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Nina Goodman, Ellen R. Meltzer, Esq., Special Counsel, U.S. Department of Justice, Washington, DC, for Plaintiff-Appellee.
Gregory Don Sherwood, Esq., Law Office of Gregory Sherwood, Austin, TX, Sarah Eilers Coble, Lauren Elizabeth Tanner, Stephen Gillham Tipps, Esq., Baker Botts, L.L.P., Kate Elizabeth Hill, Sidley Austin, L.L.P., Vivian King, Esq., Sesha Kalapatapu, Carmen Roe, Esq., Houston, TX, Andrew J. Williams, Kingwood, TX, for Defendants-Appellants.
Appeals from the United States District Court for the Southern District of Texas.
Before DENNIS, CLEMENT, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge.
The defendants were convicted on numerous counts related to their involvement in schemes to commit health care fraud, receive or pay healthcare kickbacks, and/or make false statements for use in determining rights for benefit and payment by Medicare. Caroline Njoku, Terrie Porter, and Mary Ellis appeal their convictions on grounds of insufficient evidence. Njoku also argues the sentences she received on two counts were multiplicitous and the oral pronouncement of her sentence conflicts with the written judgment. Ellis contends that she was twice put in jeopardy because of a previous acquittal and that collateral estoppel bars the relitigation of certain issues. Ellis further brings an evidentiary challenge involving rules of hearsay and relevancy, as well her right to present a defense. Ellis also argues her sentence resulted from an improper enhancement. Ezinne Ubani appeals her sentence based on the application of two enhancement provisions.
We REMAND for the district court to amend Njoku's written judgment to conform to her oral sentence. We AFFIRM in all other respects.
On October 7, 2010, Njoku, Porter, Ellis, Ubani, and other co-defendants who are not parties in this appeal were indicted in the United States District Court for the Southern District of Texas. Njoku, Ellis, and Ubani were each charged with one count of conspiracy to commit health care fraud under 18 U.S.C. § 1349. Njoku, Porter, and Ellis were each charged with one count of conspiracy to receive or pay health care kickbacks under 18 U.S.C. § 371. Njoku and Porter were charged on one count and Ellis on three counts of receipt or payment of kickbacks in violation of 42 U.S.C. § 1320a-7b(b) and 18 U.S.C. § 2. Ellis and Ubani were charged with two counts each of making false statements for use in determining rights for benefit and payment by Medicare under 42 U.S.C. § 1320a-7b(a)(2) and 18 U.S.C. § 2.
There was evidence that articles of incorporation were filed on November 1, 2004 for a company named Family Healthcare Group, Inc., which would do business in Houston, Texas. The document listed Clifford Ubani, Princewill Njoku, and Ezinne Ubani as directors. The company
submitted a Medicare provider application in May 2005, which was approved in early 2006. The document listed Clifford Ubani and Princewill Njoku as co-owners; Ezinne Ubani was listed as a director/officer.
An authorized Medicare provider may bill Medicare for covered services provided to eligible beneficiaries. Family Healthcare provided home health care to individuals by use of skilled nurses. To qualify for such services under Medicare regulations, the patient must be homebound, under a doctor's care, and require skilled nursing. A claims analyst who reviewed medical records for Medicare fraud testified that " homebound" meant that it was generally taxing for the patient to leave home. In the analyst's nine years of experience, the referral source for such care was the patient's primary care physician.
The analyst further explained that in order to initiate such care, a registered nurse (" RN" ) was required to meet with the patient and complete an Outcome Assessment Information Set (" OASIS" ). The questionnaire helped identify the patient's ability to function in daily living and would be used in part to determine whether the patient was homebound. Information from the OASIS would be entered into a computer program, which would produce a " plan of care." The same nurse who completed the OASIS was required to sign the plan of care. The plan would then be submitted to the referring physician to certify and sign.
If approved by the physician, a period of care lasted 60 days for purposes of Medicare regulations. A licensed vocational nurse (" LVN" ) provided the skilled nursing in the patient's home. The law required LVNs to keep nursing notes to document their visits and prove the care given. Additionally, these notes could provide a log of medication and patient conditions for future use. Agent Harshaw, a special agent charged with the investigation of criminal violations of the health care fraud laws, testified that Medicare required the nursing notes be preserved for auditing purposes.
The analyst explained that such services were not intended to be continuous. Nurses would instruct the patient or a caregiver on how to provide the needed care without a nurse's assistance. If a patient continued to need skilled nursing after the initial period, recertification for 60 more days was available. During the last five days of the first period, an RN would be required to visit and reassess the patient. This recertification process required the completion of a second, condensed OASIS. Agent Harshaw testified that an RN would partly rely on the LVN's nursing notes to complete the recertification evaluation. Adelma Sevilla, an RN who worked for Family Healthcare, testified that she reviewed nursing notes during this process. Once the recertification OASIS was complete, a new plan of care would be prepared, signed by the RN, and submitted to a physician for signed approval. The physician's approval generally involved the physician personally visiting the patient.
Medicare would reimburse service providers in bifurcated installments. The first was a payment of 60 percent of the claim after the initial billing. Medicare did not necessarily receive a patient's OASIS or plan of care at that time but instead relied on the service provider's representation subject to future inspections via audit.
The remaining portion of the claim was paid once a sufficient number of skilled nursing visits were made. The indictment stated that Family Healthcare was paid approximately $5.2 million for home health care services between April 2006 and August 2009. We describe in more detail below each individual's role. For now, we provide a general overview.
Njoku and Ellis worked as LVNs who provided skilled nursing care to patients. Ellis also referred Medicare beneficiaries to Family Healthcare. Porter also referred Medicare beneficiaries. Ubani worked as an RN who completed OASIS questionnaires and signed plans of care. At times, Family Healthcare used specific physicians to certify the plans of care.
Evidence at trial showed that Family Healthcare billed Medicare for services to beneficiaries who were ineligible for home health care because they were either not homebound or not in need of skilled nursing. RNs would sign OASIS questionnaires both on initial assessments and during recertifications without visiting the patients. Skilled nursing services were allegedly inadequate and misrepresented in the documented nursing notes. At least one physician was paid to authorize plans of care despite not having examined the patients. Recruiters were paid kickbacks to refer Medicare beneficiaries in order to accumulate additional patients.
After an eleven day trial, the jury found Njoku, Ellis, and Ubani guilty of conspiracy to commit health care fraud in Count 1. Njoku, Porter, and Ellis were found guilty of conspiracy to receive or pay health care kickbacks in Count 2. The jury found Njoku not guilty of receipt or payment of health care kickbacks in Count 12. Porter was found guilty of receipt or payment of health care kickbacks in Count 17. Ellis was found guilty of receipt or payment of health care kickbacks in Counts 3, 4, and 5. Finally, the jury found Ellis and Ubani guilty of making false statements for use in determining rights for benefit and payment by Medicare in Counts 20 and 21.
The district court announced Njoku's sentence as 63 months on Count 1 and 60 months on Count 2, to run concurrently. Porter was sentenced to 24 months on Counts 2 and 17 to run concurrently. The court sentenced Ellis to 63 months on Count 1 and 60 months on Counts 2, 3, 4, 5, 20, and 21 to run concurrently. Ubani was sentenced to 97 months on Count 1 and 60 months on Counts 20 and 21 to run concurrently. These defendants appealed.
Njoku, Ellis, and Porter challenge the sufficiency of the evidence on some of the counts. Njoku, Ellis, and Ubani raise arguments as to their sentences. Ellis raises a variety of other issues. We address each issue in turn.
A. Sufficiency of the Evidence
We review the defendants' " preserved challenges to the sufficiency of the evidence de novo." United States v. Grant, 683 F.3d 639, 642 (5th Cir.2012). We view both circumstantial and direct evidence " in the light most favorable to the government, with all reasonable inferences and credibility choices to be made in support of the jury's verdict." Id. In doing so, we ask " whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. (quotation marks omitted).
1. Count 1 (Conspiracy to Commit Health Care Fraud)
A conspiracy to commit health care fraud under 18 U.S.C. § 1347 requires that the fraud be the object of the conspiracy. 18 U.S.C. § 1349. The conspirators must " knowingly and willfully" execute a scheme " to defraud any healthcare benefit program" or " to obtain, [through false pretenses] any of the money or property owned by ... any health care benefit program." 18 U.S.C. § 1347. Conviction requires proof " that (1) two or more persons made an agreement to commit health care fraud; (2) that the defendant knew the unlawful purpose of the agreement; and (3) that the defendant joined in the agreement willfully, that is, with the intent to further the unlawful purpose." Grant, 683 F.3d at 643. Circumstantial evidence can prove knowledge and participation. Id.
In her motion for judgment of acquittal and on appeal, Njoku argues the evidence was insufficient to prove she knew of the unlawful purpose and joined the agreement willfully. We find sufficiency from the following.
Adelma Sevilla testified that she worked for Family Healthcare as an RN. She admitted to falsifying forms submitted to Medicare and said that other people she worked with, including Njoku, participated. Because Sevilla could not drive a vehicle, Njoku almost always drove her to patients' homes to perform assessments. Njoku was also present with Sevilla during those assessments and witnessed patients performing activities that belied their homebound status or need for skilled nursing. One patient who walked around without assistance directly told Njoku that he could drive himself. Sevilla confirmed that she falsified the OASIS for this patient and for others. Njoku was hardly oblivious to the requirements. She not only worked as an LVN for Family Healthcare but also had completed training on OASIS assessments and reporting.
Even though Sevilla at one point expressed concern that some patients were not homebound, Njoku responded that Sevilla should process the admissions anyway. Princewill Njoku was also an RN. After he was indicted, Caroline Njoku asked Sevilla, another RN, to sign recertification assessments in Princewill Njoku's place. Despite not having visited any of the patients, Sevilla complied. It is reasonable to infer that Caroline Njoku knew Sevilla had not completed in-person assessments of these patients partly because Njoku usually drove Sevilla to each patient's home. There were also times when plans of care were returned from physicians without their approval, and Njoku instructed office clerks to send the forms to a Dr. Echols, who was later shown to be involved in the scheme.
The underlying scheme was to obtain money from Medicare by false pretenses. We conclude there was sufficient evidence of Njoku's knowledge of the agreement and her willful joining of it with the intent to further its purpose.
2. Count 2 (Conspiracy to Receive or Pay Health Care Kickbacks)
It is unlawful to conspire with another to commit an offense against the United States and do an act to effect the conspiracy's object. 18 U.S.C. § 371. The substantive offenses in this case were the knowing and willful receipt of a remuneration, namely, a kickback, in return for referring a patient for home healthcare, or payment of such remuneration in order to induce someone to make such a reference. See 42 U.S.C. § 1320a-7b(b). A conviction of conspiracy under Section 371 requires the Government to prove:
(1) an agreement between two or more persons to pursue an unlawful objective; (2) the defendant's knowledge of the unlawful objective and voluntary agreement to join the conspiracy; and (3) an overt act by one or more of the members of the conspiracy in furtherance of the objective of the conspiracy.
United States v. Mauskar, 557 F.3d 219, 229 (5th Cir.2009).
" The government must prove the same degree of criminal intent as is necessary for proof of the underlying substantive offense." United States v. Peterson, 244 F.3d 385, 389 (5th Cir.2001). Thus, in addition to proving an intent to further the unlawful objective, there must also be proof that the defendant acted willfully, that is, " with the specific intent to do something the law forbids." United States v. Garcia, 762 F.2d 1222, 1224 (5th Cir.1985); see also United States v. Davis, 132 F.3d 1092, 1094 (5th Cir.1998).
a. Caroline Njoku
Njoku argues the evidence was insufficient to prove she knew of the unlawful purpose and joined the agreement with the intent to further that objective. She contends the evidence shows mere presence in a climate of unlawful activity. We disagree.
Sammie Wilson testified that she received payments through checks drawn on Family Healthcare's account in exchange for referring patients who were Medicare beneficiaries. Wilson explained that notations on the checks such as " for 4" meant the number of patients she referred. At times, she was paid $500 per patient. On at least one occasion, Princewill Njoku was in the driver's seat of a vehicle and his then-wife Caroline was a passenger. He reached across Caroline and gave a check to Wilson as payment for patients she had referred.
There also was evidence of a check dated November 10, 2008, made payable to Caroline Njoku and drawn on Family Healthcare's account in the amount of $2,500. The memo line showed " 5 from Sammie Wilson." There was a computerized notation on the check revealing it had been cashed. Njoku does not deny receiving the check and, in fact, attempted through cross examination to show that the check was her part of that month's payroll. Testimony from Ana Quinteros, a certified nursing assistant who worked for Family Healthcare, showed ...