from the United States District Court for the Southern
District of Texas
REAVLEY, HAYNES, and COSTA, Circuit Judges.
HAYNES, Circuit Judge
Warren Dailey challenges his conviction for five counts
relating to a scheme under which he certified individuals for
home health care in exchange for $400 a month. We
case arises out of allegations that Dr. Warren Dailey engaged
in a conspiracy to defraud Medicare relating to home health
care services provided by Candid Home Health, Inc.
("Candid"). The Government alleged that Dailey, a
physician specializing in family practice, signed documents
indicating that patients required home health care when they
did not need those services. The Government charged Dailey
with (1) conspiracy to commit health care fraud; (2) two
counts of aiding and abetting false statements relating to
health care matters; (3) conspiracy to pay and receive health
care kickbacks; and (4) aiding and abetting the payment and
receipt of health care kickbacks.
to trial, the Government filed its notice of intent to call
expert witnesses, which identified Lisa Garcia, a registered
nurse, as an expert witness. The Government later
supplemented this notice to provide additional information
about the contents of Garcia's expected testimony. Dailey
requested a continuance, arguing that the Government's
supplemental notice failed to satisfy Federal Rule of
Criminal Procedure 16(a)(1)(G) and that a previously-granted
one-week continuance was insufficient for him to obtain a
rebuttal expert. The district court denied the motion.
trial, Lisa Garcia testified as an expert for the Government
about general information regarding Medicare and home health
care. She testified that common fraud schemes involved home
health agencies paying physicians to sign Form
for patients with whom the physician had no relationship. She
reviewed the billing data for Candid and testified that the
data "indicated that there was some aberrant pattern on
both the home health agency and the physician."
Specifically, the significant amount of repeated home health
episodes was a "red flag." She also noted that
there was a significant number of referrals from one
physician-Dailey. Indeed, his referrals made up almost
twenty-four percent of Candid's billing. She testified
that this large number of referrals from one physician is
"cause for question." Moreover, Garcia noted that
many of the patients that Dailey referred were hours away
from the location of Candid and Dailey's practice, which
cast doubt on whether the patient was actually being seen.
second witness at trial was Ebelenwa Chudy-Onwuugaje
("Chudy"), who started and operated
Candid. Chudy testified she used recruiters to get
patients. Chudy paid the recruiters around $400 per patient
that they brought to Chudy. The recruiters, in turn, paid the
patients. She testified that, when a patient's primary
care physician would not sign the Form 485 because the
patient did not require home health services, she needed
another doctor to sign the forms.
testified that when she started her own home health agency,
she made an appointment with Dailey and spoke to him for less
than fifteen minutes. During this meeting, Dailey never
questioned Chudy about her company or her educational
background. According to Chudy, she and Dailey made an
agreement whereby Dave Onuorah, a physician assistant,
"would go out to see the patients and once he brings the
paperwork, then [Dailey] w[ould] go ahead and sign the 485s
and everything, " and for which Chudy would pay Dailey
$400 a month. The Government entered evidence of monthly
checks from Candid to Dailey for $400. This relationship
lasted from 2009 until 2011, and during this time Dailey
signed 305 Form 485s. For Dailey's certifications, Candid
billed Medicare approximately $913, 000.
also testified that if she did not pay him the monthly fee,
Dailey would not give her the signed Form 485s. During this
two-year period, Chudy never spoke to Dailey about any
patient, and Dailey never refused to sign any form.
Furthermore, Dailey never prescribed medicine for or
conducted any kind of medical review on any of these
Gomez, a federal agent with the Department of Health and
Human Services, Office of Inspector General, also testified
regarding Medicare and home health care. Gomez investigated
Candid, and this process included reviewing their Medicare
claims data and interviewing Dailey. In this interview,
Dailey initially stated that he did not remember Candid. But
Dailey recalled Candid after Gomez showed Dailey the checks
he had received from Candid. When Gomez requested the patient
charts for some of the patients that Dailey referred to
Candid, Dailey responded that he did not have those records.
In a subsequent fax, Dailey stated "I do not have
custodianship of any of these patients." Gomez testified
that it was "very unusual" for a physician not to
have patient records.
of the patients for whom Dailey signed Form 485s also
testified to the effect that they did not require home health
care and had no knowledge of Dailey. Some of the
patients' primary care physicians also testified that
their patients did not require home health care or that they
had not prescribed home health care to these patients.
requested jury instructions, Dailey requested a definition of
"practicing medicine" and "providing care,
" as well as an explanation of the scope of practice for
physician assistants. The district court denied the request.
also filed a motion for judgment notwithstanding the verdict,
which was denied. The jury returned a guilty verdict on all
review an Ex Post Facto challenge-an issue of law-de novo.
See United States v. Young, 585 F.3d 199, 202 (5th
Cir. 2009) (per curiam). "We review alleged errors in
the administration of discovery rules under an abuse of
discretion standard and will not reverse on that basis unless
a defendant establishes prejudice to his substantial
rights." United States v. Ellender, 947 F.2d
748, 756 (5th Cir. 1991).
the issue is preserved, we review the sufficiency of the
evidence de novo. United States v. Grant, 683 F.3d
639, 642 (5th Cir. 2012). When conducting this review, we
consider all evidence in the light most favorable to the
government, and all reasonable inferences and credibility
choices are made to support the jury's verdict.
United States v. Ford, 558 F.3d 371, 375 (5th Cir.
2009) (per curiam). We will affirm the conviction where a
rational trier of fact could have found the elements of the
crime beyond a reasonable doubt. Id.
we review a district court's refusal to include a
requested jury instruction for an abuse of discretion, and
the district court is afforded substantial latitude in
formulating jury ...