United States v. Memar
906 F.3d 652
7th Cir.2018Background
- Dr. Omeed Memar, a dermatologist, was indicted on eight counts of health-care fraud (18 U.S.C. § 1347) and eight counts of making false statements affecting a health-care matter (18 U.S.C. § 1035(a)(2)) for billing insurers after treating eight patients with intense pulsed light (IPL) and coding for destruction of 15+ actinic keratosis lesions.
- The government advanced two fraud theories: (1) the eight charged patients did not in fact have actinic keratosis; and (2) IPL alone cannot reliably destroy 15+ actinic keratosis lesions yet Memar billed as if it did.
- Evidence included patient testimony denying knowledge or visible signs of actinic keratosis, testimony by a dermatologist that some charged patients lacked lesions, admissions by medical assistants that chart entries were copied without re-examination, and insurer (BCBS) inquiry showing Memar reduced billing afterward.
- Defense presented older bona fide AK patients, a defense expert (Dr. Goldberg) who testified IPL can help, and Memar’s testimony that he believed IPL could work.
- The prosecutor misstated testimony three times in closing (claiming Memar admitted using IPL for photorejuvenation); defense argued the misstatements in rebuttal but did not object at trial.
- The jury convicted on all 16 counts; Memar appealed claiming (a) insufficient evidence and (b) prosecutorial misconduct deprived him of a fair trial; he also raised ineffective-assistance concerns about counsel’s failure to object.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to prove falsity, willfulness, and intent to defraud | Government: record (patient testimony, expert Dr. Ross, assistants’ admissions, billing patterns) permits conviction | Memar: evidence was legally insufficient; differences in medical opinion and possible good-faith belief in IPL efficacy | Affirmed: viewing evidence in government’s favor, a rational jury could find falsity, willfulness, and intent beyond a reasonable doubt |
| Whether IPL-alone theory supported fraud (i.e., claiming IPL destroyed 15+ lesions) | Government: IPL alone is not standard/effective; jury could credit that Dr. Ross rebutted defense studies | Memar: sincere, good-faith medical judgment; some evidence supports off-label use | Affirmed: jury reasonably found IPL alone inadequate and that Memar intended to defraud insurers |
| Prosecutorial misstatements in closing (mischaracterizing BCBS testimony) and effect on fairness | Government: conceded impropriety but argued harmless given instructions and other evidence | Memar: misstatements were serious, deprived him of fair trial | Affirmed: errors inappropriate but not so prejudicial to warrant reversal under plain-error/harmlessness factors |
| Ineffective assistance for failure to object to prosecutor’s remarks | Memar: counsel’s failure to object was deficient and prejudicial | Government/court: such claims need record development and are better raised in 28 U.S.C. § 2255 proceeding | Not reached on the merits: claim deferred; court advised collateral review under § 2255 to develop record |
Key Cases Cited
- United States v. Chhibber, 741 F.3d 852 (7th Cir.) (defines elements for § 1347 liability and supports inferring intent from charting practices)
- United States v. Natale, 719 F.3d 719 (7th Cir.) (supports use of charting and documentation to infer knowing falsity and intent)
- Jackson v. Virginia, 443 U.S. 307 (Sup. Ct.) (standard for reviewing sufficiency of the evidence)
- United States v. Kolbusz, 837 F.3d 811 (7th Cir.) (affirming that jury credibility determinations on medical testimony are controlling)
- Darden v. Wainwright, 477 U.S. 168 (Sup. Ct.) (standard for determining if prosecutor’s conduct denied a defendant a fair trial)
- Puckett v. United States, 556 U.S. 129 (Sup. Ct.) (plain-error review for preserved vs. forfeited objections)
- Strickland v. Washington, 466 U.S. 668 (Sup. Ct.) (ineffective-assistance-of-counsel standard)
- United States v. Hunt, 521 F.3d 636 (6th Cir.) (upholding fraud conviction where billing occurred without adequate medical necessity assessment)
- United States v. Wolfe, 701 F.3d 1206 (7th Cir.) (misstatement of evidence may constitute improper prosecutorial conduct)
- United States v. McMath, 559 F.3d 657 (7th Cir.) (general jury instructions that lawyers’ statements are not evidence can mitigate prosecutorial misstatements)