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Baran learned the ropes from her husband, and when she retired from the RRB, came to be known (like Rutigliano) as a “facilitator” of fraudulent disability benefit applications. Lesniewski and Baran were each convicted of the three substantive fraud counts. A conspiracy is a continuing offense in which “venue is proper in any district in which an overt act in furtherance of the conspiracy was committed by any of the coconspirators. 3Also sufficient was the evidence establishing that venue was proper for the health care fraud charges. Lesniewski submitted insurance claims to a health insurance company (and received payments) in connection with medical visits and procedures undertaken for no reason other than to deceive the RRB. Accordingly, even if the re-certification mailings were sent to the Southern District at the government's initiative, defendants cannot sustain their burden of showing error, much less plain error. Here, “we need not be concerned about jeopardizing the values underlying the substantial contacts tests because [the defendants cannot] argue that being prosecuted in the Southern District imposed an additional hardship on [them], prejudiced [them], or undermined the fairness of [their] trial.” Ramirez, 420 F.3d at 143 (internal quotation marks omitted).
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We apply the ordinary rule that the receipt of profits from an economically motivated conspiracy (here, disability pension payments) constitutes an overt act in furtherance thereof, and reject the argument that the limited exception articulated in United States v. Other circuit courts have explicitly rejected the manufactured venue doctrine and concluded that a defendant's “interests are fully protected by Fed. Even if, in our Circuit, the manufactured venue doctrine provides an additional safeguard against “bias and inconvenience,” id., in a prosecution of a continuing offense, “[t]he concern over a distant district is critical, as the provision for trial in the vicinity of the crime is a safeguard against the unfairness and hardship involved when an accused is prosecuted in a remote place.” United States v. (internal quotation marks and alterations omitted). Otherwise, prosecution for a continuing offense, “committed in more than one district,” may occur “in any district in which such offense was begun, continued, or completed.” 18 U. In light of the continuing duty to re-certify eligibility, the receipt of the disability pension payments cannot be viewed as merely the “result” of a completed conspiracy. In any event, conduct arguably constituting additional overt acts were committed within the limitations period:• Certain of Rutigliano's clients first applied for fraudulent disability pension benefits in 2007;• Lesniewski continued to see patients and signed false medical narratives through at least 2008;• Baran did not even begin providing her services as a “facilitator” until 2008; and• Cooperating coconspirators testified about visits to doctors complicit in the fraud within the limitations period.
Grimm, 738 F.3d 498 (2d Cir.2013), applies in this case. Finally, Rutigliano's concealment from the RRB that he was working (albeit as a disability-fraud “consultant”) is a “deliberate omission” sufficient to “constitute an overt act for purposes of the statute of limitations.” United States v. Accordingly, the features of the ordinary, noncriminal payments in Grimm are not present here and the conspirators' receipt of disability benefits are properly viewed as conduct in furtherance of the conspiracy that occurred within the limitations period.* * *Although Rutigliano premises his statute-of-limitations challenge on Grimm—which concerned only the boundaries of when a series of payments can constitute overt acts in furtherance of a conspiracy for statute of limitations purposes—he summarily argues that the substantive counts of conviction (except one mail fraud count and the false statement count relating to his submission of the re-certification form) should also be dismissed.
Baran, who testified in her own defense at trial, maintained that she filled out the disability applications in good faith, based on information provided by clients and their treating physicians. Baran's clients, however, testified that Baran filled out and submitted on their behalf fabricated applications for benefits that bore no resemblance to their physical conditions. At trial, the defendants requested that the jury be instructed: To determine where venue lies you must consider in which district there were substantial contacts by the defendants to commit the alleged offenses charged. The district court declined to give the requested charge, instead instructing that “the government must prove that some act in furtherance of the charge you are considering occurred in the Southern District of New York․ The government has satisfied its venue obligation if you conclude that it is more likely than not that any act in furtherance of the crimes charged in each count occurred in the Southern District of New York.” Lesniewski App. All three defendants were convicted of conspiracy to commit mail fraud, wire fraud, and health care fraud, and conspiracy to defraud the RRB. Rutigliano also contends that his conviction (except with respect to the substantive mail fraud and false statements counts) cannot stand because his prosecution was barred by the statute of limitations. Tzolov, 642 F.3d 314, 318 (2d Cir.2011) (internal quotation marks omitted). Although we have not previously considered the question, we now hold that a scheme to violate the health care fraud statute is a continuing offense. This doctrine has its limits, but at least the first wiring (and many more) must be deemed in furtherance of the conspiracy.
As one of the go-to doctors, Lesniewski provided medical narratives to LIRR employees designed to convince the RRB that these employees had occupational disabilities—even though these employees were working at the time they consulted with Lesniewski (and Lesniewski never asked them whether they were able to continue to perform their jobs). And when the RRB requested re-certification of the disabilities that ostensibly entitled the coconspirators to continuing benefits, Rutigliano and other members of the conspiracy sent false assurances by mail to the RRB at an address in the Southern District. DISCUSSIONDefendants argue that the government failed to prove proper venue, or improperly manufactured it, and that the district court erred by failing to instruct the jury that venue could only be established if the government proffered evidence of the defendants' “substantial contacts” with the jurisdiction. 18 require that a defendant be tried in the district where his crime was committed.” United States v. Mennuti, 679 F.2d 1032, 1035 (2d Cir.1982) (“[A] conspiracy continues until the conspirators receive their anticipated economic benefits.”).
But because venue is not an element of the offense, “the government need establish it only by a preponderance of the evidence.” United States v. AIn challenging the sufficiency of the government's venue evidence, defendants “bear[ ] a heavy burden, because the reviewing court is required to draw all permissible inferences in favor of the government.” United States v. Defendants argue that the re-certification mailings took place after the conspiracy and mail fraud scheme were over, and thus were not in furtherance of the crimes. These re-certifications were sent in order to ensure continued benefits and to prevent the RRB from discovering the ongoing fraud. The government presented sufficient evidence for a jury to conclude that Lesniewski understood and contemplated that his patients would send paperwork to the RRB to establish and maintain their benefits for their alleged disabilities.
The government bears the burden of proving that venue is proper as to each count. Beech–Nut Nutrition Corp., 871 F.2d 1181, 1188 (2d Cir.1989). Rather, “it need only be shown that [the defendant] acted with knowledge that the use of the mails will follow in the ordinary course of business, or that such use can reasonably be foreseen, even though not actually intended.” Tocco, 135 F.3d at 124 (internal quotation marks omitted).Applins, 637 F.3d 59, 72 (2d Cir.2011) (internal quotation marks omitted). Rutigliano's challenge to this instruction is without merit.“The defendant bears the burden of showing that the requested instruction accurately represented the law in every respect and that, viewing as a whole the charge actually given, he was prejudiced.” Id. Kopstein, 759 F.3d 168, 172 (2d Cir.2014) ( “Instructions are erroneous if they mislead the jury as to the correct legal standard or do not adequately inform the jury of the law.” (internal quotation marks omitted)). He cannot demonstrate that his requested charge “accurately represented the law in every respect.” Applins, 637 F.3d at 72.We conclude that the defendants' claims of error with respect to the jury instructions given on the conspiracy charge, and on the meaning of “occupational disability” are without merit. We reject this argument because each of the substantive offenses was based on a mailing or wire within the applicable limitations period. Eisen, 974 F.2d 246, 263 (2d Cir.1992) (“[T]he statute of limitations in a mail fraud case runs from the date of the charged mailing.”).All of the other challenges raised by the defendants are considered and rejected in a summary order issued simultaneously with this opinion. BACKGROUNDAt trial, the government presented evidence that employees who were fit, steady, and faultless in attendance schemed to create a “paper trail” for the onset of disabilities at the hour they were ready to retire from employment by the LIRR. IIIDefendants challenge the district court's instructions to the jury on the conspiracy charge and on the meaning of “occupational disability.” When a defendant makes a sufficient objection below, “[w]e review challenged instructions de novo but will reverse only if all the instructions, taken as a whole, caused a defendant prejudice.” United States v. Rutigliano asserts that the court's “occupational disability” charge gave insufficient guidance, and improperly allowed the jury to conclude that a retiree had to be incapacitated in order to qualify for benefits.CONCLUSIONFor the foregoing reasons, and those set forth in the summary order, we affirm the judgments of conviction.Tags: Adult Dating, affair dating, sex dating