United States v. Michelle Turner ( 2014 )

Case: 12-20707 Document: 00512581995 Page: 1 Date Filed: 04/02/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 12-20707 April 2, 2014
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHELLE TURNER,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:09-CR-421
Before HIGGINBOTHAM, DAVIS, and HAYNES, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge: *
Michelle Turner appeals from her sentence of 24 months imprisonment
followed by three years of supervised release after being convicted by a jury on
all four counts of her Second Superseding Indictment. We AFFIRM.
I. Factual Background
Turner and co-defendants Clifford Ubani, Princewill Njoku, Rolondae
Mitchell-Slaughter, Mary Ellis, and Ana Quinteros were charged in a multi-
count Superseding Indictment on October 14, 2009, with conspiring to commit
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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health care fraud in violation of 18 U.S.C. § 1349, along with a criminal
forfeiture allegation. Pursuant to plea agreements, several of the other co-
defendants, including Ubani, pleaded guilty to criminal charges. Turner and
Ellis proceeded to a jury trial, at which the government called Ubani as a
witness. Turner made a motion for a judgment of acquittal during the trial,
but the district court reserved ruling on it. Following trial, the jury acquitted
Ellis but could not reach a unanimous verdict as to Turner. The district court
declared a mistrial. Turner renewed her motion for a judgment of acquittal,
and the district court denied it.
On March 15, 2011, a four-count Second Superseding Indictment
charged Turner with one count of conspiring to commit health care fraud, one
count of conspiring to receive health care kickbacks, and two substantive
counts of receiving health care kickbacks, along with a criminal forfeiture
allegation. The case was tried before a jury in a four-day trial which began on
February 21, 2012. At the close of the government’s case, Turner made a
motion for a judgment of acquittal, arguing that the evidence was insufficient
to convict her. The district court denied the motion.
Turner did not present a defense case. Without attempting to call
Ubani as a witness, she attempted to introduce Ubani’s sworn testimony from
the first trial under the residual exception to the hearsay rule under Fed. R.
Evid. 807, not the former testimony exception under Fed. R. Evid. 804(b)(1).
The district court excluded the testimony under the residual exception because
the testimony ordinarily would be subject to the prior testimony exception
under Rule 804(b)(1), but Turner had failed to show that Ubani was
unavailable to testify. Thus, Turner introduced no evidence in defense.
The jury found Turner guilty on all four counts, and the district court
sentenced her to 24 months of imprisonment, followed by three years of
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supervised release. She was also ordered to pay restitution of $295,542.43,
being held jointly and severally liable with her coconspirators.
II. Jurisdiction
The district court had jurisdiction over the criminal proceeding pursuant
to 18 U.S.C. § 3231, and we have jurisdiction over this timely appeal pursuant
to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
III. Sufficiency of the Evidence
We review “‘preserved challenges to the sufficiency of the evidence de
novo.’ We view both circumstantial and direct evidence ‘in the light most
favorable to the government, with all reasonable inferences and credibility
choices to be made in support of the jury’s verdict.’ In doing so, we ask
‘whether a rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.’” 1 A defendant’s failure to properly preserve
an insufficiency-of-the-evidence claim by specifying “the particular basis on
which acquittal is sought so that the Government and district court are
provided notice” results in review only “under the extremely narrow manifest-
miscarriage-of-justice standard.” 2
The government argues that Turner failed to preserve her sufficiency
claim as to at least Counts 3 and 4, relating to the substantive charges that
she received health care kickbacks. We need not reach that issue, however,
because even under de novo review, the government presented ample evidence
to support Turner’s conviction on all four counts. We address each count
1 United States v. Njoku, 737 F.3d 55, 62 (5th Cir. 2013) (quoting United States v. Grant, 683
F.3d 639, 642 (5th Cir. 2012)) (citations omitted; alterations in Njoku). See also United
States v. Vargas-Ocampo, 2014 U.S.App. LEXIS 5575 (5th Cir. Mar. 26, 2014) (en banc), and
United States v. Delgado, 672 F.3d 320 (5th Cir.) (en banc), cert. denied, 133 S. Ct. 525 (2012)
(discussing standard of review for sufficiency of the evidence).
2 United States v. McDowell, 498 F.3d 308, 313 (5th Cir. 2007).
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below after setting out the general scheme alleged by the government and
supported by evidence and testimony at trial.
A. Fraudulent Scheme
Turner worked on behalf of certain companies that provided durable
medical equipment (“DME”) (e.g., wheelchairs and diabetic supplies) and other
services to Medicare beneficiaries. These companies included Family
Healthcare Services DME and Family DME, Inc. (“Family Companies”), which
were owned at least in part by Clifford Ubani. To qualify as a Medicare
provider, DME suppliers must agree to follow all applicable laws, rules, and
regulations, including the federal Anti-Kickback Statute, 42 U.S.C. § 1320a-
7b(b), and meet other requirements, such as licensing and insurance.
Once approved as a provider, a DME supplier may be reimbursed 80% of
the allowed amount for qualified equipment it provides to Medicare
beneficiaries. The beneficiary is required to pay the remaining 20% of the
allowed amount, and the DME supplier may not represent to a potential
beneficiary that the DME is free. The only exception to the copayment
requirement is when the beneficiary can prove, based on detailed financial
information, that he or she cannot afford it.
To receive reimbursement the DME supplier is required to submit a
claim form to Medicare certifying that the supplied equipment is medically
necessary for the health of the patient, as reflected by a doctor’s prescription
and the DME supplier’s knowledge of the medical criteria for the beneficiary.
Medicare suppliers are prohibited from making unsolicited telephone contact
with potential beneficiaries, and individuals are prohibited from receiving
referral fees for directing patients to a DME supplier.
The government presented evidence that the Family Companies were a
small operation that supplied a large number of so-called arthritis kits to
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Medicare beneficiaries. Each kit consisted of a back brace, a double shoulder
brace, and sets of two braces for the knees, elbows, and wrists, plus two foot
gauntlets or ankle braces, a heating pad, and arthritic gloves. Multiple
doctors testified that no single individual would require all of this equipment,
i.e., it would not be medically necessary to supply an arthritis kit to any
individual. More than 90% of the Family Companies’ business involved these
medically unnecessary arthritis kits. The companies on average billed
Medicare $4,000 to $5,000 for each set and received a reimbursement of about
$3,000 for each one. From October 2007 to March 2009, the Family
Companies submitted more than $1.1 million in claims and received more than
$560,000.
In September 2008, Medicare inspected Family Healthcare Services
DME and revoked the company’s provider number because of the company’s
focus on medically unnecessary arthritis kits. Shortly thereafter, Family
DME, Inc. obtained a Medicare provider number and began operating
essentially the same scheme out of the same office building. In January 2009
Medicare inspected the Family DME, Inc. offices and revoked its provider
number. The FBI began an investigation, eventually leading to the
indictment of Turner and other defendants.
B. Sufficiency as to Count I—Conspiracy to Commit Health Care
Fraud
Count I of the Second Superseding Indictment charged that Turner
entered into a conspiracy, in violation of 18 U.S.C. § 1349, to commit health
care fraud, in violation of 18 U.S.C. § 1347, by defrauding a health care benefit
program affecting commerce, specifically Medicare.
A conspiracy to commit health care fraud under 18
U.S.C. § 1347 requires that the fraud be the object of
the conspiracy. 18 U.S.C. § 1349. The conspirators
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must “knowingly and willfully” execute a scheme “to
defraud any healthcare benefit program” or “to obtain,
[through false pretenses] any of the money or property
owned by . . . any health care benefit program.” 18
U.S.C. § 1347. Conviction requires proof “that (1) two
or more persons made an agreement to commit health
care fraud; (2) that the defendant knew the unlawful
purpose of the agreement; and (3) that the defendant
joined in the agreement willfully, that is, with the
intent to further the unlawful purpose.” [United
States v. Grant, 683 F.3d 639, 643 (5th Cir. 2012).]
Circumstantial evidence can prove knowledge and
participation. Id. 3
“The agreement between conspirators may be silent and need not be formal or
spoken. An agreement may be inferred from concert of action, voluntary
participation may be inferred from a collection of circumstances, and
knowledge may be inferred from surrounding circumstances.” 4 Section 1349
does not require the government to prove an overt act. 5
The government presented evidence that Turner had worked for the
Family Companies as a recruiter of Medicare beneficiaries for the arthritis kits
and that she received $300 as a referral fee for each arthritis kit supplied. In
addition to the Family Companies, she had also worked for other DME and
health care providers, and she had her own businesses, including SS&B Total
Home Health. She used her daughter and other teenagers, hired through
SS&B, to solicit Medicare beneficiaries by telephone, then used information
gained during those calls to bill for the arthritis kits.
3 Njoku, 737 F.3d at 63. Njoku involved a related company but not the same fraudulent
scheme as this case.
4United States v. Grant, 683 F.3d 639, 643 (5th Cir. 2012) (internal citations and quotation
marks omitted).
5 United States v. Jones, 733 F.3d 574, 584 (5th Cir. 2013).
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The evidence showed that Turner supplied the lists of potential
beneficiaries for her teenage telemarketers to contact and coached them on
how to market the kits. Specifically, she told them to inform potential
beneficiaries that they were entitled to the kits for free, at no cost to them, and
that the braces came as a kit but that they did not have to use all of them.
The Family Companies rarely collected the required 20% copayment from
beneficiaries, and the binder at the office full of purported hardship waivers
did not contain the detailed financial affidavits required to document the
beneficiaries’ inability to pay. Moreover, although Medicare required any
supplied DME to be fitted to a beneficiary, there was no evidence that patients
were ever actually fitted. Instead, Turner’s employees would fill out the forms
based on a beneficiary’s stated height and weight, and the kits were simply
shipped to the beneficiary, often with no indication that the patient had even
accepted delivery.
Before the Family Companies could bill Medicare for an arthritis kit, it
needed a doctor’s prescription. The government presented evidence that
Turner would send a pre-filled prescription form to a beneficiary’s primary
doctor using the information her employees obtained through the telephone
calls. This form required only the doctor’s signature and included a cover
letter indicating that the beneficiary had been evaluated by the doctor and that
the patient had requested the kit and/or other medical equipment.
The government argued that Turner was depending on the doctors’
inattentiveness to obtain prescriptions. It presented the testimony of doctors
who had signed prescription forms but later discovered that they had not
evaluated that patient, the patient had not requested the kit, the kit was
medically unnecessary, and they would not have signed the form had they had
paid attention to it. If a primary doctor refused to sign the prescription form,
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Turner would refer it to one of the three house doctors associated with the
Family Companies, who provided prescriptions for more than 70% of the
claims. Thus, the Family Companies were able to submit many claims that
were not prescribed by a primary doctor. Indeed, some beneficiaries testified
at trial that they received kits that they did not want and never used.
During the FBI’s investigation beginning in 2009, Turner voluntarily
supplied documents to the FBI, including a file of “Approved DME Orders
Family Healthcare,” with documents listing her as the “Account Executive”
responsible for securing prescriptions. These showed 81 beneficiaries who
were supplied the full arthritis kit. Her files also showed more than 100
orders which had not yet been approved, some of which included notes from
doctors specifically denying authorization. At least one doctor stated that he
was reporting Turner’s company for a false request.
Turner argues that the government failed to present any evidence that
she entered into an agreement to commit health care fraud. In part, she
argues that every claim submitted was signed by a doctor and therefore were
valid orders under Medicare. She is wrong. The government presented
overwhelming evidence on which a jury could conclude that she at least tacitly
conspired to commit health care fraud. Given Turner’s role in coaching her
telemarketers, her pre-filled prescription form scheme, the extensive use of
house doctors, and the numerous denials of authorization by beneficiaries’
primary doctors, the jury could easily infer that Turner made an agreement to
defraud Medicare, that she “knew the unlawful purpose of the agreement,” and
that she entered into the agreement willfully. 6 Thus, the evidence was
sufficient to convict Turner of Count I.
6 Njoku, 737 F.3d at 63.
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C. Sufficiency as to Count II—Conspiracy to Receive Health Care
Kickbacks
Count II of the Second Superseding Indictment charged that Turner
entered into a conspiracy, in violation of 18 U.S.C. § 371, to receive kickbacks,
in violation of the Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b)(1).
A conviction of conspiracy under Section 371 requires
the Government to prove: (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. The government must prove the same
degree of criminal intent as is necessary for proof of
the underlying substantive offense. Thus, in addition
to proving an intent to further the unlawful objective,
there must also be proof that the defendant acted
willfully, that is, with the specific intent to do
something the law forbids. 7
The underlying substantive kickback offense under Section 1320a-7b(b)(1) is
that Turner or her co-conspirators
knowingly and willfully solicit[ed] or receive[ed] any
remuneration (including any kickback, bribe, or
rebate) directly or indirectly, overtly or covertly, in
cash or in kind--
(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, or
(B) in return for purchasing, leasing, ordering,
or arranging for or recommending purchasing,
7 Njoku, 737 F.3d at 63-64 (internal citations and quotation marks omitted).
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leasing, or ordering any good, facility, service, or
item for which payment may be made in whole
or in part under a Federal health care
program . . . . 8
The statute also contains a safe harbor provision for bona fide employees, 9
which is addressed separately below.
Specifically, the Second Superseding Indictment charged that Turner
conspired to receive commissions for referring Medicare beneficiaries to the
Family Companies. The government presented documentary evidence that
the Family Companies paid commissions for Medicare referrals under a
document labeled “Independent Contractor’s 10 Percent Commission,” which
established a $300 payment for referring a beneficiary who received an
arthritis kit. The government also introduced email exchanges between
Turner and Ubani which discussed her referrals for arthritis kits and the
associated commissions. The government also introduced two checks written
to Turner with the memo lines noting the provision of arthritis kits. These
checks form the evidentiary basis of Counts III and IV, concerning the
substantive charge that Turner received health care kickbacks.
The government presented evidence that Turner was sophisticated with
respect to Medicare reimbursements and acted knowingly and willfully to
violate the Anti-Kickback statute. Indeed, the government showed that she
initially lied to an FBI agent, claiming that she was paid $30 to $50 per hour
instead of acknowledging that she was paid referral commissions. The
evidence amply demonstrated (1) that there was an agreement between Turner
and other coconspirators to violate the Anti-Kickback Statute; (2) that Turner
8 42 U.S.C. § 1320a-7b(1).
9 42 U.S.C. § 1320a-7b(3)(B).
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knew of the unlawful objective and voluntarily joined the conspiracy; and (3)
that there was an overt act, namely Turner’s knowing and willful receipt of
kickbacks in the form of Medicare referral commissions, as well as the Family
Companies’ payment of same. Thus, there was sufficient evidence to support
the jury’s verdict on Count II.
D. Sufficiency as to Counts III and IV—Receipt of Health Care
Kickbacks
Turner also challenges her conviction on the substantive charges that
she violated the Anti-Kickback Statute, 42 U.S.C. § 1320a7-b(b)(1). The
elements are already set out above. Again, the government presented
sufficient evidence on which the jury might convict. Count III of the Second
Superseding Indictment charged that Turner received a check dated November
10, 2008 in the amount of $2,100 with the notation “three skill + Artho kits 3”
on the memo line, and Count IV charged that Turner received a check dated
March 5, 2009 in the amount of $1,200 with the notation “Arto [sic] Kits
supplies” on the memo line. The government presented evidence that these
amounts and the memo lines conformed to the Family Companies’ internal
document titled “Independent Contractor’s 10 Percent Commission,” which
established the kickback schedule. This evidence, coupled with the other
evidence the government presented at trial, fully supports a finding that
Turner “knowingly and willfully solicit[ed] or receive[ed] any remuneration
(including any kickback, bribe, or rebate) directly or indirectly, overtly or
covertly, in cash or in kind,” in return for Medicare referrals. 10
IV. Safe Harbor Instruction
Turner argues on appeal that, with respect to Counts III and IV, the
10 42 U.S.C. § 1320a-7b(1).
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district court erred in failing to instruct the jury about the safe harbor
provision in the Anti-Kickback Statute, which exempts from liability “any
amount paid by an employer to an employee (who has a bona fide employment
relationship with such employer) for employment in the provision of covered
items or services.” 11 The safe harbor provision is an affirmative defense which
the defendant must prove, and a defendant who fails to present evidence
supporting the defense is not entitled to the jury charge. 12 “A district court’s
jury instructions are reviewed for abuse of discretion, considering whether the
instruction, taken as a whole, is a correct statement of the law and whether it
clearly instructs jurors as to the principles of law applicable to the factual
issues confronting them. Any error is subject to harmless error review.” 13
Here, Turner did not present a defense case, and on appeal, she makes a
conclusory assertion that the evidence presented by the government proves
that she was merely an employee of the Family Companies. Turner does not
point to any relevant evidence concerning her employee status. Though she
points to the fact that she submitted referral forms, approved by doctors, to
other workers associated with the Family Companies, that is irrelevant to the
determination of her status as an employee or independent contractor.
Because Turner failed to present any evidence in support of the safe harbor
affirmative defense, the district court did not err in failing to include the
11 42 U.S.C. § 1320a-7b(3)(B).
12 See, e.g., United States v. Robinson, 505 F. App’x 385, 387-88 (5th Cir. 2013) (The
defendants were not entitled to safe harbor defense where, among other things, they were
paid a fee or commission for Medicare beneficiary referrals; they did not receive regular
paychecks, only referral payments; they received no training or direction from the alleged
employer; they obtained their own leads and sources for referrals; and they were not required
to keep regular office hours.).
13United States v. Aldawsari, 740 F.3d 1015, 1019 (5th Cir. 2014) (internal quotation marks
and footnotes omitted).
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instruction.
V. Clifford Ubani’s Testimony
Turner argues that the district court erred in refusing to admit portions
of Ubani’s testimony from when he appeared as a government witness in
Turner’s prior mistrial. Ubani’s prior testimony was unquestionably hearsay
because neither Turner nor the government called Ubani as a witness in the
second trial, and Turner sought to introduce his testimony for the truth of his
statements. 14 Turner expressly sought to introduce the testimony under the
residual exception to the hearsay rule, Fed. R. Evid. 807, not the former
testimony exception, Fed. R. Evid. 804(b)(1).
Turner has a high bar to clear in seeking to reverse the district court’s
decision. We review evidentiary decisions for abuse of discretion, subject to
harmless error analysis if the district court abused its discretion. 15 We have
explained that Rule 807’s residual “exception is to be ‘used only rarely, in truly
exceptional cases.’” 16
Given this high hurdle, in the decision as to whether
to apply the residual exception “district courts are
given ‘considerable discretion,’ and a court of appeals
will not disturb the district court’s application of the
exception ‘absent a definite and firm conviction that
the court made a clear error of judgment in the
conclusion it reached based upon a weighing of the
relevant factors.’” 17
14 Fed. R. Evid. 801(c).
15 United States v. Ricardo, 472 F.3d 277, 287 (5th Cir. 2006).
16United States v. Phillips, 219 F.3d 404, 419 n.23 (5th Cir. 2000) (quoting United States v.
Thevis, 665 F.2d 616, 629 (5th Cir. 1982)).
17Id. (quoting United States v. Loalza–Vasquez, 735 F.2d 153, 157 (5th Cir. 1984) (quoting
Page v. Barko Hydraulics, 673 F.2d 134, 140 (5th Cir. 1982)).
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Fed. R. Evid. 807 provides:
(a) In General. Under the following circumstances, a
hearsay statement is not excluded by the rule against
hearsay even if the statement is not specifically
covered by a hearsay exception in Rule 803 or 804:
(1) the statement has equivalent circumstantial
guarantees of trustworthiness;
(2) it is offered as evidence of a material fact;
(3) it is more probative on the point for which it
is offered than any other evidence that the
proponent can obtain through reasonable
efforts; and
(4) admitting it will best serve the purposes of
these rules and the interests of justice.
(b) Notice. The statement is admissible only if, before
the trial or hearing, the proponent gives an adverse
party reasonable notice of the intent to offer the
statement and its particulars, including the
declarant’s name and address, so that the party has a
fair opportunity to meet it. 18
Here, although the fact that Ubani’s prior testimony was sworn means
that it is likely trustworthy under Rule 807(a)(1), and Turner is certainly
offering Ubani’s testimony as evidence of a material fact under Rule 807(a)(2).
The prior testimony does not satisfy Rule 807(a)(3), however, because offering
portions of Ubani’s prior testimony from Turner’s mistrial on more limited
charges is not more probative than Ubani’s live testimony would have been in
this trial on four counts. 19 Although Rule 807 does not contain an explicit
18 Fed. R. Evid. 807.
19See, e.g., United States v. Mathis, 559 F.2d 294, 298 (5th Cir. 1977) (“The live testimony of
the available witness, whose demeanor the jury would have been able to observe and whose
14
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requirement that the declarant be unavailable, it still requires the proponent
of the hearsay to undertake reasonable efforts to get better evidence, and Rule
807(a) only applies if another exception does not.
Here, Turner has not pointed to any reasonable efforts to obtain Ubani’s
live testimony. Indeed, Turner’s counsel argued that because she was relying
on the residual exception only, there was no need to even determine whether
Ubani was available. That contradicts both the letter and spirit of the
residual exception, which is intended to be a last resort.
Moreover, seeking to introduce Ubani’s testimony from Turner’s former
trial would otherwise fall under the “former testimony” exception to the
hearsay rule under Fed. R. Evid. 804(b)(1), which applies only if the declarant
is unavailable. Turner cannot rely on Rule 807’s residual exception to do an
end run around Rule 804(b)(1)’s requirement that the witness be unavailable, 20
particularly where she has made no attempt to show that Ubani is unavailable.
We cannot say the district court abused its discretion in refusing to admit
Ubani’s testimony under these facts.
testimony would have been subject to cross-examination, would have been of more probative
value in establishing the truth than the bare statements transcribed by the ATF agents.”).
20Applying the virtually identical former version of the residual exception, then Fed. R. Evid.
803(24), the panel in Mathis, supra, reasoned:
While it has been contended that availability is an immaterial
factor in the application of Rule 803(24), this argument is wide
of the mark. Although the introductory clause of Rule 803
appears to dispense with availability, this condition re-enters
the analysis of whether or not to admit statements into evidence
under the last subsection of Rule 803 because of the requirement
that the proponent use reasonable efforts to procure the most
probative evidence on the points sought to be proved.
Mathis, 559 F.2d at 298.
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VI. Rule 29 Motion for Judgment of Acquittal
Finally, Turner argues that the district court in her earlier mistrial erred
in denying her motion for a judgment of acquittal based on the sufficiency of
the evidence. She is foreclosed from pursuing this argument by United States
v. Achobe, 560 F.3d 259, 268 (5th Cir. 2008), in which we held that “where a
first trial has ended in a mistrial due to a hung jury and a second trial leads to
a conviction, the sufficiency of the evidence presented at the first trial cannot
then be challenged on appeal.” Thus, the district court’s denial of her motion
stands.
VII. Conclusion
For the reasons set forth above, we AFFIRM.
16