United States v. Robert Crane ( 2019 )

Case: 17-20776 Document: 00515032428 Page: 1 Date Filed: 07/12/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-20776 FILED
July 12, 2019
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
ROBERT CRANE,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:12-CR-600-7
Before KING, ELROD, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
A jury convicted Robert Crane of conspiring to violate the Anti-Kickback
Statute. Crane appeals, arguing that the evidence at trial was insufficient to
support his conviction. For the following reasons, we AFFIRM.
I.
Robert Crane worked as a patient recruiter, van driver, and psychiatric
technician for Devotions Care Solutions (“Devotions”), a partial-hospitalization
program (“PHP”). PHPs provide intensive outpatient treatment for patients
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 17-20776
suffering an “acute exacerbation” of a chronic mental illness. Devotions was
one of several satellite PHPs that Riverside General Hospital (“Riverside”)
operated. Earnest Gibson, III (“Gibson III”), was the CEO, president, and
administrator of Riverside. His son, Earnest Gibson, IV (“Gibson IV”), operated
Devotions.
Riverside and its affiliated PHPs, including Devotions, paid “marketers”
for patient referrals. Sharonda Holmes worked for Gibson IV and Devotions as
a marketer. Gibson IV instructed Holmes to bring in patients who were eligible
for Medicare and had a mental-health diagnosis. Devotions did not provide
Holmes with any marketing materials. Instead, she found patients by
targeting personal-care homes. She would take personal-care homeowners to
lunch to encourage them to send their patients to Devotions, and she would
make residents gift bags to incentivize them to attend the program. Gibson IV
paid Holmes between $225 and $300 for each patient that was admitted to
Devotions and attended the program for at least 20 hours per week—i.e., the
patients for whom Devotions could bill Medicare.
Crane worked with Holmes as a recruiter for Devotions. In an interview
with FBI Special Agent Stephen Sandh, the lead agent on the Riverside case,
Crane admitted that he was paid for patient referrals. Crane told Sandh that
he was paid between $1,000 and $1,500 in cash every two weeks for these
referrals. Devotions did not pay Crane when the patients he referred were in
between admissions to the program; he was only paid when his patients
attended Devotions. When Crane left Devotions in 2012, he tried to take his
patients to two other PHPs, one of which also paid him for his patients. Crane
admitted to Sandh that he knew the payments were wrong but he needed the
money.
A grand jury indicted Gibson III, Gibson IV, Crane, and four others with
conspiracy to receive healthcare kickbacks, in violation of the Anti-Kickback
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Statute. 1 See 42 U.S.C. § 1320a-7b(b). The jury found Crane and his co-
defendants guilty. Crane appeals, arguing that the evidence at trial was
insufficient to support his conviction.
II.
We review de novo the district court’s denial of Crane’s motion for
judgment of acquittal. United States v. Perez-Ceballos, 907 F.3d 863, 866-67
(5th Cir. 2018). Even so, “review of the sufficiency of the evidence is highly
deferential to the verdict.” Id. at 867 (quoting United States v. Moreno-
Gonzalez, 662 F.3d 369, 372 (5th Cir. 2011)). We “accept all credibility choices
and reasonable inferences the jury made to support its verdict.” United States
v. Spalding, 894 F.3d 173, 181 (5th Cir. 2018). “A conviction may not rest on
‘mere suspicion, speculation, or conjecture, or on an overly attenuated piling of
inference on inference,’” but we will affirm “if ‘any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.’”
United States v. Gonzalez, 907 F.3d 869, 873 (5th Cir. 2018) (first quoting
United States v. Moreland, 665 F.3d 137, 149 (5th Cir. 2011); then quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
The Anti-Kickback Statute proscribes “knowingly and willfully
solicit[ing] or receiv[ing] any remuneration (including any kickback, bribe, or
rebate) . . . (A) in return for referring 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.” § 1320a-7b(b)(1)(A). It also prohibits the payment of any
remuneration “to any person” in exchange for such patient referrals. § 1320a-
7b(b)(2)(A).
1Crane’s co-defendants were also charged with specific violations of the Anti-Kickback
Statute, money laundering, and conspiracy to commit healthcare fraud, but Crane was not
implicated in these charges.
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To prove a conspiracy to violate the Anti-Kickback Statute, 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.
United States v. Gibson, 875 F.3d 179, 187-88 (5th Cir. 2017) (quoting United
States v. Njoku, 737 F.3d 55, 64 (5th Cir. 2013)); 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.’” Id. at 188 (quoting United States v. Miles, 360 F.3d
472, 479 (5th Cir. 2004)).
III.
We find the evidence presented at trial sufficient to support the jury’s
conclusion that Crane knowingly and willfully received kickbacks.
The most significant evidence against Crane came from Sandh’s
testimony. Sandh testified that Crane confessed to receiving payments for
patient referrals. Crane also told Sandh that he knew the payments were
wrong. To be sure, “an accused may not be convicted on his own uncorroborated
confession.” United States v. Deville, 278 F.3d 500, 506 (5th Cir. 2002) (quoting
Smith v. United States, 348 U.S. 147, 152 (1954)). But the Government
corroborated Crane’s confession by presenting “independent evidence which
would tend to establish the trustworthiness of [Crane’s] confession.” Id. For
example, the Government presented additional evidence that Crane received
kickbacks through Holmes’s testimony. In addition to her testimony that she
personally received payments for patient referrals, Holmes testified that she
knew Crane as a fellow recruiter at Devotions and that Crane told her he was
also paid to bring patients to Devotions. Holmes also testified that on occasion,
she would reach out to a personal-care home, but the homeowner would tell
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her that the home was already working with Crane. And consistent with
Crane’s statement to Sandh that he was paid in cash, Holmes testified that
Crane offered to let Holmes bring patients in under his name when Holmes
had trouble with her checks bouncing.
The Government also submitted into evidence Devotions’ “Marketer’s
[sic] List,” which further corroborates Crane’s confession that he was paid for
patient referrals. Kristen Behn, Devotions’ office manager, testified that the
document lists the patients each recruiter brought to Devotions and indicates
which patients were eligible for Medicare. Behn also testified that Gibson IV
used the list to pay the recruiters. If Devotions could not bill Medicare for a
patient, the recruiter would not be paid for that patient. Behn further testified
that Crane would “ask for a copy [of the marketers’ list] periodically so that he
could make sure that [Behn] had his list correct”; this was important to Crane
because he wanted to make sure “he would get paid correctly.”
The Government also introduced evidence corroborating Crane’s
confession that he knowingly violated the law. Okechukwu Ofoegbu, an
ambulance company administrator, testified that Crane referred a patient to
Ofoegbu for $800. He also testified that Crane insisted that he be paid in cash
and that the two met at a McDonald’s, rather than at Riverside, because it
would seem suspicious to discuss such matters at Riverside. See United States
v. Tooker, 957 F.2d 1209, 1217 (5th Cir. 1992) (finding evidence of efforts to
conceal transaction suggested defendant knew actions were wrong).
Crane concedes that Sandh’s testimony is “evidence in the record that
Mr. Crane received kickbacks.” But he argues that the testimony is insufficient
to support his conviction because Sandh “deliberately chose” not to record his
interviews with Crane. This is a challenge to the jury’s credibility
determination, a decision we cannot revisit. See Deville, 278 F.3d at 505-06
(reversing trial court’s entry of judgment of acquittal based on concern over
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“reliability of the memory of the law enforcement agents who testified”
regarding defendant’s confession because trial court erroneously weighed
agents’ credibility); see also Spalding, 894 F.3d at 181 (noting that appellate
court must “accept all credibility choices . . . the jury made to support its
verdict”). Moreover, the Government did not solely rely on Sandh’s testimony
to show that Crane received kickbacks. In addition to the above-described
evidence, Behn testified that Crane would sometimes cover prescription drug
copays for his patients, suggesting that he had an incentive to keep the
patients in the program. And four recruiters (including Holmes) testified that
they were also paid for patient referrals at Riverside-affiliated PHPs.
Crane argues that the Government’s evidence only shows that he was
paid for advertising Devotions’ services, rather than receiving kickbacks,
comparing his case to United States v. Miles, 360 F.3d 472 (5th Cir. 2004). But
his attempt to analogize his case to Miles is unavailing. In Miles, we reversed
the conviction of two defendants charged with paying healthcare kickbacks in
violation of § 1320a-7b(b)(2). Miles, 360 F.3d at 481. Defendants had paid
Premier Public Relations (“Premier”) to distribute informational materials,
such as literature, business cards, and occasional plates of cookies, to local
medical offices. Id. at 480. If a doctor from one of these offices referred a patient
to defendants’ company, defendants would pay Premier $300, but Premier had
“no role in selecting the particular home health care provider.” Id. at 479-80.
Because it was the doctors, not Premier, who chose where to send the patients,
supplied the patients’ billing information to defendants, and collected
payments, we held that the defendants did not violate the Anti-Kickback
Statute. Id. at 480-81.
We have discouraged attempts to construe Miles broadly, rejecting as
“untenable” a district court’s reading of Miles “to limit drastically the meaning
of ‘any person,’ such that liability cannot attach unless the ‘person’ who
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receives remuneration is a ‘relevant decisionmaker’ with formal authority to
effect the desired referral or recommendation.” United States v. Shoemaker,
746 F.3d 614, 627, 629 (5th Cir. 2014). Reasoning that § 1320a-7b(b)(2) broadly
criminalizes referrals paid to “any person,” we have explained that Miles
“stands for a narrow legal proposition: Where advertising facilitates an
independent decision to purchase a healthcare good or service, and where there
is no evidence that the advertiser ‘unduly influence[s]’ or ‘act[s] on behalf of’
the purchaser,” the fact that the healthcare provider compensates the
advertiser, on its own, is insufficient to support a conviction under the Anti-
Kickback Statute. Id. at 628 (alterations in original) (quoting Miles, 360 F.3d
at 480). Thus, Miles did not turn on the status of the payee as a “relevant
decisionmaker” but on the “payer’s intent to induce ‘referrals,’ which is illegal,
and the intent to compensate advertisers, which is permissible.” Id.
We recently reaffirmed this understanding of Miles in Crane’s co-
defendants’ appeal, rejecting the Gibsons’ arguments that the payments did
not go to a “‘relevant decision maker for sending patients’ to the PHPs” and
that the payments did not “influence[] the independent medical judgment of a
doctor concerning a patient’s care.” Gibson, 875 F.3d at 189. Again, we
explained that “the [Anti-Kickback Statute] has no ‘relevant decision maker’
or ‘medical judgment’ requirement.” Id. (quoting Shoemaker, 746 F.3d at 628-
29). It was enough that the Gibsons made payments to the recruiters because
“[t]he statute criminalizes payments made to ‘any person’ with the requisite
intent.” Id. (quoting § 1320a-7b(b)(2)(A)).
Although Crane received, rather than paid, referrals under § 1320a-
7b(b)(1), the statutory language is similarly broad, criminalizing any receipt of
remuneration for a patient referral. See § 1320a-7b(b)(1). Thus, it is irrelevant
that Crane could not force his patients to attend Devotions and that he did not
influence control over his patients’ doctors. And the evidence at trial supports
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the jury’s conclusion that the payments to Crane were intended for patient
referrals, not advertising services, and that Crane understood that the
payments were for patient referrals. In addition to Crane’s confession that he
received payments for referring patients to Devotions and he knew the
payments were “wrong,” Behn testified that it was the recruiters (including
Crane) who would provide the Medicare-billing information to Devotions, not
the patients or their doctors. Behn also testified that Crane would sometimes
pay his patients’ copays, evidencing Crane’s efforts to induce patients to stay
at Devotions. In addition, Crane moved his patients to another PHP after he
left Devotions, further showing his control over his patients. And Holmes
testified that, as a recruiter, she never received any promotional materials
with which she could market Devotions. This evidence is sufficient to support
Crane’s conviction. See United States v. Ricard, 922 F.3d 639, 643-44, 649 (5th
Cir. 2019) (affirming conviction for conspiracy to pay and receive kickbacks
where defendant was paid $250 to $300 each time she referred a patient and
defendant threatened to transfer her patients to another provider).
In sum, we conclude that a rational juror could conclude that Crane
conspired to violate the Anti-Kickback Statute. Sandh’s, Holmes’s, and Behn’s
testimony, as well as the marketers’ list, support the conclusion that Crane
was receiving kickbacks for patient referrals (rather than advertising services)
and he knew the payments were unlawful. Thus, we hold that the evidence is
sufficient to support Crane’s conviction.
IV.
For the foregoing reasons, we AFFIRM the judgment of the district court.
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