Appeal Lawyer at Brownstone Law

1. 18-4862 _______________________________ United States Court of Appeals For the Fourth Circuit _______________________________ GENA RANDOLPH, Appellant, v. UNITED STATES OF AMERICA Appellee. APPELLANT’S EMERGENCY MOTION FOR RELEASE PENDING APPEAL Bureau of Prisons Report Date of December 27, 2018 Robert Sirianni, Jr., Esq. PO BOX 2047 Winter Park, Florida 32789 robert@brownstonelaw.com Brownstone Law

2. COMES NOW the Defendant-Appellant, Gena Randolph (“Ms. Randolph”), and respectfully moves this Court, pursuant to Fed. R. App. P. 9(b) and 18 U.S.C. §§ 3143(b) and 3145(c), and Loc. R. 8, to stay her surrender date and to grant her release pending appeal of his criminal conviction and sentence. In support, Ms. Randolph states: Preliminary Statement 1. On or about November 26, 2018, Ms. Randolph was sentenced to a term of incarceration of 111 months, federal prison. 2. Ms. Randolph filed a timely notice of appeal on November 27, 2018. (D.E. 107). 3. Ms. Randolph requested a bond pending appeal; however, the District Court denied her request to remain at liberty pending appeal. (D.E. 102).1 4. Ms. Randolph’s report date for prison is set for December 27, 2018.2 1The Trial Judge denied the Ms. Randolph’s request for Bond on November 20, 2018 (D.E. 102) without hearing any of the substantial appellate issues or if Ms. Randolph’s satisfies the main criteria for granting a bond pending appeal. Accordingly, there is no “copy of the district court statement of reasons and the judgment of conviction” that accompany the motion pursuant to Fed. R. App. P. 9(b); Loc. R. 9(b). 2Appellant has been ordered to report to the Bureau of Prisons by December 27, 2018. Appellant therefore requests expedited briefing and disposition prior to this date. Should the Court desire additional time to consider the issue, Appellant respectfully requests a brief Administrative Stay of her Reporting date and a Stay of Collection/Offset of Restitution pending Court's disposition of the Motion. Along with this request to remain at liberty pending appeal, Ms. Randolph also request a stay of her restitution or collections by the Government. See, Ex. A, “Notice of Offset”, amounting to restitution in the sum of $581,437. Appellant contends that this sum is also incorrect. During Trial, Medicare Contractor, Lovalee Blevins, confirmed Medicare did not refer Defendant or Palmetto Speech to Law Enforcement. No Medicare patients testified against Defendant. In addition, no representative of the South Carolina MediCaid Managed Care Organizations MCO's-(specifically Select Health of South Carolina, Molina Healthcare of South Carolina and Blue Choice Medicaid)-are in the trial record identifying any claims as fraudulently paid.

3. 5. Ms. Randolph has secured a bonding agency of Annette Shivers, Homequick Bail Bonds, 2157 Dorchester Rd., North Charleston, SC 29405, Phone: (843) 708-3739, to post an appellate bond in the event this Court grants her request. 6. Ms. Randolph is currently on a PR Bond and request that this Court revert back to the Pre-Trial conditions pending direct appeal of this cause. 7. Ms. Randolph now moves this Court for a bond pending appeal. STATEMENT OF THE CASE 8. The Defendant proceeded to Jury Trial between July 11, 2018 and July 26, 2018. 9. Following the Jury Trial, on July 26, 2018, the Defendant was convicted of: Count I, Title 18, United States Code§ 1347, prohibiting Health Care Fraud, Count II, Title 18, United States Code § 1028A( a)( 1 ), prohibiting Aggravated Identity Theft, Count III, Title 18, United States Code§ 1035(a)(2) by making a false statement on or about April 4, 2013 on a Disclosure of Ownership Form for Per Diem, Count IV, Tile 18, United States Code § 103 5( a)(2) by making a false statement on or about April 12, 2013 on an email and attached Disclosure of Ownership Form for Palmetto Speech, Count V, Title 18, United Given the noticeable absence of patient/recipient dispute, no claim paid by the South Carolina Medicaid Agency, South Carolina DHHS to Palmetto Speech or Per Diem Healthcare Services, Inc. was identified or proven fraudulent during the Trial.

4. States Code§ 1035A(a)(2) by making a false statement on or about September 15, 2013 on a Disclosure of Ownership Form for Palmetto Speech, Count VI, Title 18, United States Code§ 1035(a)(2) by making a false statement on or about November 18, 2013 (D.E. 83). 10. The Defendant filed a Motion for Acquittal under 29(c)(1), F. R. Crim. Pro., on or about August 8, 2018, alleging, inter alia, that the Government did not show the Defendant acted with Specific Intent, insofar as the Defendant presented payroll payments made to employees of the Defendant, none of which testified against Ms. Randolph. Next, Ms. Randolph alleged a discovery violation whereby the Government produced 16 exhibits at trial, of which many were not provided to the Defense prior to trial. (D.E. 91). 11. The Trial Court denied the Acquittal on August, 22, 2018, citing U.S. v. Beverly, 284 Fed.Appx. 36, 2018 WL 2796079, at *3 (4th Cir. 2008) (D.E. 94). However, the Court did not address the alleged discovery violation. 12. Sentencing is set for November 20, 2018. (D.E. 95). 13. The Defendant plans to file a notice of appeal in this case. ARUGMENT 14. The Eighth Amendment and Bail Reform Act, 18 U.S.C. §§ 3141 et seq., “establish[] a right to liberty [pending appeal] that is not simply discretionary but mandatory,” provided the “defendant can make the required evidentiary showing,”United States v. Abuhamra, 389 F.3d 309, 318 (2d Cir. 2004). By statute,

5. the defendant “shall” be released pending appeal if: (1) he demonstrates by clear and convincing evidence that he poses no risk of flight and no danger to the community; and (2) the appeal raises a substantial question of law or fact likely to result in reversal or a new trial. See 18 U.S.C. §3143(b). United States v. Chilingirian, 280 F.3d 704, 709 (6th Cir. 2002) (noting that defendant bears the burden of overcoming statutory presumption of detention).3 15. To show that his appeal raises a substantial question of law or fact, Ms. Randolph must persuade this Court that the issue on appeal “is one of more substance than would be necessary to a finding that it was not frivolous.” United States v. Randell, 761 F.2d 122, 125 (2d Cir. 1985) (quoting United States v. Giancola, 754 F.2d 898, 901 (11th Cir. 1985)). The Court need not go as far as to find that its own rulings are likely to be reversed on appeal, but rather must be convinced that the issue presented by Ms. Randolph’sappeal is a “close question or one that very well could be decided the other way.” Id. at 900-901. Summary of Argument 18 U.S.C. §3143(b)(1) permits this Court to grant an appellant release pending determination of his appeal if it finds (A) by clear and convincing evidence that she is not likely to flee or pose a danger to the safety of any other person or the 3The standard for granting bond pending appeal—where there is no risk of flight, no danger to the community, and the appeal is not taken solely for purposes of delay—is whether the appeal presents “a substantial question of law or fact” that, if successful,is “likely to result in reversal or an order for a new trial of all counts on which imprisonment has been imposed.” United States v. Miller, 753 F.2d 19, 24 (3d Cir. 1985) (construing 18 U.S.C. § 3143(b)). For the reasons set forth in the accompanying Memorandum, Ms. Randolph respectfully submits that her appeal will present several questions that satisfy this standard. She therefore requests that the Court grant the present motion.

6. community if released, and (B) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in (i) reversal, (ii) an order for a new trial, (iii) a sentence that does not include a term of imprisonment, or (iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process. See also United States v. Clark, 917 F.2d 177, 179 (5th Cir. 1990). Ms. Randolph meets all of these factors by clear and convincing evidence. First, she is not likely to flee or pose a danger to the safety of any other person or the community if released. The District Court’s decision to release her on her own recognizance with an unsecured a4ppearance bond prior to trial (ECF Doc. #10) was an implicit, if not explicit, finding that he was not likely to flee or pose a danger to the community. United States v. Williard, 726 F.Supp. 590, 593 (E.D. Pa. 1989) (“Although the trial judge never made an explicit finding that Williard posed no danger to the community, such a finding was implicit in his release of the defendant pending execution of sentence.”); United States v. Farran, 611 F.Supp. 602, 605 (S.D. Tex. 1985) (permitting the defendant to voluntarily surrender was an “implicit[] finding that defendant is not likely to flee or pose a danger to the 4A defendant “need not show a likelihood of success on appeal,” United States v. Garcia, 340 F.3d 1013, 1020 n.5 (9th Cir. 2003); rather, she need only show that his appeal presents “‘a ‘close’ question or one that very well could be decided the other way.”’ United States v. Steinhorn, 927 F.2d 195, 196 (4th Cir. 1991) (quoting United States v. Giancola, 754 F.2d 898, 901 (11th Cir. 1985) (emphasis added)). As the Supreme Court has explained in describing a similar standard: “[The defendant] need not show that he should prevail on the merits. [S]he has already failed in that endeavor. Rather, [s]he must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues in a different manner; or that the questions are adequate to deserve encouragement to proceed further.”Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983) (citation and alterations omitted).

7. safety of any other person or the community”). Ms. Randolph’s original Conditions of Release required her simply to maintain employment and not carry a passport. She has never violated any of these original Conditions of Release. And, with regard to these original Conditions of Release, the facts showing that these Conditions of Release worked for Ms. Randolph, the Court, and the community have included: a. Ms. Randolph is the sole provider for her family. Ms. Randolph is a lifelong resident of Charleston county and head of her household. b. c. She provides the additional income source for her family and needs to keep her job in order to provide for her family and pay restitution. d. She has lived in Mount Pleasant, South Carolina for her entire life. e. She has no criminal record, except for a misdemeanor case and a case that was dropped or nolle prossed by the County of Charleston in Case No. 2015-A-101000069. That State Court matter was dropped and then adopted by the Federal Government, comprising the center of the allegations of this case. 5 Then, following sentencing, Ms. Randolph was allowed to stay on the original Conditions of Release. ECF Doc. #95. Putting all of these facts and factors together, “the totality of the circumstances surrounding the Defendant's entire 5TheUnited States Department of Health and Human Services knows about the 2012 misdemeanor because they have direct knowledge of the that injured Ms. Randolph and deprived her of due process.

8. situation [permits this Court to make] an educated guess as to Defendant's future behavior” and find that he “proven by clear and convincing evidence that he is not likely to flee the jurisdiction nor pose a danger to any person or the community during the pendency of [her] appeal of [her] conviction.” United States v. Lamp, 606 F.Supp. 193, 203 (W.D. Tex. 1985) (permitting defendant to remain on bond pending appeal); United States v. Hill, 827 F.Supp. 1354, 1356 (W.D. Tenn. 1993) (finding that defendant was not likely to flee because,”[a]t all times, Mr. Hill has reported as required,” has family ties in the area, and was employed on a regular basis). Second, the appeal is not for purposes of delay. There is no evidence in the record that could suggest that it is, especially in light of the significance of Ms. Randolph’s contentions on appeal. She has two Rule 29 arguments for purposes of appeal, including but not limited to the following: (1)That Bank records clearly prove Wage/Labor Amounts paid by Palmetto and Per Diem far exceeded amounts paid by Medicaid and Medicare. (2)Tax Records also indicate that Ms. Randolph was in constant financial distress. (3)Lovalee Blevins, Medicare Contractor confirmed on cross examination Medicare did not initiate the matter or make a fraud referral to Law Enforcement. (4)Jamilah Deas Muhammad, Compliance Coordinator for Molina Healthcare, confirmed on cross examination the State Medicaid Agency directed the

9. payment suspension, not Molina. (5)Regarding the Healthcare Fraud allegation, Dominique Grant parent of D.T., Paula Myers parent of W.P. and Tonia Frasier parent of T.F., never disputed a Date of Service which Palmetto or Per Diem was paid. In fact, no Medicare patients testified against Ms. Randolph. In addition, current staff did not testify against Ms. Randolph and all staff were timely replaced by licensed, qualified providers. Further, as far as the merits of the appeal are concerned: there is no claims data in the trial record for DT, WP or TF. (6)Regarding the Identity Theft Counts: Valerie Pack and Felicia Burkett confirmed Medicaid does not enroll Speech Pathology Interns or Assistants into the billing program. Interns and Assistants rendered service as authorized. As far as the merits of the appeal are concerned: There are no claims in the trial record for staff members, Stephen Cutia and Rashida Hill, for identity theft. (7)Next, Chief Investigator Radcliff admitted on Cross Examination that he did not interview everyone that rendered service and he was not aware of the policy barring enrollment of Speech Interns and Assistants. He only interviewed the therapist listed on the claim. (8)With regard to the Discovery Violation: Defense learned of Government Expert Witness Stephen Quindoza the night before he testified at trial and was not given ample time to review his report or prepare a rebuttal. (9)There was no financial gain, as the Bank Records indicate Ms. Randolph was in

10. substantial financial distress from 2012, over-drafting her account and suffering from frequent overdraft charges. (10)Next, no witness testified that they never were provided the service that was allegedly billed to Medicaid and Medicare by Ms. Randolph. 6 (11)Healthcare Fraud: Over Defense Objection, the Prosecutor used Government generated billing spreadsheets that contain errors, including but not limited to, $100 listed by each date of service for Williams and Stewart and no payment was made per testimony of Special Agent Chris Lott. In addition, Speech Pathology Interns and Assistants were omitted per Medicaid policy but rendered service as authorized, which mislead the jury and resulted in wrongful conviction. (12)False Statements: Appellant did not sign Disclosure of Ownership (“DOO”) Forms. Appellant never said any other person owned her companies and never instructed other parties to represent the same. Ms. Randolph has several contentions that support her position. See United States v. Henson, 663 F.Supp. 1112, 1113 (W.D. Ky. 1987) (“The court finds that this appeal was not filed for the purpose of delay. Defendants’ counsel raise several viable arguments in support of their appeal, and the United States does not contend 6 Ms. Randolph contends that the Government did not meet the legal standard for Fraud; or that any service she offered were not rendered or could not have been rendered. MediCare allows for inadvertent billing errors and Ms. Randolph’s company only had 2 errors that were indicated by the testimony of a Government witness. But these errors do not rise to the level of fraud. Per Medicare Regulations 42 C.F.R. § 424.535(a)(8)(i), anything less than 3 billing errors is non-consequential. Palmetto had 2 billing errors for which there was no payment.

11. that the appeals were filed for the purpose of delay.”); United States v. Hart, 906 F.Supp. 102, 105 (N.D.N.Y. 1995) (“It does not appear that defendant is appealing his conviction for the purpose of delay. When there is no pattern of dilatory defense tactics during the conduct of the litigation or other extrinsic evidence of an intent to delay the inevitable, the court is left with the undesirable task of discerning a defendant's subjective mindset. In these circumstances, the court is content to note that the defendant at no time has admitted his guilt and seems sincere in his belief that he is innocent. He has retained appellate counsel and has raised substantial issues for consideration by the Seventh Circuit, as detailed below. The court finds that the appeal is not for the purpose of delay, but is rather taken in a good faith belief in defendant's innocence and the merits of his arguments.”). Third, the appeal raises a substantial question of law or fact. A substantial question of law or fact is “’one of more substance than would be necessary to a finding that it was not frivolous[;] ... a ‘close’ question or one that very well could be decided the other way.’” United States v. O’Keefe, 169 F.3d 281, 281-282 (5th Cir. 1999), quoting United States v. Valera-Elizondo, 761 F.2d 1020, 1024 (5th Cir. 1985) (quoting United States v. Giancola, 754 F.2d 898, 901 (11th Cir. 1985)). A substantial question also exists when the cases presents “a question that is … novel, which has not been decided by controlling precedent.” Valera-Elizondo, supra at 1023, citing United States v. Miller, 753 F.2d 19, 23 (3rd Cir. 1985) (and adopting Miller, supra at 1025); see also Barefoot v. Estelle, 463 U.S. 880, 893, 103

12. S.Ct. 3383 (1983) (a “substantial question” is “something more than the absence of frivolity”) (internal quotation marks and citations omitted). There can be no doubt but that this case presents a substantial question of law. This is not a frivolous appeal. With regard to the merits of the Appeal, Ms. Randolph alleges: (1) The Government did not prove the adequate mens rea to sustain a conviction, and (2) a material discovery violation warrants a new trial. (I) Specific Intent: With regard to the lack of specific intent, Ms. Randolph contends: “Participation is willful if done voluntarily and intentionally, and with the specific intent to do something the law forbids.” United States v. Horton, 847 F.2d 313, 322 (6th Cir. 1988) (approving jury instruction). But in this case, there was simply no evidence that Ms. Randolph voluntarily and intentionally and with the specific intent to defraud the Government, participated in any scheme to defraud the Healthcare system. (II) Discovery Violation: With regard to the discovery issues: Discovery in a criminal case is governed by Fed. R. Crim. P. 16, which specifies the type of information subject to disclosure by the Government. Fed. R. Crim. P. 16 (a)(1). The rule generally requires the Government to disclose to the defendant any relevant written or recorded statement by the defendant that is within the Government's possession. Fed. R. Crim. P. 16 (a)(1)(B)(i). The rule also grants the district court the power, however, to restrict or deny discovery in a criminal case for good cause. a.The failure of the Government to disclose an expert witness is

13. a discovery issue. This Court may order a new trial based on alleged discovery violations when the defendant shows that a denial of access to evidence was prejudicial to his substantial rights. United States v. Dukes, 139 F.3d 469, 476 (5th Cir. 1998). This requires "a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. . . . [A] reasonable probability is shown where the nondisclosure could reasonably be taken to put the whole case in such a different light as to undermine confidence in the jury verdict." United States v. Webster, 162 F.3d 308, 336 (5th Cir. 1998) (internal quotation marks and citation omitted). In this case, the discovery violation is material insofar as Ms. Randolph would have hired an expert to rebut the testimony of the Government’s main witness. (III)Other Factors Warranting Bond Pending Appeal: In United States v. Jonathan Pinson, Case No. 3:12-cr-00974-DCN, Appellant Pinson was provided a bond pending appeal by The Honorable David Norton, United States District Judge for South Carolina. (See, D.E. 258 in Case No. 3:12-cr- 00974-DCN). Jonathan Pinson appealed his convictions for conspiracy to participate in a racketeering enterprise under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), government program theft, honest services fraud, mail and wire fraud, money laundering, and making false statements to federal agencies. He argued on appeal that there was insufficient evidence for a jury to convict him, and also contended that the

14. district court constructively amended the original indictment, necessitating a new trial. The appellate court concluded that there was insufficient evidence to support Pinson's convictions for RICO conspiracy and government program theft, and accordingly vacated those convictions. (See, United States v. Pinson, 860 F.3d 152 (4th Cir. 2017). 7 According, to Ms. Randolph, the Pinson case and request for Bond is similar to her request. Under Fourth Circuit precedent, she only needs to show that the questions raised on appeal “very well could be decided the other way.” United States v. Steinhorn, 927 F.2d 195, 196 (4th Cir. 1991) (internal quotation marks omitted). The questions to be raised on appeal are plainly substantial. In addition to the arguments previously made regarding appellate issues, it is worth noting that the outcome of the trial would have been different had Ms. Randolph been provided an opportunity to call an expert witness to rebut the Government’s last minute, surprise witness. Because Ms. Randolph has clearly met all of the §3143 factors, this Honorable Court should grant her release pending determination of her appeal. Realted Factors Warranting Consideration Next, Ms. Randolph fully satisfies the standard governing whether a court should grant a motion for release of a convicted defendant pending an appeal is set 7The Court granted a similar bond in United States of America v. Robert McDonnell, No. 15-4019 (3:14-cr-00012-JRS-1)(2015), finding: “The court further finds that the appeal is not for the purpose of delay and raises a substantial question of law or fact that, “if decided in favor of the accused” is “important enough” to warrant reversal or a new trial. United States v. Steinhorn, 927 F.2d 195, 196 (4th Cir. 1991) (per curiam)

15. forth in 18 U.S.C. § 3143(b)8. “The statute distinguishes between two categories of crimes to determine eligibility for release.”United States v. DiSomma, 951 F.2d 494, 496 (2d Cir.1991). Where a defendant has not been convicted of a crime enumerated in § 3142(f)(1)(A), (B), or (C), release is appropriate if the court finds that certain conditions are satisfied. Id.; United States v. Randell, 761 F.2d 122, 124 (2d Cir.1985) (observing that in order to be released pending appeal under 3143(b)(1), a defendant must show that [s]he is not a flight risk or danger to the community and that his appeal raises a substantial question of law or fact). Here, Appellant is clearly not a risk to the community. A stay of Ms. Randolph’s sentence will enable her to care for her family. Ms. Randolph is not a risk to flee and will report to probation if placed on bond. She has complied with all conditions of his probation since being charged over five (5) years ago. Certificate of Consultation On December 11, 2018, the undersigned counsel contact opposing counsel, via telephone, to ascertain if the Government objects to the emergency motion for bond pending appeal. Counsel does not know whether opposing counsel objects. 8Section 3143(b) provides in general that when a defendant has been convicted, and has filed an appeal or a petition for a writ of certiorari, the district court shall order that he be detained, unless the court finds, by clear and convincing evidence, that: (1) the defendant is not likely to flee; (2) if released, the defendant is not likely to pose a danger to the safety of any other person or the community; and (3) the appeal is not for the purpose of delay, and raises a substantial question of law or fact likely to result in reversal, an order for a new trial, a sentence that does not include a term of imprisonment, or a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.

16. WHEREFORE, the Defendant-Appellant, Ms. Randolph, respectfully requests that this Court stay his surrender date and grant her release pending resolution of his appeal of her criminal conviction and sentence. Dated: December 11, 2018. Respectfully submitted, Robert Sirianni, Jr., Esq. PO Box 2047 Winter Park, Florida 32789 Robert@brownstonelaw.com (407) 388-1900

17. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this ____, 2018, I filed the foregoing with the Clerk of the Court and served opposing counsel with a copy via ECF Marshall Austin US Attorney’s Office (Chas) 151 Meeting Street Suite 200 Charleston, SC 29401-2238 843-577-7730 Fax: 843-577-7172 Email: matt.austin@usdoj.gov Robert Sirianni, Jr., Esq. PO Box 2047 Winter Park, Florida 32789 Robert@brownstonelaw.com (407) 388-1900 www.brownstonelaw.com