United States v. Jacqueline Wheeler , 753 F.3d 200 ( 2014 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 21, 2013 Decided May 23, 2014
No. 12-3094
UNITED STATES OF AMERICA,
APPELLEE
v.
JACQUELINE L. WHEELER,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:11-cr-00151-1)
Steven N. Herman argued the cause for appellant. With
him on the brief was Steven M. Salky.
Katherine M. Kelly, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Ronald C.
Machen Jr., U.S. Attorney, and Elizabeth Trosman and
Elizabeth H. Danello, Assistant U.S. Attorneys.
Before: HENDERSON, BROWN and GRIFFITH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
2
GRIFFITH, Circuit Judge: A jury found that Dr. Jacqueline
Wheeler, the owner of a medical clinic in Washington, D.C.,
fraudulently collected millions of dollars from Medicaid for
procedures that were never performed. The district court
imposed a substantial prison sentence and ordered Wheeler to
forfeit those funds. On appeal, Wheeler challenges both her
conviction and sentence. We reject her arguments and affirm
the district court.
I
Wheeler owned and managed the Health Advocacy
Center, a clinic that treated Medicaid patients. Between
January 2006 and April 2008, Wheeler, who was wholly
responsible for all of the Center’s medical billing, submitted
bills to Medicaid for more than $8 million in treatment
allegedly provided. Medicaid paid the Center roughly $3.5
million on those bills, $3.1 million of which was for massage
treatments.
Acting on a tip that the Center was cheating Medicaid,
the Inspector General of the U.S. Department of Health and
Human Services began an investigation in 2008. The FBI and
Medicaid’s Fraud Control Unit soon joined the effort.
Investigators easily concluded that many of the Center’s bills
to Medicaid were false. For example, several bills claimed
that the Center had given more than twenty-four hours of
massage therapy to a single patient on a single day. Others
reported hundreds of hours of massage therapy for days when
only one therapist was on staff. Some sought payment for the
treatment of patients hospitalized elsewhere.
An investigator visited the Center in late 2008, but
Wheeler turned her away. The investigator threatened to
return. That night, Wheeler called Acquinette Robinson, a
3
Center employee, at 4:00 a.m. and asked for help moving files
from the clinic to Wheeler’s home. Were the files not moved
immediately, Wheeler warned her, all of the Center’s
employees would soon lose their jobs. Robinson refused, and
Wheeler moved the files herself. FBI agents obtained
warrants and searched the Center and Wheeler’s home on
February 18, 2009, seizing documents from both locations.
On May 13, 2011, a grand jury indicted Wheeler on one
count of healthcare fraud under 18 U.S.C. § 1347 and
numerous counts of making false statements relating to
healthcare matters under 18 U.S.C. § 1035. The primary battle
during the eight-day trial that followed was waged over
whether the billings submitted by Wheeler were intentionally
false. The government sought to show that they were,
asserting that Wheeler used her ill-gotten gains to finance a
lavish lifestyle, and highlighting her middle-of-the-night plea
for help moving files in the wake of the rebuffed
investigator’s threatened return. Wheeler, on the other hand,
claimed that she had inadvertently inflated the Center’s bills
for massage therapy fifteen-fold by misunderstanding
Medicaid’s billing protocols. Those protocols measured time
of treatment in units of fifteen minutes. Wheeler claimed that
she thought each unit was a single minute, not fifteen.
Stressing that the Center was poorly managed and
disorganized, she asserted that her oversight of this detail was
understandable.
The jury returned guilty verdicts against Wheeler on all
counts. She moved for acquittal, arguing that the government
had offered insufficient evidence of intent, and for a new trial,
contending that some of the statements and argument at trial
had impermissibly prejudiced her. The district court denied
Wheeler’s motions and sentenced her to concurrent sentences
of seventy-five months’ imprisonment on the healthcare fraud
4
count and sixty months on the false statements counts. The
court also ordered restitution to Medicaid of the
approximately $3.1 million paid on bills for massage therapy.
Wheeler appeals, asserting various evidentiary and
sentencing errors by the district court. We have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
II
Wheeler challenges four of the district court’s evidentiary
rulings. We affirm each under an abuse of discretion standard.
See United States v. Foster, 557 F.3d 650, 654-55 (D.C. Cir.
2009) (evidentiary rulings are reviewed for abuse of
discretion); United States v. Lin, 101 F.3d 760, 767-68 (D.C.
Cir. 1996).
A
Wheeler argues that the limitations the district court
placed on the cross-examination of Health and Human
Services investigator Latonya Coates violated the
Confrontation Clause of the Sixth Amendment. We disagree.
On direct examination, Coates testified that she had
reviewed all of the documents seized from the Center and
Wheeler’s home and that none of them offered any support
for the Medicaid bills listed in the indictment. Before
beginning cross-examination, Wheeler’s counsel sought the
admission of some of the seized documents called
“superbills.” The record does not reveal who created the
superbills or how they were named or used. Nevertheless,
Wheeler’s counsel argued that the superbills would show that
there was support for the bills Wheeler had submitted. But it
was not readily apparent to the court how the superbills,
5
which were confusing on their face, were connected to these
bills. The superbills were forms with “superbill” printed at the
top. Below spaces for handwritten names and dates, there
were printed acronyms, abbreviations, and phrases such as
“NMS,” “ADL,” “Cryo,” and “Joint Mobilization.” On some
of the superbills, handwritten numbers had been entered next
to some of these acronyms, abbreviations, and phrases. The
district court ruled that Wheeler’s counsel could use only
those superbills that he could show were tied directly to the
bills mentioned in the indictment.
On cross-examination, Coates confirmed that she had
reviewed all of the seized files and stood by her testimony
that she had seen no documents supporting the bills listed in
the indictment. But then she went further, claiming that there
was no support for any of the bills that the Center had
submitted to Medicaid and not just those referred to in the
indictment. Seizing upon this expansion of her testimony,
Wheeler’s lawyer asked the district court to remove the
restriction it had placed on his cross-examination, presumably
so that he could try to show that some of the superbills were
related to Medicaid bills not listed in the indictment. The
court refused on the ground that using the superbills might
confuse the jury. In line with the cross-examination limitation
that the district court had imposed, Wheeler’s lawyer showed
Coates two superbills that bore the same dates as two of the
Medicaid bills specified in the indictment and pointed out to
her that some of the handwritten numbers on those superbills
could be added together to equal the number of units of
treatment billed to Medicaid for those days. Coates
acknowledged the possibility that properly understood, the
superbills might support the Medicaid bills, but that she could
make no sense of them and found them highly confusing. At
this point, the court cut off the cross-examination, noting that
6
Wheeler’s counsel was free to put on his own witness to
testify about how the superbills were used in billing.
In Wheeler’s view, requiring her lawyer to limit his
cross-examination of Coates in these ways cut off a line of
questioning that would have allowed him to undermine even
more fully Coates’s testimony. Although Wheeler may be
right that cross-examination would have been more effective
without these limitations, they did not run afoul of the
Confrontation Clause, which is generally satisfied as long as
“defense counsel is able to elicit enough information to allow
a discriminating appraisal of [a] witness’s credibility,” United
States v. George, 532 F.3d 933, 936 (D.C. Cir. 2008) (internal
quotation marks omitted), leaving trial judges with broad
discretion to impose “reasonable limits” on cross-
examination, see Delaware v. Van Arsdall, 475 U.S. 673, 679
(1986). “The central question is whether the jury would have
received a significantly different impression of the witness’s
credibility had defense counsel been permitted to pursue” the
line of questioning disallowed by the district court. George,
532 F.3d at 936 (internal quotation marks omitted).
In fact, the cross-examination of Coates was quite
effective. Not only was Wheeler’s lawyer able to show that
the superbills might provide some support for the Center’s
bills, but he established that Coates did not understand the
superbills at all, undermining her testimony that there was
nothing in them that was helpful to Wheeler. Additional
cross-examination of Coates using other superbills was not
needed. The Confrontation Clause does not require a trial
court to permit piling on. See Van Arsdall, 475 U.S. at 679
(“[T]rial judges retain wide latitude insofar as the
Confrontation Clause is concerned to impose reasonable
limits on . . . cross-examination based on concerns about,
among other things, . . . interrogation that is repetitive or only
7
marginally relevant.”); see also George, 532 F.3d at 935-36.
Wheeler contends that additional cross-examination would
not have been merely repetitive. It would have allowed her to
bolster the story that she mistook “units” for minutes. But she
is wrong. As the district court recognized, Wheeler’s counsel
needed to put on a witness who understood the superbills to
prove that story. Coates, who had already conceded that she
did not comprehend them, was not that witness.
B
Wheeler also sought to admit the superbills into evidence
to show that the errors in the bills she submitted to Medicaid
were the result of carelessness, not fraud. Over Wheeler’s
objection, the district court held that she could only use the
superbills as evidence of her state of mind if she first provided
a foundation demonstrating that she had actually relied on
them in billing. Wheeler argues that the government’s
stipulation that the superbills were seized during the searches
of her home and the Center laid that foundation. But
establishing where they were found tells us nothing about
whether they were even used in billing. It was no abuse of
discretion to require Wheeler to show that the superbills
played some part in the creation of the Medicaid bills. See
FED. R. EVID. 104(b) (“When the relevance of evidence
depends on whether a fact exists, proof must be introduced
sufficient to support a finding that the fact does exist.”);
United States v. Burnett, 890 F.2d 1233, 1240 (D.C. Cir.
1989).
Equally unavailing is Wheeler’s suggestion that Coates’s
testimony that she reviewed the superbills somehow
established that they were admissible for all purposes. Cf.
FED. R. EVID. 105 (contemplating that evidence may be
admissible for one purpose without being admissible for all
8
others). Even though we need not reach this particular
argument because Wheeler raised it for the first time in her
reply brief, see Cronin v. FAA, 73 F.3d 1126, 1134 (D.C. Cir.
1996), we fail to see how Coates’s testimony is helpful to
Wheeler. Coates never worked at the Center. She knew
nothing about the superbills or the manner in which they had
been generated, let alone how they might have been used by
the Center.
C
Wheeler faults the district court for refusing to declare a
mistrial because of a number of allegedly prejudicial
comments made during the trial. We find no abuse of
discretion.
Keeping in mind that “[a] mistrial is a severe remedy—a
step to be avoided whenever possible, and one to be taken
only in circumstances manifesting a necessity therefor,” we
look at whether the comments were likely to harm the
defendant, the steps taken by the court to mitigate that harm,
and the likelihood that conviction would have resulted
anyway. Foster, 557 F.3d at 655 (internal quotation marks
omitted); United States v. Gartmon, 146 F.3d 1015, 1026
(D.C. Cir. 1998). Even where a comment has the potential to
prejudice the defendant, we give significant weight to the
district court’s decision to provide a “curative instruction” and
“normally presume that a jury will follow an instruction to
disregard” a prejudicial comment “unless there is an
overwhelming probability that the jury will be unable to
follow the court’s instruction[] and a strong likelihood that the
effect of the evidence would be devastating to the defendant.”
Foster, 557 F.3d at 656 (internal quotation marks omitted).
9
Wheeler first points to a statement from Michael Kirk,
the Center’s office manager. Kirk testified that Wheeler
would frequently submit bills on her computer while he
worked nearby. When the prosecutor asked what work Kirk
did at the Center, he responded: “Document forgery. Taking
checks, scanning them. Wiping information out so that it
could be used for whatever purposes [Wheeler] needed it.”
This accusation of malfeasance was unexpected by the
prosecutor and unrelated to the charges Wheeler faced. The
prosecutor immediately asked to approach the bench, the
court excused the jury, and Wheeler moved for a mistrial. In
response to the trial judge’s expression of significant
displeasure, the prosecutor explained that he had hoped to
show by his question that Wheeler alone performed billing
activities and that Kirk used his computer for scheduling.
Satisfied, the court declined to declare a mistrial. When the
jurors returned, the judge told them that she was striking from
the record Kirk’s comment about document alteration: “[P]ut
it out of your mind. It has nothing to do with this case. It’s
irrelevant. There’s no basis for having it be in this case. And
that means it can’t be thought about, can’t be discussed, it’s
out. You got it?”
Kirk’s suggestion that Wheeler was pervasively involved
in criminal activities was no doubt potentially prejudicial. Cf.
FED. R. EVID. 404(b). But the comment was brief, and,
viewed in context, less harmful to Wheeler than she
maintains. Cf. United States v. Venable, 269 F.3d 1086, 1090
(D.C. Cir. 2001) (explaining that the prejudicial impact of
comments should be assessed in context). Kirk had already
testified that Wheeler owed him money, that he was “angry,”
“hurt,” and “upset” with Wheeler because he had “busted
[his] butt and . . . [given his] life and [his] marriage to [his]
job for her.” It was apparent to the jury that Kirk had ample
reason to cast Wheeler in a bad light. In fact, Wheeler’s
10
counsel highlighted Kirk’s bias during closing argument,
contending that he had a strong motive to fabricate his
testimony about her. More importantly, the district court
immediately struck Kirk’s statement from the record and
admonished the jury to disregard it in strong terms.
Finally, it is highly unlikely that Kirk’s accusation was a
significant factor in the jury’s determination. Wheeler would
have been convicted in any event. The prosecution put on
overwhelming evidence that Wheeler alone was responsible
for all billing and that many of the bills she submitted to
Medicaid were simply false. And her middle-of-the-night plea
for help transferring files from the Center to her home added
significant circumstantial evidence that she knew a search of
the files would show the bills were fraudulent. Compare
United States v. Eccleston, 961 F.2d 955, 961-62 (D.C. Cir.
1992) (concluding that a mistrial should have been declared
where the improperly admitted testimony was the only thing
directly tying the defendant to the crime).
Wheeler points next to the prosecutor’s closing argument.
Referring to the explanation of an expert witness that thirty
percent of Medicaid payments come from local taxes and
seventy percent from federal taxes, the prosecutor declared,
“A hundred percent . . . [came] from hardworking taxpayers.”
That money, he continued, was “never intended to pay for
Jacqueline Wheeler’s million-dollar house in Chevy Chase,
Maryland,” her “purchase [of] beachfront property in . . .
Florida,” or “employees to go to her house . . . to do her hair,
her mother’s hair, to cook for her.” Defense counsel objected
immediately and in a sidebar contended that this line of
argument warranted a mistrial. Acknowledging that the
comments were a “little inflammatory,” the district court did
not declare a mistrial, but warned the prosecutor that he
“better be careful.” The next morning, Wheeler’s counsel
11
announced that he had a curative jury instruction the court
should use. The court did so, telling the jury that it was
“entirely improper for you to consider the fact that Medicaid
is indirectly funded by the taxpayer and I instruct you that you
cannot consider this in any way, and the reference in the
closing to taxpayers is stricken.”
To be sure, the prosecutor’s statement posed some risk of
inflaming the jurors by suggesting that taxpayers (including,
by implication, them) were the victims of Wheeler’s fraud.
But the district court gave a strong, curative instruction,
which we must presume that the jury followed, Foster, 557
F.3d at 656, and, once again, the significant evidence of
Wheeler’s guilt swamped any possible problem the
instruction may not have addressed.
D
Wheeler argues that the testimony of Dr. Sheila Jones, a
gerontologist who did work at the Center, provides yet
another ground to argue that the jury was unfairly prejudiced.
For reasons that are unclear, the prosecutor asked Jones a
series of questions about the Center’s developmentally-
disabled patients. Jones testified that the Center was the
“custodian” of monthly living stipends Social Security sent
directly to the Center as the “representative payee” of these
patients. From these funds, the Center took care of the
housing and daily living needs of these patients, such as
making sure they took their medications and ensuring that
their apartments were clean and stocked with food.
Apparently wanting to clarify that the Center’s use of those
funds was not at issue, the district court asked for
confirmation from Jones that the money was in fact used for
the care of these patients. Unexpectedly, Jones answered
“no.” Surprised, the court immediately dismissed the jury. To
12
the parties, the court expressed concern that Jones might have
suggested that Wheeler was pocketing the stipends. Jones
assured the court that she had no idea how the money was
spent. Upon the jury’s return, the court instructed the jurors,
“there’s no suggestion there’s been any impropriety regarding
any of” the living stipends and cautioned that “the money is
not at issue in this case, and I didn’t want you to think from
my questions that I was raising any problem here.”
At the time, Wheeler did not object to the instruction or
ask for a mistrial. After the jury returned its verdict, however,
Wheeler moved for a new trial, arguing that she was unfairly
prejudiced by the cumulative impact of Jones’s testimony,
Kirk’s misstep, and the prosecutor’s overreach. The district
court denied that motion.
Trial courts enjoy broad discretion in ruling on a motion
for a new trial. See Gaither v. United States, 413 F.2d 1061,
1078 (D.C. Cir. 1969) (explaining that this discretion extends
to both the trial court’s “actual decision” and “what [it]
considers before making that decision”). Federal Rule of
Criminal Procedure 33(a) instructs that “the court may vacate
any judgment and grant a new trial if the interest of justice so
requires.” See FED. R. CRIM. P. 33(a) (emphasis added). The
rules do “not define ‘interests of justice’” and “courts have
had little success in trying to generalize its meaning.” United
States v. Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989). We have
held that granting a new trial motion is warranted only in
those limited circumstances where “a serious miscarriage of
justice may have occurred.” United States v. Rogers, 918 F.2d
207, 213 (D.C. Cir. 1990) (internal quotation marks omitted).
Once again, as it did in rejecting Wheeler’s motions of
mistrial, the district court recognized that any improper
prejudice from Jones’s comments, whether standing alone or
13
in combination with the others, was cabined by the court’s
curative instructions and overwhelmed by the evidence of
Wheeler’s guilt. We see no basis to disturb the district court’s
discretionary assessment.
III
A
Wheeler’s first challenge to her sentence invokes the
Double Jeopardy Clause, which she argues the district court
violated by sentencing her under separate criminal statutes for
the same conduct. Reviewing Wheeler’s argument de novo,
we uphold the district court’s determination. See United
States v. McCallum, 721 F.3d 706, 709 (D.C. Cir. 2013).
The Double Jeopardy Clause bars a sentencing court
from imposing multiple punishments for the same conduct
absent clear indication that Congress intended that result. See
Ball v. United States, 470 U.S. 856, 861 (1985); United States
v. Mahdi, 598 F.3d 883, 887-89 (D.C. Cir. 2010). In
Blockburger v. United States, the Supreme Court told us how
to determine whether different statutes punish the same
conduct. 284 U.S. 299, 304 (1932). We look solely to the
statutes, rather than the facts of a particular matter, to see if
“each . . . requires proof of a fact which the other does not.”
Mahdi, 598 F.3d at 888 (internal quotation marks omitted);
see United States v. Weathers, 186 F.3d 948, 954 (D.C. Cir.
1999). If each statute does, neither is a “lesser included
offense of the other,” * and the Double Jeopardy Clause is no
*
If the elements of one crime (Crime A) “are a subset of the
elements” of another crime (Crime B), then Crime A is a lesser
included offense of Crime B. Schmuck v. United States, 489 U.S.
705, 716 (1989).
14
bar to sentencing under both, because statutes that require
different proof penalize different conduct. Mahdi, 598 F.3d at
888; United States v. McLaughlin, 164 F.3d 1, 8-9 (D.C. Cir.
1998).
The statutes in Title 18 under which Wheeler was
sentenced penalize different conduct. Section 1347 punishes a
person who (1) either “knowingly and willfully executes, or
attempts to execute, a scheme or artifice . . . in connection
with the delivery of or payment for health care . . . services,”
and (2) does so to defraud a healthcare benefit program.
Section 1035 imposes punishment where a person (1) either
“falsifies, conceals, or covers up by any trick, scheme, or
device a material fact,” or “makes any materially false,
fictitious, or fraudulent statements or representations, or
makes or uses any materially false writing or document,” and
(2) does so “knowingly and willfully” in connection with
payment for healthcare. Wheeler’s argument that § 1035 is a
lesser included offense of § 1347 is unpersuasive. Given that
§ 1347 merely requires an attempt to execute a scheme or
artifice to defraud, whereas § 1035 requires actual
falsification or making a false or fraudulent statement, some
violations of § 1347 might not be violations of § 1035.
Statutes that overlap but retain different elements pose no risk
of double jeopardy.
B
In sentencing Wheeler, the district court applied the
enhancement in the Sentencing Guidelines for those who
abuse a position of trust. See U.S.S.G. § 3B1.3. Wheeler
contends that those who submit bills to Medicaid do not
occupy such a position. But because she never raised that
argument before the district court, our review is limited to
assessing whether the district court committed a “clear or
15
obvious” error. See Puckett v. United States, 129 S. Ct. 1423,
1429 (2009); United States v. Burroughs, 613 F.3d 233, 240-
41 (D.C. Cir. 2010).
This court has not yet considered whether those who seek
payment from the government for the provision of medical
services occupy positions of trust vis-à-vis the government,
but the majority of circuits that have considered the issue have
held they do. See United States v. Hoogenboom, 209 F.3d
665, 671 (7th Cir. 2000); United States v. Ntshona, 156 F.3d
318, 321 (2d Cir. 1998); United States v. Rutgard, 116 F.3d
1270, 1293 (9th Cir. 1997); United States v. Adam, 70 F.3d
776, 782 (4th Cir. 1995); cf. United States v. Hodge, 259 F.3d
549, 555-57 (6th Cir. 2001) (applying enhancement for
fraudulent billing of a non-governmental medical insurer);
United States v. Sherman, 160 F.3d 967, 970-71 (3d Cir.
1998) (same); United States v. Iloani, 143 F.3d 921, 923 (5th
Cir. 1998) (same). But see United States v. Garrison, 133
F.3d 831, 837-42 (11th Cir. 1998) (concluding such
individuals do not occupy positions of trust vis-à-vis the
government). Taking no view on the merits of the matter
because it was not properly preserved, we conclude that the
district court did not commit a clear or obvious error by ruling
in a manner that was consistent with this majority rule. Cf.
United States v. Andrews, 532 F.3d 900, 909 (D.C. Cir. 2008)
(finding the absence of plain error partly because of a circuit
split on the issue).
C
Wheeler challenges the district court’s order to forfeit
$3,168,559.28, the amount Medicaid paid the Center for
massage therapy between January 2006 and April 2008. She
argues that any forfeiture should have been limited to
$482,161.92, the amount Medicaid paid on the bills set forth
16
in the indictment. Wheeler did not raise this objection below,
however, and we see no plain error in the district court’s
forfeiture and restitution awards. Wheeler also argues that the
district court erred in calculating her Guidelines offense level
using $3,168,559.28, rather than $482,161.92, as the loss
amount. But Wheeler had urged the district court to “find that
the loss amount is greater than $2.5 million and less than $7
million.” Doing so, she lost her opportunity to assert a
different amount on appeal. A litigant cannot exploit an error
on appeal that she invited the district court to commit. See
United States v. Harrison, 103 F.3d 986, 992 (D.C. Cir.
1997). Even Wheeler tacitly concedes the point. Her reply
brief offers no response to the government’s assertion that she
waived this argument.
IV
Because all of Wheeler’s attacks on her conviction and
sentence lack merit, we affirm.