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18-4862

_______________________________

United States Court of Appeals


For the Fourth Circuit
_______________________________

GENA RANDOLPH,

Appellant,

v.

UNITED STATES OF AMERICA

Appellee.

APPELLANT’S EMERGENCY MOTION FOR RELEASE PENDING


APPEAL

Bureau of Prisons Report Date of December 27, 2018

Robert Sirianni, Jr., Esq.


PO BOX 2047
Winter Park, Florida 32789
robert@brownstonelaw.com
Brownstone Law
COMES NOW the Defendant-Appellant, Gena Randolph (“Ms. Randolph”),

and respectfully moves this Court, pursuant to Fed. R. App. P. 9(b) and 18 U.S.C.

§§ 3143(b) and 3145(c), and Loc. R. 8, to stay her surrender date and to grant her

release pending appeal of his criminal conviction and sentence. In support, Ms.

Randolph states:

Preliminary Statement

1. On or about November 26, 2018, Ms. Randolph was sentenced to a

term of incarceration of 111 months, federal prison.

2. Ms. Randolph filed a timely notice of appeal on November 27, 2018.

(D.E. 107).

3. Ms. Randolph requested a bond pending appeal; however, the District

Court denied her request to remain at liberty pending appeal. (D.E. 102).1

4. Ms. Randolph’s report date for prison is set for December 27, 2018.2

1
The Trial Judge denied the Ms. Randolph’s request for Bond on November 20, 2018 (D.E. 102)
without hearing any of the substantial appellate issues or if Ms. Randolph’s satisfies the main
criteria for granting a bond pending appeal. Accordingly, there is no “copy of the district court
statement of reasons and the judgment of conviction” that accompany the motion pursuant to
Fed. R. App. P. 9(b); Loc. R. 9(b).
2
Appellant has been ordered to report to the Bureau of Prisons by December 27, 2018. Appellant
therefore requests expedited briefing and disposition prior to this date. Should the Court desire
additional time to consider the issue, Appellant respectfully requests a brief Administrative Stay of
her Reporting date and a Stay of Collection/Offset of Restitution pending Court's disposition of the
Motion. Along with this request to remain at liberty pending appeal, Ms. Randolph also request a
stay of her restitution or collections by the Government. See, Ex. A, “Notice of Offset”, amounting
to restitution in the sum of $581,437. Appellant contends that this sum is also incorrect. During
Trial, Medicare Contractor, Lovalee Blevins, confirmed Medicare did not refer Defendant or Palmetto
Speech to Law Enforcement. No Medicare patients testified against Defendant. In addition, no
representative of the South Carolina MediCaid Managed Care Organizations MCO's-(specifically Select
Health of South Carolina, Molina Healthcare of South Carolina and Blue Choice Medicaid)-are in the trial
record identifying any claims as fraudulently paid.
5. Ms. Randolph has secured a bonding agency of Annette Shivers,

Homequick Bail Bonds, 2157 Dorchester Rd., North Charleston, SC 29405,

Phone: (843) 708-3739, to post an appellate bond in the event this Court grants her

request.

6. Ms. Randolph is currently on a PR Bond and request that this Court

revert back to the Pre-Trial conditions pending direct appeal of this cause.

7. Ms. Randolph now moves this Court for a bond pending appeal.

STATEMENT OF THE CASE

8. The Defendant proceeded to Jury Trial between July 11, 2018 and

July 26, 2018.

9. Following the Jury Trial, on July 26, 2018, the Defendant was

convicted of: Count I, Title 18, United States Code§ 1347, prohibiting Health Care

Fraud, Count II, Title 18, United States Code § 1028A( a)( 1 ), prohibiting

Aggravated Identity Theft, Count III, Title 18, United States Code§ 1035(a)(2) by

making a false statement on or about April 4, 2013 on a Disclosure of Ownership

Form for Per Diem, Count IV, Tile 18, United States Code § 103 5( a)(2) by

making a false statement on or about April 12, 2013 on an email and attached

Disclosure of Ownership Form for Palmetto Speech, Count V, Title 18, United

Given the noticeable absence of patient/recipient dispute, no claim paid by the South Carolina Medicaid
Agency, South Carolina DHHS to Palmetto Speech or Per Diem Healthcare Services, Inc. was identified or
proven fraudulent during the Trial.
States Code§ 1035A(a)(2) by making a false statement on or about September 15,

2013 on a Disclosure of Ownership Form for Palmetto Speech, Count VI, Title 18,

United States Code§ 1035(a)(2) by making a false statement on or about November

18, 2013 (D.E. 83).

10. The Defendant filed a Motion for Acquittal under 29(c)(1), F. R.

Crim. Pro., on or about August 8, 2018, alleging, inter alia, that the Government

did not show the Defendant acted with Specific Intent, insofar as the Defendant

presented payroll payments made to employees of the Defendant, none of which

testified against Ms. Randolph. Next, Ms. Randolph alleged a discovery violation

whereby the Government produced 16 exhibits at trial, of which many were not

provided to the Defense prior to trial. (D.E. 91).

11. The Trial Court denied the Acquittal on August, 22, 2018, citing U.S.

v. Beverly, 284 Fed.Appx. 36, 2018 WL 2796079, at *3 (4th Cir. 2008) (D.E. 94).

However, the Court did not address the alleged discovery violation.

12. Sentencing is set for November 20, 2018. (D.E. 95).

13. The Defendant plans to file a notice of appeal in this case.

ARUGMENT

14. The Eighth Amendment and Bail Reform Act, 18 U.S.C. §§ 3141 et

seq., “establish[] a right to liberty [pending appeal] that is not simply discretionary

but mandatory,” provided the “defendant can make the required evidentiary

showing,” United States v. Abuhamra, 389 F.3d 309, 318 (2d Cir. 2004). By statute,
the defendant “shall” be released pending appeal if: (1) he demonstrates by clear and

convincing evidence that he poses no risk of flight and no danger to the community;

and (2) the appeal raises a substantial question of law or fact likely to result in

reversal or a new trial. See 18 U.S.C. §3143(b). United States v. Chilingirian, 280

F.3d 704, 709 (6th Cir. 2002) (noting that defendant bears the burden of overcoming

statutory presumption of detention).3

15. To show that his appeal raises a substantial question of law or fact,

Ms. Randolph must persuade this Court that the issue on appeal “is one of more

substance than would be necessary to a finding that it was not frivolous.” United

States v. Randell, 761 F.2d 122, 125 (2d Cir. 1985) (quoting United States v.

Giancola, 754 F.2d 898, 901 (11th Cir. 1985)). The Court need not go as far as to

find that its own rulings are likely to be reversed on appeal, but rather must be

convinced that the issue presented by Ms. Randolph’s appeal is a “close question

or one that very well could be decided the other way.” Id. at 900-901.

Summary of Argument

18 U.S.C. §3143(b)(1) permits this Court to grant an appellant release pending

determination of his appeal if it finds (A) by clear and convincing evidence that she

is not likely to flee or pose a danger to the safety of any other person or the

3
The standard for granting bond pending appeal—where there is no risk of flight, no danger to the
community, and the appeal is not taken solely for purposes of delay—is whether the appeal
presents “a substantial question of law or fact” that, if successful, is “likely to result in reversal or
an order for a new trial of all counts on which imprisonment has been imposed.” United States v.
Miller, 753 F.2d 19, 24 (3d Cir. 1985) (construing 18 U.S.C. § 3143(b)). For the reasons set forth
in the accompanying Memorandum, Ms. Randolph respectfully submits that her appeal will present
several questions that satisfy this standard. She therefore requests that the Court grant the present
motion.
community if released, and (B) that the appeal is not for the purpose of delay and

raises a substantial question of law or fact likely to result in (i) reversal, (ii) an order

for a new trial, (iii) a sentence that does not include a term of imprisonment, or (iv)

a reduced sentence to a term of imprisonment less than the total of the time already

served plus the expected duration of the appeal process. See also United States v.

Clark, 917 F.2d 177, 179 (5th Cir. 1990).

Ms. Randolph meets all of these factors by clear and convincing evidence.

First, she is not likely to flee or pose a danger to the safety of any other

person or the community if released. The District Court’s decision to release her on

her own recognizance with an unsecured a4ppearance bond prior to trial (ECF Doc.

#10) was an implicit, if not explicit, finding that he was not likely to flee or pose a

danger to the community. United States v. Williard, 726 F.Supp. 590, 593 (E.D. Pa.

1989) (“Although the trial judge never made an explicit finding that Williard posed

no danger to the community, such a finding was implicit in his release of the

defendant pending execution of sentence.”); United States v. Farran, 611 F.Supp.

602, 605 (S.D. Tex. 1985) (permitting the defendant to voluntarily surrender was

an “implicit[] finding that defendant is not likely to flee or pose a danger to the
4
A defendant “need not show a likelihood of success on appeal,” United States v. Garcia, 340 F.3d
1013, 1020 n.5 (9th Cir. 2003); rather, she need only show that his appeal presents “‘a ‘close’
question or one that very well could be decided the other way.”’ United States v. Steinhorn, 927
F.2d 195, 196 (4th Cir. 1991) (quoting United States v. Giancola, 754 F.2d 898, 901 (11th Cir.
1985) (emphasis added)). As the Supreme Court has explained in describing a similar standard:
“[The defendant] need not show that he should prevail on the merits. [S]he has already failed in
that endeavor. Rather, [s]he must demonstrate that the issues are debatable among jurists of reason;
that a court could resolve the issues in a different manner; or that the questions are adequate to
deserve encouragement to proceed further.” Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)
(citation and alterations omitted).
safety of any other person or the community”).

Ms. Randolph’s original Conditions of Release required her simply to

maintain employment and not carry a passport. She has never violated any of these

original Conditions of Release. And, with regard to these original Conditions of

Release, the facts showing that these Conditions of Release worked for Ms.

Randolph, the Court, and the community have included:

a. Ms. Randolph is the sole provider for her family.

b. Ms. Randolph is a lifelong resident of Charleston county and head of


her household.

c. She provides the additional income source for her family and needs to

keep her job in order to provide for her family and pay restitution.

d. She has lived in Mount Pleasant, South Carolina for her entire life.

e. She has no criminal record, except for a misdemeanor case and a case

that was dropped or nolle prossed by the County of Charleston in

Case No. 2015-A-101000069. That State Court matter was dropped

and then adopted by the Federal Government, comprising the center

of the allegations of this case. 5

Then, following sentencing, Ms. Randolph was allowed to stay on the

original Conditions of Release. ECF Doc. #95. Putting all of these facts and factors

together, “the totality of the circumstances surrounding the Defendant's entire

5
The United States Department of Health and Human Services knows about the 2012
misdemeanor because they have direct knowledge of the that injured Ms. Randolph
and deprived her of due process.
situation [permits this Court to make] an educated guess as to Defendant's future

behavior” and find that he “proven by clear and convincing evidence that he is not

likely to flee the jurisdiction nor pose a danger to any person or the community

during the pendency of [her] appeal of [her] conviction.” United States v. Lamp,

606 F.Supp. 193, 203 (W.D. Tex. 1985) (permitting defendant to remain on bond

pending appeal); United States v. Hill, 827 F.Supp. 1354, 1356 (W.D. Tenn. 1993)

(finding that defendant was not likely to flee because,”[a]t all times, Mr. Hill has

reported as required,” has family ties in the area, and was employed on a regular

basis).

Second, the appeal is not for purposes of delay. There is no evidence in the

record that could suggest that it is, especially in light of the significance of Ms.

Randolph’s contentions on appeal. She has two Rule 29 arguments for purposes of

appeal, including but not limited to the following:

(1) That Bank records clearly prove Wage/Labor Amounts paid by Palmetto and

Per Diem far exceeded amounts paid by Medicaid and Medicare.

(2) Tax Records also indicate that Ms. Randolph was in constant financial distress.

(3) Lovalee Blevins, Medicare Contractor confirmed on cross examination

Medicare did not initiate the matter or make a fraud referral to Law

Enforcement.

(4) Jamilah Deas Muhammad, Compliance Coordinator for Molina Healthcare,

confirmed on cross examination the State Medicaid Agency directed the


payment suspension, not Molina.

(5) Regarding the Healthcare Fraud allegation, Dominique Grant parent of D.T.,

Paula Myers parent of W.P. and Tonia Frasier parent of T.F., never disputed a

Date of Service which Palmetto or Per Diem was paid. In fact, no Medicare

patients testified against Ms. Randolph. In addition, current staff did not testify

against Ms. Randolph and all staff were timely replaced by licensed, qualified

providers. Further, as far as the merits of the appeal are concerned: there is no

claims data in the trial record for DT, WP or TF.

(6) Regarding the Identity Theft Counts: Valerie Pack and Felicia Burkett

confirmed Medicaid does not enroll Speech Pathology Interns or Assistants into

the billing program. Interns and Assistants rendered service as authorized. As

far as the merits of the appeal are concerned: There are no claims in the trial

record for staff members, Stephen Cutia and Rashida Hill, for identity theft.

(7) Next, Chief Investigator Radcliff admitted on Cross Examination that he did not

interview everyone that rendered service and he was not aware of the policy

barring enrollment of Speech Interns and Assistants. He only interviewed the

therapist listed on the claim.

(8) With regard to the Discovery Violation: Defense learned of Government Expert

Witness Stephen Quindoza the night before he testified at trial and was not

given ample time to review his report or prepare a rebuttal.

(9) There was no financial gain, as the Bank Records indicate Ms. Randolph was in
substantial financial distress from 2012, over-drafting her account and suffering

from frequent overdraft charges.

(10) Next, no witness testified that they never were provided the service that was

allegedly billed to Medicaid and Medicare by Ms. Randolph. 6

(11) Healthcare Fraud: Over Defense Objection, the Prosecutor

used Government generated billing spreadsheets that contain errors, including

but not limited to, $100 listed by each date of service for Williams and Stewart

and no payment was made per testimony of Special Agent Chris Lott. In

addition, Speech Pathology Interns and Assistants were omitted per Medicaid

policy but rendered service as authorized, which mislead the jury and resulted

in wrongful conviction.

(12) False Statements: Appellant did not sign Disclosure of Ownership (“DOO”)

Forms. Appellant never said any other person owned her companies and never

instructed other parties to represent the same.

Ms. Randolph has several contentions that support her position. See United

States v. Henson, 663 F.Supp. 1112, 1113 (W.D. Ky. 1987) (“The court finds that

this appeal was not filed for the purpose of delay. Defendants’ counsel raise several

viable arguments in support of their appeal, and the United States does not contend

6
Ms. Randolph contends that the Government did not meet the legal standard for Fraud; or that any
service she offered were not rendered or could not have been rendered. MediCare allows for
inadvertent billing errors and Ms. Randolph’s company only had 2 errors that were indicated by the
testimony of a Government witness. But these errors do not rise to the level of fraud. Per Medicare
Regulations 42 C.F.R. § 424.535(a)(8)(i), anything less than 3 billing errors is non-consequential.
Palmetto had 2 billing errors for which there was no payment.
that the appeals were filed for the purpose of delay.”); United States v. Hart, 906

F.Supp. 102, 105 (N.D.N.Y. 1995) (“It does not appear that defendant is appealing

his conviction for the purpose of delay. When there is no pattern of dilatory

defense tactics during the conduct of the litigation or other extrinsic evidence of an

intent to delay the inevitable, the court is left with the undesirable task of discerning

a defendant's subjective mindset. In these circumstances, the court is content to note

that the defendant at no time has admitted his guilt and seems sincere in his belief

that he is innocent. He has retained appellate counsel and has raised substantial

issues for consideration by the Seventh Circuit, as detailed below. The court finds

that the appeal is not for the purpose of delay, but is rather taken in a good faith

belief in defendant's innocence and the merits of his arguments.”).

Third, the appeal raises a substantial question of law or fact. A substantial

question of law or fact is “’one of more substance than would be necessary to a

finding that it was not frivolous[;] ... a ‘close’ question or one that very well could

be decided the other way.’” United States v. O’Keefe, 169 F.3d 281, 281-282 (5th

Cir. 1999), quoting United States v. Valera-Elizondo, 761 F.2d 1020, 1024 (5th Cir.

1985) (quoting United States v. Giancola, 754 F.2d 898, 901 (11th Cir. 1985)).

A substantial question also exists when the cases presents “a question that is

… novel, which has not been decided by controlling precedent.” Valera-Elizondo,

supra at 1023, citing United States v. Miller, 753 F.2d 19, 23 (3rd Cir. 1985) (and

adopting Miller, supra at 1025); see also Barefoot v. Estelle, 463 U.S. 880, 893, 103
S.Ct. 3383 (1983) (a “substantial question” is “something more than the absence of

frivolity”) (internal quotation marks and citations omitted).

There can be no doubt but that this case presents a substantial question of law.

This is not a frivolous appeal. With regard to the merits of the Appeal, Ms.

Randolph alleges: (1) The Government did not prove the adequate mens rea to

sustain a conviction, and (2) a material discovery violation warrants a new trial.

(I) Specific Intent: With regard to the lack of specific intent, Ms. Randolph

contends: “Participation is willful if done voluntarily and intentionally, and

with the specific intent to do something the law forbids.” United States v.

Horton, 847 F.2d 313, 322 (6th Cir. 1988) (approving jury instruction). But

in this case, there was simply no evidence that Ms. Randolph voluntarily and

intentionally and with the specific intent to defraud the Government,

participated in any scheme to defraud the Healthcare system.

(II) Discovery Violation: With regard to the discovery issues: Discovery in a

criminal case is governed by Fed. R. Crim. P. 16, which specifies the type of

information subject to disclosure by the Government. Fed. R. Crim. P. 16

(a)(1). The rule generally requires the Government to disclose to the

defendant any relevant written or recorded statement by the defendant that is

within the Government's possession. Fed. R. Crim. P. 16 (a)(1)(B)(i). The

rule also grants the district court the power, however, to restrict or

deny discovery in a criminal case for good cause.

a. The failure of the Government to disclose an expert witness is


a discovery issue. This Court may order a new trial based on

alleged discovery violations when the defendant shows that a denial of

access to evidence was prejudicial to his substantial rights. United States

v. Dukes, 139 F.3d 469, 476 (5th Cir. 1998). This requires "a reasonable

probability that, had the evidence been disclosed to the defense, the result

of the proceeding would have been different. . . . [A] reasonable

probability is shown where the nondisclosure could reasonably be taken

to put the whole case in such a different light as to undermine confidence

in the jury verdict." United States v. Webster, 162 F.3d 308, 336 (5th Cir.

1998) (internal quotation marks and citation omitted). In this case, the

discovery violation is material insofar as Ms. Randolph would have hired

an expert to rebut the testimony of the Government’s main witness.

(III) Other Factors Warranting Bond Pending Appeal: In United States v.

Jonathan Pinson, Case No. 3:12-cr-00974-DCN, Appellant Pinson was

provided a bond pending appeal by The Honorable David Norton, United

States District Judge for South Carolina. (See, D.E. 258 in Case No. 3:12-cr-

00974-DCN). Jonathan Pinson appealed his convictions for conspiracy to

participate in a racketeering enterprise under the Racketeer Influenced and

Corrupt Organizations Act ("RICO"), government program theft, honest

services fraud, mail and wire fraud, money laundering, and making false

statements to federal agencies. He argued on appeal that there was

insufficient evidence for a jury to convict him, and also contended that the
district court constructively amended the original indictment, necessitating a

new trial. The appellate court concluded that there was insufficient evidence

to support Pinson's convictions for RICO conspiracy and government

program theft, and accordingly vacated those convictions. (See, United

States v. Pinson, 860 F.3d 152 (4th Cir. 2017). 7

According, to Ms. Randolph, the Pinson case and request for Bond is similar

to her request. Under Fourth Circuit precedent, she only needs to show that the

questions raised on appeal “very well could be decided the other way.” United

States v. Steinhorn, 927 F.2d 195, 196 (4th Cir. 1991) (internal quotation marks

omitted). The questions to be raised on appeal are plainly substantial. In addition

to the arguments previously made regarding appellate issues, it is worth noting that

the outcome of the trial would have been different had Ms. Randolph been

provided an opportunity to call an expert witness to rebut the Government’s last

minute, surprise witness.

Because Ms. Randolph has clearly met all of the §3143 factors, this

Honorable Court should grant her release pending determination of her appeal.

Realted Factors Warranting Consideration

Next, Ms. Randolph fully satisfies the standard governing whether a court

should grant a motion for release of a convicted defendant pending an appeal is set
7
The Court granted a similar bond in United States of America v. Robert McDonnell, No. 15-4019
(3:14-cr-00012-JRS-1)(2015), finding: “The court further finds that the appeal is not for the
purpose of delay and raises a substantial question of law or fact that, “if decided in favor of the
accused” is “important enough” to warrant reversal or a new trial. United States v. Steinhorn, 927
F.2d 195, 196 (4th Cir. 1991) (per curiam)
forth in 18 U.S.C. § 3143(b)8. “The statute distinguishes between two categories of

crimes to determine eligibility for release.” United States v. DiSomma, 951 F.2d 494,

496 (2d Cir.1991). Where a defendant has not been convicted of a crime enumerated

in § 3142(f)(1)(A), (B), or (C), release is appropriate if the court finds that certain

conditions are satisfied. Id.; United States v. Randell, 761 F.2d 122, 124 (2d

Cir.1985) (observing that in order to be released pending appeal under 3143(b)(1), a

defendant must show that [s]he is not a flight risk or danger to the community and

that his appeal raises a substantial question of law or fact).

Here, Appellant is clearly not a risk to the community. A stay of Ms.

Randolph’s sentence will enable her to care for her family. Ms. Randolph is not a

risk to flee and will report to probation if placed on bond. She has complied with all

conditions of his probation since being charged over five (5) years ago.

Certificate of Consultation

On December 11, 2018, the undersigned counsel contact opposing counsel,

via telephone, to ascertain if the Government objects to the emergency motion for

bond pending appeal. Counsel does not know whether opposing counsel objects.

8
Section 3143(b) provides in general that when a defendant has been convicted, and
has filed an appeal or a petition for a writ of certiorari, the district court shall order
that he be detained, unless the court finds, by clear and convincing evidence, that: (1)
the defendant is not likely to flee; (2) if released, the defendant is not likely to pose a
danger to the safety of any other person or the community; and (3) the appeal is not
for the purpose of delay, and raises a substantial question of law or fact likely to
result in reversal, an order for a new trial, a sentence that does not include a term of
imprisonment, or a reduced sentence to a term of imprisonment less than the total of
the time already served plus the expected duration of the appeal process.
WHEREFORE, the Defendant-Appellant, Ms. Randolph, respectfully

requests that this Court stay his surrender date and grant her release pending

resolution of his appeal of her criminal conviction and sentence.

Dated: December 11, 2018.

Respectfully submitted,

Robert Sirianni, Jr., Esq.


PO Box 2047
Winter Park, Florida 32789
Robert@brownstonelaw.com
(407) 388-1900
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this ____, 2018, I filed the foregoing with the
Clerk of the Court and served opposing counsel with a copy via ECF

Marshall Austin
US Attorney’s Office (Chas)
151 Meeting Street
Suite 200
Charleston, SC 29401-2238
843-577-7730
Fax: 843-577-7172
Email: matt.austin@usdoj.gov

Robert Sirianni, Jr., Esq.


PO Box 2047
Winter Park, Florida 32789
Robert@brownstonelaw.com
(407) 388-1900
www.brownstonelaw.com