United States’ Opposition to Defendant’s Motion in Limine to Exclude Government’s Summary Exhibits — No. 1:22-CR-00146 (Dkt. 40, D. Md.)

Summary

In this filing of June 29, 2023, federal prosecutors in the District of Maryland oppose Ron K. Elfenbein's motion in limine to exclude the government's summary exhibits (No. 1:22-CR-00146-JKB). The superseding indictment of January 11, 2023, charges Elfenbein with five counts of health care fraud as an owner and the medical director of Drs ERgent Care, a Maryland urgent care clinic that offered drive-through COVID-19 testing. The government expects to show that Medicare and other insurers were billed approximately $30 million, of which approximately $10 million was paid, with nearly every COVID-19 test also billed as an evaluation and management visit. It argues the charts are admissible under Federal Rules of Evidence 1006 and 611(a), that their visit-time references come directly from the Medicare claims data, and that exhibit 18 accurately reflects two aspects of the tax records.

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UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

UNITED STATES OF AMERICA,

v. CASE NO. 1:22-CR-00146-JKB

RON K. ELFENBEIN,

Defendant.
_____________________________/

UNITED STATES’ OPPOSITION TO DEFENDANT’S MOTION IN LIMINE
TO EXCLUDE GOVERNMENT’S SUMMARY EXHIBITS

The United States of America, through undersigned counsel, hereby opposes and responds

to Defendant’s motion in limine to exclude the Government’s summary exhibits, ECF 37. For the

reasons stated below, the Court should deny Defendant’s motion.

PROCEDURAL AND FACTUAL BACKGROUND1

On January 11, 2023, Defendant was charged in a Superseding Indictment with five counts

of execution of a health care fraud scheme, in violation of 18 U.S.C. § 1347. See ECF 29. For

approximately one and a half years, Defendant caused Medicare and other insurers to be

fraudulently billed approximately $30 million, of which approximately $10 million was paid.

The Superseding Indictment alleges that Defendant was an owner and the medical director

of Drs ERgent Care, an urgent care clinic in Maryland that provided drive-through COVID-19

testing. In addition to billing individuals’ insurance for COVID-19 tests, Defendant required that

1
This Section outlines what the Government expects the evidence will show at trial. The
Government expects to prove its case through, among other evidence, the testimony of former
employees of the Defendant’s urgent care clinic, individuals who obtained COVID-19 tests at the
Defendant’s clinic, a Medicare program witness, a CareFirst Blue Cross Blue Shield witness, a
summary witness, other witnesses, and documents, including e-mails, Medicare records, billing
data, and summary exhibits.
the COVID-19 tests and reporting of results be bundled with more lucrative, but medically

unnecessary, evaluation and management services that were not provided as represented. That is,

the insurance carrier of nearly every patient who came to Defendant’s clinic for a COVID-19 test

was also billed for an evaluation and management visit of purportedly 30 or more minutes in

duration or involving moderate or high levels of medical decision making. Rather than providing

such evaluation and management visits, Defendant instructed providers that patients were there

only to be tested, that the providers were not there to address complex medical issues, and that

patients should be seen in five minutes or less. Defendant nevertheless instructed the providers to

bill for high-level office visits.

LEGAL STANDARD

Federal Rules of Evidence 1006 and 611(a) set forth the standards for admissible charts

and summaries. Rule 1006 provides that the proponent of evidence

may use a summary, chart, or calculation to prove the content of
voluminous writings, recordings, or photographs that cannot be
conveniently examined in court. The proponent must make the
originals or duplicates available for examination or copying, or both,
by other parties at a reasonable time and place. And the court may
order the proponent to produce them in court.

Fed. R. Evid. 1006. “The purpose of this Rule is to reduce the volume of written documents that

are introduced into evidence by allowing in evidence accurate derivatives from the voluminous

documents.” United States v. Janati, 374 F.3d 263, 272 (4th Cir. 2004). “To comply with this

Rule, therefore, a chart summarizing evidence must be an accurate compilation of the voluminous

records sought to be summarized.” Id. (emphasis in original). Rule 1006 does not require that the

underlying evidence be introduced into evidence, and therefore “the chart itself is admitted as

evidence in order to give the jury evidence of the underlying documents.” Id. (citing Bristol Steel

& Iron Works v. Bethlehem Steel Corp., 41 F.3d 182, 190 (4th Cir. 1994)).

2
Succinctly stated, the following elements must be satisfied to permit
admission under Rule 1006: (1) the summarized material must be
‘voluminous’ and not conveniently subject to examination in court;
(2) the summary or chart must be an accurate compilation of the
voluminous records; (3) the records summarized must be otherwise
admissible into evidence; and (4) the underlying documents must be
made available to the opposing party for examination and copying.

United States v. Ging-Hwang Tsoa, 2013 WL 6145664, at *4 (E.D. Va. Nov. 20, 2013) (citing

Janati, 374 F.3d at 272; United States v. Loayza, 107 F.3d 257, 264 (4th Cir. 1997)).

Rule 611(a) has been interpreted to provide an alternate avenue for introduction of charts

and summaries for voluminous documents already in evidence. Fed. R. Evid. 611(a); see United

States v. Johnson, 54 F.3d 1150, 1159 (4th Cir. 1995); United States v. Janati, 374 F.3d 263, 272

(4th Cir. 2004). Rule 611(a) permits summary charts “to facilitate the presentation and

comprehension of evidence already in the record.” United States v. Simmons, 11 F.4th 239, 262

(4th Cir. 2021). In the Fourth Circuit, Rule 611(a) summary charts may be admitted into evidence.

See Johnson, 54 F.3d at 1159 (holding summary charts may be admitted into evidence under Rule

611(a)); Simmons, 11 F.4th at 262 n.12 (holding that Johnson governs, rather than Janati, and

summary charts may be admitted into evidence under Rule 611(a)).

To meet the relevance standard, “evidence need only be ‘worth consideration by the jury,’

or have a ‘plus value.’” United States v. Leftenant, 341 F.3d 338, 346 (4th Cir. 2003) (quoting

United States v. Queen, 132 F.3d 991, 998 (4th Cir. 1997)). Relevant evidence may be excluded

if its probative value is “substantially outweighed by a danger of” unfair prejudice, confusing the

issues, or misleading the jury, among other bases for exclusion. Fed. R. Evid. 403. “Once it is

recognized that evidence is probative of an element of the crime charged, ‘the balance under Rule

403 should be struct in favor of admissibility, and evidence should be excluded only sparingly.’”

United States v. Bajoghli, 785 F.3d 957, 966 (4th Cir. 2015). “Under Rule 403, ‘damage to a

defendant’s case is not a basis for excluding probative evidence’ because ‘[e]vidence that is highly
3
probative invariably will be prejudicial to the defense.’” United States v. Patrick, 2019 WL

5304211, *2 (W.D. Va. Oct. 21, 2019) (quoting United States v. Grimmond, 137 F.3d 823, 833

(4th Cir. 1998)). “Unfair prejudice exists ‘when there is a genuine risk that the emotions of a jury

will be excited to irrational behavior, and this risk is disproportionate to the probative value of the

offered evidence.’” Id. (quoting United States v. Williams, 445 F.3d 724, 730 (4th Cir. 2006)).

ARGUMENT

Defendant’s motion to exclude the Government’s proposed summary exhibits should be

denied because the charts and summaries are accurate, relevant, and admissible. First, the

Government’s summary exhibits accurately summarize the underlying data. Second, the summary

exhibits that include both the allegedly fraudulent billing and other billing by Drs ERgent Care are

clear and accurate, and they appropriately explain precisely what is captured in the exhibit. Third,

the inclusion of amounts billed by Drs ERgent Care is highly relevant as prima facie evidence of

the intended loss caused by Defendant’s fraudulent conduct. Finally, the Government’s chart

reflecting Defendant’s personal tax returns is relevant to Defendant’s motive and intent, and does

not risk any unfair prejudice.2

I. The Government’s Proposed Summary Exhibits Accurately Summarize The
Underlying Data And Are Not Unfairly Prejudicial.

Defendant’s argument that certain of the Government’s charts and summaries rely on

inaccurate descriptions of the evaluation and management Current Procedural Terminology

(“CPT”) codes is flawed. For example, Defendant contends that GX102, which summarizes

Medicare claims data for the claims at issue in Counts 1-3, uses inaccurate descriptions. However,

2
Defendant does not challenge that the summarized material is voluminous and not conveniently
subject to examination in court, that the records summarized are otherwise admissible into
evidence, or that the underlying documents were timely made available to Defendant.
4
that summary chart accurately summarizes the underlying claims data. An excerpt from the

Medicare claims data3 makes this clear:

In the field “CL-Procedure Cd Long Desc,” the underlying Medicare claims data for these claims

states “New patient office or other outpatient visit, 45-59 minutes.” The time references on the

summary chart to which Defendant appears to object is precisely the language that is contained in

the underlying Medicare claims data:

Moreover, these records are the very claims the Government alleges constitute executions of the

scheme to commit health care fraud in the Superseding Indictment. ECF 29 at 12-13.

Each of the summary charts to which Defendant objects on this ground, GX102, GX104,

GX105, GX106, GX124, GX129, GX133, and GX134, all accurately reflect the underlying data

on which they are based. Because these summary exhibits are offered “to prove the contents of”

3
The Beneficiary Names in this excerpt have been anonymized for inclusion in this filing.
5
the voluminous claims data, it is not only appropriate but necessary that they accurately reflect the

contents of the claims data—which the Government’s charts do. See Fed. R. Evid. 1006.

Defendant also argues that by including the time component, which is pulled directly from

the claims data itself, the summary charts are unfairly prejudicial. Defendant contends that because

he purportedly did not select the CPT codes at issue based on time, it is prejudicial for the summary

charts to include the time component. However, although a provider was not required to consider

the duration of an evaluation and management visit in order to justify selecting a specific CPT

code, the time component is one of the factors a provider may consider in determining which CPT

code is appropriate for the service provided. That is made clear in the descriptions of the evaluation

and management codes in the American Medical Association’s (“AMA”) CPT manual. See ECF

37-2 at 14 (2020 CPT Codes); ECF 37-3 at 21 (2021 CPT Codes). For example, the AMA manual

provides a description of the 2020 version of CPT code 99204, including that “[u]sually, the

presenting problem(s) are of moderate to high severity. Typically, 45 minutes are spent face-to-

face with the patient and/or family.” ECF 37-2 at 14 (emphasis added). Similarly, the AMA

manual defines the 2021 version of CPT code 99204 as: “Office or other outpatient visit for the

evaluation and management of a new patient, which requires a medically appropriate history

and/or examination and moderate level of medical decision making. When using time for code

selection, 45-59 minutes of total time is spent on the date of the encounter.” ECF 37-3 at 21

(emphasis added). The 2021 manual further notes that “[t]he inclusion of time in the definition of

the levels of E/M services has been implicit in prior editions of the CPT codebook. The inclusion

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of time as an explicit factor beginning in CPT 1992 was done to assist in selecting the most

appropriate level of E/M services.” Id. at 8.4

Defendant’s argument that including time as a relevant factor is prejudicial because

Defendant did not base his decision to bill these CPT codes based on time not only assumes that it

is true that time was not one of Defendant’s considerations when instructing providers to bill for

the CPT codes, it also incorrectly suggests that time is not relevant to show just how far from

accurate his billing was. Where Defendant is instructing his providers that patients should be seen

in under five minutes, and to bill CPT code 99204, it is highly relevant and probative to

Defendant’s intent that the CPT code’s description indicates that typically 45 or more minutes is

spent with the patient to justify billing at that level. See ECF 37-3 at 8 (“The inclusion of time as

an explicit factor beginning in CPT 1992 was done to assist in selecting the most appropriate level

of E/M services.”). Any prejudice is far outweighed by the probative value of the charts that

accurately reflect the underlying claims data. Moreover, Defendant is entitled to cross-examine

the witness on the perceived limitations of the chart. See United States v. Katsipis, 598 F. App’x

162, 164-65 (4th Cir. 2015) (rejecting argument under Rule 403 where a summary chart “did not

account for all of the confounding variables” because the defendant “had ample opportunity, on

cross examination, to highlight the limitations of the chart”).

4
Defendant inaccurately states that “time was not to be considered at all in selecting the level of
E/M services except when ‘counseling and/or coordination of care dominate[d] (more than 50%)
of the encounter[.]’” ECF 37 at 6. Although the manual states that time “shall be considered the
key or controlling factor to qualify for a particular level of E/M services” where counseling and/or
coordination of care dominates (more than 50%) the encounter[,]” the manual does not state that
time is not considered at all where counseling and/or coordination of care does not dominate. ECF
37-2 at 12. Instead, it simply identifies other factors that must be met or exceeded. See id. Indeed,
the manual explains that “face-to-face time associated with the services described by any E/M
code is a valid proxy for the total work done before, during, and after the visit.” Id. at 10.
7
The Government notes that it plans to revise GX124, GX129, GX133, and GX134 to

remove the procedure code descriptions from these four charts. Each of these charts summarizes

data produced from Defendant’s billing platform, NextGen, which does not include a CPT code

description field. Instead, as explained in the charts, Marylee Robinson pulled the descriptions for

the CPT codes from Medicare claims data. However, the Government will limit these charts to

summarizing only the NextGen data. In addition, the Government does not intend to introduce

GX123.

For the remainder of the charts to which the Defendant has moved on this ground, the

Government respectfully requests the Court deny the Defendant’s motion. Defendant is eager to

obscure the time element of the coding for obvious reasons—the evidence will show that the vast

majority of patients who presented for COVID-19 tests at Defendant’s drive-through testing sites

were seen for five minutes or less as Defendant instructed. The time element for the codes is

contained in the claims data itself, and the summary charts accurately reflect that data. It is not

unfairly prejudicial for the Government to present its case using the evidence of the claims

submitted by Defendant to Medicare and other insurers.

II. The Government’s Summary Charts Properly Describe Which Claims Are At Issue.

The Court should also reject Defendant’s assertion that certain of the Government’s

summary charts are misleading and prejudicial because they include fraudulent and purportedly

non-fraudulent claims. The charts and summaries about which Defendant complains accurately

summarize the underlying data, are clear as to the claims being included or excluded on any

particular chart, and provide the jury necessary and helpful context to understand Defendant’s

conduct in this case.

8
For example, the first chart to which Defendant objects on this ground is GX119, a chart

that sets out all claims submitted by Drs ERgent Care between March 1, 2020, and February 28,

2022, as reflected in the underlying billing data.

Nothing about this chart indicates or suggests that all of the claims are fraudulent. Instead, this

chart provides context for the jury to understand the total amount of business Drs ERgent Care

was purportedly doing. The Government has no intention of suggesting that the amount at issue

in this case is $78 million. Rather, as the Superseding Indictment makes clear, the Government

asserts that approximately $30 million billed by Defendant is fraudulent. ECF 29 at 12. However,

as the Fourth Circuit noted in Bajoghli, evidence of transactions and conduct not charged may be

relevant to providing the existence of and the boundaries of a conspiracy or scheme. 785 F.3d at

963. This exhibit, as well as others, will show that Drs ERgent Care had limited business unrelated

to COVID-19 testing.

Allowing the jury to understand the total number of claims submitted and billed, as

reflected in the underlying data, will contextualize the amount of billing that is at issue in this case.

COVID-19 testing, and the bundling of those tests with fraudulent claims for level 4 evaluation

and management office visits, accounted for the majority of Drs ERgent Care billing—

approximately $52 million of the $78 million billed by Drs ERgent Care between March 1, 2020

9
and February 28, 2022. This is not a case in which the fraud involved a small part of a large

business. The context provided by showing the jury the total amounts billed by Drs ERgent Care

versus the amounts billed in connection with COVID-19 testing highlights Defendant’s motive

and intent, as nearly two-thirds of the company’s billing was associated with the scheme.

Moreover, as Defendant points out in his motion, ECF 37 at 15-16, & n.9, GX129, to which

Defendant does not object on this ground, includes the same totals for all claims. Defendant’s

contention that the jury will be unfairly confused and inflamed by the presentation of this

information in two charts rather than a single chart is wrong. Breaking the information down into

component pieces to aid the jury is precisely the purpose of summary exhibits. See Ging-Hwang

Tsoa, 2013 WL 6145664 at *5 (rejecting contention that chart is inadmissible because it omits

information the defendant deems relevant because that “would circumvent the very purpose of

Rule 1006, which is to provide a summary” (emphasis in original)).

Defendant also objects to three other charts that sort all claims by payor and by rendering

provider. Once again, nothing in these charts states or suggests that all the claims reflected in the

chart are fraudulent—indeed, each clearly indicates that it reflects all claims submitted by Drs

ERgent Care. These charts instead provide helpful context to the jury to show which payors Drs

ERgent Care submitted the majority of claims to, and which providers purportedly provided the

services billed by Drs ERgent Care. These data points, drawn directly and accurately from the

underlying claims data, will help the jury understand the underlying data and contextualize

testimony from other witnesses. See Ging-Hwang Tsoa, 2013 WL 6145664 at *6 (rejecting

defendant’s argument that a chart is suggestive where “[t]he chart is composed of objective facts

organized in a coherent manner[,]” explaining that “[w]hile Defendant may not like the

information conveyed, that does not render the summary improper”).

10
Defendant’s objection to charts that incorporate both claims for evaluation and

management visits and claims for COVID-19 tests should also be rejected. For example,

Defendant objects to GX126 because it purportedly aggregates at-issue and non-at-issue claims:

These charts are both accurate and clear. Contrary to Defendant’s assertion, this chart does

separate the claims for evaluation and management office visits and the claims for COVID-19

tests, as reflected in the different colors in the chart. To the extent Defendant is asserting that

amounts billed and paid for the COVID-19 tests themselves are irrelevant, simply because the

Government does not contend that they were fraudulent, Defendant’s argument takes a far too

narrow view of relevance. Here, the Government’s allegation is that the fraud scheme in which

Defendant engaged involved bundling claims for COVID-19 tests with claims for evaluation and

management visits. This again provides critical context to the jury—it shows that Defendant’s

company was already being paid for conducting the COVID-19 tests—and the inclusion of

fraudulent claims for unnecessary level 4 evaluation and management office visits was in addition

to the more than $21 million Drs ERgent Care billed for the COVID-19 tests themselves. The fact

11
that Defendant billed for both claims, and was paid on both claims, is direct evidence of the scheme

as alleged.

To the extent that Defendant’s objection is that the chart does not include the sub-totals for

each portion, the Government will agree to add clarifying brackets showing the subtotals for the

COVID-19 tests and the level 4 evaluation and management visits, as shown below:

Defendant raises a further objection to GX128, which presents the claims submitted by Drs

ERgent Care for bundled office visits and COVID-19 tests, and for additional visit codes within

two to four days following the bundled COVID-19 test and office visits. First, with respect to the

bundled claims, the chart indicates that the bundled office visits, billed amounts, and paid amounts,

relate to the bundled set of claims for both testing and evaluation and management. Again, this is

relevant to showing the volume of Drs ERgent Care COVID-19 testing business, which the jury is

entitled to compare to Drs ERgent Care’s other billing.

12
Nevertheless, the Government will adjust subheading on the chart to read “Level 4 Office Visits

Plus Covid Test Bundles,” and the column heading on the billed and paid amounts to read “Billed

Amount for Bundled Tests and Visits” and “Paid Amount for Bundled Tests and Visits[,]” to

resolve Defendant’s objection.

Defendant also objects to the second portion of that same chart:

Defendant contends that this portion of the chart “further inflates the amount the slide suggests

were fraudulent.” ECF 37 at 18. That is incorrect. This portion of the slide shows that, as alleged

in the indictment, Defendant “through Drs. ERgent Care, offered COVID-19 testing, but required

that the COVID-19 tests and the reporting of results be bundled[.]” ECF 29 at 11. These

“Additional Visit Codes” reflect the claims submitted in connection with the reporting of results

for COVID-19 tests. The evidence will show that Defendant instructed providers to tell every

patient that they would receive a subsequent visit, typically by video or phone, to report their test

13
results regardless of whether the patient tested positive or negative for COVID-19. The evidence

will also show that Defendant rejected the option of providing results to patients by email or text

message in order to bill for these subsequent visits. This chart accurately shows the number of

claims for evaluation and management and other visits contained in the underlying claims data that

occurred two to four days after a COVID-19 test was administered, reflecting the claims alleged

in the indictment as being bundled with the reporting of results. There is no risk of unfair prejudice

in providing the jury information about the other billing practices alleged in the indictment, even

if they are not the subject of specific executions. “Unfair prejudice ‘speaks to the capacity of some

of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground

different from proof specific to the offense charged.’” Bajoghli, 785 F.3d at 966 (quoting United

States v. Basham, 561 F.3d 302 (4th Cir. 2009)). No such concern is present here. Defendant’s

motion to exclude should be denied.

III. The Government’s Charts and Summaries Correctly Include Billed Amounts
Because That Is Prima Facie Evidence Of Loss Amount At Issue.

The amounts Defendant caused to be submitted to Medicare and other insurers is relevant,

highly probative of Defendant’s intended loss, and not unfairly prejudicial. Defendant’s objections

to several of the Government’s summary charts on the basis that billed amounts are unfairly

prejudicial should be rejected. Defendant contends that because the insurers did not pay Defendant

the amounts claimed by Drs ERgent Care, using billed amounts will confuse the jury. Defendant

is charged with knowingly and willfully executing and attempting to execute a scheme to defraud

health care benefit programs by submitting false and fraudulent claims. ECF 29 at 9. Those false

and fraudulent claims for reimbursement were submitted for the amounts billed to the health care

benefit programs. That the billed amounts were higher than the amounts those programs paid

14
Defendant does not negate the admissibility of the billed amount—the claims at issue are those the

Defendant caused to be submitted.

Moreover, for purposes of calculating loss in a health care fraud case—that is, the amount

the Government contends Defendant’s scheme sought to defraud Medicare and other insurers—

the appropriate calculation is based on the intended loss. See United States v. Miller, 316 F.3d

495, 504 (4th Cir. 2003) (citing U.S.S.G. § 2B1.1 commentary) (district court did not err in relying

on amount defendant billed Medicare and Medicaid as prima facie evidence of the amount of loss

defendant intended to cause); United States v. Osuji, 495 F. App’x 333, 335 (4th Cir. 2012) (citing

U.S.S.G. § 2B1.1 commentary) (“[A] district judge may rely on the amount that a defendant billed

to Medicare ‘as prima facie evidence of the amount of loss he intended to cause.’”); see also

Townsend v. United States, 2018 WL 5045224, *5 n.2 (W.D.N.C. Oct. 17, 2018) (“In health care

fraud cases, the ‘aggregate dollar amount of fraudulent bills submitted to the Government health

care program [is] prima facie evidence of the amount of the intended loss’”). Here, prima facie

evidence of the intended loss is the billed amount. Miller, 316 F.3d at 504. As the Fourth Circuit

has held, intended loss includes the entire amount fraudulently billed to an insurance program

absent evidence of the Defendant’s subjective intent about the intended loss. See United States v.

Harlan, 714 F. App’x 220, 225 (4th Cir. 2017) (concluding district court did not err in calculating

loss as total amount billed to Medicaid “[b]ecause [defendant] failed to rebut the presumption that

she intended to defraud Medicaid of the aggregate amount billed”); Osuji, 495 F. App’x at 335;

Miller, 316 F.3d at 501-502 & 505 (adopting majority view that intended loss is not limited to loss

actually possible or likely to occur, and affirming district court’s calculation of intended loss as

the amount billed to Medicare and Medicaid).

15
Defendant is entitled to introduce evidence of Defendant’s subjective intent regarding

amounts billed and paid, but that does not preclude the Government from introducing evidence of

the prima facie amount of loss Defendant intended to cause. The Government is entitled to

introduce evidence of the fraud it alleges—that is, that Defendant engaged in a scheme to defraud

Medicare and other insurers by submitting more than $30 million in fraudulent claims. Just

because that number is higher than the amount Defendant successfully received from the fraud

does not mean that the billed amounts are not highly probative and appropriate.

Defendant’s argument that the jury may wrongly believe that patients were charged for the

difference between the amounts billed and amounts paid is similarly inapt. Nothing in the charts

makes that suggestion, and to the extent Defendant seeks to confirm that patients were not charged

for that difference, Defendant is entitled to introduce evidence to that effect. Nor does such a

concern rise to the level of unfair prejudice—the billed amounts are the amounts Defendant’s

company billed to insurers—much less unfair prejudice that substantially outweighs the significant

probative value. Defendant’s arguments on this ground should be rejected.

IV. The Governments Chart Summarizing Portions of Defendant’s Tax Return Records
Are Accurate, Probative, And Are Not Unfairly Prejudicial.

The Superseding Indictment alleges that Defendant engaged in the fraudulent conduct

because of, among other reasons, a profit motive. ECF 29 at 10. Defendant’s tax records highlight

that profit motive and are relevant evidence of Defendant’s intent.

Defendant argues that showing his dramatic increase in income during the conspiracy

period is unfairly inflammatory because the jury may “infer that Dr. Elfenbein’s increased profits

can be tied entirely to the alleged fraud.” ECF 37 at 24. However, the Government is entitled to

present, and the jury is entitled to know, that Defendant’s income increased during the time period

the Government alleges Defendant was causing false and fraudulent claims to be submitted.

16
Defendant fails to show that the risk of unfair prejudice substantially outweighs the

probative value of the evidence, as required for exclusion under Rule 403. Fed. R. Evid. 403; see

Bajoghli, 785 F.3d at 966. Here, the probative value is significant—the exhibit shows that

Defendant’s reported income increased fourteen-fold between 2018 and 2021, with the bulk of the

increase between 2020 and 2021, due almost entirely to Dr. Elfenbein’s business and partnership

income:

This evidence is highly probative of Defendant’s motive for engaging in the allegedly fraudulent

conduct for which he has been charged. See Bajoghli, 785 F.3d at 966 (“[E]vidence of financial

gain is particularly probative in a fraud case to establish the defendant’s intent to defraud.”). And,

as the pattern jury instructions make clear, “the presence or absence of motive is a circumstance

that [the jury] may consider as bearing on the intent of a defendant.” Leonard B. Sand, et al.,

MODERN FEDERAL JURY INSTRUCTIONS: CRIMINAL (2022), Instruction 6-18.

In contrast, the risk of prejudice is modest. Defendant argues that by showing this increase,

the jury would be misled and inflamed because Defendant had a high income. See ECF 37 at 24

(citing United States v. Jackson-Randolf, 282 F.3d 369, 378 (6th Cir. 2002) for the proposition that

17
introduction of extreme or extravagant wealth “would appeal solely to class prejudice”). However,

although this chart shows a significant increase in income from 2018 to 2021, it does not purport

to reflect “extreme or extravagant wealth” or otherwise suggest extravagant spending. And while

Defendant’s total income was always greater than zero, the chart shows that his businesses

operated at a loss before he engaged in the fraud scheme.

Defendant also argues that comparing his pre-2020 income with his post-2020 income is

misleading because in January 2020, Drs ERgent Care merged with a larger urgent care company.

However, the chart shows a dramatic increase from 2020 to 2021, the year during which the vast

majority of fraudulent billing occurred. If, as Defendant contends, the merger was the source of

the increase, the totals between 2020 and 2021 would not reflect such a stark increase. Rather, the

chart suggests precisely the inference the jury is entitled to draw—that Defendant’s income

dramatically increased at least in part as a result of his fraudulent conduct.

Defendant also argues that the tax return chart is misleading because it includes his total

income, rather than excluding various sources of income. However, Defendant’s objection is

better resolved by cross-examination, rather than exclusion of the exhibit. For example, if

Defendant is asserting that the income purportedly derived from other businesses changes the

import of the chart, the Defendant would be entitled to cross-examine the summary witness on that

point. See United States v. Oloyede, 933 F.3d 302, 311 (4th Cir. 2019) (rejecting argument that

the Government “cherry-picked individual records, unfairly spinning the facts” because that

argument “ignores the role of a trial, where each side selects the evidence to be presented to the

jury[;]” “in creating the charts, the government applied criteria to help present its theory of the

case, and those criteria were detailed to the jury. The defendants were thus free to cross-examine

the government’s witness about the soundness of the selection[.]”). The Government’s exhibit

18
accurately reflects two aspects of the tax records—income from wages and income from

businesses and partnerships—which is relevant to show that Defendant’s income increased

primarily from his business and partnership interests rather than his wages. Therefore, the

Defendant’s motion to exclude should be rejected.

CONCLUSION

For the reasons stated above, the United States respectfully requests that the Court deny

Defendant’s motion in limine to exclude the Government’s summary exhibits in its entirety.

Respectfully Submitted,

GLENN S. LEON, CHIEF
CRIMINAL DIVISION, FRAUD SECTION
U.S. DEPARTMENT OF JUSTICE

EREK L. BARRON
UNITED STATES ATTORNEY

/s/
Matthew P. Phelps
Assistant United States Attorney

D. Keith Clouser
U.S. Department of Justice
Criminal Division, Fraud Section
1400 New York Avenue, N.W.
Washington, D.C. 20005
david.clouser@usdoj.gov

COUNSEL FOR THE UNITED STATES

19
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on June 29, 2023, I electronically filed the foregoing with the

Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to all

counsel of record.

By: /s/ Matthew Phelps

File and source

File: gov.uscourts.mdd.510872.40.0.pdf
Size: 371,852 bytes
SHA-256: c22bc1cc9d938c5a2cea83310bbd5bf72001ff2a97c72a29d8b815a3f23a36c0
Our copy: gov.uscourts.mdd.510872.40.0.pdf
Original: archive.org