Gregory Molden v. United States

Petitioner in district court appeared in a jury trial with multiple co-defendants three of which like Petitioner were licensed physicians. All of the physicians were charged under an indictment alleging multiple federal criminal violations to wit:

1. “Conspiracy to commit Health Care Fraud” under 18 U.S.C. § 1349.

2. “Conspiracy to Receive and Pay Illegal Health Care Kickbacks” under 18 U.S.C. § 371 and

3. “Health Care Fraud” under 18 U.S.C. § 1347 and 2 All of the alleged criminal violations are also linked to parallel federal statutory provisions such as the False Claim Act at 31 U.S.C. §§ 3729-3733,[ with its sub component Civil Health Care Qui Tam Action], Civil Monetary Penalties pursuant to 42 U.S.C. § 1320a-7a which may subject Health Care providers such as Petitioner to fines or civil penalty under applicable Administrative/Judicial Reviews regulations under the Federal Title XVIII Medicare Program. The option of pursuing a “Criminal Prosecution Path” verus a “Civil Disposition Path” associated with Health Care providers such as Petitioner alleged violations of Medicare Regulations pursuant to 42 U.S.C. § 1395 et seq. and 42 C.F.R. § 400 et seq. forms the basis for the Question Presented below: QUESTION: Is it a constitutional Fifth Amendment Due Process violation when a Health Care provider under the Federal QUESTIONS PRESENTED – Continued Title XVIII Medicare Program is pursued by way of a “Civil Disposition Path” as to alleged regulatory violations and is afforded a more “Expansive Application of Constitutional Due Process Rights” totally based on compliance and or non-compliance with “Federal Title XVIII Medicare Program Regulation”; while a similarly saturated health care provider being “Criminally Prosecuted” for parallel alleged criminal violations to wit: “Health Care Fraud” under 18 U.S.C. § 1349; “Receive and Pay Illegal Health Care Kickbacks” under 18 U.S.C. § 371 and “Health Care Fraud” under 18 U.S.C. § 1347 and 2, in a “Criminal Prosecution Path” is not afforded in a jury trial the ability to apply Federal Title XVIII Medicare Program Regulations in assessing a Government Testifying Medical Experts under Federal Rules of Evidence Rule 702, nor incorporate Federal Title XVIII Medicare Program Regulations into a jury charge nor apply recognized defenses (Safe Harbor) as dictated by the Regulations under the Federal Title XVIII Medicare Program. QUESTION RESTATED Can you divorce Medicare Federal Regulations from a Criminal Trial predicated on the alleged Health Care Criminal Violation under the Federal Title XVIII Medicare Program.