United States v. Howard Grant , 683 F.3d 639 ( 2012 )

Case: 11-20013 Document: 00511881596 Page: 1 Date Filed: 06/08/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 8, 2012
No. 11-20013 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
HOWARD GRANT, OBISIKE NWANKWO, CLINTON LEE,
Defendants-Appellants
Appeals from the United States District Court
for the Southern District of Texas
Before GARZA, DENNIS, and HIGGINSON, Circuit Judges.
STEPHEN HIGGINSON, Circuit Judge:
After a jury trial, defendants Dr. Howard Grant (“Grant”), Obisike
Nwankwo (“Nwankwo”), and Clinton Lee (“Lee”) were convicted of conspiracy to
commit health care fraud in violation of 18 U.S.C. § 1349. Grant also was
convicted of two counts of aiding and abetting health care fraud in violation of
18 U.S.C. §§ 1347 and 2.
Grant, Nwankwo, and Lee each appeal their convictions, claiming
insufficiency of the evidence. Grant also raises the following three issues on
appeal: (1) whether the district court plainly erred by admitting co-conspirator
Doris Vinitski’s statements; (2) whether the government’s cross-examination of
Dr. Grant constituted reversible prosecutorial error; and (3) whether the district
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court abused its discretion by not giving a missing witness instruction to the
jury.
FACTS
Between 2003 and 2009, Onward Medical Supply (“Onward”), a Houston
company run by Doris Vinitski (“Vinitski”), fraudulently billed Medicare for
durable medical equipment that patients did not need. After a series of
inspections over several years by Mark Porter, a Medicare auditor who found
multiple indications of fraud at Onward, Onward voluntarily surrendered its
status as an eligible Medicare supplier in August 2009. Between March 2003
and July 2009, Onward had submitted 989 claims to Medicare totaling
approximately $4,000,000, of which Medicare paid Onward approximately
$2,000,000.
In order to submit a claim for reimbursement from Medicare for durable
medical equipment, Onward needed a certificate of medical necessity and a
prescription, signed by a physician. In 2008, John Nasky Okonkwo (“Okonkwo”),
a co-defendant in this case, provided Vinitski/Onward with forged prescriptions
for durable medical equipment. Okonkwo purchased the prescriptions, which
were already signed with co-defendant Grant’s name, from Dr. Joseph Edem
(“Edem”), who owned Attentive Care Clinic in Houston. Okonkwo paid Edem
$500 per motorized wheelchair prescription signed by a physician and $300 per
signed prescription for orthotics. A first batch of ten to twelve prescriptions from
Okonkwo arrived at Onward in late September or early October 2008.
Javonica Moten (“Moten”) worked for Onward as an administrative
assistant from August 2008 through January 2009 and was co-defendant Lee’s
live-in girlfriend during that time. Moten found out about the job opening at
Onward through Lee because Lee, an electrician, knew Vinitski from electrical
work he performed at Onward. When the first batch of prescriptions from
Okonkwo arrived at Onward, Moten, who had seen Grant’s signature before, told
2
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Vinitski that the signature on the prescriptions did not look like Grant’s actual
signature. Moten spoke with Lee, who was friends with Grant, about the
apparently forged prescriptions, and Lee told her Grant would come to see the
prescriptions the following day. Grant met with Vinitski and confirmed the
signatures on this batch of prescriptions were not his. Grant and Vinitski spoke
after this first meeting and had dinner the following week, at which point Grant
asked Vinitski for money “to redo the prescription order and sign it with his
signature.” A second set of prescriptions with Grant’s forged signature arrived
at Onward from Okonkwo about a month after the first set. Per Vinitski’s
request, Moten created lists of patients in both the first and second set of
prescriptions for Grant.
Vinitski told Moten that co-defendant Nwankwo would deliver the
equipment for the patients on the prescriptions Onward received from Okonkwo.
Nwankwo made at least nine deliveries of equipment billed to Medicare using
the prescriptions from Okonkwo. Nwankwo repeatedly delivered or attempted
to deliver durable medical equipment to patients who were able to walk
unassisted or who refused to take the equipment because they did not need it.
Moten informed Lee about the illegal practices at Onward, including that
Onward used the forged prescriptions and that the beneficiaries Onward
delivered equipment to were receiving equipment they did not need. However,
even after Lee learned of the illegal activity at Onward, Moten testified that Lee
still wanted to deliver durable medical equipment for Onward. To this end, Lee
enrolled in a training class, paid for by Vinitski, in order to make deliveries for
Vinitski. When Vinitski was looking for a way to pay Grant for redoing the
forged prescriptions because she could not pay Grant directly, Lee suggested to
Moten that he could serve as a third party through whom Vinitski could route
her payments to Grant.
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DISCUSSION
A. Sufficiency of the evidence
This court reviews preserved challenges to the sufficiency of the evidence
de novo. United States v. McElwee, 646 F.3d 328, 340 (5th Cir. 2011). The court
will “view all evidence, whether circumstantial or direct, 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,” to determine whether “a
rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.” United States v. Ford, 558 F.3d 371, 375 (5th Cir. 2009).
The jury “retains the sole authority to weigh any conflicting evidence and to
evaluate the credibility of the witnesses.” United States v. Loe, 262 F.3d 427, 432
(5th Cir. 2001). “The evidence need not exclude every reasonable hypothesis of
innocence or be wholly inconsistent with every conclusion except that of guilt,”
in order to be sufficient. United States v. Moreno, 185 F.3d 465, 471 (5th Cir.
1999). However, the government “must do more than pile inference upon
inference upon which to base a conspiracy charge.” United States v. Mackay, 33
F.3d 489, 493 (5th Cir. 1994) (internal quotation marks omitted).
All three defendants appeal their convictions for conspiracy to commit
health care fraud in violation of 18 U.S.C. § 1349.1 All three defendants filed
Rule 29 motions for judgment of acquittal, which the district court denied on
August 13, 2010. The district court’s denial is detailed in a lengthy written
order, specific to each defendant.
1
Grant does not make any separate challenge to the two substantive health care fraud
counts he was convicted of. Notably, the district court gave a Pinkerton instruction, telling the
jury that if it found Grant guilty of conspiracy to commit health care fraud (Count 1), it could
also hold him responsible for the two substantive health care fraud offenses (Counts 2 and 3)
committed by other conspirators during the time that Grant was a member of the conspiracy.
See Pinkerton v. United States, 328 U.S. 640 (1946).
4
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To prove a conspiracy to commit health care fraud, the government must
prove beyond a reasonable doubt 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. 18
U.S.C. §§ 1347, 1349; United States v. Delgado, 668 F.3d 219, 226 (5th Cir.
2012). The agreement between conspirators may be silent and need not be
formal or spoken. United States v. Williams-Hendricks, 805 F.2d 496, 502 (5th
Cir. 1994). “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.” United States v. Stephen, 571
F.3d 401, 404 (5th Cir. 2009) (internal citations and quotation marks omitted).
1. Dr. Howard Grant2
Grant argues that the evidence was insufficient to prove that he “joined
the conspiracy or executed a scheme to defraud either on his own or in concert
with others.” Grant argues that the government’s “primary theory of
prosecution” is that Grant joined the conspiracy by choosing not to report the
illegal activity at Onward after he learned about it. The jury heard enough
credible evidence, however, to determine that Grant’s role was much more than
a failure to report fraud; instead, Grant actively participated in the fraud.
Grant took the stand in his own defense. He acknowledged that the
prescriptions would have been fraudulent regardless of whether they had his
forged signature and regardless of whether he actually signed them because the
prescriptions were for equipment that was not medically necessary for the
beneficiaries. Testimony from Moten and Okonkwo showed that Grant himself
2
Grant was sentenced to 41 months imprisonment followed by three years of
supervised release and ordered to pay $121,742.62 in restitution to be paid jointly and
severally with other defendants.
5
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demanded payment for redoing prescriptions he knew to be fraudulent.3 For
example, Vinitski said Grant was “asking for money to . . . redo the prescription
order and sign it with his signature” for the forged prescriptions sent by
Okonkwo and that “Dr. Grant wanted money to make those patients’
prescriptions correct.” Vinitski also said that: (1) Grant knew what was going
on and had demanded $10,000 to redo the prescriptions; (2) she was going to pay
Grant because “that’s what Dr. Grant is demanding”; and (3) “she would need
Dr. Grant to redo the paperwork when she had to pay him the money.”
Okonkwo testified that Edem, the doctor from whom he obtained the
prescriptions with Grant’s forged signature, told him that he paid the doctors at
Grant’s medical facility $100 per durable medical equipment prescription. The
jury could reasonably infer that Grant expected to be paid for the prescriptions
he admitted were fraudulent based on testimony that Grant told Vinitski that
he had been “cheated . . . out of money for those prescriptions” by Edem.
Furthermore, Grant continued to speak on the phone repeatedly with
Vinitski and Edem, even after he found out that Vinitski had bought
prescriptions from Edem with Grant’s forged signature.4 Grant testified that he
had continued to talk to Vinitski and Edem in an effort to gather information for
the qui tam lawsuit he was considering filing regarding the fraud. However, as
the district court held, the jury could reasonably have found that Grant’s
explanation for the phone calls was not credible considering that he provided
3
Grant argues that multiple witnesses testified that Vinitski is not credible. However,
“[i]n assessing the sufficiency of the evidence, we do not evaluate the weight of the evidence
or the credibility of witnesses, but view the evidence in the light most favorable to the verdict.”
United States v. Doggins, 633 F.3d 379, 383–84 (5th Cir. 2011) (internal quotations omitted).
Furthermore, as the district court noted, the jury’s credibility determinations were reasonable
because Grant gave the jury ample reason to doubt his own credibility.
4
Grant spent 484 minutes (141 calls) on the phone with Vinitski and 73 minutes on the
phone with Edem between November 2008 and January 2009.
6
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false information about his relationship with Edem to the attorneys he contacted
about filing the qui tam lawsuit.5 See Loe, 262 F.3d at 432.
Grant also argues that because there was no proof that he received
payment from the conspiracy, the evidence was insufficient to convict him of
health care fraud. However, as the district court observed, neither the
conspiracy nor the substantive counts with which Grant was charged required
the government to prove that Grant benefitted financially from his participation
in the health care fraud scheme. See 18 U.S.C. §§ 1349, 1347 and 2.
2. Obisike Nwankwo6
Nwankwo argues that there is insufficient evidence to tie him to the fraud
at Onward, stating that the evidence shows that Nwankwo only found out about
the fraud at Onward after his arrest and therefore could not have known about
the unlawful purpose of his deliveries.7 However, there was credible evidence
presented at trial that Nwankwo knew that the equipment that he was paid to
deliver was not medically necessary for the beneficiaries but delivered it
anyway.8
5
Additionally, as the district court observed, “[i]t is undisputed that Grant never filed
a qui tam lawsuit. It is also undisputed that Grant never reported the Onward fraud to any
person or agency connected with the Medicare program or to any law enforcement agency.”
The district court also noted, “[o]n cross-examination . . . Grant admitted that he did not want
to file a qui tam lawsuit unless he could profit from it and unless he could file it without any
expense to himself.” Grant testified, “I wanted to make money” and, when asked, “Is there any
other reason that you wanted to file this lawsuit?” Grant answered, “No.”
6
Nwankwo was sentenced to 21 months imprisonment followed by three years of
supervised release and ordered to pay $29,057.70 in restitution to be paid jointly and severally
with other defendants.
7
Nwankwo also argues that Okonkwo, a co-defendant in the case, testified that
Nwankwo “never knew nor had knowledge of the illegal activities.” However, Okonkwo
repeatedly also testified that he did not know whether Nwankwo knew of the conspiracy or
knew that he was delivering unnecessary medical equipment.
8
Nwankwo argues that, “[a]fter hearing the government’s entire case over a period of
six days and making a conscientious effort to examine the record in the light most favorable
7
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The evidence shows that Nwankwo made at least nine deliveries of
equipment ordered using the fraudulent prescriptions with Grant’s forged
signature. Moreover, Moten testified Vinitski liked Nwankwo to deliver durable
medical equipment ordered through the forged prescriptions because Nwankwo
knew “how to make the people take the equipment even if they don’t want it”
and knew “all the right things to say to make them keep it.” Testimony at trial
showed that Nwankwo made repeated attempts to deliver equipment that were
unsuccessful because the patients refused to accept the delivery or did not live
at the address provided.
Evidence presented at trial showed that Nwankwo knew that at least some
of the equipment he was trying to get beneficiaries to accept was medically
unnecessary. Nwankwo made two deliveries of motorized wheelchairs to Samuel
Anderson and Lillie Brown, both of whom were able to walk and insisted they
did not need the wheelchairs.9 Lillie Brown even told Nwankwo that she “wasn’t
handicapped and that [her] doctor didn’t prescribe [her] one” when Nwankwo
unsuccessfully attempted to deliver a motorized wheelchair to her. In November
2008, Nwankwo also delivered a wheelchair to Stanley Butler, who could walk
without assistance.
to the government, the court still had its doubts.” However, the citation Nwankwo uses to
support this contention actually refers to Judge Atlas’s initial doubts about the case against
Grant, not Nwankwo.
9
Samuel Anderson testified that when he told Nwankwo he did not need the
wheelchair, Nwankwo responded by trying to convince him to take it anyway and saying,
“[you] can take it and put it in the house and if [you] ever needed it, it would be available.”
When Anderson replied that he still did not want the wheelchair, Nwankwo told him “maybe
time you get ready for to use it, you might not be able to be qualified when you’ve been already
approved and you can just take it at this time.” When Lillie Brown told Nwankwo that she
did not need a wheelchair,” Nwankwo told her “[y]ou need one. Maybe you would like to order
it.” When Nwankwo would not leave her front step after she refused to let him in, Brown told
him she would call the police.
8
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Finally, there was evidence presented that Nwankwo signed delivery slips
that were fraudulently back-dated to appear to conform to Medicare regulations
that required durable medical equipment be delivered to the beneficiary before
the provider billed Medicare. For example, Moten testified that Nwankwo
signed a delivery ticket dated September 30, 2008 when he made the delivery in
late November 2008. Nwankwo signed two forms relating to this November
2008 delivery, both of which included the incorrect date, “9-10-08,” displayed
prominently (once directly across from his signature and once directly above it).
The jury reasonably could conclude that the fraudulent date was unmistakable
to Nwankwo when he signed the forms at the subsequent November 23-25
delivery.
Nwankwo cites United States v. Mackay, 33 F.3d 489, 494 (5th Cir. 1994),
to support his contention that the evidence is not sufficient to prove that he
agreed to deliver fraudulent equipment. See id. at 494 (“evidence that the
companion agreed to transport the backhoe does not prove that he agreed with
Mackay to transport a stolen backhoe”)). However, Mackay is factually
distinguishable because in that case, there was no evidence that the companion
(who was charged with conspiracy to transport stolen goods interstate) “knew
the backhoe was stolen, let alone that he agreed to transport a stolen backhoe.”
Id. at 494. Here, Nwankwo agreed to and was paid $2,910 from December 2008
to May 2009 for making equipment deliveries for Onward and knew that
beneficiaries, such as Samuel Anderson and Lillie Brown, did not need or want
the equipment he was delivering and that their doctors had not prescribed it.
Therefore, unlike in Mackay, where there was no evidence the companion knew
anything about the nature of article he was transporting, the jury in this case
could reasonably have inferred that Nwankwo agreed to deliver fraudulently
prescribed and ordered durable medical equipment because he knew the
9
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beneficiaries did not need or want the equipment and had not been prescribed
the equipment by their doctors.
Nwankwo also intimates that the objective of the health care fraud
conspiracy had been achieved before Nwankwo began making deliveries in
December 2008. Nwankwo failed, however, to support this contention by
explaining what “objective” of the conspiracy was accomplished by December
2008. Indeed, he does not develop this contention at all. In any event, there was
evidence presented at trial that Nwankwo made a delivery of fraudulently
prescribed equipment in late November 2008. Furthermore, the health care
fraud could not have been completed without Nwankwo’s delivery of the
equipment ordered through the forged prescriptions because Medicare requires
“proof of delivery and training and education [of the beneficiary] on a particular
product or service.”
3. Clinton Lee10
On appeal, Lee’s “sole challenge is to the sufficiency of the evidence.”
However, there was evidence presented at trial that Lee became aware of the
fraudulent prescriptions at Onward in October 2008 but wanted to deliver
medical equipment for Vinitski anyway, thereby knowingly volunteering to join
the conspiracy.
Moten testified that she informed Lee: (1) about the forged prescriptions
used by Onward; (2) that Onward used marketers who received commissions for
bringing in beneficiaries who purchased durable medical equipment; (3) that
Onward billed Medicare and got paid for equipment that had not been delivered
or ordered; and (4) that the beneficiaries Onward delivered equipment to were
10
Lee was sentenced to three years probation, supervised release, and a special
assessment.
10
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receiving equipment they did not need.11 However, even after Lee learned of the
illegal activity at Onward, Moten testified that Lee still wanted to deliver
durable medical equipment for Onward. Indeed, Lee enrolled in a training class,
paid for by Vinitski, in order to make deliveries for Vinitski and told Moten that
he was taking the class “[s]o he could learn how to set up equipment so he could
do deliveries and know how to set it up.” Moten testified that Vinitski told her
to go with Lee on the first delivery after he took the class so that Moten could
teach Lee about the paperwork he needed to use during deliveries. Moreover,
Lee testified that he knew when he took the class that Onward’s business “didn’t
appear to be right.”12
Lee argues that the evidence against him is insufficient because: (1) he
never made any fraudulent deliveries and (2) he never profited from the health
care fraud as the only money he was paid by Vinitski was for electrical work he
had done for Onward. However, to prove conspiracy, the government is not
required to prove that the accused profited from the conspiracy. See Jackson, 700
F.2d at 185 (explaining that to prove conspiracy, the government must “prove
beyond a reasonable doubt that a conspiracy existed, that the accused knew of
the conspiracy, and that he knowingly and voluntarily joined it”). Indeed, Moten
testified that when Vinitski had not called Lee to do any deliveries, he was
11
Lee argues that, “mere knowledge does not show that he joined into the conspiracy,”
relying on a trio of “dope house” cases: United States v. Ocampo, 964 F.2d 80, 82 (1st Cir.
1992); United States v. Soto, 716 F.2d 989, 991–93 (2d Cir. 1983); and United States v. Hyson,
721 F.2d 856, 862–63 (1st Cir. 1983). We do not, however, hold that the fact that Lee was
aware of the criminal activity at Onward is, alone, enough to prove he joined the conspiracy.
12
Lee contends that the course he took dealt with the repair of motorized wheelchairs.
However, the jury heard Moten’s testimony and Lee’s testimony and was shown Defendant’s
Exhibit 12, the course book for the class. From that evidence, the jury was entitled to make
necessary credibility determinations. Loe, 262 F.3d at 432 (5th Cir. 2001) (explaining that the
jury “retains the sole authority to weigh any conflicting evidence and to evaluate the
credibility of the witnesses.”). Furthermore, the jury’s credibility determination was
reasonable considering that Lee admitted after his arrest that Vinitski had “enrolled him in
a training class for the installation and repair of . . . medical equipment.”
11
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frustrated and wondered “so why did she have him take the class” where he
learned how to put together medical equipment. After Lee’s arrest, Lee told
agents that he was interested in getting into the durable medical equipment
business because people involved in that business were making a lot of money
and everybody was “going to the government trough.”
Moreover, Moten testified that Vinitski was looking for a way to pay Grant
for redoing the forged prescriptions because she could not pay Grant directly and
that Lee suggested to Moten that he could serve as a third party through whom
Vinitski could route her payments to Grant. Lee argues that Moten’s testimony
about the possibility of forming a company to facilitate payment of Grant for the
prescriptions Lee knew were forged “is of no moment” because there is no
evidence that Lee ever contacted Grant about the possibility or took any other
steps. However, Lee’s suggestion that he could help funnel the payments when
he already knew the activity was illegal certainly provides evidence that Lee
knowingly and willingly (even if unprofitably) sought to participate in the fraud.
Finally, Lee’s numerous telephone conversations with Vinitski between
October 2008 and February 2009 could reasonably have led the jury to infer that
Lee’s relationship with Vinitski was more than that of an occasional electrician
(the relationship Lee claims).13 Lee argues that the mere association with
conspirators will not support an inference of participation in a conspiracy.
However, this court has held that “even minor participation in the conspiracy
may serve as the basis for a conviction” and that a defendant’s “[v]oluntary
13
Lee called Vinitski 141 times and talked for 816 minutes; Vinitski called Lee 101
times and talked for 1,017 minutes. When Lee was asked what he spoke with Vinitski about
during late November/December, he answered “[w]e talked about electrical stuff there at the
office, we talked about stuff there, phone, we talked about her daughter, Kimberly, we talked
about her Internet not working right at her house, and just pretty much everything.” No other
evidence was presented about the topics of conversation during the phone calls between Lee
and Vinitski. Lee also called Grant 58 times for a total of 145 minutes and Grant called Lee
94 times totaling 747 minutes.
12
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participation may be inferred from a collocation of circumstances.” United States
v. Bieganowski, 313 F.3d 264, 277 (5th Cir. 2002) (internal citations and
quotation marks omitted).
B. Admission of Vinitski’s statements under Fed. R. Evid. 801(d)(2)(E)
This court reviews the district court’s admission of Vinitski’s statements
for plain error because Grant failed to object below to the admission of the
statements under Federal Rule of Evidence 802(d)(2)(E). See Fed. R. Crim. P.
52(b); United States v. Burton, 126 F.3d 666, 673 (5th Cir. 1997). Plain error
requires: (1) error; (2) that is clear or obvious; (3) that affects substantial rights;
and (4) if those elements are satisfied, the court of appeals may exercise its
discretion to remedy the error if it seriously affects the fairness, integrity, or
public reputation of judicial proceedings. Puckett v. United States, 129 S.Ct.
1423, 1429 (2009).
Grant argues that Vinitski’s out-of-court statements, elicited through the
testimony at trial of Okonkwo and Moten, are hearsay, and therefore not
admissible. See Fed. R. Evid. 802. Appellees argue that Vinitski’s statements
are admissible because they are not hearsay under Federal Rule of Evidence
801(d)(2)(E). Under Rule 801(d)(2)(E), an out-of-court statement offered against
a party is not hearsay and is therefore admissible, if it was made “by the party’s
coconspirator during and in furtherance of the conspiracy.” Fed. R. Evid.
801(d)(2)(E) (as restyled, effective Dec. 1, 2011). The statements at issue concern
Vinitski’s plan to deal with the forged prescriptions by paying Grant the money
he demanded to redo them, as well as possible arrangements for making
payment to Grant through a third party, Lee.14
14
The statements Grant contends were inadmissible include: (1) Okonkwo’s testimony
that Vinitski told him Grant was demanding Vinitski pay him $10,000 “to redo the paperwork”
on the prescriptions with Grant’s forged signature; (2) Okonkwo’s testimony that Vinitski told
him she was going to pay $10,000 to Grant; (3) Moten’s testimony that Vinitski told her Grant
asked for money in exchange for fixing the prescriptions with Grant’s forged signature; (4)
13
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Grant contends that Vinitski’s statements were not in furtherance of the
conspiracy because they “can be characterized as mere hand-wringing.”
However, “[s]tatements regarding the payment of money for services rendered
in accomplishing the illegal goals of a conspiracy can be considered to be ‘in the
course and in furtherance of the conspiracy.’” United States v. Garcia, 995 F.2d
556, 561 (5th Cir. 1993). Therefore, statements involving the payment of Grant
for redoing the forged fraudulent prescriptions are in furtherance of the
conspiracy to commit health care fraud.
Grant also contends that Vinitski’s statements could not have been made
during and in furtherance of the conspiracy because the statements were made
after the objective of the conspiracy, to receive money from Medicare based on
fraudulent prescriptions for durable medical equipment, had already been
accomplished. Grant contends that, “Onward received the second set of
prescriptions along with the government payment in early to mid November
[2008].” However, Onward did not bill Medicare for the second set of forged
prescriptions (with Grant’s forged signature) until November 25, 2008. It is
reasonable to believe that Onward would not have received full payment by early
December for claims that were not even submitted until November 25.
Furthermore, the government alleged a conspiracy that continued until 200915
and included as one of its objectives “concealing the submission of false and
fraudulent claims to Medicare and the receipt and transfer of the proceeds from
the fraud.”
Moten’s testimony that Okonkwo told Vinitski that Grant had already been paid for the
prescriptions; and (5) Moten’s testimony that Vinitski asked her whether Lee would be willing
to accept Vinitski’s payments to Grant on Grant’s behalf.
15
The government contended at oral argument that the end of the conspiracy was
March 31, 2009, the date of the last phone call between Grant and Vinitski. We also note that
Onward did not voluntarily surrender its status as an eligible Medicare supplier until August
2009.
14
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Regardless, this court has held that, “[e]fforts to conceal an ongoing
conspiracy obviously can further the conspiracy by assuring that the
conspirators will not be revealed and the conspiracy brought to an end.” United
States v. Phillips, 219 F.3d 404, 419 (5th Cir. 2000) (citations omitted); see
United States v. Broussard, 80 F.3d 1025, 1039 (5th Cir. 1996) (“Given that
concealment is often a necessary part of a conspiracy, statements made to aid
the concealment are made in furtherance of the conspiracy.”).16 Vinitski’s
statements showing that Grant was asking for $10,000 to redo the forged
prescriptions in late November or early December 2008 were made to aid the
concealment of the conspiracy. Therefore, the district court did not plainly err
by considering Vinitski’s out-of-court statements regarding Grant’s payment for
forged prescriptions to have been statements made during and in furtherance of
the conspiracy. United States v. Burton, 126 F.3d 666, 674–75 (5th Cir. 1997)
(explaining that the admission of a statement under the co-conspirator hearsay
provision was not plain error where it was not “clear” or “obvious” that the
statement was not made in furtherance of the conspiracy); see United States v.
Trejo, 610 F.3d 308, 319 (5th Cir. 2010) (“Plain error is error so clear or obvious
that the trial judge and prosecutor were derelict in countenancing it, even absent
the defendants’ timely assistance in detecting it.”) (internal quotation marks
omitted).
16
Grant relies on Krulewitch v. United States, 336 U.S. 440 (1949), and Justice
Jackson’s concurrence in Grunewald v. United States, 353 U.S. 391 (1957), to argue that
Vinitski’s statements were not in furtherance of the conspiracy because they involve
agreements among conspirators only to avoid detection. Both Grunewald and Krulewitch,
however, involve “desperate attempts to cover up after the crime begins to come to light.”
Grunewald, 353 U.S. at 403 (Jackson, J., concurring) (emphasis added); see Krulewitch, 336
U.S. at 444 (holding that a statement “made in furtherance of an alleged implied but
uncharged conspiracy aimed at preventing detection and punishment” is not admissible. Here,
Vinitski’s statements did not involve covering up a conspiracy that was already over or that
was already being investigated; instead, Vinitski’s statements involved the payment of Grant
for his part in the conspiracy (the writing of fraudulent durable medical equipment
prescriptions for submission to Medicare).
15
Case: 11-20013 Document: 00511881596 Page: 16 Date Filed: 06/08/2012
No. 11-20013
C. Prosecutorial misconduct
Grant argues that the government’s second cross-examination of him
constituted prosecutorial misconduct.
“Improper prosecutorial comments constitute reversible error only where
the defendant’s right to a fair trial is substantially affected.” United States v.
Stephens, 571 F.3d 401, 407–08 (5th Cir. 2009) (quoting United States v. Holmes,
406 F.3d 337, 355–56 (5th Cir. 2005)). To analyze claims of prosecutorial
misconduct, this court first considers “whether the prosecutor made an improper
remark,” and, if so, “ask[s] whether the defendant was prejudiced.” Id. at 408(quoting United States v. Fields, 483 F.3d 313, 358 (5th Cir. 2007)).
On May 26, 2010, Grant testified and the government cross-examined him
about his Medicare billing for overseeing nurses who visited home health care
patients. Grant admitted that he had submitted bills for three patients after the
patients had died. Later, on June 1, 2010, Grant moved to reopen his case so
that he could offer an explanation for this billing. Grant’s counsel explained that
Medicare regulations permit a physician to bill for oversight services during a
60-day “certification period” after seeing the patient at the beginning of the
period and that “only after notification of death . . . would he not thereafter be
permitted to bill.” The district court granted the motion to reopen.
During the government’s second cross-examination of Grant, the
prosecutor reasonably elicited information from Grant regarding his compliance
with Medicare’s billing requirements for oversight services. Specifically, the
prosecutor questioned Grant regarding a letter, found in Grant’s patient records,
that a home health care agency had sent to his office dated May 4, 2009,
notifying him that patient Jesse Clay had died, and Grant’s subsequent
submission of two bills for oversight services after the date of the letter (on May
15, 2009 and June 13, 2009). The prosecutor also questioned Grant about the
16
Case: 11-20013 Document: 00511881596 Page: 17 Date Filed: 06/08/2012
No. 11-20013
incomplete records he maintained for Clyde Grice, a patient for whom Grant had
billed Medicare for oversight services after the patient’s death.
Grant argues that, “the government had no good faith basis for accusing
Dr. Grant of improperly billing for the dead patients.” However, the prosecutor’s
cross-examination appropriately drew the jury’s attention to (1) Grant’s billing
for services rendered to Jesse Clay two times after the date of the letter in
Grant’s patient records notifying Grant of her death; (2) Grant’s lack of
knowledge about how long he had been overseeing the three patients in question
(Grice, Clay, and Collins), what their medical problems were, or how they died;
and (3) the incomplete records maintained for Clyde Grice and past accusations
that Grant had failed to maintain adequate medical records. The government’s
cross-examination was not aimed at proving that the Grant violated accepted
Medicare billing practices solely by billing for oversight services rendered after
patients’ deaths; instead, it was aimed at showing Grant’s knowledge and intent
inasmuch as he billed Medicare after he was notified Jesse Clay died and that
Grant’s incomplete medical records facilitated incorrect billing.17
“In the context of cross-examination, no misconduct can arise for a
question asked for a valid reason.” United States v. Munoz, 150 F.3d 401, 414
(5th Cir. 1998). Therefore, the government’s cross-examination of Grant did not
constitute reversible prosecutorial misconduct.
D. Missing witness instruction
Generally, we review a district court’s failure to provide a requested jury
instruction “under an abuse of discretion standard, affording the trial court
substantial latitude in describing the law to the jurors.” United States v. Rios,
636 F.3d 168, 171 (5th Cir. 2011) (quoting United States v. Santos, 589 F.3d 759,
17
Because the prosecutor’s cross-examination in this case was not improper, we need
not reach whether “the defendant’s right to a fair trial [was] substantially affected.” See
Stephens, 571 F.3d at 407–08 (citing Holmes, 406 F.3d at 355–56).
17
Case: 11-20013 Document: 00511881596 Page: 18 Date Filed: 06/08/2012
No. 11-20013
764 (5th Cir. 2009)). “A district court should not grant a missing witness
instruction unless the individual (1) is peculiarly within one party’s power to
produce, and (2) would provide testimony that will elucidate facts at issue.” Id.Grant focuses on the first part of this test, arguing that the district court’s
failure to provide the requested missing witness instruction was an abuse of
discretion because Vinitski was “‘peculiarly within the power’ of the government
to call as a witness.” To support this contention, Grant notes that Vinitski had
pled guilty and was awaiting sentencing. Grant argues that “while subject to
being subpoenaed by the defense, she certainly would have refused to testify for
the defense,” referencing a probability that Vinitski would have invoked her
Fifth Amendment right not to testify.
We have examined the consensus of caselaw, however, that holds that a
co-conspirator who pleads guilty and is awaiting sentencing is not peculiarly
within the government’s control so as to justify a missing witness instruction.
Rios, 636 F.3d at 172 (affirming a district court’s denial of a missing witness
instruction and holding that “the government’s failure to grant immunity to a
witness who invokes the Fifth Amendment right not to testify does not by itself
entitle a defendant to a missing witness instruction.”).18 Here, Vinitski was not
called by either party, so it is not clear whether she would have invoked her
Fifth Amendment right had the defense chosen to call her, nor is it clear whether
the government would have refused to grant her immunity. Grant has provided
no other support for why he could not have called Vinitski as a witness himself.
18
This court explained in Rios that, “[t]he Fifth Circuit has yet to address whether a
witness who relies upon his or her constitutional right not to testify is peculiarly within the
government’s control. Every circuit that has considered the question, though, has held that
the government’s ability to grant immunity does not make a witness who invokes the Fifth
Amendment right not to testify peculiarly available to the government.” Rios, 636 F.3d at 171(internal citations omitted).
18
Case: 11-20013 Document: 00511881596 Page: 19 Date Filed: 06/08/2012
No. 11-20013
Therefore, Grant has not proven that Vinitski was peculiarly within the control
of the government. Id.19
Moreover, the government’s decision not to call Vinitski as a witness was
already addressed in the jury instructions. The district court instructed jurors
that, “[t]he law does not require the prosecution to call as witnesses all persons
. . . who may appear to have some knowledge of the matters at issue at this trial
. . . . However, in judging the credibility of the witnesses who have testified and
in considering the weight and effect of all the evidence that has been produced,
the jury may consider the prosecution’s failure to call other witnesses or to
produce other evidence shown by the evidence to be in existence and available.”
Therefore, the district court did not abuse its discretion by refusing to elaborate
with a missing witness instruction.
CONCLUSION
We conclude that: (1) the district court did not plainly err by admitting
Vinitski’s statements; (2) the government’s second cross-examination of Dr.
Grant was not reversible prosecutorial misconduct; (3) the district court did not
abuse its discretion by refusing to elaborate with a missing witness instruction;
and (4) there was proof enough to support the Defendants-Appellants’
convictions. Therefore, we AFFIRM the convictions of Grant, Nwankwo, and
Lee.
19
Grant emphasizes the non-dispositive language in Rios by stating, “Rios states that
‘the government’s failure to grant immunity to a witness who invokes the Fifth Amendment
right not to testify does not by itself entitle a defendant to a missing witness instruction.’”
Grant argues that “a combination of factors . . . justified the missing witness charge.”
However, Rios only contemplates two exceptional circumstances which, combined with the
government’s failure to grant immunity to a witness who invokes the Fifth Amendment, might
merit a missing witness instruction: “Some circuits have provided an exception where there
is a substantial showing of an abuse of prosecutorial discretion or where circumstances
indicate that the witness would have been exculpatory.” Rios, 636 F.3d at 172. Grant does not
claim either of these exceptional circumstances is present here. See Rios, 636 F.3d at 172(“[Defendant] does not argue prosecutorial abuse of discretion, so we need not consider
whether exceptions apply.”).
19