from the United States District Court for the Southern
District of Texas
REAVLEY, DAVIS, and JONES, Circuit Judges.
appeal their convictions for conspiracy to commit health care
fraud and several substantive counts of health care fraud.
Defendants primarily challenge the sufficiency of the
evidence, the court's deliberate ignorance jury
instruction, a number of evidentiary rulings, and the
enhancements applied to their sentences. We AFFIRM.
Dennis Barson, Jr. and Dario Juarez were charged with one
count of conspiracy to commit health care fraud under 18
U.S.C. § 1349 (Count 1) and nineteen counts of health
care fraud under 18 U.S.C. § 1347 (Counts 2 through 20).
After a jury trial, both Defendants were convicted on all 20
counts. The district court sentenced Barson and Juarez to 120
and 130 months of imprisonment, respectively, followed by
three years of supervised release. The court also ordered
forfeiture and restitution.
Barson was recruited by Edgar Shakbazyan to serve as the
medical director for a diagnostic clinic under
Shakbazyan's control in Houston, Texas. Shakbazyan was
the manager of the clinic and handled the financial affairs
of the clinic. He was indicted in a multi-count indictment in
this case and was convicted pursuant to his plea of guilty.
Shakbazyan's request, Barson signed a blank form so the
clinic could apply for and obtain a Medicare number to be
used to bill Medicare for its services. Barson opened a bank
account in his name where Medicare reimbursements could be
deposited. Barson also signed a number of blank checks and
gave them to Shakbazyan so he could draw on the account.
clinic opened on June 8, 2009. For $7, 000 per month, Barson
traveled from Austin to Houston every other Saturday to
review patient files. The clinic was set up to perform EKGs,
ultrasounds, electrocardiograms, spirometer tests, and
physical exams performed by a physician's assistant.
Medicare was billed for 9, 339 procedures for tests performed
on 429 beneficiaries using Barson's Medicare number.
Hundreds of the claims were for rectal sensation testing and
electromyography studies of the anal or urethral sphincter,
which the clinic could not and did not perform. At trial,
several of the clinic's patients testified they went to
the clinic because they were paid to do so and some never
received any medical services. Barson testified he never
reviewed bank statements, Medicare remittances, or concern
himself with any of the financial affairs of the clinic.
Juarez worked at the clinic and claimed to be a
physician's assistant working under Barson's
supervision. Juarez, who had no formal medical training, held
himself out to patients as a physician and was the medical
staff member at the clinic.
closed the clinic on July 30, 2009, after he suspected that
the clinic was not above board; however he notified no one of
suspicious circumstances came to Barson's attention. In
the weeks leading up to closing the clinic, Barson made a
number of unsuccessful attempts to reach the California
doctor who reviewed ultrasounds for the clinic. Barson also
learned in July that Shakbazyan was lying about his true
identity. On August 4, a Medicare contractor in charge of
waste, fraud, and abuse, opened an investigation into the
clinic and tried unsuccessfully to contact Barson by phone.
On August 11, Barson closed the clinic bank account set up to
receive Medicare reimbursements. Upon receiving his 1099 tax
form in February 2010, Barson learned that the clinic's
bank account in his name received approximately $1.2 million
in Medicare reimbursements. In his testimony, he claimed this
was his first notice that this large sum had been deposited
in his account during the approximately two months the clinic
had been open.
of the evidence challenges are reviewed de
novo. In doing so, this Court must determine
whether "any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt." The Court should accept "all
credibility choices and reasonable inferences made by the
trier of fact which tend to support the
of the Evidence
primary challenge on appeal is to the sufficiency of the
evidence to establish both the conspiracy count and the
substantive counts for health care fraud.
establish a conspiracy to commit health care fraud, the
government must show "the existence of an agreement
between two or more people to pursue the offense of fraud;
the defendant knew of the agreement; and the defendant
voluntarily participated in the
conspiracy." The agreement may be silent and informal
between the conspirators. Further, "voluntary participation
may be inferred from a collection of circumstances, and
knowledge may be inferred from surrounding
circumstances." The defendants need not have personally
submitted the necessary forms requesting reimbursement from
Medicare to be guilty of health care fraud or conspiracy to
commit health care fraud. The government may use direct or
circumstantial evidence to prove each element.
trial, both Barson and Juarez argued they had no knowledge of
the fraudulent activity, let alone an agreement to commit
based his argument that he had no knowledge of fraudulent
activity on his lack of experience. Before taking the job as
the medical director for the clinic, Barson was a physician
in the Navy and worked a short time in private practice. When
he was hired by Shakbazyan to work for the clinic, Barson was
working as a neurology resident in Austin, Texas. On a
resident's salary, he argued, he needed the extra money
the job at the clinic would provide. Barson had no prior
experience with Medicare or medical billing practices in any
of his prior positions. Barson argued that he had no way of
knowing about the fraudulent scheme because he never saw any
patient files that included many of the tests the clinic
billed Medicare for. Barson testified that the patient files
he reviewed included services that the clinic was set up to
provide: EKGs, ultrasounds, electrocardiograms, spirometer
tests, and physical exams performed by a physician's
assistant. Because he was hired in this limited role to
review patient files set aside for him twice a month, Barson
maintained that he had no way of knowing that the clinic was
engaged in fraudulently billing Medicare.
Juarez argued that even though he was impersonating a
physician's assistant, he had no knowledge of or access
to any of the facility's billing systems.
government presented ample circumstantial evidence to
establish both Defendants' knowledge of the ongoing
health care fraud. Barson signed documents in blank allowing
the clinic to bill under his Medicare identification number
and opened a bank account in his name to receive Medicare
reimbursements. He signed a number of blank checks to permit
Shakbazyan to draw on the account. He allowed the bank
statements to be sent to the clinic and never reviewed them.
Barson received a significant sum, $7, 000 per month, for
reviewing patients' charts every other Saturday. Barson
admitted to an FBI investigator that despite his suspicions
and bad feelings about the clinic, he reported his suspicions
to no one. He quietly closed the clinic on July 30. Barson
did not monitor the bank account in his name or review any
Medicare remittances that went to the clinic. Upon receiving
his 1099 tax form showing that the clinic bank account
received nearly $1.2 million, Barson again failed to contact
Medicare to report his concerns.
government also established that Juarez was aware he was
participating in a scheme to commit Medicare fraud. Juarez
held himself out as a "doctor" at the clinic and
falsely claimed to Barson that he was a physician's
assistant, the clinic's on-site medical staff member.
Juarez saw almost all of the patients and turned a blind eye
to the fact that most of the so-called patients had no need
for medical care and that many received no medical care. He
saw large numbers of patients lining up outside the clinic
daily after being delivered to the clinic by the same white
van. Juarez had access to the clinic's mail including the
bank statements and Medicare remittances. Juarez was paid
$20, 000 for his work, a large sum for an unlicensed
individual to pose as a physician's assistant. He lied to
investigators about the payments he received. Juarez also
gave conflicting testimony to an FBI investigator about an
alleged break in at the clinic and missing patient files.
also argues that the evidence was insufficient to establish
an "agreement" to commit health care fraud. His
arguments closely track his arguments on the knowledge
element and fails for similar reasons.
evidence established that Barson and Shakbazyan agreed that
(1) Barson would apply for a Medicare number; (2) Barson
would allow the clinic to use that number to bill Medicare;
and (3) Barson would receive $7, 000 per month for reviewing
files every other Saturday. The evidence established that
Shakbazyan set up the fraudulent scheme and had intimate
knowledge of the details of the fraud.
agreed with Skakbazyan to work at the clinic as the medical
staff member and hold himself out as a physician's
assistant to Barson and as a physician to the patients.
jury was also entitled to find that the Defendants committed
health care fraud on the substantive counts of the
indictment. Each substantive count was based on a separate
request for Medicare reimbursements that the government
established were not for medical services ...