Filed: Jan. 15, 2016
Latest Update: Mar. 02, 2020
Summary: 14-3170-cr United States v. Seitz UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORD
Summary: 14-3170-cr United States v. Seitz UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDE..
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14-3170-cr
United States v. Seitz
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 15th day of January, two thousand sixteen.
5
6 PRESENT: AMALYA L. KEARSE,
7 DENNIS JACOBS,
8 CHESTER J. STRAUB,
9 Circuit Judges.
10
11 - - - - - - - - - - - - - - - - - - - -X
12 UNITED STATES OF AMERICA,
13 Appellee,
14
15 -v.- 14-3170-cr
16
17 JAY SEITZ,
18 Defendant-Appellant.
19 - - - - - - - - - - - - - - - - - - - -X
20
21 FOR APPELLANT: ERIC M. CREIZMAN, Creizman PLLC,
22 New York, NY.
23
24 FOR APPELLEE: BRIAN R. BLAIS (Kristy J.
25 Greenberg, Michael A. Levy, on
26 the brief), for Preet Bharara,
27 United States Attorney for the
28 Southern District of New York,
29 New York, NY.
1
1 Appeal from a judgment of the United States District
2 Court for the Southern District of New York (Stein, J.).
3
4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
5 AND DECREED that the judgment of the district court be
6 AFFIRMED.
7
8 Jay Seitz appeals from the judgment of the United
9 States District Court for the Southern District of New York
10 (Stein, J.) convicting him of (i) mail fraud, (ii) health
11 care fraud, and (iii) conspiracy to commit mail and health
12 care fraud. Seitz was sentenced chiefly to 24 months’
13 imprisonment. Seitz challenges the sufficiency of the
14 evidence underlying his convictions and argues that the
15 government elicited testimony that deprived him of a fair
16 trial. We assume the parties’ familiarity with the
17 underlying facts, the procedural history, and the issues
18 presented for review.
19
20 1. A defendant challenging the sufficiency of the
21 evidence underlying his conviction at trial “bears a heavy
22 burden” because our standard of review is “exceedingly
23 deferential”: we “must view the evidence in the light most
24 favorable to the government, crediting every inference that
25 could have been drawn in the government’s favor,” and we
26 will uphold the judgment if “any rational trier of fact
27 could have found the essential elements of the crime beyond
28 a reasonable doubt.” United States v. Coplan,
703 F.3d 46,
29 62 (2d Cir. 2012) (internal quotation marks omitted).
30
31 The evidence establishes that Seitz knew or consciously
32 avoided knowing that (i) the claims falsely represented that
33 he actually performed the specified treatments, (ii) he was
34 not permitted to bill for treatment done by unlicensed
35 social workers, and (iii) the claims included medically
36 unnecessary or fabricated treatments. Seitz signed numerous
37 claims forms, each of which (falsely) represented that Seitz
38 was the “treating provider” and (falsely) represented that
39 the treatment was done by a psychologist, rather than a
40 social worker. Not only were these representations false,
41 they also concealed that unlicensed social workers were
42 performing the actual treatments. Seitz also signed
43 treatment notes that were merely fill-in-the-blank templates
44 that often produced inconsistent or inaccurate results.
2
1 Once insurance companies began rejecting his original
2 company’s claims, Seitz formed a new company, that was
3 identical in its personnel and practices but with a
4 different name, for the submission of claims. Finally,
5 Seitz received enormous amounts of money for doing what
6 amounted to very litte work. The jury had a more than
7 adequate basis for concluding that Seitz intended to commit
8 fraud, knew he was committing fraud, and had conspired to
9 commit fraud.
10
11 2. To succeed on a claim of prosecutorial misconduct
12 based on conduct at trial, a defendant must show that the
13 prosecutor’s conduct caused “substantial prejudice” such
14 that the defendant was deprived of a fair trial. United
15 States v. Tocco,
135 F.3d 116, 130 (2d Cir. 1998); see also
16 United States v. Locascio,
6 F.3d 924, 945-46 (2d Cir.
17 1993). To assess whether substantial prejudice exists, we
18 weigh “the severity of the misconduct, the measures adopted
19 to cure [it], and the certainty of conviction absent the
20 misconduct.” United States v. Elias,
285 F.3d 183, 190 (2d
21 Cir. 2002).
22
23 Seitz fails to identify any prosecutorial misconduct,
24 let alone misconduct that substantially prejudiced him at
25 trial. Seitz points to an alleged mixup by the insurance
26 company investigator as to whether the billing was done by
27 Seitz, personally, or his professional corporation, Jay
28 Psychological. But this distinction was trivial. The
29 witness testified that she was investigating both “Dr. Jay
30 Seitz” and “Jay Psychological, PC.” Seitz also complains of
31 testimony the government elicited from the insurance company
32 investigator identifying Seitz’s signature. But whatever
33 ambiguity existed as to the insurance company investigator’s
34 identification of a signature being similar to other
35 signatures, purportedly of Seitz, was clarified by the
36 district court and by defense counsel’s cross-examination.
37 In any event, this alleged misconduct likewise concerns a
38 minor matter; other witnesses testified at trial that they
39 had personally seen Seitz sign his corporations’ bills and
40 treatment notes.
41
42
3
1 Accordingly, and finding no merit in Seitz’s other
2 arguments, we hereby AFFIRM the judgment of the district
3 court.
4
5 FOR THE COURT:
6 CATHERINE O’HAGAN WOLFE, CLERK
7
4