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 the burden of proof and how to judge the believability of witnesses. I will then give you some definitions for words that are used in the instructions on one or more counts of the indictment, followed by instructions on specific rules of law for each of the counts in the indictment against each of the defendants. 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 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 on 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 a defendant is not evidence of guilt. Indeed, each defendant is presumed by the law to be innocent. Indeed, the law does not require any defendant to prove his or her innocence or to produce any evidence at all, and no inference whatsoever may be drawn from a defendant's election not to testify. As I told you earlier, a defendant has an absolute right not to testify, and you may not consider or discuss in your deliberations the fact that any defendant did not testify. The prosecution has the burden of proving each defendant guilty beyond a reasonable doubt, and if it fails to do so, you must acquit that defendant.
While the prosecution'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 required that the prosecution's proof exclude any "reasonable doubt" concerning the defendant's guilt. A "reasonable doubt" is a doubt based on reason and common sense after careful and impartial consideration of all the evidence in the case. Proof beyond a reasonable doubt is proof of such a convincing character that you would be willing to rely and act on it without hesitation in the most important of your own affairs.
A separate crime is charged against some or all of the defendants in each count of the indictment. You must consider the case as to each defendant — Mr. Earnest Gibson III, Mr. Earnest Gibson IV, Ms. Regina Askew, and Mr. Robert Crane — separately and individually. Some of the defendants are charged in some counts but not in others; others are charged in every count. You must also consider each count, and the evidence that relates to it, separately. The fact that you may find one or more of the defendants guilty or not guilty of any of the crimes charged should not control your verdict as to any other crime or any other defendant. You must give separate consideration to the evidence as to each defendant in each of the counts charged.
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 all of the statements, objections, and arguments made by the lawyers are not evidence. The lawyers' function 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. What the lawyers say is not binding on 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 on your own independent recollection of the proceedings and you should not be unduly influenced by other jurors' notes. Notes are not entitled to any greater weight than each juror's memory or impression as to what the testimony was. Whether you took notes or not, each of you must form and express your own opinion on 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 prosecution 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 to 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 prosecution or the defense? Did the witness seem to have a good memory? Did the witness clearly see or hear the things about which he or she 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 prosecution. No defendant has the burden or duty to prove his or her innocence, to present any evidence, or to testify.
One way the testimony of a witness may be discredited is by showing that the witness testified falsely, or that at some other time the witness said or did something, or failed to say or do something, which is inconsistent with the testimony the witness gave at this trial. A witness's earlier statements were not admitted in evidence to prove that the contents of the earlier statement were true, and you may not consider the earlier statements as such proof. Rather, you may use the earlier statements only to determine whether you think they are consistent with the witness's trial testimony and whether they affect that witness's credibility. If you believe that a witness has been discredited in this manner, it is your exclusive right to give that witness's testimony whatever weight you think it deserves.
The prosecution called as witnesses Sharonda Holmes, Leslie Clark, Robert Ferguson, Okechukwu Ofoegbu, Lawrence Willis, and Julian Kimble. These witnesses were alleged accomplices who faced criminal charges of their own. These individuals have entered plea agreements providing for the dismissal of some charges and the possibility of a lesser sentence than they would otherwise be exposed to for the offense to which they pleaded guilty. Such plea bargaining, as it is called, has been approved as lawful and proper, and is expressly provided for in court rules. An alleged accomplice, including one who has entered into a plea agreement with the prosecution, is not prohibited from testifying. On the contrary, the testimony of such a witness may alone be of sufficient weight to sustain a verdict of guilty. You should keep in mind that such testimony is always to be received with caution and weighed with great care. You should never convict a defendant on the unsupported testimony of an alleged accomplice unless you believe that testimony beyond a reasonable doubt. The fact that an alleged accomplice has pleaded guilty to the offense charged is not evidence of the guilt of any other person. The fact that these witnesses pleaded guilty to a federal crime is one factor you may consider in deciding whether to believe them, but it does not necessarily destroy their credibility.
You have heard evidence that two witnesses, Lawrence Willis and Leslie Clark, were previously convicted of drug offenses, and that Leslie Clark was also convicted of theft. A conviction is a factor you may consider in deciding whether to believe a witness, but it does not necessarily destroy the witness's credibility. It has been brought to your attention only because you may wish to consider it when you decide whether you believe the witness's testimony. It is not evidence of anything else.
You heard the testimony of Dr. Patrick Triplett, who expressed opinions about the compliance or noncompliance with applicable Medicare regulations governing billing for Partial Hospitalization Program services. If scientific, 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 his opinion, and all other evidence in the case.
You will note that the indictment charges that the offenses were committed on or about specified dates. The prosecution does not have to prove that each alleged offense was committed on that exact date, so long as the prosecution proves beyond a reasonable doubt that a defendant committed that offense on a date reasonably near the dates stated in the indictment.
You must decide whether the prosecution has proved beyond a reasonable doubt that each defendant is guilty of the crimes charged. The defendants are 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 in this case, except as you are otherwise instructed.
If a 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.
Some charts and summaries have been received into evidence. They are prosecution Exhibits 300 to 309, 309a, 309b, 310, 311, 311a, and 312 to 326, and defense Exhibits 767 and 768. Charts and summaries 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.
Certain words are used in one or more of the instructions on the specific counts in the indictment. This section of the instructions defines those words as they are used in these instructions.
The word "knowingly" means that the act was done voluntarily and intentionally, not because of mistake or accident.
The word "willfully" means that the act was committed voluntarily and purposely, with the intent to do something the law forbids; that is to say, with bad purpose either to disobey or disregard the law. While a person must have acted with the intent to do something the law forbids for you to find that the person acted "willfully," the person need not know what specific law or rule his or her conduct violates.
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 acts knowingly and 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 it is addressed to.
A "health care benefit program" is any public or private plan or contract, affecting commerce, under which any medical benefit or service is provided. A "health care benefit program" includes any individual or entity that provides a medical benefit or service, for which payment may be made under the plan or contract. Medicare is a health care benefit program.
The indictment in this case alleges that the defendants committed specific offenses relating to Partial Hospitalization Program services provided to individuals covered by Medicare. These individuals are often referred to as Medicare "beneficiaries."
You have heard testimony about Medicare's civil regulations and rules for Partial Hospitalization Programs. The evidence includes Local Coverage Determinations about what types of services Medicare will cover, or pay for, for Partial Hospitalization Programs under the regulations and rules. A violation of a regulation or rule 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 one or more of the defendants committed the charged criminal offenses of defrauding Medicare, the prosecution must prove all the elements of the crimes charged, beyond a reasonable doubt. Evidence that may show noncompliance with a regulation or a rule does not necessarily show that any of the defendants had the necessary intent or state of mind to commit the crimes charged. Nor does such evidence meet the prosecution'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 under consideration did commit the acts charged in the indictment may you then consider the evidence of a violation of a regulation or rule for the limited purpose of determining whether that defendant had the knowing and willful state of mind or intent necessary to commit the crimes charged.
Count 1 of the indictment charges Mr. Earnest Gibson III, Mr. Earnest Gibson IV, and Ms. Regina Askew with conspiring from in or around January 2005 through in or around June 2012 to commit health care fraud by submitting billings to Medicare falsely stating that the services billed were both medically necessary and actually provided. Count 2 charges Mr. Earnest Gibson III, Mr. Earnest Gibson IV, Ms. Regina Askew, and Mr. Robert Crane with conspiring to violate the anti-kickback law by soliciting, offering, making, or receiving payments to get patients for services that Medicare wholly or partly pays for, in this case, for Riverside General Hospital or one of its Partial Hospitalization Programs. Counts 3 to 9 and 11 to 12 charge Mr. Earnest Gibson III, Mr. Earnest Gibson IV, and Ms. Regina Askew with specific violations of the anti-kickback law, that is, with specific instances of soliciting, offering, making, or receiving payments in some form to get patients for services at Riverside General Hospital or one of its Partial Hospitalization Programs that Medicare would pay for in whole or in part. These three defendants are also charged with aiding and abetting the commission of these offenses. Count 13 charges Mr. Earnest Gibson III and Mr. Earnest Gibson IV with money laundering.
I am going to instruct you first on Count 1, which charges conspiracy to defraud Medicare by submitting fraudulent billings against Mr. Earnest Gibson III, Mr. Earnest Gibson IV, and Ms. Regina Askew. I will then instruct you on the counts relating to the alleged kickbacks, and will begin with Counts 3 to 9 and 11 to 12 against Mr. Earnest Gibson III, Mr. Earnest Gibson IV, and Ms. Regina Askew, which charge specific instances of violations of the anti-kickback law. I will then give you instructions on Count 2, which charges all four defendants with conspiracy to violate the anti-kickback law. Finally, I will instruct you on Count 13, which alleges conspiracy to commit money laundering against Mr. Earnest Gibson III and Mr. Earnest Gibson IV.
Count 1 of the indictment charges Mr. Earnest Gibson III, Mr. Earnest Gibson IV, and Ms. Regina Askew with conspiracy to defraud a health care benefit program, in violation of Title 18, United States Code, Sections 1347 and 1349, by falsely billing Medicare. Section 1347 makes it a crime for anyone, in connection with the delivery of any health care benefits or services, to knowingly and willfully execute or attempt to execute a scheme to: (1) defraud any health care benefit program; or (2) to obtain, by means of materially false or fraudulent representations or statements, money under the custody or control of Medicare. Section 1349 makes it a crime for anyone to conspire with someone else to do something that, if carried out, would violate Section 1347.
These three defendants are charged with conspiring to execute and attempting to execute a scheme to obtain money from Medicare by means of false and fraudulent representations and statements made in connection with the delivery of, and payment for, health care benefits and services. The indictment alleges in Count 1 that the purpose of the conspiracy was for these three defendants and other coconspirators to unlawfully enrich themselves: by submitting false and fraudulent payment claims to Medicare through the Riverside General Hospital for Partial Hospitalization Program services that were not medically necessary and, in some cases, not provided; by concealing the submission of false and fraudulent claims; and by diverting proceeds of the fraud for the defendants' and their coconspirators' personal use and benefit. Count 1 also alleges some of the acts of these three defendants in carrying out the conspiracy.
A "conspiracy" is an agreement between two or more persons to join together to accomplish some unlawful purpose. It is a kind of "partnership in crime" in which each member becomes the agent of every other member.
For you to find any of these three defendants guilty of conspiracy to commit health care fraud, you must be convinced that the prosecution has proved each of the following as to that defendant, beyond a reasonable doubt:
To determine whether Mr. Earnest Gibson III, Mr. Earnest Gibson IV, or Ms. Regina Askew knowingly and intentionally conspired, with each other or with others, to commit health care fraud, as charged in the indictment, you must consider the elements of the crime of health care fraud. This is the crime alleged to be the object of the conspiracy. The prosecution does not have to prove beyond a reasonable doubt that any of the defendants actually committed this crime. Instead, the prosecution's burden is to prove beyond a reasonable doubt that one or more of the defendants committed the crime of conspiracy to commit health care fraud. I am instructing you on the elements of this object crime only to assist you in determining whether the prosecution has proved beyond a reasonable doubt each of the elements of conspiracy to commit that crime.
The elements of health care fraud are:
As noted, Medicare is a health care benefit program.
A person may become a member of the conspiracy without knowing all the details of the unlawful scheme or the identities of all the other alleged conspirators. If a defendant understands the unlawful nature of the plan or scheme and knowingly and intentionally joins in it on one occasion, that is enough to convict him or her of conspiracy, even though he or she had not participated before and even though he or she played only a minor part.
The prosecution need not prove that the alleged conspirators entered into any formal agreement, or that they directly stated between themselves all the details of the scheme. Similarly, the prosecution need not prove that all the details of the scheme alleged in the indictment were actually agreed upon or carried out. Nor must it prove that all the persons alleged to have been members of the conspiracy were in fact members, or that the alleged conspirators actually succeeded in accomplishing their unlawful objectives.
Mere presence at the scene of an event, even with knowledge that a crime is being committed, or the mere fact that certain persons may have associated with each other, and may have assembled together and discussed common aims and interests, does not alone establish proof of the existence of a conspiracy. A person who has no knowledge of a conspiracy, but who happens to act in a way that advances some purpose of a conspiracy, does not thereby become a conspirator.
The definitions of "scheme to defraud," "intent to defraud," "knowingly," "willfully," a "false" representation, and a "material" false representation are given on pages 11 to 12 of these instructions. These definitions apply to your consideration of whether the prosecution has proved each element of the conspiracy offense charged in Count 1 as to each of the three defendants charged in that count, beyond a reasonable doubt.
There is one other instruction that applies to the second and third elements of Count 1 as it relates to Mr. Earnest Gibson III. As to this defendant, you are instructed that you may also find that he had knowledge of a fact if you find that he was deliberately indifferent to that fact. You may find that Mr. Gibson III had knowledge of a fact if you find that he deliberately closed his eyes to what would otherwise have been obvious to him. While knowledge on the part of this defendant cannot be established merely by showing that he was negligent, careless, or foolish, his knowledge of a fact can be inferred if you find, beyond a reasonable doubt, that he deliberately blinded himself to the existence of that fact.
Three defendants — Mr. Earnest Gibson III, Mr. Earnest Gibson IV, and Ms. Regina Askew — are charged in Counts 3 to 9 and 11 to 12 with specific instances of soliciting or offering, or paying or receiving, payments, in cash or in kind, in violation of Title 42, United States Code, Section 1320a-7b(b), and Title 18, United States Code, Section 2. Section 1320a-7b(b) makes it a crime for anyone to knowingly and willfully solicit, offer, pay, or receive any remuneration — including any kickback or bribe — directly or indirectly, openly or secretly, in cash or in kind, in return for referring a patient or for inducing a person or entity to refer a patient to a person or entity for: 1) any service that Medicare may pay for, in whole or in part; or 2) purchasing, ordering, and arranging for, or recommending the purchase, order, or arrangement of any service that Medicare may pay for, in whole or in part.
For you to find a defendant guilty of any of these counts, you must be convinced that the prosecution has proved, as to the particular count and as to the defendant under consideration, each of the following elements, beyond a reasonable doubt:
The definitions of "knowingly" and "willfully" on page 11 apply.
Count 3 charges that Mr. Earnest Gibson III paid an illegal $2,500 kickback to Ms. Regina Askew on or about February 18, 2011.
Count 4 charges that Mr. Earnest Gibson III paid an illegal $2,000 kickback to Ms. Regina Askew on or about April 28, 2011.
Count 5 charges that Mr. Earnest Gibson III paid an illegal $3,000 kickback to Ms. Regina Askew on or about May 10, 2011.
Count 6 charges that Mr. Earnest Gibson III paid Mr. Robert Ferguson an illegal $2,500 kickback on or about May 12, 2011.
Count 7 charges that Mr. Earnest Gibson III paid Mr. William Bullock III and Ms. Leslie Clark an illegal $1,950 kickback on or about May 17, 2011.
Count 8 charges that Mr. Earnest Gibson III paid Mr. Robert Ferguson an illegal $2,500 kickback on or about May 26, 2011.
Count 9 charges that Mr. Earnest Gibson III paid Mr. William Bullock III and Ms. Leslie Clark an illegal $1,950 kickback on or about May 31, 2011.
Count 11 charges that Mr. Earnest Gibson III and Mr. Earnest Gibson IV paid Ms. Sharonda Holmes an illegal $3,400 kickback on or about November 18, 2011. Count 12 charges that Mr. Earnest Gibson III and Mr. Earnest Gibson IV paid Ms. Sharonda Holmes an illegal $3,200 kickback on or about December 6, 2011.
With respect to Counts 3 to 9 and 11 to 12, you are instructed that a Medicare service provider such as Riverside General Hospital or its Partial Hospitalization Programs is permitted to pay a person or entity to do marketing to attract business, including business for which Medicare coverage would be available. The prosecution has the burden of proving beyond a reasonable doubt, as to each of the nine alleged payments, that the payment was not for legitimate general marketing but rather to obtain the referral of patients to Riverside General Hospital or one of its Partial Hospitalization Programs. Payments made in whole or in part for patient referrals violate the anti-kickback law.
You must first decide if the prosecution has proved beyond a reasonable doubt that one or more of the nine alleged payments was for the referral of patients to Riverside General Hospital or one of its Partial Hospitalization Programs. If so, then you must consider whether that payment was protected from prosecution. Payments by an employer to an employee for patient referrals qualify for protection from prosecution if you find that the defendant has proved two elements, by a preponderance of the evidence. That is a different standard of proof than "beyond a reasonable doubt," and it is the only time a defendant has the burden of proof. To prove a fact by a preponderance of the evidence means to prove that the fact is more likely so than not so. This is a lower burden than what is required to prove a fact beyond a reasonable doubt.
The two elements that a defendant must prove by a preponderance of the evidence to establish that a payment was protected from prosecution are as follows:
The first element asks whether the person being paid was an employee of Riverside General Hospital or one of its Partial Hospitalization Programs, on the one hand, or was working as an independent contractor on the other. In making this decision, you should consider whether the indications that a person is an employee and not an independent contractor are present. The indications of an employee are that Riverside General Hospital or one of its Partial Hospitalization Programs had the right to control the manner and means of the work that person performed, that it controlled his or her work hours or location, that he or she was paid a salary, and that his or her work was part of the regular business of Riverside General Hospital or one of its Partial Hospitalization Programs.
As to the second element, you are instructed that an employer may pay an employee for services that Medicare may pay for. But an employer may not pay an employee knowing or specifically intending that the employee will use all or part of that compensation to offer or make payments for referring patients or knowing or intending to pay the employee for referring patients.
The word "offer" in Counts 3 to 9 and 11 to 12 is defined as a representation of the ability and desire to pay remuneration — including any kickback, bribe, or benefit, in cash or in kind — coupled with the intent to induce a desired action.
Besides the definitions of "knowingly" and "willfully" that apply to all the defendants charged in these counts, there is one other instruction that applies to the fourth element of Counts 3 to 9 and 11 to 12 as they relate to Mr. Earnest Gibson III. As to this defendant, you are instructed that you may also find that he had knowledge of a fact if you find that he was deliberately indifferent to that fact. You may find that Mr. Gibson III had knowledge of a fact if you find that he deliberately closed his eyes to what would otherwise have been obvious to him. While knowledge on the part of this defendant cannot be established merely by showing that he was negligent, careless, or foolish, his knowledge of a fact can be inferred if you find, beyond a reasonable doubt, that he deliberately blinded himself to the existence of that fact.
With respect to Counts 3 to 9 and 11 to 12, the prosecution also charges that the defendants aided and abetted the commission of these alleged offenses under Title 18, United States Code, Section 2. Under this law, the guilt of a defendant in a criminal case may be established without proof that he or she personally did every act constituting the offense alleged. This law recognizes that, ordinarily, anything a person can do for himself or herself may also be accomplished by him or her through direction of 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.
If the acts or conduct of an agent, employee, or other associate of the defendant are willfully directed or authorized by him or 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 he or she had committed the acts or engaged in such conduct himself or herself. Notice, however, that before any defendant may be held criminally responsible for the acts of others, it is necessary that the defendant willfully associate himself or herself in some way with the criminal venture, and willfully participate in it as he or she would in something he or she wishes to bring about; that is to say, that he or 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 a 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.
All of the defendants are charged in Count Two with conspiring to violate the anti-kickback law, in violation of Title 18, United States Code, Section 371, from in or around January 2005 to in or around June 2012. This law makes it a crime for anyone to conspire with someone else to commit an offense against the laws of the United States.
As I told you earlier, a "conspiracy" is an agreement between two or more persons to join together to accomplish some unlawful purpose.
For you to find a defendant guilty of this crime, you must be convinced that the prosecution has proved each of the following, beyond a reasonable doubt:
The definitions of the terms "knowingly" and "willfully" are described on page 11 of these instructions.
As with Count 1, a person may become a member of a conspiracy without knowing all the details of the unlawful scheme or the identities of all the other alleged conspirators. If a defendant understands the unlawful nature of a plan or scheme and knowingly and intentionally joins in that plan or scheme on one occasion, that is sufficient to convict him or her for conspiracy even though the defendant had not participated before and even though the defendant played only a minor part.
The prosecution need not prove that the alleged conspirators entered into any formal agreement, or that they directly stated between themselves all the details of the scheme. An agreement between coconspirators may be silent; it need not be spoken. Similarly, the prosecution need not prove that all of the details of the scheme alleged in the indictment were actually agreed upon or carried out. Nor must it prove that every person alleged to have been a member of the conspiracy was in fact a member, or that the alleged conspirators actually succeeded in accomplishing their unlawful objectives.
Mere presence at the scene of an event, even with knowledge that a crime is being committed, or the mere fact that certain persons may have associated with each other, and may have assembled together and discussed common aims and interests, does not alone establish proof of the existence of a conspiracy. Also, a person who has no knowledge of a conspiracy, but who happens to act in a way that advances some purpose of a conspiracy, does not thereby become a conspirator.
A conspirator is responsible for offenses committed by other members of the conspiracy if that person was also a member of the conspiracy when the offense was committed and if the offense was committed in furtherance of, or as a foreseeable consequence of, the conspiracy. If you have first found a defendant guilty of conspiracy to violate the anti-kickback law charged in Count 2, and if you find beyond a reasonable doubt that during the time that same defendant was a member of that conspiracy, other conspirators committed the offenses charged in Counts 3 to 9 and 11 to 12 in furtherance of, or as a foreseeable consequence of, that conspiracy, then you may find that defendant guilty of Counts 3 to 9 and 11 to 12 if the defendant is charged in those counts, even though that defendant may not himself or herself have participated in any of the acts that constitute the offenses alleged in Counts 3 to 9 and 11 to 12.
Besides the definitions of "knowingly" and "willfully" that apply to all the defendants charged in this count, there is one other instruction that applies to the second and third elements as they relate to Mr. Earnest Gibson III. As to this defendant, you are instructed that you may also find that he had knowledge of a fact if you find that he was deliberately indifferent to that fact. You may find that Mr. Gibson III had knowledge of a fact if you find that he deliberately closed his eyes to what would otherwise have been obvious to him. While knowledge on the part of this defendant cannot be established merely by showing that he was negligent, careless, or foolish, his knowledge of a fact can be inferred if you find, beyond a reasonable doubt, that he deliberately blinded himself to the existence of that fact.
With respect to Count 2, you are instructed that a Medicare service provider such as Riverside General Hospital or its Partial Hospitalization Programs is permitted to pay a person or entity to do marketing to attract business, including business for which Medicare coverage would be available. The prosecution has the burden of proving beyond a reasonable doubt that the alleged conspiracy was to make payments that were not for legitimate general marketing but rather to obtain the referral of patients to Riverside General Hospital or one of its Partial Hospitalization Programs. Payments made in whole or in part for patient referrals violate the anti-kickback law.
You must first decide if the prosecution has proved beyond a reasonable doubt that the alleged conspiracy was to make payments for the referral of patients to Riverside General Hospital or one of its Partial Hospitalization Programs. If so, then you must consider whether those payments were protected from prosecution. Payments by an employer to an employee for patient referrals qualify for protection from prosecution if you find that the defendant has proved two elements, by a preponderance of the evidence. That is a different standard of proof than "beyond a reasonable doubt," and it is the only time a defendant has the burden of proof. To prove a fact by a preponderance of the evidence means to prove that the fact is more likely so than not so. This is a lower burden than what is required to prove a fact beyond a reasonable doubt.
The two elements that a defendant must prove by a preponderance of the evidence to establish that a payment was protected from prosecution are as follows:
The first element asks whether the person being paid was an employee of Riverside General Hospital or one of its Partial Hospitalization Programs, on the one hand, or was working as an independent contractor on the other. In making this decision, you should consider whether the indications that a person is an employee and not an independent contractor are present. The indications of an employee are that Riverside General Hospital or one of its Partial Hospitalization Programs had the right to control the manner and means of the work that person performed, that it controlled his or her work hours or location, that he or she was paid a salary, and that his or her work was part of the regular business of Riverside General Hospital or one of its Partial Hospitalization Programs.
As to the second element, you are instructed that an employer may pay an employee for services that Medicare may pay for. But an employer may not pay an employee knowing or specifically intending that the employee will use all or part of that compensation to offer or make payments for referring patients or knowing or intending to pay the employee for referring patients.
Mr. Earnest Gibson III and Mr. Earnest Gibson IV are charged in Count 13 with conspiring from in or around January 2005 through in or around June 2012, to launder monetary instruments, in violation of Title 18, United States Code, Section 1956(h). This law makes it a crime to conspire to engage in money laundering or transactions involving the proceeds of unlawful activity that violates Title 18, United States Code, Section 1956(a)(1)(A)(I).
For you to find one or both defendants guilty of this crime, the prosecution must prove beyond a reasonable doubt each of the following elements:
To determine whether Mr. Earnest Gibson III and Mr. Earnest Gibson IV and others knowingly and intentionally conspired together to launder monetary instruments as charged in Count 13, you must consider the elements of that crime, that is, the crime that is alleged to be the object of the conspiracy. The prosecution does not have to prove that the defendants actually committed the crime that is alleged to be the object of the conspiracy. I am instructing you on the elements of the object crime of money laundering only to assist you in determining whether the prosecution has proved beyond a reasonable doubt each of the elements of conspiracy to commit that crime.
To establish the object offense of laundering of monetary instruments in violation of Title 18, United States Code, Section 1956(a)(1)(A)(I), the prosecution must prove beyond a reasonable doubt each of the following elements:
With respect to the second element, the prosecution must prove that in fact the property was the proceeds of committing health care fraud in violation of Title 18, United States Code, Section 1347, which is a specified unlawful activity under the statute. With respect to the third element, the prosecution must prove that the defendant knew that the property involved in the transaction was the proceeds of a crime that is a felony under federal or state law, although it is not necessary to show that the defendant knew exactly what crime generated the funds. I instruct you that committing health care fraud in violation of Title 18, United States Code, Section 1347 is a felony under federal law.
The term "transaction" includes a purchase, sale, loan, gift, transfer, or delivery.
The term "financial transaction" includes any "transaction," as that term has just been defined, that involves the movement of funds by wire or other means or involving one or more monetary instruments, that either affects interstate commerce or involves the use of a financial institution that is engaged in or conducts activities that affect interstate commerce. It is not necessary for the prosecution to show that the defendant actually intended or anticipated an effect on interstate commerce by his actions or that commerce was actually affected. All that is necessary is that the natural and probable consequence of the acts the defendant took would be to affect interstate commerce. If you decide that there would be any effect at all on interstate commerce, then that is enough. The effect can be minimal. You are instructed that a financial transaction involving the use of Wells Fargo Bank, N.A. is a financial transaction that affects interstate commerce.
The term "conduct" includes initiating or concluding, or participating in initiating or concluding, a transaction.
The term "proceeds" includes money or any property that someone acquires or retains as a result of committing the underlying specified unlawful activity.
The definition and description of a conspiracy and how a defendant becomes a member of a conspiracy are described on pages 16 to 19 and pages 28 to 29 of these instructions. The definitions of the terms "knowingly" and "willfully" are described on page 11 of these instructions.
The prosecution is not required to trace the money it alleges to be the proceeds of specified unlawful activity to a particular underlying offense. In this case involving the laundering of alleged health care fraud proceeds, the prosecution does not have to trace the money to a particular transaction, but can satisfy the requirement by proving that the money was the proceeds of health care fraud.
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 prosecution has proved one or more of the defendants 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 a 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.
