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Case 2:08-cr-00427-MCE Document 433

Filed 07/06/11 Page 1 of 34

IN THE UNITED STATES DISTRICT COURT


FOR THE EASTERN DISTRICT OF CALIFORNIA
---oOo--BEFORE THE HONORABLE MORRISON C. ENGLAND, JR., JUDGE
---oOo--UNITED STATES OF AMERICA,
Plaintiff,
vs.

No. 2:08-cr-00427

ALEXANDER POPOV,
RAMANATHAN PRAKASH, LANA
LE CHABRIER,
Defendants.

---oOo--REPORTER'S PARTIAL TRANSCRIPT


CROSS-EXAMINATION OF
DERRICK JOHNSON
TUESDAY, JUNE 7, 2011
---oOo---

Reported by:

DIANE J. SHEPARD, CSR #6331, RPR

DIANE J. SHEPARD, OFFICIAL COURT REPORTER, USDC -- (916) 554-7460

Case 2:08-cr-00427-MCE Document 433


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Filed 07/06/11 Page 2 of 34

APPEARANCES

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For the Government:


BENJAMIN B. WAGNER
UNITED STATES ATTORNEY
501 I Street, Suite 10-100
Sacramento, California 95814
BY: PHILIP A. FERRARI
JEAN M. HOBLER
Assistant U.S. Attorneys

For the Defendant, Lana Le Chabrier


JAN DAVID KAROWSKY
Attorney at Law
716 19th Street, Suite 100
Sacramento, California 95811

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For the Defendant, Alexander Popov:


RICHARD ALAN MOSS
Attorney at Law
255 South Marengo Avenue
Pasadena, California 91101

For the Defendant, Ramanathan Prakash:


RONALD NEIL RICHARDS
Attorney at Law
P.O. Box 11480
Beverly Hills, California 90213

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DIANE J. SHEPARD, OFFICIAL COURT REPORTER, USDC -- (916) 554-7460

Case 2:08-cr-00427-MCE Document 433

Filed 07/06/11 Page 3 of 34

SACRAMENTO, CALIFORNIA

TUESDAY, JUNE 7, 2011

PARTIAL TRANSCRIPT

---oOo---

DERRICK JOHNSON,

a witness called by the Government, having been first duly

sworn by the Clerk to tell the truth, the whole truth, and

nothing but the truth, testified as follows:

MR. RICHARDS:

10

THE CLERK:

11

MR. RICHARDS:

12

Is my next exhibit number 806?

Yes.
I'd like to mark as Defense 806 and

approach the witness, please?

13

THE COURT:

14

(Defendants' Exhibit 806, Plea Agreement of Derrick

15

Yes.

Johnson, marked for identification.)

16

CROSS-EXAMINATION

17

BY MR. RICHARDS:

18

Q.

19

Let me just put it in front of you.

20

plea agreement.

21

Dr. Johnson, I'm going to show you a copy of 806.


This is a copy of your

Is that your signature on the plea agreement?

22

A.

Yes, it is.

23

Q.

Okay.

24

of facts there.

25

A.

If you could just take a look of the statement

The last paragraph?

DIANE J. SHEPARD, OFFICIAL COURT REPORTER, USDC -- (916) 554-7460

Case 2:08-cr-00427-MCE Document 433

Filed 07/06/11 Page 4 of 34

Q.

The last paragraph.

A.

(Witness reviewing document.)

Q.

Now, on this plea agreement you didn't prepare the

statement of facts, did you?

A.

No.

Q.

And was this agreement that you signed -- this was

your agreement that you signed in connection with your guilty

plea in this case?

A.

Yes.

10

Q.

And in the agreement it states that you have -- your

11

exposure for pleading guilty is ten years, do you remember

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that?

13

A.

Yes.

14

Q.

And when you first started working with the Richmond

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clinic, you weren't aware of -- let me strike that.

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Thanks.
Okay.

I've read it.

You never did any investigation into the status of

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Dr. Teitelbaum, did you?

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A.

No.

19

Q.

So some of these facts in the plea agreement, these

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are facts that the Government put together that you ended up

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signing, correct?

22

A.

I presume, yes.

23

MR. FERRARI:

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THE COURT:

25

Q.

Objection.

Foundation.

Sustained.

BY MR. RICHARDS:

Under the section factual basis for

DIANE J. SHEPARD, OFFICIAL COURT REPORTER, USDC -- (916) 554-7460

Case 2:08-cr-00427-MCE Document 433

Filed 07/06/11 Page 5 of 34

the plea, do you know who prepared this?

A.

No.

Q.

Well, how did you get to this part of the document,

was it given to you by your lawyer?

A.

Yes.

Q.

Did you have any input as to this section with

respect to the statement of facts?

A.

No, I did not.

Q.

So when you read the statement of facts, it was in

10

the plea agreement, and then you signed the plea agreement,

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correct?

12

A.

Right.

13

Q.

So in the statement of facts when it mentioned

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Dr. Teitelbaum, that he was not authorized to perform Medicare

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reimbursed services at the clinic, that's not a fact that you

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provided to the Government, correct?

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A.

That's correct.

18

Q.

So when you started working at the clinic, at no time

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did you ask Max for a list of the doctors so you could verify

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their Medicare status, right?

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A.

I never did.

22

Q.

All right.

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medical license, right?

24

A.

That's correct.

25

Q.

And you live in Omaha?

Right now you presently don't have any

DIANE J. SHEPARD, OFFICIAL COURT REPORTER, USDC -- (916) 554-7460

Case 2:08-cr-00427-MCE Document 433

Filed 07/06/11 Page 6 of 34

A.

Bellevue.

Q.

What are you doing for work now?

A.

I'm not.

Q.

What year did you start working in the Lafayette

clinic, do you remember?

A.

Maybe 2004, something like that.

Q.

So would it be fair to say that since 2004 to 2008

that you didn't practice medicine at all?

A.

That would be fair to say.

10

Q.

And would it be fair to say that during those four

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years you basically took your position as a doctor and assisted

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others in committing Medicare fraud?

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A.

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Part of the time, yes.


THE COURT:

We'll take our recess now.

It's 3:00.

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Ladies and gentlemen, please remember your admonitions that

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I've given you each day.

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you.

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(Jury out.)

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(Break taken.)

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(Jury in.)

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THE COURT:

22

Q.

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you Defense 806.

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page, please.

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A.

We'll be back in 20 minutes.

Thank

Proceed, please.

BY MR. RICHARDS:

Thank you.

You have in front of

Can you just turn to the second to the last

On the top it says factual basis.

Sorry.

Could you repeat that?

DIANE J. SHEPARD, OFFICIAL COURT REPORTER, USDC -- (916) 554-7460

Case 2:08-cr-00427-MCE Document 433


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Q.

see that?

A.

4
5

Filed 07/06/11 Page 7 of 34

At the top of the page it says factual basis.

Do you

Yes.
MR. RICHARDS:

I move to admit 806, by the way.

It's

the plea agreement.

MR. FERRARI:

Well, as an initial matter, object on

hearsay and relevance, and also subject to any objections

raised by defense counsel to the extent they're concerned by

that.

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THE COURT:

11

MR. MOSS:

12

Have you seen this factual basis?


Yes, Your Honor, I have.

And I'm not

objecting to it.

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MR. KAROWSKY:

Nor am I.

14

MR. FERRARI:

15

THE COURT:

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MR. RICHARDS:

17

(Defendants' Exhibit 806, Plea Agreement of Derrick

I'll withdraw the objection.


Thank you.

Then it will be admitted.

Thank you.

18

Johnson, admitted into evidence.)

19

Q.

20

factual basis because I just want to clarify what was within

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your personal knowledge or what your lawyer gave you that the

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Government wrote.

BY MR. RICHARDS:

Now, let's take a look at the

23

When it says beginning no later than October --

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Oh, can you turn the thing to my computer?

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THE CLERK:

Yes.

DIANE J. SHEPARD, OFFICIAL COURT REPORTER, USDC -- (916) 554-7460

Case 2:08-cr-00427-MCE Document 433


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Q.

BY MR. RICHARDS:
All right.

Filed 07/06/11 Page 8 of 34

Thanks.

If you take a look here, (reading):

Beginning no later than October 5th, 2006, and continuing

through at least October 18th, 2007.

On those dates, you didn't provide those dates to the

Government for that, did you?

A.

No, I did not.

Q.

(Reading):

participated in a scheme to defraud Medicare, a healthcare

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The defendant, Derrick Johnson,

benefit program.

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You didn't write that language, did you?

12

A.

No, I did not.

13

Q.

Okay.

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never provided the dates of your involvement, meaning the

15

beginning date and the ending date, those were just given to

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you, correct?

17

A.

Yes.

18

Q.

(Reading):

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another physician were associated in a healthcare clinic

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located at 120 Broadway, Suites 4A and 4B, in Richmond,

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California.

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And prior to signing this plea agreement, you

Over this time period Dr. Johnson and

Now you didn't tell the Government that address,

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correct?

24

A.

No, I did not.

25

Q.

And when you signed the plea agreement, you don't

DIANE J. SHEPARD, OFFICIAL COURT REPORTER, USDC -- (916) 554-7460

Case 2:08-cr-00427-MCE Document 433

Filed 07/06/11 Page 9 of 34

know if that address is correct or not, do you?

A.

No, I do not.

Q.

All right.

you signed it.

with it.

and what you didn't give.

I'm going to get to what you said when

But I'm not trying to impeach or embarrass you

I just want to establish what information you gave

(Reading):

The clinic was owned and operated by

co-defendants Vardges Egiazarian, Migran Petrosyan, and

Khachatur Arutunyan.

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You didn't know any of these people by those names,

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did you?

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A.

No, I did not.

13

Q.

And you didn't give the Government those names

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either, did you?

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A.

No, I did not.

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Q.

(Reading):

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claims were submitted to Medicare relating to patients the

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physicians did not treat, seeking reimbursement for procedures

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that were either unnecessary or never performed.

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And while this clinic was in operation,

Now you don't know how many claims were submitted to

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Medicare from that clinic, do you?

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A.

No, I do not.

23

Q.

And you don't know what conversations these

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individuals had with other physicians, correct?

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A.

Correct.

DIANE J. SHEPARD, OFFICIAL COURT REPORTER, USDC -- (916) 554-7460

Case 2:08-cr-00427-MCE Document 433


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Q.

Filed 07/06/11 Page 10 of 34

And Dr. Prakash, can you stand up for a minute?


Do you know my client at all?

A.

The gentleman standing?

Q.

Have you ever met him before?

A.

No, I have not.

Q.

Thank you.

identify Dr. Prakash.

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9

No, I do not.

Just let the record reflect he did not

(Reading):

Co-defendant Petrosyan hired both

Dr. Johnson and co-defendant Dr. Lana Le Chabrier.

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Now, you have no personal knowledge that's true,

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correct?

12

A.

I was hired.

13

Q.

Right.

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don't know that the other physician referenced in there was

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hired, correct?

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A.

No, I do not.

17

Q.

That was just a fact that the Government put in the

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plea agreement that your attorney gave you that you signed,

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right?

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A.

That's correct.

21

Q.

(Reading):

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Dr. Johnson and Dr. Le Chabrier both opened bank accounts for

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the purpose of receiving payment on Medicare claims.

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25

10

Except for you.

But you don't know -- you

In connection with their employment,

Now, you know that you opened a bank account, right?


A.

Right.

DIANE J. SHEPARD, OFFICIAL COURT REPORTER, USDC -- (916) 554-7460

Case 2:08-cr-00427-MCE Document 433


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Q.

correct?

A.

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Filed 07/06/11 Page 11 of 34

But you don't know that the other doctor did,

Correct.

MR. FERRARI:

Objection.

Relevance.

THE COURT:

(Begin sidebar conference.)

THE COURT:

Counsel, approach sidebar, please.

I'm not sure if you should let him know

to have his attorney here.

agreement and factual basis, I don't know if that's a valid

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If we're going to tear up his plea

plea.

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I don't know where this is going right now.

He

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doesn't know.

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him because he's under oath, and he's saying things about a

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plea agreement that he has already taken under oath.

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don't know where this is going right now.

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And I think that somebody might want to talk to

MR. FERRARI:

And I

Your Honor, as an initial matter,

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Dr. Johnson's attorney is here and present in the gallery.

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Warriner.

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THE COURT:

Mr. Warriner.

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(Mr. Tim Warriner joins bench conference.)

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THE COURT:

Tim

Thank you.

Mr. Warriner, I just told counsel that

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I'm concerned about your client being on the stand under oath.

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And I don't know where this is going, but it sounds like he may

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be refuting things that he has already agreed to under oath as

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a part of his plea agreement in the factual basis.

He's saying

DIANE J. SHEPARD, OFFICIAL COURT REPORTER, USDC -- (916) 554-7460

Case 2:08-cr-00427-MCE Document 433


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I don't know and I don't think this is true.

concerned where we're heading with this.

MR. FERRARI:

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Filed 07/06/11 Page 12 of 34


I'm just

Your Honor, if I could interject a

point on that.

agreement or any of his plea proceedings as a statement by the

defendant but rather as a summary of what the Government could

prove if this case were to go to trial.

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9
10

The factual basis is not set forth in that plea

There's never any indication made that the defendant


can personally attest to all of the statements in the factual
basis put forth in the plea agreement.

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There is an agreement that he agrees to the best of

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his knowledge that these things are true, and the Government

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could prove it if they went to trial.

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assertion that that's the truth.

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MR. WARRINER:

But there's never any

That's how it was presented.

This is

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the evidence that the Government would prove if it went to

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trial.

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THE COURT:

My concern is not so far but where this

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is going to go.

20

put into evidence and where we're going to go through each and

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every part of it.

22
23

I don't know.

MR. FERRARI:
objection.

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25

I don't know if I've never had a factual basis

I'm just thinking ahead.

That's why I made the relevance

I don't understand.
MR. RICHARDS:

A plea agreement is very relevant and

I don't --

DIANE J. SHEPARD, OFFICIAL COURT REPORTER, USDC -- (916) 554-7460

Case 2:08-cr-00427-MCE Document 433


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2

MR. FERRARI:

A plea agreement is relevant.

Talking

about going through every line of the factual basis.

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4

13

Filed 07/06/11 Page 13 of 34

THE COURT:

That's the part that I'm having concern

because this is a multiple defendant plea that he took.

MS. HOBLER:

What this is really based upon is the

Government produced discovery, and this defendant, in

conjunction with his oath, took that and agreed that all of

these things could be proven based on the material's produced

by the Government.

I don't think that really actually helps

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the defendants here, and I don't know that it's at all that

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relevant for the jury to hear everything that this person

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agreed to in a factual basis.

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that's going to be entered against these defendants.

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think that's useful for them.

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road --

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MR. RICHARDS:

Because the Government had proof


I don't

If they want to go down that

I know why I want to go down the road,

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and I have a lot of reasons, but I've got to get there.

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certainly tell the Court in camera.

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tell the Government before, but I can tell you that this is

20

legitimate cross-examination.

It's not the first time I've

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gone through a factual basis.

I'm trying to establish what

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this doctor knew and didn't know when he was part of this

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scheme.

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THE COURT:

25

MR. KAROWSKY:

I can

I don't think I need to

Mr. Karowsky.
Your Honor, first of all, I have no

DIANE J. SHEPARD, OFFICIAL COURT REPORTER, USDC -- (916) 554-7460

Case 2:08-cr-00427-MCE Document 433

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Filed 07/06/11 Page 14 of 34

objection to this, and I know there could be an objection.

doing it for a tactical reason.

And

And I want the record to reflect that, moreover, I

think that when the Court goes through its own plea colloquy --

and I'm certainly not going to put words in this Court's mouth

-- but my understanding of the plea colloquy that I've engaged

in with this Court is that you ask the defendant:

reviewed the factual basis and is that true and correct?

That's my understanding.

Have you

That's where the Court started.

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Now I think that the witness may be advised by his

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counsel, you know, that in fact he was admitting because the

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Government can prove it.

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colloquy is the Court goes through what I just said.

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15

MR. FERRARI:

But my understanding of the plea

That's a basis of impeachment?

Every

one of your clients does that.

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MR. KAROWSKY:

17

THE COURT:

I'm not saying basis for impeachment.

I'm trying to get ahead of where this is

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going and where it's heading and before we get too far down the

19

road.

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And I can't unring this bell right now with this jury.
I want to find out where this is going and what

21

effect it's going to have on your client potentially or

22

anything else that's happening here.

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I'm just hearing it, and I'm seeing a plea agreement

24

factual basis up on the screen with Mr. Karowsky's client's

25

name on it and other names here, that have been sworn under

DIANE J. SHEPARD, OFFICIAL COURT REPORTER, USDC -- (916) 554-7460

Case 2:08-cr-00427-MCE Document 433


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oath by this defendant as being true and correct.

Confrontation issue.

that are coming up here.

Defense?

I'm just saying there is a lot of things

MR. MOSS:

THE COURT:

MR. RICHARDS:

15

Filed 07/06/11 Page 15 of 34

And if you're waiving them all?

Yes.
Waiving all these issues?
I'm just going through the statements

that he made in the plea agreement.

MR. FERRARI:

I think in response to the relevance

10

objection he does have an obligation to put forth a proffer of

11

why it's relevant.

12

MR. RICHARDS:

13

MR. FERRARI:

14

MR. RICHARDS:

Who?
You.
The plea agreement's in evidence.

15

can't ask him questions about the plea agreement in evidence?

16

I'm not understanding what I'm doing wrong.

17

through the plea agreement to establish what he knew and he

18

didn't know.

19

past that.

20

factual basis.

That's all I'm doing.

MR. FERRARI:

22

MR. RICHARDS:

24
25

I'm not going to get in

I'm going to show what he contributed to this

21

23

I'm just going

Why is this relevant?


It's relevant to show that the doctors

that this group was using didn't communicate with each other.
MR. FERRARI:

You've already established that.

You

just asked that.

DIANE J. SHEPARD, OFFICIAL COURT REPORTER, USDC -- (916) 554-7460

Case 2:08-cr-00427-MCE Document 433


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MR. RICHARDS:

through the plea agreement.

cross-examination?

THE COURT:

16

I don't understand why I can't go

Filed 07/06/11 Page 16 of 34

Do you get to write my

There are a lot more issues being raised

by this now, going through this factual basis.

MR. RICHARDS:

If the witness says these facts are

true in his plea agreement, under penalty of perjury -- and I

haven't even got to his attestation -- and he's saying I didn't

contribute this, I have no personal knowledge of it, doesn't go

10

to credibility --

11

MR. WARRINGER:

12

(End in sidebar conference.)

13

THE COURT:

14

this lengthy delay.

I think it's a 402 problem.

Ladies and gentlemen, I apologize for


Just a moment.

15

(Begin sidebar conference.)

16

THE COURT:

But where you've gone into is a 403 issue

17

because you're now taking this jury into an area that can be

18

totally confusing.

19

out of this factual basis is substantially outweighed by

20

confusion of the jury, misleading the jury, undue consumption

21

of time.

22

And the probative value that you're getting

There are other ways to get what you just told me as

23

a proffer for doing this.

24

a new subject matter under 403.

25

I'm ruling that you must move on to


That's my ruling.

(End sidebar conference.)

DIANE J. SHEPARD, OFFICIAL COURT REPORTER, USDC -- (916) 554-7460

Case 2:08-cr-00427-MCE Document 433


BY MR. RICHARDS:

Filed 07/06/11 Page 17 of 34

17

Q.

Did you have any personal

interactions with Dr. Teitelbaum at any time?

A.

No, I did not.

Q.

Now with respect to your plea agreement, there is a

provision in there that deals with your benefits that you're

going to receive if the Government files a motion.

your understanding?

A.

I believe so.

Q.

Yes.

10

A.

I don't see it specifically.

11

Q.

I'm just asking you if you have an understanding?

12

A.

Yes.

13

Q.

I'll get to the section.

14

is that if you testify truthfully, then the Government has the

15

option of filing this motion?

16

A.

17

truthfully, and the Government may submit something.

18

Q.

19

you said you read this plea agreement and carefully reviewed

20

every part of it with your attorney, and where you said no

21

other promises have been made -- you testified about some other

22

crime you committed with wheelchair referrals?

23

A.

24

I didn't say it was a crime.

25

Q.

Is that

Pursuant to 5K1.1?
In this, you mean?

You're just asking me?

And so your understanding

My understanding is that I'm obligated to testify

Okay.

And this admonition above your signature where

I said I referred patients to receive a wheelchair.

Were they legitimate referrals?

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Case 2:08-cr-00427-MCE Document 433


I referred patients.

Filed 07/06/11 Page 18 of 34

A.

yes.

Q.

No.

A.

No.

Q.

So they -- those were -- those weren't legitimate

then referrals either, right?

A.

No.

Q.

And did the Government promise you that they're not

going to charge you with that?

18

I was very clear about that,

But I mean were they patients that you met?

10

A.

No.

11

Q.

So did you figure out if you're going to get charged

12

with these referrals?

13

A.

I don't know.

14

Q.

Well, when you went -- when you went to the Lafayette

15

-- when you went to the Lafayette clinic, when you first

16

started there, you said you didn't recognize there was fraud,

17

correct?

18

A.

Right.

19

Q.

And prior to the Lafayette clinic where did you work

20

at?

21

A.

22

clinics in the L.A. area.

23

Q.

24

Lafayette clinic was there any fraud going on there?

25

A.

Mostly at L.A. Metropolitan Hospital and some private

All right.

And at the prior clinic before the

No.

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Case 2:08-cr-00427-MCE Document 433

Filed 07/06/11 Page 19 of 34

19

Q.

So that was the first time that you had -- the

Lafayette clinic was the first clinic that you had experienced

some sort of fraud with Medicare?

A.

Yes.

Q.

Now this is the section of your plea agreement that

says that the Government at the time of sentencing can reduce

up to 50 percent the applicable guideline sentence if you

provide substantial assistance to the Government.

that?

Do you see

10

A.

I'm looking.

I see it.

11

Q.

All right.

12

agreement before you signed it?

13

A.

14

five.

15

Q.

16

of health and other reasons that you've been desperate for

17

money?

18

A.

Yes.

19

Q.

And in this particular case, isn't it true that

20

you're aware that if the Government is unhappy with your

21

testimony because they find it untruthful, then they're not

22

going to file this motion?

23

A.

24

agreement does not apply or attach or something like that.

25

Q.

How many times did you read this plea

I don't remember exactly.

A few times.

Less than

And since 2004 would it be fair to say that because

It's my understanding if I'm untruthful this -- the

All right.

You haven't been sentenced in this case

DIANE J. SHEPARD, OFFICIAL COURT REPORTER, USDC -- (916) 554-7460

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Filed 07/06/11 Page 20 of 34

20

yet, correct?

A.

No.

Q.

And at what point did you find out -- or do you

believe that you will be sentenced in this case?

A.

I'm not sure.

Q.

Well, do you know if you're going to have to pay any

restitution for any of the Medicare fraud that you caused?

A.

Yes.

Q.

From the Lafayette clinic or just from the Richmond

I'm subject to -- for the restitution, yes.

10

Clinic?

11

A.

12

case.

13

Q.

14

Lafayette clinic, those you're not going to have to pay,

15

correct?

16

A.

There's no case outstanding from that.

17

Q.

In other words, you got away with that crime?

From the Richmond Clinic.

Okay.

The facts stated in this

So the profits that you received from the

18

MR. FERRARI:

19

THE COURT:

Objection.

Argumentative.

Sustained.

20

Q.

BY MR. RICHARDS:

That offense, you weren't charged

21

ever, correct?

22

A.

That's correct.

23

Q.

Do you know how much money it cost Medicare for that

24

offense?

25

A.

No, I do not.

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Case 2:08-cr-00427-MCE Document 433

Filed 07/06/11 Page 21 of 34

Q.

Max.

A.

Yes.

Q.

And isn't it true that you called Susan because you

wanted to make sure you were getting your full 15 percent?

A.

money was coming from Medicare to the bank account for the

point of getting -- of finding out 15 percent, right.

Q.

21

Now you mentioned a Susan that was the biller for


Do you remember that?

I wanted to find out how I could check on how much

But your, let's say, arrangement with this group was

10

that you would get 15 percent of all the billings, right?

11

A.

Of the amount of money that they paid, right.

12

Q.

And unlike the Lafayette clinic, you didn't have

13

control over this account, did you?

14

A.

No.

15

Q.

No, you didn't have control?

16

A.

I -- I had control of the checks.

17

Q.

But how did you get your 15 percent?

18

A.

I wrote a check to myself.

19

Q.

Did someone else have the ability to take out the

20

rest of the money?

21

A.

Well, Max had checks that I had pre-signed.

22

Q.

Okay.

23

you a run?

24

A.

What's --

25

Q.

Like a run of how many charges there were?

So did you ask Susan to call Medicare to get

DIANE J. SHEPARD, OFFICIAL COURT REPORTER, USDC -- (916) 554-7460

Case 2:08-cr-00427-MCE Document 433

22

A.

number to call so that I could get that run information -- I

think you're referring to -- from the computer for myself.

Q.

she?

A.

I did.

Q.

All right.

was it on the phone?

A.

Just on the phone.

10

Q.

So you don't even know what she looks like, right?

11

A.

I do not.

12

Q.

And when you first met Max at the office on Riverside

13

Drive, where the Government showed a picture, you knew from

14

that meeting that there was going to be fraud at the Richmond

15

clinic, right?

16

A.

Yes, I did.

17

Q.

And you don't know -- you don't have any idea -- let

18

me strike that.

19

No.

Filed 07/06/11 Page 22 of 34

I asked her what my number was and the telephone

And did you make the phone call to Medicare or did

And did you ever meet her in person or

When you saw -- you say you looked at a couple files.

20

Do you remember that testimony?

That Max brought you a couple

21

files when you were in the home?

22

A.

Charts?

23

Q.

Charts, yes.

24

A.

Yes.

25

Q.

Do you remember how many charts you looked at?

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Case 2:08-cr-00427-MCE Document 433

23

Filed 07/06/11 Page 23 of 34

A.

Not exactly.

Q.

But you said you did spend some time looking through

the charts?

A.

Yes.

Q.

Okay.

number, so you wanted to see the tests and findings that were

being done at that time, correct?

A.

anything else that was in there, so that's what I did.

And you want -- your name was on the provider

I was directed to sign all the tests and to co-sign


And I

10

looked at the results to try and make sure that they made

11

sense.

12

Q.

13

you actually read the charts, right?

14

A.

To a certain degree, yes.

15

Q.

And if you wanted to, you could have told Max, "I

16

don't want to sign these charts, they're just too silly,"

17

right?

18

A.

Sorta no.

19

Q.

You were compelled to sign them?

20

A.

I financially was extremely desperate.

21

Q.

So would it be fair to say that Max was aware that

22

you were financially desperate?

23

A.

Yes.

24

Q.

Do you feel that Max took advantage of you because of

25

your financial desperation?

But you just didn't close your eyes and blindly sign,

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Filed 07/06/11 Page 24 of 34

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A.

I'm an adult.

Q.

Well, did you convey to Max during the period of you

knowing him that you were desperate for money?

A.

Yes.

Q.

And did you convey -- when you testified earlier, you

said you wanted to go there and actually see patients to try to

earn more money, and he made it difficult, right?

A.

That's correct.

Q.

And when you went to the -- when you did the Medicare

10

run, do you remember how much charges were being billed under

11

your provider number?

12

A.

13

I had been -- that it jibed with what I had been receiving.

14

Q.

15

in that interview, wasn't your goal of the interview to let him

16

know that you knew how to assist in a fraudulent operation?

17

A.

I don't understand what you're asking.

18

Q.

Let me back up.

19

for him to get to know you and you to get to know him?

20

A.

Yes.

21

Q.

And what were you evaluating with respect to Max,

22

with respect to why -- what factors were you looking at to see

23

whether you wanted to commit this fraud with him?

24

A.

Just to see what he was offering.

25

Q.

As far as your cut?

I don't remember the numbers.

I just made sure that

But when you met -- when you met Max the first time

When you met Max, wasn't the meeting

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25

A.

No.

As far as the whole operation.

Q.

And did you disclose to Max during that meeting that

you were effective at getting fraudulent bills through

Medicare?

A.

No, I did not.

Q.

What did you tell him, if anything, that you had to

offer with respect to helping him commit this crime?

A.

but I didn't go in and say "I offer to help you with this

I didn't -- I'm not trying to be disagreeable to you,

10

crime."

I just said that I had a license, a DEA number, and

11

that I was -- that I could get a Medi-Cal provider number --

12

Medicare, rather, provider number.

13

represented.

14

Q.

15

difficult as far as signing files?

16

A.

No.

17

Q.

Did you represent that you had worked -- did you tell

18

Max you had worked at a prior clinic where they did basically

19

the same thing?

20

A.

21

The gentlemen that took me out there, the people I knew had had

22

contact with Max already.

23

about me.

24

Q.

25

discuss -- isn't it true those two gentlemen had knowledge that

And that's all I

Didn't you represent that you weren't going to be

It wasn't discussed.

I didn't discuss anything from my previous history.

I don't know what they told him

But weren't those two gentlemen -- did you ever

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26

you had worked in a prior fraud at the Lafayette clinic?

A.

Yes, they did.

Q.

So when they were introducing to you Max, it was --

you were being introduced as the type of doctor that would play

ball, right?

6
7

MR. FERRARI:

Argumentative.

Calls for

speculation.

8
9

Objection.

THE COURT:
Q.

Sustained.

BY MR. RICHARDS:

You were introduced as the type of

10

doctor that would sign off on charges without -- charges that

11

you knew were fraudulent?

12

A.

13

happened at that meeting.

14

number.

15

north, and that he would get back to me.

16

Q.

17

didn't have to be disclosed that you were committing fraud?

18

A.

I'm sorry.

19

Q.

If there wasn't an -- it says that you guys -- you

20

told me you talked about the fact that you were going to get

21

15 percent of the charges, right?

22

A.

Right.

23

Q.

And at the meeting, was your job duties discussed at

24

that meeting with respect to how you would earn the 15 percent?

25

A.

I don't know what they told him.

That's not what

I told him I could get a Medicare

He told me he was planning on opening a clinic up


That was it.

Well, at what point -- so what was the reason why it

I don't understand.

No.

DIANE J. SHEPARD, OFFICIAL COURT REPORTER, USDC -- (916) 554-7460

Case 2:08-cr-00427-MCE Document 433

Filed 07/06/11 Page 27 of 34

Q.

you'd have to do to earn the 15 percent?

A.

nursing home, and I was taken back there after the meeting.

And the two doctors that I mentioned that I knew, who were

friends with Max, would come and tell me things.

that much contact with Max at first.

they asked me to do.

Q.

27

So at what point did you -- were you told as to what

Over time they -- at that time, I was still in the

I didn't have

And I would just do what

Why were these two doctor friends of yours helping

10

you?

11

A.

I couldn't do any of that for myself.

12

Q.

Were these doctor friends of yours that had committed

13

this fraud in the past with you?

14

A.

Yes.

15

Q.

So they were just basically doing you a favor because

16

of your condition, is that fair to say?

17

A.

That's fair to say.

18

Q.

How come they didn't work with Max, if you know?

19

A.

I believe one couldn't get a number and something

20

happened with the other guy.

21

Q.

22

referral fee as part of your fees?

23

A.

No.

24

Q.

Did you give them anything for introducing you to

25

Max?

Did these doctor friends of yours ask you for a

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Filed 07/06/11 Page 28 of 34

28

A.

No.

Q.

How much money did you make from Max during the time

that you were working with him?

A.

I don't know.

Q.

You don't have any estimate?

A.

It wasn't that much.

Q.

So in the plea agreement when it says you were there

for almost a year, it wasn't continual work for a year, is that

fair to say?

10

A.

It was episodic, right.

11

Q.

And would it be fair or unfair to say that in your

12

discussions with Max that he didn't discuss any of his

13

conversations he had with other doctors with respect to what

14

they were doing, correct?

15

A.

Correct, I believe, yes.

16

Q.

And that -- when you went through -- besides Max, did

17

you ever meet anybody else that was involved in the criminal

18

part of this group?

19

A.

Yes.

20

Q.

Who was that?

21

A.

I'm not sure of his name.

22

a guy with him one time when he brought charts that I was told

23

worked up north with him.

24

at that meeting briefly.

25

Q.

A gentleman -- he brought

A younger guy.

And I met him once

But that's the only person.

But would it be fair or unfair to say that the rest

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Filed 07/06/11 Page 29 of 34

29

of the people in this were kept secret from you, is that a fair

statement?

A.

care facility.

anywhere, and I didn't meet anyone else.

Q.

Max made it difficult for you, right?

A.

make it very difficult.

I guess.

I mean, I was in the nursing home then, the

Max was the only one that came by.

I didn't go

But the one time that you tried to go to the clinic,

When I was talking to him about going, yes, he did


Right.

10

Q.

And you testified and as -- you testified you didn't

11

even know where this clinic is, right?

12

A.

That's correct, yes.

13

Q.

So even if you wanted to go, it would have been

14

difficult for you to get around, right?

15

A.

16

well enough to go at that time, actually.

17

Q.

So Max sort of knew that he had you cornered?

18

A.

I'm sure he did.

19

Q.

Did you and Max -- when you closed the bank account

20

you said he was mad, right?

21

A.

Yes, he was.

22

Q.

And did Max ever try and physically intimidate you?

23

A.

Oh, no.

24

Q.

No?

25

A.

No.

It would have been physically impossible.

I wasn't

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Filed 07/06/11 Page 30 of 34

30

Q.

Isn't it true you mentioned to the FBI you were

afraid of Max because of something?

A.

what his background was and that there may be something to be

worried about, yes.

Q.

But nothing that he ever did?

A.

No.

Q.

So would it be fair to unfair to say that the biggest

leverage Max had over you was your unavailability to cash?

I told them I didn't know.

I told them I didn't know

He never came at me or anything like that, no.

10

A.

Are you saying financially strapped?

11

Q.

Financially strapped, right.

12

A.

Yes.

13

Q.

You mentioned that you had a prescription drug

14

addiction, was that during this time?

15

A.

No.

16

Q.

When did that end?

17

A.

April 1st, 2000.

18

Q.

Okay.

19

A.

No.

20

Q.

The financial -- the financially strapped part was

21

simply a result of your physical limitations?

22

A.

23

in the hospital for a majority of several months, between that

24

and nursing homes, and it drained all my money, and I wasn't

25

working.

Yes.

So that has nothing to do with this?

Because I hadn't been working, and then because I was

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Filed 07/06/11 Page 31 of 34

31

Q.

When did you first find out that the Government was

investigating your work at the clinic?

A.

When I was arrested.

Q.

So it came as a total surprise to you, correct?

A.

Sort of.

Q.

Well, prior to that had Max or anybody contacted you

and said, hey, the Government's calling about something?

A.

No.

Q.

So once you closed the account, would it be fair or

Not in that way, no.

10

unfair to say you never heard from Max again after he got mad

11

at you for closing it, but, I mean, shortly thereafter?

12

A.

13

after that no contact.

14

Q.

15

provider number, there was no reason to talk to you anymore,

16

right?

17

A.

That's correct.

18

Q.

And when you first agreed to do this and you saw

19

other doctors' notes in the file, did you ever ask Max if you

20

can call any of these other doctors?

21

A.

No, I didn't.

22

Q.

So it seems apparent that you were just very

23

cooperative in doing what Max needed you to do to keep

24

submitting these claims, is that a true statement?

25

A.

Shortly thereafter there were a couple calls, but

So once they didn't have any need to use your

That's a very true statement.

DIANE J. SHEPARD, OFFICIAL COURT REPORTER, USDC -- (916) 554-7460

Case 2:08-cr-00427-MCE Document 433


1

Q.

Filed 07/06/11 Page 32 of 34

32

Just one moment, Your Honor.


I just want to talk to you for a minute about

forgeries.

You indicated to the FBI that Dr. McBay was

proficient at forging your signature, is that true?

A.

Yes.

Q.

And isn't it true that you've seen documents related

to this case into this clinic that appear to have your

signature forged on them?

A.

I believe so, yes.

10

Q.

So it's very possible that Max and his cohorts forged

11

your signature a couple times, right?

12

A.

Somebody did.

13

Q.

Would it you surprise you if there were things

14

submitted under your name that you didn't know about?

15

MR. FERRARI:

16

THE COURT:

Objection.

Vague.

Sustained.

17

Q.

BY MR. RICHARDS:

18

were submitted to Medicare without you knowing about it?

19

A.

In a way, yes.

20

Q.

Because you knew that once you were dealing with

21

people like this, that anything could happen?

22

A.

23

trying to answer your question -- but once you lie down with

24

dogs, you get fleas, and that's it, so.

25

Q.

Yeah.

Yeah.

Would it surprise you if documents

In a way, no.

I mean, it's the old -- I'm really

Now, you heard the questions Mr. Ferrari asked you

DIANE J. SHEPARD, OFFICIAL COURT REPORTER, USDC -- (916) 554-7460

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Filed 07/06/11 Page 33 of 34

33

about the fact that you looked at these charts and that you saw

some of these tests that you hadn't seen.

You're not -- if you had wanted to see the clinic,

see if it was a legitimate clinic, you could have done that

before you agreed to do this, right?

Strike that.

But in your case because of your physical limitations

that was going to be impossible for you to ever verify, for you

to ever have a site visit, right?

A.

That's correct.

10

Q.

So you don't even know if your name was on the door,

11

do you?

12

A.

No.

13

Q.

All right.

14

simply because you chose to do things this way that every

15

doctor involved in this case had knowledge there was some fraud

16

going on, are you?

17

A.

18

know about me.

No.
And you're not in any way suggesting

I'm only attesting -- right.

19

MR. RICHARDS:

20

(End of partial transcript.)

I only attest to what I

Thank you.

21
22
23
24
25

DIANE J. SHEPARD, OFFICIAL COURT REPORTER, USDC -- (916) 554-7460

Case 2:08-cr-00427-MCE Document 433


1

Filed 07/06/11 Page 34 of 34

34

CERTIFICATION

2
3

I, Diane J. Shepard, certify that the foregoing is a

correct transcript from the record of proceedings in the

above-entitled matter.

6
7
8
9
10

/s/ DIANE J. SHEPARD


DIANE J. SHEPARD, CSR #6331, RPR
Official Court Reporter
United States District Court

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

DIANE J. SHEPARD, OFFICIAL COURT REPORTER, USDC -- (916) 554-7460