LEE H. ROSENTHAL, District Judge.
The attached Court's Instructions to the Jury at Conclusion of Trial was charged to the jury on even date and is to be entered in the record.
Members of the Jury:
In any jury trial there are, in effect, two judges. I am one of the judges; the other is the jury. It is my duty to preside over the trial and to decide what evidence is proper for your consideration. It is also my duty at the end of the trial to explain to you the rules of law that you must follow and apply in arriving at your verdict.
First, I will give you some general instructions that apply in every case, for example, instructions about burden of proof and how to judge the believability of witnesses. Then I will give you some specific rules of law about this particular case, and finally I will explain to you the procedures you should follow in your deliberations.
You, as jurors, are the judges of the facts. But in reaching your decision as to the facts, it is your sworn duty to follow all of the rules of law as I explain them to you. You have no right to disregard or give special attention to any one instruction, or to question the wisdom or correctness of any rule I may state to you. You must not substitute or follow your own notion or opinion as to what the law is or ought to be. It is your duty to apply the law as I explain it to you, regardless of the consequences. It is also your duty to base your verdict solely upon the evidence, without prejudice or sympathy. That was the promise you made and the oath you took before being accepted by the parties as jurors, and they have the right to expect nothing less.
The indictment or formal charge against the defendant is not evidence of guilt. Indeed, the defendant is presumed by the law to be innocent. The law does not require the defendant to prove her innocence or produce any evidence at all and no inference whatever may be drawn from the defendant's election not to testify. The government has the burden of proving the defendant guilty beyond a reasonable doubt, and if it fails to do so, you must acquit the defendant.
While the government's burden of proof is a strict or heavy burden, it is not necessary that the defendant's guilt be proved beyond all possible doubt. It is only required that the government's proof exclude any "reasonable doubt" concerning the defendant's guilt. A "reasonable doubt" is a doubt based upon reason and common sense after careful and impartial consideration of all the evidence in the case. Proof beyond a reasonable doubt, therefore, is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs.
As I told you earlier, it is your duty to determine the facts. In doing so, you must consider only the evidence presented during the trial, including the sworn testimony of the witnesses and the exhibits. Remember that any statements, objections, or arguments made by the lawyers are not evidence. The function of the lawyers is to point out those things that are most significant or most helpful to their side of the case, and in so doing to call your attention to certain facts or inferences that might otherwise escape your notice. In the final analysis, however, it is your own recollection and interpretation of the evidence that controls in the case. What the lawyers say is not binding upon you.
Notes that you may have taken during the trial should be used only as memory aids. You should not give your notes precedence over your independent recollection of the evidence. If you did not take notes, you should rely upon your own independent recollection of the proceedings and you should not be unduly influenced by the notes of other jurors. Notes are not entitled to any greater weight than the memory or impression of each juror as to what the testimony may have been. Whether you took notes or not, each of you must form and express your own opinions as to the facts of the case.
During the trial, I sustained objections to certain questions. You must disregard those questions. Do not speculate as to what the witness would have said if permitted to answer the question. Also, certain testimony has been ordered stricken from the record and you have been instructed to disregard this evidence. Do not consider any testimony that has been stricken in reaching your decision. Your verdict must be based solely on the legally admissible evidence and testimony.
Also, do not assume from anything I may have done or said during the trial that I have any opinion concerning any of the issues in this case. Except for the instructions to you on the law, you should disregard anything I may have said during the trial in arriving at your own findings as to the facts.
While you should consider only the evidence, you are permitted to draw such reasonable inferences from the testimony and exhibits as you feel are justified in the light of common experience. In other words, you may make deductions and reach conclusions that reason and common sense lead you to draw from the facts that have been established by the evidence. You should not be concerned about whether the evidence is direct or circumstantial. "Direct evidence" is the testimony of one who asserts actual knowledge of a fact, such as an eye witness. "Circumstantial evidence" is proof of a chain of events and circumstances indicating that something is or is not a fact. The law makes no distinction between the weight you may give to either direct or circumstantial evidence.
I remind you that it is your job to decide whether the government has proved the guilt of the defendant beyond a reasonable doubt. In doing so, you must consider all of the evidence. This does not mean, however, that you must accept all of the evidence as true or accurate. You are the sole judges of the credibility or "believability" of each witness and the weight to be given the witness's testimony. An important part of your job will be making judgments about the testimony of the witnesses who testified in this case. You should decide whether you believe all or any part of what each person had to say, and how important that testimony was. In making that decision, I suggest that you ask yourself a few questions. Did the person impress you as honest? Did the witness have any particular reason not to tell the truth? Did the witness have a personal interest in the outcome of the case? Did the witness have any relationship with either the government or the defense? Did the witness seem to have a good memory? Did the witness clearly see or hear the things about which he testified? Did the witness have the opportunity and ability to understand the questions clearly and answer them directly? Did the witness's testimony differ from the testimony of other witnesses? These are a few of the considerations that may help you determine the accuracy of what each witness said. Your job is to think about the testimony of each witness you have heard and decide how much you believe of what each witness had to say. In making up your mind and reaching a verdict, do not make any decisions simply because there were more witnesses on one side. You must always keep in mind that the burden of proof is on the government. The defendant has no burden or duty to prove her innocence, to present any evidence, or to testify.
You heard testimony, including opinions, about the application of Medicare and Medicaid billing regulations, policies, and procedures. If technical or other specialized knowledge might assist the jury in understanding the evidence or in determining a fact in issue, a witness qualified by knowledge, skill, experience, training, or education may testify and state an opinion concerning such matters. Merely because such a witness has expressed an opinion does not mean, however, that you must accept this opinion. You should judge such testimony like any other testimony. You may accept it or reject it, and give it as much weight as you think it deserves, considering the witness's education and experience, the soundness of the reasons given for the opinion, and all the other evidence in the case.
You will note that the indictment charges that the offenses were committed on or about specified dates. The government does not have to prove that each alleged offense was committed on that exact date, so long as the government proves beyond a reasonable doubt that the defendant committed that offense on a date reasonably near the dates stated in the indictment.
You must decide whether the government has proved beyond a reasonable doubt that the defendant is guilty of the crime charged. The defendant is not on trial for any act, conduct, or offense not alleged in the indictment. Neither are you concerned with the guilt of any other person or persons not on trial as a defendant in this case, except as you are otherwise instructed.
If the defendant is found guilty, it will be my duty to decide what the punishment will be. You should not be concerned with punishment in any way. It should not enter your consideration or discussion.
A separate crime is charged against the defendant in each count of the indictment. Each count, and the evidence pertaining to it, should be considered separately. The fact that you may find the defendant guilty or not guilty of any of the crimes charged should not control your verdict as to any other crime. You must give separate consideration to the evidence as to each count.
Charts and summaries admitted into evidence, such as Exhibits 6.2, 29, 29.1, and 29.2, are valid only to the extent that they accurately reflect the underlying supporting evidence. You should give them only such weight as you think they deserve.
The word "knowingly," as that term is used in these instructions, means that the act was done voluntarily and intentionally, not because of mistake or accident.
The word "willfully," as that term is used in these instructions, means that the act was committed voluntarily and purposely, with the specific intent to do something the law forbids; that is to say, with bad purpose either to disobey or disregard the law.
The indictment in this case alleges that the defendant, Ms. Andrea Michelle Tellison, was a coowner and manager of the Texas Durable Medical Company. This company described itself as providing durable medical equipment to individuals covered by Medicare and Medicaid benefits. These individuals are often referred to as Medicare or Medicaid "beneficiaries."
The defendant is charged in Counts 1 to 14 with specific instances of defrauding a health care benefit program, in violation of Title 18, United States Code, Section 1347, and Title 18, United States Code, Section 2.
For you to find the defendant guilty of any of these counts, you must be convinced that the government has proved each of the following elements, beyond a reasonable doubt:
A "scheme or plan to defraud" means any plan, pattern, or course of action involving a false or fraudulent pretense, representation, or promise intended to deceive others in order to obtain something of value, such as money, from the health care benefit program to be deceived.
A defendant acts with the necessary "intent to defraud" if the defendant acted knowingly and willfully, with the specific intent to deceive, ordinarily for the purpose of causing some financial loss to another or bringing about some financial gain to the defendant.
A representation is "false" if it is known to be untrue or is made with reckless indifference as to its truth or falsity. A representation is also "false" when it constitutes a half truth, or effectively omits or conceals a material fact, provided it is made with intent to defraud.
A false statement is "material" if it has a natural tendency to influence, or is capable of influencing, the decision of the person or entity to which it is addressed.
The term "health care benefit program" is defined as "any public or private plan or contract, affecting commerce, under which any medical benefit, item, or service is provided to any individual." A "health care benefit program" includes any individual or entity who is providing a medical benefit, item, or service, for which payment may be made under the plan or contract. The indictment alleges that Medicare and Medicaid are health care benefit programs. Medicare and Medicaid affect interstate commerce if they have any effect, even minimal, on commerce between one State of the United States and another State. "Commerce" includes travel, trade, transportation, and communication.
It is not necessary that the government prove all of the details alleged in the indictment concerning the precise nature of the alleged scheme, or that the alleged scheme actually succeeded in defrauding someone. With respect to the specific amounts of money listed in Counts 1 to 14 "amounts billed," it is not necessary for you to determine whether these amounts were the amounts actually billed. What must be proven beyond a reasonable doubt is that the defendant knowingly and willfully executed a scheme that was substantially similar to the scheme alleged in the indictment.
You have heard testimony that Texas Durable Medical Company may not have met all of the requirements specified in the Medicare or Medicaid regulations for the amounts billed for enteral nutrition products to be considered "medically necessary" and to be covered by Medicare under these regulations. A violation of a regulation is not in itself a criminal offense. Such a violation may subject a company or an individual to civil penalties, but that is not the same thing as a crime. To show that the defendant committed the charged criminal offenses of defrauding a health care benefit program, the government must prove all the elements of the crimes charged, beyond a reasonable doubt.
Evidence that may show noncompliance with a regulation's requirements does not necessarily show that the defendant possessed the necessary intent or state of mind to commit the crimes charged. Nor does such evidence meet the government's burden of proving each element of the alleged crimes, beyond a reasonable doubt. Only if you find beyond a reasonable doubt from the other evidence in this case that the defendant did commit the acts charged in the indictment may you then consider the evidence of a violation of a regulation for the limited purpose of determining whether the defendant had the required state of mind or intent necessary to commit the crimes charged.
With respect to Counts 1 to 14, the government also charges that the defendant aided and abetted the commission of these alleged offenses, in violation of Title 18, United States Code, Section 2. Under Title 18, United States Code, Section 2, the guilt of a defendant in a criminal case may be established without proof that he personally did every act constituting the offense alleged. The law recognizes that, ordinarily, anything a person can do for himself or herself may also be accomplished through directing another person as his or her agent, or by acting in concert with, or under the direction of, another person or persons in a joint effort or enterprise.
Title 18, United States Code, Section 2, provides:
If the acts or conduct of an agent, employee, or other associate of the defendant are willfully directed or authorized by her, or if the defendant aids and abets another person by willfully joining together with such person in the commission of a crime, then the law holds the defendant responsible for the acts and conduct of such other persons just as though she had committed the acts or engaged in such conduct herself. Notice, however, that before the defendant may be held criminally responsible for the acts of others, it is necessary that the defendant willfully associate herself in some way with the criminal venture, and willfully participate in it as she would in something she wishes to bring about; that is to say, that she willfully seeks by some act or omission to make the criminal venture succeed.
Of course, mere presence at the scene of a crime and knowledge that a crime is being committed are not sufficient to establish that a defendant either directed or aided and abetted the crime unless you find beyond a reasonable doubt that the defendant was a participant and not merely a knowing spectator. In other words, you may not find the defendant guilty under Title 18, United States Code, Section 2, unless you find beyond a reasonable doubt that every element of the offense as defined in these instructions was committed by some person or persons, and that the defendant willfully participated in its commission.
The defendant is charged in Count 15 to 19 with aggravated identity theft, in violation of Title 18, United States Code, Section 1028A. Title 18, United States Code, Section 1028A makes it a crime to knowingly possess or use a means of identification of another person while committing certain felonies.
For you to convict the defendant of aggravated identity theft, in violation of Title 18 United States Code, Section 1028A, you must be convinced that the government has proved each of the following beyond a reasonable doubt:
The term "means of identification" means any name or number that may be used alone or in conjunction with any other information to identify specific individual, including name, social security number, date of birth, or official state or government issued driver's license or identification.
To reach a verdict, whether it is guilty or not guilty, all of you must agree. Your verdict must be unanimous on each count of the indictment. Your deliberations will be secret. You will never have to explain your verdict to anyone.
It is your duty to consult with one another and to deliberate in an effort to reach agreement if you can do so. Each of you must decide the case for yourself, but only after an impartial consideration of the evidence with your fellow jurors. During your deliberations, do not hesitate to reexamine your own opinions and change your mind if convinced that you were wrong. But do not give up your honest beliefs as to the weight or effect of the evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.
Remember at all times, you are judges—judges of the facts. Your duty is to decide whether the government has proved the defendant guilty beyond a reasonable doubt.
When you go to the jury room, the first thing that you should do is select one of your number as your foreperson, who will help to guide your deliberations and will speak for you here in the courtroom. A form of verdict has been prepared for your convenience. The foreperson will write the unanimous answer of the jury in the space provided for each count of the indictment, either guilty or not guilty. At the conclusion of your deliberations, the foreperson should date and sign the verdict. If you need to communicate with me during your deliberations, the foreperson should write the message and give it to the marshal. I will either reply in writing or bring you back into the court to answer your message.
Bear in mind that you are never to reveal to any person, not even to the court, how the jury stands, numerically or otherwise, on any count of the indictment, until after you have reached a unanimous verdict.
