Appeals from the United States District Court for the Middle District of Louisiana
Before JOLLY, DeMOSS, and SOUTHWICK, Circuit Judges.
DeMOSS, Circuit Judge:
Henry Jones appeals the district court's denials of his motions to dismiss an indictment on double jeopardy and multiplicity grounds. Chikenna Jones appeals the denials of motions to substitute counsel she filed in separate cases. For the reasons stated below we AFFIRM.
Henry Jones ("Henry") and Chikenna Jones ("Chikenna") engaged in Medicare fraud for years. The government indicted Henry in three separate cases: United States v. Nnanta Felix Ngari, et al., ("the Ngari case"); United States v. Henry L. Jones, et al., ("the Jones case"); and United States v. Shedrick O. McKenzie, et al., ("the McKenzie case"). The government indicted Chikenna in the Jones and McKenzie cases.
The following excerpts from the indictment in the McKenzie case provide relevant background for all three cases:
1. The Medicare Program ("Medicare") was a federal program that provided free or below-cost health care benefits to certain individuals, primarily the elderly, blind, and disabled . . . . Individuals who receive benefits under Medicare were commonly referred to as Medicare "beneficiaries."
. . . .
3. Part B of the Medicare Program was a medical insurance program that covered, among other things, certain durable medical equipment ("DME").
4. For Louisiana beneficiaries, Medicare Part B insurance covering DME and related health care benefits, items, and services was administered by Cigna Government Services ("Cigna") . . . . Among Cigna's responsibilities, it received, adjudicated, and paid the claims submitted to it by Medicare beneficiaries, physicians, and suppliers of health care items and services.
5. DME companies, physicians, and other health care providers that sought to participate in Medicare Part B and bill Medicare for the cost of DME and related benefits, items, and services were required to apply for and receive a "supplier number." The supplier number allowed a DME company to submit bills, known as "claims, " to Medicare to obtain reimbursement for the cost of DME and related health care benefits, items, and services that a DME company had supplied to beneficiaries.
6. To receive payment from Medicare, a DME company, using its supplier number, would submit a health insurance claim form . . . . The [claim form] required DME companies to provide certain [claim specific information].
7. Medicare, through Cigna, would generally pay a substantial portion of the cost of the DME or related health care benefits, items, and services if they were medically necessary and ordered by licensed doctors or other licensed, qualified health care providers.
8. Payments under Medicare Part B were often made directly to the DME company. For this to occur, the beneficiary would assign the right of payment to the DME company or other health care provider. Once such an assignment took place, the DME company or other health care provider would assume the responsibility for submitting claims to, and receiving payments from, Medicare.
The Ngari indictment included one count of Conspiracy to Commit Health Care Fraud in violation of 18 U.S.C. § 1349 "[b]eginning at least on or about December 2, 2003, and continuing through on or about March 7, 2009, " and one count of Conspiracy to Defraud the United States and to Pay Health Care Kickbacks in violation of 18 U.S.C. § 371 "[b]eginning at least on or about March 16, 2004, and continuing through at least on or about January 26, 2007[.]"
The Ngari indictment focused on a business called Unique Medical Solution, Inc. ("Unique") which was allegedly owned and operated by Nnanta Felix Ngari ("Felix Ngari"). The government alleged that Unique "was purportedly engaged in the business of providing DME to Medicare beneficiaries" and that "Unique had a Medicare provider number, and was eligible to receive reimbursement from Medicare for DME that was supplied to beneficiaries if it was medically necessary." The government alleged that Sofjan Lamid "was a physician . . . who wrote prescriptions ordering medically unnecessary DME that served as the basis for certain of Unique's claims to Medicare." The government also alleged that Henry and Ernest Payne were "patient recruiter[s] who referred beneficiaries to Unique so that claims for medically unnecessary DME could be filed with Medicare." The government asserted that Felix Ngari, Henry, and Ernest Payne "would agree to pay kickbacks . . . in return for the referral of Medicare beneficiaries whose names would be used to submit claims for medically unnecessary DME." Henry was convicted of both conspiracy counts in the Ngari case.
The Jones case was the next case to be filed. In relevant part, the superseding indictment in the Jones case alleged a conspiracy which violated 18 U.S.C. § 1349 "[b]eginning on or about June 24, 2004, and continuing through on or about November 22, 2009, " and a conspiracy which violated 18 U.S.C. § 371 "[b]eginning at least on or about June 24, 2004, and continuing through at least on or about October 8, 2009[.]" The superseding indictment focused on four entities, Healthcare 1, LLC ("Healthcare 1"); Lifeline Healthcare Services, Inc. ("Lifeline"); Medical 1 Patient Services, LLC ("Medical 1"); and Rose Medical Equipment, Inc. ("Rose Medical"), which were "purportedly engaged in the business of providing DME to Medicare beneficiaries[, ] . . . had  Medicare provider number[s], " and were "eligible to receive payments from Medicare for" the medically necessary DME they provided. The government alleged that Henry and Chikenna were "corporate officer[s] for and operator[s] of Healthcare 1, Lifeline, and Medical 1[, ]" and that they "purchase[d] and t[ook] control of Rose Medical." The government asserted that Sofjan Lamid and Jo Francis were doctors who "would provide prescriptions to patient recruiters for medically unnecessary DME[.]" The government alleged that Henry and Chikenna "paid kickbacks to patient recruiters . . . in exchange for names and billing information of Medicare beneficiaries, as well as fraudulent prescriptions, for the purpose of billing the Medicare program for medically unnecessary DME[.]" The government accused nine other co-defendants of working as patient recruiters for one or a combination of Healthcare 1, Lifeline, and Medical 1. The government also accused Henry and Chikenna of submitting fraudulent Medicare claims through Rose Medical.
In the Jones case, Chikenna filed a motion to substitute retained counsel for her court-appointed counsel, and the district court denied her motion. Thereafter, both Henry and Chikenna pleaded guilty in the Jones case. Henry did not appeal in the Jones case. Chikenna appealed the district court's denial of her motion to substitute counsel in the Jones case.
The last case to be filed was the McKenzie case. In relevant part, the indictment in the McKenzie case also alleged two conspiracies, one which violated 18 U.S.C. § 1349 "[b]eginning on or about October 28, 2004, and continuing through on or about October 25, 2010, " and another which violated 18 U.S.C. § 371 "[b]eginning at least on or about December 22, 2006, and continuing through at least on or about May 7, 2010[.]" The indictment focused on a business called McKenzie Healthcare Solutions, Inc. ("Solutions"). The government alleged that "Shedrick O. McKenzie was a corporate officer for and operator of [Solutions]." The government asserted that Jo Francis was a doctor "who wrote prescriptions ordering medically unnecessary DME for Medicare beneficiaries, for the purpose of having [Solutions] submit claims to Medicare and receive payments from Medicare." The government further alleged that "[f]rom in or around January 2010, through at least in or around October 2010, [Henry] was an operator of [Solutions]." The government accused Chikenna of being "a corporate officer for and operator of [Solutions]" during the same time period during 2010. The government also accused the pair of paying "kickbacks to patient recruiters . . . in exchange for the names and billing information of Medicare beneficiaries, as well as fraudulent prescriptions, for the purpose of billing the Medicare program for medically unnecessary DME through [Solutions]."
Prior to trial, Henry filed a motion to dismiss the indictment in the McKenzie case based on double jeopardy and multiplicity grounds which the district court denied. Thirteen days before trial in the McKenzie case, Chikenna filed a motion to substitute retained counsel for her court appointed counsel in both the Jones and McKenzie cases. The district court denied both motions. Thereafter, both Henry and Chikenna were convicted by a jury in the McKenzie case.
After the trial in the McKenzie case, Henry filed a second motion to dismiss which the district court denied. Henry appealed the denial of his motions to dismiss, and Chikenna appealed the denial of her motions to substitute.
I. Henry's Appeal
Henry argues that the district court erred when it failed to dismiss his charges in the McKenzie case. Henry's primary argument is that his prosecution in the McKenzie case violated the Double Jeopardy Clause of the U.S. Constitution because the government charged him for the same conduct he was already convicted of in the Ngari case. Henry also mentions in passing that the charges were multiplicitous. The government denies that the charges in the McKenzie case violated the Double Jeopardy Clause or were multiplicitous.
A. Double Jeopardy
"We review the district court's denial of a motion to dismiss an indictment on double jeopardy grounds de novo and accept the underlying factual findings of the district court unless clearly erroneous." United States v. Gonzalez, 76 F.3d 1339, 1342 (5th Cir. 1996) (citations omitted).
The Fifth Amendment of the United States Constitution states in part that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb[.]" U.S. Const. amend. V. "The Fifth Amendment's Double Jeopardy Clause protects against a second prosecution for the same offense after conviction." United States v. El-Mezain, 664 F.3d 467, 546 (5th Cir. 2011) (internal quotation marks and citations omitted).
Generally, when a defendant pleads guilty, jeopardy attaches at the time the guilty plea is accepted. United States v. Kim, 884 F.2d 189, 191-92 (5th Cir. 1989). "For a jury trial, jeopardy attaches when the jury is empaneled and sworn." United States v. Stricklin, 591 F.2d 1112, 1120 (5th Cir. 1979).
Henry was a defendant in three separate cases. In the Ngari case, jeopardy attached when the jurors were sworn on August 1, 2011. In the McKenzie case, jeopardy attached on November 7, 2011, when the jurors were sworn. In the Jones case, jeopardy attached when Henry's plea was accepted on January 12, 2012.
Based on the timing of jeopardy attaching in these three cases, the government argues that the Jones case could not create a double jeopardy violation in the McKenzie case. The government's assessment is correct. At the time jeopardy attached in the McKenzie case, jeopardy had already attached in the Ngari case, but jeopardy had not attached in the Jones case. Therefore, we will examine only whether the McKenzie indictment constituted a double jeopardy violation with respect to the conviction in the Ngari case.
Double jeopardy claims involve a burden shifting analysis. El-Mezain, 664 F.3d at 546 (citation omitted). "If a defendant comes forward with a prima facie nonfrivolous double jeopardy claim, " the government must then prove by a preponderance of the evidence that the indictments charge separate crimes. Id. (internal quotation marks and citation omitted); United States v. Delgado, 256 F.3d 264, 272 (5th Cir. 2001). The parties do not address whether Henry has made a prima facie non-frivolous double jeopardy claim. "The defendant can establish a prima facie non-frivolous double jeopardy claim through indictments or other documentation to establish the earlier charges, or even through his own ...