NORMAN J CLEMENT RPH., DDS, NORMAN L.CLEMENT PHARM-TECH, MALACHI F. MACKANDAL PHARMD, BELINDA BROWN-PARKER, IN THE SPIRIT OF JOSEPH SOLVO ESQ., IN THE SPIRIT OF REV. C.T. VIVIAN, JELANI ZIMBABWE CLEMENT, BS., MBA., IN THE SPIRIT OF THE HON. PATRICE LUMUMBA, IN THE SPIRIT OF ERLIN CLEMENT SR., WILLIE GUINYARD BS., JOSEPH WEBSTER MD., MBA, BEVERLY C. PRINCE MD., FACS., LEROY BAYLOR, JAY K. JOSHI MD., MBA, ADRIENNE EDMUNDSON, ESTER HYATT PH.D., WALTER L. SMITH BS., IN THE SPIRIT OF BRAHM FISHER ESQ., MICHELE ALEXANDER MD., CUDJOE WILDING BS, MARTIN NDJOU, BS., RPH., IN THE SPIRIT OF DEBRA LYNN SHEPHERD, BERES E. MUSCHETT, STRATEGIC ADVISORS
“The single conviction stems from Dr. Belcher including the wrong date on the invoice for a $217 therapy session“
UNITED STATES OF AMERICA, Plaintiff-Appellee,
GREGORY BELCHER, MD,
Appeal from the United States District Court for the Northern District of California, No. 5:16-cr-0211-LHK
BRIEF OF AMICI CURIAE MEMBERS OF ALPHA PHI ALPHA FRATERNITY, INC., IN SUPPORT OF DEFENDANT-APPELLANT GREGORY BELCHER’S PETITION FOR REHEARING EN BANC AND, IN THE ALTERNATIVE, FOR PANEL HEARING
STATEMENT OF INTEREST OF THE AMICI CURIAE
Alpha Phi Alpha Fraternity, Inc., the first intercollegiate Greek-letter fraternity established for African-American men, was founded in 1906 at Cornell University. Since then, the fraternity has had over 290,000 members. Alpha Phi Alpha recognizes those who demonstrate both academic excellence and a commitment to correcting the educational, economic, political, and social injustices faced by African Americans.
Members of Alpha Phi Alpha have long stood at the forefront of the African- American community’s fight for civil rights through leading members such as Martin Luther King, Jr., Thurgood Marshall, and Jesse Owens. Alpha Phi Alpha was directly responsible for the conception, funding, and construction of the Martin Luther King Jr. Memorial next to the National Mall in Washington, D.C.
Alpha Phi Alpha develops leaders, promotes brotherhood and academic excellence, and provides services and advocacy for its members’ communities. The fraternity addresses social issues such as apartheid, AIDS, urban housing, and other economic, cultural, and political issues of interest to people of color. Alpha Phi Alpha has a particular interest in the medical profession, as a majority of black physicians in this country, such as Dr. Gregory Belcher, have been members of the fraternity.
The amici’s interest in this matter arises from the stated commitment of the fraternity to promoting the rights of African-Americans, including Black doctors. Identified counsel for amicus prepared and is submitting this brief pro bono. No party’s counsel authored this brief in whole or in part. No party, party’s counsel, or person other than the amici curiae, their members, or their counsel, contributed money that was intended to fund preparing or submitting the brief.
The government and counsel for Dr. Belcher have consented to the filing of this amicus brief.
1 The government’s opposing brief on appeal notes that: “Habibi also received a one-hour physical-therapy session and a one- hour massage therapy session on Monday, November 25, 2013, see SEOR 15, but Belcher billed Cigna only for one physical-therapy session on that date and did not seek payment for the massage therapy, see Ex. 40a (spreadsheet, rows 9159-9163).” GB at 14 fns.
Amici curiae members of Alpha Phi Alpha Fraternity Inc. submit this brief in support of Dr. Gregory Belcher’s petition for en banc review. The members of this organization are acutely aware that there are two sides to every story but only one truth and one correct application of justice. Alpha Phi Alpha urges this Court to accept en banc review because a core mission of the fraternity is to fight against unfair treatment African-Americans so often receive in our legal system. This case is important not only because the outcome is unjust but because it will deprive the community’s access to a well-trained Black physician.
Amici do not ask this Court to overturn Dr. Belcher’s conviction because of his race or personal and professional achievements. Rather, his claim on appeal that the trial evidence failed to prove him guilty of the theory of fraud charged in
the indictment has yet to be considered. The panel’s holding that the government was not required to prove the theory of criminality was constitutionally erroneous. Amici submit the consequences of that erroneous ruling are sufficiently grave to merit rehearing en banc.
Following a trial in which he was indicted on fourteen federal charges, Dr. Belcher was convicted in 2018 of the single count of making a false statement in a healthcare matter, in violation of 18 U.S.C. § 1035. The jury acquitted Dr. Belcher of every other charge brought by the U.S. Attorney’s Office, which included healthcare fraud, conspiracy, and money laundering. The single conviction stems from Dr. Belcher including the wrong date on the invoice for a $217 therapy session. Patient M. Habibi received the therapy on November 22, 2013, while the date on the billing record was November 23.1
At trial, evidence was introduced showing that Dr. Belcher never billed for services that were not received and that he provided free therapy for patients in need who did not have the medical insurance to cover it. Patient M. Kelley
identified several instances in which he had received physical therapy at Dr. Belcher’s office but the office had submitted no bill for it. 19EOR 5065-68. So, too, did patient Habibi. 19ER 133-43.
As an African American doctor, Dr. Belcher brings a unique skill set and set of life experiences that is desperately needed in the Black community by patients as well as his orthopedic surgery colleagues, including those who provided letters of support at Dr. Belcher’s sentencing in this matter.
Dr. Belcher exemplifies everything that amicus stands for: service to the community, leadership, and brotherhood. Dr. Belcher joined Alpha Phi Alpha fraternity when he was a student at UCLA over 40 years ago. Prior to joining the fraternity, Dr. Belcher had served in the Boy Scouts of America—since age eight—and was a KTLA Explorer Scout while at UCLA. At UCLA, Dr. Belcher was President of the UCLA Premedical Society, Director of the UCLA Black hypertension project and a member of the Black Student Alliance. After joining the fraternity, Dr. Belcher continued those leadership roles and also assumed the role as educational director for the fraternity. As the educational director, Dr. Belcher led a team of UCLA students who tutored and mentored high school students in South Central Los Angeles on a weekly basis.
After graduating from UCLA, Dr. Belcher went to Tufts Medical School in Boston. After medical school and an internship, Dr. Belcher was commissioned as
an officer in the U.S. Navy. Dr. Belcher’s service in the Navy was impeccable.
He served as the Department Head of Medical on-board U.S.S. Mobile LKA 115. In addition to being awarded numerous awards and citations, Dr. Belcher served in the first Gulf War and in 2005, he was mobilized for active duty to support the Iraqi War. In 2011, Dr. Belcher retired from the Navy with 22 years of active service but continued to volunteer his services to the Navy Reserves.
4. Case: 18-10133, 07/19/2021, ID: 12176383, DktEntry: 123, Page 7 of 12
While Dr. Belcher was an active reservist in the Navy, he completed specialty and subspecialty training in orthopedic surgery at Brown University, UCLA and Stanford Medical School. In 1999, Dr. Belcher went into private practice as an orthopedic surgeon. He also maintained an academic position as an adjunct clinical instructor at Stanford Medical School.
Over the past two decades, Dr. Belcher worked in private practice, taught medical students and house staff at Stanford Medical Center and the County Hospital in San Jose, served on the Board of Directors for the Saratoga Senior Center, and worked as a reservist and volunteer in the US Navy.
Dr. Belcher has dedicated his life to helping his community through hard work and leadership.
II. THE CONVICTION RAISES TROUBLING IMPLICATIONS FOR JUSTICE
The nature of the conduct at issue and the consequences of the conviction require rehearing in this matter. Dr. Belcher overcame long odds to become a
preeminent surgeon. His father left the family when Dr. Belcher was three years old. Despite the fracture in his family, Dr. Belcher thrived in college and was awarded a Navy scholarship to medical school. He was accepted by Brown University for his residency and received a post-residency fellowship at Stanford.
5. Case: 18-10133, 07/19/2021, ID: 12176383, DktEntry: 123, Page 8 of 12
While serving his country in the Navy, Dr. Belcher earned high praise from those with whom he worked. Lisa Kumagai, a critical care nurse in the Navy and the Officer in Charge of Expeditionary Medical Facility Camp Pendleton Detachment G in San Jose, said this in support of Dr. Belcher at his sentencing: Dr. “Belcher is an example of what the Navy represents in its core values: Honor, Courage, and Commitment. These values are demonstrated by his commitment to the Navy, his patients, and his volunteer service. I would go to war anytime with CAPT Belcher and am honored to say I served with him.” Ex. A (Dist. Ct. Dkt. No. 384-32).
Orthopedic surgeon Sanaz Hariri, who shares office space with Dr. Belcher, noted that Dr. Belcher is an exceptionally talented and dedicated surgeon who “is able to do complex total joint replacements and revision cases that very few people are trained and able to do.” Ex. B (Dist. Ct. Dkt. No. 384-33). Dr. Hariri also describes how Dr. Belcher is especially attentive to his patients, frequently “employing his unique mixture of empathy for patients and surgical skills.” Ibid. Dr. Hariri summed up the loss caused by this prosecution:
I am very sad for the community that Dr. Belcher is not operating now. And I am worried. Each week, there are patients who could use his help. There are patients who are suffering with painful joints who could benefit from Dr. Belcher’s expertise in tackling those cases that so few surgeons in the area are able and willing to handle. There are people with infected joints right now who have a higher probability of clearing that infection and potentially not losing their limb the sooner Dr. Belcher is able to take care of them. The people in his waiting room are obviously those who have come to Dr. Belcher as their last resort. There simply are not enough surgeons with his skill set, experience, and character in our community to step into his spot.
The loss to the medical community will be especially acute given the historical and continuing dramatic underrepresentation of Black men in the medical profession. A recent study from UCLA Medical School shows that as of 2018, Black men comprised only 2.6% of all U.S. physicians.2 Even more disheartening, that figure has remained essentially unchanged since 1940. Ibid.
Dr. Belcher was one of the few who managed to break through the innumerable barriers Black men face in the medical profession. If this conviction
2 https://newsroom.ucla.edu/releases/proportion-black-physicians-little- change/ (last visited July 13, 2021).
7. Case: 18-10133, 07/19/2021, ID: 12176383, DktEntry: 123, Page 10 of 12 stands, young black men considering a career in medicine will have one less role model from an already scarce selection.3
Given the constitutional error in the panel opinion, and in light of Dr. Belcher’s remarkable dedication to his country, his community, and his profession, his single conviction, which would effectively end his career as a surgeon and prohibit him from continuing to treat those patients that need him most, deserves close scrutiny on rehearing.
Amici curiae members of Alpha Phi Alpha Fraternity, Inc., respectfully request that the Court grant Dr. Gregory’s petition for rehearing en banc.
DATED: July 19, 2021
Counsel for Alpha Phi Alpha Members:
Jimmy Chambers Desmond Gumbs Marcus Lampley Hesham Ragab, M.D.
3 https://www.forbes.com/sites/danabrownlee/2020/08/11/why-are-black- male-doctors-still-so-scarce-in-America/?sh=2e00a45627c2 (last visited July 10, 2021) (“scarcity of Black male doctors . . . translates into fewer role models for young Black men,” a contributing factor to the underrepresentation of Black men in the profession).
WE ASK PRESIDENT BIDEN TO GRANT A FULL AND COMPLETE PARDON OF CAPTAIN GREGORY BELCHER MD AND HIS WIFE VILASHNI GANESH MD
FOR NOW, YOU ARE WITHIN