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Page 1 of 16 E-FILED Wednesday, 06 November, 2013 04:46:00 PM Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS SPRINGFIELD DIVISION UNITED STATES OF AMERICA, Plaintiff, vs. VERNON KLINEFELTER, and GERALDINE KLINEFELTER, Defendants. ) ) ) ) ) ) ) ) ) )

Case No. 12-30035

GOVERNMENTS MOTIONS IN LIMINE The United States of America, by its attorneys, James A. Lewis, United States Attorney for the Central District of Illinois, and Timothy A. Bass, Assistant United States Attorney, respectfully submits its motion in limine. The government states the following: INTRODUCTION On March 7, 2012, the defendants were indicted in this matter and charged with one count of engaging in a scheme to defraud the Social Security Administration (SSA), in violation of 18 U.S.C. 1343, one count of concealment/failure to disclose information, in violation of 42 U.S.C. 408(a)(4), and one count of making a false statement to the SSA, in violation of 42 U.S.C. 408(a)(2), all in connection with Defendant Vernon Klinefelters March 2004 application for more than $100,000 in social security disability benefits that were received between 2005 and 2008. As charged in the indictment, each of these offenses focuses on the defendants conduct and whether they made false statements and/or failed to disclose material information concerning the application for disability benefits, in which the defendants represented to the SSA,

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among other things, that Defendant Vernon Klinefelter, a medical doctor, was disabled and unable to work, did not supervise others, including Defendant Geraldine Klinefelter, a nurse practitioner, and did not receive a level of income that would have disqualified him from receiving such benefits. The defendants have given notice to the government that they intend to call Springfield Attorney Don Hanrahan, who represented the defendants before the SSA concerning the very disability claim that is the subject of the offenses charged and communicated with the government concerning the criminal investigation, to offer expert opinions regarding the social security administration claims evaluation process and determination. In addition, the defendants have also advised the government that they intend to elicit evidence concerning the death of their 18 year-old son, Paul, in November 2004 from a drug overdose, more than six months after the defendants initially submitted the disability application. Finally, a part of the governments evidence in this case involves confidential medical and personal information, including billing information, of the defendants patients. In this motion, the government respectfully requests that the Court: (A) exclude the testimony of Attorney Hanrahan as plainly irrelevant under Fed.R.Evid. 402, likely to cause unfair prejudice and confusion of the issues under Fed.R.Evid. 403, and improper and unhelpful testimony from an attorney for the defendant and non-expert witness concerning the mental state of the defendants relating to an element of the offenses charged under Fed.R.Evid. 702 and 704; (B) exclude any evidence relating to the death of the defendants son, Paul, as irrelevant under Fed.R.Evid. 402 and likely to cause unfair prejudice and confusion of the issues under Fed.R.Evid. 403, (C) admit summary testimony concerning the defendants patient records under Fed.R.Evid. 1006 and Fed.R.Evid. 611, in lieu of admitting the actual
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patient records into evidence, to protect the confidentiality of medical and personal information of the defendants patients. FACTUAL SUMMARY At trial, the government will present evidence to establish the following: The federal Social Security Act and related laws establish a number of programs which have the basic objective of providing for the needs of individuals and their families. These programs include the Disability Insurance Benefits Program, which is administered by the SSA. The purpose of the Disability Insurance Benefits Program is to replace part of the earnings lost because of an actual physical or mental impairment, as defined by federal law. Persons seeking disability benefits must file an application with the SSA under penalty of perjury. In sum, to be eligible for disability benefits, a person must be 1) totally (not partially) disabled and expected to be so disabled for a period of at least 12 months; and 2) unable to engage in substantial gainful activity (i.e. unable to work), which includes not earning a certain level of income established by SSA each year. Monthly benefits are paid to eligible disabled persons and to eligible beneficiaries, including children under the age of 18, throughout the period of disability. In determining an applicants eligibility for disability insurance benefits, the SSA relies on information provided by the applicants themselves or persons acting on the applicants behalf concerning, among other things, their medical condition, their level and extent of work activity, and their income. Defendant Vernon Klinefelter was a licensed physician and surgeon in the State of Illinois. He was married to Defendant Geraldine Klinefelter. Defendant Geraldine Klinefelter was a registered nurse and an advanced practice nurse (nurse practitioner). Both defendants together operated Abundant Life Medical Clinic (Abundant Life) in Taylorville, Illinois. Under Illinois law, in order for an advanced practice nurse (such as Defendant Geraldine Klinefelter) to provide services in a clinical practice (and hence submit bills to patients and insurers), she was required to have a written collaborative
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agreement with and be supervised by a physician or podiatrist, which authorizes categories of care, treatment or procedures to be performed by the advanced practice nurse. See 225 ILCS 65/65-35 (b). Collaboration under this law means the relationship under which an advanced practice nurse works with a collaborating physicianin an active clinical practice to deliver health care services. Id. In addition, the services to be provided by the advanced practice nurse shall be services that the collaborating physicianis authorized to and generally provides to his or her patients in the normal course of his or her clinical medical practice. Id. The collaborative agreement under which Defendant Geraldine Klinefelter practiced was with her husband, Defendant Vernon Klinefelter. This agreement was used for everything from obtaining hospital access to malpractice insurance for Defendant Geraldine Klinefelter, and, most importantly, allowing her to practice in the Abundant Life Medical Clinic. In addition to owning and operating Abundant Life, Defendant Vernon Klinefelter was also the President/Medical Advisor of the Christian County Department of Public Health and was on staff as an independent contractor at St. Vincent Memorial Hospital in Taylorville (now known as Taylorville Memorial Hospital). As such, he attended staff meetings and was allowed to admit and discharge patients, use the hospital facilities, and bill his patients for the use of the hospital facilities. As part of being on staff as an independent contractor with and granted clinical privileges by St. Vincent Memorial Hospital, Defendant Vernon Klinefelter was required to complete a re-credentialing form, which, among other things, required him to describe his profession, the nature of his medical practice, and his current medical condition. Beginning in approximately March 2004 and continuing to approximately January 2008, in the Central District of Illinois, and elsewhere, the defendants knowingly devised and participated in a scheme to defraud the SSA and to obtain its
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money and property by means of false and fraudulent pretenses, representations, promises, and material omissions. As part of the scheme, on or about March 31, 2004, April 4, 2004, and April 28, 2004, the defendants falsely represented to the SSA as part of an application for disability insurance benefits that Defendant Vernon Klinefelter was unable to work because of [his] disabling condition on December 31, 2002. In support of such false statement and in describing his medical condition, the defendants represented, among other things, that Defendant Vernon Klinefelter suffered from many disabilities, including a seizure disorder, that, among other things, caused major problems with [his] memory and prevented him from "resolv[ing] simple mathmatics [sic]. As a further part of the scheme, the defendants falsely represented to the SSA that Defendant Vernon Klinefelter stopped working on December 31, 2002, could not take care of [his] patients any longer, and he did not supervise other people in his work. The defendants further falsely represented to the SSA that Defendant Vernon Klinefelter was no longer able to make rational decisions, could no longer take care of his patients, had not been actively engaged in the business since December 31, 2002, when he turned over all his duties to his spouse, and makes no decisions and earns no income from the business. As a further part of the scheme and in response to a request from the SSA for further information concerning Defendant Vernon Klinefelters application for disability insurance benefits, on or about December 27, 2004, the defendants falsely represented to the SSA that, among other things, Defendant Vernon Klinefelter was not able to work hardly at all for five months after 10 day hospitalization in Feb. 2003, he [w]orked one to two afternoons per week when able, seeing one to three carefully selected patients, he worked two afternoons per week and saw two or three patients on average when he was able to work, and he did not make any management decisions following his illness or injury.
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The government will present evidence to establish that at least one or more of these statements and actions, however, made solely for the purpose of obtaining disability benefits, were false and fraudulent. Defendant Vernon Klinefelter was able to work and was: actively working as a medical doctor; operating his medical clinic, Abundant Life; supervising Defendant Geraldine Klinefelter, a nurse practitioner, as required by law; serving on staff and admitting, treating, and discharging patients at St. Vincent Memorial Hospital in Taylorville, including representing to the hospital on two occasions in July 2003 and April 2005 as part of the re-credentialing process that his medical condition should not present problems with practice as condition is controlled with medication, was good or controlled. The defendant also supervised the billing of Defendant Geraldine Klinefelter for federal Medicare and Medicaid and private insurance reimbursements; and earned income substantially above the annual maximum SSA thresholds for the years 2003 to 2008. As a result of the scheme, the defendants caused the SSA to provide disability insurance payments for the period June 2003 to January 2008 to Defendant Vernon Klinefelter and his son, Paul, totaling $107,700. The defendants son Paul, age 18, died of a drug overdose in November 2004, more than six months after the defendants filed the disability application with SSA in March 2004. In 2007, the SSA initiated a criminal investigation of the defendants concerning the application for disability benefits. SSA later disallowed all of the disability benefits paid to the defendants and determined that Defendant Vernon Klinefelter was ineligible for such benefits. The defendants appealed SSAs denial of benefits. In 2008, as reflected in the attached Exhibit 1 to this motion, Springfield Attorney Don Hanrahan represented the defendants before the SSA concerning the denial of their disability claim. In addition, as part of the criminal investigation, Attorney Hanrahan, with the defendants prior criminal defense counsel, communicated with the government and advocated on their behalf against the filing of criminal charges.
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Attorney Hanrahans communication with the government, and the nature of the testimony from him the defendants intend to present at trial, are set forth in the attached Exhibit 2 to this motion. ARGUMENT Exclusion of Expert Testimony The defendants are charged in the indictment with one count of engaging in a scheme to defraud the SSA, in violation of 18 U.S.C. 1343, one count of concealment/failure to disclose information, in violation of 42 U.S.C. 408(a)(4), and one count of making a false statement to the SSA, in violation of 42 U.S.C. 408(a)(2), all in connection with application for disability benefits filed in March 2004 with the SSA. As charged in the indictment, each of these offenses focuses on the defendants conduct and whether they made false statements and/or failed to disclose material information concerning the application for disability benefits to SSA. As to each offense, the government is required to prove either a knowingly false statement or a knowing failure to disclose material information. See Pattern Criminal Jury Instruction of the Seventh Circuit, 18 U.S.C. 1343, 42 U.S.C. 408(a)(4), 42 U.S.C. 408(a)(2). The defendants have given notice to the government that they intend to call Springfield Attorney Don Hanrahan to provide expert opinions regarding the SSA claims evaluation process and determination. As reflected in the attached Exhibit 1 to this motion, Attorney Hanrahan represented the defendants since at least January 2008 in their dealings with SSA concerning the denial of the very disability claim that is the subject of the offenses charged. This representation began after the defendants became aware that their conduct and statements in pursuing disability benefits from SSA was being investigated by the Office of Inspector General and the U.S. Attorneys Office. As part of this, Attorney Hanrahan accompanied by the defendants prior criminal defense attorneys, communicated with the government concerning the criminal investigation and potential charges now alleged in the indictment, during which Attorney Hanrahan
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advocated on behalf of the defendants that criminal charges not be pursued. The summary of the anticipated testimony from Attorney Hanrahan is attached to this motion as Exhibit 2 and is the very communication Attorney Hanrahan previously presented to the government during the criminal investigation. Specifically, Attorney Hanrahan, as an attorney for the defendants, is not presenting evidence or expert opinions but rather is advocating on behalf of his clients as to whether they committed a criminal offense. Such argument, from one of the defendants attorneys, is not at all admissible expert evidence or testimony under Rules 702 and 704 of the Federal Rules of Evidence and is plainly inadmissible. Rule 702 of the Federal Rules of Evidence 702 provides: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. Rule 704(b) of the Federal Rules of Evidence provides, In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone. When confronted with potential expert testimony, this Court must perform a gatekeeper: function, and only admit such testimony if (1) it is based on sufficient facts
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or data; (2) it is the product of reliable principles and methods; and (3) the witness has applied the principles and methods reliably to the facts of the case. Simply stated, the testimony must be statistically valid (reliable) and relevant. See, e.g., United States v. Allen, 390 F.3d 944, 949 (7th Cir. 2004); United States v. Lamarre, 248 F.3d 642, 647 (7th Cir. 2001). In this case, the proposed testimony is neither. As is evident from the exhibit, the substance of Mr. Hanrahans testimony is essentially a rebuttal to the governments fact witnesses, and intended is to suggest that Mr. Hanrahan is more aware of the policies and procedures of the SSA than those individuals who actually work for the government agency.
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The information provided

by the defendants in their application for benefits, as well as the representations made by the defendants to the individuals who work for SSA is the relevant evidence as to whether the statements were made by the defendants or not. It is up to the government to prove the falsity of the statements. The defendant will have ample opportunity to cross examine the witnesses to whom the statements were made regarding the circumstance surrounding the statements, and inquire whether they followed SSA policies correctly. An attorney, or any other advocate, should not be allowed to give their opinion, disguised as evidence, as to whether the defendants actually made the statements or not. A prime example of the problems that would accompany such proposed testimony is illustrated by the applications for benefits submitted by the defendants. During the application process, defendant Geraldine Klinefelter represented to SSA claims representative Karen Randazzo that Vernon Klinefelter was totally disabled and unable to work, and had been in that condition since December 31, 2002. This

Contrary to the defendants suggestion that the government will present the procedure for processing disability claims from Rodney Haymon (a Special Agent for the SSA Inspector General), the evidence will actually come from the employees of SSA that received and processed the applications submitted by the defendants.
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information was entered into the system by the SSA claims representative, who is prepared to testify that the entries were made contemporaneous with their conversation. The information was then printed on a form (actually two forms, both of which will be offered as exhibits) and the printed forms were sent to the Klinefelters for review and verification. Defendant Vernon R. Klinefelter attested to correctness of the information contained on those forms and submitted them to SSA. The defendants intention is for Mr. Hanrahan to testify that the operative date of December 31, 2002 was actually a date chosen by the SSA rather than a product of the conversation between the representative and the Klinefelters, and that the language on the form was not provided by either defendant, but was boilerplate language chosen by SSA. No matter the depth of experience Mr. Hanrahan has with representing clients in Social Security matters, unless he was present during the conversation and can testify to events he witnessed and experienced, his testimony in representing other clients before this agency has absolutely no value to a jury, and can only lead to confusion. While the defendants should be free to examine the witnesses who took the information, processed the applications and made decisions based on the facts before them, they should not be able to present speculation as evidence from a witness who can at best testify from limited and one-sided experience. As second example, the defendant suggests that Mr. Hanrahan will testify that the defendants made full disclosure to the SSA regarding the scope of work then being performed by defendant Vernon Klinefelter. Again, this testimony would seek to contradict the evidence to be presented by the actual SSA employees who received and processed information that the defendants represented that Vernon Klinefelter was completely unable to work. Hanrahans testimony would not tell the jury what was disclosed, but, much as an advocate, would attempt to persuade the jury about the impact these words should have had on SSA employees. Once again, these are subjects on which the defendants may choose to cross examine SSA employees. They are
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certainly subjects that the defendants are free to argue within the confines of the rules regarding opening statements and closing arguments. The rules of evidence, however, do not allow a defendant to call his own attorney to the witness stand to present his argument as evidence that a jury should consider. In most cases dealing with expert testimony, a court must consider whether the testimony has been subjected to the scientific method; it must rule out subjective belief and unsupported speculation. This step requires inquiry into whether the reasoning and methodology underlying the testimony is scientifically valid. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592 (1993). The Supreme Court has identified several factors useful to evaluate the reliability of the methodology: (1) whether the theory or technique can be or had been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known and potential rate for error; and (4) the general acceptance of the theory. See Bradley v. Brown, 42 F.3d 434, 437 (7th Cir. 1994). In this case, the testimony to be offered is not something that can be scientifically tested, but consists only of an attorneys experience representing clients before an agency of the government. It cannot be checked or verified, it is entirely subjective with the attorney. A court must also determine whether the expert testimony or evidence will assist the trier of fact in understanding the evidence or a fact in issue. This step requires the court to consider whether the proposed testimony fits the issue to which the expert is testifying. United States v. Hall (Hall II), 165 F.3d 1095, 1102 (7th Cir. 1999), citing Daubert at 591-93. Here, because the witnesses that actually participated in the event will be present, testifying and subject to cross examination, the testimony of an attorney to disagree with their actions, methods or conclusions would certainly not assist the trier of fact. Either the defendants made certain representations to the SSA employees, or they did not. This is a question for the jury to determine. Either the representations

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were false, as alleged, or they were not. Once again, this is an issue for the jury to determine, and an attorneys opinion is not relevant to that determination. Finally, expert testimony as to legal conclusions that will determine the outcome of the case is inadmissible. Good Shepherd Manor Found., Inc. v. City of Momence, 323 F.3d 557, 564 (7th Cir.2003). In the Good Shepherd case, the district court did not allow the testimony of an expert witness (a law professor and who works in urban planning), and did not allow the testimony to the experts conclusions that citys actions violated a law and other purely legal matters that could determine the outcome of the case. See also United States v. Sinclair, 74 F.3d 753, 757 n. 1 (7th Cir.1996); United States v. Caputo, 382 F.Supp.2d 1045, 1049 (N.D.Ill.2005) (An expert witness cannot offer an opinion on what the law requires or permits because the judge, not the witnesses, instructs the jury about the relevant law.). See also Thomas v. Sheahan, 514 F. Supp. 2d 1083, 1094 (N.D. Ill. 2007)(expert's testimony to the ultimate legal conclusion in this casethat Defendants were deliberately indifferent, or that County had a longstanding practice, custom, or policy of condoning various alleged violations of inmates' rights held inadmissible). Here, the defendants seek to offer testimony that the defendants words and actions do not meet the legal standards of false or concealment. These conclusions are, of course, matters that only the jury can decide. Exclusion of Testimony Concerning the Death of the Defendants Son The defendants have also advised the government that they intend to elicit evidence concerning the death of their 18 year-old son, Paul, in November 2004 from a drug overdose, more than six months after the defendants initially submitted the disability application. Again, Rule 402 bars evidence that is irrelevant and Rule 403 bars evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues, or misleading the jury. In addition, all criminal juries are instructed that they should not be influenced by prejudice or sympathy. See Pattern Criminal Jury Instruction of the Seventh Circuit 1.01.
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Here, the tragic death of the defendants son, which occurred more than six months following their application for disability benefits, is plainly irrelevant to whether the defendants committed the offenses charged. Moreover, that tragic event will inevitably lead to sympathy for both defendants as parents and to confusing and misleading the jury. Such evidence should therefore be excluded. United States v. Adames, 56 F.3d 737, 746 (7th Cir. 1995) (Scenes depicting Jones children opening Christmas gifts would be emotionally charged and may have induced the jury to feel sympathy for Jones or his children, emotional reactions that should not factor into the jury's decision. Admission of Summary Testimony Part of the governments evidence showing that Defendant Vernon Klinefelter was working while claiming that he was totally disabled will come from insurance companies, as well as Medicare and Medicaid billing. These records will show that during the relevant time period, thousands of individual claims were filed for services provided to patients by Defendant Vernon Klinefelter, a medical doctor, by Defendant Geraldine Klinefelter, a Nurse Practitioner, and by Abundant Life, which is registered to both defendants under their collaborative agreement. Since Defendant Geraldine Klinefelter could not practice medicine without the supervision and collaboration of Defendant Vernon Klinefelter, the government intends to produce the claim records of voluminous claims for services provided under the billing identifiers for both Vernon Ray Klinefelter and Geraldine Klinefelter, as well as a billing identifier assigned to Abundant Life. Realistically, the government cannot call all former patients to testify in the trial or seriously attempt to analyze all of the patient files. Since the billing data is kept by the insurance companies in electronic databases, the government intends to introduce this data, which is downloaded onto portable storage devices (such as CDROM or DVD), all of which has been provided to the defense, in order to present to the jury the volume of claims for each billing entity. It is therefore anticipated that
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representatives from Blue Cross and Blue Shield of Illinois, Medicare (Diana Barany from Cahaba Safeguard Administrators and Nathan Kennedy from National Government Services) and from the Illinois Department of Health and Family Services, which administers the Medicaid program in Illinois, will testify as summary witnesses regarding the data, as well as to the spreadsheets summarizing the electronic data showing the claims submitted for services for the time period during which the defendants claimed Defendant Vernon Klinefelter was disabled. Protection of Private Health Information Finally, the government intends to present evidence from various patient files and billing data that may contain personally identifying information, as well as health treatment records. For example, the government intends to call representatives of Taylorville Memorial Hospital as witnesses to provide evidence that both defendants treated patients admitted during the time period from 2003-2007. All of this information has been presented to the defense in discovery. The logistics of a criminal trial, however, make de-identifying page from every file and record in a case like this virtually impossible. To alleviate this problem, the government requests that it be permitted to present summary testimony from hospital officials concerning the patients personal records, without actually introducing the records into evidence, and through the use of leading questions so as to protect the identity and privacy of the patients information. Rule 1006 of the Federal Rules of Evidence provides that a party may use a summary or chart to prove the content of voluminous writings. Fed.R.Evid. 1006. The original or duplicates of such records must be made available for examination or copying to the other party. Id.; see United States v. Isaacs, 593 F.3d 517, 527 (7th Cir. 2010). In addition, Rule 611 allows the court reasonable control over the mode of interrogating a witness so as to (1) make the interrogation and presentation effective for the ascertainment of the truth; (2) avoid wasting time; and (3) protect witnesses from
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undue embarrassment. Fed.R.Evid. 611; see United States v. OBrien, 119 F.3d 523, 531 (7th Cir. 1997). In this case, to efficiently present evidence of the content of voluminous records and to protect the confidentiality of patient medical, personal, and billing information, the government requests that the Court allow the government to present testimony, in part through leading questions, of witnesses summarizing voluminous records, all of which have been provided to the defense, without admitting such records into evidence. Respectfully submitted, JAMES A. LEWIS UNITED STATES ATTORNEY BY: s/Timothy A. Bass TIMOTHY A. BASS, Bar No. MO 45344 Assistant United States Attorney 318 S. Sixth Street Springfield, Illinois 62701 Phone: 217/492-4450 Fax: 217/492-4512 tim.bass@usdoj.gov

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CERTIFICATE OF SERVICE I hereby certify that on the 6th day November 2013, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following to: Counsel of record

s/Timothy A. Bass TIMOTHY A. BASS, Bar No. MO 45344 Assistant United States Attorney 318 S. Sixth Street Springfield, Illinois 62701 Phone: 217/492-4450 Fax: 217/492-4512 tim.bass@usdoj.gov

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