Tayal included the activities of LaVar Carter, who worked as a
patient recruiter. He paid $100 each to homeless or elderly people who possessed Medicare or
Medicaid cards so that they would have a “doctor visit” with a VDA doctor. The doctor wrote
each of these patients prescriptions for Xanax, Lortab, and codeine-infused cough syrup because
those three medications were the most lucrative for Carter to sell illegally on the street. Carter
faxed the patients’ identification cards and their Medicare or Medicaid cards to the pharmacy.
Most of the prescriptions were filled by Tayal at Grand River Pharmacy. Carter loaded the
patients in a van and took them to the pharmacy so they could sign the prescription sheets. Even
though the controlled substances were billed to Medicare or Medicaid, Carter also paid Tayal
$150 to $200 per patient for filling the controlled substance prescriptions. Because Carter
usually took ten patients at a time to Grand River Pharmacy to pick up medications, he paid
Tayal $1,500 to $2,000 per visit, and there were two visits per week. Carter made $3,500 to
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$5,000 each week by selling on the street, at double the pharmacy price, most of the controlled
substances Tayal dispensed.
Pinakeen Patel, another pharmacist, filled in for Tayal on one occasion at Grand River
Pharmacy. He noticed from the pharmacy records that Tayal billed for four medications but
dispensed only three. When he asked about this practice, Tayal described it as “pushing the
medication” so that the pharmacy could recover money for patient co-pays it did not receive.
The fourth medication that Tayal added on to each billing was usually a psychiatric medication
that cost $400 to $500.
Anish Bhavsar, a pharmacist, testified that Babubhai Patel bribed a particular physician to
write fraudulent prescriptions. The doctor sent the prescriptions to two of Patel’s pharmacies to
be filled; one of them was Grand River Pharmacy, where Tayal worked as the pharmacist.
Chetan Gujarathi, Babubhai Patel’s accounting and administrative assistant, testified that he
assisted Babubhai Patel in returning to the supplier $40,000 worth of medications that Tayal
billed but did not dispense at Grand River Pharmacy.
Although wiretap monitors rarely intercepted communications involving Tayal, the
government admitted into evidence at trial a conversation between Tayal and Babubhai Patel
about an FBI raid on their associate, Marcus Jenkins, who owned a home health care business.
Tayal told Patel that the FBI, the Inspector General, and the Detroit Police were there, and that
all of the records were being taken but that no one had been arrested yet. After discussing fraud
practices in the home health care business, Patel stated: “That’s the reason, pharmacy I love it,
nobody can touch.” Tayal responded, “Yeah,” to which Patel replied, “Nothing can happen.”
Through this evidence, the government sufficiently tied Tayal to the Patel conspiracies to
commit health care fraud and illegal distribution of controlled substances so that the jury could
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convict him of counts 1 and 15 beyond a reasonable doubt. Circumstantial evidence proved that
Tayal joined the conspiracies, that he understood the goals and objectives of the conspiracies,
and that he willingly facilitated those goals and objectives. See Salinas, 522 U.S. at 65. Tayal
himself did not have to undertake all of the acts necessary for the crimes’ completion. See id.His conspiracy convictions must stand.
2. Viral Thaker
Viral Thaker concedes on appeal that the “Government through its witness Arpit Patel
established that Viral Thaker was a pharmacist engaged in the illegal practices instituted by
Babubhai Patel on a consistent basis.” Appellant’s Br., Doc. 54 Page ID 15 (citing R. 907 Page
ID 6897–98). The trial transcript citation Thaker provided confirms that Arpit Patel testified
before the jury that Thaker was his supervisor at Glendale Pharmacy, Babubhai Patel was
Thaker’s supervisor, Thaker engaged in fraudulent practices multiple times by billing for
medications that were not dispensed to patients, and the billed-but-not-dispensed medications
were stored in plastic totes and eventually returned to the supplier by Chetan Gujarathi. Thaker’s
only argument is that Arpit Patel could not provide an answer when asked on cross-examination
why the number of controlled substance prescriptions filled at the Glendale Pharmacy doubled
during the six weeks Thaker was out of the country.
In light of Thaker’s concession on appeal that the government proved him guilty of the
conspiracy counts, we need not detail the government’s evidence against him at length. It is
enough to say that the government played a videotape for the jury depicting Thaker engaged in
filling illegal controlled substance prescriptions for undercover agents and a confidential
informant; billing the undercover agents’ Blue Cross/Blue Shield cards for those prescriptions as
well as for other non-controlled drugs that were not dispensed; and providing Cialis pills to the
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agents without a prescription. Other proof against Thaker included both his wiretapped
conversations with Babubhai Patel and the testimony of Arpit Patel, Chetan Gujarathi, and police
officer Thomas Wixon, who conducted a traffic stop of a “patient” recruiter, Leodis Elliott, and
recovered from his car medications that Thaker had illegally dispensed.
Thaker’s sufficiency challenge fails, and we affirm his convictions. Thaker waived any
challenge to his convictions for health care fraud (counts 10–11) and unlawful distribution of
controlled substances (counts 30–31) by failing to address them in his appellate brief. See
United States v. Archibald, 589 F.3d 289, 298 n.7 (6th Cir. 2009).
3. Komal Acharya
The government presented sufficient evidence for the jury to convict Komal Acharya of
conspiracy to commit health care fraud. Acharya concedes that Patel stored boxes of
medications at her apartment that she now knows were part of the fraud scheme, Acharya’s Br.,
Doc. 39 Page ID 24, but her defense is that she did not know before her indictment what the
boxes contained. She relies on the testimony of Chetan Gujarathi, who told the jury that Acharya
did not know what was inside the boxes.
The government, however, presented intercepted telephone calls between Acharya and
Babubhai Patel to demonstrate that Acharya was a member of Patel’s health care fraud
conspiracy. On April 28, 2011, the DEA executed a delayed-notice search warrant at the
apartment of Chirag Soni, who also stored boxes of billed-but-not dispensed medications for
Patel. The DEA made this entry look like a break-in and theft. After Soni notified Babubhai
Patel about the break-in, Patel conversed with Acharya on the phone. When Patel told Acharya
that boxes had been stolen from Chirag’s place, Acharya wanted to know “how” and “who” stole
them. Patel named the person he suspected of committing the theft. In a later call, Acharya
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asked Patel the value of the stolen medications and he told her $500,000. Acharya exclaimed,
“Oh, my God. Can you not catch him?” Patel answered, “I am trying to now. I am going to
search for a private detective and see how we do that and where it is.” Acharya replied, “Legally
you cannot do anything since there was medicine in it. Isn’t it?” She also asked, “Since only he
knew about it, it was from his store, wasn’t it?” But Patel told her the boxes were “from all the
other, all the other stores.” R. 905 Page ID 6548–49, 6555–56, 6565.
Other evidence also reasonably convinced the jury that Arachya was tied to the health
care fraud conspiracy. Patel deposited large sums of money into her account to support her
home health care business at the same time that she stored medication boxes for him. Patel
wrote checks to Acharya totaling $160,000 to pay a bonus to Brijesh Rawal. Patel used this ruse
to help Rawal avoid taxes on the bonus. Acharya deposited Patel’s checks in her personal
account, wrote $140,000 in checks to Rawal, and kept the $20,000 difference. When Arachya
was hospitalized for a medication overdose, Patel called her and asked her not to give her home
address to the hospital staff. He was concerned the police would check her apartment and find
the stored medications.
Acharya also knowingly acted as nominee owner for some of Patel’s pharmacies and
corporations. Patel instructed Chetan Gujarathi to inform Acharya that four new corporations
had been formed for her and that the tax identification numbers had arrived in the mail. When a
representative of Blue Cross/Blue Shield of Michigan wanted to speak to the owner of a
pharmacy, Acharya contacted Gujarathi to obtain all of the documentation so that she could
handle the call. During an intercepted phone call, Patel told Acharya that he had placed six
businesses in her name. She asked for the information about each, including tax identification
numbers, revenue, address, phone number and number of employees. Patel told her that $18
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million would soon be deposited into her accounts. Acharya laughed about whether anyone
would wonder how someone her age could be doing $18 million in business. She also asked
Patel how much he would pay her to be a pharmacy marketer because she had already brought
him five patients.
A rational jury could conclude from this evidence that Acharya understood the nature and
objectives of Patel’s health care fraud conspiracy, that she voluntarily joined it, and that she took
numerous steps to facilitate the conspiracy’s success. She provided a place to hide medications,
she served as a nominee owner of several fraudulent corporations, and she was a conduit for
Patel’s money. The district court correctly denied her motions for judgment of acquittal during
and after trial. We affirm her conviction for conspiracy to commit health care fraud.
C. Patel’s sentencing
Finally, we consider the procedural reasonableness of Patel’s sentencing, an issue we
review for an abuse of the district court’s discretion. See United States v. Davis, 751 F.3d 769,
773 (6th Cir. 2014). A sentence is procedurally unreasonable if the district court improperly
calculated the guideline range. Id. Patel points to error in the district court’s attribution of an
amount of loss more than $7 million but less than $20 million, thereby increasing his base
offense level by 20 levels under USSG § 2B1.1(b)(1)(K) (Nov. 2010). In Patel’s view, the
district court’s sentencing ruling was insufficient to satisfy the instruction of Federal Rule of
Criminal Procedure 32(i)(3)(B) that the court, “for any disputed portion of the presentence report
or other controverted matter” must “rule on the dispute or determine that a ruling is unnecessary
either because the matter will not affect sentencing, or because the court will not consider the
matter in sentencing.” Neither issue compels us to reverse.
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In Rita v. United States, 551 U.S. 338, 356 (2007), issued shortly after our decision in
United States v. White, 492 F.3d 380 (6th Cir. 2007), the Supreme Court explained that a
“sentencing judge should set forth enough to satisfy the appellate court that he has considered the
parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking
authority.” Where the arguments presented are “conceptually simple,” the court’s statement of
reasons, “though brief,” is legally sufficient. Id. In this case, Patel and the government each
filed an extensive sentencing memorandum in the district court discussing the sentencing issues
presented for resolution. Patel’s objection to the amount-of-loss enhancement was conceptually
simple and, in light of the extensive record developed over the course of a six-week jury trial, the
court was not required to hear any additional evidence to resolve the factual dispute. Having
read the parties’ briefs and having heard oral argument at the sentencing hearing, the court
simply ruled that it understood both Patel’s objection and the parties’ positions and that it
accepted the government’s position over Patel’s, leaving in place the twenty-level enhancement
to the base offense level. Although brief, the district court’s ruling complied with Rita and Rule
32(i)(3)(B) because it satisfies us that the court considered the parties’ arguments and had a
reasoned basis for exercising decisionmaking authority.
The court’s decision to overrule Patel’s objection to the sentencing enhancement was not
an abuse of discretion. See Davis, 751 F.3d at 773. The court was not required to determine the
amount of the loss with precision because a reasonable estimate is sufficient. United States v.
Jones, 641 F.3d 706, 712 (6th Cir. 2011); United States v. Kohlbach, 38 F.3d 832, 835 (6th Cir.
1994). The evidence demonstrated that Patel’s entire relationship with VDA was fraudulent so
that one hundred percent of VDA billings—approximately $2.9 million—was properly included
in the amount of the loss. That amount alone added eighteen levels to the base offense level.
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USSG § 2B1.1(b)(1)(J). To justify the addition of two more levels (to 20) for an amount of loss
exceeding $7 million, the government was required to show only that Patel’s fraud generated an
additional $4.1 million in loss. USSG § 2B1.1(b)(1)(K). Where the trial evidence proved that
Patel’s billings to Medicare, Medicaid, and Blue Cross/Blue Shield of Michigan totaled more
than $67 million, only about six percent of those billings must be fraudulent to reach the
additional $4.1 million in loss. Because the trial record provided the district court with a rational
basis to estimate the amount of loss between $7 million and $20 million, we find no abuse of
discretion and affirm the procedural reasonableness of the sentencing calculation. See Davis,
751 F.3d at 773.
III. CONCLUSION
The suppression challenge brought by Patel, Rawal, Thaker, and Tayal to the Title III
wiretap interception of Patel’s cell phones fails because the government showed necessity for the
wiretaps, the wiretap statute permitted government use of foreign language translators to monitor
intercepted calls, and the defendants did not prove that the government failed to minimize
nonpertinent calls. The trial evidence was sufficient to support the convictions of Tayal, Thaker,
and Acharya, and we have not identified any procedural error in Patel’s sentencing.
Accordingly, we AFFIRM the defendants’ convictions and Patel’s sentence.
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