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A jury convicted Wynell Gray of Medicaid fraud, 18 U.S.C. § 1347, and conspiracy to defraud the U.S. government and the judge sentenced her to 33 months in prison and ordered her to pay restitution of $846,115 to Indiana Medicaid. Her appeal presents a variety of issues, with emphasis on the government’s alleged violation of the Brady rule, which requires prosecutors in some circumstances to provide exculpatory evidence in their actual or constructive possession to the defendant.

Randy Suddoth, a high school dropout and convicted felon charged with the fraud along with Gray, pleaded guilty, was sentenced to 24 months in prison, and testified for the government at Gray’s trial.

A doorman at the Drake Hotel in Chicago,Suddoth had decided in 2001 to start a company that he called “Dovies Medicar” to transport patients to hospitals and doctor’s offices. He enlisted the aid of his friend Gray, the only college graduate he knew (she has a  bachelor’s degree in psychology and a master’s degree in social work). He bought two vans and leased office space in Indiana, and while he and a cousindrove the vans Gray—Suddoth’s second in command—ran the office.

According to the government’s evidence, Gray both set up the billing system for the Medicaid services that the company rendered and did the billing, which was electronic. After her husband became ill in the summer of 2002, she worked mainly from home, mainly on Medicaid billing. Billing for services to other clients, particularly clients not on Medicaid, was handled in Dovies’ office by another employee.

The company struggled until, according to Suddoth’s testimony, Gray hit on the idea of billing Indiana Medicaid in accordance with the Medicaid billing codes for ambulance services—even though Dovies had no ambulances—because the billing rates for those services are much higher than the rates for van services.

Dovies’ revenues soared as a result of the change in billing. Gray testified that the change was Suddoth’s idea, not hers, and that she didn’t know that Dovies had no ambulances.

The company’s revenues soon rose tenfold; by the end of the first quarter of 2004Indiana Medicaid had reimbursed Dovies more than $550,000 for non existent ambulance services. But then EDS, a private company that Indiana Medicaid has hired to process and pay Medicaid claims, altered its electronic billing program so that firms like Dovies that were not certified to provide ambulance services could not bill for them electronically. Dovies adapted by filing Medicaid claims for non existent trips in its vans—one claim was for transporting a child more than90 times when the actual number was in all probability three.

Eventually Indiana Medicaid tumbled to the fraud, and Dovies closed its doors in May 2005.Suddoth then created a new medical transportation company, also fraudulent,with Gray again doing the billing, but it was soon shut down.

Gray testified that she had been ignorant of the fraud, that Suddoth had given her the billing codes and the phony bills and she had never known that she was billing for nonexistent services, whether ambulance services or van services.She testified that she never submitted a bill for which she hadn’t been given a seemingly authentic trip ticket signed by a driver employed by Dovies;therefore any false billing must have been done by some other employee ofDovies.

Before the trial began, Gray’s lawyer asked the government for Dovies’ Medicaid billing records, so that she could determine the date, amount, and patientidentification on each bill and the nature and date of the service billed for.The government obtained the information from EDS and gave a copy to Gray’slawyer.

At trial a dispute arose over how long it took to bill Medicaid for a transportation service (whether ambulance or van). The question was relevant because there were many thousands of billings, yet according to her testimony Gray was doing most of her billing at home, at night, devoting no more thaneight to ten hours a week to the task. How long it took to bill for eachservice rendered (or pretended to be rendered) would affect Gray’s claim thatnot she but other employees had done the billing for the nonexistent services.

The government had not studied the EDS data, which in the form supplied by EDS wasintelligible only to a software technician, and was surprised when the defenseexpert, having extracted from the data not only the number of bills but also the dates, found that at three minutes a bill it would have taken one person 71 hours to do all the billing that EDS’s data showed Dovies had submitted to Medicaid on July 15, 2004.

That would be feasible on Pluto, which has a 153-hour day, but not on our fast-spinning planet. So the government asked EDS whether it could determine not only the day on which, but also the time atwhich, each bill had been sent, so that the government could get a better senseof how long it takes to bill for Medicaid transportation services.

To extract these “timestamp” data EDS had to write a program and run its billing data through it. Because the trial was moving toward its close, EDS wasable to obtain time information for only that one day, July 15, 2004, the dayof the heaviest billing. Sure enough, it showed impossibly close billing times:the first two pages of the 17-page printout showed two bills separated by onesecond, two bills separated by two seconds, and two bills submitted the samesecond. Obviously there had been more than one biller that day. The additionalbiller (or billers) has not been identified.

Although the table of billing times had only three columns (billing number, date—allJuly 15, 2004, of course—and time), and was turned over to the defendant’slawyer within a few hours after the prosecutors received it from EDS, she did not use it at the trial.

The time stamp data, although they were not in the EDS file that the government had received initially and turned over to Gray’s lawyer, could have been extracted from EDS’s database, as was later done. Gray argues that the prosecution’s failure to extract the data and turn them over to the defense in advance of trial violated the Brady rule and entitles Gray to a new trial.

If a prosecutor possesses exculpatory evidence that had it been disclosed to the defense might have induced a reasonable jury to acquit, failure to provide itto the defense would be a reversible error. Brady v . Maryland, 373 U.S. 83 (1963). The rule has been expanded to take ininvestigators and other members of the “prosecutorial team” broadly understood. Kyles v. Whitley, supra, 514 U.S. at 437-38

Otherwise investigators assisting in a prosecution could conceal from the prosecutors exculpatory evidence thatthe investigation had revealed and then the evidence would never be revealed tothe defense.

But EDS was not a part of the prosecutorial team. It had been hired as we said to process and pay bills submitted to Indiana Medicaid. It was not a private detective agency hired by the state agency to assist state andfederal prosecutors in prosecuting Medicaid fraud. Medicaid fraud investigators were part of the prosecutorial team, but EDS was not.

Because it does the billing for Indiana Medicaid, the company has records that can be useful ase vidence in fraud prosecutions. But the defense had the same access to those records as the prosecutors did, and so there was no suppression of evidence. E.g., United States v. Earnest, 129 F.3d 906, 910 (7th Cir. 1997)

That’s why Gray is reduced to arguing that in advance of trial the government should have directed EDS to create and run programs to extract data from itsdatabase that would be useful to the defense. That argument is a non-starter.E.g., id. at 1168-70. “We find the proposed extension of Brady difficult even to understand. It implies that the state has a duty not merelyto disclose but also to create truthful exculpatory evidence.” Gauger v. Hendle, 349 F.3d 354, 360 (7th Cir. 2003).

The failure to create exculpatory evidence does not constitute a Brady violation.” United States v. Alverio-Melendez, 640 F.3d 412, 424 (1st Cir. 2011);

It may be helpful to distinguish between patent and latent exculpatory evidence. Patent exculpatory evidence is evidence that is exculpatory on its face; an example would be a confession by Suddoth, in the possession of the FBI, inwhich he took full responsibility for the fraud and described Gray as aninnocent whom he had gulled. Such evidence is Brady material.

Latent exculpatory evidence is evidence that requires processing or supplementation tobe recognized as exculpatory. It is illustrated by the timestamp data in this case, the exculpatory character of which was unknown and unknowable until EDS wrote and ran the program that extracted the data from its database.

To charge prosecutors with knowledge of exculpatory evidence buried in thecomputer databases of institutions that collect and store vast amounts of digitized data would be an unreasonable extension of the Brady rule.

Even if the timestamp evidence were Brady material that the prosecution had concealed from the defense, that concealment would not be a reversible error because the evidence would not have changed the outcome of the trial, assumingthe jury was reasonable. (No one can gauge with confidence the effect ofevidence on an unreasonable jury.)

All this evidence the defense had before the trial began and used at the trial, and the timestamp evidence would have added little. United States v. Dawson, 425 F.3d 389, 393 (7th Cir. 2005). The fact that Grayhad accomplices (whether witting or unwitting) who helped her file phony bills would not exonerate her.