United States v. George D. Houser , 754 F.3d 1335 ( 2014 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_______________________
No. 12-14302
_______________________
D.C. Docket No. 4:10-cr-00012-HLM-WEJ-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GEORGE D. HOUSER,
Defendant - Appellant.
_______________________
Appeal from the United States District Court
for the Northern District of Georgia
_______________________
(June 19, 2014)
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Before MARCUS, BLACK, and RIPPLE,* Circuit Judges.
RIPPLE, Circuit Judge:
Following a four-week bench trial, George D. Houser was convicted of one
count of conspiring with his wife, Rhonda Washington Houser (“Washington”), to
commit health care fraud, in violation of 18 U.S.C. § 1349, of eight counts of
payroll tax fraud, in violation of 26 U.S.C. § 7202, and of two counts of failure to
timely file income tax returns, in violation of 26 U.S.C. § 7203. The district court
sentenced Mr. Houser to 240 months’ imprisonment and ordered him to pay nearly
$7 million in restitution to Medicare and Medicaid and more than $870,000 to the
Internal Revenue Service (“IRS”). For the reasons set forth in the following
opinion, we affirm the judgment of the district court.
I
A. Facts1
During the early 1990s, a period before the events giving rise to his
conviction, Mr. Houser had operated two nursing home facilities in Rome,
*
Honorable Kenneth F. Ripple, United States Circuit Judge for the Seventh Circuit,
sitting by designation.
1
We recite below the facts as found by the district court following Mr. Houser’s bench
trial. See R.290.
2
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Georgia. After he failed to pay payroll taxes for employees, the IRS seized one
facility, and the State of Georgia revoked Mr. Houser’s license to operate nursing
homes. The IRS also placed tax liens on the nursing homes. During the ten years
when the liens were active, Mr. Houser occasionally went to the local IRS office
to inquire about the pay-off amounts. Full payment of the amounts owed never
was made.
When the liens expired in 2003, Mr. Houser sought to reestablish his control
over the two facilities, Mount Berry Convalescent Center and Moran Lake
Convalescent Center (“Mount Berry” and “Moran Lake,” respectively). He
created Forum Healthcare Group, Inc. (“FHG”), and FHG assumed management of
the facilities. State records and the Medicare and Medicaid provider applications
list Washington, Mr. Houser’s then-girlfriend, as the owner, president and office
manager of FHG.2 In September 2003, FHG also assumed management of
Wildwood Park Nursing and Rehabilitation Center (“Wildwood”) in Brunswick,
Georgia.
2
Mr. Houser and Washington eventually married, but the record does not reveal when
the marriage took place.
3
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1.
During the period covered by the indictment, Mount Berry, Moran Lake and
Wildwood were all licensed care facilities and certified recipients of Medicare and
Medicaid funds. The facilities’ total capacity was 404 residents, and occupancy
rates ranged between seventy-five and ninety percent. Of these residents,
approximately eighty to ninety percent had their care funded by Medicare or
Medicaid.
In July 2004, Mr. Houser formally assumed control of the three homes.
New Medicare provider applications listed a change of ownership from
Washington to Mr. Houser, and Mr. Houser was listed as president and chief
executive officer. Medicaid applications listed Mr. Houser, along with FHG and
Louise K. Houser--Mr. Houser’s mother--as the owners. On the Medicare
enrollment form, Mr. Houser certified (1) that he “agree[d] to abide by the
Medicare laws, regulations, and program instructions that apply to this provider,”
(2) that he “underst[ood] [t]hat payment of a claim by Medicare is conditioned
upon the claim and the underlying transaction complying with such laws,
regulations, and program instructions . . . , and on the provider’s compliance with
all applicable conditions of participation in Medicare,” and (3) that he “w[ould]
not knowingly present or cause to be presented a false or fraudulent claim for
4
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payment by Medicare, and w[ould] not submit claims with deliberate ignorance or
reckless disregard of their truth or falsity.”3 Moreover, on submissions for
reimbursement, the provider acknowledged “that payment will be from federal and
state funds and that any falsification or concealment of a material fact may be
prosecuted under federal and state laws.”4
2.
As nursing facilities governed by 42 U.S.C. § 1396r, the facilities were
required to provide residents with a clean, safe and sanitary environment to
maintain or support “the highest practicable level of physical, mental, and
psychosocial well-being to every resident.”5 During the period from 2003 to 2007,
when the facilities were within Mr. Houser’s control, the conditions were, in short,
“barbaric” and “uncivilized.”6
The record discloses countless issues with both the condition of the physical
3
Gov’t’s Trial Ex. 110 (Medicare Federal Health Care Provider/Supplier Enrollment
Application for FHG) at 21.
4
See, e.g., Gov’t’s Trial Ex. 116 (Georgia Dep’t of Cmty. Health Div. of Med.
Assistance Provider Enrollment Application) at 13.
5
R.290 at 24 (internal quotation marks omitted); see also 42 U.S.C. § 1396r(b)(2) (“A
nursing facility must provide services and activities to attain or maintain the highest practicable
physical, mental, and psychosocial well-being of each resident . . . .”).
6
R.341 at 4 (Sentencing Tr.).
5
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plants and the provision of services at all of the facilities. By way of example
only, roofs at the facilities leaked so profusely as to flood residents’ rooms,
damage their personal property, and cause ceiling tiles to fall in residents’ rooms
and common areas. Administrators sent Mr. Houser and Washington urgent faxes
apprising them of the problems and of the potential hazards to residents. For
instance, on December 22, 2006, an administrator sent a fax to Mr. Houser and
Washington that read: “‘WE HAVE CEILING TILES AND ROOF LEAKS
ON RESIDENTS’ BEDS AND CLOTHES. I NEED SOME ONE TO
EITHER TAKE CARE OF IT OR BRING MONEY FOR JAMIE [Young]
TO DO SOMETHING!!!’”7
The dining room at Moran Lake had no heat for the winter of 2006 to 2007;
the same facility had no air conditioning in an entire wing from July 2006 to June
2007. The Wildwood facility was without air conditioning for three months
during the spring and summer of 2007, during which time the interior temperature
reached ninety degrees. Mr. Houser and Washington similarly were informed of
these issues.8
7
R.290 at 39 (alteration in original) (quoting Gov’t’s Trial Ex. 487 (collection of faxed
memoranda from facility administrator to Mr. Houser and Washington)).
8
See id. at 53, 54.
6
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The homes suffered from “shortages or a complete lack of cleaning
supplies” because vendors’ bills went unpaid.9 Bathroom facilities went
unattended, and, as a result, the homes “had a strong odor of urine and feces.”10
The laundry facilities frequently were inoperable due to lack of power or disrepair.
When a power outage occurred, soiled linens could not be changed in the
residents’ rooms. Administrators complained frequently to Mr. Houser and
Washington about the lack of cleaning and sanitizing supplies.
Trash service was stopped due to Mr. Houser’s failure to pay waste removal
bills. “When the waste removal services refused to empty the dumpsters at the
nursing homes, employees left garbage near the dumpster, which attracted flies
and other insects, rodents, and dogs, and generated odors.”11 All of the facilities
“experienced fly infestations. Witnesses described seeing flies in the residents’
rooms, in the dining rooms, on the residents’ food,” as well as swarming around
“the residents and their sores.”12
Residents’ physical and medical needs regularly were not met.
9
Id. at 65 (emphasis added).
10
Id. at 67.
11
Id. at 90.
12
Id. at 101.
7
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“[M]edications were not available for residents because [Mr. Houser] had not paid
the pharmacy bill. On some occasions, the nurses ‘borrowed’ the medications
from one resident and gave those to another resident[] . . . . On other occasions,
the residents never received the medications they were supposed to have.”13
“Numerous witnesses testified that all three nursing homes frequently ran out of
diapers, wound care supplies, and basic nursing supplies.”14 Laboratory services
that had been ordered by a physician, including those for patients on dialysis, were
not performed because the bills for such services went unpaid.15 The homes went
without blood sugar testing devices and strips necessary to monitor diabetic
patients. Patients went without dialysis because the transportation company
refused to service the homes due to unpaid bills.16 Facilities also were without
medical directors and physical therapy services for significant periods of time.
The administrators at the facilities informed Mr. Houser and Washington that
failure to pay the bills for these services was placing the patients at risk and the
homes in jeopardy of closure.
13
Id. at 144 (emphasis added) (citations omitted).
14
Id. at 160 (emphasis added).
15
See id. at 173.
16
See id. at 219.
8
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The facilities were grossly understaffed due to staffing cuts mandated by
Mr. Houser and to payroll difficulties at all three homes. Although Mr. Houser
and Washington repeatedly assured administrators that payroll obligations would
be met, this frequently did not occur. On one occasion, to placate upset staff
members, Mr. Houser and Washington handed out fifty dollar bills to employees
who could not cash their paychecks.
Resident care directly suffered as a result of staffing shortages. Residents
and their beds were soaked with urine or caked in feces because diapers were not
changed. “The short staffing problem became more severe on paydays, when
employees raced to the bank or stood in line to cash their checks at the money
van.”17
Insufficient food was a significant problem because Mr. Houser failed to
pay food vendors. Residents were given small, nutritionally inadequate meals and
often little or no milk. “Residents with special dietary needs often did not receive
protein shakes, other dietary supplements, or required therapeutic meals.”18
Residents regularly complained to both the staff and relatives that they were
hungry.
17
Id. at 208.
18
Id. at 264-65 (emphasis added).
9
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A former medical director and other staff reported significant weight loss
among the residents.
Weight loss and malnutrition make nursing home residents more
susceptible to disease, infection, and aggravate[] the chronic illnesses
that they already have. Nursing homes must keep track of their
residents’ weights, and must investigate when a resident loses five
percent or more of his or her body weight during a one-month
period.[19]
Mr. Houser, however, instructed staff to stop recording patient weight loss,
presumably to avoid suspicion in a survey. Families of residents began to bring in
food so that their family members would receive adequate nutrition. Staff
members also would purchase bread and milk from their own funds so that
residents would have something to eat.
3.
During the relevant period, state officials conducted surveys on an annual
basis and also in response to specific complaints. Mr. Houser appeared to have
some advance notice of survey times, and he placed calls to facilities instructing
them to increase services and staffing levels during those times. The
record reflects that Mr. Houser and Washington terminated individuals who raised
19
Id. at 222 (alteration in original) (citation omitted) (internal quotation marks omitted).
10
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issues of noncompliance or reported them to the authorities. Staff believed that if
they revealed the true conditions at the nursing homes to state surveyors, “they
would be ‘immediately terminated.’”20
Despite Mr. Houser’s efforts, the facilities regularly were cited for
violations, and, eventually, in 2007, the facilities each were given ratings so low--
on the basis of an immediate risk to the health and safety of residents--that closure
was required. In June 2007, the Georgia Office of Regulatory Services (“ORS”)
gave notice that it was terminating the Medicaid provider agreements for Mount
Berry and Moran Lake “because of numerous problems, including unsatisfactory
physical environmental conditions, staffing shortages, and irregularities involving
resident trust fund accounts.”21 Three months later, the ORS gave notice that it
was closing the Wildwood facility for the same reasons. When the facilities
closed, residents were transferred to other nursing homes. At new facilities, the
arriving residents had no medical histories sent with them. They were unkempt
and complained of hunger, and many hoarded food.
20
Id. at 131.
21
Id. at 16.
11
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4.
Prior to their closure, Medicare and Medicaid had paid FHG
$32,914,304.66 for resident care. Between 2003 and 2007, “$2,282,439 was
deposited or transferred directly into Mr. Houser’s personal bank[] accounts,
$467,949 was deposited or transferred directly into Washington’s personal bank[]
accounts,” and $1,745,620 was deposited or transferred into the operating account
of Mr. Houser’s construction company, “The Guild”; nearly all of these funds
came from an FHG source.22 During the same time period, Mr. Houser purchased
over $4 million in real estate; “[a] number of checks, signed by [Mr. Houser] and
Washington and dated from October 2004 through May 2005, were drawn on FHG
or Forum Group Management Services’ accounts” to make payments for these
properties.23 In July 2004, Mr. Houser purchased a home for his ex-wife at a cost
of $1.4 million; “approximately six weeks earlier, [Mr. Houser] [had] transferred
$1.4 million from the FHG bank account to a personal account in [his] name.”24
Employees of his other businesses, none of which had independent revenue, were
sometimes paid directly by FHG. Mr. Houser’s alimony payments, as well as
22
Id. at 352-53.
23
Id. at 364-65.
24
Id. at 366.
12
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payments for nanny services and three luxury automobiles, also were drawn from
FHG funds.
5.
Mr. Houser withheld payroll taxes but, beginning with the last quarter of
2003, failed to turn over the withheld amounts to the IRS (he also periodically did
not remit health insurance premiums, disability insurance premiums and child
support garnishments). The IRS repeatedly informed Mr. Houser and Washington
about the failure to pay the taxes. In 2005, Washington gave Revenue Officer
Odell Justice ten checks drawn from the FHG operating account to pay, in part, the
past-due payroll taxes; Washington also gave Officer Justice instructions as to
when the checks could be deposited. The first two checks cleared; however, when
Officer Justice attempted to deposit the third and fourth checks, they were returned
for insufficient funds, and Officer Justice did not attempt to deposit the remainder
of the checks. Consequently, in February 2005, Officer Justice notified
Mr. Houser and Washington “that the IRS would impose payroll tax recovery
penalties, or trust fund recovery penalties, against [them] for the taxes due from
13
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the fourth quarter of 2003.”25 Later that month, Officer Justice received twenty
checks signed by Washington in various amounts with notations that they
represented payroll taxes for the fourth quarter of 2004. Ten of those checks
cleared; the remainder, totaling $157,000, bounced. Officer Justice then referred
the matter to the IRS criminal investigation division.
On November 17, 2005, IRS criminal investigators executed a search
warrant on the FHG offices. During late 2006 and 2007, attorneys for Mr. Houser
made partial payments toward taxes due for the fourth quarter of 2004 and the
second quarter of 2005. As of the close of the district court record, $806,305 still
was owed for the first quarter of 2004, the fourth quarter of 2004, and the second
quarter of 2005.
In addition to the payroll tax deficiencies, Mr. Houser failed to file his 2004
personal tax return until April 2008, three years after it was due and
two-and-one-half years after the IRS initiated its criminal investigation.
According to the district court record, Mr. Houser has yet to file a 2005 return.
B. Proceedings in the District Court
In 2011, the Government charged Mr. Houser and Washington in an
25
Id. at 398.
14
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eleven-count indictment. Count One alleged that both defendants had entered into
a conspiracy to commit health care fraud in violation of 18 U.S.C. § 1349. Counts
Two through Nine alleged that, on eight occasions occurring during the first and
fourth quarters of 2004 and the second quarter of 2005, Mr. Houser had failed to
pay over to the IRS some $806,000 in payroll tax payments, in violation of 26
U.S.C. § 7202. Counts Ten and Eleven alleged a failure by Mr. Houser to timely
file personal income tax returns for tax years 2004 and 2005, in violation of 26
U.S.C. § 7203.
Mr. Houser pleaded not guilty and moved to dismiss the indictment. His
motion was denied, and the case proceeded to a bench trial on a superseding
indictment. Washington was dismissed from the case and permitted to plead
guilty to another indictment alleging misprision of a felony.
Mr. Houser’s four-week trial included the testimony of eighty Government
witnesses and nearly seven hundred exhibits. Mr. Houser moved, at the close of
the Government’s evidence and again at the close of all of the evidence, for a
judgment of acquittal, which the district court denied.26
On April 2, 2012, the district court entered a 471-page order that included
26
Mr. Houser then filed a pro se motion for a mistrial and, in the alternative, for a new
trial. The court ordered Mr. Houser’s pro se motion and attached exhibits stricken from the
record.
15
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detailed findings concerning the neglected state of the properties, the lack of
services and attention to the residents, and Mr. Houser’s appropriation of
Medicare and Medicaid payments to FHG for his own use. The district court
found Mr. Houser guilty on all counts. Specifically, with respect to Count One of
the indictment, charging Mr. Houser with conspiring with Washington to commit
health care fraud, the district court determined that
[t]he Government ha[d] proved beyond a reasonable doubt that the
three Forum nursing facilities, Mt. Berry, Moran Lake, and
Wildwood, under the direction of Defendant, submitted or caused to
be submitted, during the course of the conspiracy, false or fraudulent
claims to the Medicare and Georgia Medicaid programs for services
that were worthless in that they were not provided or rendered, were
deficient, inadequate, substandard, and did not promote the
maintenance or enhancement of the quality of life of the residents of
the Nursing Facilities, and were of a quality that failed to meet
professionally recognized standards of health care.[27]
Turning to Counts Two through Nine, the court found that Mr. Houser willfully
had failed to pay over taxes withheld from the wages of employees in the calendar
quarters alleged in the indictment. It determined that the late payments made by
Mr. Houser’s attorney “were ineffective, after the fact attempts to reduce
Defendant’s criminal liability.”28 Finally, the court found that Mr. Houser
27
Id. at 428 (emphasis added).
28
Id. at 465.
16
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willfully had failed to timely file his income tax returns for 2004 and 2005. Again,
it concluded that Mr. Houser’s
action of filing a personal income tax return for 2004 in April 2008,
after Defendant learned that he was the subject of an IRS criminal
investigation, was an ineffective, after the fact attempt by Defendant
to avoid criminal liability for his previous failure to file a personal
income tax return.[29]
At his sentencing hearing, Mr. Houser spoke on his own behalf and, while
acknowledging some of the facts proved at trial, continued to argue that much of
what the court had concluded regarding his nursing homes was false. The district
court sentenced Mr. Houser to 120 months’ imprisonment--the statutory
maximum--on Count One. The court sentenced him to 60 months’ imprisonment
on each of Counts Two through Eleven, which were staggered such that the
resulting sentence on all tax-related counts was an additional 120 months’
imprisonment, for a total of 240 months, a sentence within the advisory guidelines
range. The court also ordered Mr. Houser to pay restitution to Medicare and
Medicaid in the amount of $6,742,807.88. The court arrived at this figure after
concluding that approximately twenty to twenty-five percent of the services
Mr. Houser provided under those programs were “worthless.”30 The court ordered
29
Id. at 469.
30
R.341 at 4.
17
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restitution to the IRS in the amount of $872,515. The court also entered an order
of forfeiture.
Mr. Houser timely appealed his conviction, as well as the court’s forfeiture
order.
II
A. Health Care Fraud Count
Count One of the Second Superseding Indictment charged Mr. Houser and
Washington with conspiring to commit health care fraud in violation of 18 U.S.C.
§ 1349.31 Section 1349 requires an agreement to commit the underlying offense,
namely that the defendant (1) “knowingly and willfully execute[d], or attempt[ed]
to execute, a scheme or artifice” (2) “to defraud any health care benefit program”
or “to obtain, by means of false or fraudulent pretenses, representations, or
promises, any of the money or property owned by, or under the custody or control
of, any health care benefit program,” (3) “in connection with the delivery of or
payment for health care benefits, items, or services.” 18 U.S.C. § 1347.
The district court found that Mr. Houser and Washington, working together,
31
Section 1349 of Title 18 provides: “Any person who attempts or conspires to commit
any offense under this chapter shall be subject to the same penalties as those prescribed for the
offense, the commission of which was the object of the attempt or conspiracy.”
18
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knowingly submitted to Medicare and Georgia Medicaid claims for services that
had not been rendered. The district court stated:
Specifically, the Government has proved beyond a reasonable doubt
that the three Forum nursing facilities, Mt. Berry, Moran Lake, and
Wildwood, under the direction of Defendant, submitted or caused to
be submitted, during the course of the conspiracy, false or fraudulent
claims to the Medicare and Georgia Medicaid programs for services
that were worthless in that they were not provided or rendered, were
deficient, inadequate, substandard, and did not promote the
maintenance or enhancement of the quality of life of the residents of
the Nursing Facilities, and were of a quality that failed to meet
professionally recognized standards of health care.[32]
On appeal, Mr. Houser does not contest the deplorable conditions of his
nursing homes; indeed, he recites, in detail, those conditions in his opening brief.
He admits that
Forum routinely failed to pay the expenses of the nursing facilities,
including bills for clinical laboratory services, physical therapy,
transport services, telephone service, mobile x-ray services, pharmacy
services, and various medical, nursing and cleaning supplies, as well
as repair costs for washing machines and dryers, dishwashers, air
conditioners and heaters, medical equipment, and leaking roofs.[33]
He also admits that “[t]he administrators of the nursing facilities and other staff
warned Mr. Houser, through telephone calls, e-mails and faxes, of these
32
R.290 at 428 (emphasis added).
33
Appellant’s Br. 18-19 (citations omitted).
19
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deficiencies.”34 Instead, Mr. Houser maintains that the district court erred in
employing a “worthless services” concept in evaluating his guilt under the health
care fraud statute. Moreover, he maintains that the record does not support a
finding that he conspired with Washington--or anyone else--to violate 18 U.S.C.
§ 1347. We evaluate each of these arguments in turn.
1. Worthless Services
Mr. Houser first takes issue with the district court’s use of the “worthless
services” concept. Mr. Houser claims that “[t]he concept of ‘worthless services’
derives from civil suits brought under the False Claims Act.”35 According to
Mr. Houser, “[a] claim of ‘worthless services’ can be the basis for a false claims
action, if the plaintiff can show that ‘the performance of the service is so deficient
that for all practical purposes it is the equivalent of no performance at all.’”36
Mr. Houser submits, however, that “engrafting a ‘worthless services’
concept onto the federal health care fraud statute renders the statute
unconstitutionally vague and, therefore, void” because “determining at what point
34
Id. at 18.
35
Id. at 34.
36
Id. (quoting Mikes v. Straus, 274 F.3d 687, 703 (2d Cir. 2001)).
20
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health care services have crossed the line from merely bad to criminally worthless
would leave many men of common intelligence guessing.”37 Mr. Houser
distinguishes his case from those in which “the service for which a provider seeks
reimbursement was never provided, see United States v. Hoffman-Vaile, 568 F.3d
1335 (11th Cir. 2009), or unnecessary, see United States v. Mateos, 623 F.3d 1350
(11th Cir. 2010), or not covered, see [United States v.] Medina, 485 [F.3d 1291,]
1299 [(11th Cir. 2007)].”38 The district court’s definition of worthless services,
Mr. Houser continues, strays from these situations in that it introduces the idea of
desirability into the calculus. In his view, the concept has no place in an
evaluation of worthlessness because what is totally undesirable to one person
nevertheless may have value for another.
“We review whether a criminal statute is unconstitutionally vague de novo.”
United States v. Wayerski, 624 F.3d 1342, 1347 (11th Cir. 2010). We do not
believe that Mr. Houser’s conviction requires us to draw the proverbial line in the
sand for purposes of determining when clearly substandard services become
“worthless.” Although the indictment in this case sometimes describes “the care,
services and environment provided by the Nursing Facilities” as being “so
37
Id. at 35-36 (internal quotation marks omitted).
38
Id. at 41.
21
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inadequate or deficient as to constitute worthless services,”39 Mr. Houser was not
prosecuted solely on the basis of the deficient nature of some of the services
provided. It is clear both from the indictment and the district court’s order of
conviction that Mr. Houser also was prosecuted and convicted for failing to
provide services that he had certified to Medicare and Georgia Medicaid had been
provided to the residents in his homes.
The indictment alleges that “[f]ederal statutes and regulations mandate that
nursing facilities comply with federal requirements relating to the provision of
services and quality of care. 42 U.S.C. § 1396r(b).”40 The indictment continues:
“A nursing facility must care for its residents in such a manner and in
such an environment as will promote maintenance or enhancement of
the quality of life of each resident.” 42 U.S.C. § 1396r(b)(1)(A).
Additionally, nursing facilities “must provide services and activities
to attain or maintain the highest practicable physical, mental and
psychosocial well-being of each resident in accordance with a plan of
care which . . . describes the medical, nursing, and psychosocial needs
of the resident and how such needs will be met . . . [.] 42 U.S.C.
§ 1396r(b)(2)(A); 42 C.F.R. § 483.25.[41]
The indictment goes on to describe how Mr. Houser’s nursing facilities failed to
provide required services: “On numerous occasions, the defendants owed
39
R.139 at 12-13, ¶ 36.
40
Id. at 6, ¶ 17.
41
Id. at 6-7, ¶ 17 (alteration in original).
22
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considerable sums to many Nursing Facility vendors through consistent
delinquency in payment or failure to pay despite promises and representations to
the contrary. Defendants curtailed crucial services provided to residents by failing
to pay the vendors who provided such services.”42 The fraudulent activity alleged
in the indictment was based on the submission of claims for both the lack of
services, as well as services that were “deficient, inadequate, [or] substandard”:
92. The Nursing Facilities submitted or caused to be
submitted, during the course of the conspiracy, false or fraudulent
claims to the Medicare and Georgia Medicaid program for services
that were worthless in that they were not provided or rendered, were
deficient, inadequate, substandard, and did not promote the
maintenance or enhancement of the quality of life of the residents of
the Nursing Facilities, and were of a quality that failed to meet
professionally recognized standards of health care.[43]
And, again, a few paragraphs later: “During the course of the conspiracy,
defendants GEORGE D. HOUSER and RHONDA HOUSER fraudulently caused
claims to be paid by Medicare and Georgia Medicaid for care and services that
were either not rendered or were so inadequate or deficient as to constitute
worthless services.”44
The district court’s order of conviction also rested, at least in part, on the
42
Id. at 17, ¶ 55 (emphasis added).
43
Id. at 29, ¶ 92 (emphasis added).
44
Id. at 30, ¶ 95 (emphasis added).
23
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facilities’ failure to provide necessary services. The district court explicitly found
that there were occasions when “residents never received the medications that they
were supposed to have,”45 residents went without diapers and medical care for
their wounds,46 laboratory services were not performed,47 and residents were not
transported for dialysis48 or provided with physical therapy.49 Moreover, it is clear
from the court’s order that the complete lack of some services served as one of the
bases for the district court’s determination that the Government had met its burden
of proof with respect to the conspiracy charge:
13. For the following reasons, the Court finds that the
Government has proved beyond a reasonable doubt that Defendant
conspired with his wife, Washington, to defraud the Medicare and
Georgia Medicaid programs and to obtain by means of material false
and fraudulent pretenses, representations and promises, money and
property owned by, and under the custody and control of, the
Medicare program and Georgia Medicaid, in connection with the
delivery of and payment for health care benefits and services, in
violation of 18 U.S.C. §§ 1347 and 1349.
14. Specifically, the Government has proved beyond a
reasonable doubt that the three Forum nursing facilities, Mt. Berry,
Moran Lake, and Wildwood, under the direction of Defendant,
45
R.290 at 144.
46
See id. at 160.
47
See id. at 173.
48
See id. at 219.
49
See id. at 195.
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submitted or caused to be submitted, during the course of the
conspiracy, false or fraudulent claims to the Medicare and Georgia
Medicaid programs for services that were worthless in that they were
not provided or rendered, were deficient, inadequate, substandard,
and did not promote the maintenance or enhancement of the quality of
life of the residents of the Nursing Facilities, and were of a quality
that failed to meet professionally recognized standards of health
care. . . .
15. The Government has proved beyond a reasonable doubt
that, during the course of the conspiracy, Defendant fraudulently
caused claims to be paid by Medicare and Georgia Medicaid for care
and services that were either not rendered or were so inadequate or
deficient as to constitute worthless services.[50]
Although acknowledging that some services simply were not provided to
residents, Mr. Houser nevertheless argues that, for purposes of Medicare and
Georgia Medicaid reimbursements, these services are “bundled.” Consequently,
he urges, we must evaluate the provision of services as a whole and cannot
evaluate whether residents were deprived of a single, although necessary, service.
50
Id. at 427-29 (emphasis added). At oral argument, Mr. Houser’s counsel maintained
that the Government proceeded only on a worthless services theory, that it had not prosecuted
Mr. Houser for seeking reimbursement from Medicare and Georgia Medicaid for services that the
nursing homes had failed to provide, and that, if the failure to provide services were the basis for
the prosecution, Mr. Houser had not been given adequate notice. Counsel pointed specifically to
the district court’s comments at sentencing (concerning the calculation of loss) to support this
contention. See R.341 at 3-4.
We believe that the cited passages of the indictment clearly put Mr. Houser on notice that
the Government considered his fraudulent scheme to include the submission of claims for
services that were not rendered as well as the submission of claims for services that were so
substandard as to constitute worthless services. Moreover, the cited passages of the conviction
order establish that the district court rested its determination of guilt on Count One, at least in
part, on Mr. Houser’s complete failure to provides some services.
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Mr. Houser maintains that this approach is mandated by United States ex rel.
Sanchez-Smith v. AHS Tulsa Regional Medical Center, LLC, 754 F. Supp. 2d
1270 (N.D. Okla. 2010), and United States ex rel. Swan v. Covenant Care, Inc.,
279 F. Supp. 2d 1212 (E.D. Cal. 2002).
Even if we were bound to follow these cases, and we are not, we could not
conclude that they require reversal of the district court’s judgment. Turning first
to Sanchez-Smith, the court held that, for purposes of bringing a qui tam action
under the False Claims Act, a plaintiff could “reach a jury on a factual falsity
theory in the context of ‘bundled’ per diem Medicaid billing” by “present[ing]
facts amounting to (1) the provision of entirely worthless services, or (2) at a
minimum, the provision of grossly negligent services with regard to a particular
standard of care or regulatory requirement.” 754 F. Supp. 2d at 1287 (citation
omitted) (internal quotation marks omitted). The court then concluded that the
relators had failed to “demonstrate the provision of worthless services or anything
amounting to gross negligence” because, in the most egregious case, one patient
had received 677.25 of the 840 hours of required therapy. Id. Under those
circumstances, the court concluded that “[n]o reasonable jury could conclude that
TRMC billed Medicaid for worthless services provided to Patient 19, and no
reasonable jury could conclude that TRMC billed Medicaid for even ‘grossly
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negligent’ services provided to Patient 19.” Id. Here, however, the facts are very
different. The indictment alleged, and the district court found, that patients went
entirely without necessary services such as physical therapy, medication, dialysis
and wound care. Moreover, we note that the district court concluded that
Mr. Houser had actual knowledge of the conditions and lack of services in his
nursing homes “through an almost daily barrage of telephone calls, emails, and
faxes from the administrators at all three nursing homes during the entire period of
the conspiracy, yet Defendant affirmatively chose to ignore these alerts.”51 In
short, the record reflects not simply “gross negligence” in the provision of
required services, but an intentional disregard of those requirements.
Swan also does little to assist Mr. Houser. In that case, a plaintiff in a qui
tam action alleged that a nursing facility was “so severely understaffed . . . that
patients were often denied the most basic care such as repositioning, feeding,
bathing, and wound treatment.” Swan, 279 F. Supp. 2d at 1216. The district court
granted summary judgment for the defendant, Covenant Care, on the ground that
the court lacked subject matter jurisdiction over the action because the essential
elements of the plaintiff’s claims had been disclosed in a previous action. See id.
at 1217-20. The court then went on to state that, even if it had jurisdiction,
51
R.290 at 435.
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“Covenant Care would still be entitled to summary judgment on [the] false records
claim.” Id. The court observed that “Covenant Care does not bill the government
separately for individual acts of patient care such as feeding, turning, or bathing.
Instead, the government pays Covenant Care a per diem rate for providing room
and board, including the provision of such routine services . . . .” Id. at 1221. The
court then concluded that “[b]ecause Swan does not allege that Covenant Care’s
neglect of its patients was so severe that, for all practical purposes, the patients
were receiving no room and board services or routine care at all, her FCA claim
does not fit within the worthless services category.” Id. (emphasis added).
Without endorsing or adopting the standard set forth in Swan, we note that
Mr. Houser’s situation is markedly different. In the present case, the district
court’s judgment does not simply rest on the fact that some services were severely
substandard; it rests on the fact that certain services, including those mandated by
statute,52 were not provided to residents at all.53
52
By way of example only, 42 U.S.C. § 1396r(b)(4)(A) states that “a nursing facility
must provide . . . (i) . . . rehabilitative services . . . ; (iii) pharmaceutical services . . . ; [and] (iv)
dietary services that . . . meet the daily nutritional and special dietary needs of each resident.”
53
Because the Government proceeded, and the district court’s conviction rested, at least
in part, on the nursing facilities’ complete failure to provide some necessary services to the
residents, we need not consider whether the concept of worthless services based on inadequacy
or undesirability is unconstitutionally vague. See Appellant’s Br. 35-39.
In his reply brief, Mr. Houser suggests that the Government used his profit margin of
twenty-five percent to establish the element of willfulness. This strategy, he continues,
(continued...)
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We believe this conclusion is consonant with that reached by the Court of
Appeals for the Sixth Circuit in Chesbrough v. VPA, P.C., 655 F.3d 461 (6th Cir.
2011), on which Mr. Houser relies. In Chesbrough, relators had filed a False
Claims Act action against VPA alleging “that VPA defrauded the government by
submitting Medicare and Medicaid billings for defective radiology studies.” Id. at
464. The court held that the relators’ action could not go forward on the basis of
53
(...continued)
contributed to the vagueness of the statute because “it is impossible to state with any degree of
certainty that a ‘person of ordinary intelligence’ necessarily would realize that he could be
prosecuted criminally for health care fraud if he runs his nursing home for-profit and takes what
the Government considers to be too much in profits.” Reply Br. 5. Again, Mr. Houser’s
argument misses the mark. The Government did not charge Mr. Houser with taking an excessive
profit; it charged him, and the district court found him guilty of, a scheme wherein he
consciously disregarded his legal obligations to provide basic services to Medicare and Medicaid
beneficiaries, while simultaneously diverting substantial funds to personal uses. His purchases
evidence that he had funds available to pay for those services, but that he intentionally used those
funds for other purposes.
Mr. Houser’s brief does not raise a facial vagueness objection to the health care fraud
statute under which he was prosecuted. See Reply Br. 9 (“Mr. Houser[] . . . does not challenge
the clarity of § 1347 as a statute . . . .”). Moreover, we do not believe Mr. Houser reasonably
could argue that the statute is unconstitutionally vague because it criminalizes the complete
failure to provide some services. As the Court of Appeals for the Sixth Circuit recognized in
United States v. Semrau, 693 F.3d 510 (6th Cir. 2012), “[a]lthough the health care fraud statute
does not (and could not) specify the innumerable fraud schemes one may devise, it is difficult to
imagine a more obvious way to commit healthcare fraud than billing for services not actually
rendered.” Id. at 530 (citation omitted) (internal quotation marks omitted). Moreover, the mens
rea requirement contained in the statute, see 18 U.S.C. § 1347 (“Whoever knowingly and
willfully executes, or attempts to execute, a scheme or artifice-- . . . shall be fined under this title
or imprisoned not more than 10 years, or both.” (emphasis added)), largely mitigates any
ambiguity, see United States v. Conner, 752 F.2d 566, 574 (11th Cir. 1985) (“‘The requirement
that the act must be willful or purposeful may not render certain, for all purposes, a statutory
definition of the crime which is in some respects uncertain. But it does relieve the statute of the
objection that it punishes without warning an offense of which the accused was unaware.’”
(quoting Screws v. United States, 325 U.S. 91, 102, 65 S. Ct. 1031, 1036, 89 L. Ed. 1495 (1945)
(plurality opinion))).
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VPA’s reimbursement claims for the x-ray studies that were “‘suboptimal’ or of
‘poor quality.’” Id. at 467-68. Nevertheless, the court determined that the relators
could go forward on the basis of five studies that were “nondiagnostic.” Id. at 468
(internal quotation marks omitted). It reasoned that, “[i]f VPA sought
reimbursement for services that it knew were not just of poor quality but had no
medical value, then it would have effectively submitted claims for services that
were not actually provided. This would amount to a ‘false or fraudulent’ claim
within the meaning of the FCA.” Id. As the defendants in Chesbrough did,
Mr. Houser sought reimbursement from Medicare and Georgia Medicaid for
required services--pharmaceutical, diagnostic, medical and dietary--that simply
were not provided.
2. Proof of Conspiracy
Mr. Houser also challenges his conviction on Count One on the ground that
the “evidence did not establish that Mr. Houser conspired either with Rhonda
Houser or with anyone else.”54 According to Mr. Houser, “[n]either Rhonda
Houser nor anyone else had any control or authority over how the funds were
54
Appellant’s Br. 43.
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allocated or how the nursing homes were run.”55
We typically “review challenges to the sufficiency of the evidence in
criminal cases de novo, viewing the evidence in the light most favorable to the
[G]overnment.” United States v. Dominguez, 661 F.3d 1051, 1061 (11th Cir.
2011). Here, however, Mr. Houser never challenged the sufficiency of the
evidence before the district court. The only basis for his motion for acquittal on
the conspiracy count was his vagueness challenge.
[W]here a defendant fails to preserve an argument as to the
sufficiency of the evidence in the trial court, the predominant rule in
this circuit--established by a long and unchallenged line of cases--is
better stated as requiring that we uphold the conviction unless to do
so would work a “manifest miscarriage of justice.”
United States v. Fries, 725 F.3d 1286, 1291 n.5 (11th Cir. 2013) (quoting United
States v. Perez, 661 F.3d 568, 573-74 (11th Cir. 2011) (per curiam)). Regardless
of the standard applied, however, Mr. Houser’s sufficiency challenge fails.
We frequently have noted that “direct evidence of an agreement is
unnecessary; the existence of the agreement and a defendant’s participation in the
conspiracy may be proven entirely from circumstantial evidence.” United States v.
McNair, 605 F.3d 1152, 1195 (11th Cir. 2010). Here the record is replete with
evidence that Washington knew of the lack of provisions and services in the
55
Id. at 44.
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nursing homes;56 that she had access to and control over nursing home funds;57 and
that she was involved in efforts to placate employees,58 mask the poor conditions
at the homes59 and stave off government enforcement actions.60 We believe that
this is more than sufficient circumstantial evidence to establish Washington’s
agreement to participate in the conspiracy to defraud Medicare and Georgia
Medicaid.61
56
See, e.g., Gov’t’s Trial Ex. 487 at 2 (fax apprising Mr. Houser and Washington of
numerous issues including the state of the roof, lack of transportation services and lack of
laboratory services); Gov’t’s Trial Ex. 492 (fax to Washington complaining of broken
dishwasher and pest control problems); Gov’t’s Trial Ex. 499 (fax apprising Washington that
Medicare Part A patients would have to be discharged because the home did not have sufficient
wheelchairs to conduct physical therapy); Gov’t’s Trial Ex. 504 (fax apprising Washington of the
lack of nursing supplies).
57
See, e.g., R.223 at 28 (testimony concerning Washington’s use of the residents’ trust
account); R.225 at 68-69 (testimony concerning Washington’s control over the nursing home’s
operating account).
58
See R.242 at 844 (testimony concerning Mr. Houser and Washington handing out fifty
dollar bills to employees).
59
See R.260 at 64-69 (testimony concerning Washington bringing in food to satisfy the
Inspector General for Medicaid for the Department of Community Health that a home had
enough food to last through the weekend).
60
See R.244 at 81-82 (testimony concerning Washington’s delivery of, and instructions
for depositing, payroll tax checks to Officer Justice).
61
It is of no moment that the Government dismissed the conspiracy charge against
Washington. “[A]s a simple matter of logic, the government’s voluntary dismissal of a
conspiracy charge against a defendant’s only alleged coconspirator does not preclude proof
beyond a reasonable doubt, at defendant’s trial, that the defendant conspired with that same
alleged coconspirator.” United States v. Lopez, 944 F.2d 33, 40 (1st Cir. 1991). Indeed, even if
Washington had been tried and acquitted of the conspiracy charge, it would not have affected the
validity of Mr. Houser’s conviction. See United States v. Andrews, 850 F.2d 1557, 1561 (11th
(continued...)
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B. Failure to File Quarterly Payroll Taxes
Mr. Houser challenges the sufficiency of the evidence with respect to
Counts Two through Nine, which charged him with payroll tax fraud, in violation
of 26 U.S.C. § 7202. In evaluating Mr. Houser’s sufficiency claim, we inquire
whether “any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” United States v. Mintmire, 507 F.3d 1273,
1289 (11th Cir. 2007) (internal quotation marks omitted). We view the evidence
in the light most favorable to the Government and draw all reasonable inferences
in favor of supporting the verdict. Id.
Section 7202 of Title 26 of the United States Code provides:
Any person required under this title to collect, account for, and
pay over any tax imposed by this title who willfully fails to collect or
truthfully account for and pay over such tax shall, in addition to other
penalties provided by law, be guilty of a felony and, upon conviction
thereof, shall be fined not more than $10,000, or imprisoned not more
than 5 years, or both, together with the costs of prosecution.
Here, the Government alleged, and the district court found, that Mr. Houser
willfully failed to pay payroll taxes for his homes during various quarters of 2004
and 2005.
With respect to these counts, Mr. Houser admits that he failed to satisfy his
61
(...continued)
Cir. 1988).
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tax liability for the quarters at issue. He maintains, however, that “the
Government failed to establish the critical element of ‘willfulness.’”62 He
correctly observes that “the term ‘willfully’ as used in the Internal Revenue
statutes ‘generally connotes a voluntary, intentional violation of a known legal
duty.’”63 He contends that his “frequent visits to the Revenue Officer, earnest
representations of both problems and progress--made to a revenue official
accusing him of fraud--and large remedial payments” belie the district court’s
conclusion that his conduct in failing to turn over payroll taxes to the IRS was
willful.64 We cannot accept this argument.
Although Mr. Houser made frequent visits to Officer Justice, the evidence
reveals that those visits were an effort to stave off further investigation and
prosecution, as opposed to an effort to correct an innocent mistake. First, there is
no question that Mr. Houser understood both his responsibility to pay payroll
taxes and the consequences for failure to do so65: Mr. Houser only regained
control of his nursing homes after waiting out a ten-year tax lien placed on the
62
Appellant’s Br. 47.
63
Id. (quoting United States v. Pomponio, 429 U.S. 10, 12, 97 S. Ct. 22, 23, 50 L. Ed. 2d
12 (1976) (per curiam)).
64
Id. at 51.
65
Mr. Houser is a graduate of Harvard College and Harvard Law School and a member
of the Georgia Bar, although he did not actively practice law during the relevant period.
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homes for his prior failure to pay over payroll taxes. Second, in his dealings with
Officer Justice, he was less than forthcoming. During interviews with
Officer Justice, Mr. Houser both misrepresented his assets and gave contradictory
information concerning his financial position. He asked for and received payout
amounts and, within months of doing so, would purchase additional land for
investments as opposed to paying his taxes. Finally, Mr. Houser only began
making “increasingly large remedial payments,”66 after a search warrant was
executed at his office, revealing that the Government had initiated a criminal
investigation of his activities. We believe that this record, taken as a whole,
reveals that Mr. Houser apprehended his obligation to pay over payroll taxes, but
voluntarily and intentionally chose to spend available funds on the acquisition of
personal goods and investment properties as opposed to satisfying his legal
obligations. The record, therefore, amply supports the district court’s conviction.
C. Failure to File Income Tax Returns
With respect to Counts Ten and Eleven, Mr. Houser was convicted of
violating 26 U.S.C. § 7203, which provides in relevant part:
Any person required under this title to pay any estimated tax or
66
Id. at 50.
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tax, . . . who willfully fails to pay such estimated tax or tax, . . . at the
time or times required by law or regulations, shall, in addition to other
penalties provided by law, be guilty of a misdemeanor and, upon
conviction thereof, shall be fined not more than $25,000 ($100,000 in
the case of a corporation), or imprisoned not more than 1 year, or
both, together with the costs of prosecution.
Mr. Houser maintains that the Government did not prove the statutory
elements as to either Count Ten, concerning his failure to timely file his 2004
income tax return, or Count Eleven, concerning his failure to file his 2005 return.
Because Mr. Houser makes arguments unique to each of these counts, we
separately address each count.
1.
With respect to Count Ten, Mr. Houser maintains that the Government did
not establish that he had failed to file his return. Mr. Houser invites our attention
to the fact that he did file his 2004 personal return, albeit on April 8, 2008. He
notes that in United States v. Goetz, 746 F.2d 705, 707 (11th Cir. 1984), we
recited the following elements for a violation of § 7203: “[T]he taxpayer was
required to file an income tax return; the taxpayer failed to file such return; and the
taxpayer’s violation was willful.” Because, he continues, the Government did not
prove that he failed to file a return, his conviction on Count Ten cannot be
36
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sustained.
Section 7203 of Title 26 clearly requires the timely filing of personal
income tax returns; it criminalizes the willful failure to pay income taxes “at the
time or times required by law or regulations.” Id. (emphasis added). Section
6072(a) of Title 26 sets forth the general rule that “returns made on the basis of the
calendar year shall be filed on or before the 15th day of April following the close
of the calendar year.” Mr. Houser’s personal income tax return for calendar year
2004 was therefore due on April 15, 2005. He did not file his 2004 return,
however, until nearly three years later on April 8, 2008. As the Supreme Court has
observed, “[p]unctuality is important to the fiscal system,” and the sanctions set
forth in § 7203 are designed “to assure punctual as well as faithful performance of
these duties.” Spies v. United States, 317 U.S. 492, 496, 63 S. Ct. 364, 367, 87
L. Ed. 418 (1943). “The statute in question would be meaningless if a taxpayer
could file beyond the required date and not be subject to legal sanctions.” United
States v. Greenlee, 380 F. Supp. 652, 660-61 (E.D. Pa. 1974); see also United
States v. Ming, 466 F.2d 1000, 1005 (7th Cir. 1972) (holding that a “late filing and
late tax payment are immaterial on the issue of willfulness in a Section 7203
prosecution”). The language we employed in Goetz does not, indeed could not,
alter the statutory requirement of timeliness. Timeliness simply was not at issue in
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Goetz, and our shorthand recitation of the elements of the offense sufficed for the
purposes of addressing the arguments made in that case.
Mr. Houser also maintains that the Government failed to establish that his
failure to timely file a 2004 return was willful. As noted previously, “the standard
for the statutory willfulness requirement is the voluntary, intentional violation of a
known legal duty.” Cheek v. United States, 498 U.S. 192, 201, 111 S. Ct. 604,
610, 112 L. Ed. 2d 617 (1991) (internal quotation marks omitted). Here, nothing in
the record suggests that Mr. Houser’s failure to file his 2004 return by April 15,
2005, was involuntary or negligent.
2.
Turning to his arguments with respect to Count Eleven, Mr. Houser submits
that the Government failed to establish that his failure to file his 2005 tax return
was “willful.” He relies on Edwards v. United States, 375 F.2d 862 (9th Cir.
1967), as support for his position that the Government failed to establish this
element.
We perceive a number of problems with Mr. Houser’s argument. First, at
closing arguments, Mr. Houser’s counsel conceded that the Government had met
its burden of proof with respect to Count Eleven: “The ’05 was a different story,
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he didn’t file them, should have, and the Government proved it. Let’s not worry
about that. He should be found guilty of that.”67 Although, “in the event of errors
in the trial or jury instructions, a concession of guilt would not hinder the
defendant’s right to appeal,” Florida v. Nixon, 543 U.S. 175, 188, 125 S. Ct. 551,
561, 160 L. Ed. 2d 565 (2004), Mr. Houser is not raising trial errors or errors in
legal standards; he challenges only the sufficiency of the evidence. Mr. Houser’s
counsel invited the court to conclude that the Government had met its burden of
proof with respect to all of the elements of Count Eleven; having done so, he
cannot now claim error in the court’s determination that the Government did, in
fact, meet that burden. See United States v. Ross, 131 F.3d 970, 988 (11th Cir.
1997) (“It is a cardinal rule of appellate review that a party may not challenge as
error a ruling or other trial proceeding invited by that party.” (internal quotation
marks omitted)).
Even if we were to consider Mr. Houser’s argument, however, it has no
merit. The language in Edwards on which Mr. Houser relies concerns a different
section of the tax statutes than that which serves as the basis for Mr. Houser’s
conviction. Addressing Edwards’s challenge to the sufficiency of the
Government’s showing of willfulness with respect to his convictions for violations
67
R.340 at 37 (emphasis added).
39
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of 26 U.S.C. § 7201,68 the Ninth Circuit stated:
The trouble in this case is in its lack of proof of willfulness in
the sense of a specific intent to evade or defeat the tax or its payment.
Evasion and defeat, as we understand their use in this section,
contemplate an escape from tax and not merely a postponement of
disclosure or payment. . . . Tax evasion, however, focuses on the
accused’s intent to deprive the Government of its tax moneys, and
this requires more than just delay.
Edwards, 375 F.2d at 867 (emphasis added) (footnote omitted). Mr. Houser,
however, was not convicted of “attempt[ing] to evade or defeat any tax” under
§ 7201; he was convicted of failure to file a return under § 7203. The Ninth
Circuit’s interpretation of “[e]vasion and defeat,” therefore, has no application to
Mr. Houser.69
Conclusion
For the foregoing reasons, the judgment of the district court is affirmed.
AFFIRMED.
68
At the time Edwards v. United States, 375 F.2d 862 (9th Cir. 1967), was decided, 26
U.S.C. § 7201 (1964) provided:
Any person who willfully attempts in any manner to evade or defeat any
tax imposed by this title or the payment thereof shall, in addition to other penalties
provided by law, be guilty of a felony and, upon conviction thereof, shall be fined
not more than $10,000, or imprisoned not more than 5 years, or both, together
with the costs of prosecution.
69
On appeal, Mr. Houser also challenges the forfeiture order. His sole argument,
however, is that the forfeiture order must be vacated because it is premised on the health care
fraud charge contained in Count One. See Appellant’s Br. 54-55. Because we uphold
Mr. Houser’s conviction on Count One, we also uphold the district court’s forfeiture order.
40