Bane v. USA

Filing 57

ORDER granting the United States' 44 --motion to strike the 43 --amended motion to vacate; granting the 47 and 56 --motions to withdraw as counsel for the United States; terminating Natalie Adams from the docket; denying as moot Bane� 39;s 49 , 50 , and 53 --motions; referring this action to the Magistrate Judge for the limited purpose of appointing counsel to represent Bane; administratively closing and staying this action until briefing is complete; directing counsel for Bane to file a second amended motion to vacate by 6/24/2019. Signed by Judge Steven D. Merryday on 3/28/2019. (GSO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

UNITED STATES OF AMERICA
v.

Case No. 8:14-cv-2559-T-23SPF

BEN BANE
/
ORDER
Bane was indicted (1) for one count of conspiring to commit health care fraud,
making false statements, and presenting fraudulent claims; (2) for five counts of
health care fraud; and (3) for four counts of having presented fraudulent claims to an
agency of the United States. After a twenty-five day trial, a jury convicted Bane of
each count. Because of some success on appeal, Bane’s sentence is composed of
imprisonment for 151 months, a fine of $2,500,000, and restitution of $1,054,639.91.
(Doc. 578 in 09-cr-352)* After careful consideration, the district court determines that
this action warrants appointing counsel to represent Bane.
Bane moves to vacate his sentence under 28 U.S.C. 2255. The circuit court
summarized the facts of this action as follows (Doc. 554 at 2–3):
This is a Medicare and Medicaid fraud case arising out of Bane’s
ownership and operation of two companies, Bane Medical
Services (BMS) and Oxygen & Respiratory, Inc. (ORT). BMS
and ORT provided durable medical equipment, including

*

This action was tried before the Honorable Virginia M. Hernandez Covington who, upon
the filing of the present motion to vacate, recused herself because a family member is employed with
the law firm that represented Bane at trial and because trial counsel is alleged to have rendered
ineffective assistance. The action was randomly re-assigned to this district judge.

portable oxygen, to Medicare patients. Medicare reimburses
providers of portable oxygen for up to 80 percent of the
allowable charge for this equipment, with patients and/or
supplemental insurers covering the remaining 20 percent. To
qualify for reimbursement, equipment providers must ensure the
oxygen is medically necessary by sending patients to an
independent laboratory for pulse oximetry testing. In this case,
from January 2001 to December 2004, instead of referring
patients to independent labs, BMS and ORT, at Bane’s direction,
conducted the testing themselves and falsely represented to
Medicare that they used independent labs. Bane recruited the
help of two companies that were authorized to perform pulse
oximetry tests. Bane’s employees sent the results of tests BMS
and ORT conducted to these labs, and the lab employees
stamped the results to make it appear as if they had performed
the tests. Bane also falsified test results and doctors’ signatures
and, when the government began investigating, directed his son
to delete hard drives and destroy computers.

Banes’s initial motion to vacate was nearly seventy-five pages in length with an
additional thirty pages of exhibits. (Doc. 1) After the United States responded, Bane
filed five supplements, each of which was stricken (Docs. 29, 31, 32, 37, and 38), as
well as additional papers and motions. An earlier order (Doc. 41 at 2) remarked that
“[t]he existence of the original motion to vacate and several supplements and,
concomitantly, more than one response unnecessarily complicates the review of
Bane’s claims. The original motion to vacate, the supplement, and the proposed
supplements total almost two hundred pages.” As a consequence, the district court
struck both the initial motion to vacate and the supplements. The order directs Bane
to file a comprehensive motion to vacate. The subsequent amended motion to vacate
(Doc. 43) is more than two hundred pages in length, which includes approximately
fifty pages of exhibits. The United States moves (Doc. 44) to strike the pleading.

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Bane’s opposition to the motion to strike concludes with a request to appoint counsel.
(Doc. 45 at 8)
Many of Bane’s handwritten allegations are rambling and his handwritten
computations are at times difficult to discern. After considering all aspects of this
action, the district court determines that appointing counsel to represent Bane is
necessary to formulation and resolution of the issues. The appointment of counsel is
authorized under 28 U.S.C. § 2255(g). As a consequence, Bane’s several other
motions (Doc. 49, 50, and 53) are rendered moot.
Accordingly, the United States’ motion to strike (Doc. 44) the amended motion
to vacate (Doc. 43) is GRANTED. Bane’s several other motions (Doc. 49, 50, and
53) are DENIED AS MOOT. The motions (Docs. 47 and 56) by Natalie Adams to
withdraw as counsel for the United States are GRANTED. This action is referred to
the Magistrate Judge for the limited purpose of appointing counsel to represent Bane,
whether the public defender if no conflict exists or under the Criminal Justice Act if
the public defender is conflicted. This action is ADMINISTRATIVELY CLOSED
AND STAYED until briefing is complete. Counsel for Bane has until MONDAY,
JUNE 24, 2019, to file a second amended motion to vacate. The United States must
respond within twenty-eight days and Bane may reply within twenty-one days.
ORDERED in Tampa, Florida, on March 28, 2019.

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