United States v. Doris Crabtree

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-15146
________________________
D.C. Docket No. 1:13-cr-20505-RNS-2
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DORIS CRABTREE,
LILIANA MARKS,
ROGER ROUSSEAU,
ANGELA SALALFIA,
Defendants - Appellants.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 3, 2018)
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Before WILSON and ROSENBAUM, Circuit Judges, and ROBRENO, * District
Judge.
WILSON, Circuit Judge:
This appeal involves multiple defendants convicted in an extensive Medicare
fraud scheme. From 2004 to 2011, Health Care Solutions Network, Inc. (HCSN),
an operator of mental health centers in Miami and North Carolina, billed Medicare
for over $63M in fraudulent claims. Defendants Dr. Roger Rousseau, Doris
Crabtree, Liliana Marks, and Angela Salafia are former employees of HCSN who
were charged and convicted in connection with that fraud.
A jury convicted all the defendants of conspiracy to commit healthcare
fraud, in violation of 18 U.S.C. § 1349, and also convicted Dr. Rousseau of two
counts of healthcare fraud, in violation of 18 U.S.C. §§ 1347 and 2. They now
appeal on multiple grounds, including double jeopardy, sufficiency of the
evidence, and numerous procedural and evidentiary decisions made by the district
court which they claim rendered the trial fundamentally unfair. Rousseau also
appeals his Guidelines sentencing enhancements.
Upon thorough review and with the benefit of oral argument, we affirm on
all issues.
*
Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
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I.
A. Background
HCSN was set up as a “partial hospitalization program” (PHP), which are
designed to provide intensive psychiatric therapy to patients with “serious and
acutely symptomatic mental illnesses.” United States v. Willner, 795 F.3d 1297,
1302 (11th Cir. 2015). These programs serve as a bridge between restrictive
inpatient care, such as a psychiatric hospital, and routine outpatient care. A PHP
that complies with federal law and state coverage requirements may seek Medicare
reimbursement for its services.
In accordance with Medicare standards, patients should be referred to a PHP
by a psychiatrist or mental health specialist. Incentivizing such referrals through
kickbacks violates federal law. 42 U.S.C. § 1320a-7b(b)(2)(A). Qualifying PHP
patients must be admitted “under the supervision of a physician pursuant to an
individualized, written plan of treatment.” 42 U.S.C. § 1395x(ff). Treatment
involves intensive, all-day individual and group therapy, which must not be
“primarily recreational or diversionary.” Id. The attending physician is
responsible for managing each patient’s treatment, which must be “reasonable and
necessary for the diagnosis or active treatment of the individual’s condition.” Id.
While Medicare does not prescribe a fixed amount of time that patients
should remain at a PHP, stays in excess of three months indicate that treatment is
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ineffective and no longer appropriate. Decisions to admit and discharge patients
must be closely monitored by the attending physician.
A PHP seeking Medicare reimbursement must also comply with strict
documentation requirements. At intake, medical personnel record patients’
history, symptoms, and medications. Once enrolled, a patient’s progress must be
thoroughly charted, from the types of treatment provided to details of participation
in specific therapy sessions. This both provides a medical record justifying the
patient’s continued treatment and ensures that each patient is discharged—or
readmitted—consistent with her medical needs.
B. The Fraud at HCSN
Such were not the practices at HCSN. From intake to discharge, HCSN
organized its business around procuring, retaining, and readmitting patients to
maximize billing potential, without respect to patients’ health needs. It then
ensured patient files complied with Medicare coverage requirements by editing
intake information, fabricating treatment plans, and falsifying therapy and
treatment notes.
HCSN’s owner, Armando Gonzalez, orchestrated this fraud scheme, which
involved coconspirators at every level of the company. Rousseau, the medical
director at HCSN’s Miami locations, was the attending physician for over $30M of
fraudulent billing to Medicare at HCSN-East. Crabtree, Marks, and Salafia were in
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charge of day-to-day therapy at HCSN-East, where they were also responsible for
patient therapy notes.
The fraud began with patient recruitment. HCSN solicited patients from
hospital employees and owners of assisted living facilities in exchange for cash
kickbacks. Many of these patients did not qualify for PHP treatment. Upon intake,
HCSN employees altered patient profiles in order to conceal disqualifying
information, such as evidence that patients suffered from Alzheimer’s disease or
dementia. HCSN treated patients for inordinately long periods of time—generally
at least four months—and then “recycled” patients by discharging them and
immediately admitting them to another HCSN location.
Patient notes and billing sheets were systematically altered to support
Medicare claims and to survive Medicare audits. Therapists fabricated therapy
notes for absent patients, falsified details from therapy sessions, and “cloned” notes
by copy and pasting therapy notes, verbatim, from one patient’s file to another’s.
“Ghost lists” of non-existent patients helped HCSN employees organize “ghost
billing” of services that never took place.
This scheme spanned seven years, involved three HCSN locations, and
amounted to over $63M in fraudulent claims.
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C. Procedural History
HCSN’s owner, numerous employees, and beneficiaries of the illegal
kickbacks were charged in connection with the healthcare fraud at HCSN. The
defendants’ indictment charged them with the following: (1) all defendants with
conspiracy to commit health care fraud, 18 U.S.C. § 1349; (2) Rousseau with two
substantive counts of health care fraud, 18 U.S.C. §§ 1347 and 2; and (3) Crabtree,
Marks, and Salafia with two counts of making false statements related to health
care matters, 18 U.S.C. § 1035. Two trials ensued.
At the conclusion of the first trial, the jury acquitted Crabtree, Marks, and
Salafia of the false statements counts but failed to reach a verdict on all other
counts. At trial, the district court had granted the government’s request to deliver
an instruction for Pinkerton liability with the false statements jury instruction. 1
Once acquitted of the false statements charges, Crabtree, Marks, and Salafia
moved for acquittal on the conspiracy count; they argued that the jury’s false
statements acquittal necessarily entailed a finding that they were not a part of a
1
See Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180 (1946). The actual instruction
read:
If you have first found a defendant . . . guilty of the crime of conspiracy as
charged in Count 1, you may also find that defendant guilty of [the false
statements crime], even though that defendant did not personally participate in the
crime . . . . To do so, you must find beyond a reasonable doubt: No. 1. During the
conspiracy a conspirator committed the additional crime charged to further the
conspiracy's purpose; No. 2. The defendant was a knowing and willful member of
the conspiracy when the crime was committed; and No. 3. It was reasonably
foreseeable that a coconspirator would commit the crime as a consequence of the
conspiracy.
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conspiracy. The district court denied the motion for acquittal, holding that
acquittal on the false statements counts did not foreclose retrial for conspiracy.
At the defendants’ second trial, a jury found all defendants guilty of
conspiracy to commit healthcare fraud and found Rousseau guilty of both
substantive counts of health care fraud. The district court applied a six-level
enhancement to Rousseau’s guideline range—a two-level vulnerable victims
enhancement and a four-level enhancement for organizing criminal activity
involving more than five people. See U.S.S.G. §§ 3A1.1, 3B1.1. The district court
sentenced Rousseau to 192 months in prison (100 months below the 292–365
month guideline range) and ordered him to pay $23M in restitution. It sentenced
Crabtree, Marks, and Salafia to between five and six years’ imprisonment and
ordered each to pay over $16M in restitution.
II.
The defendants now make multiple claims on appeal. We address them in
four parts. First, we discuss Crabtree, Marks, and Salafia’s double jeopardy
argument. Second, we determine whether there was sufficient evidence at trial to
uphold the defendants’ convictions. Third, we tackle the trial-related claims:
whether the district court erred (1) by admitting testimony and evidence about
Medicare local coverage determinations, Medicare rules and regulations, PHP
standard practices, and testimony regarding illegal kickbacks; (2) by dismissing a
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tardy juror; and (3) by instructing the jury on deliberate ignorance and aiding and
abetting liability. Fourth, and finally, we determine whether the district court
properly applied the two Guidelines enhancements to Rousseau’s sentence.
A. Double Jeopardy
Crabtree, Marks, and Salafia renew their collateral estoppel argument
rejected at the first trial. They claim that because the jury acquitted them of the
false statements counts—after the district court issued a Pinkerton liability
instruction—the jury necessarily concluded as a factual matter that they were not a
part of the healthcare fraud conspiracy at HCSN. And because that fact was
essential to the conspiracy count, the Fifth Amendment barred the government
from retrying them for conspiracy.
We review a district court’s collateral estoppel ruling de novo, and the
“party asserting estoppel bears the burden of persuasion that the jury found the
facts on which the defense of estoppel rests and that those facts bar another trial
about them.” United States v. Ohayon, 483 F.3d 1281, 1286 (11th Cir. 2007).
The Double Jeopardy Clause of the Fifth Amendment does not generally
preclude the government from reprosecuting defendants on mistried counts.
United States v. Shenberg, 89 F.3d 1461, 1478 (11th Cir. 1996). But the doctrine
of collateral estoppel creates an exception to this rule “when an issue of ultimate
fact has once been determined by a valid and final judgment,” and when that issue
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constitutes an essential element of the mistried charge. Ashe v. Swenson, 397 U.S.
436, 443, 90 S. Ct. 1189, 1194 (1970). In such cases, the Fifth Amendment
guarantee against double jeopardy prohibits the government from reprosecuting the
defendant for the mistried charge. Id. at 445–46, 90 S. Ct. at 1195.
Thus, our collateral estoppel double jeopardy analysis involves two steps.
“First, [the] court[] must examine the verdict and the record to see what facts, if
any, were necessarily determined in the acquittal at the first trial. Second, the court
must determine whether the previously determined facts constituted an essential
element of the second offense.” Ohayon, 483 F.3d at 1286 (internal quotation
marks and citation omitted). An “essential element” is a factual, not legal,
component of an offense. Id. at 1293. This is an objective inquiry which asks
“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 1286.
Here, the defendants’ double jeopardy argument falls short, because
acquittal on the false statements charges did not necessarily determine any factual
issue essential to the healthcare fraud conspiracy charge. A rational jury could
have acquitted without foreclosing the issue of whether the defendants were part of
the healthcare fraud conspiracy at HCSN; therefore, retrial did not violate the
Double Jeopardy Clause of the Fifth Amendment.
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We begin with our first task: determining what facts were necessarily
decided by the jury at the first trial. Id. Upon thorough review of the indictment,
the arguments and evidence put forth at trial, and the jury instructions, we find that
an acquittal on the false statements charges necessarily determined that Crabtree,
Marks, and Salafia did not knowingly and willfully make materially false
statements on six particular patient notes.2 Nor are they vicariously liable for that
crime. But beyond that, “it is far from clear what facts the jury decided when it
acquitted” the defendants on the false statements counts, and “[w]e will not
speculate regarding the meaning of the jury’s verdict.” United States v. Gil, 142
F.3d 1398, 1401 (11th Cir. 1998) (internal quotation marks omitted).
The jury was asked to determine the defendants’ liability with respect to six
patient notes—but nothing more. From the indictment to closing arguments, the
government limited the false statements charges to six specific notes. Indeed, the
indictment spelled out the exact words on each note for which Crabtree, Marks, or
Salfia was allegedly responsible, and these notes were the only evidence
supporting the false statements counts at trial. This is illustrated by the closing
arguments, where, for example, Doris Crabtree’s counsel argued:
2
Specifically, they did not “knowingly and willfully . . . make[] any materially false, fictitious,
or fraudulent statements or representations, or . . . materially false writing or document . . . in
connection with the delivery of or payment for health care benefits, items, or services.” 18
U.S.C. § 1035.
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Ladies and gentlemen, we have seen only two notes as far as Doris
Crabtree is concerned . . . . Those are the notes on Counts 6 and 7 of
the indictment. . . . [T]hose are the only two notes they have
presented to you here in three weeks of trial that they accuse my
client, Doris Crabtree, of fabricating. They want to destroy her life
over two notes.
But the fact that the defendants did not fabricate these six notes was not
essential to the healthcare fraud conspiracy count, on which the jury hung. That
charge was much more sweeping, as demonstrated by the indictment and the
record. The indictment alleged that Crabtree, Marks, and Salafia were involved
with coconspirators in “submitting and causing the submission of false and
fraudulent claims . . . for services that were medically unnecessary, that were not
eligible for Medicare and Medicaid reimbursement, and that were never provided,”
and that they “falsified, fabricated, altered, and caused the alteration, falsification,
fabrication of HCSN medical records to support claims for PHP services that were
not medically necessary and were not provided at HCSN-FL.” Testimony at trial
implicated Crabtree, Marks, and Salafia in these wider practices independently of
the six patient therapy notes. Moreover, the government agreed not to use the six
patient notes as evidence in the second trial—further confirmation that retrial did
not violate the doctrine of collateral estoppel.
The Pinkerton instruction does not alter our conclusion. The defendants
claim that an acquittal in light of Pinkerton necessarily determined that they were
not a part of the healthcare fraud conspiracy at HCSN. But this is not so. The
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record suggests that a rational jury could have found that the government failed to
meet its burden on any one of the elements for vicarious liability—especially given
that the government failed to prove that the defendants themselves fabricated the
six notes, which was its central theory at trial. The defendants have not met their
burden of proving by convincing and competent evidence that the acquittal
necessarily determined any factual issue essential to the mistried charge. See
United States v. Hogue, 812 F.2d 1568, 1578 (11th Cir. 1987).
This distinguishes the defendants’ case from Ohayon and Larkin, on which
they rely. In Ohayon, the defendant was caught transporting ecstasy inside duffle
bags. 483 F.3d at 1282. At trial, the jury acquitted him of an intent to distribute
charge and hung on a conspiracy charge. Id. But essential to both charges was the
same mens rea issue: did the defendant know what was in the duffle bags he was
transporting? Indeed, we found that “[t]here was no other factual issue” presented
to the jury. Id. at 1287. Accordingly, when the jury acquitted on one count, it
necessarily determined that essential issue (in the negative), which foreclosed the
government from relitigating it in another trial for conspiracy.
But in this case, there was no “single rationally conceivable issue in dispute
before the jury” when it considered the false statements charges. Cf. Ashe, 397
U.S. at 445, 90 S. Ct. at 1195. The Pinkerton instruction split the liability question
into two and multiplied the grounds upon which a verdict could rest. Thus, besides
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the fact that the defendants did not make false statements on the six patient notes,
we cannot say from this record that any other factual determination necessarily
proceeded from the acquittal.
The defendants’ reliance upon the beleaguered United States v. Larkin is
also misplaced. 605 F.2d 1360, 1370–71 (5th Cir. 1979),3 withdrawn in part on
reh’g, 611 F.2d 585 (5th Cir. 1980), overruled in part by Yeager v. United States,
557 U.S. 110, 116–117, 129 S. Ct. 2360, 2365 (2009). In Larkin, part of which
remains binding precedent,4 the jury acquitted the defendant on six substantive
counts—tried exclusively on a theory of vicarious liability under Pinkerton—but
failed to reach a verdict on the conspiracy charge. Id. at 1362–63. Importantly,
and in contrast to this case, the six substantive charges were the sole crimes
underlying the conspiracy charge. Id. at 1363. It followed that, because the
substantive charges and the conspiracy charge wholly overlapped, acquitting the
3
See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) (holding that
all decisions of the “old Fifth” Circuit handed down prior to the close of business on September
30, 1981 are binding precedent in the Eleventh Circuit).
4
The Supreme Court directly overruled Larkin’s holding that, for collateral estoppel purposes,
we should look to a hung count to determine what a rational jury could have decided in another
verdict. See Yeager, 557 U.S. at 116–117, 121, 129 S. Ct. at 2365, 2367 (2009). In Yeager, the
Court held that “[b]ecause a jury speaks only through its verdict, its failure to reach a verdict
cannot—by negative implication—yield a piece of information that helps put together the trial
puzzle,” and, therefore, “[a] hung count is not a ‘relevant’ part of the ‘record of the prior
proceeding’” for collateral estoppel purposes. Id. (citing Ashe, 397 U.S. at 444, 90 S. Ct. at
1189) (alteration adopted). While we cautioned against attempts to reason from hung verdicts in
Ohayon, 483 F.3d at 1289–90, that decision predated Yeager and recognized that Larkin was still
binding. We now hold that, consistent with the Supreme Court’s holding in Yeager, a hung
count should not be taken into consideration as a relevant part of the record when conducting a
collateral estoppel analysis.
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defendant of conspiracy liability on all of the substantive charges necessarily
foreclosed the issue of whether the defendant was guilty of conspiracy. 5
But in this case, as discussed above, the six notes at issue in the false
statements charges were not the sole evidence supporting the healthcare fraud
conspiracy charge. Therefore, a determination that the defendants were not
vicariously liable for the false statements crimes did not foreclose the issue of
whether the defendants joined the healthcare fraud conspiracy at HCSN. Larkin,
or what’s left of it, does not support the defendants’ position.
We reiterate that our task is to determine, objectively and “in a practical
frame,” what facts a rational jury must necessarily have decided in producing a
verdict. Ashe, 397 U.S. at 444, 90 S. Ct. at 1194. We are not to speculate as to the
actual source of a verdict, Gil, 142 F.3d at 1401, nor to foreclose from relitigation
all factual issues which theoretically could have been involved in an acquittal. At
the first trial, an acquittal on the false statements charges determined only that
Crabtree, Marks, and Salafia did not make materially false statements on six
particular patient notes, and that they were not vicariously liable for that crime.
Because neither of those issues was essential to the healthcare fraud conspiracy
5
On rehearing, the Fifth Circuit held that because the government put on additional evidence in
other counts (not originally before the court on appeal) that supported the conspiracy charge, the
defendant could still be retried for conspiracy. 611 F.2d 585, 586. It therefore replaced the final
two lines of the original Larkin opinion, but it did not overrule the legal principle discussed in
the rest of the opinion, which the defendants rely upon here.
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count, the government was not estopped from retrying the defendants for that
charge. We therefore affirm the district court’s denial of the motion for acquittal.
B. Sufficiency of the Evidence
Next, the defendants contest the sufficiency of the evidence to support their
convictions at the second trial. According to Crabtree, Marks, and Salafia, the
evidence against them was primarily circumstantial and demonstrated only that
they were negligent and careless—but did not show that they knowingly and
voluntarily joined a conspiracy to defraud Medicare. 6 Rousseau similarly argues
that while he irresponsibly abdicated his role as medical director, his only “sin”
was that he “naively trusted others.” He did not know that the documents he
signed—or authorized others to sign on his behalf—were falsified.
We review whether there is sufficient evidence to support the jury’s guilty
verdicts de novo, looking at the evidence “in the light most favorable to the
government and resolving all reasonable inferences and credibility evaluations in
favor of the verdict.” United States v. Moran, 778 F.3d 942, 958 (11th Cir. 2015).
“If there is a lack of substantial evidence, viewed in the Government’s favor, from
which a reasonable factfinder could find guilt beyond a reasonable doubt, the
conviction must be reversed.” United States v. Willner, 795 F.3d 1297, 1307 (11th
6
For example, Crabtree argues that “[c]utting corners by cutting and pasting may have been a
careless and negligent practice . . . but by itself is not evidence of intent to deceive Medicare
about the patients’ eligibility requirements.”
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Cir. 2015). But we will not overturn a jury’s verdict “if any reasonable
construction of the evidence would have allowed the jury to find the defendant
guilty beyond a reasonable doubt.” United States v. Wilson, 788 F.3d 1298, 1308
(11th Cir. 2015).
A conviction for conspiracy to commit health care fraud in violation of 18
U.S.C. § 1349 requires proof beyond a reasonable doubt “(1) that a conspiracy
existed; (2) that the defendant knew of it; and (3) that the defendant, with
knowledge, voluntarily joined it.” United States v. Vernon, 723 F.3d 1234, 1273
(11th Cir. 2013). “The very nature of conspiracy frequently requires that the
existence of an agreement be proved by inferences from the conduct of the alleged
participants or from circumstantial evidence of a scheme.” United States v.
Molina, 443 F.3d 824, 828 (11th Cir. 2006). The government need only prove that
the defendant knew of the “essential nature” of the conspiracy, and “[w]e will
affirm a conspiracy conviction when the circumstances surrounding a person’s
presence at the scene of conspiratorial activity are so obvious that knowledge of its
character can fairly be attributed to him.” Vernon, 723 F.3d at 1273–74 (internal
quotation marks omitted). The government can show that a defendant voluntarily
joined a conspiracy “through proof of surrounding circumstances such as acts
committed by the defendant which furthered the purpose of the conspiracy.” Id. at
1274. “[A] defendant can be convicted of conspiracy even if his or her
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participation in the scheme is ‘slight’ by comparison to the actions of other co-
conspirators.” Id. at 1273 (alteration adopted).
The health care fraud statute, 18 U.S.C. § 1347, reads in pertinent part that:
Whoever knowingly and willfully executes, or attempts
to execute, a scheme or artifice—(1) to defraud any
health care benefit program; or (2) to obtain, by means of
false or fraudulent pretenses, representations, or
promises, any of the money or property owned by, or
under the custody or control of, any health care benefit
program,
in connection with the delivery of or payment for health
care benefits, items, or services, shall be fined under this
title or imprisoned not more than 10 years, or both.
18 U.S.C. § 1347(a). Furthermore, “the defendant must be shown to have known
that the claims submitted were, in fact, false.” United States v. Medina, 485 F.3d
1291, 1297 (11th Cir. 2007).
1. Crabtree, Marks, and Salafia’s Conspiracy Convictions
We find sufficient evidence in the trial record for a reasonable jury to
conclude that Crabtree, Marks, and Salafia had knowledge of the conspiracy at
HCSN. Furthermore, the extensive “proof of surrounding circumstances” at
HCSN coupled with the numerous, continuous “acts committed by the defendant[s]
which furthered the purpose of the conspiracy” over a number of years lead us to
conclude that a reasonable factfinder could determine that Crabtree, Marks, and
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Salafia voluntarily joined the conspiracy. Vernon, 723 F.3d at 1274. Accordingly,
we must affirm their convictions.
The government put forth considerable evidence that Crabtree, Marks, and
Salafia were directly aware of the “essential nature” of the conspiracy and that the
circumstances at HCSN were “so obvious that knowledge of [the fraud’s] character
can fairly be attributed to [them].” Id. at 1273–74. Multiple former-employees
testified that Crabtree, Marks, and Salafia complied with their requests to doctor
patient notes so that they would pass Medicare review. Furthermore, witnesses
testified that kickback payments to assisted living facilities were routinely
discussed around the office, and that Crabtree, Marks, and Salafia were present for
these conversations. Numerous witnesses spoke of the overwhelming evidence
that patients were unqualified for PHP treatment: that it was obvious, and widely
observed, that patients at HCSN suffered from Alzheimer’s, dementia, autism, and
forms of mental retardation that rendered treatment ineffective; that this was
evidenced, for example, by patients relieving themselves around the office and by
patients who were unable to engage in group therapy sessions; and that Crabtree,
Marks, and Salafia were involved in multiple conversations about the unsuitability
of HCSN’s patients for PHP treatment. One former-employee put it simply:
“everybody was aware of the fraud.”
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Likewise, a reasonable jury could have found that Crabtree, Marks, and
Salafia voluntarily joined the conspiracy, given the substantial evidence of their
role in furthering the fraud. The government put forth evidence that Crabtree,
Marks, and Salafia complied with requests to alter and fabricate notes for billing
and Medicare auditing purposes; that they created therapy session notes for absent
patients; that they routinely copied and pasted notes in patients’ files; and that each
therapist misrepresented the therapy that patients received when, for example, they
played movies (about once per week) during therapy sessions, or when patients
were late or absent but notes indicated that they participated fully.
Ms. Dana Gonzalaz, who was in charge of ensuring that HCSN’s patient
files and billing would pass Medicare review, testified that she asked Crabtree,
Marks, and Salafia to retroactively edit patient notes to make them Medicare
compliant. This included adding specific fabricated quotations and changing
symptoms to give the impression that patients were progressing in accordance with
their treatment plans. She testified that Crabtree, Marks, and Salafia would take
the notes home, make the changes, and then sign off on them.
Additionally, Ms. Gema Pampin, a program coordinator at HCSN, testified
that Crabtree, Marks, and Salafia complied with her requests to doctor patient
notes so that HCSN would not get caught by Medicare. According to Pampin,
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Crabtree, Marks, and Salafia never refused to make the requested alterations and
sign the notes.
And Ms. Lisset Palmero, the office manager at HCSN-East, testified that
Crabtree, Marks, and Salafia fabricated therapy notes for absent patients. At trial,
the government presented numerous patient therapy notes alongside a billing sheet,
and Ms. Palmero identified (1) how each therapy note corresponded to a date that
the patient was absent from HCSN and (2) how either Crabtree, Marks, or Salafia’s
signature was affixed to each fabricated note.
In conclusion, viewing the evidence in a light most favorable to the
government and making all reasonable credibility determinations in favor of the
verdict, we find that the record provides sufficient evidence to support Crabtree,
Marks, and Salafia’s healthcare fraud conspiracy convictions.
2. Dr. Rousseau’s Conspiracy and Fraud Convictions
We also find that there was sufficient evidence for a reasonable jury to
conclude that Rousseau was knowingly and voluntarily involved in the conspiracy
and knowingly signed false medical claims in order to defraud Medicare.
Rousseau was crucial to the fraud scheme at HCSN, and there was
considerable evidence that he was aware of this. He signed off on 96% of the
fraudulent Medicare claims that came out of HCSN-East, which amounted to over
$30M in false claims. He was paid almost a million dollars, much of which came
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in lump-sum payments issued from clandestine bank accounts, to admittedly sign
whatever medical documents were put in front of him. He appeared at HCSN once
every couple of weeks, for a couple of hours, simply for this purpose. He rarely, if
ever, met with patients or reviewed their medical needs, nor did he prescribe the
individual treatment plans that he signed off on. And he authorized use of his
signature stamp without permission and without review, often when he was present
at the office, so that the fraudulent documents could be signed more quickly.
Furthermore, numerous witnesses testified directly to Rousseau’s knowledge
of HCSN’s healthcare fraud conspiracy. He was part of conversations where
employees were instructed to delete references to Alzheimer’s and dementia
medications from patient profiles in order to make them Medicare compliant. He
was aware that HCSN was recycling patients to increase billings. He introduced
HCSN’s owner to a hospital employee who was then paid illegal kickbacks for
recommending patients to HCSN, and who testified at trial that Rousseau followed
up with him to see whether HCSN’s owner was “taking care of” him. Rousseau
participated in a conversation over the “bones in the closet, the evil secrets of
[HCSN].”
HCSN’s owner and multiple coconspirators testified against Rousseau
directly and testified to the overwhelming circumstantial evidence of fraud at
HCSN. Unlike in Willner, 795 F.3d 1297, upon which Rousseau relies, testimony
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at trial directly linked him to the fraud benefits, illegal kickbacks, patient recycling,
doctored patient files, and the countless fraudulent medical claims that came out of
HCSN, all of which he was ultimately accountable for as the attending physician.
We conclude that a reasonable factfinder had sufficient evidence to convict
Rousseau on all counts, and therefore affirm his convictions.
C. Trial Claims
1. Admission of Evidence and Testimony
The defendants first argue that the district court erred in admitting testimony
about Medicare local coverage determinations and Medicare rules and regulations
regarding PHPs, which, they claim, confused the jury and effectively lowered the
burden of proof for conviction. Rousseau also argues that trial testimony
concerning kickbacks, especially expert testimony about the Stark Law, 7 was
irrelevant and unduly prejudicial. The cumulative effect of these errors, defendants
argue, resulted in a fundamentally unfair trial.
We review the admission of witness testimony, both lay and expert, for
abuse of discretion. Moran, 778 F.3d at 958; United States v. Frazier, 387 F.3d
1244, 1258 (11th Cir. 2004). We review all evidentiary decisions for abuse of
discretion. United States v. Brown, 415 F.3d 1257, 1264–65 (11th Cir. 2005). An
abuse of discretion can occur where the district court “applies the wrong law,
7
See 42 U.S.C. § 1395nn.
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follows the wrong procedure, bases its decision on clearly erroneous facts, or
commits a clear error in judgment.” Id. at 1266.
The district court did not abuse its discretion in allowing the aforementioned
evidence and testimony at trial, and any error was harmless.
First, testimony regarding Medicare coverage determinations was relevant to
the government’s theory of motive: that HCSN employees altered records in order
to get reimbursed by (or survive audits by) Medicare. Moreover, the district court
issued limiting instructions both before experts testified regarding local coverage
determinations and again before charging the jury. Specifically, the district court
emphasized that violating Medicare rules and regulations was not a crime, but that
it “may be relevant in determining whether a defendant acted with criminal
intent . . . to defraud Medicare.” Dr. Elizabeth Crocco’s testimony, which
explained a physician’s responsibility to patients in a PHP, also illumined how far
afield HCSN’s practices were from normal, which was relevant to the knowledge
element of the conspiracy and fraud charges.
Likewise, evidence regarding illegal kickbacks was directly relevant to
Rousseau’s knowledge of and involvement in the conspiracy. And while it may
have been prejudicial to allow Stephen Quindoza, an expert who formerly worked
for a Medicare contractor, to testify that a doctor benefiting from kickbacks would
be violating the Stark Law, any error was harmless given the court’s very clear
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limiting instructions and the overwhelming evidence presented against Rousseau at
trial. See Willner, 795 F.3d at 1321.
Finally, given that there was, at most, one harmless trial error, the
defendants’ cumulative error argument fails. United States v. House, 684 F.3d
1173, 1210–11 (11th Cir. 2012).
2. Juror Dismissal
Next, we consider the defendants’ argument that the district court erred
when it dismissed a juror for being late during closing arguments. The defendants
argue that there was no reasonable basis for the dismissal, and that dismissing the
juror ran afoul of Federal Rule of Criminal Procedure 24(c) and the Sixth
Amendment.
We review whether a district court improperly dismissed a juror for abuse of
discretion. Moran, 778 F.3d at 958. A court may substitute an alternate juror for
any juror who is “unable to perform” or is “disqualified from performing” his
duties. Fed. R. Crim. P. 24(c). “The decision to remove a juror and replace him
with an alternate is entrusted to the sound discretion of the trial judge whenever
facts are presented which convince the trial judge that the juror’s ability to perform
his duty as a juror is impaired.” United States v. Fajardo, 787 F.2d 1523, 1525
(11th Cir. 1986) (internal quotation marks omitted). This discretion should not be
disturbed absent a showing of bias or prejudice to the defendant, which includes
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discharge of a juror without factual support, or for a legally irrelevant reason. Id.
“The trial judge does not need a defendant's consent to replace a juror with an
alternate before the jury retires; all that is required is a reasonable cause for the
replacement.” Id. at 1526.
The district court had a reasonable ground for replacing the juror, who failed
to arrive for court and who had already delayed closing arguments by fifteen
minutes at the time she was replaced. This was clearly disruptive to the trial
proceedings. The judge, noting that the juror had been late on several other
occasions, refused to delay closing arguments an additional thirty minutes to wait
for the juror, as requested by defense counsel.
We have noted that a juror’s absence “manifestly interferes with the prompt
trial of a case. Hence when a juror is absent from court for a period sufficiently
long to interfere with the reasonable dispatch of business there may be a ‘sound’
basis for his dismissal.” United States v. Rodriguez, 573 F.2d 330, 332 (5th Cir.
1978). The defendants argue that the dismissal prejudiced them because they no
longer had their originally selected jury. But “[e]very replacement involves a
change in the jury’s composition,” id. at 333, and it is therefore up to the
defendants to demonstrate that the district court’s dismissal lacked a sound factual
basis or was legally irrelevant—which they fail to do here. Accordingly, we
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conclude that the district court did not abuse its discretion in replacing the tardy
juror with an alternate.
3. Jury Instructions
The defendants’ final trial-related claim is that the district court improperly
charged the jury. Specifically, the defendants argue that the district court erred in
delivering a deliberate ignorance instruction, which is only appropriate when there
is evidence that a defendant purposefully avoided learning the truth to shield
himself from prosecution; no such evidence was presented against defendants.
Furthermore, in delivering this instruction, the district court used an analogy from
the drug context, which the defendants allege confused the jury. 8
Marks also argues that the court erred by delivering an aiding and abetting
instruction on the conspiracy count.
“We apply a deferential standard of review to a trial court’s jury
instructions . . . [and] will only reverse if we are left with a substantial and
eradicable doubt as to whether the jury was properly guided in its deliberations.”
United States v. Steed, 548 F.3d 961, 977 (11th Cir. 2008) (per curiam). “The
district court has broad discretion in formulating a jury charge as long as the
8
The district court gave this example of deliberate ignorance: “If a defendant possesses a
package and believes it contains a controlled substance, but deliberately avoids learning that it
contains the controlled substance so he or she can later deny knowledge of the package’s
contents.”
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charge as a whole is a correct statement of the law.” United States v. Perez-Tosta,
36 F.3d 1552, 1564 (11th Cir. 1994).
“[A] deliberate ignorance instruction is warranted only when the facts
support the inference that the defendant was aware of a high probability of the
existence of the fact in question and purposely contrived to avoid learning all of
the facts in order to have a defense in the event of a subsequent prosecution.”
Steed, 548 F.3d at 977 (internal quotation marks omitted). “We have held,
however, that instructing the jury on deliberate ignorance is harmless error where
the jury was also instructed and could have convicted on an alternative, sufficiently
supported theory of actual knowledge.” Id.
First, whether or not a deliberate ignorance instruction was appropriate here,
the jury was also instructed on—and, as we have shown above, could have
convicted on—a sufficiently supported theory of actual knowledge. Accordingly,
any error in delivering the deliberate ignorance instruction was harmless. Id.
Second, the inclusion of the drug example was not reversible error. It was
an accurate illustration of the legal principle, and no defendant objected to it at
trial. The district court carefully delivered the Eleventh Circuit pattern instructions
and even included, at the defendants’ request, an instruction from Willner, 795
F.3d at 1315, which clarified that deliberate ignorance can only establish the
knowledge prong of the conspiracy charge.
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And last, Marks is simply mistaken regarding the aiding and abetting
instruction. The district court did not give an aiding and abetting instruction with
the conspiracy count; it delivered it with the healthcare fraud charge only, where it
was undisputedly appropriate.
In sum, none of the district court’s trial decisions warrant reversal.
D. Rousseau’s Sentencing Enhancements
Finally, we address Rousseau’s sentencing appeal. He first argues that the
court erred in applying a U.S.S.G. Section 3B1.1 organizer or leader enhancement,
because there was no evidence that he managed, directed, or controlled other
participants in the fraud scheme. Indeed, Rousseau contends, he hardly showed up
at all. All he contributed was his signature; he was medical director in name only.
Further, Rousseau argues that the district court erred in applying the U.S.S.G.
Section 3A1.1 vulnerable victims enhancement, because he did not personally and
specifically target victims due to their vulnerability.
“We review a district court’s determination that a defendant is subject to a
Section 3B1.1 role enhancement as an organizer or leader for clear error.” United
States v. Martinez, 584 F.3d 1022, 1025 (11th Cir. 2009). “We review de novo the
district court’s application of the vulnerable victim enhancement, but we give due
deference to the district court’s determination that a victim was vulnerable, as this
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is a factual finding.” United States v. Birge, 830 F.3d 1229, 1231 (11th Cir. 2016)
(internal quotation marks omitted).
The Sentencing Guidelines call for a four-level sentencing enhancement
when the “defendant was an organizer or leader of a criminal activity that involved
five or more participants or was otherwise extensive.” U.S.S.G. § 3B1.1(a). The
Guidelines comments suggest seven factors to consider in making this
determination:
(1) exercise of decision making authority, (2) the nature of
participation in the commission of the offense, (3) the recruitment of
accomplices, (4) the claimed right to a larger share of the fruits of the
crime, (5) the degree of participation in planning or organizing the
offense, (6) the nature and scope of the illegal activity, and (7) the
degree of control and authority exercised over others.
See Martinez, 584 F.3d at 1026.
In addition, the Guidelines require a two-level sentencing increase if the
defendant “knew or should have known that a victim of the offense was a
vulnerable victim.” U.S.S.G. § 3A1.1(b)(1). A vulnerable victim is “a victim of
the offense of conviction . . . who is unusually vulnerable due to age, physical or
mental condition, or who is otherwise particularly susceptible to the criminal
conduct.” Id. § 3A1.1 cmt. n.2; Birge, 830 F.3d at 1231–33.
Here, the district court did not clearly err in applying the organizer or leader
enhancement to Rousseau’s sentence. While the evidence does not demonstrate
that Rousseau closely managed and controlled operations at HCSN, he, as medical
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director, was in a pivotal position of management authority that enabled the fraud
to succeed. Additionally, the government put on evidence that Rousseau was
involved in conversations where he directed employees to remove certain
medications from patient files, and he clearly authorized his subordinates to use his
signature toward fraud. Rousseau also profited more than any other person
convicted in the fraud scheme other than the owner himself. Taking the Section
3B1.1 factors into consideration, we cannot conclude that the district court clearly
erred in applying the organizer or leader enhancement.
There is also sufficient evidence supporting the Section 3A1.1 vulnerable
victims enhancement, which we must review de novo. Medicare was clearly not
the sole victim of HCSN’s fraud. Numerous patients—many of whom did not
qualify for PHP treatment—received inappropriate and inadequate treatment at
HCSN, whose entire business was caring for elderly patients with “serious and
acutely symptomatic mental illnesses.” Willner, 795 F.3d at 1302.
More than anyone else at HCSN, Rousseau was responsible for these
patients: for reviewing their medical needs and qualifications for admission; for
developing an individualized treatment plan for their conditions; for overseeing the
implementation of treatment plans; and for monitoring each patient’s progress and
eligibility for release. He admittedly abdicated all of that responsibility by signing
“whatever medical documents they put in front of him,” in furtherance of fraud,
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without regard to the underlying implications for patients’ health and well-being.
We affirm the application of the vulnerable victims enhancement to his sentence.
III.
In conclusion, we hold that the defendants’ retrial did not violate the Fifth
Amendment guarantee against double jeopardy; that the district court did not
commit any reversible error at trial in its evidentiary and procedural decisions, in
replacing a tardy juror, and in delivering the jury instructions; and we affirm the
application of the organizer or leader and vulnerable victims enhancements to
Rousseau’s sentence.
AFFIRMED.
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