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Judge David Hittner Judgments are Not Vindictive nor Unconstitutional According to a 2020 Opinion by the Fifth Circuit

In 1992, a Fifth Circuit judge called out Senior United States District Court Judge David Hittners sentencing as vindictive and unconstitutional. Move on 18 yrs later and while a judicial complaint against David Hittner (seeking impeachment) is percolating at the 5th Cir., they affirm his outrageous sentence.

LIT COMMENTARY

In 1992, a Fifth Circuit judge called out Senior United States District Court Judge David Hittner:

 “Because no reason or justification for the sentence imposed [by HITTNER], beyond the naked power to impose it…I dissent from the affirmance of a sentence that must be presumed to be UNCONSITUTIONAL and VINDICTIVE.”  – U.S. v. Vontsteen, 950 F.2d 1086, 1095 (5th Cir. 1992).

Move on 18 years later and while a judicial complaint against David Hittner is percolating at the 5th Cir., they issue a lengthy 38-page opinion to justify his latest horrific sentence on a young mother that was merely hired as an office manager for what would eventually be discovered as corrupt Russians bilking millions via health care fraud in Texas.

Of course Daniela Gozes-Wagner knew and helped the Russians with the scheme after she was hired, but she only took home a regular salary and was supporting 2 young children. She is guilty of being naive, young and gullible. The sentencing that followed was vindictive and unconstitutional.

In Hittner’s court, she ended up with a 20 year sentence.

Now what’s included in the 5th Circuit opinion but not expanded upon is why her jury trial was reassigned to Judge Hittner when all the defendants were before another judge.

In the end the Russians got off with a quarter of that time in the majority (5 yrs) – because they struck a plea deal and didn’t go to trial.  And if a 20 year sentence is not enough, she’s been hit with $15m+ in restitution and Hittner is garnishing 50% of her prison income and then $400 pm after she is released in 20 years.

The Fifth Circuit 3-panel of Stewart (author), Dennis and Haynes held that they have no issues with Hittners’ sentencing and agree it is perfectly constitutional and despite the many amicus briefs filed in support of Daniela and overturning this unconstitutional sentence. LIT disagrees and we hope that this will go to en banc at the 5th and then, if necessary, onto the U.S. Supreme Court. We are pretty sure this is a case which would most likely garnish mass media attention.

Sadly, this is not a decision based on Daniela alone. No, the Fifth Circuit and the judiciary are protecting themselves first and that means defending their own, no matter how outrageous the sentence or judicial misconduct.

If this panel think that it will go away if they behave like the 3-muskateers, they are sadly mistaken. There is sweeping distrust in our judiciary and if the ones appointed are behaving like outlaws in dark robes and are unable to change, the we have to force change – utilizing all legal and legislative channels.

The Timeline

February 12, 2015

Four Arrested for Conspiring to Commit Health Care Fraud and Money Laundering

HOUSTON—Aliksandr Beketav, 53, Mikhail Shiforenko, 43, Alexsandr Voronov, 46, and Daniela Gozes-Wagner, 32, have been arrested following the return of a federal indictment alleging a health care fraud conspiracy and conspiracy to commit money laundering, announced U.S. Attorney Kenneth Magidson.

The two-count Indictment was returned Dec. 17, 2014, and unsealed following their initial appearances before U.S. Magistrate Stephen W. Smith this afternoon. They were temporarily ordered into custody pending a hearing set for Tuesday, Feb. 17, 2015, at 2:00 p.m.

Shiforenko, Voronov and Gozes-Wagner are all residents of Houston, while Beketav is from Calabasas, Calif.

The indictment alleges that from approximately 2007 through the present, the defendants conspired to falsely bill Medicare and Medicaid for numerous unnecessary medical tests. According to the indictment, they paid Medicare and Medicaid beneficiaries to visit so-called “testing facilities” run by the defendants in the Houston area.

The defendants caused employees of the testing facilities to visit purportedly homebound beneficiaries (to whom the defendants gained access by way of collusive arrangements with home-health care agencies) in order to conduct diagnostic tests on the beneficiaries at their homes, according to the allegations.

The defendants then allegedly caused Medicare and Medicaid to be billed for diagnostic tests that were not performed or were not medically necessary.

In order to hide their fraud from authorities, the indictment alleges they would frequently change the names of the testing facilities and medical professionals listed in the bills submitted to Medicare and Medicaid.

For example, if bills submitted to Medicare listing a particular doctor drew scrutiny from reviewing officials, defendants would allegedly cause that doctor’s name to be removed from future submissions, and for another doctor’s name to be substituted on the bill.

The defendants allegedly operated, among others, Dashwood Doctors Medical Clinic, Southwest Healthcare & Diagnostics, Harwin Healthcare & Diagnostic, Hilcroft Healthcare & Diagnostic, Gulfton Healthcare Inc., Westpark Healthcare & Diagnostics, Village Diagnostic Clinic Inc., and 7111 Medical Clinic Inc. in the Houston area, where these tests were purported to have been done.

According to the indictment, the defendants submitted more than $28 million in fraudulent Medicare and Medicaid claims under the auspices of those eight facilities, of which Medicare and Medicaid paid more than $11 million.

The Indictment also alleges that from 2007 through the present, the defendants conspired to launder money which were proceeds of their health care fraud.

If convicted of conspiring to commit health care fraud, each faces up to 10 years in federal prison. For conspiring to launder money, they also face 20 years in federal prison, upon conviction.

The Indictment also seeks forfeiture of at least $11,440,349 alleged to constitute the proceeds of the unlawful scheme.

The charges are the result of the investigative efforts of the FBI, Texas Attorney General’s Office—Medicaid Fraud Control Unit, and Department of Health and Human Services – Office of Inspector General with the assistance of the Office of Personnel Management and the Railroad Retirement Board. Assistant U.S. Attorneys Michael Chu and Jason Smith are prosecuting the case.

An Indictment is a formal accusation of criminal conduct, not evidence. A defendant is presumed innocent unless convicted through due process of law.

FOR IMMEDIATE RELEASE

Wednesday, March 6, 2019

Houston Woman Sentenced for Conspiring to Commit $50 Million Health Care Fraud and Money Laundering

HOUSTON – A 36-year-old Houston woman has been ordered to pay more than $15 million in restitution following her conviction of conspiring to commit $50 million health care fraud as well laundering money, announced U.S. Attorney Ryan K. Patrick. A jury convicted Daniela Gozes-Wagner in September 2017.

Today. U.S. District Judge David Hittner ordered Gozes-Wagner to serve a total of 240 months imprisonment to be immediately followed by three years of supervised release. She was further ordered to pay restitution of $15,283,985. At the hearing, the court noted Gozes-Wagner had “wreaked havoc” on the health care system of the United States.

Beginning in 2009, Gozes-Wagner conspired with others to falsely bill Medicare and Medicaid for millions of dollars of medical tests which were either not performed or were medically unnecessary.

Most of these tests supposedly occurred at 28 testing facilities over many years. However, when law enforcement conducted law enforcement operations there, they discovered that many of the facilities were actually empty offices.

To prevent Medicare from learning about the scheme, Gozes-Wagner hired “seat warmers” – young women paid to sit and answer phones in the nearly empty offices that comprised many of the “testing facilities.” They believed they could spend most of their time watching streaming movies.

However, when Medicare investigators tried to inspect the empty offices, these “seat warmers” were instructed to notify Gozes-Wagner and prevent the investigators from inspecting the offices.

The conspirators also hid the true owners of the testing facilities by placing them in the names of other people.

The FBI, Texas Attorney General’s Medicaid Fraud Control Unit and the Department of Health and Human Services conducted the investigation with the assistance of the Office of Personnel Management and Railroad Retirement Board. Assistant U.S. Attorneys Michael Chu, Jim McAlister and Jason Smith prosecuted the case.

Nov. 13, 2019

United States Of America v Daniela Gozes-Wagner

STEWART, CARL E.

Judge Carl E Stewart

was born January 2, 1950 (Capricorn)

Age: 70

DENNIS, JAMES L.

Judge James L Dennis

was born January 9, 1936 (Capricorn)

Age: 84

HAYNES, CATHARINA

Judge Catharina Haynes

was born November 9, 1963 (Scorpio)

Age: 56

Six former United States Attorneys General, one former FBI Director, two former United States Solicitors General, two former Texas Supreme Court Justices, the National Association of Criminal Defense Lawyers, the Texas Public Policy Foundation, the Cato Institute, the Due Process Institute and the ACLU are among those who joined amicus briefs supporting Baker Botts client, Daniela Gozes-Wagner.

Daniela is appealing her 20-year prison sentence before the U.S. Court of Appeals for the Fifth Circuit.

In 2010, Daniela —a single mother of two—began working in a marketing capacity at a medical clinic to support herself and her family. Unbeknownst to her when she was hired, the clinic was at the center of a healthcare fraud conspiracy, orchestrated by Russian kingpins. The government admitted that these Russian kingpins were the ones orchestrating this conspiracy—and not Daniela. While Daniela was employed by these Russian kingpins, she made only the equivalent of an annual salary. The kingpins, in contrast, raked in millions of dollars.

The Russian kingpins pleaded guilty and received either 5- or 6-year prison sentences. But Daniela went to trial and received a much greater sentence: The government pressed for – and district court entered – a 20-year prison term for Daniela, while ordering her to pay $15.2 million in restitution.

Notably, Daniela’s sentence is significantly longer than those imposed in other much more highly sophisticated and lucrative frauds—including even Jeffrey Skilling’s sentence for the massive Enron accounting fraud.

Baker Botts, which entered the case as appellate counsel to Ms. Gozes-Wagner, is arguing that the district court imposed an unconstitutional and unlawful sentence.

The Baker Botts team is led by Scott Keller.

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Laws In Texas is a blog about the Financial Crisis and how the banks and government are colluding against the citizens and homeowners of the State of Texas and relying on a system of #FakeDocs and post-crisis legal precedents, specially created by the Court of Appeals for the Fifth Circuit to foreclose on homeowners around this great State. We are not lawyers. We do not offer legal advice. We are citizens of the State of Texas who have spent a decade in the court system in Texas and have been party to during this period to the good, the bad and the very ugly.

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