Filed: Oct. 28, 2020
Latest Update: Oct. 28, 2020
Summary: Case: 18-31074 Document: 00515618613 Page: 1 Date Filed: 10/28/2020 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 18-31074 October 28, 2020 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff–Appellee, v. SHELTON BARNES; MICHAEL JONES; HENRY EVANS; PAULA JONES; GREGORY MOLDEN, M.D., Defendants–Appellants. Appeal from the United States District Court for the Eastern District of Louisiana Before OWEN, Chief Judge, and HAYNES
Summary: Case: 18-31074 Document: 00515618613 Page: 1 Date Filed: 10/28/2020 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 18-31074 October 28, 2020 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff–Appellee, v. SHELTON BARNES; MICHAEL JONES; HENRY EVANS; PAULA JONES; GREGORY MOLDEN, M.D., Defendants–Appellants. Appeal from the United States District Court for the Eastern District of Louisiana Before OWEN, Chief Judge, and HAYNES a..
More
Case: 18-31074 Document: 00515618613 Page: 1 Date Filed: 10/28/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-31074 October 28, 2020
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
SHELTON BARNES; MICHAEL JONES; HENRY EVANS; PAULA JONES;
GREGORY MOLDEN, M.D.,
Defendants–Appellants.
Appeal from the United States District Court
for the Eastern District of Louisiana
Before OWEN, Chief Judge, and HAYNES and COSTA, Circuit Judges.
PRISCILLA R. OWEN, Chief Judge:
Shelton Barnes, Michael Jones, Henry Evans, Paula Jones, and Gregory
Molden were convicted of offenses related to Medicare fraud. We affirm.
I
Dr. Shelton Barnes, Dr. Michael Jones, Dr. Henry Evans, Paula Jones,
and Dr. Gregory Molden were each previously employed by Abide Home Care
Services, Inc., a home health agency owned by Lisa Crinel. Barnes, Michael
Jones, Evans, and Molden served as “house doctors.” In that role, the
physicians referred patients to Abide for home health care services. Paula
Jones, Michael Jones’s wife, was one of Abide’s billers. As a biller, Jones would
process Medicare filings. She would use the Kinnser billing system (Kinnser)
Case: 18-31074 Document: 00515618613 Page: 2 Date Filed: 10/28/2020
No. 18-31074
to ensure that all appropriate documentation existed for each bill. As part of
Abide’s business model, it would “provide home health services to qualified
patients and then bill Medicare accordingly.”
Medicare reimburses providers for home health care services if a
particular patient is (1) eligible for Medicare and (2) meets certain
requirements. Those requirements include, inter alia, that the patient is
“‘homebound,’ under a certifying doctor’s care, and in need of skilled services.” 1
Certifying a patient for home health care begins with an initial referral, which
typically originates with the patient’s primary care physician. 2 Next, “a nurse
goes to the patient’s home to assess if [he or] she is homebound, completing an
Outcome and Assessment Information Set [(OASIS)].” 3 From the OASIS
assessment, the nurse develops a plan of care on a form known as a “485” for
the prescribing physician’s review. Only a physician can approve a 485 plan.
Physicians are expected to review the forms to ensure they are accurate. These
forms, as well as a face-to-face addendum certifying that the nurse met with
the patient, are then routed to Medicare. 4 This process permits payment for
one 60-day episode. Patients can then be recertified for subsequent episodes.
Medicare determines how much will be paid for each episode based, in
part, on the patient’s diagnosis. Each diagnosis has a corresponding code
derived from the International Statistical Classification of Diseases and
Related Health Problems 9th Revision (an ICD-9 code). Reimbursements are
higher for some diagnoses than others. So-called “case-mix diagnoses” such as
rheumatoid arthritis, cerebral lipidosis, and low vision, receive higher
payments than other, comparatively simpler diagnoses. As a result, false or
1 United States v. Ganji, 880 F.3d 760, 777 (5th Cir. 2018).
2 Id. at 764.
3 Id.
4 Id.
2
Case: 18-31074 Document: 00515618613 Page: 3 Date Filed: 10/28/2020
No. 18-31074
erroneous entries on the OASIS form can ultimately result in higher Medicare
reimbursements.
The government came to suspect that Abide was committing health care
fraud. Specifically, the government alleged that “Abide billed Medicare based
on plans of care that doctors authorized for medically unnecessary home health
services.” According to the government, several patients who had received
home health care from Abide did not, in fact, need such services. Each
physician had “approved [case-mix] diagnoses to patients on . . . 485s that were
medically unsupported.” Paula Jones had also participated in the scheme.
Through Kinnser, Abide employees were able to predict how much Medicare
would reimburse for a particular episode of home health care. If the episode
did not meet Abide’s “break-even point,” Jones would send “the files back to
the case managers to see if they could get the score up.” These and other
actions “fraudulently inflated Medicare’s reimbursement to Abide.”
Relatedly, the government also came to suspect that Abide was “pay[ing]
doctors, directly or indirectly, for referring patients.” The government alleged
that Crinel (the owner of Abide) had paid the physicians for patient referrals.
Some of these payments were “disguised as compensation for services
performed as [medical directors]” for Abide. The government also alleged that
Paula Jones’s salary, which had doubled during her time working for Abide,
was based on her husband’s referrals. This conduct, the government alleged,
constituted a violation of 42 U.S.C. §§ 1320a-7b(b)(1), (b)(2)—the anti-kickback
statute.
Barnes, Michael Jones, Evans, Paula Jones, and Molden were each
charged with conspiracy to commit health care fraud and conspiracy to violate
the anti-kickback statute. Each physician was also charged with several
counts of substantive health care fraud. Finally, Barnes was charged with
obstructing a federal audit in violation of 18 U.S.C. §§ 2 and 1516. According
3
Case: 18-31074 Document: 00515618613 Page: 4 Date Filed: 10/28/2020
No. 18-31074
to the government, upon learning he was under audit, Barnes falsified
documents to justify his fraudulent certifications.
At trial, Crinel, Wilneisha Jakes (Crinel’s daughter and an Abide
employee), Rhonda Maberry (an assistant manager at Abide), and Eleshia
Williams (Barnes’s biller) testified for the government. Dr. Lutz also testified
for the government. He evaluated the medical records of several of Abide’s
patients and opined as to whether home health care was medically necessary.
The defendants presented several witnesses; Evans also testified in his own
defense. The jury convicted Barnes, Michael Jones, Paula Jones, and Molden
of conspiracy to commit health care fraud and conspiracy to violate the anti-
kickback statute. Barnes, Evans, Michael Jones, and Molden were each found
guilty of several counts of substantive health care fraud. The jury also
convicted Barnes of obstructing a federal audit. Thereafter, each was
sentenced to a term of imprisonment. This appeal followed.
II
We first consider the issues raised by Shelton Barnes.
A
Barnes challenges the sufficiency of the evidence supporting each of his
convictions. “[P]reserved sufficiency-of-the-evidence challenges” are reviewed
de novo. 5 Under that standard, “we review[ ] the record to determine whether,
considering the evidence and all reasonable inferences in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” 6
5 United States v. Gibson, 875 F.3d 179, 185 (5th Cir. 2017) (citing United States v.
Davis,
735 F.3d 194, 198 (5th Cir. 2013)).
6 Id. (alteration in original) (quoting United States v. Vargas-Ocampo,
747 F.3d 299,
303 (5th Cir. 2014) (en banc)); see also United States v. Grant,
683 F.3d 639, 642 (5th Cir.
2012) (“‘The evidence need not exclude every reasonable hypothesis of innocence or be wholly
4
Case: 18-31074 Document: 00515618613 Page: 5 Date Filed: 10/28/2020
No. 18-31074
1
Barnes was convicted on both counts of conspiracy identified in the
indictment. Count 1 alleged that he conspired to commit healthcare fraud, in
violation of 18 U.S.C. §§ 1347 and 1349. Section 1347 punishes “[w]hoever
knowingly and willfully executes, or attempts to execute, a scheme or
artifice . . . to defraud any health care benefit program . . . in connection with
the delivery of or payment for health care benefits, items, or services.” 7 To
convict on Count 1, the government was required to prove: “(1) two or more
persons made an agreement to commit health care fraud; (2) the defendant
knew the unlawful purpose of the agreement; and (3) the defendant joined in
the agreement willfully, that is, with the intent to further the unlawful
purpose.” 8
Count 2 alleged that Barnes conspired with others to “knowingly and
willfully solicit and receive . . . kickbacks and bribes . . . in return for referring
individuals for” Medicare services in violation of 42 U.S.C. §§ 1320a-7b(b)(1),
(b)(2), and 18 U.S.C. § 371. As summarized in United States v. Gibson, the
anti-kickback statute “criminalizes the payment of any funds or benefits
designed to encourage an individual to refer another party to a Medicare
provider for services to be paid for by the Medicare program.” 9 To convict on
Count 2, the government was required to establish: “(1) an agreement between
two or more persons to pursue [the] unlawful objective; (2) the defendant’s
knowledge of the unlawful objective and voluntary agreement to join the
inconsistent with every conclusion except that of guilt,’ in order to be sufficient.” (quoting
United States v. Moreno, 185 F.3d 465, 471 (5th Cir. 1999))).
7 18 U.S.C. § 1347(a).
8 Gibson, 875 F.3d at 185-86 (footnote omitted) (citing United States v. Willett,
751
F.3d 335, 339 (5th Cir. 2014)).
9 Id. at 187 (quoting United States v. Miles,
360 F.3d 472, 479 (5th Cir. 2004)).
5
Case: 18-31074 Document: 00515618613 Page: 6 Date Filed: 10/28/2020
No. 18-31074
conspiracy; and (3) an overt act by one or more of the members of the
conspiracy in furtherance of the objective of the conspiracy.” 10
The sine qua non of a conspiracy is an agreement. 11 We have previously
recognized that “[a]greements need not be spoken or formal.” 12 “[T]he
[g]overnment can use evidence of the conspirators’ concerted actions to prove
an agreement existed.” 13 Nevertheless, “[p]roof of an agreement to enter a
conspiracy is not to be lightly inferred.” 14 “‘Mere similarity of conduct among
various persons and the fact that they have associated with or are related to
each other’ is insufficient to prove an agreement.” 15 “Conspirators do not enter
into an agreement by happenstance . . . .” 16
On appeal, Barnes relies heavily on our previous decision in United
States v. Ganji in arguing that there was insufficient evidence to convict him
of either conspiracy. In Ganji, Elaine Davis, the owner of a home health care
agency, and Dr. Ganji, a physician associated with Davis’s agency, were
charged and ultimately convicted of conspiracy to commit health care fraud
and substantive health care fraud. 17 We reversed on sufficiency-of-the-
evidence grounds. 18 As to each conspiracy conviction, we concluded the
government failed to establish either individual entered into an agreement to
commit health care fraud. 19 Unlike “the vast majority of concert of action
cases,” the government did not produce an “insider” who could testify as to
10 Id. at 187-88
(quoting United States v. Njoku,
737 F.3d 55, 64 (5th Cir. 2013)).
11 See United States v. Ganji, 880 F.3d 760, 767 (5th Cir. 2018).
12 Id.
13 Id.
14 Id. (alteration in original) (quoting United States v. Johnson,
439 F.2d 885, 888 (5th
Cir. 1971)).
15 Id. at 767-68 (quoting United States v. White,
569 F.2d 263, 268 (5th Cir. 1978)).
16 Id. at 768.
17 Id. at 764-66.
18 Id. at 778.
19 Id. at 773.
6
Case: 18-31074 Document: 00515618613 Page: 7 Date Filed: 10/28/2020
No. 18-31074
either Dr. Ganji’s or Davis’s involvement in the alleged conspiracy. 20
Moreover, “[t]he quality and probative strength of the [g]overnment’s
‘concerted action’ evidence in [Ganji fell] well short of the [requisite]
threshold.” 21 As to the substantive health care fraud convictions, we concluded
“there [was] insufficient evidence to show that [either individual] knowingly
executed a scheme to defraud Medicare.” 22 According to Barnes, “[t]he facts
described [in Ganji] are practically identical, or more than substantially so, to
the facts brought out at trial.” We disagree.
As to Count 1, Maberry testified to signing Barnes’s name on 485s, and
to certifying falsely that patients were under Barnes’s care. The jury heard
evidence that Barnes was aware of this conduct. Moreover, Crinel testified
that Barnes was paid for patient referrals, which established a potential
motive for Barnes’s conduct. Importantly, Crinel had also pleaded guilty to
conspiring with Barnes to commit health care fraud. Finally, the government
presented statistical evidence reflecting that Barnes billed for case-mix
diagnoses with significantly greater frequency than other providers in
Louisiana and the country as a whole. As the district court noted, the numbers
are significantly different such that they are “too large to have happened by
chance.” Collectively, this evidence more than sufficiently establishes the
elements of conspiracy.
Regarding Count 2, Wilneisha Jakes’s and Crinel’s testimony provide
sufficient evidence of a conspiracy to violate the anti-kickback statute. During
Jakes’s testimony, she admitted that: (1) Barnes was paid for patient referrals;
(2) his employment agreement was created merely to establish a paper trail;
and (3) she entered into an agreement with Barnes to pay him for his referrals.
20 Id. at 771.
21 Id. at 770; see
id. at 773.
22 Id. at 778 (emphasis added).
7
Case: 18-31074 Document: 00515618613 Page: 8 Date Filed: 10/28/2020
No. 18-31074
Likewise, Crinel testified that Barnes was being paid for patient referrals. As
with Count 1, because she pleaded guilty to conspiring with Barnes to violate
the anti-kickback statute, her testimony regarding Barnes’s role in the
conspiracy was especially probative.
Of course, Barnes’s case bears some similarities to Ganji. But we
strongly disagree with his assessment that his case is “practically identical, or
more than substantially so,” to Ganji. Perhaps the most significant difference
is the fact that this case is one of “the vast majority of concert of action cases[]
[in which] the [g]overnment presents an insider with direct evidence of the
conspiratorial scheme.” 23
2
Counts 3 through 17 each alleged a separate violation of 18 U.S.C.
§ 1347. Counts 3 through 7 concerned patient HaHa; Counts 8 through 10
concerned patient KiSt; and Counts 11 through 17 concerned patient ArGi.
Barnes again relies on Ganji, and specifically this court’s recognition
that to convict a physician of violating 18 U.S.C. § 1347 the prosecution “must
provide evidence that the accused doctor executed a fraudulent scheme with
knowledge that the patient was not homebound.” 24 According to Barnes, his
convictions should be overturned because the government did not produce one
scintilla of evidence that Barnes “knew [HaHa, KiSt, or ArGi were] not
homebound.” 25
Despite Barnes’s contentions, the government presented sufficient
evidence that Barnes knew these patients were not home-health-care eligible.
Maberry, Barnes’s nurse practitioner, told him that not all of the patients he
certified as homebound were, in fact, homebound. Moreover, the substantial
23 Id. at 771.
24 Id. at 777 (emphasis added).
25 Id. at 778
.
8
Case: 18-31074 Document: 00515618613 Page: 9 Date Filed: 10/28/2020
No. 18-31074
evidence presented as to Counts 1 and 2 undermines Barnes’s argument.
Evidence of a financial incentive for home health care referrals and statistical
evidence probative of fraudulent conduct are circumstantial evidence of
Barnes’s knowledge.
Specific evidence relating to each patient reinforces this conclusion. As
to patient HaHa, Maberry testified that HaHa’s billings lacked appropriate
supporting documentation. Dr. Lutz testified that HaHa did not know Barnes
and that several of HaHa’s diagnosis codes were “shuffled” during
recertifications. As to patient KiSt, Barnes lacked records for this patient, and
he never met with her. Maberry, who pleaded guilty to conspiring with Barnes
to commit Medicare fraud regarding KiSt’s home health certification, testified
that 485s had been pre-signed before visiting KiSt. Lastly, as to patient ArGi,
Dr. Lutz testified that Barnes’s patient files for ArGi lacked the documentation
that should have existed if ArGi had the conditions Barnes alleged ArGi had.
Also, Maberry signed Barnes’s signature on several of the relevant 485s
identified in the indictment. In the aggregate, this evidence is more than
sufficient for a reasonable juror to conclude that Barnes’s conduct was
fraudulent.
3
We next consider Barnes’s conviction for obstructing a federal audit in
violation of 18 U.S.C. §§ 2 and 1516. Section 1516 provides the following:
Whoever, with intent to deceive or defraud the United States,
endeavors to influence, obstruct, or impede a Federal auditor in
the performance of official duties relating to a person, entity, or
program receiving in excess of $100,000, directly or indirectly,
from the United States in any 1 year period under a contract or
subcontract, grant, or cooperative agreement, . . . shall be fined
under this title, or imprisoned not more than 5 years, or both. 26
26 18 U.S.C. § 1516(a).
9
Case: 18-31074 Document: 00515618613 Page: 10 Date Filed: 10/28/2020
No. 18-31074
On appeal, Barnes raises two arguments as to why his conviction as to Count
47 should be reversed.
Barnes’s first argument concerns § 1516’s jurisdictional element, which
specifically requires that the conduct in question be directed at “a Federal
auditor in the performance of official duties relating to a person, entity, or
program receiving in excess of $100,000, directly or indirectly, from the United
States in any 1 year period.” 27 Under his proposed interpretation of the
statute, § 1516 can only apply if he received “in excess of $100,000 . . . from the
United States in any 1 year period.” 28 Thus, because no such evidence was
adduced at trial, he is entitled to an acquittal. The government disagrees and
instead argues Barnes’s conviction should be affirmed because Medicare
received in excess of $100,000 from the United States.
Reviewing this question of statutory interpretation de novo, we are
inclined to side with the government. 29 Under a plain-text reading of the
statute, it is telling that an individual violates § 1516 when he or she
“endeavors to influence, obstruct, or impede a Federal auditor in the
performance of official duties relating to a person, entity, or program receiving
in excess of $100,000 . . . from the United States.” 30 In this case, the audit was
undoubtedly related to Medicare, a “program receiving in excess of
$100,000 . . . from the United States.” 31 Further, we are not convinced that
Barnes’s alternative interpretation represents a better reading of the statute.
Under his interpretation, the amount of money received by an alleged violator
would often be the statute’s limiting criterion. Such a result would inherently
27 Id.
28
Id.
29 United States v. Ridgeway,
489 F.3d 732, 734 (5th Cir. 2007) (citing United States
v. Phillips,
303 F.3d 548, 550 (5th Cir. 2002)).
30 18 U.S.C. § 1516(a) (emphasis added).
31 Id.
10
Case: 18-31074 Document: 00515618613 Page: 11 Date Filed: 10/28/2020
No. 18-31074
thwart Congress’s intentions when it comes to enforcing the statute. We
therefore decline to adopt Barnes’s proposed reading of § 1516’s jurisdictional
element. Because there was sufficient evidence to establish § 1516’s
jurisdictional element under the interpretation we adopt today, we reject
Barnes’s first argument concerning Count 47.
Next, Barnes contends there was insufficient evidence he engaged in
obstructive conduct. But the jury heard evidence that Barnes received several
letters from Medicare indicating that he would not be paid for certain Medicare
billings because the billings lacked the appropriate documentation.
Thereafter, he gave over fifty audit letters to Maberry, his nurse practitioner.
He then informed her that they had “received the audit, and in order for him
to get paid[, they] had to complete that audit for Medicare.” In response,
Maberry and Eleshia Williams, Barnes’s biller, completed paperwork in order
to justify these billings. Some documents were falsified to do so. Both Maberry
and Williams testified that Barnes was aware of these actions. According to
Maberry, Barnes had implied that they should take such actions. Moreover,
she testified that she falsified, and Barnes signed, care plan log sheets in
response to the audit. Williams noted that Barnes had observed and tacitly
approved of Maberry signing his name on medical documentation as part of
the audit.
We agree with the government that logical and reasonable inferences
from this evidence would enable a reasonable juror to conclude that Barnes
acted “with intent to deceive or defraud the United States,” 32 as required by
§ 1516(a), or that he acted “with the intent to facilitate” the offense’s
commission, as required by § 2. 33
32 Id.
33 See Rosemond v. United States,
572 U.S. 65, 70-71 (2014) (quoting Cent. Bank of
Denver, N.A. v. First Interstate Bank of Denver, N.A.,
511 U.S. 164, 181 (1994)).
11
Case: 18-31074 Document: 00515618613 Page: 12 Date Filed: 10/28/2020
No. 18-31074
B
Barnes asserts that the prosecutor made improper comments during
closing arguments. During those arguments, Paula Jones’s attorney
challenged the credibility of Dr. Lutz, the government’s expert witness.
Specifically, her attorney stated:
Dr. Lutz may not be going where his grandfather was going. His
grandfather may go to church, Dr. Lutz goes to Galatoire’s. There’s
a big difference. When I listen to him, it was almost like an
aristocratic arrogance of saying, okay, we have all these problems
in New Orleans, but I’m going to be at Galatoire’s and I’m going to
write out a big prescription -- Weight Watchers for everybody.
That’s going to solve all our problems, as he takes another sip of
his martini. That’s an aristocratic arrogance. Never seen the
patients, never go down to the areas of the city that need it.
The reference to Galatoire’s, a restaurant in the French Quarter, stemmed
from Dr. Lutz’s testimony during trial that he does not eat at Galatoire’s on
Fridays during lunch because “[t]here’s too many attorneys” there.
The government responded to the defense’s comments during their
rebuttal argument. The prosecutor specifically stated:
He is not an elitist. He worked for the City of New Orleans when
these defendants, these elite defendants probably weren’t out of
medical school. He worked for the City of New Orleans in home
health for the inner city. So that’s offensive that this man can’t go
out and have a martini at a place he said he did. Well, he won’t
because these defense attorneys are there.
The defense objected to the remarks at a bench conference, but the court did
not take any action. The court did note during post-trial motions that such
comments were “improper.” However, it went on to state that no action was
necessary because “the jury was presented with abundant evidence of
[Barnes’s] guilt” and the comments were but a small part of a long trial.
On appeal, Barnes alleges the prosecutor’s comments were “offensive
and inflammatory.” He argues the comments invoked class-stereotypes by
12
Case: 18-31074 Document: 00515618613 Page: 13 Date Filed: 10/28/2020
No. 18-31074
referring to the defendants as elitist and impugned the integrity of defense
counsel. According to him, the comments were “so wrong[] that speculation on
whether it had an impact on the jury need not be suggested.” We agree the
comments were improper but believe such comments did not affect Barnes’s
substantial rights. We therefore decline his request for a new trial.
We apply a two-step process when evaluating the propriety of a
prosecutor’s comments during closing arguments. First, this court “initially
decide[s] whether . . . the prosecutor made an improper remark.” 34 “Second,
‘[i]f an improper remark was made, we must then evaluate whether the remark
affected the substantial rights of the defendant.’” 35 Courts consider “(1) the
magnitude of the prejudicial effect of the prosecutor’s remark, (2) the efficacy
of any cautionary instruction by the judge, and (3) the strength of the evidence
supporting the conviction.” 36 De novo review applies to the first inquiry. 37 In
contrast, “the question of whether . . . the defendant’s substantial rights were
affected [is reviewed] under the abuse of discretion standard.” 38
As to the first part of the analysis, the district court correctly held that
the prosecutor’s comments were improper. The prosecutor’s description of the
defendants as elitists was arguably in response to the defense’s initial attacks
against Dr. Lutz. But even assuming that comment was appropriate, no
similar justification validates the prosecution’s comments aimed at defense
counsel. Attacking defense counsel was unwarranted, unprovoked, and
34 United States v. McCann, 613 F.3d 486, 494 (5th Cir. 2010) (quoting United States
v. Gallardo-Trapero,
185 F.3d 307, 320 (5th Cir. 1999)).
35 Id. (alteration in original) (quoting
Gallardo-Trapero, 185 F.3d at 320).
36 United States v. Bennett, 874 F.3d 236, 254 (5th Cir. 2017) (quoting United States
v. Weast,
811 F.3d 743, 752 (5th Cir. 2016)).
37 McCann, 613 F.3d at 494.
38 Id.
13
Case: 18-31074 Document: 00515618613 Page: 14 Date Filed: 10/28/2020
No. 18-31074
irrelevant. The district court therefore correctly concluded that the
prosecution’s remarks during rebuttal were improper.
Nevertheless, these comments did not affect Barnes’s substantial rights.
Viewed in context, the comments were not overly prejudicial and were unlikely
to inflame the passions of the jury. 39 Moreover, these comments were but a
small part of a significant trial. Admittedly, the judge did not provide a specific
curative instruction concerning the prosecutor’s comments. Yet the case
against Barnes was strong. As the district court aptly stated, “it strains
credulity to argue that this offhand comment—a few seconds in a four-week
trial—had a prejudicial impact on [Barnes’s] substantial rights.” We therefore
decline Barnes’s request for a new trial as a result of the prosecutor’s improper
comments during closing arguments.
C
Barnes challenges the district court’s refusal to admit patient consent
forms into evidence. Dr. Lutz testified as an expert for the government that
several patients treated by the physicians in this case “had no business being
in home health.” During Dr. Lutz’s testimony, Barnes sought to introduce
consent forms “signed by patients KiSt, HaHa[,] and ArGi in which those
patients acknowledge they are homebound.” The district court refused to
admit this evidence. It concluded that: (1) the forms constituted hearsay that
was inadmissible under Rule 803(4) (medical records exception) or Rule 807
(residual exception); (2) the forms were inadmissible “under Rules 703 or 705,
as Dr. Lutz did not rely on the documents in forming his opinion, and did not
use the documents as underlying facts or data;” and (3) the evidence was
39 See United States v. Phea, 755 F.3d 255, 267-68 (5th Cir. 2014).
14
Case: 18-31074 Document: 00515618613 Page: 15 Date Filed: 10/28/2020
No. 18-31074
inadmissible even for impeachment purposes because the forms “were not prior
inconsistent statements by Dr. Lutz.”
On appeal, Barnes contends these documents were admissible hearsay
and were admissible for the purposes of impeaching Dr. Lutz’s testimony. We
review “evidentiary rulings for abuse of discretion.” 40 “A district court abuses
its discretion when its ruling is based on an erroneous view of the law or a
clearly erroneous assessment of the evidence.” 41 If the district court did abuse
its discretion, any resulting error is “subject to harmless error review.” 42 “A
reversal will not be warranted unless the defendant shows ‘that the district
court’s ruling caused him substantial prejudice.’” 43 Applying this framework,
the district court did not abuse its discretion when it refused to admit the
consent forms into evidence.
First, the forms were inadmissible as hearsay evidence. The evidence
did not qualify for admission under Rule 803(4). That exception requires that
the statements be “made for—and [are] reasonably pertinent to—medical
diagnosis or treatment.” 44 Here, though, the statements (i.e., the forms)
address criteria for home health care, not a specific medical diagnosis or
treatment. The forms were also inadmissible under Rule 807 because they
lacked indicia of reliability: 45 As the district court noted, “the nurses who
signed the forms [or provided them to the patients for their signature] either
pleaded guilty to health care fraud or were otherwise implicated in the fraud.”
40 United States v. Gluk, 831 F.3d 608, 613 (5th Cir. 2016) (citing United States v. El-
Mezain,
664 F.3d 467, 494 (5th Cir. 2011)).
41 Will. v. Manitowoc Cranes, L.L.C.,
898 F.3d 607, 615 (5th Cir. 2018) (quoting
Heinsohn v. Carabin & Shaw, P.C.,
832 F.3d 224, 233 (5th Cir. 2016)).
42 Gluk, 831 F.3d at 613 (citing
El-Mezain, 664 F.3d at 494).
43 El-Mezain, 664 F.3d at 494 (quoting United States v. Bishop,
264 F.3d 535, 546 (5th
Cir. 2001)).
44 FED. R. EVID. 803(4).
45 See FED. R. EVID. 807.
15
Case: 18-31074 Document: 00515618613 Page: 16 Date Filed: 10/28/2020
No. 18-31074
Second, the evidence was inadmissible under Rules 703 and 705 because
Dr. Lutz did not rely on those forms in making his opinion. 46 Finally, the forms
were inadmissible as prior inconsistent statements. As the district court noted,
the patients made the statements (i.e., filled out and signed the forms), not Dr.
Lutz. Because Dr. Lutz did not originally make the statements, they could not
be used to impeach his credibility. 47
Having addressed and rejected each of Barnes’s arguments as to why the
patient consent forms were admissible, we express no further opinion as to
whether the forms may have been admissible under any other legal theory. 48
Accordingly, the district court did not abuse its discretion when it refused to
admit the proffered consent forms into evidence.
D
At trial, Barnes sought to have several Medicare regulations read to the
jury as instructions. These regulations covered a variety of topics, including,
inter alia, (1) a list of services available to patients eligible for home health
care, (2) the certification requirements necessary for a patient to receive home
health care, (3) permissible financial relationships between physicians and
health care agencies, and (4) Medicare’s guidance concerning the frequency of
face-to-face meetings between physicians and their home-health patients.
The district court ultimately declined to read those instructions to the
jury. It was “particularly concerned about committing error by instructing the
46 See FED. R. EVID. 703, 705.
47 See FED. R. EVID. 613(b) (“Extrinsic evidence of a witness’s prior inconsistent
statement is admissible only if the witness is given an opportunity to explain or deny the
statement and an adverse party is given an opportunity to examine the witness about it, or
if justice so requires.” (emphasis added)).
48 See Grogan v. Kumar, 873 F.3d 273, 277 (5th Cir. 2017) (“[T]his court typically ‘will
not consider evidence or arguments that were not presented to the district court for its
consideration . . . .’” (quoting Skotak v. Tenneco Resins, Inc.,
953 F.2d 909, 915 (5th Cir.
1992))).
16
Case: 18-31074 Document: 00515618613 Page: 17 Date Filed: 10/28/2020
No. 18-31074
jury on the meaning of the Medicare regulations in a criminal trial,” relying
heavily on this court’s decision in United States v. Christo. 49 In Christo, the
prosecution presented “evidence and argument concerning violations of [a civil
regulatory statute]” 50 during a criminal trial focusing on “misapplication of
bank funds.” 51 We reversed the defendant’s convictions after noting the
prejudicial effect of “bootstrap[ping] a series of . . . civil regulatory violation[s]”
into a criminal trial. 52 “The trial court’s instructions and emphasis on [the civil
regulatory statute],” we noted, “served only to compound the error by
improperly focusing the jury’s attention to the prohibitions of [the civil
regulatory statute].” 53 Concluding that Christo controlled, the trial judge here
refused to read Barnes’s requested instructions. Importantly, though, the
substance of those instructions was brought to the jury’s attention numerous
times. The actual Medicare regulations upon which the proposed instructions
were based “were admitted into evidence without objection and provided to the
jury.” The judge also permitted defense counsel to argue the substance of these
instructions during closing arguments.
On appeal, Barnes asserts the district court erred when it refused to read
the proffered instructions. According to him, “[j]ust having these complex
regulations used and battered about during the trial, when they formed the
heart and soul of the defense, was not adequate.” The judge, as a neutral and
detached party, should have provided the jury with guidance on these
regulations. Moreover, he argues the district court’s reliance on Christo was
inappropriate. Unlike in Christo, “the government [in this case was not]
attempting to use regulations to sustain its burden of proof.” Christo is
49 614 F.2d 486 (5th Cir. 1980).
50 Id. at 492.
51 Id. at 488.
52 Id. at 492.
53 Id.
17
Case: 18-31074 Document: 00515618613 Page: 18 Date Filed: 10/28/2020
No. 18-31074
distinguishable, Barnes asserts, because in this case the defense requested the
instruction. Thus, in Barnes’s estimation, the district court’s refusal to provide
the requested instructions constitutes error.
There is no error in the district court’s refusal to read the proffered
instructions to the jury. “Whe[n], as here, the defense requested a jury
instruction and the request was denied, we review the denial for abuse of
discretion.” 54 “A district court abuses its discretion by failing to issue a
defendant’s requested instruction if the instruction (1) is substantively correct;
(2) is not substantially covered in the charge given to the jury; and (3) concerns
an important point in the trial so that the failure to give it seriously impairs
the defendant’s ability to present effectively a particular defense.” 55
We assume without deciding that the proffered instructions were
“substantively correct” and “not substantially covered in the charge given to
the jury.” 56 Nevertheless, the refusal to read the instructions did not impair
Barnes’s “ability to present effectively a particular defense.” 57 As the district
court outlined, the jury was amply aware of the Medicare regulations and their
importance to this case. The district court also properly relied on Christo. It
is not difficult to imagine a jury confusing the standards articulated in the
Medicare regulations with the appropriate legal standard in a criminal case.
These risks are present irrespective of whether the government or the defense
requests these types of instructions. We express no opinion whether it would
have constituted an abuse of discretion if the judge had actually read the
proffered instruction at the defense’s behest. But given the wide latitude
54 United States v. Bennett, 874 F.3d 236, 242 (5th Cir. 2017) (quoting United States
v. Bowen,
818 F.3d 179, 188 (5th Cir. 2016) (per curiam)).
55 Id. at 242-43 (internal quotation marks omitted) (quoting United States v. Sheridan,
838 F.3d 671, 672-73 (5th Cir. 2016)).
56 Id. at 243 (quoting
Sheridan, 838 F.3d at 673).
57 Id. (quoting Sheridan, 838 F.3d at 673).
18
Case: 18-31074 Document: 00515618613 Page: 19 Date Filed: 10/28/2020
No. 18-31074
district courts have to effectively preside over criminal trials, we conclude the
district court did not abuse its discretion in this case when it refused to read
Barnes’s proffered instructions to the jury.
III
Michael Jones contends there was insufficient evidence to convict him of
conspiracy to commit health care fraud (Count 1), conspiracy to violate the
anti-kickback statute (Count 2), and seven counts of substantive health care
fraud (Counts 18 and 22 through 27). Count 18 alleged fraud concerning
patient ArGi; Counts 22 through 26 concerned patient LiSc; and Count 27
concerned patient EvLa.
A
Jones asserts many of the same arguments as his co-defendants and
likewise relies heavily on Ganji. As to Count 1, the circumstantial evidence
offered against Jones was sufficient to convict him of conspiracy to commit
health care fraud. Like many of the other defendants, Jones had a financial
incentive to refer patients to home health care. From this evidence, the jury
could reasonably infer that Jones had a motive to falsify health care
certifications. Statistical evidence reflected that Jones diagnosed patients
with certain conditions significantly more often than other doctors. The jury
also heard substantial evidence that Jones himself certified patients for home
health care even when those patients were ineligible for such services. Finally,
Crinel pleaded guilty to conspiring with Jones to commit health care fraud.
Together, this evidence is far stronger than that presented in Ganji; it is more
than enough to find Jones guilty of conspiracy to commit health care fraud.
Similarly, the record contains ample evidence that Jones agreed to
violate the anti-kickback statute. Crinel’s testimony alone suffices. According
to Crinel, Jones told her that if she increased Paula Jones’s salary, “he would
send patients to substantiate her salary being increased.” From this
19
Case: 18-31074 Document: 00515618613 Page: 20 Date Filed: 10/28/2020
No. 18-31074
testimony, the jury was more than justified in finding Jones guilty of
conspiracy to violate the anti-kickback statute.
B
As to whether there was insufficient evidence to find him guilty on
Counts 18 and 22 through 27, Jones does not appear to contest that the patient
named in each count was ineligible for home health services. Instead, he
contends there was insufficient evidence he knew the patients were ineligible
when he certified them for such services, thereby preventing him from being
convicted of health care fraud.
However, the previously addressed statistical evidence and his financial
motive to falsify certifications are both circumstantial proof of knowledge.
Jones likewise told one of his employees that Crinel was not receiving the
number of patients she expected and that the employee needed “to schedule
more health fairs” in order “[t]o find patients.” This evidence suggests that
Jones’s unnecessary referrals were done with intent to deceive. 58 Considered
together, this evidence is sufficient for a jury to conclude that Jones’s actions
were fraudulent.
IV
Henry Evans was convicted of five counts of substantive health care
fraud. Count 31 concerned patient JoWi and Counts 43 through 46 concerned
patient MaGr. He challenges his convictions and his sentence.
A
Whether there was sufficient evidence to convict Evans as to Count 31 of
the indictment is complicated by the fact that both Evans and the government
58 See United States v. Gibson, 875 F.3d 179, 186 (5th Cir. 2017) (indicating that a
persistent focus on the number of patients being referred for health care services can be
indicative of fraudulent intent).
20
Case: 18-31074 Document: 00515618613 Page: 21 Date Filed: 10/28/2020
No. 18-31074
confused the true identity of patient JoWi. In 2009, Evans had originally
treated a patient named JoWi (JoWi1). In 2013, he was asked to certify a
different patient with the same first and last name as JoWi1 for home health
care (JoWi2). Evans did so without meeting her. According to his trial
testimony, he had certified JoWi2 for home health care under the mistaken
belief that she was in fact JoWi1.
During the investigation of this case, the case agent discovered the 2013
JoWi2 home health certification. The case agent mistakenly believed that
JoWi2 and JoWi1 were one in the same and that Evans had certified JoWi1 for
home health care when he had not seen her since 2009. As a result, the
government alleged the following in the indictment:
Medicare Beneficiary JoWi: It was further part of the scheme to
defraud that Medicare beneficiary JoWi began home health at
Abide after she was referred by her treating physician to home
health for wound care after a hospitalization. Beginning in July
2013, E[vans] began certifying JoWi for home health at Abide,
even though the last documented visit E[vans] had with JoWi was
in October 2009. E[vans] certified JoWi for at least two (2)
additional episodes of home health at Abide between July 2013 and
February 2014.
At trial, the case agent attempted to clarify the issue for the jury. Evans
reinforced his understanding of events when he testified in his own defense.
On appeal, Evans contends the aforementioned confusion led to either
an impermissible constructive amendment of the indictment or a sufficiency-
of-the-evidence issue.
1
Evans argues that the indictment’s confusion between JoWi1 and JoWi2
resulted in a constructive amendment of the indictment in violation of the Fifth
Amendment of the Constitution. But Evans only fully addresses the merits of
this argument in his reply brief. It is well settled in this circuit that “a
21
Case: 18-31074 Document: 00515618613 Page: 22 Date Filed: 10/28/2020
No. 18-31074
defendant waives an issue if he fails to adequately brief it.” 59 We consequently
do not consider this issue.
2
Evans contends that the confusion about JoWi resulted in a sufficiency-
of-the-evidence issue. Evans argues that if Count 31 referenced JoWi1, there
was no evidence he ever fraudulently certified her for home health care. Thus,
he could not be convicted on that count. He also argues that the same result
holds if Count 31 referenced JoWi2 because there was insufficient evidence to
prove the conduct was criminal. He argues there was no evidence showing that
JoWi2 was ineligible for home health care or that his certification of her for
home health care was done with the requisite fraudulent intent. Additionally,
Evans argues his “mistake of fact” defense—namely, that he mistook JoWi1 for
JoWi2—prevents him from being convicted. Evans is not entitled to relief
under either premise.
As an initial matter, we note that we need not and therefore do not
address whether there was sufficient evidence introduced as to Count 31 if that
count was intended to refer to JoWi1. The indictment can be read to suggest
Count 31 intended to reference JoWi1. But any resulting confusion in the
indictment as to the “true identity” of JoWi was eliminated at trial once the
government’s case agent and Evans himself testified. At that point, all parties
involved—including the jury—understood Count 31 concerned JoWi2, and
specifically, that the issue was whether the certification pertaining to that
patient constituted fraud. Because the jury in this case was amply aware that
Count 31 turned on whether the JoWi2 billing was fraudulent, we need only
consider whether sufficient evidence was offered to support that count.
59 See United States v. Martinez, 263 F.3d 436, 438 (5th Cir. 2001).
22
Case: 18-31074 Document: 00515618613 Page: 23 Date Filed: 10/28/2020
No. 18-31074
The jury heard evidence that Evans twice certified JoWi2 as homebound,
under his care, and in need of skilled services even though he had never met
her. There was evidence suggesting that certification was done with
fraudulent intent. The circumstances surrounding the JoWi certification were,
to say the least, suspicious. Evans’s defense to this claim amounted to a self-
serving admission that he mistakenly believed JoWi2 to be JoWi1—a patient
he had not seen or treated in nearly five years. The jury was entitled to judge
Evans’s veracity and to reach the opposite conclusion. Moreover, the inference
of fraud that arises from the suspicious circumstances surrounding JoWi’s
certification becomes only stronger when one considers the ample evidence
offered at trial that Evans had knowingly and falsely certified another patient,
MaGr, as homebound. Upon collectively viewing this evidence, “it was not
unreasonable for the jury to discredit Evans’[s] self-serving testimony, draw
rational inferences from [his] actions, and find him guilty [on Count 31].”
Contrary to Evans’s arguments, the record contained sufficient evidence to
establish each element of the charged offense.
B
For Counts 43 through 46, the indictment specifically alleged that Evans
fraudulently billed Medicare for two episodes of home health care, the first
episode beginning on April 1, 2012 and the second on November 27, 2012. The
Medicare Part A and Medicare Part B billings for each of those episodes
constituted the four relevant counts. As to why these billings were fraudulent,
the indictment alleged: (1) “Evans falsely certified [diagnosis codes] on MaGr’s
485s that were not medically supported in his treatment of MaGr;” (2) Evans
certified MaGr for two episodes of home health care even though she did not
qualify for home health care; and (3) Evans billed Medicare for care plan
oversight of patients in home health care for 30 minutes or more each month
despite the fact that he did not provide the requisite services.
23
Case: 18-31074 Document: 00515618613 Page: 24 Date Filed: 10/28/2020
No. 18-31074
Importantly, the theories of fraud identified in the indictment are merely
theories as to why each billing constituted fraud. When evaluating the
sufficiency of the evidence, we are concerned with the “essential elements of the
crime.” 60 Thus, on appeal, Evans must demonstrate insufficient evidence of
each of these three allegations in order to merit a reversal.
The jury heard evidence demonstrating that, despite Evans’s
certifications to the contrary, MaGr was ineligible for home health care. Dr.
Lutz provided testimony that MaGr “didn’t seem to have any trouble getting
around.” Dr. Lutz also noted that there was no “indication in any medical
record that supports [classifying MaGr as] homebound.” Dr. Lutz stated that
MaGr was certified for thirty-two episodes of care. He conceded that MaGr
may have qualified for services at some point. Nevertheless, she did not need
skilled nursing services continuously for that period. Coupled with the fact
that Evans had a financial interest in home health referrals, there was
sufficient evidence to establish that the two Medicare Part A billings and two
Medicare Part B billings identified in Counts 43 through 46 constituted fraud.
C
Evans asserts that the district court erred when it allowed Dr. Lutz to
testify as an expert witness. Dr. Lutz testified on behalf of the government as
“an expert in the field of internal medicine and the medical necessity of home
health services.” Out of the presence of the jury, the government presented
Dr. Lutz’s qualifications to the court. The prosecution elicited, inter alia, that
Dr. Lutz: (1) received his medical doctorate from Tulane University School of
Medicine and a master’s degree in public health from Tulane University School
of Public Health and Tropical Medicine; (2) previously served as the Director
60 Gibson, 875 F.3d at 185 (emphasis added) (quoting United States v. Vargas-Ocampo,
747 F.3d 299, 303 (5th Cir. 2014) (en banc)).
24
Case: 18-31074 Document: 00515618613 Page: 25 Date Filed: 10/28/2020
No. 18-31074
of Health for the City of New Orleans; (3) received numerous awards
throughout his career; and (4) had previously taught at Tulane University.
The defense challenged Dr. Lutz’s qualifications by eliciting, inter alia, that
(1) he had never before testified “regarding the medical necessity [of] home
health services;” (2) he had “never studied home health;” and (3) that Dr. Lutz
had never seen several of the patients about whom he was called upon to
testify. The judge qualified Dr. Lutz as an expert.
Dr. Lutz testified on a variety of subjects. He provided insight into the
various medical conditions identified in each patient’s file, pointed out
apparent contradictions between a physician’s proposed treatment plan and
the patient’s complaints, and addressed whether a patient needed skilled
nursing services. Dr. Lutz also testified that the patients identified in the
indictment “may have needed home health for short periods of time, but none
of them needed it for the continuous periods of time that [they] were
consistently certified and recertified for.” He was subject to vigorous cross-
examination by defense counsel.
On appeal, Evans contends that the admission of Dr. Lutz’s testimony
constituted error. Evans’s primary contention is that “Dr. Lutz’s
testimony . . . [was] not based on the ‘reliable principles and methods’ relevant
to this case—the Medicare regulations.” He specifically points to a bench
conference in which counsel for the government acknowledged that (1) Dr. Lutz
was not asked “anything about the regulations” during direct examination and
(2) knowledge of the regulations was “out of [Dr. Lutz’s] experience.” Evans
notes that the district court acknowledged that Dr. Lutz was not qualified to
speak about the relevant regulations. Addressing Dr. Lutz’s testimony, the
court noted the following:
But he hasn’t testified -- all he -- he has said in his opinion as a
doctor making a decision about whether someone needs home
25
Case: 18-31074 Document: 00515618613 Page: 26 Date Filed: 10/28/2020
No. 18-31074
health care services, that that would have an impact on his
thoughts about whether they needed it. Now, whether that
technically under the Medicare regulations affects the
determination, I don’t think this witness is qualified to testify
about that.
Evans argues that “[t]he district court’s statement is remarkable, given that
Dr. Lutz had just finished two days of testimony as the [g]overnment’s ‘expert,’
[during which] he stated definitively that in his expert opinion the eight
patients named in the indictment were not ‘homebound.’”
Evans also alleges Dr. Lutz had a “highly flawed view of home health
care.” Evans points to transcript excerpts in which Dr. Lutz acknowledges that
his definition of “homebound” differs from Medicare’s:
My definition -- or my thinking of homebound is when somebody
has an illness where they literally can’t get out of the house
without doing an ambulance or something, or where it takes an
army or a village or something to get them out. I think that the --
I think that the Medicare definition that you’re talking about in
Chapter 7 is liberal and allows home health care to a larger
number of people . . . .
This testimony is concerning, Evans argues, because he “was being tried for
fraudulently violating the Medicare regulations[,] not violating Dr. Lutz’s
personal definition of ‘homebound.’” He alleges that “an opinion divorced from
[Medicare’s] regulation[s] is unreliable and therefore, inadmissible.” The
district court’s refusal to read the applicable Medicare regulations to the jury,
Evans contends, “compounded” the error created by admitting Dr. Lutz’s
testimony.
When evaluating the propriety of expert testimony, we turn to the
Federal Rules of Evidence, which dictate the admission of expert testimony in
federal trials. Under Rule 702, “[a] witness who is qualified as an expert by
knowledge, skill, experience, training, or education may testify in the form of
an opinion or otherwise if:” (1) the testimony is helpful to the trier of fact,
26
Case: 18-31074 Document: 00515618613 Page: 27 Date Filed: 10/28/2020
No. 18-31074
(2) “the testimony is based on sufficient facts or data,” (3) “the testimony is the
product of reliable principles and methods,” and (4) “the expert has reliably
applied the principles and methods to the facts of the case.” 61 Thus, “[e]xpert
testimony is admissible only if it is both relevant and reliable.” 62
“A trial court’s decision to admit expert evidence is reviewed for abuse of
discretion.” 63 As a general matter, district courts are afforded “wide latitude”
when it comes to the admissibility of expert testimony. 64 Thus, this court will
only disturb the district court’s decision to admit expert testimony if the
decision was “manifestly erroneous.” 65 “A manifest error is one that ‘is plain
and indisputable, and that amounts to a complete disregard of the controlling
law.’” 66 Even if this court concludes the district court did err when it admitted
expert testimony, this court will not reverse a defendant’s conviction if the
error was harmless. 67
Here, the district court’s decision to admit Dr. Lutz’s testimony did not
constitute an abuse of discretion. Evans’s contentions on appeal turn on the
scope of Dr. Lutz’s testimony. As previously stated, Dr. Lutz was allowed to
offer his opinions as “an expert in the field of internal medicine and the medical
necessity of home health services.” Within those parameters, Dr. Lutz was
qualified to testify about a variety of topics. After reviewing a relevant
patient’s medical records, he was capable of (1) defining medical terminology,
(2) identifying apparent contradictions between a physician’s treatment plan
61FED. R. EVID. 702.
62United States v. Hodge, 933 F.3d 468, 477 (5th Cir. 2019) (quoting Pipitone v.
Biomatrix, Inc.,
288 F.3d 239, 244 (5th Cir. 2002)).
63 Puga v. RCX Sols., Inc., 922 F.3d 285, 293 (5th Cir. 2019) (citing Knight v. Kirby
Inland Marine Inc.,
482 F.3d 347, 351 (5th Cir. 2007)).
64 Id. (quoting Watkins v. Telsmith, Inc.,
121 F.3d 984, 988 (5th Cir. 1997)).
65 Id. (quoting Watkins, 121 F.3d at 988).
66 Id. (quoting Guy v. Crown Equip. Corp.,
394 F.3d 320, 325 (5th Cir. 2004)).
67 United States v. Wen Chyu Liu, 716 F.3d 159, 167 (5th Cir. 2013) (citing Kanida v.
Gulf Coast Med. Pers. LP,
363 F.3d 568, 581 (5th Cir. 2004)).
27
Case: 18-31074 Document: 00515618613 Page: 28 Date Filed: 10/28/2020
No. 18-31074
and a patient’s complaints, (3) opining as to whether a patient needed skilled
nursing care, and (4) analyzing whether a patient’s medical file supported his
or her physician’s conclusion that he or she suffered from a particular
condition. A medical doctor with Dr. Lutz’s experience can answer questions
about these topics after reviewing an individual patient’s medical records. The
district court did not abuse its discretion to the extent it permitted Dr. Lutz to
testify about these subjects.
Whether Dr. Lutz was qualified to testify about the “medical necessity of
home health services” is a more difficult question. Although the record is not
entirely clear, the district court appears to have drawn a distinction between
“the medical necessity of home health services” and whether the patient
qualified for home health care under Medicare. For example, the district court
noted the following during a bench conference:
So [Dr. Lutz] was qualified as an expert in internal medicine and
the medical necessity of home health services, which I interpreted
to mean this was for -- and his testimony was more about, would
this -- does this person need someone to come to their home?
Would it be good for them for someone to come to their home as
opposed to them going to the doctor’s office? But he was not, he
was not qualified as an expert in Medicare regulations and he
wasn’t questioned about that.
The district court ruled that Dr. Lutz could offer his opinion as a practitioner
as to whether a particular patient needed home health care. In contrast, Dr.
Lutz could not testify about whether a particular patient qualified for home
health care under Medicare.
Allowing Dr. Lutz to testify about whether he believed a patient was
homebound arguably may have injected confusion at trial. Evans correctly
notes that “whether a patient is ‘homebound[]’ . . . is a medico-legal
determination.” To the extent that the Medicare regulations provide guidance
28
Case: 18-31074 Document: 00515618613 Page: 29 Date Filed: 10/28/2020
No. 18-31074
as to which patients qualify as homebound, it is akin to a term of art. But the
word also has meaning outside of these parameters.
At numerous times throughout Dr. Lutz’s testimony, Dr. Lutz noted that
certain patients were not homebound. But, for many of these occasions, Dr.
Lutz failed to clarify whether his determination was based on his own
definition of homebound or on Medicare’s. Dr. Lutz’s testimony as to his
comparatively conservative view of home health care’s requirements only
served to further complicate the matter. For borderline cases, there thus
existed a very real possibility that a patient would have qualified for home
health care under Medicare while also not being homebound under Dr. Lutz’s
standard. In these instances, Dr. Lutz’s determinations as to the homebound
status of these patients could have, at a minimum, confused the jury. At worst,
his determinations could have misled them. Nevertheless, the fact that Dr.
Lutz’s determinations could have confused or potentially misled the jury fails
to amount to an abuse of discretion by the trial court.
The fact that some of Dr. Lutz’s testimony may have been potentially
misleading or confusing comes close, but ultimately does not amount to a “plain
and indisputable” error. 68 Nor can we conclude it rises to the level of “a
complete disregard of the controlling law.” 69 We are certainly troubled by some
aspects of Dr. Lutz’s testimony. Nevertheless, we cannot conclude these
aspects of Dr. Lutz’s testimony amounted to manifest error. 70 Indeed, despite
challenging Dr. Lutz’s qualifications, defense counsel did not object to specific
questions eliciting, during direct examination, Dr. Lutz’s ambiguous
assessment of patients’ homebound status and consequent need for home
health services. Instead, counsel’s effective cross-examination resolved these
68 Puga, 922 F.3d at 293 (quoting
Guy, 394 F.3d at 325).
69 Id. (quoting Guy, 394 F.3d at 325).
70 See id.
29
Case: 18-31074 Document: 00515618613 Page: 30 Date Filed: 10/28/2020
No. 18-31074
ambiguities and clearly demonstrated for the jury that Dr. Lutz’s
determinations were based on his own, more conservative view of which
patients were in fact “homebound.” 71 Further, the “presentation of contrary
evidence[] and careful instruction on the burden of proof” were other available
means of adequately addressing any confusion that resulted from Dr. Lutz’s
testimony. 72
D
Evans argues that the district court procedurally and substantively
erred in imposing his sentence. His sentence turned largely on the amount of
loss resulting from his fraudulent conduct. 73 During the intervening 16
months between Evans’s conviction and sentencing, both Evans and the
government presented each of their proposed loss calculations to the court.
Four days prior to sentencing, Evans requested permission to cross examine a
government witness as to the loss calculation and to present his own expert
testimony concerning his proposed calculation at sentencing. The district court
denied his request, noting that “evidence relevant to the loss allocation had
been presented at the trial, that the parties have had the opportunity to do
extensive briefing on the issue, and that, as a result, no live testimony will be
allowed at the sentencing hearing.” The court permitted, however, “Evans to
proffer his own expert’s testimony about loss calculations on the record at the
conclusion of the hearing.” Evans filed a motion to reconsider two days before
sentencing. He stressed that he had been prohibited “from putting on ‘evidence
regarding the admission of worthy patients into home health care’ or ‘evidence
71 See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 596 (1993) (noting that
“[v]igorous cross-examination[ is one of] the traditional and appropriate means of attacking
shaky but admissible evidence” (citing Rock v. Arkansas,
483 U.S. 44, 61 (1987))).
72 Id. at 596 (citing
Rock, 483 U.S. at 61).
73 See U.S. SENT’G GUIDELINES MANUAL § 2B1.1(b)(1) (U.S. SENT’G COMM’N 2016).
30
Case: 18-31074 Document: 00515618613 Page: 31 Date Filed: 10/28/2020
No. 18-31074
of specific instances of uncharged proper Medicare billing[s]’ during the trial.”
Thus, in his estimation, not all of the “evidence relevant to the loss allocation
had been presented at the trial.” Nevertheless, the district court refused to
reconsider its original ruling.
At oral sentencing, the district court first defined what it considered to
be each physician’s relevant conduct under section 1B1.3 of the Guidelines.
The defendants collectively had engaged in jointly undertaken criminal
activity. But the district court held that “the scope of [each physician’s] jointly
undertaken criminal activity encompassed only the fraudulent conduct
relating to each defendant[’s] own acts and patients.” Next, the court found
that the actual loss resulting from Evans’s scheme exceeded his intended loss;
thus, actual loss would be used to calculate his advisory range. It then
determined that actual loss in this case included “all Medicare payments made
to both Abide and [Evans] for all of [Evans’s] patients.” Under this framework,
actual loss included not only Evans’s fraudulent billings, but some legitimate
billings as well. The court cited United States v. Hebron, however, which held
that “whe[n] the government has shown that the fraud was so extensive and
pervasive that separating legitimate benefits from fraudulent ones is not
reasonably practicable, the burden shifts to the defendant to make a showing
that particular amounts are legitimate.” 74 Here, the court concluded that the
fraud was pervasive and Evans had failed to produce evidence demonstrating
which bills were legitimate and which were fraudulent. Subsequently, the
court found that the actual loss resulting from Evans’s offense totaled
$1,262,043.
74 684 F.3d 554, 563 (5th Cir. 2012).
31
Case: 18-31074 Document: 00515618613 Page: 32 Date Filed: 10/28/2020
No. 18-31074
1
Evans first contends that the district court’s “refusal to hold an
evidentiary hearing on [the question of loss] violated [his] [d]ue [p]rocess
rights.” According to Evans, an evidentiary hearing would have allowed him
to “put forth evidence of both legitimate billings and legitimately rendered
services [that could have been] deducted from the total loss amount.” To
buttress his argument, he points to the apparent contradiction between the
district court concluding Evans failed to produce evidence of legitimate billings
and legitimately rendered services on the one hand, and, on the other hand,
the district court’s refusal to permit an evidentiary hearing at which such
evidence could have been presented.
Evans’s contention requires us to look to the commentary to section
6A1.3 of the Guidelines, which provides guidance as to the appropriate
procedures when facts impacting sentencing are in dispute. 75 It instructs that
“[w]hen a dispute exists about any factor important to the sentencing
determination, the court must ensure that the parties have an adequate
opportunity to present relevant information.” 76 “Written statements of counsel
or affidavits of witnesses may be adequate under many circumstances.” 77 The
commentary further provides that “[a]n evidentiary hearing may sometimes be
the only reliable way to resolve disputed issues.” 78 In this circuit, a district
court’s refusal to hold an evidentiary hearing is reviewed for an abuse of
discretion. 79 “[W]e have recognized that there is no abuse of discretion when a
75 U.S. SENT’G GUIDELINES MANUAL § 6A1.3 cmt. (U.S. SENT’G COMM’N 2016).
76 Id.
77 Id. (citing United States v. Ibanez,
924 F.2d 427 (2d Cir. 1991)).
78 Id. (collecting cases).
79 United States v. Henderson,
19 F.3d 917, 927 (5th Cir. 1994).
32
Case: 18-31074 Document: 00515618613 Page: 33 Date Filed: 10/28/2020
No. 18-31074
defendant has an opportunity to review the PSR and submit formal objections
to it.” 80
Here, the district court did not abuse its discretion when it refused
Evans’s request for an evidentiary hearing. Evans had ample opportunity
prior to sentencing to present evidence relevant to the loss calculation.
Affidavits and statements by counsel are but two examples. 81 Evans was given
the opportunity to proffer his expert’s testimony about the loss calculations at
the end of the hearing. It is ultimately the district court that must make the
factual determinations relevant for sentencing purposes. 82 The district court’s
decision that an evidentiary hearing was unnecessary should be given
considerable deference by this court. 83 Here, its decision to not take live
testimony prior to sentencing did not amount to an abuse of discretion based
on this record.
2
Next, Evans contends the methodology employed by the district court to
calculate actual loss in this case was flawed. He raises three sub-arguments.
a
First, Evans challenges the district court’s decision to apply Hebron’s
burden-shifting framework. 84 Specifically, he contends “there was no basis for
the court’s conclusion that ‘the fraud in this case was pervasive and difficult to
detect,’” thereby there was no basis to shift the burden to him to demonstrate
80United States v. Tuma, 738 F.3d 681, 693 (5th Cir. 2013) (citing United States v.
Patten,
40 F.3d 774, 777 (5th Cir. 1994) (per curiam)).
81 See Henderson, 19 F.3d at 927 (noting that the defendant’s “due process rights were
protected adequately” because “[h]e could have filed affidavits and other exhibits in support
of” any formal objections he filed to the PSR and that “[a]t the sentencing hearing, [he]
presented several exhibits and objected to some of the exhibits proffered by the government”).
82 See United States v. Nava, 624 F.3d 226, 230-31 (5th Cir. 2010); see also U.S. SENT’G
GUIDELINES MANUAL § 6A1.3(a) (U.S. SENT’G COMM’N 2016).
83 Henderson, 19 F.3d at 927.
84 See United States v. Hebron, 684 F.3d 554, 562-63 (5th Cir. 2012).
33
Case: 18-31074 Document: 00515618613 Page: 34 Date Filed: 10/28/2020
No. 18-31074
which, if any, billings were legitimate. He notes initially that this circuit has
not yet articulated which standard of review applies to a court’s determination
that a particular fraud is pervasive. 85 Because “this determination constitutes
a ‘method’ of determining the loss amount,” however, he argues de novo review
should apply. As to the merits of his contention, he points to the fact that he
“was acquitted of both conspiracy charges[] and convicted only of fraud with
regard to three episodes of care.” Moreover, he notes that the government
failed to offer any evidence of fraud relating to treatment of patients not
identified in the indictment. “Consequently,” he argues, “there was no basis
for the court’s conclusion that ‘the fraud in this case was pervasive and difficult
to detect.’” To the extent Abide may have been engaged in a pervasive fraud
with other physicians, “there was no such showing with regard to [Evans].”
We conclude that clear-error review is the appropriate standard.
Admittedly, the standard of review for loss determinations is somewhat
complicated. We “consider [de novo] how the [sentencing] court calculated the
loss, because that is an application of the [G]uidelines, which is a question of
law.” 86 “[Clear-error] review applies to the background factual findings that
determine whether . . . a particular method is appropriate.” 87 If we affirm the
district court’s methodology under this framework, we then review the
application of the methodology to the facts of the particular case for clear
error. 88
With those standards in mind, one can plausibly categorize Hebron’s
burden-shifting framework as a “method” of determining actual loss, which
85 See United States v. Ezukanma, 756 F. App’x 360, 372 (5th Cir. 2018) (per curiam).
86 United States v. Klein, 543 F.3d 206, 214 (5th Cir. 2008) (emphasis added) (citing
United States v. Saacks,
131 F.3d 540, 542-43 (5th Cir. 1997)).
87 United States v. Isiwele, 635 F.3d 196, 202 (5th Cir. 2011) (citing United States v.
Harris,
597 F.3d 242, 251 n.9 (5th Cir. 2010)).
88 See United States v. Cooper, 274 F.3d 230, 238 (5th Cir. 2001).
34
Case: 18-31074 Document: 00515618613 Page: 35 Date Filed: 10/28/2020
No. 18-31074
would be subject to de novo review. But we believe it is more appropriate to
define a district court’s “pervasiveness determination” as a background factual
finding that informs the ultimate methodology employed by the court. After
all, the district court must first determine that a fraud is pervasive before
invoking the procedures outlines in Hebron. 89 We therefore review Evans’s
first argument, which concerns a factual determination by the district court,
for clear error.
Under that standard, we agree with the district court that Evans’s fraud
was pervasive. The statistical evidence presented during trial concerning case-
mix diagnoses is persuasive. The case-mix diagnoses codes were “used to
increase [Abide’s] Medicare[] reimbursement[s].” Dr. Solanky, a government
witness, provided statistical evidence regarding seven of the codes. Dr.
Solanky’s testimony indicated that a greater percentage of Evans’s patients
had been diagnosed with each of those diagnostic codes than other providers
in Louisiana. For six of the diagnostic codes, the disparity was statistically
significant, meaning they did not occur “by . . . chance.” In light of this
evidence, the district court’s conclusion that Evans’s fraud was pervasive is
more than plausible. 90 We will not disturb the district court’s decision to apply
Hebron’s burden-shifting framework in this case.
b
Second, Evans argues the district court failed to make the requisite
findings that he engaged in a conspiracy with Abide. He relies on United States
v. Jimenez, an unpublished case, to support his argument. 91 There, the
defendant had been found guilty of conspiracy to possess with intent to
89 Hebron, 684 F.3d at 563.
90 See Cooper, 274 F.3d at 238 (citing United States v. Puig-Infante,
19 F.3d 929, 942
(5th Cir. 1994)) (“A factual finding is not clearly erroneous if it is plausible in light of the
record read as a whole.”).
91 77 F. App’x 755 (5th Cir. 2003) (summary calendar).
35
Case: 18-31074 Document: 00515618613 Page: 36 Date Filed: 10/28/2020
No. 18-31074
distribute marijuana. 92 At sentencing, the district court determined that the
defendant’s “jointly-conducted activity” extended to a separate drug
transaction involving cocaine. 93 This court vacated and remanded for
resentencing “[b]ecause the record reflect[ed] no explicit finding regarding
whether the distribution of cocaine was within the scope of the criminal
activity that [the defendant] agreed to undertake.” 94
Evans argues that if the district court wanted to hold him liable for
Abide’s fraudulent acts, the court must first specifically find that those acts
were “(i) within the scope of the jointly undertaken criminal activity, (ii) in
furtherance of that criminal activity, and (iii) reasonably foreseeable in
connection with that criminal activity.” 95 He asserts that “the district court
only addressed the ‘scope’ of [his] relevant conduct, which it defined as
‘fraudulent conduct relating to [Evans’s] own acts and . . . patients.’” Without
addressing the remaining two requirements, Evans contends, the district court
could not hold him liable for anything other than his own actions, actions which
included nothing more than “the amount [Medicare] paid for JoWi and MaGr
in the counts of conviction.”
Ultimately, however, Evans’s argument is without merit. Admittedly,
the sentencing transcript does suggest that the district court only directly
addressed section 1B1.3(a)(1)(B)’s first requirement, namely whether Abide’s
conduct was “within the scope of the jointly undertaken criminal activity.” 96 It
noted, “[t]he [c]ourt finds as a matter of fact that the scope of Barnes, Evans,
Michael Jones, and . . . Molden’s jointly undertaken criminal activity
encompassed only the fraudulent conduct relating to each defendant[’s] own
92 Id. at 756.
93 Id. at 757-58.
94 Id. at 760.
95 U.S. SENT’G GUIDELINES MANUAL § 1B1.3(a)(1)(B) (U.S. SENT’G COMM’N 2016).
96 Id. § 1B1.3(a)(1)(B)(i).
36
Case: 18-31074 Document: 00515618613 Page: 37 Date Filed: 10/28/2020
No. 18-31074
acts and patients.” The court did not appear to have expressly addressed the
remaining two requirements.
Nevertheless, the district court implicitly recognized that the remaining
two requirements were satisfied. The district court went to great pains to
follow Fifth Circuit precedent during sentencing. The court noted it was
required to expressly find each of section 1B1.3(a)(1)(B)’s requirements. It
then outlined why the government’s articulation of each defendant’s relevant
conduct—namely, that each physician was in a conspiracy not merely with
Abide, but with each of the other physicians—did not satisfy those
requirements. Thereafter, the district held that “the scope of [each physician’s]
jointly undertaken criminal activity encompassed only the fraudulent conduct
relating to each defendant[’s] own acts and patients.” Viewed in context, the
record thus suggests the district court believed the remaining two
requirements were met as well. That is, by first outlining the requirements,
then rejecting the government’s articulation of each defendant’s jointly
undertaken criminal activity, and finally concluding that a different
articulation was more appropriate, the judge implicitly recognized that its own
articulation met section 1B1.3(a)(1)(B)’s requirements.
Moreover, as this court noted in United States v. Puig-Infante, district
courts are permitted “to make implicit findings by adopting the PSR.” 97 Here,
the district court adopted the PSR’s factual findings, which thoroughly
described the overall conspiracy and Evans’s role in it.
c
Third, relying on evidence proffered after sentencing, Evans argues that
“the district court erroneously included billings that occurred both before and
97 19 F.3d 929, 943 (5th Cir. 1994) (quoting United States v. Carreon,
11 F.3d 1225,
1231 (5th Cir. 1994)).
37
Case: 18-31074 Document: 00515618613 Page: 38 Date Filed: 10/28/2020
No. 18-31074
after [Evans’s] agreement with Abide.” By his calculations, his actual-loss
total is reduced by $52,947.
Because Evans’s contention does not affect his Guidelines calculation, it
is only necessary to consider his argument as it relates to the court’s restitution
order. The district court ordered restitution in this case pursuant to the
Mandatory Victim’s Restitution Act of 1996 (MVRA). 98 “The MVRA authorizes
restitution to a victim ‘directly and proximately harmed’ by a defendant’s
offense of conviction.” 99 Restitution orders are reviewed under an abuse of
discretion standard, 100 with factual findings reviewed for clear error. 101
Importantly, “[a]n award of restitution greater than a victim’s actual loss
exceeds the MVRA’s statutory maximum.” 102
Under these standards, we will not vacate Evans’s restitution order. We
assume without deciding that we may consider the evidence Evans proffered
after sentencing. Nevertheless, this evidence does little to call into question
the district court’s calculations. The loss calculation in this case turned, in
part, on the length of time Evans participated in the conspiracy. As a result,
Evans’s proffered report turns largely on the case agent’s opinion as to when
Evans’s involvement in the conspiracy started and ended. According to Evans’s
expert, the case agent concluded that Evans was involved in a conspiracy with
Abide from September 29, 2011 through January 31, 2014. But because the
government exhibits used to calculate actual loss covered more than just that
particular period, Evans’s expert concludes that the government exhibits
See 18 U.S.C. § 3663A.
98
United States v. Sharma, 703 F.3d 318, 322 (5th Cir. 2012) (quoting 18 U.S.C.
99
§ 3663A(a)(2)) (citing 18 U.SC. § 3663A(a)(1), (c)(1)).
100 Id. (citing United States v. Mann,
493 F.3d 484, 498 (5th Cir. 2007)).
101 Id. (citing United States v. Beydoun,
469 F.3d 102, 107 (5th Cir. 2006)).
102 Id. (first citing United States v. Chem. & Metal Indus., Inc.,
677 F.3d 750, 752 (5th
Cir. 2012); and then citing
Beydoun, 469 F.3d at 107).
38
Case: 18-31074 Document: 00515618613 Page: 39 Date Filed: 10/28/2020
No. 18-31074
“include claims that are outside of the time period of [Evans’s] business
affiliation with Abide.” Importantly, though, the district court’s determination
as to Evans’s start and end dates differed from the government’s case agent.
Notably, although Evans proffered his expert’s report after sentencing,
the expert report was drafted two days before sentencing. The expert therefore
could not have known before writing the report that the district court would
select different start and end dates for Evans’s conspiracy than those suggested
by the case agent. In contrast to the case agent, the court concluded that the
start and end dates for Evans’s involvement in the conspiracy were September
11, 2011 and June 9, 2014, respectively.
Ultimately, Evans’s proffered report does little to challenge the district
court’s restitution order and hardly demonstrates that the district court’s
factual findings were clearly erroneous. We therefore decline Evans’s request
to remand his case to the district court for resentencing.
E
Lastly, Evans contends the district court substantively erred during his
sentencing. He argues the district court “failed to consider [several] categories
of evidence in determining the loss amount.” Specifically, he points to the types
of evidence he would have offered at an evidentiary hearing: (1) “additional
evidence[] to rebut the presumption that the amount billed accurately depicts
the loss amount;” (2) “evidence of . . . legitimate billings;” and (3) “evidence
of . . . legitimately rendered services.” After considering the totality of the
circumstances, though, we believe his sentence was substantively
reasonable. 103 Sentences within the correctly calculated Guidelines range are
103 See Gall v. United States, 552 U.S. 38, 51 (2007) (“When conducting [a review of
the substantive reasonableness of the sentence], the court will, of course, take into account
the totality of the circumstances, including the extent of any variance from the Guidelines
range.”).
39
Case: 18-31074 Document: 00515618613 Page: 40 Date Filed: 10/28/2020
No. 18-31074
afforded a presumption of reasonableness. 104 Here, Evans’s correctly
calculated advisory Guidelines range called for between 63 and 78 months in
prison. The court granted a downward variance to 50 months in prison. This
below-Guidelines sentence is afforded a presumption of reasonableness in this
court and Evans has not sufficiently rebutted that presumption. We therefore
affirm his sentence.
V
A
Paula Jones’s first issue on appeal concerns whether the government
produced sufficient evidence to convict her of conspiracy to commit health care
fraud (Count 1) and conspiracy to violate the anti-kickback statute (Count 2).
As to Count 1, Jones, like her co-defendants, had a financial incentive to
engage in a conspiracy to commit health care fraud. The government also
presented evidence demonstrating: (1) Jones’s awareness that Abide needed to
bill $2,100 to break even for each home health care episode; (2) the fact that
she would generate reports monitoring the average revenue for home health
episodes weekly; (3) the fact that when a bill did not reach $2,100, she would
“g[i]ve the files back to the case managers to see if they could get the score up
to at least $2,100[;]” (4) the fact that she routed one of Michael Jones’s billings
without his required signature; and (5) the fact that Jones, as Abide’s biller,
routed each of the physicians’ fraudulent bills to Medicare. Further, evidence
that she had “a ‘911’ code” in the event law enforcement arrived also provided
circumstantial evidence that she was aware criminal activity was afoot.
104United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006) (citing United States v.
Alonzo,
435 F.3d 551, 553-54 (5th Cir. 2006)); see also United States v. Diehl,
775 F.3d 714,
724 (5th Cir. 2015) (noting that “review for substantive reasonableness is highly deferential,
because the sentencing court is in a better position to find facts and judge their import under
the § 3553(a) factors with respect to a particular defendant” (internal quotation marks
omitted) (quoting United States v. Hernandez,
633 F.3d 370, 375 (5th Cir. 2011))).
40
Case: 18-31074 Document: 00515618613 Page: 41 Date Filed: 10/28/2020
No. 18-31074
As to Count 2, Jones’s awareness of the fact that her salary was tied to
Michael Jones’s referrals, her continued receipt of that salary, and her 911 code
are more than enough for a rational jury to conclude that she agreed to
participate in a conspiracy involving health care kickbacks.
B
Jones maintains that the district court erred when it refused to sever her
from trial with the other defendants. Numerous times during trial, Jones
moved under Rule 14 for relief from prejudicial joinder. Under Rule 14, “[i]f
the joinder of offenses or defendants in an indictment, an information, or a
consolidation for trial appears to prejudice a defendant or the government, the
court may order separate trials of counts, sever the defendants’ trials, or
provide any other relief that justice requires.” 105 The trial court denied each
of those requests. On appeal, Jones argues the district court’s refusal to sever
her trial from the remaining defendants constituted error. She argues a joint
trial resulted in prejudicial spillover and argues that the judge’s limiting
instructions inadequately addressed the prejudicial effect of a joint trial. We
disagree.
“We review the denial of a motion to sever a trial under the exceedingly
deferential abuse of discretion standard.” 106 Severance under Rule 14 is proper
“only if there is a serious risk that a joint trial would compromise a specific
trial right of one of the defendants, or prevent the jury from making a reliable
judgment about guilt or innocence.” 107 “[A] defendant ‘must prove that: (1) the
joint trial prejudiced him [or her] to such an extent that the district court could
105FED. R. CRIM. P. 14(a).
106United States v. Reed, 908 F.3d 102, 114 (5th Cir. 2018) (internal quotation marks
omitted) (quoting United States v. Chapman,
851 F.3d 363, 379 (5th Cir. 2017)).
107 Id. (quoting United States v. Mitchell,
484 F.3d 762, 775 (5th Cir. 2007)).
41
Case: 18-31074 Document: 00515618613 Page: 42 Date Filed: 10/28/2020
No. 18-31074
not provide adequate protection; and (2) the prejudice outweighed the
government’s interest in economy of judicial administration.’” 108
Here, the district court did not abuse its discretion when it refused to
grant Jones’s request for a separate trial. Jones’s argument relies heavily on
her assertion that evidence aimed at her co-defendants would likely spillover
into her case. But the evidence adduced against the remaining defendants was
largely relevant to Jones’s conduct as well. The substantive evidence adduced
against the remaining defendants largely established a “culture of fraud” at
Abide. That same evidence, the district court noted, was relevant to whether
“employees, like [Jones], knew or should have known that their activities were
part of a conspiracy to defraud Medicare.” Jones thus largely exaggerates the
spillover risks in this case.
Moreover, the district court’s instructions adequately alleviated the risk
of unfair prejudice. The district court’s instruction to consider each count
separately was “sufficient to prevent the threat of prejudice resulting from [a
joint trial].” 109 Likewise, the district court did not err in refusing to read
Jones’s hand-crafted instructions—instructions Jones contends would have
further reduced the risk of unfair prejudice. The district court refused to read
her proposed instructions because they were more akin to a closing argument,
than jury instructions. We have “repeatedly rejected requested instructions
that are ‘more in the nature of a jury argument than a charge,’” and do so again
here. 110
As the district court correctly noted, “[t]he rule, rather than the
exception, is that persons indicted together should be tried together, especially
108 Id. (quoting United States v. Rodriguez,
831 F.3d 663, 669 (5th Cir. 2016)).
109 United States v. Whitfield, 590 F.3d 325, 356 (5th Cir. 2009) (quoting United States
v. Massey,
827 F.2d 995, 1005 (5th Cir. 1987)).
110 United States v. Thompson, 761 F. App’x 283, 292 (5th Cir. 2019) (per curiam)
(quoting United States v. Lance, 853 F.2d 1177, 1184 (5th Cir. 1988)).
42
Case: 18-31074 Document: 00515618613 Page: 43 Date Filed: 10/28/2020
No. 18-31074
in conspiracy cases.” 111 Jones fails to explain adequately why her case is the
exception and not the rule. The district court did not abuse its discretion when
it declined to grant Jones’s severance motion.
C
We next consider if the district court procedurally erred when calculating
the total-loss amount applicable to Jones’s sentence and restitution order.
Jones’s advisory Guidelines range and her restitution order turned on
the amount of loss resulting from the fraud. The court ultimately concluded
that “the reasonably foreseeable pecuniary harm” in this case was
$3,106,954. 112 It arrived at that figure by first determining that Abide had
billed $4,124,591.20 to Medicare during the relevant period and then reducing
that total by 32 percent because Jones was only logged into Kinnser for 68
percent of the relevant time period.
On appeal, Jones contends the district court procedurally erred in
calculating her advisory sentence. She also alleges the district court’s
restitution order, which mirrored the district court’s loss-calculation, was
inflated. She argues that “[t]o hold her accountable for a loss amount of over
$3 million vastly exaggerates her very limited role in the alleged conspiracy.”
She contends the district court erred when it concluded that all of Abide’s
Medicare billings were foreseeable losses. “As a biller for the company,” she
notes, “she would have no way of knowing whether . . . the doctors had actually
seen the patients in question, let alone whether those patients
actually . . . qualified for home health care.” To demonstrate the significance
111 United States v. Pofahl, 990 F.2d 1456, 1483 (5th Cir. 1993).
112 U.S. SENT’G GUIDELINES MANUAL §§ 2B1.1 cmt. n.3(A)(i) (U.S. SENT’G COMM’N
2016); see also U.S. SENT’G GUIDELINES MANUAL §§ 2B1.1(b)(1) (U.S. SENT’G COMM’N 2016).
43
Case: 18-31074 Document: 00515618613 Page: 44 Date Filed: 10/28/2020
No. 18-31074
of the district court’s error, Jones notes her loss amount was substantially
greater than all of the physicians in the conspiracy.
We review sentencing decisions to ensure they are reasonable. 113 Jones
specifically challenges the district court’s loss calculation and its effect on the
advisory Guidelines calculation. If correct, her allegation would constitute
significant procedural error. 114 As to the standard of review applied to Jones’s
appeal, Jones takes issue with the factual predicates underlying the district
court’s methodology. That is, she argues the district court erred insofar as it
determined that all billings Jones approved using Kinnser were “the
reasonably foreseeable pecuniary harm [of her] offense.” 115 Her contention is
thus subject to clear-error review. 116
Here, the district court’s factual finding survives clear-error review. The
district court’s well-reasoned statement from the bench adequately justified its
decision to hold Jones accountable for $3,106,954 in actual losses. The district
court noted that (1) “Jones participated in all of Abide billings, including
fraudulent billings;” (2) “her awareness of the fraud was much more extensive”
than she alleges; and (3) “her agreement to jointly undertake criminal activity
extended to the entire reach of the conspiracy.” As previously outlined, these
113 United States v. Nguyen, 854 F.3d 276, 280 (5th Cir. 2017) (citing Gall v. United
States,
552 U.S. 38, 46 (2007)).
114 See Gall, 552 U.S. at 51 (listing examples of “significant procedural error, such as
failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines
as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence—including an
explanation for any deviation from the Guidelines range”).
115 U.S. SENT’G GUIDELINES MANUAL § 2B1.1 cmt. n.3(A)(i) (U.S. SENT’G COMM’N
2016).
116 See United States v. Isiwele, 635 F.3d 196, 202 (5th Cir. 2011) (citing United States
v. Harris,
597 F.3d 242, 251 n.9 (5th Cir. 2010)).
44
Case: 18-31074 Document: 00515618613 Page: 45 Date Filed: 10/28/2020
No. 18-31074
conclusions find adequate support in the record. The district court’s factual
findings were thus plausible on the current record. 117
The fact that Jones’s loss amount exceeded that of the physicians in the
conspiracy is not determinative. Because actual loss calculations turn on
foreseeability, 118 this result makes logical sense. One spoke of a conspiracy—
a physician, for example, in a health care fraud scheme—may be unable to
foresee the true scope of the conspiracy. But a person who processes each bill
of an organization he or she knows is engaged in fraudulent conduct would be
able to foresee the full scale of the fraud. 119 Thus, despite Jones’s contentions,
the factual findings that formed the basis of the district court’s loss-calculation
methodology are not clearly erroneous. For the same reasons, the district
court’s restitution order survives appellate review. 120
VI
A
Gregory Molden argues that there was insufficient evidence to convict
him of conspiracy to commit health care fraud (Count 1), conspiracy to violate
the anti-kickback statute (Count 2), and eleven counts of substantive health
care fraud (Counts 32 through 42).
117 See United States v. Cooper, 274 F.3d 230, 238 (5th Cir. 2001) (citing United States
v. Puig-Infante,
19 F.3d 929, 942 (5th Cir. 1994)) (“A factual finding is not clearly erroneous
if it is plausible in light of the record read as a whole.”).
118 See U.S. SENT’G GUIDELINES MANUAL § 2B1.1 cmt. n.3(A) (U.S. SENT’G COMM’N
2016).
119 Cf. United States v. Dehaan, 896 F.3d 798, 808 (7th Cir. 2018) (“[R]egardless of
whether the agencies themselves engaged in independent wrongdoing when they billed
Medicare for these services, the billings were the direct and foreseeable result of DeHaan’s
fraud as the gatekeeper in certifying the patients; without his certification, the agencies could
not have billed Medicare and Medicare would not have compensated the agencies for the
services they provided. The Medicare payments are a reasonable approximation of the loss
resulting from DeHaan’s own criminal conduct . . . .”).
120 See United States v. Mahmood, 820 F.3d 177, 196 (5th Cir. 2016) (citing United
States v. Echols, 574 F. App’x 350, 359 (5th Cir. 2014) (per curiam)); see also
Dehaan, 896
F.3d at 808.
45
Case: 18-31074 Document: 00515618613 Page: 46 Date Filed: 10/28/2020
No. 18-31074
1
Molden contends there was insufficient evidence to find him guilty of
either conspiracy charge. As to Count 1, Crinel pleaded guilty to conspiring
with Molden to commit health care fraud; evidence at trial suggested Molden
had a financial incentive to join the conspiracy; and the statistical evidence is
likewise probative of Molden’s guilt. The evidence related to each of Molden’s
substantive health care fraud counts similarly reinforces the jury’s conclusion
that Molden’s actions were fraudulent. Together, this evidence is more than
enough for the jury to conclude that Molden participated in a conspiracy to
commit health care fraud.
The evidence presented as to Count 2 is perhaps even more compelling.
Evidence presented at trial suggested Molden was paid $5,000 a month to work
for Abide. Before Molden entered into this arrangement with Abide, he had
several form 485s at Abide that had yet to be signed. According to Crinel, “in
order for him to sign the 485s and to continue to send patients to [Abide], he
wanted a salary.” Wilneisha Jakes also testified that Molden was being paid
for patient referrals. Coupled with the fact that Crinel admitted to paying
Molden kickbacks, there was more than enough evidence to convict Molden on
Count 2.
2
Likewise, Molden contends there was insufficient evidence to convict him
of substantive health care fraud. Counts 32 through 37 related to patient
KeTr. Counts 38 to 42 related to patient ShBe. Unlike his co-defendants who
argued they were unaware their patients did not qualify for home health care,
Molden seems to argue his patients did qualify for these services.
As to patient KeTr, the jury could reasonably infer from Dr. Lutz’s
testimony that this patient did not qualify for home health care. Molden had
qualified KeTr for home health care because the patient suffered from Type 2
46
Case: 18-31074 Document: 00515618613 Page: 47 Date Filed: 10/28/2020
No. 18-31074
diabetes. But as Dr. Lutz noted, “Molden ordered blood tests on the same day
he admitted [KeTr] to home health, and those blood tests came back [within
normal levels].” Thus, according to Dr. Lutz, KeTr’s diabetes was “perfectly
controlled.” Dr. Lutz also testified that nurses had difficulty locating KeTr
while he was receiving home health care. During several visits to KeTr’s home,
nurses would knock on the door, but no one would answer. The logical
inference from such evidence is that KeTr was not, in fact, homebound. In fact,
he was eventually disenrolled from home health care after nurses could not
locate him. Together, this evidence more than suggests KeTr was not
homebound when Molden certified him for home health care. There was thus
sufficient evidence to convict Molden of substantive health care fraud with
regard to his treatment of KeTr.
As for patient ShBe, the evidence was also sufficient to convict Molden
of substantive health care fraud. Dr. Lutz testified that: (1) ShBe’s patient file
lacked documentation to support Molden’s diagnoses; (2) ShBe’s diagnoses
were shuffled; and (3) ShBe was not home during several home health visits.
As an example of suspicious certifications, Dr. Lutz noted that eight days prior
to Molden recertifying ShBe for an episode of home health care based on
hypertension, her blood pressure had been normal. He further opined that
ShBe did not require skilled nursing care. The jury could reasonably have
concluded that ShBe did not require home health care.
B
Like Barnes, Molden argues the district court erred when it refused to
read several Medicare instructions to the jury. For the reasons outlined
earlier, the court did not abuse its discretion when it refused to read the
proffered instructions to the jury.
47
Case: 18-31074 Document: 00515618613 Page: 48 Date Filed: 10/28/2020
No. 18-31074
C
Like Evans, Molden argues the district court erred in permitting Dr.
Lutz to testify as an expert. For the reasons outlined earlier, the court’s
decision to permit such testimony did not amount to an abuse of discretion.
* * *
The district court’s judgment is AFFIRMED.
48
