Order, Motions in Limine — United States v. Ron Elfenbein (D. Md., Dkt. 44, July 6, 2023)

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An Order filed July 6, 2023 as Document 44 in United States v. Ron K. Elfenbein, Crim. No. JKB-22-0146, in the U.S. District Court for the District of Maryland, ruling on motions in limine filed by Defendant Ron Elfenbein (ECF No. 37) and the Government (ECF No. 38). It grants in part and denies in part the defendant's motion to exclude the Government's summary exhibits, ordering parentheticals with the American Medical Association's descriptions of CPT codes if the Government keeps its billing descriptions in the exhibits it lists. It denies the requests to exclude exhibits that display the amount billed or chart tax returns (GX135). It denies the Government's Omnibus Motion in Limine, with several requests denied without prejudice.

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Case 1:22-cr-00146-JKB Document 44 Filed 07/06/23 Page 1of5

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

*

UNITED STATES OF AMERICA *
v. * _ CRIM. NO. JKB-22-0146
RON K. ELFENBEIN, *
Defendant. *
* * * * * * * *, 7 * * * *
| ORDER

Pending before the Court are Motions in Limine filed by Defendant Ron Elfenbein (ECF

No. 37) and the Government (ECF No. 38). The Court has reviewed the record and is prepared to

rule on these motions. It is ORDERED that:

1. Dr. Elfenbein’s Motion in Limine to Exclude the Government’s Summary Exhibits (ECF
No. 37) is DENIED IN PART AND GRANTED IN PART.

a. Dr. Elfenbein’s request to exclude summary exhibits with “inaccurate definitions”
of billing codes (ECF No. 37 at 4-14) is GRANTED IN PART. Assuming the
summary charts at issue replicate the language used in underlying Medicare claims
data, such language would likely meet the “accuracy” requirements of Fed. R. Evid.
1006. See United States v. Janati, 374 F.3d 263, 272 (4th Cir. 2004). But the
discrepancy between the billing descriptions used in the Government’s summary
charts and the American Medical Association’s CPT Code Manuals risks confusing
the issues and misleading the jury. These dangers significantly outweigh the
probative value of introducing abbreviated billing descriptions in a summary chart.

See Fed. R. Evid. 403. If the Government wishes to retain the descriptions at issue
Case 1:22-cr-00146-JKB Document 44 Filed 07/06/23 Page 2 of 5

_in GX102, GX104, GX105, GX106, the Government is ORDERED to include
prominently featured parentheticals providing the American Medical Association’s
descriptions of the relevant CPT codes in those exhibits.

b. Dr. Elfenbein’s request to exclude summary exhibits that “aggregate allegedly
fraudulent claims with uncharged, non-fraudulent claims” (ECF No. 37 at 14-19)
is DENIED. The exhibits identified by Dr. Elfenbein are not facially
misleading. Evidence concerning the universe of Dr. Elfenbein’s transactions
during the relevant time period is sufficiently probative of the charged scheme to
permit the jury to consider the uncharged conduct in dispute. For example, the
proportion of Dr. Elfenbein’s allegedly fraudulent claims compared to non-
fraudulent claims could help the jury determine whether the disputed submissions
were mere accidents or whether there was an ongoing scheme to defraud.

c. Dr. Elfenbein’s request to exclude summary exhibits that display the “amount
billed” in addition to the “actual amount paid” (ECF No. 37 at 19-23) is DENIED.
The Government is permitted to introduce evidence of the amount Dr. Elfenbein
submitted to insurers. Cross-examination will undoubtably mitigate any risk that
such evidence would confuse the jury or unfairly prejudice Dr. Elfenbein.

d. Dr. Elfenbein’s request to exclude GX135, the Government’s chart summarizing
Dr, Elfenbein’s tax returns (ECF No. 37 at 23-25), is DENIED. While the Court is
not convinced this exhibit is highly relevant, it is at least minimally probative of
Dr. Elfenbein’s motive and intent. See United States v. Bajoghli, 785 F.3d 957, 966
(4th Cir. 2015) (“[E]vidence of financial gain is particularly probative in a fraud .

case to establish the defendant’s intent to defraud.”); see also United States v. Shah,
Case 1:22-cr-00146-JKB Document 44 Filed 07/06/23 Page 3 of 5

Crim. No. MJG-16-0430, 2018 WL 835718, at *2 (D. Md. Feb. 13, 2018)
(admitting into evidence tax returns where defendant was “charged with a financial
crime (i.e., wire fraud), which naturally raises issues involving how the proceeds of
that crime are accounted for on tax returns”).

2. The Government’s Omnibus Motion in Limine (ECF No. 38) is DENIED:

a. The Government’s request to preclude argument or evidence relating to “any
‘blame the victim’ defenses” (ECF No. 38 at 2-5) is DENIED WITHOUT
PREJUDICE. The Government argues that it would be improper to argue “that
because Medicare and other insurers paid the claims submitted by and through Drs
ERgent Care, Defendant could not have defrauded Medicare and other insurers, or
known that the claims were fraudulent.” (ECF No. 38 at 2-3.) Dr. Elfenbein
represents that he does not intend to “argue that insurers’ failure to discover the
alleged fraud absolves him of criminal liability,” (ECF No. 39 at 1), and indeed
such an argument would be improper. See United States v. Colton, 231 F.3d 890,
903 (4th Cir. 2000); United States v. Blair, Crim. No. ELH-19-00410, 2021 WL
5040334, at *36 (D. Md. Oct. 29, 2021). Nevertheless, Dr. Elfenbein argues that
he should be allowed to present evidence that insurers’ conduct affected his
subjective intent. (ECF No. 39 at 2.) The insurers’ payment of the allegedly
fraudulent claims, without more, would likely be inadmissible to show Dr.
Elfenbein’s intent. United States v. Brown, 820 F. App’x 191, 197 (4th Cir. 2020)
(“A victim’s perception of the scheme to defraud is irrelevant to whether the
defendant intended to defraud the victim.” (citing Colton, 231 F.3d at 903)); see

also United States v. Amico, 486 F.3d 764, 780 (2d Cir. 2007) (“The majority of
Case 1:22-cr-00146-JKB Document 44 Filed 07/06/23 Page 4 of 5

circuits to address the issue have rejected this defense, holding that a victim’s lack
of sophistication is not relevant to the intent element of mail or wire fraud”); United
States y. Udeokoro, Crim. No. 17-629 (AMD), 2023 WL 4138477, at *7 (E.D.N.Y.
June 22, 2023) (“{C]ourts in this district have precluded defendants from arguing
that the payment of claims demonstrates a defendant’s good faith and lack of
intent.”); United States v. Schena, Crim. No. 5:20-00425-EJD-1, 2022 WL
2910185, at *5 (N.D. Cal. July 23, 2022) (“By arguing that he lacked the requisite
intent because the insurance companies continued to reimburse submitted claims,
Defendant attempts to shift blame onto the victims of his alleged scheme[.]”). In
certain circumstances, however, evidence of insurers’ conduct could be relevant to
Dr. Elfenbein’s state of mind. See, e.g., United States v. Golfo, Crim. No. 19-
00095(KAM), 2020 WL 2513445, at *5 (E.D.N.Y. May 15, 2020) (“On the other
hand, defendant may be able to present evidence that Medicaid or other payors
affirmatively instructed defendant to submit claims in a certain form, and that,
defendant’s good faith adherence to these instructions induced her to submit the
allegedly fraudulent claims underpinning the government’s case. If so, defendant
could legitimately argue her intent to defraud was negated.”). A comprehensive
determination on this issue would be premature, as it depends on the specific
evidence or argument and the context in which it will be offered at trial.
Accordingly, Mr. Elfenbein SHALL WARN both the Court and the Government
prior to placing any such evidence before the jury.

b. The Government’s request to preclude evidence or argument regarding its decision

not to call an individual to testify (ECF No. 38 at 5) is DENIED WITHOUT
Case 1:22-cr-00146-JKB Document 44 Filed 07/06/23 Page 5of5

PREJUDICE, subject to reconsideration on motion by the Government at trial.
Such a determination will depend on the particular circumstances surrounding a
missing witness, and is therefore not yet ripe for decision.

c. The Government’s request to preclude expert testimony speculating about Dr.
Elfenbein’s subjective intent in assigning CPT codes for COVID-19 testing
services (ECF No. 38 at 6-8) is DENIED WITHOUT PREJUDICE, subject to
reconsideration on motion by the Government if and when Dr. Elfenbein seeks to
present such evidence at trial. Given the allegations charged in the Superseding
Indictment (ECF No. 29), the Court can envision a scenario where expertise would
be helpful in discerning the facts that occurred, such as whether particular conduct
fit within a particular CPT code. However, such testimony could be problematic
under Fed. R. Evid. 704(b) if it wades into speculation or opinion about why Dr.
Elfenbein did what he did, even if couched in more general terms of what doctors
generally do when making these determinations. Again, determination of this issue
will depend on the specific testimony and context at trial and is therefore not ripe

for disposition at this time.

It is SO ORDERED.

Dated this (A day of July, 2023.
BY THE COURT:

Jamés K. Bredar
Chief Judge


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