Update: Podiatrist Sentenced to Seven Years in Prison for Billing Medicare Under False Identity, Despite Medicare Revocation

In September 2022, Chilivis Grubman attorneys discussed how Medicare revocation can create a dire situation for healthcare providers, and how some providers try to skirt the revocation restrictions. According to the Department of Justice (DOJ), Dr. Kenneth Mitchell is one such provider.  



Dr. Mitchell owned an on-site foot care service for adult foster home residents. His billing privileges were suspended for suspicious billing practices. Dr. Mitchell then convinced another unsuspecting provider eligible to bill Medicare to partner with him to create a new medical entity. He convinced his new partner to put her name on the business and banking documents for the new entity, according to the government’s newest press release. Dr. Mitchell worked at the clinic and billed Medicare for services he rendered, but exclusively under the name of his partner. He billed Medicare for about $1.8 million. Once law enforcement investigated, Dr. Mitchell submitted false statements to Medicare under his partner’s name to undermine the investigation, according to the government.  During the investigation, the government accused Dr. Mitchell of making false statements to investigators. 

Dr. Mitchell was convicted of one count of conspiracy to commit health care fraud and wire fraud, three counts of health care fraud, one count of falsification of records in a federal investigation, and one count of identity theft (to be served consecutive to any other sentence).  On May 4, 2023, a federal judge sentenced Dr. Mitchell to seven years in prison. The DOJ’s press release does not discuss whether Dr. Mitchell’s partner knew that Dr. Mitchell was submitting claims using her credentials. 

Every provider should be attentive to Medicare administrative requirements. Medicare can revoke the billing privileges of a provider for over twenty different reasons. 42 C.F.R. § 424.535. Some reasons are serious, such as felony convictions and patient harm. Other reasons may seem administrative and minor. However, the consequences of a Medicare adverse action can be dire. And fighting adverse administrative actions requires diligent and swift action. Unfortunately, many providers do not appreciate the seriousness of Medicare administrative matters nor the minimal appeal options (when available) until it is too late. For some providers, the result is a temptation to skirt the revocation restrictions. This too can have significant consequences, such as prison, as Dr. Mitchell’s case highlights. 

Nurse Faces Up to 50 years in Prison After Pleading Guilty to Unlawful Distribution of Controlled Substances and Healthcare Fraud

The DOJ recently announced that a nurse, Kelly McCallum, pleaded guilty to two counts of unlawful distribution of controlled substances and one count of healthcare fraud.

McCallum was an advanced practice registered nurse (APRN) operating Convenient Care Clinic in Dyersburg, Tennessee. According to McCallum’s 2021 indictment, from January 2017 to early 2021, she issued more than 50,000 prescriptions for controlled substances, which amounted to more than 900,000 pills. McCallum issued prescriptions for Hydrocodone, Oxycodone, Adderall, and other Schedule IV substances under her Drug Enforcement Administration (DEA) registration number. 

According to the DOJ, McCallum had sexual relationships with two of her patients, and one of her patients fatally overdosed from controlled substances that she prescribed. She also left pre-signed prescriptions for her staff to distribute when she was out of the office. In addition to prescribing dangerous combinations of opioids and benzodiazepines, McCallum submitted claims to Medicare and Medicaid for services she did not provide and received over $16,000 for her fraudulent claims. 

McCallum was ordered to cease practicing in Tennessee after the Tennessee Board of Nursing suspended her registered nurse license and APRN certificate. She now faces up to 20 years in prison on each controlled substance count and a maximum of 10 years in prison on the health care fraud count.

Georgia Doctor Pleads Guilty to Distributing Misbranded Weight Loss Product

On April 25, the DOJ announced the conviction of a Georgia physician, Dr. Audrey Arona. Dr. Arona pleaded guilty to charges related to the sale of drug that contained human chorionic gonadotropin (HCG), marketed as a weight lost product. 

HCG is a hormone produced by the human placenta. According to the DOJ, the U.S. Food and Drug Administration (FDA) has only approved certain injectable HCG drug products for the treatment of specific cases of female infertility and for hormone treatment in males. The issue here is that the FDA has not approved any oral or sublingual HCG drug products for any use, and the FDA has never approved any HCG drug product for weight loss. Notably, the FDA has specifically warned consumers to avoid HCG weight-loss products, urging those who possess any HCG products for weight loss to “quit using it, throw it out, and stop following the dieting instructions.”

According to court documents, Dr. Arona admitted to selling a sublingual HCG-for-weight-loss drug product to patients around the country. She further admitted that she represented to patients that the HCG-for-weight-loss drug product was FDA-approved. Dr. Arona pleaded guilty to “causing the introduction into interstate commerce of a misbranded drug product containing HCG and marketed under the name ‘Releana.’” Pursuant to her plea agreement, a judge ordered Dr. Arona to forfeit approximately $65,000.

“Doctors who distribute drugs must comply with federal law designed to ensure these products are safe and effective,” said Principal Deputy Assistant Attorney General Brian M. Boynton, head of the Justice Department’s Civil Division. “The Department will continue to work closely with our law enforcement partners to stop the distribution of misbranded HCG drugs and other misbranded drugs, including through criminal enforcement where appropriate.”

Supreme Court Appears Poised to Preserve “Subjective Belief” Theory of Liability in FCA Cases

On Tuesday, April 18, 2023, the U.S. Supreme Court heard oral argument on two consolidated cases from the Seventh Circuit, U.S. ex rel. Schutte v. SuperValu Inc. and U.S. ex rel. Proctor v. Safeway, regarding the proper scienter standard in False Claim Act (“FCA”) cases. 

Under the FCA, a person is liable to the government for “knowingly” submitting a false claim for payment. The statute defines “knowingly” as actual knowledge, deliberate ignorance, or reckless disregard. Divided panels of the Seventh Circuit held in both cases that a defendant’s subjective belief regarding the falsity of the claim is never relevant, and a post hoc objectively reasonable interpretation of the claim would immunize them from FCA liability. In other words, the Seventh Circuit held that even if a defendant subjectively believed a claim was false, they could nonetheless escape FCA liability if they could craft an objectively reasonable interpretation of the claim that was not false. 

The Supreme Court seemed poised to reject the Seventh Circuit’s interpretation of the knowledge element, indicating that a defendant’s subjective belief regarding falsity is relevant to the question of whether the defendant had knowledge, although it remains unclear how broadly the Supreme Court will rule. A narrow ruling from the Supreme Court would simply remand the cases back to the Seventh Circuit for reconsideration in light of the defendants’ subjective beliefs as to the falsity of the claims. A broader ruling could go further and address hypothetical scenarios not directly before the court, which would provide clarity to FCA litigants moving forward regarding the scope of the “knowledge” element. Attorneys for the defendant companies cautioned against a too-broad reading of the “knowledge” element, saying it would be disastrous if the court held that even if a defendant had considered an objectively reasonable interpretation at the time and guessed wrong, it would lose under the FCA.

Sixth Circuit Adopts a Narrow Scope for Claims under the Anti-Kickback Statute

On March 28, 2023, the Sixth Circuit issued a notable decision in United States ex rel. Shannon Martin v. Darren Hathaway, a case involving alleged “remuneration” from a hospital to a local ophthalmologist in violation of the Anti-Kickback Statute (AKS). In its opinion, the Sixth circuit rejected broad theories about 1) the definition of remuneration under the AKS and 2) the causation requirement for AKS violations that trigger FCA liability.

The case in question concerned potential eye doctor referrals in Marshall, Michigan. Because Marshall is a small town, service options for ophthalmology patients were limited to one hospital and one local eye practice who regularly referred patients to one another. One of the relators (an ophthalmologist) attempted to negotiate a contract with the hospital for a role as an on-site physician. Relators alleged the hospital’s hiring of a new ophthalmologist would have impaired the local eye center’s business, emphasizing the fact that the hospital would no longer need to refer patients to the eye center, because, if hired, the relator would have managed those patients on-site at the hospital, instead. 

Relators allege that after the eye center’s owner spoke with the hospital and said that hiring the relator would be a “lose-lose” situation, employment negotiations fell through. Their theory was that the hiring decision was based on the desire to keep the referrals going, and as such, refusal to hire the ophthalmologist constituted remuneration for continued referrals to the hospital. The United States declined to intervene, and the district court granted defendants’ motion to dismiss. The Sixth Circuit affirmed.

The court held that “remuneration” under the AKS “covers just payments and other transfers of value,” and not “any act that may be valuable to another.” The panel consulted dictionary definitions and Congress’s analogous uses of “remuneration,” all of which described remuneration as something paid or transferred. The court rejected the argument that “remuneration” should be construed expansively because the AKS prohibits “any” remuneration and thus “anything of value in any form.” “[T]hat reality,” the panel refuted, “proves only that the statute covers remuneration of any type (cash, services, goods),” and not that Congress intended the term to encompass more than payments and transfers of value. The hospital’s decision not to hire relator entailed no payment or transfer of value, and therefore the Court found that relators failed to allege remuneration.

The court further found the complaint failed to allege causation. FCA liability premised on AKS violations attaches only to claims “resulting from” those AKS violations. In other words, FCA liability attaches only if the claim would not have been submitted “but for” the AKS violation. This decision deepened the divide between courts regarding the correct standard of causation that applies to claims; in so doing, it joined the Eighth Circuit and rejected the Third Circuit’s broader interpretation of causation. In aligning with the Eighth Circuit, the Sixth Circuit held that “[t]he ordinary meaning of resulting from is but-for causation.” In declining to adopt the Third Circuit’s conclusion, the Court noted the unfairness of interpreting a criminal statute through language that was never passed by Congress or signed by the President. This Sixth Circuit decision will likely trigger a cert petition to the United States Supreme Court and increases the likelihood of it getting a close look from the Justices.

New Voluntary Self-Disclosure Policy for United States Attorney’s Offices



Last month, DOJ prosecutors unveiled a new policy to incentivize and encourage companies to disclose misconduct by its employees or agents. The new United States Attorney’s Offices’ Voluntary Self-Disclosure Policy, which is effective immediately, details the circumstances under which a company will be considered to have made a voluntary self-disclosure (VSD) of misconduct to a United States Attorney’s Office (USAO). According to the government, the goal of the policy is to standardize how VSDs are defined and credited by USAOs nationwide, and “to incentivize companies to maintain effective compliance programs capable of identifying misconduct, expeditiously and voluntarily disclose and remediate misconduct, and cooperate fully with the government in corporate criminal investigations.”  

“The new Voluntary Self-Disclosure Policy sets a nationwide standard for how U.S Attorney’s Offices will determine whether a company has made a voluntary self-disclosure, and makes transparent the specific, tangible benefits to a company for making a voluntary self-disclosure, fully cooperating, and remediating the criminal conduct” stated United States Attorney Breon Peace in a press release. “As a result, no matter where in the country a company operates, it can rely on receiving the same treatment and benefits for voluntarily self-disclosing criminal conduct to a U.S. Attorney’s Office. We hope and expect that companies, as good corporate citizens, will take advantage of this new policy to report criminal misconduct by employees and agents when they become aware of it, so that individual wrongdoers can be held accountable. When they do, they will have far better and more predicable outcomes under this policy.”

Under the new VSD policy, a company is considered to have made a VSD “if it becomes aware of misconduct by employees or agents before that misconduct is publicly reported or otherwise known to the Department of Justice, and discloses all relevant facts known to the company about the misconduct to a USAO in a timely fashion prior to an imminent threat of disclosure or government investigation.” 

If a company appropriately complies with the VSD policy, the potential benefits may be significant, such as: USAO will not seek a guilty plea; USAO may choose not to impose a criminal penalty; if a criminal penalty is imposed, it will not be greater than 50% below the low end of the United States Sentencing Guidelines fine range; and USAO will not impose an independent compliance monitor if the company demonstrates that it has implemented and tested an effective compliance program.

When considering whether the VSD policy is right for your company, you must keep in mind the policy’s three aggravating factors that may warrant a USAO to still seek a guilty plea even if the other requirements of the VSD policy are met: (1) if the misconduct poses a grave threat to national security, public health, or the environment; (2) if the misconduct is deeply pervasive throughout the company; or (3) if the misconduct involved current executive management of the company. Companies may still enjoy the other benefits even if the USAO does seek a guilty plea. 

While the new policy gives companies options, it is important to remember that the policy’s language and nuances provide prosecutors flexibility. Therefore, only time will tell how the new policy will apply in practice. 

Court Enters $487 Million Judgment Against Precision Lens and Owner for Illegal Kickbacks

On Monday, May 15, 2023, a federal judge entered judgment against Defendants Precision Lens and its owner Paul Ehlen in the amount of $487 million for violations of the FCA and AKS. In February 2023, a federal civil jury found Precision Lens and Ehlen liable for paying illegal kickbacks to eye surgeons to induce their use of Precision Lens’s products in cataract surgeries that were reimbursed by Medicare. The jury found that the Defendants submitted 64,575 false claims to Medicare that were tainted by illegal kickbacks, resulting in $43.7 million in damages to Medicare.

Each violation of the FCA at that time carried a minimum civil penalty of $5,000 and the statute mandates treble damages. The court held that the jury had correctly calculated damages, including $358,445,780 in statutory penalties and $131,083,925.13 in treble damages, resulting in the total amount of $487,048,705.13. The Defendants argued that the amount was unconstitutionally excessive given that the value of the related items sold by Precision Lens was only around $4 million, but the court rejected that argument.

At trial, the government proved that the Defendants lavished gifts, travel, and entertainment on the physicians. Some examples include luxury ski, fishing, golfing, hunting, sporting, and entertainment vacations, such as to the Masters golf tournament in Augusta and the College Football National Championship Game in Miami, including travel on private jets. The Defendants also sold frequent flyer miles to the physicians at a significant discount, enabling physicians to travel for well below market rate. The government also proved that Precision Lens maintained a slush fund in furtherance of its kickback scheme. 

The FCA qui tam suit was originally filed in 2013 by a whistleblower, who will receive a percentage of the award. The Defendants indicated that they plan to appeal the verdict.

Improper Billing for Mid-Level Services Results in Agreement to Pay $560k To Settle FCA Allegations

On May 9, 2023, the DOJ announced that a hospital and hospitalist group agreed to settle allegations they violated the FCA. The settlement resolved federal and state allegations. 



According to the press release, between mid-2014 and mid-2020, Yale New Haven Health Services Corp. and Northeast Medical Group, Inc. submitted false claims to the federal government and Connecticut related to the commonly used (and often scrutinized) evaluation and management services. The issues involve proper claim submission and identification of the proper billing provider (i.e., supervising doctor versus mid-level provider.). The federal and state governments accused Yale and Northwest Medical of improperly submitting claims under doctors when a mid-level provider was appropriate. The government alleges that because of the improper billing, Yale and Northwest Medical were paid at a higher rate than if the billing had correctly reflected mid-levels. 

Evaluation and management codes (E/M codes) and billing for mid-level services are topics that many providers and billers find confusing or for which they demonstrate overconfidence in the accuracy of their billing. In reality, it is easy to make mistakes when billing E/M codes and related modifiers. This case serves as a reminder that providers and healthcare entities should perform routine training and self-audits (with the advice of counsel) to ensure billing practices are compliant with federal and state rules.

The government’s announcement also serves as a reminder of two key points. First, the government will use the FCA to pursue cases of potential fraud, despite the size of the case or how minimal and common the alleged improper act occurs. Second, the government continues to rely on whistleblowers. In this case, the settlement resolves a lawsuit brought under the qui tam or whistleblower provisions of the FCA. The qui tam provisions provide financial incentives and a procedural structure to whistleblowers – also called relators – who bring FCA cases on behalf of the government. In this case, the whistleblowers were three former Adobe managers. Providers and healthcare entities should note that the financial incentive to be a whistleblower can be significant, as whistleblowers are entitled to 15% to 30% of the money the government recovers, based on several factors. According to the press release, the relator will receive $106,536 as her share. 

The qui tam case is captioned U.S. ex rel. Cadariu v. Northeast Medical Group et al. (Docket No. 19-cv-904).

LabCorp Settles FCA Allegations for $2.1 Million

Last month, laboratory giant LabCorp agreed to settle allegations that it overbilled the U.S. Department of Defense (DOD) for genetic tests performed by GeneDx, LLC (GeneDx), a third party laboratory used by LabCorp to perform genetic testing for military personnel. These tests included testing that screens for genetic abnormalities in fetuses and parents. 

A former LabCorp employee acted as a whistleblower and bought the claim under the qui tam provisions of the FCA. The whistleblower alleged that LabCorp and DOD entered into a contract wherein LabCorp would perform lab testing for DOD facilities worldwide. However, certain specialized tests, including the genetic testing at issue here, were outsourced by LabCorp to GeneDx. GeneDx would invoice LabCorp, and LabCorp would in turn invoice DOD. 

The allegations are that LabCorp improperly double and triple-billed DOD for the genetic tests performed by GeneDx, and that LabCorp was later unable to locate evidence that supported the invoices. Further, the whistleblower alleged that when LabCorp internally realized it was improperly overbilling DOD, LabCorp declined to return the overpayments and instead only offered a credit for those tests and a pledge to fix the issue going forward. 

There were allegedly $210,959 in overcharges on 38 tests, including $113,525.50 for 21 tests billed between March 2016 and January 2017. LabCorp agreed to settle the allegations for $2.1 million, of which the whistleblower will receive $357,000.

Another Pharmacist Faces Government Enforcement Action

In April 2023, the DOJ announced that a North Carolina Pharmacy agreed to pay more than $213,000 to resolve allegations it violated the FCA. The government alleged that the pharmacy never distributed the prescriptions to beneficiaries, despite submitting claims to government payors for about 200 prescriptions. While the underlying illegal activities may seem modest, some enforcement actions involving pharmacists uncover large brazen illegal activities and involve criminal culpability. A recent DOJ announcement is one such example. 

On May 1, 2023, the DOJ announced that the owner of GoLiveWell Pharmacy admitted paying kickbacks to marketing companies to generate prescriptions in violation of the AKS. The AKS (a criminal statute) prohibits, among other things, knowingly and willfully paying or receiving payment (i.e., anything of value) in exchange for federal healthcare program referrals. The government alleged that the owner had deals with marketing companies where GoLiveWell would pay a percentage of its net profit on prescriptions obtained through the marketing companies, who would run ads and “doctor chase.” Doctor chasing typically involves faxing prescriptions to doctors hoping they inadvertently sign the prescriptions, which ensnares unsuspecting doctors. The percentages paid by GoLiveWell were also significant, with one marketing company receiving 60 percent and another receiving 45 percent of its net profit. “In total, the government alleges that Medicare paid GoLiveWell $4.7 million to which it was not entitled, with another $490,000 coming from Missouri Medicaid and $330,000 from Ohio Medicaid.”

For his role in the kickback scheme, the owner of GoLiveWell Pharmacy pled guilty to two counts of violating the AKS. The owner must pay restitution and faces up to 10 years in prison for each count.

Adobe Agrees to Pay $3 Million to Resolve FCA Allegations

On April 13, 2023, the DOJ issued a press release noting that Adobe agreed to pay $3 million to resolve allegations it paid kickbacks to companies in violation of the AKS and FCA. 

According to the government, Adobe provided companies contracts with the federal government for a percentage of software products purchased under Adobe’s Solution Partner program, which allowed Adobe to acquire favorable treatment. “The United States contends that these payments constituted prohibited kickbacks that resulted in Adobe causing false claims for payment to be submitted to federal agencies.”

The settlement resolves a lawsuit brought under the qui tam or whistleblower provisions of the False Claims Act. The qui tam provisions provide financial incentives and a procedural structure to whistleblowers – or relators – so individuals could bring false claims act cases on behalf of the government. In this case, three former Adobe managers were whistleblowers. The financial incentive can be significant, as whistleblowers are entitled to 15% to 30% of the money the government recovers, based on several factors. According to the settlement agreement, the relators will share $555,000. 

The qui tam case is captioned United States ex rel. Dowless v. Adobe, Inc., Civil Action Number 17-cv-02039 (D.D.C.).

U.K. Citizen Extradited to the U.S. and Pleads Guilty to Cyber Crime Offenses

On May 9, the DOJ announced Joseph James O’Connor, a 23-year-old U.K. citizen, pleaded guilty in New York to his role in cyberstalking and multiple schemes that involve computer hacking, including the July 2020 hack of Twitter.

 O’Connor, aka PlugwalkJoe, was extradited from Spain to the United States on April 26. Prosecutors said his schemes included gaining unauthorized access to social media accounts on Twitter in July 2020 as well as a TikTok account in August 2020. Along with his co-conspirators, O’Connor stole at least $794,000 worth of cryptocurrency.

The 2020 Twitter attack hijacked a variety of verified accounts, including those of Joe Biden, Barack Obama, Kim Kardashian, Bill Gates, Warren Buffett, Benjamin Netanyahu, Jeff Bezos, Michael Bloomberg, Kanye West, and Elon Musk who now owns Twitter.

Assistant Attorney General Kenneth A. Polite, Jr. of the Justice Department’s Criminal Division described O’Connor’s conduct as “flagrant and malicious” and noted that it “impacted multiple people’s lives.” Attorney Polite added “he harassed, threatened, and extorted his victims, causing substantial emotional harm. Like many criminal actors, O’Connor tried to stay anonymous by using a computer to hide behind stealth accounts and aliases from outside the United States.”



In two different cases, O’Connor pleaded guilty to two counts of conspiracy to commit computer intrusions, two counts of committing computer intrusions, making extortive communications, two counts of stalking, making threatening communications, conspiracy to commit wire fraud, and conspiracy to commit money laundering. O’Connor also agreed to forfeit the $794,012.64 and pay restitution to the victims. He is scheduled to be sentenced on June 23, 2023, and faces a total maximum penalty of 77 years in prison.

DOJ Seeks to Shut Down Nine Florida Tax Prepares

Return preparer fraud is one of the IRS’ Dirty Dozen Tax Scams, and the government continues in its efforts to eradicate it as such. Last year, Assistant Attorney General David A. Hubbert advised “taxpayers seeking a return preparer should remain vigilant.” The caution followed the United States’ filing of a complaint in the U.S. District Court for the Southern District of Texas to bar a Houston area tax return preparer from preparing federal income tax returns. In fact, over the past decade, the Department of Justice Tax Division has obtained injunctions against hundreds of tax preparers.

Now, on May 8, DOJ renews that caution in an announcement that the United States filed a complaint seeking to bar nine Florida tax return preparers and their associated business from assisting in the preparing of federal income tax returns for others. 

The complaint alleges that Richard Louis, Teddy Davis, James Merrill, Daniel Ouku, Demetrius Knowles, Harold Bornelus, Joseph Garrett, Marlyne Wah, and Romeo Davis “prepared and filed thousands of federal income tax returns for customers through or in connection with the unincorporated entity known as Taxman.” 

According to the complaint, one scheme used by the defendants was to claim fraudulent Residential Energy Credits on their customers’ tax returns. Louis and Taxman also allegedly falsified and overstated business and itemized deductions on their customers’ tax returns and prepared tax returns for customers claiming the incorrect filing status. As alleged in the complaint, defendants’ pattern of preparing returns that understate their customers’ taxes or that overstate their customers’ refunds has resulted in defendants’ customers receiving refunds to which they are not entitled. The IRS estimates that the United States has lost millions of dollars in tax revenue because of defendants’ actions.

In an effort to combat the impact of return preparer fraud, the IRS offers several resources, including information on its website for choosing a tax preparer, a free directory of federal tax preparers, and information on how to avoid “ghost” tax preparers.

Wisconsin Consulting Firm Owner Pleads Guilty to Tax Scheme

On April 28, the DOJ announced Qasim Khan of Milwaukee, Wisconsin pleaded guilty to willfully filing a false tax return. 



Khan is a businessman who helped secure international business deals for his clients. According to the DOJ, Khan owned and operated Global Focus Partners LLC, a consulting business. Khan successfully brokered contracts between the Kingdom of Saudi Arabia and other businesses located in the United States and abroad. From 2015 to 2017, Khan purportedly reported his income from U.S.-based businesses, but failed to report over $350,000 in payments received from foreign companies in the United Kingdom and the Kingdom of Saudi Arabia. In total, Khan’s omission of foreign-source income from his tax returns caused a tax loss to the IRS of approximately $127,306.

Khan is scheduled to be sentenced on August 15, 2023, and faces a maximum sentence of three years in prison in addition to a period of supervised release, restitution, and monetary penalties.

Two Former Eastern Kentucky Correctional Supervisors Plead Guilty

On April 10, the DOJ announced a former member of Eastern Kentucky Correctional Complex’s (EKCC) internal affairs department pleaded guilty to one count of deprivation of an inmate’s civil rights, and a former EKCC sergeant pleaded guilty to three counts of obstruction of justice for attempting to cover up their roles in the assault of a restrained inmate.

According to their plea agreements, both James D. Benish and Randy L. Nickell acknowledged that on July 24, 2018, they witnessed fellow EKCC correctional officers assault a “non-violent inmate who was lying face-down, wearing handcuffs and leg shackles, and isolated in a prison shower cell.” 

Benish admitted that he was present in the shower during the assault and failed to intervene and protect the inmate, despite having the means and opportunity to do so, in violation of the inmate’s civil rights.

Nickell, who stood outside of the shower while the assault occurred, admitted to omitting the assault from his occurrence report, and to lying to both the supervisor assigned to investigate the incident and to a Kentucky State Police detective. Benish and Nickell are scheduled to be sentenced on December 11. Benish faces a maximum sentence of 10 years in prison. Nickell faces a maximum sentence of 60 years in prison.

Recently, other Kentucky correctional officers have been the focus of similar investigations. In October of 2022, Chilivis Grubman attorneys discussed the superseding indictment against three Kentucky federal correctional officers for assaults against three inmates at the U.S. Penitentiary-Big Sandy. The indictment in that case also alleged that the defendants attempted to conceal the assault by authoring fictitious reports of the incident.