United States v. 4219 University Drive, Fairfax
714 F.3d 782
4th Cir.2013Background
- Claimants owned Defendant Real Property and Defendant Bank Account, which were forfeited after a jury found Dr. Kivanc's proceeds funded health care fraud and money laundering.
- FBI investigated Dr. Kivanc from 2005; Remicade fraud scheme revealed in 2006 after interviews with former employees.
- Dr. Kivanc was indicted in 2010 (distributing controlled substances) and 2011 (health care fraud related to Remicade).
- Property transfers: Defendant Real Property was deeded to Claimants in 1993, transferred back to them by Dr. Kivanc in 2007; renovation funded by funds traced to Remicade proceeds.
- A Wachovia business account and a PNC Bank account were traced to Remicade proceeds
- District court denied Claimants' motions to dismiss as time-barred and to allow remote testimony; jury found for government on both health care fraud and money laundering theories.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the statute of limitations bars forfeiture | Remicade scheme is a single continuing offense | Remicade fraud constitutes separate offenses with separate discovery dates | Remicade fraud constitutes a new offense; action timely for at least one offense; district court affirmed |
| Whether remote testimony was properly denied for Turan and Dr. Kivanc | Good cause and compelling health reasons support remote testimony | Health conditions do not justify remote testimony; it would undermine justice | District court did not abuse discretion; Turan denied remote testimony; Dr. Kivanc denied remote testimony |
| Whether admitting Dr. Kivanc’s statements against interest but excluding affidavit/letter was error under Rule 106 | Rule 106 should permit completion of record with affidavit/letter | Rule 106 does not apply to conversations; no abuse of discretion | Rule 106 not applicable to conversations; no abuse of discretion in excluding affidavit/letter |
| Whether the court erred in failing to give proposed jury instructions, including proportionality for money laundering | Proportionality should apply to both health care fraud and money laundering; theory of the case should be given | Proportionality does not apply to money laundering; given instructions were adequate | Proportionality instruction not required for money laundering; court did not abuse by declining the proposed instruction; no error in theory-of-the-case instruction |
| Whether the Rule 50 motion was improper for lack of evidence of health care fraud and money laundering | Evidence insufficient to show knowings and willfulness; absence of intent | Evidence from Nguyen and Seres shows knowledge, intent, and concealment | Evidence sufficient to support verdict on health care fraud and money laundering; Rule 50 denied |
Key Cases Cited
- United States v. Undetermined Amount of U.S. Currency, 376 F.3d 260 (4th Cir. 2004) (review of factual findings and legal conclusions in forfeiture actions)
- United States v. $515,060.42 in U.S. Currency, 152 F.3d 491 (6th Cir. 1998) (discusses discovery rule under 1621; continuing offenses framework)
- United States v. James Daniel Good Prop. Titled in Name of James Daniel Good, 971 F.2d 1376 (9th Cir. 1992) (discovery rule for forfeiture timing; multiple offenses concept)
- United States v. Suffield Terrace, Skokie, 607 F.3d 504 (7th Cir. 2010) (continuing offenses; multiple offenses for forfeiture timeline)
- United States v. McGauley, 279 F.3d 62 (1st Cir. 2002) (consequence of commingling legitimate funds with illicit proceeds in forfeiture)
- United States v. Baker, 227 F.3d 955 (7th Cir. 2000) (forfeiture of entire property when proceeds and legitimate funds are commingled)
- United States v. One Single Family Residence Located at 15603 85th Ave. N., 933 F.2d 976 (11th Cir. 1991) (forfeiture principles for property containing illicit proceeds)