Hosan M. Azomani v. State of Mississippi

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2015-CT-00050-SCT

HOSAN M. AZOMANI a/k/a HOSAN AZOMANI
a/k/a HOSAN MENANYA AZOMANI a/k/a DR.
AZOMANI a/k/a HOSAN AZOMANI M.D. a/k/a
DR. HOSAN M. AZOMANI

v.

STATE OF MISSISSIPPI

ON WRIT OF CERTIORARI

DATE OF JUDGMENT: 12/23/2014
TRIAL JUDGE: HON. BETTY W. SANDERS
TRIAL COURT ATTORNEYS: SUE M. PERRY
PAT McNAMARA
DERRICK T. SIMMONS
ERRICK D. SIMMONS
D. LEE MARTIN
COURT FROM WHICH APPEALED: WASHINGTON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: GLENN S. SWARTZFAGER
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: LAURA HOGAN TEDDER
DISTRICT ATTORNEY: WILLIE DEWAYNE RICHARDSON
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 06/01/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

WALLER, CHIEF JUSTICE, FOR THE COURT:

¶1. Dr. Hosan Azomani seeks review of the Court of Appeals’ affirmance of his

conviction and sentence for two counts of Medicaid fraud in violation of Mississippi Code
Sections 43-13-213 and 43-13-215. We granted certiorari to address venue and statute-of-

limitations issues. Finding that venue was proper and that the claims were prosecuted within

the statute of limitations, we affirm the judgment of the Court of Appeals and affirm the

conviction and sentence of the trial court.

FACTS AND PROCEDURAL HISTORY

¶2. Dr. Azomani practiced pediatric medicine under the name Children’s Medical Group

of Greenville PLLC, in Greenville, Mississippi, which is located in Washington County. In

2007, the Division of Medicaid conducted an audit of Dr. Azomani’s patient files, which

revealed three coding errors. Though Dr. Azomani admitted to the errors, he claimed that he

had not deliberately made the mistakes.

¶3. Later, following three complaints involving Dr. Azomani’s choices of treatment for

patients, Officer David Delgado of the Medicaid Fraud Control Unit investigated Dr.

Azomani’s Medicaid billing. Officer Delgado testified that Dr. Azomani regularly billed the

highest-level code1 for almost all of his patients. Specifically on October 19, 2010, Dr.

Azomani billed Mississippi Medicaid under the highest-level code for all fifty-six children

he treated that day. And on January 3, 2011, he used the same code to bill Medicaid for the

sixty-nine children he treated on that day. Using this code for all children treated on those

two days, he was reimbursed the highest possible amount for all office visits on those two

days, for which Medicaid paid him a total of $14,715.66. Experts who reviewed Dr.

1
The highest-level code under the “Current Procedural Terminology” (CPT) is 99215.
This code requires that the doctor spend forty minutes face-to-face with the patient.

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Azomani’s records for Medicaid unanimously concluded that none of the children Dr.

Azomani treated during those two days should have been billed under that code.

¶4. Dr. Azomani was indicted in the Washington County Circuit Court on January 13,

2014, on thirteen counts of Medicaid fraud. He was tried over six days beginning on October

27, 2014. At trial, the State called numerous witnesses involved with the investigation and

audit of Dr. Azomani’s files. Experts for the State and Dr. Azomani agreed that he

improperly billed Medicaid for all of the patients he treated during the two days at issue. Dr.

Azomani testified that he did not intend to bill Medicaid improperly. Instead, he claimed that

he had relied on the 2007 partial review of his files, which allegedly had suggested

incorrectly that he had been billing properly. On November 1, 2014, the jury found him guilty

of two counts of fraudulently misusing the highest-level billing code, an inappropriate code

for the 125 children he treated on the two aforementioned days. Dr. Azomani was acquitted

on the other eleven counts. Dr. Azomani was sentenced to three years for each count, to be

served concurrently.

¶5. Dr. Azomani appealed, raising multiple issues including: (1) improper venue, (2)

variance between the jury-instruction language and the indictment language, (3) indictment

after the statute-of-limitations period, (4) the State’s failure to prove beyond a reasonable

doubt that Dr. Azomani willfully, unlawfully, and feloniously made false, fictitious, and

fraudulent claims for Medicaid benefits, (5) ineffective assistance of counsel, and (6)

cumulative errors that warranted reversal. The Court of Appeals found that none of these

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issues warranted reversal and affirmed the trial court’s judgment. Azomani v. State, 2016

WL 4187614 (Miss. Ct. App. Aug. 9, 2016).

¶6. This Court granted certiorari to review issues (1) and (3). See Miss. R. App. P. 17(h).

DISCUSSION

I. Whether Hosan M. Azomani was denied his right to due process under
the United States and Mississippi Constitutions when the State failed to
establish proper venue.

¶7. During pretrial proceedings, Dr. Azomani filed a motion to dismiss for improper

venue, arguing that venue would be proper in Madison County, his home county, or Hinds

County, pursuant to Mississippi Code Section 43-13-223(1) of the Medicaid Fraud Control

Act. See Miss. Code Ann. § 43-13-223(1) (Rev. 2015). However, Dr. Azomani’s lawyer

advised the trial court that he was not going to pursue the motion for improper venue. While

Dr. Azomani’s counsel did state he might address the motion later, he failed to pursue it, and

no ruling was made on the motion. Following the State’s case, Dr. Azomani moved for a

directed verdict based on the State’s failure to prove venue. The trial court denied the motion,

finding that the State had proven that Dr. Azomani’s practice, patients, patients’ records, and

other evidence were originated, performed, or retained in Washington County.2

¶8. Dr. Azomani, for the first time on appeal, asserted that the State had failed to establish

venue, denying his right to due process under the Constitutions of the United States and the

2
While Dr. Azomani stated in both his briefs and petition for certiorari that the trial
court erred in denying his motion for directed verdict, he failed to assert his right to review
on the issue since the issue was not supported by any authority. Brown v. State, 534 So. 2d
1019, 1023 (Miss. 1988) (The Court had no obligation to consider the issue for defendant’s
failure to provide authority for the argument).

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State of Mississippi. The Court of Appeals found that the venue issue asserted under the

Medicaid Fraud Control Act was waived, and, as a result, it found the issue was procedurally

barred. Azomani v. State, 2016 WL 4187614, *2 (Miss. Ct. App. Aug. 9, 2016). The Court

of Appeals determined that, because venue was established pursuant to Article 3, Section 26

of the Mississippi Constitution, Section 43-13-223(1) must apply only to civil actions. Id.

at *4.3

¶9. Dr. Azomani in his Petition for Certiorari takes issue with the holding of the Court of

Appeals concerning waiver of his venue claim for failure to bring his motion to a hearing.

He asserts that the issue of venue can be raised for the first time on appeal as a constitutional

right. Rogers v. State, 95 So. 3d 623, 630 (Miss. 2012) (citing Gillett v. State, 56 So. 3d 469,

502 (Miss. 2010) (finding that venue in criminal cases is jurisdictional and may be raised for

the first time on appeal)). Dr. Azomani is correct in his assertion that the Court of Appeals

erred in holding venue in a criminal case can be waived. 4 After finding that a review of Dr.

Azomani’s original venue motion was procedurally barred, the Court of Appeals also

reviewed the claim of improper venue on the merits as an exception to the procedural bar.

3
The entire act addresses both civil and criminal actions. Criminal penalties are
established in Section 43-13-215 and civil penalties are provided for under Section 43-13-
225.
4
In discussing the waiver of venue, the Court of Appeals stated that this Court
previously had found that the Court of Appeals “went too far when applying the principle
that venue is not waivable.” Azomani, 2016 WL 4187614, at *3 (citing Moreno v. State, 79
So. 3d 508, 511 (Miss. 2012)). However, Moreno dealt with an appeal from a trial court’s
denial of post-conviction-relief proceedings and not a direct appeal situation as the case sub
judice. Moreno, 79 So. 3d at 511. This Court will not, as a rule, consider a claim for
improper venue filed for the first time in post-conviction-relief proceedings. Id.

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Azomani, 2016 WL 4187614, at *2 (quoting Foster v. State, 148 So. 3d 1012, 1016 (¶ 12)

(Miss. 2014)). The Court of Appeals found the issue was without merit because Article 3,

Section 26 of the Mississippi Constitution provides that a defendant has a constitutional right

to be tried in the county where the offense was committed. Id.

¶10. In his Petition for Certiorari, Dr. Azomani conflates a statutory venue provision into

a constitutional right. We disagree that Dr. Azomani has a constitutional right to venue under

Section 43-13-223(1). As the Court of Appeals recognized, the constitutional right to venue

is set out in Article 3, Section 26, which directs that the accused shall have a right to a

“public trial by an impartial jury of the county where the offense was committed.” State v.

Caldwell, 492 So. 2d 575, 577 (Miss. 1986) (emphasis added). As correctly noted by the

Court of Appeals, the only reasonable interpretation of the venue provisions under the

Medicaid Fraud Control Act under Section 43-13-223(1) is that their application would be

limited to civil cases. Azomani, 2016 WL 4187614, at *4; see also Walker v. State, 881 So.

2d 820, 824 (Miss. 2004) (statutes are presumed to be constitutional).

¶11. Because Dr. Azomani’s trial was in the county “where the offense was committed,”

as provided by the Mississippi Constitution, we find that venue was proper in Washington

County and that this issue is without merit.

II. Whether Medicaid fraud is within the exception to the two-year statute
of limitations.

¶12. In 1998, the Mississippi Legislature amended Mississippi Code Section 99-1-5 and

added “obtaining money or property under false pretenses or by fraud” to the list of the

crimes that are exempt from the two-year statute of limitations. At that time and even today,

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no crimes are specifically entitled “obtaining money or property under false pretenses or by

fraud,” as provided in the statute. Miss. Code Ann. § 99-1-5 (Rev. 2015). Dr. Azomani

argued that, since Mississippi Code Section 99-1-5 specifically does not include “Medicaid

fraud,” then Medicaid fraud has a two-year statute of limitations.

¶13. In Moffett v. State, Moffett argued that, since capital murder was not listed

specifically under Section 99-1-5, it was not exempt from the two-year statute of limitations.

Moffett v. State, 49 So. 3d 1073, 1081 (Miss. 2010). Relying on a Texas case which dealt

with a similar issue, this Court addressed the issue as one of first impression. Id. at 1082

(citing Fearance v. State, 771 S.W. 2d 486, 494-95 (Tex. Crim. App. 1988)). We found that

capital murder was a species of murder, and as such, it had no statute of limitations. Id.

¶14. In another case, a similar argument was advanced with the same result. The Court of

Appeals, in Hernandez v. State, 137 So. 3d 889 (Miss. Ct. App. 2013), correctly reasoned

that, even though statutory rape was not expressly set out in Section 99-1-5, “it is within the

definition of rape for purposes of the exceptions to the general two-year statute of

limitations.” Id. at 892. Accordingly, we find that Medicaid fraud is a species of or within

the definition of “obtaining money or property under false pretenses or by fraud” and that this

issue is without merit.

CONCLUSION

¶15. Finding that Dr. Azomani was indicted and convicted in the proper venue and that

Medicaid fraud is exempt from the two-year statute of limitations, we affirm the judgment

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of the Court of Appeals and affirm the trial court’s judgment including conviction and

sentence for both counts of Medicaid fraud.

¶16. THE JUDGMENTS OF THE COURT OF APPEALS AND THE
WASHINGTON COUNTY CIRCUIT COURT ARE AFFIRMED. COUNT I:
CONVICTION OF MEDICAID FRAUD AND SENTENCE OF THREE (3) YEARS
IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,
SUSPEND EXECUTION, TO BE SERVED AS ONE (1) YEAR SUPERVISED
PROBATION FOLLOWED BY TWO (2) YEARS UNSUPERVISED PROBATION,
AFFIRMED. COUNT II: CONVICTION OF MEDICAID FRAUD AND SENTENCE
OF THREE (3) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT
OF CORRECTIONS, SUSPEND EXECUTION, TO BE SERVED AS ONE (1) YEAR
SUPERVISED PROBATION FOLLOWED BY TWO (2) YEARS UNSUPERVISED
PROBATION, AFFIRMED. SENTENCE IN COUNT II SHALL RUN
CONCURRENTLY WITH THE SENTENCE IN COUNT I. APPELLANT SHALL
COMPLETE 100 HOURS OF COMMUNITY SERVICE. APPELLANT SHALL PAY
COURT COSTS AND ASSESSMENTS, $6,621.37 AS THE AMOUNT RECEIVED IN
COUNT I OF THE INDICTMENT PAYABLE TO THE STATE OF MISSISSIPPI
DIVISION OF MEDICAID, $8,094.39 AS THE AMOUNT RECEIVED IN COUNT II
OF THE INDICTMENT PAYABLE TO THE STATE OF MISSISSIPPI DIVISION
OF MEDICAID, AND $44,147.28 AS TREBLE DAMAGES AUTHORIZED BY THE
MEDICAID FRAUD CONTROL ACT: MISS. CODE ANN. § 43-13-225 PAYABLE
TO THE STATE OF MISSISSIPPI OFFICE OF THE ATTORNEY GENERAL.
PAYMENT PLAN TO BE FILED BY PROBATION AND PAROLE.

RANDOLPH, P.J., KITCHENS, MAXWELL, BEAM AND CHAMBERLIN, JJ.,
CONCUR. DICKINSON, P.J., CONCURS IN PART AND IN RESULT WITH
SEPARATE WRITTEN OPINION JOINED BY COLEMAN, J. KING, J., NOT
PARTICIPATING.

DICKINSON, PRESIDING JUSTICE, CONCURRING IN PART AND IN
RESULT:

¶17. Today, the majority perpetuates the imprecise dicta from previous cases regarding

venue in criminal cases by holding that Article 3, Section 26 of the Mississippi Constitution

mandates venue in the county where the criminal offense was committed. Article 3, Section

26 of the Mississippi Constitution provides: “In all criminal prosecutions the accused shall

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have a right to . . . a speedy and public trial by an impartial jury of the county where the

offense was committed.”5 The provision neither mentions nor mandates venue in any

particular county. Upon careful review of the Constitution’s precise language, I respectfully

disagree with the majority’s reasoning.

¶18. Dr. Azomani was indicted and convicted in Washington County, where he committed

Medicaid fraud. He argues that, for Medicaid fraud, venue for his crime is set by Mississippi

Code Section 43-13-223, which provides that a Medicaid-fraud prosecution “may be filed

in the circuit court of the First Judicial District of Hinds County or in the circuit court of the

county in which the defendant resides.”6 And because the statute does not provide for venue

in Washington County, the county where the crime was committed, Dr. Azomani argues the

State failed to prove Washington County was a permissible venue.

¶19. The majority finds venue proper in Washington County based on Article 3, Section

26 of the Mississippi Constitution. But venue is “the proper or a possible place for a lawsuit

to proceed,”7 and Article 3, Section 26 says nothing about where a prosecution must occur.

Instead, it guarantees the defendant a jury drawn from a particular county.8

5
Miss. Const. art. 3, § 26 (emphasis added).
6
Miss. Code Ann. § 43-13-223(1) (Rev. 2015) (emphasis added).
7
Venue, Black’s Law Dictionary 1339 (abr. 9th ed. 2010) (emphasis added).
8
Miss. Const. art. 3, § 26.

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¶20. At times, this Court loosely has referred to Article 3, Section 26 as a venue

requirement.9 But we never have faced a case that required us to determine whether that

provision requires a trial physically to be held in a particular county, or only that the jury be

selected from a particular county. In my view, this Court should honor the clear language

of the constitutional provision—“trial by an impartial jury of the county where the offense

was committed”—and cease to apply it to the location of the trial. However, as to Dr.

Azomani’s case, the inquiry does not end here.

¶21. Mississippi Code Section 99-11-3 provides that “[t]he local jurisdiction of all

offenses, unless otherwise provided by law, shall be in the county where committed.”10 So

in most cases—including the one before us today—Section 99-11-3 establishes venue in the

county where the crime was committed.

¶22. While Mississippi Code Section 43-13-223 does provide that a Medicaid-fraud

prosecution “may be filed in the circuit court of the First Judicial District of Hinds County

or in the circuit court of the county in which the defendant resides,”11 it contains no language

suggesting a Medicaid-fraud prosecution may be brought only in those counties. Instead, it

simply states the action may be brought there, thus allowing for venue in other counties

where venue is provided by statute. In my view, Section 43-13-223’s permissive language

9
See e.g. Nuckolls v. State, 179 So. 3d 1046, 1048–49 (Miss. 2015) (citing Smith
v. State, 646 So. 2d 538, 541 (Miss. 1994); quoting Rogers v. State, 95 So. 3d 623, 630
(Miss. 2012) (quoting Miss. Const. art. 3, § 26)).
10
Miss. Code Ann. § 99-11-3 (Rev. 2015).
11
Miss. Code Ann. § 43-13-223(1) (Rev. 2015) (emphasis added).

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simply adds permissible venues to the one in Section 99-11-3. So, because I believe venue

was proper under Section 99-11-3, I concur in part and in result.

COLEMAN, J., JOINS THIS OPINION.

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