Beruflich Dokumente
Kultur Dokumente
_______________________________
GENA RANDOLPH,
Appellant,
v.
Appellee.
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
(D.E. 107).
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
1
The 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).
2
Appellant 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.
5. Ms. Randolph has secured a bonding agency of Annette Shivers,
Phone: (843) 708-3739, to post an appellate bond in the event this Court grants her
request.
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.
8. The Defendant proceeded to Jury Trial between July 11, 2018 and
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
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.
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,
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
testified against Ms. Randolph. Next, Ms. Randolph alleged a discovery violation
whereby the Government produced 16 exhibits at trial, of which many were not
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.
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,
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
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’s appeal is a “close question
or one that very well could be decided the other way.” Id. at 900-901.
Summary of Argument
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
3
The 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.
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.
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
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
4
A 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).
safety of any other person or the community”).
maintain employment and not carry a passport. She has never violated any of these
Release, the facts showing that these Conditions of Release worked for Ms.
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
original Conditions of Release. ECF Doc. #95. Putting all of these facts and factors
5
The United 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.
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
(1) That Bank records clearly prove Wage/Labor Amounts paid by Palmetto and
(2) Tax Records also indicate that Ms. Randolph was in constant financial distress.
Medicare did not initiate the matter or make a fraud referral to Law
Enforcement.
(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
(6) Regarding the Identity Theft Counts: Valerie Pack and Felicia Burkett
confirmed Medicaid does not enroll Speech Pathology Interns or Assistants into
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
(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
(9) There was no financial gain, as the Bank Records indicate Ms. Randolph was in
substantial financial distress from 2012, over-drafting her account and suffering
(10) Next, no witness testified that they never were provided the service that was
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
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.
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
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
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
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
S.Ct. 3383 (1983) (a “substantial question” is “something more than the absence of
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
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
criminal case is governed by Fed. R. Crim. P. 16, which specifies the type of
rule also grants the district court the power, however, to restrict or
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
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
States District Judge for South Carolina. (See, D.E. 258 in Case No. 3:12-cr-
services fraud, mail and wire fraud, money laundering, and making false
insufficient evidence for a jury to convict him, and also contended that the
district court constructively amended the original indictment, necessitating a
new trial. The appellate court concluded that there was insufficient evidence
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
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
Because Ms. Randolph has clearly met all of the §3143 factors, this
Honorable Court should grant her release pending determination of her appeal.
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
7
The 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)
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
defendant must show that [s]he is not a flight risk or danger to the community and
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
via telephone, to ascertain if the Government objects to the emergency motion for
bond pending appeal. Counsel does not know whether opposing counsel objects.
8
Section 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.
WHEREFORE, the Defendant-Appellant, Ms. Randolph, respectfully
requests that this Court stay his surrender date and grant her release pending
Respectfully submitted,
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