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Case 7:19-cr-00844-CS Document 46 Filed 01/19/21 Page 1 of 8
2 Grand Central Tower
140 East 45th Street, Suite 17A
New York, NY 10017
Marc L. Mukasey
Partner
212-466-6406
Marc.mukasey@mfsllp.com
January 19, 2020
VIA ECF
Honorable Cathy Seibel
The Hon. Charles L. Brieant Jr.
Federal Building and United States Courthouse
300 Quarropas St.
White Plains, NY 10601-4150
Re: United States v. Goyal
S1 19 Cr. 844 (CS)
Dear Judge Seibel:
This letter brief is respectfully submitted in further support of Dr. Ameet Goyal’s request
to sever the trial of Counts One, Two and Three of the referenced indictment (the “health care
counts”) from Counts Four, Five and Six (the “PPP counts”). For the reasons set forth below, the
PPP counts are not properly joined with the health care counts. The PPP counts should be severed.
A. Background
On or about November 21, 2019, a grand jury in the Southern District of New York
returned a three-count indictment charging Dr. Goyal with participating in a scheme to defraud
patients, the Medicare program, and private insurance plans between January 2010 and March
2017. Count One charged Dr. Goyal with health care fraud, in violation of Title 18, U.S.C. § 1347.
Count Two charged him with wire fraud, in violation of Title 18, U.S.C. §§ 1342 and 2. Count
Three charged false statements relating to health care matters, in violation of Title 18, U.S.C.
§§ 1035 and 2. Dr. Goyal pleaded not guilty to the charges and was admitted to bail.
On or about June 22, 2020, the grand jury returned a six-count superseding indictment
against Dr. Goyal. The superseding indictment carried over Counts One, Two and Three from the
original indictment and added three new counts related to Dr. Goyal’s application, while on bail,
for government-guaranteed Payroll Protection Program (“PPP”) loans intended to help small
businesses during the COVID-19 pandemic. Count Four of the superseding indictment charges
Dr. Goyal with bank fraud, in violation of Title 18, U.S.C. § 1344. Count Five charges false
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Letter to the Hon. Cathy Seibel, U.S.D.J.
January 19, 2020
Page 2
statements to a bank, in violation of Title 18, U.S.C. § 1014. Count Six charges false statements,
in violation of Title 18, U.S.C. § 1001.
On October 8, 2020, the Court addressed various pretrial motions filed by the defense,
including misjoinder and severance of the PPP counts. The Court called this “the closest of the
questions presented by these motions” because “one of the questions I have is whether, even if I
severed, the evidence as to one fraud would be admissible in the trial of the other,” under Federal
Rule of Evidence 404(b). Transcript of October 8, 2020 Hearing (“Tr.”), at 34:8–13. That
question, the Court concluded, was better decided at a later point in time, when Dr. Goyal’s defense
to the health care fraud counts further crystallized. For example, “if a defendant takes intent or
knowledge or similar 404(b) type defenses, mistake, whatever, out of the case, then the similar act
evidence doesn’t come in.” Tr. 48:25–49:3.
The Court also addressed the potential for severe prejudice flowing from the PPP counts.
The Court recognized those counts are a potential “grenade in the jury box,” Tr. 42:5, and that,
“the jury will have a more visceral reaction to [the PPP counts] than to the health care fraud . . . .
[s]o we will have to see what the state of the world is as we get closer [to trial]”, Tr. 51:1–3. In
regard to Federal Rule of Evidence 403, the Court summarized:
[D]epending on how the world is when we try the case, it might be that the PPP
counts feel even more disgusting than the health care fraud counts given that they
involve taking advantage of a national emergency that’s caused real harm to line
one’s pockets during a national crisis. Emotions related to the pandemic may still
be high in March or people may feel that the corner has been turned or people may
be numb. So, you know, the 403 question ought to be determined closer to trial.
Tr. 47:12–20.
On December 22, 2020, the government provided a chart of 163 patients and their billing
claims on particular dates of service that may be discussed or otherwise introduced into evidence
during its case-in-chief. The chart covers approximately 163 different patients, 1000 claims, and
approximately 30 different CPT codes.1
Trial is set for March 29, 2020. At that time, the medical, economic and emotional
devastation wrought by the COVID-19 pandemic is expected to be at or near its worst. See ‘This
Week’ Transcript 1-3-21: Dr. Anthony Fauci, Stacey Abrams, ABC News (Jan. 6, 2021)
https://abcnews.go.com/Politics/week-transcript-21-dr-anthony-fauci-stacey-
abrams/story?id=75022446 (Dr. Anthony Fauci, Director of the National Institute of Allergy and
1
CPT codes are numbers assigned to every task and service a medical practitioner may provide to a
patient including medical, surgical, and diagnostic services. CPT codes are developed, maintained and
copyrighted by the American Medical Association. As the practice of health care changes, new codes are
developed for new services, current codes may be revised, and old, unused codes discarded. Thousands
of codes are in use at any one time.
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Letter to the Hon. Cathy Seibel, U.S.D.J.
January 19, 2020
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Infectious Diseases in the interview stated, “I think we just have to assume that it’s going to be
worse”).
As to the health care counts, Dr. Goyal expects to argue at trial that many of the procedures
that the government claims were “upcoded” were, in fact, appropriately coded. In this regard, he
expects to show that reasonable oculoplastic professionals can disagree about the appropriate
coding for particular procedures. And in certain instances, Dr. Goyal may argue that he believed
in good faith and with sound medical bases that his coding decisions were proper.2
B. Discussion
1. The Health Care Counts And The PPP Counts Are Not Properly Joined
Federal Rule of Criminal Procedure 8(a) provides three potential bases on which multiple
offenses can be properly joined in a single indictment: (1) the offenses are of same or similar
character; (2) the offenses are based on the same act or transaction; or (3) the offenses are
connected with or constitute parts of a common scheme or plan. As set forth in our prior
submissions, the latter two bases are plainly inapplicable: the health care counts and the PPP counts
were not based on the “same act or transaction” and were not part of a “common scheme or plan.”
See United States v. Shellef, 507 F.3d 82, 99–100 (2d Cir. 2007) (severance required where one
set of charges took place before the other set of charges allegedly began); United States v.
Randazzo, 80 F.3d 623, 627 (1st Cir. 1996) (offenses must “grow out of related transactions”);
United States v. Terry, 911 F.2d 272, 276 (9th Cir. 1990) (“No effort is made in the indictment
even to suggest that the offenses are . . . parts of a common scheme.”). That leaves the “same or
similar character” basis as the sole justification for joinder. See Fed. R. Crim. P. 8(a)(1).
The health care counts are not “of the same or similar character” as the PPP counts.
Resolution of the health care counts will depend on the applicability of different CPT codes to
dozens of different complex oculoplastic and reconstructive procedures that deal with the eye
socket, eyelids, tear ducts, and face. The government’s proof is expected to involve the CPT code
selected by Goyal and the other doctors in his practice, over the course of seven years, in multiple
geographic locations. Evidence of insurance claims and reimbursements associated with the code
selection will further implicate the roles of many other employees in Dr. Goyal’s practice such as
surgical coordinators, technicians, billers and assistants.
The PPP counts are of an entirely different character. They involve a wholly different and
unrelated set of persons, issues and actions. The PPP counts have different elements, they lack
temporal proximity, there is no evidentiary overlap, the physical location of the acts is different,
and the alleged victims are different. Most importantly, they have nothing to do with the complex
medical procedures and billing practices performed by Goyal or his fellow doctors, and employees.
The false statements alleged in the PPP counts – concerning Goyal’s status as a person facing
2
Dr. Goyal expressly reserves the right to change, alter, modify and withdraw this approach in whole or
in part as trial nears and the government complies with its disclosure obligations under Federal Rule of
Criminal Procedure 16, Jencks v. United States, 353 U.S. 657 (1957), and Brady v. Maryland, 373 U.S.
83 (1963).
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Letter to the Hon. Cathy Seibel, U.S.D.J.
January 19, 2020
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criminal charges – stand alone, independent of Goyal’s occupation. They bear no similarity to the
health care counts.
Even if the health care counts and the PPP counts were of a “similar character” in that both
are schemes that used a business to obtain money from the government, for purposes of joinder “a
similarity at that level of generality has been frowned upon by the Circuit and by the courts within
it.” Tr. at 43:23–25. “When all that can be said of two separate offenses is that they are of the
‘same or similar character,’ the customary justifications for joinder (efficiency and economy)
largely disappear. . . . At the same time, the risk to the defendant in such circumstances is
considerable.” United States v. Halper, 590 F.2d 422, 430 (2d Cir. 1978); United States v.
Bezmalinovic, No. S3 96 Cr. 97, 1996 WL 737037, at *3 (S.D.N.Y. Dec. 26, 1996) (“The
government’s broad argument that in all the offenses charged, Bezmalinovic used fraud to achieve
his goal of obtaining money, is true of a great number of crimes, not all of which are of a ‘similar
character’ to each other within the meaning of Rule 8(a).”). And even if offenses can be construed
as being of the “same or similar character,” if they involve different times, separate locations, and
distinct sets of witnesses and victims, there would be no comparable saving of trial time as separate
trials would not involve substantial duplication of evidence, repeated burdens on witnesses and
victims, and increased drain upon prosecutorial and judicial resources.
2. Evidence Of One Set Of Counts Would Not Be Admissible At A Trial Of The Other
Set Of Counts
The operative question identified by the Court is whether “evidence as to one fraud would
be admissible in the trial of the other” under Federal Rule of Evidence 404(b). Tr. 34:12–13;
Halper, 590 F.2d at 431 (“The rule . . . requires a severance of offenses that are purportedly of the
‘same or similar character’ unless evidence of the joined offenses would be mutually admissible
in separate trials”).
To be admissible under Rule 404(b), the “other act” evidence must (1) have a proper
evidentiary purpose; (2) be relevant; (3) satisfy Rule 403; and (4) be accompanied by a limiting
instruction, where requested, about the purpose for which the jury may consider it. United States
v. Garcia, 291 F.3d 127, 136 (2d Cir. 2002); United States v. Kellogg, 510 F.3d 188, 199 n. 10 (3d
Cir. 2007) (citing Huddleston v. United States, 485 U.S. 681 (1988)). “[C]aution and judgment
are called for, and a trial judge faced with an other crimes evidence problem should require the
Government to explain why the evidence is relevant and necessary.” United States v. O’Connor,
580 F.2d 38, 43 (2d Cir. 1978). Otherwise, of course, the accused might be convicted because of
his participation in the other crimes rather than because he is guilty beyond a reasonable doubt of
the crime alleged. United States v. Manafzadeh, 592 F.2d 81, 86 (2d Cir. 1979).
Dr. Goyal’s expected defense at a health care fraud trial should not “open the door” to the
PPP counts as “other crimes” evidence. For many of the medical procedures at issue in the health
care counts, knowledge and intent will be “off the table” because Dr. Goyal expects to argue that
the CPT codes he selected were appropriate. “Intent is not placed in issue by a defense that the
defendant did not do the charged act at all.” See Manafzadeh, 592 F.2d at 87. “[O]ther crimes
evidence is inadmissible to prove intent when that issue is not really in dispute.” United States v.
Williams, 577 F.2d 188, 191 (2d Cir. 1978). As this Court stated at the October motions hearing,
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January 19, 2020
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“if the defense is . . . there is no misstatement because this coding is proper based on experts that
the defense would call, a defense that wouldn’t put the defendant's intent at issue, then maybe the
PPP fraud might not come in.” Tr. at 48:8–12.
Relatedly, evidence of a prior act “should not be admitted as proof of the defendant’s
knowledge or intent unless the other act is ‘sufficiently similar to the conduct at issue to permit
the jury reasonably to draw from that act the knowledge [or intent] inference advocated by the
proponent of the evidence.’” United States v. Aminy, 15 F.3d 258, 260 (2d Cir. 1994) (Kearse, J.)
(quoting United States v. Peterson, 808 F.2d 969, 974 (2d Cir. 1987)). In that regard, the
government cannot with a straight face claim that a seven-year scheme involving intricate CPT
codes bears any resemblance to a “yes or no” question about whether a PPP applicant is “subject
to indictment.” Indict. ¶ 38. This too should bar use of one set of counts as 404(b) evidence at a
trial of the other counts.
To the extent that knowledge and intent may partially be at issue for certain of the 163
patients identified in the health care counts, the chronology of events offers another roadblock to
use of the PPP counts as 404(b). The PPP counts would have no relevance to the health care counts
under Rule 404(b) because the PPP counts occurred years later. Although it is logical that a prior
bad act, for example in 2010, may be relevant to show knowledge or intent for a subsequent act,
for example in 2020, courts are skeptical that the reverse is true – i.e., that a bad act in 2020 would
show, retroactively, knowledge or intent for an act in 2010. To impute knowledge or intent from
the subsequent act,
[t]he fact finder must assume that because a person acted expecting or intending a
certain consequence at a later date, he intended that same consequence to occur
when he took that same act some time before, without an obvious mechanism of
why that should be. Instead, it looks more like evidence that is being offered to
show that the accused is a ‘bad guy,’ someone with the propensity to commit
criminal acts. He did it in 2008, so he must have done it in 2004. But this is of
course the exact purpose for which other act evidence under Rule 404(b) is
impermissible. And this is in part why the Third Circuit has expressed its
skepticism of the value of subsequent acts to prove intent and knowledge: ‘[t]he
logic of showing prior intent or knowledge by proof of subsequent activity escapes
us.’ United States v. Boyd, 595 F.2d 120, 126 (3d Cir. 1978).
United States v. Bergrin, No. CRIM. 09-369, 2011 WL 4407433, at *5 (D.N.J. Sept. 21, 2011).
Dr. Goyal’s PPP application in 2020 can offer no insight into his intent, knowledge or
motive on the health care counts that occurred years earlier, between 2010 and 2017. The
government’s use of the PPP acts would simply amount to improper propensity evidence and
should therefore be excluded. See Manafzadeh, 592 F.2d at 88 (“Other” crimes, alleged to have
occurred months after the crimes alleged in the indictment were “not probative of the existence of
any plan in the present case”).
In addition to the lack of relevance, the government can hardly claim that the PPP counts
are “necessary” to prove the health care claims. O’Connor, 580 F.2d at 43. The government’s
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January 19, 2020
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health care case consists of a years-long investigation that culminated in an indictment that covers
tens of thousands of claims, millions of dollars in alleged fraud, and a trial lineup of 163 patient
files, 1000 claims, cooperating and lay witnesses, expert witnesses, and summary charts.
“Prosecutors should content themselves with presenting competent, relevant evidence and refrain
from overkill, which . . . prejudices a defendant’s right to a fair trial.” Wingate v. State, 232 So.
2d 44, 46 (Fla. 3d DCA 1970) (Pearson, C.J., dissenting), cert. denied, 400 U.S. 994 (1971), quoted
in Wingate v. Wainwright, 464 F.2d 209, 211 n. 1 (5th Cir. 1972). The PPP counts would be
overkill at a health care trial.
If the PPP case were tried first, use of the health care fraud counts as 404(b) evidence would
serve no proper purpose. First, the nature of the underlying crime with which Dr. Goyal was
charged and that rendered false his answer on the PPP application whether he was “subject to
indictment” is irrelevant. Second, the government does not need it to establish motive; motive is
not an element of the charged PPP crimes, and, in any event, the motive for lying on a loan
application is self-evident. Third, it makes little sense to introduce weeks of health care evidence
as 404(b) proof at a PPP trial that might take two days, at most. Fourth, the defenses to the PPP
charges – which may center around the difficult and confusing rollout of the PPP program - will
be separate and distinct from the defense in the health care fraud case. Halper, 590 F.2d at 432
(“We fail to see, and the government has failed to demonstrate, how the alleged submission of a
false income tax return is at all relevant to the question whether Halper knowingly intended to
defraud the Medicaid program by allowing his clerical personnel to submit inaccurate laboratory
test invoices; nor can we understand how the wealth of evidence purportedly relating to the
Medicaid fraud indictment was relevant to the question whether Halper knowingly intended to
submit a false personal income tax return”); Wingate, 464 F.2d at 214, n. 5 (“the transcript of the
testimony tending to establish Wingate’s guilt of other crimes is more than twice as long as the
transcript of testimony tending to establish his guilt of the crime charged”).
The health care counts are therefore not admissible as 404(b) evidence at a trial of the PPP
charges.
3. The Prejudicial Effect Will Outweigh Any Probative Value
Even if each set of counts were relevant at a trial of the other, they should be excluded at
separate trials because the probative value of the PPP evidence at a health care fraud trial, and the
probative value of the health care counts at a PPP trial, would be minimal and far outweighed by
the resulting prejudice.
Federal Rule of Evidence 403 provides that “[t]he court may exclude relevant evidence if
its probative value is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” “The term ‘unfair prejudice,’ as to a criminal defendant, speaks
to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on
a ground different from proof specific to the offense charged.” Old Chief v. United States, 519
U.S. 172, 180 (1997). “The prejudice must be unfair in the sense that it could unduly inflame the
passion of the jury, confuse the issues before the jury, or inappropriately lead the jury to convict
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Letter to the Hon. Cathy Seibel, U.S.D.J.
January 19, 2020
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on the basis of conduct not at issue in the trial.” United States v. Quattrone, 441 F.3d 153, 186
(2d Cir. 2006).
Introduction of the PPP counts at a trial of the health care counts would be highly
prejudicial. The inflammatory nature of the PPP proof is guaranteed. Evidence would necessarily
be introduced that the PPP program was designed to help small businesses during the COVID-19
pandemic. The PPP counts will thus evoke the ongoing physical, emotional and financial
devastation wrought by the pandemic. Evidence and argument that the defendant attempted to
fraudulently obtain a PPP loan in the middle of a pandemic will be highly charged and elicit
passionate responses in jurors. On top of that, the defendant here is a medical doctor, whom, the
government will argue, should have been particularly sensitive to the effects of the pandemic. To
be blunt: the PPP allegations against Dr. Goyal will cloud, if not overwhelm, impartial
consideration of the health care fraud charges. The “emotions of the jury will be excited to
irrational behavior.” United States v. Masters, 622 F.2d 83, 87 (4th Cir. 1980).
Indeed, this Court has already surmised that the PPP conduct as 404(b) proof would be “a
grenade in the jury box”, Tr. 42:5, and that “the jury will have a more visceral reaction to it than
to the health care fraud”, Tr. 51:1–2, because the PPP counts “feel even more disgusting than the
health care fraud counts given that they involve taking advantage of a national emergency that’s
caused real harm to line one’s pockets during a national crisis”, Tr. 47:14–17. In short, the PPP
counts are far “more inflammatory than the charged crime[s].” United States v. Paulino, 445 F.3d
211, 223 (2d Cir. 2006) (quoting United States v. Livoti, 196 F.3d 322, 326 (2d Cir. 1999)). And
the “[t]he reverberating clang” of those counts “would drown all weaker sounds.” Shepard v.
United States, 290 U.S. 96, 104 (1933) (Cardozo, J.).
The PPP counts would also be of “minimal evidentiary value.” United States v. Al-
Moayad, 545 F.3d 139, 160 (2d Cir. 2008). The government’s health care fraud proof includes
millions of pages of documents, tens of thousands of insurance claims, plus 163 patients and
1,000 procedures that will be highlighted at trial. In addition, the government has recorded phone
calls, photographs, cooperating and eyewitnesses, search warrant evidence, and an expert witness
who will opine on oculoplastic procedures and associated CPT codes. Against this wealth of proof,
the probative value of the PPP conduct is miniscule. See United States v. McCallum, 584 F.3d
471, 477 (2d Cir. 2009) (“If the incremental value is slight, and the possibility of prejudice
through misuse by the jury great, the court should exclude the evidence under Rule 403.”);
United States v. Mahasin, 442 F.3d 687, 690 (8th Cir. 2006) (Where evidence of other crimes was
“highly prejudicial and had very little probative value in light of the wealth of eyewitness
testimony available”).
No limiting instruction would likely mitigate the prejudicial effect of the PPP evidence,
i.e., the likelihood that the jury would substitute the COVID-19 fraud evidence for consideration
of the elements of the charged crimes. Cf. United States v. Robinson, 560 F.2d 507, 513–14 (2d
Cir. 1977) (“Absent counterbalancing probative value, evidence having a strong emotional or
inflammatory impact . . . may pose a risk of unfair prejudice because it tends to distract the jury
from the issues in the case and permits the trier of fact to reward the good man and to punish the
bad man because of their respective characters despite what the evidence in the case shows actually
happened. . . . The effect in such a case might be to arouse the jury’s passions to a point where
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they would act irrationally in reaching a verdict.”) (internal quotation marks and citations
omitted)). The devastation of the COVID-19 pandemic poses “a serious risk that a joint trial
would . . . prevent the jury from making a reliable judgment about guilt or innocence.” Zafiro v.
United States, 506 U.S. 534, 539 (1993).
C. Conclusion
For the reasons set forth above, evidence of one set of counts would not properly be
admitted under Federal Rule of Evidence 404(b) at a trial of the other set of counts. Accordingly,
a severance of Counts One, Two, and Three from Counts Four, Five and Six should be granted.
If a severance is granted, the defense respectfully requests to address the Court as to the
sequence of the two trials.
Respectfully submitted,
Mukasey Frenchman & Sklaroff LLP
Marc L. Mukasey
Jeff Sklaroff
Torrey Young
Dan Fishbein
Counsel for Defendant Dr. Ameet Goyal
cc: AUSA Margery Feinzig
AUSA Vladislav Vainberg
AUSA David R. Felton