United States v. Kirschenbaum Book Reviews

United States v. Kirschenbaum by Seventh Circuit U.S. Court of Appeals Book Summary

Appeal of: JULIE KIRSCHENBAUM Argued May 28, 1998 For those terminally ill, Medicare and Medicaid will pay for hospice care, which treats the patient with pain control and additional medical, social and spiritual assistance for the patient and the family. Defendant Joseph Ari Kirschenbaum owned or controlled a number of entities that delivered hospice services, and over several years he and his business operations received many millions of dollars. But the government has charged him with fraud and money laundering, and, pending trial, has seized about $20 million in assets. Mr. Kirschenbaum brings this interlocutory appeal challenging the district court's restraining order that seized the assets that the indictment against Mr. Kirschenbaum alleges are subject to forfeiture under 18 U.S.C. sec. 982(a)(1). Mr. Kirschenbaum first argues that none of the property is subject to pre-conviction seizure, then argues in the alternative that he was entitled to a hearing to challenge the government's proof and to show that he needed some of the seized assets to obtain counsel of his choice. As it relates to Mr. Kirschenbaum, we affirm the restraining order in all regards. Mr. Kirschenbaum's wife, Julie Kirschenbaum, also brings an interlocutory appeal challenging the district court's jurisdiction to enjoin her, a non-party. To the extent the order purports to enjoin her it is void, but to the extent Mrs. Kirschenbaum now attacks the part of the order directed to Mr. Kirschenbaum rather than to her, we affirm the denial of her motion. I. Background We recite the facts as they have been alleged in the superseding indictment. As yet the allegations have not been tested by trial, so we express no opinion about their accuracy. In December 1991, Mr. Kirschenbaum incorporated Samaritan Care, Inc., an Illinois not-for-profit hospice, which he controlled. Samaritan Care provided hospice care to patients in nursing homes in Illinois and Indiana. Hospice care is provided to terminally ill patients. Rather than trying to cure the illness, which is diagnosed at that point as hopeless, hospice care focuses on controlling the pain and symptoms of the ailment, and delivers medical, social, psychological, emotional, and spiritual services to the patient and the patient's family. Medicare pays for hospice care for eligible patients, who generally are over age 65 and have been certified by a physician as being terminally ill with less than six months to live. The Medicaid program in Illinois also pays for hospice care. Between September 1992 and December 1994, Samaritan Care received at least $11.5 million from Medicare and Medicaid as reimbursement for hospice care. Of this amount, Mr. Kirschenbaum paid himself at least $8.6 million for management and billing services. These payments were usually made to two corporations that Mr. Kirschenbaum controlled and were then passed to two limited partnerships that Mr. Kirschenbaum also controlled.

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