Health Law Daily Wrap Up, FRAUD AND ABUSE—1st Cir.: No violation of constitutional rights where provider repeatedly requested to proceed pro se, (Nov 4, 2026)

By Jeffrey H. Brochin, J.D.

The provider made her choice after she “cycled through” no less than 13 attorneys and having been given warnings regarding waiver of the right to assistance of counsel.

The U.S. Court of Appeals for the First Circuit has affirmed the decision of the district court both as to a provider’s conviction for health care fraud and her sentencing level calculation. After repeatedly requesting to represent herself, the district court made clear to her that she could not come back later to the appeals court (if she were convicted) and complain that her conviction was because she represented herself. The record made clear that her waiver of the right to counsel was made knowingly, voluntarily, and unequivocally, and the First Circuit rejected her contention that she lacked the ability to comprehend those warnings. As to her 144-month sentencing plus fines and restitution, the court found no error in the Presentence Report (PSR) which calculated the Total Offense Level to be 43 plus enhancement (U.S. v. Newton, No. 25-1101 (1st Cir. Oct. 29, 2026)).

Fraud scheme. A jury convicted the health care services provider on one count of conspiracy to commit health care fraud, one count of health care fraud, and three counts of money laundering. The convictions stemmed from a multi-million-dollar home health care fraud scheme according to which the provider’s company, Arbor Homecare Services LLC, fraudulently billed MassHealth, Massachusetts' Medicaid program, for over $99 million. The provider travelled back to her native Kenya from time to time, in the course of which Customs and Border Patrol (CBP) agents suspected that she was transporting ill-gotten cash overseas and that she was using her cell phone to facilitate the scheme. The suspicions were based on interviews that law enforcement agents had conducted with various former employees who indicated that large amounts of money were going to Kenya. Included in the evidence was a receipt for a $1.7 million deposit into a Kenyan bank, and text messages implicating the Arbor fraud scheme.

Following her conviction and sentencing she argued on appeal that she was deprived of her constitutional right to due process by way of the district court permitting her to proceed at trial pro se. For the reasons cited below, the First Circuit rejected her arguments.

“I don’t need a lawyer.” By the First Circuit’s own count, the provider had been represented or assisted by thirteen different attorneys since she was charged in January 2021. She initially retained attorneys, but in January 2022, they notified the court that the relationship had deteriorated. At a later hearing, the provider reiterated her desire to “exercise [her] constitutional right and proceed pro se.” The magistrate judge initiated a colloquy under Faretta v. California, 422 U.S. 806 (1975), to warn the provider of the risks of that choice. The magistrate judge advised her how hard it would be to represent herself, how high the stakes were if she went to trial, and how much of a disadvantage she would be placing herself in. But despite those warnings, she was insistent: "I've made up my mind. I don't need a lawyer. I want to represent myself.” An attorney was then appointed as standby counsel.

Series of standby counsels. After a series of relationships with appointed attorneys had deteriorated, the provider sought to proceed pro se "only until such time as untainted assets are released by the civil court to hire Counsel of Choice.”

Renewal of request for self-representation. At a June 5, 2024, hearing, the district court explained that the provider had three options: (1) represent herself, with standby counsel, (2) go to trial represented by other attorneys, or (3) hire a new lawyer who would be ready in time for trial. The provider chose the first option: "I want to represent myself."

Issues on appeal. Following her conviction, she argued that her convictions should be reversed because the district court violated her constitutional rights by allowing her to proceed pro se at trial and because the court should have suppressed evidence obtained from a search of her cell phone at Logan Airport by CBP. The First Circuit noted that CBP agents have jurisdiction to investigate international cash money laundering, and that warrantless non-routine searches are permitted at the border if agents have a reasonable suspicion that the search will yield evidence of a crime enforced by CBP.

As to her pro se representation, the First Circuit observed that a waiver of the right to counsel will be upheld as long as the record supports a reasoned conclusion that the provider was fully apprised of her right to counsel and of the disadvantages she would encounter should she elect to proceed pro se. However, such waiver must be made knowingly, voluntarily, and unequivocally. In her appeal, the provider claimed that “her particular mental difficulties prevented her from understanding the warning” so that she did not “know what she was doing.” The First Circuit rejected that argument, pointing out the two sets of Faretta warnings she had received as well as the magistrate judge expressly warning her as to the severe disadvantage she would be at if she proceeded without counsel. Accordingly, the First Circuit found that the “knowingly” requirement was satisfied.

Unequivocal waiver. Her argument that her waiver was equivocal, was also rejected because there was no real question that her statements—“I want to represent myself” and “[i]t’s my choice”—were unequivocal. She further argued that the district court erred by forcing a choice between unwanted counsel and self-representation on the eve of trial. However, in some circumstances, courts may force criminal defendants to choose between effective representation by unwanted counsel and proceeding pro se—and this was one such case. Furthermore, by the time the district court presented her with the choice, she had “cycled through” attorneys with regularity, and the matter was on the verge of trial. Therefore, the district court did not need to tolerate unwarranted delays and could at some point require the provider to go to trial even if she was not entirely satisfied with her attorney.

Appeal of sentence. Lastly, the First Circuit considered the provider’s argument that the PSR erroneously calculated her sentence, and that the “sophisticated-means” enhancement should not apply because, since she was born in Kenya, depositing money in a Kenyan bank was not an "offshore" transaction. However, applying the “multifaceted abuse-of-discretion” standard to the claims of guideline errors, the First Circuit upheld the district court’s application of the guidelines. The evidence showed that the provider was responsible for $99,734,000 in losses. The district court therefore properly applied a 24-level enhancement.

The case is No. 25-1101.

Judge: Dunlap, J.

Attorneys: William Breslin Brady, U.S. Attorney’s Office, for the U.S. Dana Lynne Goldblatt (Law Office of Dana Goldblatt) for Faith N. Newton.

MainStory: TopStory CaseDecisions EnforcementNews FraudNews GeneralNews HomeNews ProviderNews MaineNews MassachusettsNews NewHampshireNews PuertoRicoNews RhodeIslandNews