“Chutzpah” to Appeal a Conviction Where Overwhelming Evidence Established a $31 Million Fraud

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“Chutzpah” is Yiddish for “unmitigated gall.” It has been defined as a request for mercy from a defendant convicted of murdering his parents because he is an orphan.

In United States Of America v. Patrick Tonge, Serge Francois, No. 18-11165, United States Court of Appeals, Eleventh Circuit (November 22, 2021) the defendants asserted a series of spurious claims on appeal of their conviction for running a fraudulent conspiracy and scheme to defraud government sponsored health insurance programs. Patrick Tonge and Serge Francois were convicted of federal crimes arising out of their work at Atlantic Pharmacy & Compounding, a Florida pharmacy that collected over thirty-one million dollars in fraudulent claims from federal insurance programs.

Tonge and Francois challenge their convictions on a number of grounds, some raised by both defendants and some only by Francois.

Sufficiency of the Evidence

Because the government presented overwhelming evidence that both defendants were knowing and willful participants in a complex scheme to defraud federal insurance programs by paying healthcare kickbacks the court concluded the evidence at trial was more than sufficient.

Despite the defendants’ attempts at concealment, the fraud at Atlantic was open and obvious.

The jury received sufficient evidence to convict Tonge and Francois on each of the challenged counts.

ZALMA OPINION

Perhaps because, for years, the defendants defrauded the government for amounts exceeding $32 million they had the funds to appeal their convictions. However, the Eleventh Circuit saw the appeal to be nothing more than “chutzpah” and disposed of the multiple charges of error with alacrity. It is essential that these conspirators who take advantage of innocent people entitled to TRICARE and Medicare benefits to prevent the defendants to profit from their crime. Their conviction was affirmed and they will, hopefully, serve their full sentences and make restitution to the government.

© 2021 – Barry Zalma