from the United States District Court for the Southern
District of Texas
WIENER, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, CIRCUIT JUDGE
trouble with conspiracies is that they rot
internally." According to the government's
cooperating witnesses, the appellants-Earnest Gibson, III
(Gibson III) and his son, Earnest Gibson, IV (Gibson
IV)-participated in three: one to defraud Medicare, another
to pay unlawful kickbacks, and a third to launder money. A
jury convicted the Gibsons for each, plus several substantive
kickback counts. On appeal, the Gibsons advance sufficiency
challenges and assert that the health care fraud and money
laundering conspiracies merged. For his part, Gibson III
argues that the district court infringed his constitutional
rights by limiting one of his cross-examinations and by
admitting a co-conspirator's confession, in violation of
the Bruton doctrine. He also faults the trial court
for giving the jury "deliberate ignorance"
instructions on charges requiring specific intent. In turn,
Gibson IV posits that the district court imposed too much
restitution. Both appellants also invoke the cumulative error
doctrine, claiming that the trial court's alleged
mistakes infected the verdict. We find no reversible error
and thus affirm.
case presents another instance of Medicare fraud involving
Partial Hospitalization Programs (PHPs). PHPs are outpatient
programs designed to provide daily, intensive treatment for
patients suffering from an "acute exacerbation" of
a chronic mental disorder. Houston's Riverside General
Hospital (Riverside) ran PHPs, both onsite and at satellite
locations. Riverside's Chief Executive Officer,
president, and administrator was Gibson III. His son, Gibson
IV, operated an affiliated, offsite PHP, Devotions Care
2006, Medicare approved Riverside and its PHPs to submit
reimbursement claims. Not surprisingly, a PHP costs more to
operate than does a standard outpatient service. So it is
also unsurprising that Medicare attached several strings to
its PHP coverage.
condition was patient eligibility. To bill Medicare for PHP
services, a physician needed to certify that the Medicare
beneficiary required treatment comparable with inpatient
care. Naturally, a patient must have had "the ca- pacity
for active participation in all phases of the
multidisciplinary and multi-modal program." Patients
diagnosed with Alzheimer's or dementia, for example,
would raise "red flag[s]" for Medicare.
type of treatment mattered, too. A doctor must have certified
that the PHP services would be "furnished while the
individual [wa]s under the care of a physician"
according to "an individualized written plan of
care." Expressly excluded from Medicare coverage were,
to name a few: "services to hospital inpatients and
meals, self-administered medications and
transportation"; "custodial or respite care";
"programs attempting to maintain psychiatric
well-ness"; "daycare programs for the chronically
mentally ill"; and "services to a nursing facility
resident that should be expected to be provided by the
nursing facility staff." And if a hospital operated an
offsite PHP-like Gibson IV's Devotions-treatment must
have occurred under a licensed physician's "direct
supervision." That meant the physician had to be
"physically present" in the office suite housing
the offsite PHP and "immediately available to provide
assistance and direction throughout the time the employee is
also imposed timing requirements. A PHP patient needed to
receive "active treatment" at least four days and
twenty hours a week. And if a patient's condition
"improve[d] or stabilize[d], " or if she could not
benefit from "the intensive multimodal treatment
available in the PHP, " the PHP had to discharge her.
2006-and again in 2008, 2009, and 2011-Gibson III certified
that Riverside's PHPs complied with "the laws,
regulations and program instructions of the Medicare
program." That, according to the government, turned out
to be false. As the prosecutors put it, Riverside submitted
on behalf of its PHPs $160, 336, 451.90 in Medicare bills,
and Medicare paid $46, 753, 180.04 before realizing it had
October 1, 2012, a grand jury in the Southern District of
Texas indicted Gibson III, Gibson IV, and five others on
thirteen counts, alleging various illegal schemes relating to
Riverside PHPs. Facing the prospect of a jury trial, three
defendants pleaded guilty. Two of them turned
government's witnesses to testify against the Gibsons. By
contrast, the Gibsons put the government to its burden.
ensued a month-long trial. On October 20, 2014, a jury
convicted Gibson III of conspiracy to commit healthcare fraud
(Count 1), conspiracy to defraud the government and violate
the Anti-Kickback Statute (AKS) (Count 2), seven substantive
kickback offenses (Counts 3, 4, 5, 7, 9, 11 & 12), and
conspiracy to commit money laundering promotion (Count
The jury found Gibson IV guilty on each conspiracy charge
(Counts 1, 2 & 13) and two substantive kickback offenses
(Counts 11 & 12). Soon after, the district court
sentenced Gibson III to 540 months' imprisonment and $46,
753, 180.04 in restitution. On Gibson IV the court imposed a
240-month prison term and $7, 518, 480.11 in restitution.
Gibsons now assert nearly a dozen grounds for
reversal. None is persuasive.
first consider whether the government submitted enough
evidence to support the convictions. It did.
a de novo look at preserved sufficiency-of-the-evidence
challenges. United States v. Davis, 735 F.3d 194,
198 (5th Cir. 2013). In doing so, we "review the
record to determine whether, considering the evidence and all
reasonable inferences in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable
doubt." United States v. Vargas-Ocampo, 747
F.3d 299, 303 (5th Cir. 2014) (en banc). To suffice,
"[t]he evidence need not exclude every reasonable
hypothesis of innocence or be wholly inconsistent with every
conclusion except that of guilt[.]" United States v.
Grant, 683 F.3d 639, 642 (5th Cir. 2012) (quotation
marks omitted). "The jury retains the sole authority to
weigh any conflicting evidence and to evaluate the
credibility of the witnesses." Id. (quotation
marks omitted). Even "the 'uncorroborated testimony
of an accomplice or of someone making a plea bargain with the
government' can support a conviction." United
States v. Chapman, 851 F.3d 363, 378 (5th Cir. 2017)
(quoting United States v. Shoemaker, 746 F.3d 614,
623 (5th Cir. 2014)).
rational juror could find beyond a reasonable doubt that the
Gibsons joined a health care fraud conspiracy (Count 1).
crime comprises three elements: that (1) two or more persons
made an agreement to commit health care fraud; (2) the defendant
knew the unlawful purpose of the agreement; and (3) the
defendant joined in the agreement willfully, that is, with
the intent to further the unlawful purpose. United States
v. Willett, 751 F.3d 335, 339 (5th Cir. 2014) (quotation
marks omitted). The jury need not find that the defendants
"actually submitted the fraudulent documentation"
to convict. United States v. Umawa Oke Imo, 739 F.3d
226, 235 (5th Cir. 2014). In fact, the government need not
show an overt act at all. United States v. Njoku,
737 F.3d 55, 67-68 (5th Cir. 2013). Nor must the prosecution
show direct evidence of the conspiracy; "each element
may be inferred from circumstantial evidence."
Willett, 751 F.3d at 339 (quotation marks omitted).
The illegal agreement may even be "silent and
informal." Id. (quotation marks omitted).
Still, a conviction must rest on sturdier legs than mere
inference or supposition. United States v. Grant,
683 F.3d 639, 642 (5th Cir. 2012) ("[T]he government
must do more than pile inference upon inference upon which to
base a conspiracy charge." (quotation marks omitted)).
government equipped the jury with enough evidence to conclude
that the Gibsons unlawfully agreed to bill Medicare for
unnecessary or unperformed services. For starters, the
evidence against Gibson IV was as robust as it was simple.
Take, for instance, the testimony of a behavioral technician
who said Gibson IV instructed her to bill Medicare for
unperformed services. Or the FBI agent who reviewed with the
jury Riverside's internal compliance
memoranda-incriminating documents showing that Gibson
IV's PHP billed Medicare for never-performed treatment.
evidence against Gibson III was similarly powerful. One PHP
supervisor explained that he and Gibson III entered two
contracts; one to pay the supervisor a percentage of
Riverside's Medicare returns, and another to pay him $16,
000 each month he referred 26 to 30 Medicare patients to a
Riverside PHP. The supervisor further admitted to paying
marketers to meet his patient quota. What is more, he
testified that Gibson III tracked those marketers'
locations with a spreadsheet. According to the supervisor,
Gibson III also talked about the "census"-the
number of billable patients in a PHP-"all the
time." The instructions were to "keep [the] census
up, " else Gibson III would terminate their contract.
And this was no rare threat. The boss sent several letters
warning the supervisor to bring in more patients to increase
Riverside's "market share."
supervisor was one of many informants who implicated Gibson
III. A patient recruiter explained how Gibson III skirted
Medicare rules by directing PHPs to keep beneficiaries for 90
days, put them in onsite "aftercare" programs to
watch television for a few weeks, and then readmit those
patients to avoid losing them to competitor-PHPs. A
behavioral-health technician testified that the PHPs often
admitted ineligible patients and rendered bogus treatment.
The jury also learned that Gibson III heard complaints that
the only on-duty psychiatrist was often absent and failed to
fill out necessary patient forms. But those complaints fell
on deaf ears and into obstructive hands. When an exasperated
PHP supervisor finally replaced that psychiatrist with
someone willing to do the work, Gibson III pulled rank and
reinstated the absentee doctor.
testimony unveiled similar shenanigans at other Riverside
PHPs. One worker revealed that his PHP's assigned
psychiatrist showed up only once a week. Another testified
that some patients waited a fortnight in a cafeteria before
seeing a doctor. And the patients themselves grew impatient;
they consistently complained that they couldn't see a
doctor. Still more evidence showed that Devotions violated
Medicare rules by permitting nurse practitioners to admit and
Gibson III's own testimony supported the verdict. He
admitted he knew that Medicare required a psychiatrist to be
present full-time at every PHP, and that one psychiatrist was
assigned to be at two places at once. He conceded he also
knew Medicare had reimbursed Riverside for "false
claims, " but failed to alert Medicare or fire the
people responsible. He further acknowledged he reviewed
compliance memoranda and internal audits exposing fraud, but
the conduct continued. Faced with so much evidence, a
rational juror could have found that Gibson III declined to
act because he was part of the conspiracy. See,
e.g., Imo, 739 F.3d at 236-37 (inferring a
defendant's (1) knowledge of a health care fraud
conspiracy from his proximity to unlawful acts and (2)
complicity from the continued unlawful activities);
Willett, 751 F.3d at 340 (inferring knowledge of a
health care fraud conspiracy from the defendant's
"proximity to the fraudulent activities" and
frequent meetings with his alleged co-conspirator).
sure, throughout trial Gibson III professed ignorance and
stressed his steps to stem misconduct. He also shifted blame
to supposedly rogue subordinates. A rational juror, however,
could have disbelieved his account and credited instead the
cooperating co-conspirators'. And a successful
sufficiency challenge cannot hinge on such credibility calls.
United States v. Sanjar, 853 F.3d 190, 212 (5th Cir.
2017) ("To the extent [appellants] identify
inconsistencies in the . . . testimony, that credibility
determination is for the jury to make."), cert.
denied, No. 17-5340, 2017 WL 3184826 (U.S. Oct. 2,
2017); see also United States v. Burns, 526 F.3d
852, 860 (5th Cir. 2008) ("[I]t is up to the jury to
judge the credibility of witnesses who receive favorable
treatment from the Government to testify.").
succinctly, a juror could rationally draw from the evidence a
simple conclusion: that the Gibsons knew of and willfully
joined a conspiracy to submit false PHP claims and pilfer
reasonable juror could also find that the Gibsons conspired
to violate- and actually violated-the AKS.
The statute provides that
whoever knowingly and willfully offers or pays any
remuneration (including any kickback, bribe, or rebate)
directly or indirectly, overtly or covertly, in cash or in
kind to any person to induce such person . . . to refer an
individual to a person for the furnishing or arranging for
the furnishing of any item or service for which payment may
be made in whole or in part under a Federal health care
program, . . . shall be guilty of a felony . . . .
42 U.S.C. § 1320a-7b(b)(2)(A). In other words, the AKS
"criminalizes the payment of any funds or benefits
designed to encourage an individual to refer another party to
a Medicare provider for services to be paid for by the
Medicare program." United States v. Miles, 360
F.3d 472, 479 (5th Cir. 2004). To prove an AKS conspiracy,
the government must show "(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."
Njoku, 737 F.3d at 64 (quotation marks omitted);
see also 18 U.S.C. § 371. The defendant must
have "acted willfully, that is, with the specific intent
to do something the law forbids." Miles, 360
F.3d at 479 (quotation marks omitted).
too, multiple witnesses exposed Gibson IV at trial,
testifying that through February 2012 he agreed to pay them
for referrals. One recruiter described it as an "illegal
deal" involving cash paid "under the table."
evidence was indeed devastating. A recruiter described how
Gibson IV twice paid $1, 000 in cash, in a restaurant
bathroom, after circling the block to ensure no one had
followed them. That first bathroom handoff, according to the
recruiter, was for "partial payment of the patients that
was [sic] going to Devotions." As for the second
payment, Gibson IV said that "he had to get it approved
from his pops" and "was going to the bank to get
it, " and that "he didn't know how much his
pops was going to approve, but he was going to ...