UNITED STATES of America, Plaintiff-Appellee, v. ACCREDO HEALTH GROUP, INC.; Hemophilia Support Group, Inc., d/b/a Hemophilia Support Group of New Jersey; Nursing Care Management, Inc., d/b/a Hemophilia Association of New Jersey, Defendants-Appellants.
No. 16-3816
United States Court of Appeals, Third Circuit.
January 19, 2018
880 F.3d 89
Despite this evidentiary shortcoming, Greenfield insists that the taint of a kickback renders every reimbursement claim false. Because Accredo was violating the Anti-Kickback Statute while submitting federal claims for reimbursement, he argues, the alleged kickbacks need not have any connection to the claims or the underlying medical care. Again we disagree. A kickback does not morph into a false claim unless a particular patient is exposed to an illegal recommendation or referral and a provider submits a claim for reimbursement pertaining to that patient. Even if we assume Accredo paid illegal kickbacks, that is not enough to establish that the underlying medical care to any of the 24 patients was connected to a breach of the Anti-Kickback Statute; we must have some record evidence that shows a link between the alleged kickbacks and the medical care received by at least one of Accredo‘s 24 federally insured patients. Because Greenfield provides no such evidence (not that any of the 24 received a referral or recommendation to use Accredo‘s services or even that any of the 24 were members of HSI/HANJ), his case cannot proceed to trial. Accordingly, the District Court correctly entered summary judgment for Accredo.
IV. CONCLUSION
The Anti-Kickback Statute prohibits kickbacks regardless of their effect on patients’ medical decisions. Because any kickback violation is not eligible for reimbursement, to certify otherwise violates the False Claims Act. Yet there must be some connection between a kickback and a subsequent reimbursement claim. It is not enough, as Greenfield contends, to show temporal proximity between Accredo‘s alleged kickback plot and the submission of claims for reimbursement. Likewise, it is too exacting to follow Accredo‘s approach, which requires a relator to prove that federal beneficiaries would not have used the relevant services absent the alleged kickback scheme. Instead, Greenfield must show, at a minimum, that at least one of the 24 federally insured patients for whom Accredo provided services and submitted reimbursement claims was exposed to a referral or recommendation of Accredo by HSI/HANJ in violation of the Anti-Kickback Statute. Because he has failed to do so, we affirm.
Ramon Andrew WILLIAMS a/k/a Andrew Denton Williamson a/k/a Ramon Williams, Petitioner v. ATTORNEY GENERAL UNITED STATES of America, Respondent
Nos. 16-3816, 17-1705
United States Court of Appeals, Third Circuit.
Argued November 8, 2017 (Opinion Filed: January 19, 2018)
880 F.3d 100
Chad A. Readler, Acting Assistant Attorney General, Terri J. Scadron, Assistant Director, Shahrad Baghai, Christina Greer, United States Department of Justice, Office of Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Counsel for Respondent.
Before: SMITH, Chief Judge, HARDIMAN, Circuit Judge, and BRANN, District Judge*
OPINION
SMITH, Chief Judge.
In this consolidated proceeding, Ramon Williams asks us to consider whether a prior conviction under Georgia‘s forgery statute,
I.
Williams, a citizen of Guyana and a lawful permanent resident of the United States, immigrated to this country in 1970, when he was thirteen months old. He has no family in Guyana; his parents, grandparents, siblings, and children are all United States citizens. In 2006, he pleaded guilty in Georgia state court to five counts of first degree forgery pursuant to
In 2013, Williams received a notice to appear charging him as removable as a result of having been convicted of an aggravated felony. See
Williams timely filed a petition for review, and also sought reconsideration before the BIA in light of the Supreme Court‘s decision in Mathis v. United States, — U.S. —, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). In his motion for reconsideration, Williams argued that Georgia‘s forgery statute is indivisible under Mathis and is overbroad because it criminalizes some conduct that does not relate to forgery, namely, false agency endorsements. The BIA denied the reconsideration motion, and Williams timely filed a second petition for review.
The petitions have been consolidated. We have jurisdiction over them pursuant to
II.
The issue of whether Williams‘s conviction under the Georgia forgery statute qualifies as an aggravated felony is a question of law over which we have jurisdiction.
III.
The INA provides for the deportation of an alien “who is convicted of an aggravated felony.”
A.
At the time of Williams‘s conviction, Georgia‘s forgery statute provided:
A person commits the offense of forgery in the first degree when with intent to defraud he knowingly makes, alters or possesses any writing in a fictitious name or in such manner that the writing as made or altered purports to have been made by another person, at another time, with different provisions, or by authority of one who did not give such authority and utters or delivers such writing.
Under the categorical approach, we look to the substance of the statute of conviction to determine whether it categorically fits within the “generic” federal definition of the corresponding aggravated felony, without considering the facts of the particular case. Id.; see also Mathis, 136 S.Ct. at 2249 (“The comparison of elements that the categorical approach requires is straightforward .... The court ... lines up that crime‘s elements alongside those of the generic offense and sees if they match.“). We thus compare the state and federal offenses “in the abstract,” consulting only their respective elements to determine whether the state conviction “necessarily involved facts equating to the generic federal offense.” Moncrieffe, 569 U.S. at 190 (internal quotation marks and alterations omitted) (quoting Shepard v. United States, 544 U.S. 13, 24 (2005)).
Before we may conduct this comparison, we must consider what constitutes the “generic federal offense” of forgery. See id. As we observed in Drakes v. Zimski, Congress has not articulated a specific
Here, however, the definition of the term “forgery” is not enough, on its own, to answer the question of whether the crime defined in section 16-9-1 of the Georgia Code is “an offense relating to forgery” within the meaning of the INA. Accordingly, in comparing the generic federal offense to the Georgia statute, we employ a “looser categorical approach.” Flores v. Atty. Gen., 856 F.3d 280, 286 (3d Cir. 2017) (applying this approach in analyzing whether an alien had been convicted of offenses “relating to obstruction of justice“). Under this looser approach, we do not require a precise match between the elements of the generic federal crime and those of the Georgia offense. Id. at 291. Instead, we “survey the[ir] interrelationship” and consider whether there is “a logical or causal connection” between them. Id. (quoting Denis, 633 F.3d at 212). We may conclude that the crimes are logically connected if they both “target the same, core criminal conduct such that they are ‘directly analogous.‘” Id. And, we may conclude that the crimes are causally connected where there is a “link between the alien‘s offense and a listed federal crime: without the listed federal offense, the alien‘s offense could not have occurred.” Id. Because the parties agree that there is no “causal connection” between the federal and state crimes under discussion here, our focus is the “logical connection” between them.
B.
Williams‘s primary claim is that the Georgia forgery statute is broader than the federal common law definition of forgery because it punishes the possession of certain “genuine” documents, namely, documents that “purport[] to have been made ... by authority of one who did not give such authority.”
As a threshold matter, the Government argues that, although false agency endorsement may technically fall within the Georgia statute‘s language, Georgia does not actually prosecute false agency endorsement as forgery. Accordingly, the Government claims, Williams has established no more than a “theoretical possibility” that Georgia would apply its statute to conduct falling outside the federal definition of forgery. See Singh v. Atty. Gen., 839 F.3d 273, 278 (3d Cir. 2016).
Williams responds that there is Georgia case law demonstrating that the State actually prosecutes false agency endorsement as forgery, citing Warren v. State, 309 Ga.App. 596, 711 S.E.2d 108 (2011). In Warren, a business manager of a medical practice used business checks to pay personal credit card debt without the authorization of her employer. The Court of Appeals of Georgia concluded that the evidence was sufficient to support her conviction of first degree forgery because it showed that, “with intent to defraud the doctor and his medical practice, she
In a supplemental appendix, Williams provided a copy of the Warren indictment as further support for his position that the Georgia forgery statute is employed to prosecute false agency endorsement. See S.A. 1-18. The indictment indicates that the defendant was charged with first degree forgery for signing her own name to a check, “purportedly on behalf of [the medical practice] as an authorized signatory of [the medical practice], but having not been written and signed with the authority of [the medical practice and the doctor], and did utter said check.” S.A. 2, Count 5. In other words, the Warren defendant‘s signature was her own but was made without authorization of the principal, and therefore was a false agency endorsement. Inasmuch as both the Warren indictment and the opinion of the Court of Appeals of Georgia support Williams’ view, and the Government has not offered anything to rebut that evidence, we conclude that Williams has established a sufficiently “realistic probability” that Georgia would apply its forgery statute to false agency endorsement. See Singh, 839 F.3d at 278 (quoting Moncrieffe, 569 U.S. at 191).
Next, Williams contends that, in contrast to the Georgia statute, the federal common law definition of forgery does not extend to false agency endorsement, making the Georgia statute broader than the federal version of the crime. But whatever the scope of forgery under federal law, Congress expressly extended its coverage to offenses “relating to” forgery. We must therefore resolve the question of whether the Georgia statute‘s inclusion of false agency endorsement extends so far beyond the traditional common law definition that it criminalizes conduct that is unrelated to forgery. Employing the looser categorical approach, we conclude it does not. See Flores, 856 F.3d at 286.
Williams argues that false agency endorsements do not relate to forgery because they do not involve a “false instrument,” and a false instrument, he contends, is at the core of the federal common law crime. See Pet. Br. at 29. Although a false instrument is an integral aspect of common law forgery, we cannot agree with Williams‘s argument that the falsity of the instrument must appear on the face of the document in order for an offense to “relate to” forgery. Even if facial falsity is viewed as an essential element of common law forgery that is missing from the provision of Georgia‘s statute prohibiting false agency endorsement, the omission of an essential element simply does not resolve whether the conduct is “related” for purposes of the INA. See Bobb, 458 F.3d at 219.
In conducting the necessary survey of the interrelationship between common law forgery and false agency endorsement, we are satisfied that, although their elements do not line up with precision, the crimes share a logical connection. See Flores, 856 F.3d at 291. We offer a series of related examples to demonstrate the analogous nature of the two crimes, taken from the example in Warren, the Georgia case to which Williams refers.
First, we consider the most straightforward scenario: if the defendant in Warren had signed her employer‘s name rather than her own name on the business checks, then we may uncontroversially conclude that her act would fall within the quintessential common law definition of forgery. The forged instrument would, on its face, reflect the sort of falsity in execution that
The Government also points us to the Model Penal Code and a number of state statutes employing the Model Penal Code‘s provisions as a source for a “broad minority definition” of forgery that extends to false agency endorsement. See
To our knowledge, only one other Court of Appeals has published a decision interpreting
Up to this point, we concur with the Ninth Circuit‘s analysis. But, we diverge from its ultimate conclusion: that the California statute‘s application to “genuine instrument[s],” including false agency endorsements, means that it extends to conduct that does not “relate to” forgery. Id. at 876-77. Relying on a facial falsity premise much like the one Williams proposes, the Ninth Circuit summarily concluded that “[e]xpanding the definition of offenses ‘relating to’ forgery to include conduct where documents are not altered or falsified [would] stretch[] the scope too far.” Id. at 877. Because we conclude that concerns about the inauthenticity or unauthorized nature of a written instrument establish a logical relationship between common law forgery and false agency endorsement, we respectfully disagree with the premise that the falsity of the instrument must be reflected on its face in order for conduct to “relate to” forgery.
Another important distinction is the degree to which the “relating to” language of
C.
Williams presents a secondary argument as to the purported overbreadth of the Georgia forgery statute, contending that the Georgia statute is missing a necessary element of federal common law forgery: a requirement that the forged instrument be “capable of effecting a fraud” or have “legal efficacy.” Relatedly, Williams argues that the absence of the “legal efficacy” element extends Georgia‘s statute beyond the commercial realm into merely “personal” acts and such personal acts do not relate to forgery for purposes of the INA.4
The Government retorts that Williams waived this argument because he did not present it to the BIA. Williams disagrees,
We accept that the claim presented on appeal is sufficiently similar to the argument presented to the BIA to satisfy the exhaustion requirement. Nonetheless, we are not persuaded that it has merit. In Bobb, we observed that, “[a]t their core, all common law forgery offenses contain an element an intent to deceive.” 458 F.3d at 218. Analogously, the Georgia forgery statute expressly sets forth an “intent to defraud” as one element of the crime.
To the extent Williams contends that the common law definition goes a step further by looking to the potential effect of the forged instrument on its victim rather than the intent of the forger alone, such a minute distinction does not carry the day. Even apart from our skepticism about this claim, in Bobb, we observed that a state criminal statute can relate to forgery even where it “encompasses conduct beyond the traditional definition of forgery, and includes criminal conduct that is causally connected to forgery, but may lack as an essential element an intent to defraud or deceive.” 458 F.3d at 219. Thus, so long as the Georgia statute covers conduct that is logically or causally connected to forgery—which, undoubtedly, it does—it is of no moment that a supposed additional “essential element” of the generic federal definition, such as the ability of the forged instrument to cause harm to a victim, might theoretically be absent from the Georgia statute. See id.
Moreover, there is no basis for concluding that the Georgia statute lacks this element and therefore extends to conduct that is purely “personal” or “non-commercial” in nature. Notably, Williams offers no evidence to support his contention that there is a “personal” version of forgery that would be subject to prosecution in Georgia and yet be exempted from the federal common law conception of fraud. We see no “realistic probability” that the State would apply its forgery statute in this manner. Singh, 839 F.3d at 278 (quoting Moncrieffe, 569 U.S. at 191). Accordingly, Williams‘s argument fails.
IV.
For the foregoing reasons, these consolidated petitions for review will be denied.5
UNITED STATES of America, Plaintiff-Appellee, v. Michael Lawrence MAYNES, Jr., a/k/a Kamile Jones, a/k/a Mac Mill, a/k/a Horseblock, Jr., Defendant-Appellant.
No. 16-4732
United States Court of Appeals, Fourth Circuit.
Argued: December 7, 2017 Decided: January 18, 2018
880 F.3d 110