The Herald, Sharon, Pa.

Local News

November 5, 2009

UPDATE: Convicted chiropractor loses appeal

By Joe Pinchot

HERMITAGE — A federal appeals court said Thursday that a judge did not violate a former Hermitage chiropractor’s rights during his fraud trial, and also backed the judge on Brent J. Detelich’s other appeal issues.

Detelich, 40, of Clearwater, Fla., formerly of Hermitage and Clark, was sentenced in April 2008 to 3 years in prison based on his 2007 conviction on charges of health care and mail fraud.

Detelich, who is being held in the minimum security Pensacola Federal Prison Camp, owned Detelich Chiropractic and Advanced Medical and Holistic of Hermitage, both formerly of Hermitage. A jury found that Detelich submitted bills to Highmark Inc. for treatments that were not rendered to patients.

In his appeal before the U.S. Court of Appeal for the Third Circuit, Philadelphia, Detelich, represented by Robert J. Ridge of Thorp Reed & Armstrong, Pittsburgh, said U.S. District Court Judge Joy Flowers Conti, Pittsburgh, improperly told the jury that Detelich had to show that he completely withdrew from the fraud scheme. The instruction shifted the burden of proof from prosecutors to Detelich, he said.

Third Circuit Judge D. Michael Fisher, writing for the three-judge panel, said the appellate court has repeatedly held that a withdrawal from a fraud scheme must be complete. It still was up to the government to show that Detelich had not withdrawn by the dates set in the indictment, Fisher said.

While Detelich has made no public statements on the case, Ridge has said Detelich has admitted that he was guilty of some of the wrongdoing alleged by the government. However, he contended that Detelich had not been involved in the fraud scheme for more than five years prior to the indictment, which, under the statute of limitations, would have rendered the offenses too old to be prosecuted.

Fisher said Detelich’s move to California and his institution of ethics policies could have been interpreted by the jury as an effort to deflect blame. Detelich did not tell any of his co-conspirators — three of his ex-employees pleaded guilty to health care fraud — to stop the fraudulent billing, and continued to accept money from the scheme, Fisher said.

Ridge attacked Judge Conti’s decision to allow the jury to hear a conversation between Detelich, former employee Dr. Donald Proper, and Proper’s wife, Beverlee, that was secretly recorded in April 2002.

Mrs. Proper died in 2006, and Ridge said he was never able to cross-examine her about her recorded statements. She made statements of fact — such as that she kept a diary of alleged wrongdoing by Detelich — that were not backed up by other testimony or evidence, Ridge said.

Fisher concluded that the recording was not presented for its truth, and the jury needed to hear Mrs. Proper’s comments in order to understand Detelich’s.

Fisher added that the tape was admissible because it helped the government show that Detelich probably had not withdrawn from the scheme and that he tried to cover up his activities. It also punched holes in the argument that Detelich was unaware of the illegal billing, Fisher said.

Finally, Ridge argued the indictment was duplicitous — alleging multiple crimes within a single count — which allowed the admission of irrelevant and prejudicial evidence.

The Third Circuit said it did not have to decide whether the indictment was duplicitous because Detelich did not show that he was hurt by it.

Judge Conti told the jury Detelich only could be convicted of fraudulent billing, Fisher said. While there was evidence that Detelich billed for treatment that brought in a higher insurance payment than the treatment that actually was performed, prosecutors abandoned this accusation during the trial.

Fisher said the court would not assume that the jurors were incapable of wading through the evidence to focus on what conduct was allegedly illegal.

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