Filed: Aug. 06, 2015
Latest Update: Mar. 02, 2020
Summary: Case: 14-20399 Document: 00513144485 Page: 1 Date Filed: 08/06/2015 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals No. 14-20399 Fifth Circuit FILED August 6, 2015 UNITED STATES OF AMERICA, Lyle W. Cayce Clerk Plaintiff - Appellee v. VALNITA TURNER, R.N., Defendant - Appellant Appeals from the United States District Court for the Southern District of Texas USDC No. 4:12-CR-244-3 Before JOLLY, HIGGINBOTHAM, and DAVIS, Circuit Judges. PER CURIAM:* Valnita
Summary: Case: 14-20399 Document: 00513144485 Page: 1 Date Filed: 08/06/2015 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals No. 14-20399 Fifth Circuit FILED August 6, 2015 UNITED STATES OF AMERICA, Lyle W. Cayce Clerk Plaintiff - Appellee v. VALNITA TURNER, R.N., Defendant - Appellant Appeals from the United States District Court for the Southern District of Texas USDC No. 4:12-CR-244-3 Before JOLLY, HIGGINBOTHAM, and DAVIS, Circuit Judges. PER CURIAM:* Valnita ..
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Case: 14-20399 Document: 00513144485 Page: 1 Date Filed: 08/06/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 14-20399
Fifth Circuit
FILED
August 6, 2015
UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
VALNITA TURNER, R.N.,
Defendant - Appellant
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:12-CR-244-3
Before JOLLY, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:*
Valnita Turner, a registered nurse, was convicted by a jury on four
counts of healthcare fraud in violation of 18 U.S.C. § 1347 and one count of
conspiracy to commit healthcare fraud in violation of 18 U.S.C. § 1349. The
jury found that Turner engaged in a multifaceted scheme to fraudulently
obtain Medicare reimbursements. In carrying out the scheme, Turner
purchased stolen, confidential health information about Medicare
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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beneficiaries, and used it to recruit patients for the home-health agencies with
which she was affiliated. She also submitted, on behalf of those agencies,
claims to Medicare seeking reimbursement for home-health services not
authorized by a doctor who had seen or treated the patient. As a result of the
scheme, the agencies received more than $3 million in reimbursements that
Medicare otherwise would not have paid.
On appeal, Turner challenges one count of her healthcare-fraud
conviction, one of the district court’s jury instructions, and several of the
district court’s sentencing determinations. For the reasons stated below, we
AFFIRM.
I.
Turner owned Houston Compassionate Care, Inc., a home-health agency,
and was the director of nursing at Prestige Health Services, Inc., another
home-health agency. She also owned Texas Comprehensive Healthcare
Resources, Inc., a marketing company. Both Houston Compassionate and
Prestige were enrolled Medicare providers, meaning that they were authorized
to claim reimbursement from Medicare for services provided to Medicare
beneficiaries.
Medicare reimburses the costs of home-health services provided to
beneficiaries who are, because of illness or disability, “homebound,” but only
under certain circumstances. See, e.g., United States v. Njoku, 737 F.3d 55, 61
(5th Cir. 2013). As relevant here, Medicare reimburses the costs of home-
health services only if the services are ordered by a doctor who has examined
the beneficiary. Typically, home-health agencies memorialize a referring
doctor’s orders using a standardized form called a “CMS-485.” If the doctor
initially gives orders verbally, a registered nurse must, in Box 23 of a CMS-
485, verify them with her signature. Box 24 of a CMS-485 asks for the name
and address of the referring doctor, and Box 27 requires that doctor’s
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signature. According to the trial testimony of the government’s Medicare
expert, Medicare does not pay claims when the doctor who signs in Box 27 of a
CMS-485 is not the same as the doctor listed in Box 24 (i.e., when the CMS-
485 has an “invalid countersignature”). Additionally, the expert testified,
Medicare does not pay claims associated with services provided to beneficiaries
who were obtained as patients through the provider’s use of kickbacks or
bribes.
In 2008, Turner, along with her brother Valdie Jackson, initiated a plan
to generate business for Houston Compassionate by purchasing the stolen
health information of Medicare beneficiaries from a friend of Jackson’s named
Jarvis Thomas. Thomas worked for a local hospital, the Harris County
Hospital District (the Hospital), and therefore had access to the confidential
health information of a large number of Medicare beneficiaries. According to
the plan, Turner would provide money to Jackson, who in turn would pay
Thomas every few weeks in exchange for the health information of a new set
of beneficiaries. Turner would then use the information (through her
marketing company Texas Comprehensive) to solicit the beneficiaries to
become patients of Houston Compassionate.
In addition to recruiting patients using stolen health information,
Turner and others at the home-health agencies with which she was affiliated
engaged in a practice of submitting reimbursement claims to Medicare for
services that had not been ordered by a referring doctor. In doing so, Turner
(or another nurse at the agency) would sign in Box 23 of a CMS-485, falsely
stating that she had received verbal orders from a patient’s referring doctor to
begin home-health services. She would then fill in Box 24 with the name and
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NPI number 1 of a doctor, but have a different doctor—specifically, the on-staff
medical director of either Houston Compassionate or Prestige—sign in Box 27. 2
(Typically, she would first send the CMS-485 to the doctor whose name she had
used in Box 24, but if the doctor ignored it or declined to sign—as,
unsurprisingly, would often happen—she would then have the form taken to
one of the medical directors for his signature.)
Turner took steps to shield these activities from detection. For instance,
Turner directed Jackson to open his own home-health agency—Jackson Home
Health—in order to spread out the patient population from Houston
Compassionate and therefore avoid raising any “red flag[s].” For a similar
reason, Turner would distribute the patients recruited using the stolen health
information among Houston Compassionate, Prestige, and Jackson Home
Health. Finally, although she initially provided Jackson with money to pay
Thomas in the form of cash or checks made out to Jackson, she eventually
began making out checks to Doctors Choice Medical Billing, another of
Jackson’s companies. She directed Jackson to generate false invoices from
Doctors Choice to make these payments appear legitimate.
Despite these measures, Turner’s activities were eventually detected,
and she and several coconspirators were indicted on charges of healthcare
fraud under 18 U.S.C. § 1347 and related charges. Under this court’s
precedent, “each execution” of a particular healthcare-fraud scheme “may be
charged as a separate count.” United States v. Hickman, 331 F.3d 439, 446
1 A doctor’s NPI, or National Provider Indicator, number is, according to the
government’s Medicare expert, a “unique identifier” for each healthcare provider—“like a
social security number for a physician.”
2 Houston Compassionate’s medical director was Dr. Ben Echols. Echols’s actions in
signing CMS-485s for patients he had not seen resulted in his being convicted of, among other
things, conspiracy to commit healthcare fraud. See generally United States v. Echols, 574
F.App’x 350 (5th Cir. 2014) (affirming Echols’s convictions).
4
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(5th Cir. 2003). Accordingly, Counts 5–8 of the indictment charged Turner
with healthcare fraud based on claims submitted by the home-health agencies
with respect to four particular Medicare beneficiaries (beneficiaries B.J., M.D.,
J.C., and P.O.).
The jury found Turner guilty on all four counts of healthcare fraud and
on a count of conspiracy to commit healthcare fraud. The district court
sentenced Turner to 151 months of imprisonment, and held her jointly and
severally liable with the others charged in the indictment for a restitution
award of $3,011,899.09.
II.
Turner raises several issues on appeal, which are subject to varying
standards of review.
First, Turner argues that the evidence was insufficient for the jury to
convict her on Count 8 of the indictment. Because she failed to raise this
argument in a motion for acquittal “at the close of all evidence,” our review is
for plain error only. United States v. Daniel, 957 F.2d 162, 164 (5th Cir. 1992).
In the sufficiency-of-the-evidence context, plain-error review means that
Turner’s challenge will succeed only if “the record is devoid of evidence pointing
to guilt or if the evidence is so tenuous that a conviction is shocking.” United
States v. Delgado,
672 F.3d 320, 330–31 (5th Cir. 2012) (en banc) (internal
quotation marks omitted).
Next, Turner challenges one of the district court’s jury instructions.
Turner did not object to the instruction at trial, so our review is for plain error.
See, e.g., United States v. Daniels, 252 F.3d 411, 414 (5th Cir. 2001). “A jury
charge is plain error if: (1) it was erroneous; (2) the error was plain; and (3) the
plain error affected the substantial rights of the defendant.”
Id. If these
conditions are met, “we have discretion to correct the error; discretion we will
exercise if the error ‘seriously affects the fairness, integrity or public reputation
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of judicial proceedings.’” Id. (quoting United States v. Olano,
507 U.S. 725, 732
(1993)).
Turner’s remaining challenges are to her sentence. “We review the
district court’s legal interpretation and application of the sentencing guidelines
de novo and its factual findings for clear error.” United States v. Pillaut, 783
F.3d 282, 286 (5th Cir. 2015) (internal quotation marks omitted). “The district
court’s factual finding is not clearly erroneous if it is plausible in light of the
record read as a whole.”
Id. at 287 (internal quotation marks omitted).
III.
As noted, Turner challenges one count of her healthcare-fraud
conviction, one of the district court’s jury instructions, and several of the
district court’s sentencing determinations. We consider each challenge in turn.
A.
Turner first argues that the evidence presented at trial was insufficient
to support her conviction on Count 8 of the indictment.
Counts 5–8 of the indictment charged Turner with healthcare fraud in
violation of 18 U.S.C. § 1347. Section 1347 provides:
(a) Whoever knowingly and willfully executes, or attempts to
execute, a scheme or artifice—
(1) to defraud any health care benefit program; or
(2) to obtain, by means of false or fraudulent pretenses,
representations, or promises, any of the money or property
owned by, or under the custody or control of, any health
care benefit program,
in connection with the delivery of or payment for health care
benefits, items, or services, shall be [punished].
As its text makes clear, § 1347 “punishes executions or attempted executions
of schemes to defraud, . . . not simply acts in furtherance of the scheme.”
Hickman, 331 F.3d at 446.
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The district court also instructed the jury that it could convict Turner on
Counts 5–8 if she aided and abetted another’s violation of § 1347. 3 “A
defendant may be convicted of aiding and abetting a substantive criminal
offense when he associates with the criminal activity, participates in it, and
acts to help it succeed.” United States v. Delagarza-Villarreal, 141 F.3d 133,
140 (5th Cir. 1998) (internal quotation marks omitted).
Turner’s sufficiency challenge focuses on only one of her healthcare-
fraud convictions—the conviction on Count 8 of the indictment, which charged
her with healthcare fraud based on claims submitted by Prestige with respect
to Medicare beneficiary P.O. Turner’s challenge hinges on the difference
between the government’s evidence supporting Count 8 and its evidence
supporting the other counts of conviction. As for Counts 5, 6, and 7—which
charged Turner with healthcare fraud based on claims submitted with respect
to Medicare beneficiaries B.J., M.D., and J.C., respectively—the government’s
evidence showed that these beneficiaries’ doctors had not ordered home-health
services, and that Turner herself had signed in Box 23 of the fraudulent CMS-
485s relating to these beneficiaries. As for Count 8, however, the government
presented no direct evidence that home-health services were not ordered by a
referring doctor, and Box 23 of the relevant CMS-485 was signed not by
Turner, but by another Prestige nurse. Thus, although the reimbursement
claims that formed the basis of Count 8 are indisputably fraudulent insofar as
they are based on a CMS-485 signed by a doctor other than the one listed as
the referring doctor, Turner argues, essentially, that the government failed to
prove that this fraud is attributable to her.
3 Turner challenges this instruction on appeal, but, as discussed infra pp. 9–11, her
challenge is meritless.
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“A defendant need not have actually submitted the fraudulent
documentation to [Medicare],” however, “in order to be guilty of health care
fraud.” United States v. Imo, 739 F.3d 226, 235 (5th Cir. 2014). And in any
event, there is sufficient evidence in the record from which the jury could
conclude that Turner at least aided and abetted Prestige’s submission of
fraudulent reimbursement claims related to P.O. As an initial matter, it is
undisputed that Prestige is one of the entities that Turner used to further the
overall scheme: Prestige was located in the same building as the other three
entities involved in the scheme (Houston Compassionate, Texas
Comprehensive, and Jackson Home Health); Turner was director of nursing at
Prestige and distributed to it the business of some of her illegally recruited
patients; and, in presenting evidence as to Count 7 of the indictment—a
conviction that Turner has not appealed—the government showed that Turner
personally signed off on Medicare beneficiary J.C.’s fraudulent CMS-485 in her
capacity as director of nursing at Prestige.
Furthermore, the jury could specifically have linked Turner to Prestige’s
fraudulent submission of claims related to P.O. This is so because the jury
could have concluded that P.O. was one of the patients whose health
information Turner bought from Thomas, and thus who became a patient of
Prestige only as a result of Turner’s illegal recruitment. First, P.O.’s name
appears on the Hospital’s list of approximately 2,400 patients whose health
information Thomas accessed while a Hospital employee. Second, Thomas
testified that he sold the health information of “2,000 or more” patients to
Turner—a number at least near the total number of patients whose health
information Thomas accessed. Finally, the CMS-485 and other documents
relating to services provided to P.O. featured invalid physician
countersignatures, giving rise to a reasonable inference—and thus an
inference that, in reviewing the jury’s verdict, we must draw, see, e.g., United
8
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States v. Beacham, 774 F.3d 267, 272 (5th Cir. 2014)—that P.O. was not
legitimately referred to Prestige, but instead became a patient only after
Turner recruited her using the stolen health information. Concededly, this is
not overwhelming evidence that Turner illegally recruited P.O. to Prestige,
thus aiding and abetting Prestige’s later submission of fraudulent, P.O.-related
claims to Medicare. But it is certainly some evidence, and, since Turner failed
to preserve her sufficiency argument in the district court, see supra p. 5, it is
more than enough to sustain her conviction. See, e.g.,
Delgado, 672 F.3d at 331
(“[U]npreserved insufficiency claims . . . will be rejected unless the record is
devoid of evidence pointing to guilt or if the evidence is so tenuous that a
conviction is shocking.” (internal quotation marks omitted)).
In sum, because the record is not “devoid of evidence” suggesting that
P.O. was one of the patients whom Turner illegally recruited to a home-health
agency using stolen health information, Delgado, 672 F.3d at 331 (emphasis
omitted), the jury could permissibly have concluded that Turner at least aided
and abetted in the agency’s submission of fraudulent reimbursement claims
for services provided to P.O. We therefore reject Turner’s challenge to her
conviction on Count 8 of the indictment.
B.
Next, Turner argues that the district court constructively amended the
indictment by instructing the jury that she could be convicted of aiding and
abetting executions of the healthcare-fraud scheme.
The Fifth Amendment’s Grand Jury Clause “guarantees that a criminal
defendant will be tried only on charges alleged in a grand jury indictment.”
United States v. Threadgill, 172 F.3d 357, 370 (5th Cir. 1999). A jury
instruction violates this guarantee if it “constructively amends an
indictment”—that is, if it permits the jury “to convict on an alternative basis .
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. . not charged in the indictment.” Daniels, 252 F.3d at 413–14 (internal
quotation marks omitted).
The district court instructed the jury that it could find Turner guilty on
an aiding-and-abetting theory. Turner now argues that, in doing so, the
district court constructively amended the indictment—an indictment that,
Turner says, charged her with substantive counts of healthcare fraud and with
conspiracy to commit healthcare fraud, but not with aiding and abetting. As
noted supra pp. 5–6, Turner did not object to the jury instructions, so our
review is for plain error. Applying plain-error review, Turner’s constructive-
amendment argument fails on the first prong of plain error, for reasons both
factual and legal.
Factually, the premise of Turner’s argument—that, as she says, she “was
not indicted, pursuant to 18 U.S.C. § 2, for . . . committing health care fraud by
aiding and abetting”—is contradicted by the face of the indictment. As the
government points out, under the counts relevant here, the indictment alleges
that Turner “submitted and aided and abetted the submission of false and
fraudulent claims to Medicare” (emphasis added). To be sure, the indictment
does not specifically cite the aiding-and-abetting statute. But to sufficiently
charge an offense, an indictment need not specifically cite the relevant statute;
instead, it must only “allege each essential element of the offense charged so
as to enable the [defendant] to prepare his defense and to allow the [defendant]
to invoke the double jeopardy clause in any subsequent proceeding.” See
Threadgill, 172 F.3d at 373. Because the indictment in fact charged Turner
with aiding and abetting, the district court’s aiding-and-abetting instruction
did “not broaden the possible bases of conviction beyond what is embraced by
the indictment,” and therefore “did not constitute a constructive amendment.”
United States v. McGilberry,
480 F.3d 326, 332 (5th Cir. 2007) (emphasis and
internal quotation marks omitted).
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In any event, this court’s precedent dictates that the district court’s
aiding-and-abetting instruction would have been permissible even had the
indictment not mentioned aiding and abetting. “Aiding and abetting is not a
separate offense, but it is an alternative charge in every indictment, whether
explicit or implicit.” United States v. Neal, 951 F.2d 630, 633 (5th Cir. 1992).
Thus, the “general rule” is that “an aiding and abetting instruction may be
given to the jury even though the indictment does not specifically mention
aiding and abetting, so long as evidence is introduced to support an aiding and
abetting conviction.” United States v. Botello,
991 F.2d 189, 191–92 (5th Cir.
1993). Turner identifies no reason why this “general rule” should not govern
here, 4 nor does she make any showing of “unfair surprise.” See United States
v. Turner,
674 F.3d 420, 442 (5th Cir. 2012) (“We will only reverse a decision
to give an aiding and abetting instruction when there has been a showing of
unfair surprise.”).
In sum, the district did not err in giving the aiding-and-abetting
instruction here.
C.
The district court found that Turner’s fraudulent scheme caused over $3
million in monetary loss to Medicare. Using that figure, the district court
applied an 18-level enhancement to Turner’s offense level under U.S.S.G.
4In United States v. Lopez, 392 F. App’x 245 (5th Cir. 2010), we recognized a situation
in which the “general rule” may not apply. There, a defendant who was “indicted solely on
principal liability under 8 U.S.C. § 1324” argued (for the first time on appeal) that the district
court constructively amended his indictment by giving an aiding-and-abetting instruction.
Id. at 249. Because § 1324 is a “unique” statute in that it “distinguishes for purposes of
punishment between a principal and an aider and abetter,” the Lopez court assumed, without
deciding, that the district court’s aiding-and-abetting instruction was error, and resolved the
case on a different prong of plain-error review.
Id. at 250–52. Turner cites Lopez, but it is
inapposite: unlike § 1324, Turner’s statute of conviction—§ 1347—draws no distinction
between principals and aiders and abetters.
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§ 2B1.1(b)(1)(J). Turner now argues that the district court clearly erred in
finding the amount of loss attributable to her fraudulent scheme.
“The amount of loss resulting from the fraud is a specific offense
characteristic that increases the base offense level under the U.S. Sentencing
Guidelines.” United States v. Isiwele, 635 F.3d 196, 202 (5th Cir. 2011). Loss
is determined using “the greater of actual . . . or intended loss.” § 2B1.1 cmt.
n.3(A). Under the relevant-conduct guideline, the loss amount attributable to
the defendant may include losses resulting from “all reasonably foreseeable
acts and omissions of others in furtherance of . . . jointly undertaken criminal
activity.”
Id. § 1B1.3(a)(1)(B). A “jointly undertaken criminal activity,” in turn,
is defined as “a criminal plan, scheme, endeavor, or enterprise undertaken by
the defendant in concert with others.”
Id. § 1B1.3 cmt. n.2.
Applying § 1B1.3(a)(1)(B), the presentence report (PSR) calculated the
actual loss attributable to Turner to be the total amount of the fraudulent
claims paid by Medicare to all three home-health agencies involved in the
scheme (i.e., Houston Compassionate, Jackson Home Health, and Prestige)—
$3,011,899.09. The PSR reached this figure by adding together the claims paid
to each of the three agencies based on invalid physician countersignatures and
on patients whose health information had been stolen by Thomas, then
subtracting the amount of overlap between these two categories of claims. The
district court adopted the PSR’s findings, and thus applied the 18-level
enhancement to Turner’s base-offense level.
On appeal, Turner argues that she should not be held accountable for
the portion of the district court’s loss amount attributable to fraudulent claims
paid to Jackson Home Health. She stresses that her ties to Jackson Home
Health are weaker than her ties to the other two agencies: while she owned
Houston Compassionate and provided nursing and administrative services at
Prestige, her brother, Valdie Jackson, was the owner, registered agent, and
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director of Jackson Home Health. Furthermore, she says, while Jackson Home
Health concededly engaged in fraudulent billing practices identical to hers,
there is no evidence that she “jointly undert[ook] in the distinct business of
Jackson Home Health.” Finally, citing this court’s decision in United States v.
Ekanem, she asserts that, even though she knew of Jackson Home Health’s
fraudulent practices, knowledge alone is an insufficient basis on which to
attribute losses caused by Jackson Home Health to her under § 1B1.3(a)(1)(B).
See 555 F.3d 172, 176 (5th Cir. 2009) (“Ekanem’s mere awareness that Usanga
was operating an identical fraudulent scheme is insufficient to hold Ekanem
responsible for Usanga’s actions.”).
We find no clear error, however, in the district court’s holding Turner
responsible for losses caused by Jackson Home Health’s fraudulent activities.
See, e.g., United States v. Wall, 180 F.3d 641, 644 (5th Cir. 1999) (“A district
court’s determination of what constitutes relevant conduct for purposes of
sentencing is reviewed for clear error.”). First, as for the losses caused by
Jackson Home Health’s billing Medicare based on stolen patient information,
there is ample evidence that Turner jointly undertook that activity: she
financed the procurement of the information from Thomas; directed Jackson to
establish Jackson Home Health in order to spread out the patient population
and thereby avoid government scrutiny; and distributed the patients recruited
using the stolen patient information to the three home-health agencies
involved in the scheme, including Jackson Home Health. Similarly, there is
evidence that Turner jointly undertook Jackson Home Health’s billing
Medicare based on improper CMS-485s: she personally signed off on some of
the improper CMS-485s using her registered-nurse credentials; she received
around $9,000 in compensation from Jackson Home Health; and, again,
Jackson Home Health was established in the first place on her instructions.
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Given this extensive evidence that Turner “jointly undert[ook]” the
fraudulent activities of Jackson Home Health, we cannot say that the district
court erred in including Jackson Home Health’s fraudulent billing as part of
Turner’s relevant conduct for the purposes of § 2B1.1(b). 5
D.
Next, Turner challenges the district court’s application of a four-level
“organizer or leader” enhancement to her sentence under U.S.S.G. § 3B1.1(a).
Under the aggravating-role enhancement, § 3B1.1, sentencing courts
apply a four-level enhancement to the defendant’s offense level if the defendant
“was an organizer or leader of a criminal activity that involved five or more
participants or was otherwise extensive.” Id. § 3B1.1(a). If, however, the
defendant was only a “manager or supervisor” of such an activity, the court
enhances the sentence by three levels.
Id. § 3B1.1(b). “In distinguishing a
leadership and organizational role from one of mere management or
supervision, titles . . . are not controlling.”
Id. § 3B1.1 cmt. n.4. Instead, courts
should consider:
the exercise of decision making authority, the nature of
participation in the commission of the offense, the recruitment of
accomplices, the claimed right to a larger share of the fruits of the
5 The district court used the same, $3,011,899.09 figure to determine the amount for
which Turner was jointly and severally liable to Medicare in restitution under the Mandatory
Victims Restitution Act of 1996, 18 U.S.C. § 3663A. Turner has appealed the district court’s
restitution award, but her only argument for why the restitution award is excessive is the
same as her argument for why the district court’s loss-amount calculation under § 2B1.1(b)
is excessive—that she should not be responsible for the fraudulent claims paid to Jackson
Home Health. For the same reasons that Turner’s argument is unpersuasive as to loss
amount, then, it is unpersuasive as to the restitution award. See, e.g., United States v.
Maturin, 488 F.3d 657, 660–61 (5th Cir. 2007) (“[T]his court has held that where a fraudulent
scheme is an element of the conviction, the court may award restitution for actions pursuant
to that scheme.” (emphasis and internal quotation marks omitted)); see also United States v.
Essien, 530 F. App’x 291, 302 (5th Cir. 2013) (“Because a count of [defendant’s] conviction,
health care fraud, requires proof of a scheme as an element, [the] conviction can support a
broad restitution award encompassing the additional losses that were a part of the scheme
as indicted.”).
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crime, the degree of participation in planning or organizing the
offense, the nature and scope of the illegal activity, and the degree
of control and authority exercised over others.
Id. “[A] criminal activity can have more than one organizer or leader.” United
States v. Rodriguez,
897 F.2d 1324, 1327 (5th Cir. 1990); see also § 3B1.1 cmt.
n. 4.
Turner argues that the district court clearly erred in finding that she
was an organizer or leader. See United States v. Alaniz, 726 F.3d 586, 622 (5th
Cir. 2013) (“The district court’s determination that a defendant was a leader
or organizer under subsection 3B1.1(a) is a factual finding that this court
reviews for clear error.” (internal quotation marks omitted)). Although she
acknowledges that she was the owner of Houston Compassionate, she
emphasizes that this title is not controlling. See § 3B1.1 cmt. n.4. Looking
past her title to the substance of the operations at Houston Compassionate,
she asserts that Forster Duru—nominally, her accountant—is more
appropriately considered an organizer or leader. As she points out, Duru
owned the building that housed all three home-health agencies involved in the
scheme. Further, Duru generally “‘ran’ the financial side of the fraud,” Turner
says, while her role “was very compartmentalized to the clinical side.” Thus,
in Turner’s view, while there may have been sufficient evidence to support a
three-level enhancement for her being a manager or supervisor, the district
court’s application of the four-level, organizer-or-leader enhancement was
error.
The government counters that the evidence demonstrates that Turner
“played a lead role” in the fraud, given that she owned both Houston
Compassionate and Texas Comprehensive and was the director of nursing and
an assistant administrator at Prestige. The government also downplays
Duru’s role in the scheme. For one thing, the government asserts, even if Duru
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controlled the businesses’ finances, he was not in charge of illegally recruiting
patients or securing improper doctor signatures on CMS-485s, and those are
the activities that were at “the heart of the scheme.” In any event, the
government continues, a criminal activity may have more than one organizer
or leader. See § 3B1.1 cmt. n.4. Finally, the government concludes, the record
evidence suggests that three of the guideline factors—that the defendant
“exercise[d] . . . decision making authority”; “plann[ed] or organiz[ed] the
offense”; and “control[led]” the actions of others—provide particularly strong
support for the district court’s conclusion that Turner was an organizer or
leader.
We think the government has the better of this argument. First, the
record indeed indicates that Turner both exercised considerable
decisionmaking authority and planned or organized the scheme: as noted, she
authorized Jackson’s paying Thomas for the stolen patient information, and
she was responsible for distributing the illegally recruited patients among the
three home-health agencies. The record further indicates that Turner
exercised a significant degree of control over the actions of others involved in
the scheme: for instance, she directed Jackson to open Jackson Home Health
in order to conceal the offense, and she instructed her employees at Houston
Compassionate to send CMS-485s to the on-staff medical director for his
signature when the agency could not obtain the signature of the patient’s real
doctor. See supra p. 4.
Given this evidence, the district court’s finding that Turner was an
organizer or leader of the criminal activity was at least “plausible in light of
the record read as a whole.” Alaniz, 726 F.3d at 622 (internal quotation marks
omitted).
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E.
Finally, Turner argues that the district court clearly erred in finding that
her offense “involved sophisticated means” in applying a two-level
enhancement to her sentence under U.S.S.G. § 2B1.1(b)(10)(C). In Turner’s
view, her offense did not involve sophisticated means because, “[s]imply put,
the scheme involved using the names and [NPI] numbers of doctors without
their consent so Medicare would pay,” and there is “nothing complex or
intricate about” that.
We find no clear error in the district court’s finding that Turner’s offense
involved sophisticated means. See United States v. Valdez, 726 F.3d 684, 695
(5th Cir. 2013) (“[T]his court reviews the factual finding that [a defendant]
used sophisticated means for clear error.”). For the purposes of the guideline,
“‘sophisticated means’ means especially complex or especially intricate offense
conduct pertaining to the execution or concealment of an offense.” § 2B1.1 cmt.
n.9(B). The application notes to § 2B1.1 flesh out this definition with examples,
including “hiding assets or transactions” and “the use of fictitious entities [or]
corporate shells.” § 2B1.1 cmt. n.9(B). As the government points out, Turner’s
offense involved conduct directly analogous to these examples. She “hid[]” her
payments to Thomas by arranging them to go from her marketing company,
Texas Comprehensive, to Jackson’s billing company, Doctors Choice, while
directing Jackson to generate false invoices to make the payments appear
legitimate. And she instructed Jackson to start his own home-health agency
for the purpose of spreading out the illegally-recruited-patient population so
as not to draw attention to the scheme.
Given the close analogy between Turner’s conduct and conduct that,
according to the application notes, exemplifies “sophisticated means,” we
conclude that the scheme for which the jury convicted Turner “falls squarely
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within the sophisticated means enhancement.” United States v. Collins, 774
F.3d 256, 266 (5th Cir. 2014).
IV.
For these reasons, Turner’s conviction and sentence are
AFFIRMED.
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