United States v . Kaluanya 09-CR-107-SM 10/07/09 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal N o . 09-cr-107-SM Opinion N o .

Mento Kaluanya

O R D E R

Defendant, Mento Kaluanya, is a resident of Houston, Texas.

He is charged with health care fraud, in violation of

, and aggravated identity theft, in violation of 18 U.S.C.

§ 1028A. He moves the court to dismiss the indictment for lack

of proper venue o r , in the alternative, to transfer venue to the

Southern District of Texas. For the reasons discussed below,

that motion is denied to the extent it seeks dismissal of the

indictment, but the request for change of venue is granted.

Discussion

I. Dismissal for Lack of Venue.

“The right to be tried in the appropriate venue is one of

the constitutional protections provided to defendants by the

Sixth Amendment.” United States v . Scott,

0 , 34 (1st

Cir. 2001). The Sixth Amendment provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” In addition, Rule

18 of the Federal Rules of Criminal Procedure provides that,

“[u]nless a statute or these rules permit otherwise, the

government must prosecute an offense in a district where the

offense was committed.”

It i s , however, well established that “where a crime

consists of distinct parts which have different localities, the

whole may be tried where any part can be proved to have been

done.” United States v . Lombardo,

3 , 77 (1916).

That principle has been codified in

, which

provides:

Except as otherwise expressly provided by enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.

Any offense involving the use of the mails, transportation in interstate or foreign commerce, or the importation of an object or person into the United States is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such commerce, mail matter, or imported object or person moves.

(a).

2 The government bears the burden of showing that venue is

proper by a preponderance of the evidence. See Scott,

4 . When a defendant moves to dismiss an indictment prior to

his or her trial, the court will accept as true all of the

factual allegations set forth in the indictment. See, e.g.,

United States v . Jensen,

6 7 , 669 (9th Cir. 1996); United

States v . Goldberg,

(2d Cir. 1985). See also

United States v . Mann,

(5th Cir. 1975) (“A

defendant may not properly challenge an indictment, sufficient on

its face, on the ground that the allegations are not supported by

adequate evidence, for an indictment returned by a legally

constituted and unbiased grand jury, if valid on its face, is

enough to call for trial of the charge on the merits.”).

Here, the government has carried its burden. The indictment

adequately alleges that a portion of the criminal activity with

which defendant is charged occurred in New Hampshire. Among

other things, it alleges that HyCentral Medical Supply, Inc. - a

New Hampshire corporation of which defendant was the president

and registered agent - played an integral role in defendant’s

alleged identity theft and his scheme to defraud Medicare. See,

e.g., Indictment (document n o . 15) at paras. 1 7 , 1 8 , 2 0 , 2 5 , 2 9 ,

3 4 , 3 9 , and 4 4 . According to the indictment, defendant used

HyCentral to submit fraudulent reimbursement claims to Medicare

3 for durable medical equipment (“DME”) allegedly prescribed by

physicians practicing in Texas and Louisiana. The indictment

also alleges that at least a portion of the payments made by

Medicare on those allegedly fraudulent reimbursement claims went

to (or was channeled through) HyCentral. Plainly, then, the

indictment sets forth a sufficient factual basis to support venue

in this district.

II. Change of Venue.

Of course, the fact that venue is proper in this district

does not compel the conclusion that the case must (or even

should) be tried here. As this court previously noted:

A district court has broad discretionary power to transfer a criminal prosecution to another district “for the convenience of the parties and witnesses and in the interest of justice.” Fed. R. Crim. P. 21(b). In exercising that discretion, courts generally consider a number of factors identified by the Supreme Court in Platt v . Minnesota Mining & Mfg. Co.,

(1964). Those factors include: (1) the location of the defendant; (2) the location of possible witnesses; (3) the location of events likely to be in issue; (4) the location of documents and records likely to be involved; (5) the disruption of defendant’s business if the case is not transferred; (6) the expense to the parties; (7) the location of counsel; (8) the relative accessibility of the place of trial; (9) the docket condition of each district or division involved; and (10) any other special considerations relevant to transfer.

. No one factor is likely to be dispositive, but all should be considered under the circumstances:

It is unlikely that any one of these factors will be present by itself in a particular

4 case. Ordinarily the various factors appear in combination, with some pointing in favor of transfer and others against transfer. It is incumbent on the court in such a case to strike a balance and decide which factors seem to be of greatest importance in that case.

United States v . Muratoski,

, 9-10 (D.N.H. 2005)

(quoting 2 Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 344 at 2 7 5 ) .

Considering the Platt factors, the court is persuaded that,

on balance, a transfer of venue is warranted. First, the

defendant is a resident of Texas. “[I]t i s , of course, a

physical, emotional, and economic hardship for this defendant to

face trial in New Hampshire, far from his home [and family] in

[Texas].” Muratoski,

1 . Among other things,

travel from Texas to New Hampshire is expensive and defendant is

apparently unemployed at the moment. S o , while a trial in New

Hampshire would not disrupt his business (since he has none), it

would certainly impose a financial burden on him - a burden that

is all the more difficult to bear given his unemployed status.

Additionally, while he is ably represented by counsel here in New

Hampshire, he prefers to be represented by Attorney Steven

Shellist, a partner in a Houston law firm, close to defendant’s

home.

5 Second, and of even greater significance, many, if not most,

of the potential trial witnesses live in or near Texas. Among

other things, defendant is alleged to have improperly obtained

and used Unique Provider Identification Numbers (“UPINs”) and

National Provider Identifier (“NPI”) numbers and/or submitted

forged documents ostensibly from four doctors practicing in Texas

and one doctor practicing in Louisiana. And, orders were placed

for durable medical equipment on behalf of patients living in

Texas and Louisiana. Those potential victims and witnesses will

be greatly inconvenienced and will likely miss substantial time

at work if they are called to testify at a trial in New

Hampshire. With respect to the physicians, patients will also be

burdened by their absence. Plainly, if this case is tried in the

Southern District of Texas it will be far more accessible to the

victims, the witnesses, the keepers of relevant records (and the

records themselves), and the defendant. Those records that are

not already within the Southern District can be delivered there

with relative ease. Efficiency and economics weigh heavily in

favor of trial where the defendant and relevant witnesses live.

Next, as defendant points out, many of the events likely to

be at issue took place in Texas and Louisiana. As noted above,

defendant is alleged to have improperly obtained the UPINs and

NPI numbers of doctors practicing in Texas and Louisiana; the

6 orders he placed for DME were made on behalf of people living in

Texas and Louisiana; the supply houses through which defendant

obtained the DME are located in Texas; and defendant was arrested

in Texas.

In support of its opposition to venue transfer, the

government points out that the docket is more congested in the

Southern District of Texas than it is here in the District of New

Hampshire. In response, defendant notes that the government will

be well represented in that district, since it appears that the

United States Attorney’s Office in that district prosecutes far

more DME fraud cases than are brought in this district and, at

least implicitly, defendant suggests that the case may be handled

more efficiently, given the government’s greater familiarity with

such cases in the Southern District.

Finally, a transfer of venue in this case would impose no

undue burden upon the government. The critical evidence is

likely in the form of documents which, to the extent they are not

already in Texas, are easily transported and authenticated.

Government employee-witnesses are either already located in Texas

or can easily and conveniently travel from New Hampshire at no

personal expense. And, in any event, the government’s

inconvenience is “a factor given little weight when other

7 considerations of convenience suggest transfer.” United States

v . Gruberg,

3 4 , 243 (S.D.N.Y. 1979).

Conclusion

While defendant is alleged to have used a New Hampshire

corporation as a conduit through which he submitted fraudulent

claims to obtain Medicare reimbursement for DME, the vast

majority of events underlying the case, the witnesses to those

events, the documents related to those events, and the victims of

defendant’s alleged aggravated identity theft are all located in

and around Texas. Accordingly, while venue in this district is

proper, the court concludes that, in the interest of justice, a

transfer to the Southern District of Texas is warranted for the

convenience of the defendant, likely witnesses, and victims.

Defendant’s motion to dismiss for lack of venue or to

transfer venue to the Southern District of Texas (document n o .

32) i s , then, granted in part and denied in part. For the

reasons discussed above, as well as those set forth in the

government’s memorandum (document n o . 3 3 ) , it is denied to the

extent it seeks dismissal of the indictment for lack of venue.

It i s , however, granted to the extent it seeks a transfer of this

proceeding to the Southern District of Texas.

8 SO ORDERED.

Steven J __McAuliffe Chief Judge

October 7 , 2009

cc: John J. Farley, Esq. Michael J. Gunnison, Esq. Michael J. Iacopino, Esq.

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