United States v. Caroline Njoku ( 2014 )

Case: 12-20095 Document: 00512456949 Page: 1 Date Filed: 12/02/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 2, 2013
No. 12-20095 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CAROLINE NJOKU; MARY ELLIS; TERRIE PORTER; EZINNE UBANI,
Defendants-Appellants
Appeals from the United States District Court
for the Southern District of Texas
Before DENNIS, CLEMENT, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
The defendants were convicted on numerous counts related to their
involvement in schemes to commit health care fraud, receive or pay healthcare
kickbacks, and/or make false statements for use in determining rights for benefit
and payment by Medicare. Caroline Njoku, Terrie Porter, and Mary Ellis appeal
their convictions on grounds of insufficient evidence. Njoku also argues the
sentences she received on two counts were multiplicitous and the oral
pronouncement of her sentence conflicts with the written judgment. Ellis
contends that she was twice put in jeopardy because of a previous acquittal and
that collateral estoppel bars the relitigation of certain issues. Ellis further
brings an evidentiary challenge involving rules of hearsay and relevancy, as well
Case: 12-20095 Document: 00512456949 Page: 2 Date Filed: 12/02/2013
No. 12-20095
her right to present a defense. Ellis also argues her sentence resulted from an
improper enhancement. Ezinne Ubani appeals her sentence based on the
application of two enhancement provisions.
We REMAND for the district court to amend Njoku’s written judgment to
conform to her oral sentence. We AFFIRM in all other respects.
BACKGROUND
On October 7, 2010, Njoku, Porter, Ellis, Ubani, and other co-defendants
who are not parties in this appeal were indicted in the United States District
Court for the Southern District of Texas. Njoku, Ellis, and Ubani were each
charged with one count of conspiracy to commit health care fraud under 18
U.S.C. § 1349. Njoku, Porter, and Ellis were each charged with one count of
conspiracy to receive or pay health care kickbacks under 18 U.S.C. § 371. Njoku
and Porter were charged on one count and Ellis on three counts of receipt or
payment of kickbacks in violation of 42 U.S.C. § 1320a-7b(b) and 18 U.S.C. § 2.
Ellis and Ubani were charged with two counts each of making false statements
for use in determining rights for benefit and payment by Medicare under 42
U.S.C. § 1320a-7b(a)(2) and 18 U.S.C. § 2.
There was evidence that articles of incorporation were filed on November
1, 2004 for a company named Family Healthcare Group, Inc., which would do
business in Houston, Texas. The document listed Clifford Ubani, Princewill
Njoku, and Ezinne Ubani as directors.1 The company submitted a Medicare
1
Co-defendants Clifford Ubani and Princewill Njoku were the husbands of Defendants-
Appellants Ezinne Ubani and Caroline Njoku. Clifford Ubani and Princewill Njoku are not
appellants. References to “Ubani” and “Njoku” are to Defendants-Appellants Ezinne Ubani
and Caroline Njoku, and at times their full names are used for clarity. Clifford Ubani and
2
Case: 12-20095 Document: 00512456949 Page: 3 Date Filed: 12/02/2013
No. 12-20095
provider application in May 2005, which was approved in early 2006. The
document listed Clifford Ubani and Princewill Njoku as co-owners; Ezinne Ubani
was listed as a director/officer.
An authorized Medicare provider may bill Medicare for covered services
provided to eligible beneficiaries. Family Healthcare provided home health care
to individuals by use of skilled nurses. To qualify for such services under
Medicare regulations, the patient must be homebound, under a doctor’s care, and
require skilled nursing. A claims analyst who reviewed medical records for
Medicare fraud testified that “homebound” meant that it was generally taxing
for the patient to leave home. In the analyst’s nine years of experience, the
referral source for such care was the patient’s primary care physician.
The analyst further explained that in order to initiate such care, a
registered nurse (“RN”) was required to meet with the patient and complete an
Outcome Assessment Information Set (“OASIS”). The questionnaire helped
identify the patient’s ability to function in daily living and would be used in part
to determine whether the patient was homebound. Information from the OASIS
would be entered into a computer program, which would produce a “plan of
care.” The same nurse who completed the OASIS was required to sign the plan
of care. The plan would then be submitted to the referring physician to certify
and sign.
If approved by the physician, a period of care lasted 60 days for purposes
of Medicare regulations. A licensed vocational nurse (“LVN”) provided the
skilled nursing in the patient’s home. The law required LVNs to keep nursing
notes to document their visits and prove the care given. Additionally, these
Princewill Njoku are referenced throughout this opinion using their first and last names.
3
Case: 12-20095 Document: 00512456949 Page: 4 Date Filed: 12/02/2013
No. 12-20095
notes could provide a log of medication and patient conditions for future use.
Agent Harshaw, a special agent charged with the investigation of criminal
violations of the health care fraud laws, testified that Medicare required the
nursing notes be preserved for auditing purposes.
The analyst explained that such services were not intended to be
continuous. Nurses would instruct the patient or a caregiver on how to provide
the needed care without a nurse’s assistance. If a patient continued to need
skilled nursing after the initial period, recertification for 60 more days was
available. During the last five days of the first period, an RN would be required
to visit and reassess the patient. This recertification process required the
completion of a second, condensed OASIS. Agent Harshaw testified that an RN
would partly rely on the LVN’s nursing notes to complete the recertification
evaluation. Adelma Sevilla, an RN who worked for Family Healthcare, testified
that she reviewed nursing notes during this process. Once the recertification
OASIS was complete, a new plan of care would be prepared, signed by the RN,
and submitted to a physician for signed approval. The physician’s approval
generally involved the physician personally visiting the patient.
Medicare would reimburse service providers in bifurcated installments.
The first was a payment of 60 percent of the claim after the initial billing.
Medicare did not necessarily receive a patient’s OASIS or plan of care at that
time but instead relied on the service provider’s representation subject to future
inspections via audit. The remaining portion of the claim was paid once a
sufficient number of skilled nursing visits were made. The indictment stated
that Family Healthcare was paid approximately $5.2 million for home health
4
Case: 12-20095 Document: 00512456949 Page: 5 Date Filed: 12/02/2013
No. 12-20095
care services between April 2006 and August 2009. We describe in more detail
below each individual’s role. For now, we provide a general overview.
Njoku and Ellis worked as LVNs who provided skilled nursing care to
patients. Ellis also referred Medicare beneficiaries to Family Healthcare. Porter
also referred Medicare beneficiaries. Ubani worked as an RN who completed
OASIS questionnaires and signed plans of care. At times, Family Healthcare
used specific physicians to certify the plans of care.
Evidence at trial showed that Family Healthcare billed Medicare for
services to beneficiaries who were ineligible for home health care because they
were either not homebound or not in need of skilled nursing. RNs would sign
OASIS questionnaires both on initial assessments and during recertifications
without visiting the patients. Skilled nursing services were allegedly inadequate
and misrepresented in the documented nursing notes. At least one physician
was paid to authorize plans of care despite not having examined the patients.
Recruiters were paid kickbacks to refer Medicare beneficiaries in order to
accumulate additional patients.
After an eleven day trial, the jury found Njoku, Ellis, and Ubani guilty of
conspiracy to commit health care fraud in Count 1. Njoku, Porter, and Ellis
were found guilty of conspiracy to receive or pay health care kickbacks in Count
2. The jury found Njoku not guilty of receipt or payment of health care
kickbacks in Count 12. Porter was found guilty of receipt or payment of health
care kickbacks in Count 17. Ellis was found guilty of receipt or payment of
health care kickbacks in Counts 3, 4, and 5. Finally, the jury found Ellis and
Ubani guilty of making false statements for use in determining rights for benefit
and payment by Medicare in Counts 20 and 21.
5
Case: 12-20095 Document: 00512456949 Page: 6 Date Filed: 12/02/2013
No. 12-20095
The district court announced Njoku’s sentence as 63 months on Count 1
and 60 months on Count 2, to run concurrently.2 Porter was sentenced to 24
months on Counts 2 and 17 to run concurrently. The court sentenced Ellis to 63
months on Count 1 and 60 months on Counts 2, 3, 4, 5, 20, and 21 to run
concurrently. Ubani was sentenced to 97 months on Count 1 and 60 months on
Counts 20 and 21 to run concurrently. These defendants appealed.
DISCUSSION
Njoku, Ellis, and Porter challenge the sufficiency of the evidence on some
of the counts. Njoku, Ellis, and Ubani raise arguments as to their sentences.
Ellis raises a variety of other issues. We address each issue in turn.
A. Sufficiency of the Evidence
We review the defendants’ “preserved challenges to the sufficiency of the
evidence de novo.” United States v. Grant, 683 F.3d 639, 642 (5th Cir. 2012). 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.” Id. In doing so, we ask “whether a rational trier
of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Id. (quotation marks omitted).
1. Count 1 (Conspiracy to Commit Health Care Fraud)
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
2
The written judgment states that Njoku was sentenced to 63 months’ imprisonment
on both counts. We address this issue below.
6
Case: 12-20095 Document: 00512456949 Page: 7 Date Filed: 12/02/2013
No. 12-20095
conspirators 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.”
Grant, 683 F.3d at 643. Circumstantial evidence can prove knowledge and
participation. Id.
In her motion for judgment of acquittal and on appeal, Njoku argues the
evidence was insufficient to prove she knew of the unlawful purpose and joined
the agreement willfully. We find sufficiency from the following.
Adelma Sevilla testified that she worked for Family Healthcare as an RN.
She admitted to falsifying forms submitted to Medicare and said that other
people she worked with, including Njoku, participated. Because Sevilla could
not drive a vehicle, Njoku almost always drove her to patients’ homes to perform
assessments. Njoku was also present with Sevilla during those assessments and
witnessed patients performing activities that belied their homebound status or
need for skilled nursing. One patient who walked around without assistance
directly told Njoku that he could drive himself. Sevilla confirmed that she
falsified the OASIS for this patient and for others. Njoku was hardly oblivious
to the requirements. She not only worked as an LVN for Family Healthcare but
also had completed training on OASIS assessments and reporting.
Even though Sevilla at one point expressed concern that some patients
were not homebound, Njoku responded that Sevilla should process the
7
Case: 12-20095 Document: 00512456949 Page: 8 Date Filed: 12/02/2013
No. 12-20095
admissions anyway. Princewill Njoku was also an RN. After he was indicted,
Caroline Njoku asked Sevilla, another RN, to sign recertification assessments
in Princewill Njoku’s place. Despite not having visited any of the patients,
Sevilla complied. It is reasonable to infer that Caroline Njoku knew Sevilla had
not completed in-person assessments of these patients partly because Njoku
usually drove Sevilla to each patient’s home. There were also times when plans
of care were returned from physicians without their approval, and Njoku
instructed office clerks to send the forms to a Dr. Echols, who was later shown
to be involved in the scheme.
The underlying scheme was to obtain money from Medicare by false
pretenses. We conclude there was sufficient evidence of Njoku’s knowledge of
the agreement and her willful joining of it with the intent to further its purpose.
2. Count 2 (Conspiracy to Receive or Pay Health Care Kickbacks)
It is unlawful to conspire with another to commit an offense against the
United States and do an act to effect the conspiracy’s object. 18 U.S.C. § 371.
The substantive offenses in this case were the knowing and willful receipt of a
remuneration, namely, a kickback, in return for referring a patient for home
healthcare, or payment of such remuneration in order to induce someone to
make such a reference. See 42 U.S.C. § 1320a-7b(b). 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.
United States v. Mauskar, 557 F.3d 219, 229 (5th Cir. 2009).
8
Case: 12-20095 Document: 00512456949 Page: 9 Date Filed: 12/02/2013
No. 12-20095
“The government must prove the same degree of criminal intent as is
necessary for proof of the underlying substantive offense.” United States v.
Peterson, 244 F.3d 385, 389 (5th Cir. 2001). 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.” United States v. Garcia, 762 F.2d 1222, 1224 (5th Cir. 1985); see
also United States v. Davis, 132 F.3d 1092, 1094 (5th Cir. 1998).
a. Caroline Njoku
Njoku argues the evidence was insufficient to prove she knew of the
unlawful purpose and joined the agreement with the intent to further that
objective.3 She contends the evidence shows mere presence in a climate of
unlawful activity. We disagree.
Sammie Wilson testified that she received payments through checks
drawn on Family Healthcare’s account in exchange for referring patients who
were Medicare beneficiaries. Wilson explained that notations on the checks such
as “for 4” meant the number of patients she referred. At times, she was paid
$500 per patient. On at least one occasion, Princewill Njoku was in the driver’s
seat of a vehicle and his then-wife Caroline was a passenger. He reached across
Caroline and gave a check to Wilson as payment for patients she had referred.
There also was evidence of a check dated November 10, 2008, made
payable to Caroline Njoku and drawn on Family Healthcare’s account in the
amount of $2,500. The memo line showed “5 from Sammie Wilson.” There was
3
In her argument on appeal, Njoku also relies on the fact jurors found her not guilty
on Count 12 – a charge for a substantive offense under 42 U.S.C. § 1320a-7b(b) – and that such
acquittal supports the inadequacy of the evidence on Count 2. Not so, as our “review is to be
independent of the jury’s determination that evidence on another count was insufficient.”
United States v. Montalvo, 820 F.2d 686, 690 (5th Cir. 1987) (quotation marks omitted).
9
Case: 12-20095 Document: 00512456949 Page: 10 Date Filed: 12/02/2013
No. 12-20095
a computerized notation on the check revealing it had been cashed. Njoku does
not deny receiving the check and, in fact, attempted through cross examination
to show that the check was her part of that month’s payroll. Testimony from
Ana Quinteros, a certified nursing assistant who worked for Family Healthcare,
showed that some recruiters were paid in cash and were also paid through other
people. Wilson did testify that she never received cash payments.
Regardless, Wilson’s denial of cash payments would not mean the evidence
was insufficient for the jury to find Njoku guilty of conspiracy. We must draw
all reasonable inferences in favor of the jury’s verdict. Grant, 683 F.3d at 642.
Wilson’s testimony revealed that she and Njoku had a uniquely close
relationship, more than a typical nurse-patient friendship. Wilson actively
worked as a recruiter for Family Healthcare, and it is reasonable to infer that
Njoku knew Wilson was being paid for those referrals as part of the underlying
scheme. Further, Njoku’s activities, including her involvement with what one
could infer was a payment to Wilson, are sufficient to prove Njoku willfully
joined in the agreement to pay recruiters for referrals.
b. Terrie Porter
Porter, who was one of the alleged recruiters for Family Healthcare,
argues the evidence was insufficient to prove she knew about an unlawful
objective or joined the agreement with the intent to further that objective.
Porter contends she referred patients to Family Healthcare because she believed
they needed and would receive home health care. Porter states she had no
agreement to recruit only Medicare beneficiaries.
Between 2006 and 2009, Porter worked at the University of Texas Health
Science Center in the Department of Physical Medicine and Rehabilitation. She
10
Case: 12-20095 Document: 00512456949 Page: 11 Date Filed: 12/02/2013
No. 12-20095
assisted physicians in administrative responsibilities. Her resume revealed that
she worked with confidential patient information. Porter testified, though, that
the only patient billing she handled was for compensation claims for work-
related injuries and not claims involving Medicare. She explicitly denied having
access to patients’ Medicare information.
Porter testified that her friend believed a nearby agency (Family
Healthcare) was looking for community liaisons. She was put in touch with
Clifford Ubani and eventually interviewed with him and Princewill Njoku in a
vehicle outside of her place of employment. She wondered whether the two men
were involved in a fraud. Porter later admitted at trial that Family Healthcare
began paying her for referring patients. Agents eventually discovered a log of
Porter’s referrals on the computer hard drives at Family Healthcare. Although
Porter argues she was not listed as the referral source for corresponding patients
on other documents, the jury heard testimony from Agent Harshaw that it was
permissible to have more than one referral source per patient.
Porter’s main defense was that she did not know about the Family
Healthcare’s schemes or the illegality of the referral payments. She denied
having an agreement with Clifford Ubani to receive payments only for Medicare-
beneficiary referrals. Porter alleged he paid her for anyone she referred.
There was testimony that Memorial Hermann Hospital was a teaching
institution for the University of Texas in Houston. Hermann Hospital provided
patient information to the University for billing purposes. Dr. Stephen Yang
testified about Porter’s access to patients’ confidential information due to her
employment at the University. Dr. Yang worked at the University between 2006
and 2010 as an assistant professor in the same department as Porter. He also
11
Case: 12-20095 Document: 00512456949 Page: 12 Date Filed: 12/02/2013
No. 12-20095
treated patients at the Hospital. Dr. Yang explained that he handled patients’
medical charts during his day-to-day practice. Those charts included what the
Hospital called “face sheets.” The sheets contained information about patients’
insurance providers such as Medicare. Dr. Yang stated that he was required to
report charges that he billed and would attach that billing data to the face sheet.
He then placed the documents in a basket for processing. Dr. Yang knew Porter
from their working at the University. Her desk as an administrative assistant
was down the hall from where he placed documents in the basket. He also knew
that Porter processed patients’ billing information because he had witnessed her
speaking with a billing company.
A legal privacy officer who worked for the University testified regarding
Porter’s employment records. The officer reviewed documents in Porter’s
employment file, which revealed one of Porter’s responsibilities was to maintain
all medical billing and routine office duties. Porter had received advanced
training on patients’ rights regarding the confidentiality of their health care
information.
We disagree with Porter that the evidence was insufficient to support a
finding of guilt. Porter initially suspected Clifford Ubani and Princewill Njoku
of fraudulent activity. She still agreed to work for them and admitted to
referring patients to Family Healthcare and receiving payments in exchange.
Porter defended her actions based on her belief that they were legitimate
referrals, but the jury also heard her testify that she received payments for
patients’ recertifications despite having provided no additional work in
exchange. Agent Harshaw testified that the patients on a referral list associated
with Porter were Medicare beneficiaries. According to his testimony, more than
12
Case: 12-20095 Document: 00512456949 Page: 13 Date Filed: 12/02/2013
No. 12-20095
three-quarters of those beneficiaries were also patients at the Memorial
Hermann Hospital. This circumstantial evidence, along with the testimony that
she had direct access to patients’ Medicare information and advanced training
in confidentiality regulations, was sufficient to prove that Porter knew of the
unlawful objective of recruiting Medicare beneficiaries and willfully joined the
agreement with the intent to further that objective.
3. Counts 20 and 21 (False Statements for Use in Determining Rights)
It is unlawful to “knowingly and willfully make[] . . . any false statement
or representation of a material fact for use in determining rights to [any benefit
or payment under a Federal health care program].” 42 U.S.C. § 1320a-7b(a)(2).
The jury charge instructed that a false statement is material if it has a natural
tendency to influence or is capable of influencing the recipient.
The indictment alleged that Ellis described non-existent symptoms and
services that were not performed for two patients. On appeal, Ellis concedes the
evidence showed her nursing notes contained false statements. She argues that
they were not material because they could not be used to determine either
patient’s right to home health care. Ellis relies on a claims analyst’s testimony
that an RN completes the OASIS questionnaire, and the RN and physician
approve the resulting plans of care. Further, Medicare would not authorize
payment if these forms merely were signed by an LVN such as Ellis.
Ellis also acknowledges the testimony that an LVN was legally required
to keep nursing notes that documented patient care. We conclude these notes
were material in support of her conviction. The claims analyst explained at trial
that Medicare required the preservation of nursing notes in the event of an
audit. Ellis herself testified that Family Healthcare encountered two audits
13
Case: 12-20095 Document: 00512456949 Page: 14 Date Filed: 12/02/2013
No. 12-20095
while she worked with the company. In addition, Agent Harshaw testified that
an RN partly relies on an LVN’s nursing notes when completing the
recertification OASIS. The claims analyst testified that an RN partly would rely
on nursing notes to determine future treatment.
Regarding the two patients listed in the indictment for Counts 20 and 21,
Ellis allegedly provided services for them as their LVN. Both patients were
recertified for a second period of home health care. An RN was associated with
each recertification. Family Healthcare billed Medicare for both patients.
Under either circumstance, Ellis’s false statements on her nursing notes were
material and capable of influence for purposes of determining rights to payment
by Medicare. The evidence was sufficient to sustain Ellis’s conviction.
B. Multiplicity
Njoku argues her two conspiracy convictions in Counts 1 and 2 are
multiplicitous. Before trial, Njoku failed to object to her indictment as
multiplicitous. See FED. R. CRIM. P. 12(b)(3). Such a claim cannot now be raised
on appeal. United States v. Dixon, 273 F.3d 636, 642 (5th Cir. 2001). Thus, the
convictions on each count stand.
A challenge to sentences as being the result of multiplicitous indictments
can be considered even if only presented on appeal. Id. Because Njoku failed to
object in the district court, we review only for plain error. United States v. Ogba,
526 F.3d 214, 232 (5th Cir. 2008). This requires a showing of “(1) error, (2) that
is plain, and (3) that affects substantial rights.” Id. at 236. If shown, we have
discretion to correct the error if it “seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Id. at 236-37.
14
Case: 12-20095 Document: 00512456949 Page: 15 Date Filed: 12/02/2013
No. 12-20095
We interpret Njoku’s argument to rest on the claim that although she was
charged with violating two different statutes, one of the violations could be the
lesser included offense of the other. In this circumstance, we consider whether
“each offense requires proof of an element that the other does not . . . .” United
States v. Woerner, 709 F.3d 527, 539 (5th Cir. 2013) (citing Blockburger v. United
States, 284 U.S. 299, 303-05 (1932).
Njoku relies on a decision in which we reviewed whether there was
multiplicity in charges for the substantive crimes of health care fraud under 18
U.S.C. § 1347 and illegal remunerations under 42 U.S.C. § 1320a-7b(b). Ogba,
526 F.3d at 233-34. The court initially distinguished the crimes:
[T]he statutes each require proof of an additional fact that the other
does not. Illegal remuneration does not require fraud or falsity; a
defendant could be honest about accepting illegal remunerations.
Health care fraud, on the other hand, requires fraud or falsity but
does not require payment in return for a referral.
Id. at 234. The court then stated that if a defendant’s “healthcare fraud
conviction were based entirely on proof of his receipt of kickbacks, which he did
dishonestly, then a conviction for illegal remuneration is a lesser included
offense of healthcare fraud . . . .” Id. The Ogba jury charge included various
theories of health care fraud, and the indictment alleged alternative methods by
which the scheme was committed. Id. at 235. One of those means included
paying or receiving remunerations in exchange for referrals, i.e., kickbacks. Id.The court explained the jury could have based its finding of guilt on health care
fraud solely on the theory of illegal remunerations. Id. at 236. Accordingly, the
court concluded that the sentence violated the Double Jeopardy Clause. Id.15
Case: 12-20095 Document: 00512456949 Page: 16 Date Filed: 12/02/2013
No. 12-20095
The present case is distinguishable. The two convictions involve two
conspiracies, one under 18 U.S.C. § 1349 and the other under 18 U.S.C. § 371.
One statute requires that the government prove an additional fact that the other
does not. Section 1349 requires proof of a conspiracy to commit an offense of
fraud and that such fraud is the object of the conspiracy. Section 371 prohibits
two or more persons from conspiring to commit any offense against the United
States. Further, Section 371 requires proof of an overt act, which Section 1349
does not. Grant, 683 F.3d at 643; Mauskar, 557 F.3d at 229.
As the court did in Ogba, we also examine the jury charge. To find Njoku
guilty of the conspiracy to commit health care fraud in Count 1, the jury was
required to find the following beyond a reasonable doubt:
First: That two or more persons made an agreement to commit the
crime of health care fraud as charged in the Indictment;
Second: That the defendant knew the unlawful purpose of the
agreement; and
Third: That the defendant joined in the agreement willfully, that is,
with the intent to further the unlawful purpose.
The indictment described the unlawful purpose in Count 1 as including the
receipt of kickbacks in addition to the submission of fraudulent claims to
Medicare. The charge of conspiracy to receive or pay health care kickbacks in
Count 2 required the jury to find that the defendant “knew the unlawful purpose
of the agreement and joined in it willfully, that is, with the intent to further the
unlawful purpose.” The indictment described the unlawful purpose in Count 2
as receiving or paying kickbacks “in exchange for providing Medicare beneficiary
16
Case: 12-20095 Document: 00512456949 Page: 17 Date Filed: 12/02/2013
No. 12-20095
information that was used to submit claims to Medicare.” Unlike in Count 1, the
submitted claims did not need to be fraudulent.
In order for the jury to find Njoku guilty of the charge in Count 2, it had
to find “[t]hat one of the conspirators during the existence of the conspiracy
knowingly committed at least one of the overt acts described in the
Indictment . . . .” The indictment listed specific acts: (a) the payment of a
referral check from Clifford Ubani to Ellis, (b) the payment of a referral check
from Princewill Njoku to Sammie Wilson, and (c) the payment of a referral check
from Clifford Ubani to another recruiter. In contrast, the conspiracy for Count
1 listed acts that the conspirators intended, but there was no requirement that
those acts have actually occurred.
Njoku has not shown plain error as to her multiplicity claim.
C. Double Jeopardy
1. Count 1
Ellis contends that her conspiracy conviction under Count 1 violates the
Double Jeopardy Clause of the Fifth Amendment because she was acquitted of
conspiracy in a previous prosecution. In October 2009, Ellis was indicted on one
count of conspiracy to commit health care fraud in violation of 18 U.S.C. § 1349.
The indictment identified Ellis as an LVN who worked for Family Healthcare
and recruited Medicare beneficiaries for the purpose of filing claims with
Medicare for durable medical equipment (“DME”) that was medically
unnecessary or not provided. The indictment further alleged that Ellis received
kickbacks for the referrals. After a trial by jury, Ellis was found not guilty.
17
Case: 12-20095 Document: 00512456949 Page: 18 Date Filed: 12/02/2013
No. 12-20095
In October 2010, Ellis was charged in the present case with conspiracy
under the same statute. The indictment here alleged that Ellis worked for
Family Healthcare as an LVN who provided nursing services to patients and
referred Medicare beneficiaries, in exchange for kickbacks, for the purpose of
filing fraudulent claims with Medicare for skilled nursing services that were
medically unnecessary or not provided. This time she was found guilty.
We review the double jeopardy claim de novo. United States v. El-Mezain,
664 F.3d 467, 546 (5th Cir. 2011). The Fifth Amendment “protects against a
second prosecution for the same offense after acquittal.” United States v. Levy,
803 F.2d 1390, 1393 (5th Cir. 1986) (quoting North Carolina v. Pearce, 395 U.S.
711, 717 (1969)). The issue for us “is whether there was one agreement and one
conspiracy or more than one agreement and more than one conspiracy.” El-
Mezain, 664 F.3d at 546.
First, Ellis must establish “a prima facie nonfrivolous double jeopardy
claim.” United States v. Rabhan, 628 F.3d 200, 204 (5th Cir. 2010). Ellis has
done so by the introduction of her indictment in the DME case along with
additional material in the record. Id. A nonfrivolous claim creates for the
Government the burden to prove “by a preponderance of the evidence that the
defendant has been charged in separate conspiracies.” Id.We are guided by five factors, none of which is determinative:
1) time; 2) persons acting as co-conspirators; 3) the statutory
offenses charged in the indictments; 4) the overt acts charged by the
government or any other description of the offense charged that
indicates the nature and scope of the activity that the government
sought to punish in each case; and 5) places where the events
alleged as part of the conspiracy took place.
18
Case: 12-20095 Document: 00512456949 Page: 19 Date Filed: 12/02/2013
No. 12-20095
El-Mezain, 664 F.3d at 546. Our review will explain why there were two
agreements and two conspiracies.
a. Time
An overlapping time period supports a finding that there was only one
conspiracy, particularly if that period is lengthy. Rabhan, 628 F.3d at 205.
Here, the skilled nursing conspiracy allegedly began in April 2006 and lasted
through August 2009. The DME conspiracy allegedly began in August 2007 and
ended at some point between June and October 2009. This overlap is sufficient
under Rabhan and supports that only one conspiracy existed. Id.b. Co-conspirators
“An overlap in personnel participating in the conspiracy, particularly in
key personnel, indicates a single conspiracy.” Id. When those key figures “serve
different functions for purposes of the conspiracies, it is less likely that there is
a single agreement.” El-Mezain, 664 F.3d at 547.
Ellis alleges an overlap in two key personnel: Clifford Ubani and
Princewill Njoku. Ellis argues these men were the owners of Family Healthcare
and orchestrated both the DME and skilled nursing schemes.
The DME indictment identified both men as owners and operators of
Family Healthcare, and the indictment further revealed that Princewill Njoku
was an RN. They allegedly maintained a valid Medicare provider number to
submit claims for the cost of DME, controlled the day-to-day operations, paid
kickbacks to recruiters, obtained prescriptions, submitted claims, and caused the
transfer of fraudulent proceeds.
The skilled nursing indictment identified both men as owners and
operators of Family Healthcare. It detailed that Clifford Ubani was the
19
Case: 12-20095 Document: 00512456949 Page: 20 Date Filed: 12/02/2013
No. 12-20095
company’s chief financial officer, and Princewill Njoku was an RN who
purportedly provided home health care services to referred beneficiaries.
Clifford Ubani’s role was paying kickbacks for referrals and submitting
fraudulent claims. Princewill Njoku’s role was more involved, including
falsifying patient files to make it appear beneficiaries received skilled nursing
care services that were not provided, approving plans of care that were not
medically necessary, and providing recertifications despite knowing the services
were not necessary.
Clifford Ubani testified at the DME trial that his main concentration was
on DME and he had little involvement in the skilled nursing scheme. He had
attempted to start a DME business before he got involved with Family
Healthcare. Clifford Ubani explained that, as the chief financial officer, he
signed checks when they were given to him. There was evidence suggesting that
Princewill Njoku, the RN, took the leading role in the skilled nursing scheme.
The bifurcation of responsibilities is also revealed by Princewill Njoku
becoming the owner of Family Healthcare in December 2008. Clifford Ubani
began a new company named Family DME, Incorporated, which used a different
Medicare provider number. Clifford Ubani testified that these events signified
an end to the joint venture. “I was on my own. He was on his own, too. The old
[company] was abandoned.” Evidence also showed that the companies’ records
were separate and that each used separate bank accounts.
Somewhat offsetting those facts, there was testimony showing the money
in the accounts occasionally was commingled. Both men shared some
responsibilities. The absence of complete consistency in the separation, though,
does not effectively rejoin the two schemes. Further, Clifford Ubani and
20
Case: 12-20095 Document: 00512456949 Page: 21 Date Filed: 12/02/2013
No. 12-20095
Princewill Njoku had different roles in each scheme. Adelma Sevilla testified
that both men interviewed her for employment, but she viewed Clifford Ubani
as a financial advisor and Princewill Njoku as the director of nursing. That the
two men served different functions in each scheme supports the finding that two
conspiracies existed. El-Mezain, 664 F.3d at 547.
Ellis insists there was an overlap in six less-central conspirators, namely
four recruiters (including herself) and two physicians. Testimony showed that
the four recruiters referred beneficiaries for both DME and home health care.
The two physicians certified prescriptions for both DME and home health care.4
It is relevant, though, that other co-conspirators, such as Caroline Njoku and
Ezinne Ubani, actively participated in the skilled nursing scheme but had no
apparent role in the DME scheme. The DME case involved fewer participants
and a more limited plan that included recruiting Medicare beneficiaries,
providing equipment, and submitting claims. The skilled nursing case engaged
Princewill Njoku in a different function as an RN and required the additional
work of medically trained nurses, including Caroline Njoku and Ezinne Ubani,
providing various degrees of services and representations. Although
some characters were interwoven into both schemes, such overlap in this context
does not convincingly support a contrary finding that a single conspiracy existed.
See id.
c. Statutory Offenses
Ellis was charged in both prosecutions with conspiracy under 18 U.S.C.
§ 1349 to commit health care fraud through a violation of 18 U.S.C. § 1347.
4
Clifford Ubani testified in the DME trial that 70 to 80 percent of prescriptions for
DME were signed by another physician, Dr. Hutchens.
21
Case: 12-20095 Document: 00512456949 Page: 22 Date Filed: 12/02/2013
No. 12-20095
Thus, there were not additional offenses charged in the skilled nursing
prosecution, which undermines the argument that two conspiracies existed. See
Rabhan, 628 F.3d at 207; Levy, 803 F.2d at 1395.
d. Nature and Scope of the Activity
There is some overlap in the description of the offenses charged in each
indictment. Both indictments alleged that claims were submitted to Medicare
for either equipment or services that were unnecessary or not provided to
patients. The patients were recruited through referral sources, and these
sources received remunerations in exchange for supplying the beneficiaries.
We are convinced, though, that the Government sought to punish different
activities in the skilled nursing case and in the DME case. The skilled nursing
indictment alleged additional manners and means through which the conspiracy
was accomplished. For example, as an LVN, Ellis allegedly falsified patient files
to make it appear Medicare beneficiaries qualified for services; Princewill Njoku
and Ezinne Ubani, who were RNs, allegedly falsified OASIS questionnaires to
ensure the beneficiaries qualified; the indictment also alleged they approved
recertifications and plans of care that were not medically necessary.
There was evidence in both trials of similar activities, including evidence
of Ellis’s knowledge that the paid referrals were illegal, her employment history,
and kickback checks. Evidence also shows that some patients may have been
recruited for and received both DME and home health care services. The
possible overlap, though, involves only a portion of the activity involved in both
the DME and the skilled nursing cases.
We must “review the entire record and take a commonsense approach in
determining the substance of each alleged conspiracy.” Levy, 803 F.2d at 1395.
22
Case: 12-20095 Document: 00512456949 Page: 23 Date Filed: 12/02/2013
No. 12-20095
The DME indictment focused on Ellis’s activity as a recruiter. The kickback
checks she received for the DME beneficiary referrals made up the central
evidence presented against her at trial; these checks were not admitted into
evidence in the skilled nursing trial. The skilled nursing trial involved evidence
regarding Ellis’s false nursing notes for home health care services, which were
not part of the DME trial.5 Cf. id. False medical certifications were inescapably
part of the conjunctively listed purposes in the skilled nursing indictment. For
the jury to find Ellis guilty of the charge in Count 1, it was required to find that
Ellis knew of this unlawful purpose and joined this agreement with the intent
to further that purpose. We find this activity was of a different nature and scope
than the referrals. Accordingly, this factor weighs in favor of finding two
conspiracies existed.
e. Places
The Government conceded in its response in opposition to Ellis’s motion
to dismiss the indictment that the location of the acts weigh in favor of finding
a single conspiracy. Additionally, the evidence shows that the two schemes were
conducted out of a single office in Houston and later separated by only three
5
Clifford Ubani testified at the DME trial that there were prescription forms with
check boxes that Family Healthcare’s employees generated for physicians to sign. Ana
Quinteros testified at the DME trial that recruiters would also measure patients to determine
the appropriate size of the equipment. Her testimony revealed, though, that the forms were
pre-written only for the doctors that Family Healthcare paid for their signatures. The forms
did not require the signature of a medically licensed nurse. Ellis testified that she had never
filled out such a form. In contrast, the nursing notes involved in the skilled nursing case
required documentation of patient conditions observed and treated by a medically licensed
nurse, whose representations were subsequently used to determine a patient’s need for
additional episodes of care and preserved in addition the physician’s prescription for home
health care.
23
Case: 12-20095 Document: 00512456949 Page: 24 Date Filed: 12/02/2013
No. 12-20095
office suites. This factor weighs in favor of finding one conspiracy existed.
Rabhan, 628 F.3d at 208.
In conclusion, the time, statutory offenses, and places involved suggest
that there was one agreement. Nevertheless, we hold that two agreements and
two conspiracies existed because of the separate functions that central co-
conspirators provided in each scheme and the distinctive activity that the
Government sought to punish in each case. See El-Mezain, 664 F.3d at 551. We
reject Ellis’s argument that the Double Jeopardy Clause was violated.
2. Counts 2-5
Ellis next argues that when she was acquitted of conspiracy in the DME
trial, the jury necessarily determined that she did not know her paid referrals
were illegal. The Government in the current prosecution had to prove she acted
willfully (as well as knowingly) to convict her on Counts 2 through 5. Count 2
charged Ellis with conspiracy under 18 U.S.C. § 371 for willfully receiving
remuneration in exchange for referring beneficiaries, in violation of 42 U.S.C.
§ 1320a-7b(b)(1). Counts 3 through 5 charged Ellis with willfully receiving those
remunerations in violation of Section 1320a-7b(b)(1). The jury instructions
defined the word “willfully” to mean “with the intent to do something the law
forbids; that is with the bad purpose to disobey or disregard the law.” Thus,
Ellis argues that if the jury in the DME trial necessarily determined that she did
not intend to do an act the law forbids, the Fifth Amendment prohibits the
Government from prosecuting on Counts 2 through 5 in the present case. We
review Ellis’s argument de novo. El-Mezain, 664 F.3d at 551.
In a criminal case, the Double Jeopardy Clause will “bar a subsequent
prosecution if one of the facts necessarily determined in the former trial is an
24
Case: 12-20095 Document: 00512456949 Page: 25 Date Filed: 12/02/2013
No. 12-20095
essential element of the subsequent prosecution.” United States v. Sarabia, 661
F.3d 225, 229 (5th Cir. 2011). Ellis has the burden to demonstrate that whether
she knew her conduct was unlawful was a fact that the jury necessarily had to
decide in finding her not guilty. See id. at 229-30. We review the record of the
prior trial to determine “whether a rational jury could have grounded its verdict
upon an issue other than that which the defendant seeks to foreclose from
consideration.” Id. at 230.
The indictment in the DME case charged Ellis with conspiracy to commit
health care fraud under 18 U.S.C. § 1349. The jury was instructed that in order
to find Ellis guilty, there must have been: (1) an agreement to commit health
care fraud; (2) Ellis knew of the unlawful purpose of that agreement; (3) joined
in it willfully; (4) with the intent to further that purpose. The indictment
explained that the purpose of the conspiracy was the unlawful enrichment of the
participants by submitting and concealing false claims to Medicare, receiving the
proceeds, and diverting them for personal use. The jury instructions further
defined “willfully” to mean “with the specific intent to do something the law
forbids; that is to say, with bad purpose either to disobey or disregard the law.”
We accept for the sake of argument that the evidence in the DME case
conclusively established an agreement existed. We focus on Ellis’s contention
that the jury necessarily determined she did not know her conduct was unlawful.
At the DME trial, the Government presented evidence that Ellis cashed
checks from Family Healthcare which referenced durable medical equipment,
specifically arthritis kits. An FBI agent testified that Ellis admitted she knew
her paid referrals were unlawful. In her own defense, Ellis testified that Clifford
Ubani and Princewill Njoku described these payments as bonuses and part of an
25
Case: 12-20095 Document: 00512456949 Page: 26 Date Filed: 12/02/2013
No. 12-20095
incentive program. She stated that Clifford Ubani called a meeting and
informed the employees that the company would begin offering arthritis kits to
patients. Ellis further testified that she did not know that Family Healthcare
was engaged in illegal conduct with regard to the arthritis kits and never filled
out a prescription form for DME. Clifford Ubani testified that Ellis was a bona
fide employee who was paid a salary for her skilled nursing services. He also
said that he never discussed with Ellis that it was illegal for her to be paid in
exchange for making referrals, and he did not explain to her how Family
Healthcare generated income. At closing arguments, Ellis’s counsel pointed out
to the jury that the evidence revealed no document that contained Ellis’s
handwriting or signature. The jury found Ellis not guilty.
According to the record, there were two forms of intent that had to be
proven in the DME trial: (1) intent to do something the law forbids and (2) intent
to further the unlawful purpose of the conspiracy, which included the submission
and concealment of false claims to Medicare. Jurors could have believed the
testimony showing she did not know her paid referrals were illegal. The jury
could have also found she knew her paid referrals were unlawful but believed
she did not know about the fraudulent claims submitted for DME or that she did
not intend to further the unlawful purpose as charged in the indictment.
Because our inquiry is to determine what the jury “must have decided,” Ellis has
failed to show she was twice put in jeopardy because of this subsequent
prosecution. Id. at 232.
D. Former Testimony
Ellis argues the district court erred in excluding portions of Clifford
Ubani’s former testimony. Although Clifford Ubani testified in the DME trial,
26
Case: 12-20095 Document: 00512456949 Page: 27 Date Filed: 12/02/2013
No. 12-20095
in the present case the court sustained his invocation of the right against self-
incrimination. On the seventh day of trial, the district court asked for a definite
list of which parts of the DME transcript Ellis sought to admit. Ellis provided
line numbers from the transcript that totaled 22 pages of testimony. After
hearing the parties arguments and reviewing the excerpts, the district court
ruled against the admission of the evidence because it did not meet an exception
to the rule against the admission of hearsay. FED. R. EVID. 802. Alternatively,
the court determined that the probative value of the testimony was weak and
that the dangers of confusing the issues and wasting time substantially
outweighed that probative value. FED. R. EVID. 403.
We review the district court’s decision to exclude the evidence for an abuse
of discretion. See United States v. Saldana, 427 F.3d 298, 306 (5th Cir. 2005).
We do not decide whether the former testimony was admissible under the rules
of hearsay because Ellis fails to show that the district court abused its discretion
in alternatively excluding the evidence on relevancy grounds. See id. at 307.
The first selected portions of Clifford Ubani’s testimony revealed general
information about Family Healthcare and his position there. Next, Clifford
Ubani explained that Ellis was employed as a skilled nurse and that at the time
Ellis was hired, on July 7, 2006, Family Healthcare was not yet engaged in
distributing DME. Clifford Ubani said that on the date Ellis was hired, he did
not explain to her how the company generated income, did not believe the
company’s actions were illegal, and did not have a conversation with Ellis about
the legality of Family Healthcare’s operations. He testified that the company
used two different checking accounts to split the money involved in skilled
nursing and DME. After counsel inquired about a check written to Ellis for
27
Case: 12-20095 Document: 00512456949 Page: 28 Date Filed: 12/02/2013
No. 12-20095
“marketing material,” Clifford Ubani revealed that money was occasionally
commingled between the accounts. He stated that the marketing efforts were
legal. When counsel asked whether Ellis ever agreed with him to do something
illegal, Clifford Ubani said “No.” Finally, he testified that Ellis was paid bonuses
before the company opened the DME company.
On appeal, Ellis alleges the central issue in her trial was whether she
willfully agreed to a scheme to defraud Medicare. In her argument for
admissibility under the residual hearsay exception, Federal Rule of Evidence
807, Ellis contends the probative value of Clifford Ubani’s statement that he
never agreed with Ellis to do something unlawful was high. Ellis’s extensive
experience in nursing and the FBI agent’s testimony supported a finding that
she knew her paid referrals were unlawful. Ellis’s testimony, on the other hand,
denied any knowledge. Thus, supportive testimony from Clifford Ubani would
have had some probative value, particularly for the time period after Ellis began
working for Family Healthcare in 2006 and before DME sales began in 2007.
But this is only part of the relevance inquiry.
Ellis contends that there was nothing misleading about Clifford Ubani’s
testimony that he had not discussed unlawful activity with Ellis. In the first
part of the selected testimony, counsel asked Clifford Ubani whether he had a
conversation with Ellis on July 7, 2006 about engaging in illegal activity. He
said, “No.” What is missing from Ellis’s selected portion of the evidence is
Clifford Ubani’s testimony that he did not usually hire nurses by himself and
that he knew Ellis had been hired because Princewill Njoku told him about it.
Counsel repeatedly focused on the specific date Ellis was hired in eliciting
Clifford Ubani’s response, despite the other evidence, which Ellis did not
28
Case: 12-20095 Document: 00512456949 Page: 29 Date Filed: 12/02/2013
No. 12-20095
ultimately select for admission, showing Clifford Ubani may not have personally
hired Ellis.
The second reference in Clifford Ubani’s testimony to the absence of an
unlawful agreement appears later in the transcript. Clifford Ubani’s testimony
had shown that Ellis was hired at Family Healthcare in 2006. Counsel then
turned the questioning to the time period in 2007 when the company began
distributing DME. Counsel asked whether the same account used to pay
employees in 2006 was used to pay through 2008. Clifford Ubani explained that
two separate checking accounts existed, one for skilled nursing and one for DME.
He later clarified that, if necessary, the money would be commingled.
Immediately after discussing the subject of a check for “marketing material,”
counsel said, “So, when, in your mind, was there an agreement made with Mary
Ellis? Did y’all discuss, saying ‘We’re going to do something illegal. This is
wrong, but we’re going to do it anyway?’ Did she ever agree with you to do
something illegal?” Clifford Ubani responded, “No.”
The potentially confusing aspect of this excerpt is the ambiguity as to what
activity the statement refers. Thus, the elicited affirmance that Clifford Ubani
did not “ever” have an agreement with Ellis may be taken out of context if the
testimony discussed referrals for DME, which were outside the scope of the
present indictment.
Accordingly, the district court’s concern was reasonable that the admission
of this selected testimony would require additional evidence and risk having the
jury decide an essential element on an impermissible basis. There was in fact
some parts of the prior testimony that were misleading or confusing. We will not
disturb the district court’s discretionary ruling.
29
Case: 12-20095 Document: 00512456949 Page: 30 Date Filed: 12/02/2013
No. 12-20095
E. The Right to Present a Complete Defense
Ellis argues that the district court’s exclusion of Clifford Ubani’s former
testimony violated her constitutional right to present a complete defense. This
court reviews Sixth Amendment claims de novo, and evidentiary rulings for
abuse of discretion. United States v. Templeton, 624 F.3d 215, 223 (5th Cir.
2010).
The Sixth Amendment right to present a complete defense may be violated
by “evidence rules that infringe upon a weighty interest of the accused and are
arbitrary or disproportionate to the purposes they are designed to serve.”
Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (quotation marks omitted).
Even so, “well-established rules of evidence permit trial judges to exclude
evidence if its probative value is outweighed by certain other factors such as
unfair prejudice, confusion of the issues, or potential to mislead the jury.” Id. at
326. Because one of the reasons the district court excluded the former testimony
was that its probative value was substantially outweighed by the potential to
mislead, we reject the contention that any constitutional rights were violated.
See United States v. Eff, 524 F.3d 712, 720 (5th Cir. 2008).
F. Sentencing
1. Mary Ellis
Ellis contends the district court erred in calculating her offense level at
sentencing. In considering her argument, “we review the district court’s factual
findings for clear error and its interpretation of the Guidelines de novo.”
Mauskar, 557 F.3d at 232.
At sentencing, the district court applied an enhancement under U.S.S.G.
§ 2B1.1(b)(1)(H) (2011) based on an attributable loss of more than $400,000.
30
Case: 12-20095 Document: 00512456949 Page: 31 Date Filed: 12/02/2013
No. 12-20095
Ellis objected. She argues on appeal that the evidence did not support a finding
that she subjectively intended to cause such a loss and that the loss was not
based on her conduct.
Commentary to Section 2B1.1 states that the “loss is the greater of actual
loss or intended loss.” § 2B1.1 cmt. n.3(A). Given the arguments at sentencing
and the court’s stated determinations, we examine the “actual loss,” which is
“the reasonably foreseeable pecuniary harm that resulted from the offense.”
U.S.S.G. § 2B1.1 cmt. n.3(A)(i). Actual loss requires a causal connection in fact,
that is, a finding that Ellis truly caused the loss. See United States v. Olis, 429
F.3d 540, 545-46 (5th Cir. 2005). The district court “need only make a
reasonable estimate of the loss.” § 2B1.1 cmt. n.3(C). The court “is entitled to
find by a preponderance of the evidence all the facts relevant to the
determination of a Guideline sentencing range.” Mauskar, 557 F.3d at 234.
The district court estimated that the loss attributable to Ellis was
$401,000. At sentencing, the Government initially contended the loss was
$1,025,899.87 and presented an exhibit which listed beneficiaries for whom Ellis
had prepared at least one nursing note and the amount billed to Medicare for
each patient. Ellis objected, arguing that she did not know at least 12 of the
patients on the exhibit. She also contended the total was $131,000 based on the
patients she admitted to referring, which would have resulted in a reduced
enhancement. See § 2B1.1(b)(1). The court was persuaded that the Government
could prove at least $400,000 in loss because the evidence showed that Ellis
provided skilled nursing services in addition to the referrals of patients who did
not need those services and were recruited instead of referred by physicians.
Additionally, the Government directed the court to Trial Exhibit 47, which was
31
Case: 12-20095 Document: 00512456949 Page: 32 Date Filed: 12/02/2013
No. 12-20095
a summary exhibit of Ellis’s patients and their respective recertifications,
Medicare claim amounts, and certifying physicians. The total of these claims
was $760,551.66. Agent Harshaw testified that a person under his direction
created Trial Exhibit 47 based on claims data, referrals sheets located on the
computer, and the filed face sheets. Agent Harshaw also stated that he created
a related exhibit which was admitted and revealed the same amount based on
the claims data he personally reviewed during his investigation.
Ellis presented exhibits to show contradictions in the initial summary
exhibit the Government presented. She also presented a list of 26 patients who
Adelma Sevilla believed were not homebound. Finally, Ellis narrowed the
Government’s list of patients and claims down to those associated with Dr.
Echols, who arguably was more clearly involved in the fraud. The district court
considered the evidence and ultimately assessed the loss at $401,000. The court
found the Government’s records more reliable than Ellis’s recollection and based
its decision on the presented exhibits, including Ellis’s referral list, patient list,
and logs of patient care admitted at trial.
On appeal, Ellis argues the district court did not consider evidence that
contradicted the Government’s evidence that Ellis was a referral source for all
of the patients in the first sentencing exhibit. At trial, though, Agent Harshaw
testified that there could be more than one referral source based on his review
of the evidence. Ellis next argues that she did not recall at least twelve of the
patients on the Government’s exhibit, but she has not shown clear error in the
district court’s explicit credibility finding. Third, Ellis contends that some
patients had prescriptions for home health care, but Agent Harshaw testified
that out of the hundreds of patient files he reviewed, only three or four had
32
Case: 12-20095 Document: 00512456949 Page: 33 Date Filed: 12/02/2013
No. 12-20095
prescriptions. Thus, this contention does not sufficiently alter the loss
calculation for us to determine there was clear error in the factual findings.
Further, Ellis contends that some patients were not homebound and that
the court did not distinguish between legitimate nursing visits and illegitimate
ones. She also argues her skilled nursing services were provided after
beneficiaries had received plans of care, which means Medicare would have
already paid a percentage of the claims under the bifurcated payment system.
As the district court reasoned, though, a central idea of this scheme was to
generate sources of income: Medicare beneficiaries. The claims analyst, who
had also worked as a nurse, testified at trial that a physician’s prescription was
required before home health care could be initiated. Although evaluations could
be conducted before that prescription was written, that was not the general
practice according to her experience. In fact, almost all referrals came from
treating physicians. Here, Agent Harshaw’s testimony provided evidence that
only three or four patients had prescriptions.
Ellis’s skilled nursing services were also important to the scheme.
Evidence shows that Ubani was the RN for many patients for whom Ellis was
listed as the LVN. Ana Quinteros testified at trial that Ellis did not provide all
of the skilled nursing services she reported and that OASIS questionnaires were
signed by Ubani without her having seen the patients. In fact, the OASIS
questionnaire would be blank, signed by the patient, and subsequently
completed to obtain a physician’s signature and permit the Medicare claim.
Thus, the inquiry does not turn on whether each patient ultimately was
not homebound or in need of skilled nursing services because evidence proved
that Ellis engaged in conspiracies to commit health care fraud and receive
33
Case: 12-20095 Document: 00512456949 Page: 34 Date Filed: 12/02/2013
No. 12-20095
kickbacks in exchange for referrals, which ultimately resulted in payments by
Medicare. This conduct is prohibited. Her recruitment and nursing activities
provided direct causal links to the claims and pecuniary harm as she referred
patients who did not have prescriptions and falsified her nursing notes, which
were used in the process of generating plans of care and subsequent
recertifications. Ellis’s position at Family Healthcare and relationships with co-
workers and patients ensure that the losses she caused were reasonably
foreseeable. The Government presented reliable evidence to prove it was more
likely than not that Ellis was accountable for over $700,000 in Medicare claims
related to the conspiracies. The district court took into consideration her
contrary evidence but remained unpersuaded that she was accountable for less
than $400,000. Ellis has not shown on appeal that the findings were clearly
erroneous or that the court misapplied the law. Accordingly, her argument that
her sentence should be vacated is rejected.
2. Ezinne Ubani
Ubani argues the district court erroneously calculated her offense level at
sentencing. We review the court’s factual findings for clear error and its
interpretation of the Sentencing Guidelines de novo. United States v. Miller, 607
F.3d 144, 147 (5th Cir. 2010). Findings are upheld if they are “plausible in light
of the record as a whole.” Id. at 148.
Ubani objected to the application of two sentencing enhancements: one
two-level increase for her role in the offense as a manger or supervisor and
another two-level increase for an abuse of trust. At sentencing, the district court
overruled both objections after hearing arguments and reviewing the evidence.
34
Case: 12-20095 Document: 00512456949 Page: 35 Date Filed: 12/02/2013
No. 12-20095
We first address Section 3B1.1(c), which provides for a two-level increase
in the offense level if the defendant was a manager or supervisor. The district
court relied on documentation showing Ubani held herself out as a person who
coordinated and oversaw patient services and beneficiary assessments. The
court also relied on evidence that showed Ubani assumed Princewill Njoku’s
administrative duties in his absence. Finally, the court acknowledged one
witness’s testimony that she reported to Ubani while working as a recruiter.
Ubani argues the evidence showed that she was an RN who merely worked
under the direction of Clifford Ubani and Prinecwill Njoku and evidence of any
managerial role was insufficient. We disagree. Agent Harshaw testified that
both the articles of incorporation for Family Healthcare and its Medicare
provider application listed Ubani as a director/officer of the company. He also
discovered her resume during the investigation, which stated that her job
responsibilities at Family Healthcare included coordinating and overseeing all
patient services provided by agency personnel. It also revealed that she
assumed the duties of administrator in Princewill Njoku’s absence. A form
submitted to the Texas Department of Disability and Aging listed Ubani as
Family Healthcare’s director of nursing. Ubani suggests in her argument that
the documentation reflected a period of time outside of the scope of the
indictment, but Agent Harshaw’s evidence shows otherwise, revealing a form
dated November 20, 2007, which showed Ubani was still a delegated official to
act on the company’s behalf.
Further, the testimony of others who worked with Ubani supported the
court’s finding that Ubani took on a supervisory role. Even if we did find error,
it would be harmless because the district court explicitly stated that it would
35
Case: 12-20095 Document: 00512456949 Page: 36 Date Filed: 12/02/2013
No. 12-20095
give the same sentence even if the enhancement did not apply. United States v.
Richardson, 676 F.3d 491, 511-12 (5th Cir. 2012).
We next discuss Section 3B1.3, which provides for a two-level
enhancement if Ubani abused a position of trust. This trust “refers to a position
of public or private trust characterized by professional or managerial discretion
(i.e., substantial discretionary judgment that is ordinarily given considerable
deference).” § 3B1.3 cmt. 1. Such individuals generally have less supervision
than other employees. Id. The person’s position “must have contributed in some
significant way to facilitating the commission or concealment of the offense.” Id.
The district court determined that Medicare invests an important trust in RNs
who complete OASIS questionnaires and certify plans of care for the initial
episodes of care and the recertifications, which the court stated was the center
of Ubani’s activity.
Ubani contends that because she did not exercise supervisory discretion
in her role, her position as a registered nurse is insufficient for the enhancement
to apply. We have found, though, that the evidence did show Ubani was, in fact,
acting as a supervisor over other employees.
In addition, Cynthia Garza-Williams testified that she would take blank
OASIS forms to patients for their signatures. She explained that she would
bring the forms back to the office where Ubani would fill in information without
having seen the patients and then certify the assessments as an RN. Plans of
care were taken to Dr. Echols, who was paid for his certifications. Garza-
Williams testified that Dr. Echols would sign whatever was given to him. The
testimony from the claims analyst and agent Harshaw show that Medicare relied
on the representations made by physicians and RNs, and under this described
36
Case: 12-20095 Document: 00512456949 Page: 37 Date Filed: 12/02/2013
No. 12-20095
scheme, Ubani essentially made the determination that specific patients
qualified for home health care. Accordingly, the enhancement under Section
3B1.3 was proper. Miller, 607 F.3d at 149.
3. Caroline Njoku
The district court’s oral pronouncement of Njoku’s sentence on Count 2
was 60 months’ imprisonment. The written judgment provides for a sentence of
63 months. When “there is any variation between the oral and written
pronouncements of sentence, the oral sentence prevails.” United States v.
Martinez, 250 F.3d 941, 942 (5th Cir. 2001). We will remand so that the district
court may amend its written judgment to conform to its oral sentence.
We REMAND for the district court to amend Njoku’s written judgment to
conform to her oral sentence. In all other respects, we AFFIRM the district
court’s judgment.
37