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United States v. Delia

United States Court of Appeals, Tenth Circuit

October 29, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
STEVEN WILLIAM DELIA, Defendant-Appellant.

          Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 6:16-CR-00042-JHP-1)

          Robert L. Wyatt of Wyatt Law Office, Oklahoma City, Oklahoma, for Defendant-Appellant.

          Linda Epperley, Assistant United States Attorney (Brian Kuester, United States Attorney, and Melody Noble Nelson, Assistant United States Attorney, with her on the brief), Muskogee, Oklahoma, for Plaintiff-Appellee.

          Before PHILLIPS, EBEL, and MORITZ, Circuit Judges.

          PHILLIPS, CIRCUIT JUDGE.

         A federal grand jury indicted Steven DeLia on one count of healthcare fraud. See 18 U.S.C. § 1347. But the government filed the indictment outside the ordinarily applicable statute of limitations-that is, more than five years after DeLia's charged conduct occurred. See 18 U.S.C. § 3282(a). Even so, for two independent reasons, the government argues that the indictment was timely: (1) that the Wartime Suspension of Limitations Act suspended the limitations period from running in this case, see 18 U.S.C. § 3287; and (2) that DeLia waived his asserted statute-of-limitations defense. We reject both reasons and conclude that the prosecution is time-barred. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and remand with instructions to vacate DeLia's conviction and dismiss the indictment.

         BACKGROUND

         In 2009, DeLia, then a licensed physician, opened a medical clinic in Sallisaw, Oklahoma, practicing family medicine and psychiatry. He also served as a member of the United States Army Reserve. In mid-2010, DeLia learned that the Army would deploy him to Afghanistan, so he began preparing the clinic for his absence.

         At that time, DeLia's staff included two licensed practical nurses, LeeAnn Dewberry and Jennifer Campney, and one physician's assistant, Susan Davis (PA Davis). Under Oklahoma law, licensed practical nurses cannot prescribe Schedule II controlled substances. See Okla. Stat. tit. 59 § 567.4a; Okla. Stat. tit. 63 § 2-312(C). But Oklahoma law permits physician's assistants to prescribe Schedule II controlled substances[1] if acting under a physician's supervision and if the controlled substance is administered onsite. Okla. Stat. tit. 59 § 519.6(D).

         To keep his clinic open while he was deployed, DeLia signed pads of blank prescription forms for the clinic staff's use. This enabled the clinic staff to write prescriptions by simply completing the prescription forms with the patient's name, the drug, and the dosage. In total, DeLia signed about 5, 000 blank prescriptions to prepare the clinic for his four-month deployment. PA Davis used the signed prescription forms to write prescriptions for Schedule II controlled substances. Among those receiving her prescriptions for Schedule II controlled substances were DeLia's pain-management patients, a group making up a significant portion of DeLia's practice. Though DeLia looked for a physician to supervise PA Davis during his deployment, he failed to obtain one.

         In mid-October 2010, DeLia left Sallisaw to visit family before reporting to Fort Benning at month's end. Appellant's App. vol. 3 at 632:5-9. In early November, the Army sent DeLia from Fort Benning to Kuwait and then to Afghanistan.

         About two weeks after Delia left Sallisaw, the Oklahoma Board of Medical Licensure (the Board) learned from an anonymous caller that DeLia was out of state and that his office staff was prescribing controlled substances with DeLia's pre-signed, blank prescription forms. In addition, the Oklahoma State Pharmacy Board received calls from pharmacists reporting that they had received new prescriptions for Schedule II controlled substances from DeLia, who they believed was not in Oklahoma.

         Two Board investigators traveled to DeLia's clinic where they questioned the clinic staff. According to the Board's records, DeLia was PA Davis's sole supervising physician. PA Davis confirmed this to investigators. While at the clinic, investigators confiscated 5, 625 blank pre-signed prescriptions and a sign-out log showing that the clinic's staff had already used 4, 330 pre-signed prescriptions between March 1, 2010 and November 3, 2010. Even before the Army told DeLia that it would deploy him in October, DeLia had pre-signed blank prescriptions for use when he was out of the clinic, including while he was vacationing. DeLia had also previously allowed clinic staff to use pre-signed, blank prescription forms to prescribe controlled substances even when he was working in the clinic-to increase office efficiency.

         In February 2011, DeLia returned to Sallisaw. In December 2011, the Board filed a disciplinary action against DeLia, alleging that he had engaged in unprofessional conduct by pre-signing prescription forms for his staff to use while he was gone and by directing PA Davis to provide healthcare services despite his failure to secure for her a supervising physician. Okla. Stat. tit. 59 § 519.6(A). In March 2012, DeLia surrendered his medical license in lieu of prosecution by the Board.

         In January 2016, DeLia met with federal prosecutors and signed a waiver of the applicable statute of limitations for "offenses, including but not limited to, conspiracy to commit health care fraud, health care fraud and money laundering." Appellant's App. vol. 1 at 34-36. In the waiver, DeLia acknowledged knowing that he was a target of a federal grand-jury investigation related to "his conduct causing false claims to be filed and for receiving health care payments from Medicare, Medicaid, and Tricare for services not provided from 2010 through 2011." Appellant's App. vol. 1 at 34 ¶ 1. The waiver further stated that DeLia desired to "extend" the applicable statute of limitations. Id. at 34 ¶ 2. Specifically, the waiver stated that DeLia had been "advised that if, in fact, the statute of limitations as to any of the specified offenses were to expire during the period agreed upon," the waiver "would extend the period during which he could be prosecuted for such criminal violations." Id. at 35 ¶ 3. DeLia agreed to waive the statute of limitations "for the period from the date of his execution of this Waiver [January 5, 2016] through and including July 31, 2016." Id. at 36 ¶ 8.

         On June 15, 2016, a federal grand jury indicted DeLia on one count of healthcare fraud, see 18 U.S.C. § 1347.[2] The indictment alleged that "[b]eginning February 1, 2010, and continuing through November 9, 2010" DeLia had "devised and executed a scheme to defraud the Oklahoma Medicaid program by causing the filing of false claims and receiving Medicaid payments for medical services not rendered by a qualified medical professional." Id. at 15-16. Three months before trial, DeLia moved to dismiss the indictment, arguing that the statute of limitations had expired. The district court denied DeLia's motion, concluding that the indictment was timely because the Suspension Act had tolled the statute of limitations. The case proceeded to trial.

         After the government presented its case, DeLia moved for the district court to reconsider his motion to dismiss based on the statute of limitations. The district court denied DeLia's motion. The jury convicted DeLia of healthcare fraud. DeLia appealed the district court's denial of his motion to dismiss and his conviction.[3]

          DISCUSSION

         On appeal, DeLia argues that the district court erred in ruling that the statute of limitations hadn't expired. First, DeLia argues that the Suspension Act applies to war-related frauds against the federal government, not to healthcare fraud against a state agency. Second, he argues that the government cannot use a waiver to revive an already-expired limitations period. Third, DeLia argues that even if a waiver could revive an already-expired limitations period, the waiver would be unenforceable because he didn't knowingly execute it, meaning he didn't know when he signed the waiver that the statute of limitations had already expired for what would ultimately be the charged conduct.[4] We address each of these arguments after identifying our standard of review and discussing the applicable criminal statute of limitations.

         I. Standard of Review

         We review de novo a district court's interpretation and application of a statute of limitations. Barnes v. United States, 776 F.3d 1134, 1139 (10th Cir. 2015). And we review de novo the question of whether a defendant's express waiver of the statute of limitations is ...


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