United States v. Douglas Moss

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-14548
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DOUGLAS MOSS,
Defendant-Appellant.
____________________
Appeals from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 7:18-cr-00019-HL-TQL-1
____________________
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2 Opinion of the Court 19-14548
____________________
No. 19-14565
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DOUGLAS MOSS,
Defendant-Appellant.
____________________
Appeals from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 7:18-cr-00019-HL-TQL-1
____________________
Before WILLIAM PRYOR, Chief Judge, LUCK, and ED CARNES, Circuit
Judges.
ED CARNES, Circuit Judge:
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19-14548 Opinion of the Court 3
Medicare and Medicaid combined spend $1,500,000,000,000
a year, which is more than one-third of the total health expendi-
tures in this country.1 Like other government health care pro-
grams, these two work on the honor system. Trust and more trust.
Both programs take a pay first, ask questions later (if ever) ap-
proach. Which leads to crime and more crime, both sooner and
later.
A trust-based system is only as good as the people who are
trusted. Douglas Moss is one of those who was trusted but not
trustworthy. 2 As a physician, he fraudulently billed Medicare and
Medicaid for millions of dollars for visits to nursing home patients
1See Center for Medicare & Medicaid Services, National Health Expenditure
Fact Sheet (Dec. 15, 2021, 4:06 PM), https://www.cms.gov/Research-Statis-
tics-Data-and-Systems/Statistics-Trends-and-Reports/NationalHealthEx-
pendData/NHE-Fact-Sheet.
2 Moss was a physician at the time of the events in this case, but after he was
convicted and sentenced, he surrendered his medical license. That fact is not
included in the record, but we can take judicial notice of it as a publicly avail-
able state agency record, a copy of which has been sent to the clerk for place-
ment on the docket. See Ga. Composite Medical Bd., https://gcmb.myli-
cense.com/verification/Details.aspx?result=192f58db-1778-44c2-af52-
bbe883fa1a62 (last visited Apr. 12, 2022); United States v. Howard, 28 F.4th
180, 186 (11th Cir. 2022); see also 11th Cir. R. 36 IOP 9 (“When an opinion of
the court includes a citation to materials available on a website, the writing
judge will send a copy of the cited internet materials to the clerk for placement
on the docket.”).
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4 Opinion of the Court 19-14548
that he never made. Someone else with a lower billing rate made
some of those visits, and others never took place.
For his fraudulent conduct, Moss was convicted of conspir-
acy and substantive health care fraud, sentenced to 97 months im-
prisonment, ordered to pay restitution of about 2.2 million dollars,
and ordered to forfeit around 2.5 million dollars. He appeals, chal-
lenging the convictions, sentence, restitution amount, and forfei-
ture amount, which is nearly every component of the judgment
against him. And he loses on every component of his appeal.
I. FACTUAL BACKGROUND
To explain Moss’ crimes (what he did, not why he did it
which is obvious) we will begin with how Medicare and Medicaid
determine how much health care providers will be paid. Then we
will turn to how Moss arranged his billing practices to defraud the
programs.
A. Medicare and Medicaid
Medicare and Medicaid are federally funded health care pro-
grams. To make things simpler, from this point forward we will
focus on Medicare (which suffered the brunt of his fraud) with the
understanding that what is said about it applies to Medicaid as well,
except where noted.
Medicare pays “claims,” which are requests by a health care
provider to be “reimbursed” (paid) for services provided to Medi-
care recipients. A claim contains a variety of information, includ-
ing where the medical service was provided, the dollar amount
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19-14548 Opinion of the Court 5
being billed to Medicare, and an identification number for the
health care provider. It also contains a code for the procedure or
service performed.
Those codes are called the “CPT codes,” which stands for
Current Procedural Terminology codes. CPT codes are a national
uniform coding structure created for use in billing and overseen by
the American Medical Association. They are used by all health in-
surance companies and by Medicare and Medicaid. A code repre-
sents at least two things: the procedure or service performed and
the level of complexity involved in it. One type of procedure or
service can have more than one CPT code because the same pro-
cedure may, in some cases, be more complex than in others. Gen-
erally, for any given category of procedure, the more complex the
performance, the higher the number used for its code. In turn, a
higher CPT code generally gets a higher reimbursement amount
from Medicare.
Most of the fraud in this case involves claims for visits to
nursing homes, so we will use that area of care to illustrate how
CPT codes work. When a patient enters a nursing home, a health
care provider’s first visit with that patient is categorized as “initial
nursing facility care,” which corresponds to a particular set of three
CPT codes. The highest of those three is 99306. According to a
CPT manual issued by the AMA, a 99306 coded visit “requires these
3 key components: [a] comprehensive history; [a] comprehensive
examination; and [m]edical decision making of high complexity.”
Giving that code to a visit also means that the problem requiring
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admission to the nursing home is usually one of “high severity,”
and that the health care provider’s visit typically takes 45 minutes.
For later visits to nursing home patients, which are catego-
rized as “subsequent nursing facility care,” there are four codes:
99307, 99308, 99309, and 99310. For 99309, the CPT manual states
that it requires two of the following three “key components”: a de-
tailed interval history, a detailed examination, and medical decision
making of moderate complexity. The manual also states that for a
99309 coded visit: “[u]sually, the patient has developed a significant
complication or a significant new problem” and “[t]ypically, 25
minutes are spent at the bedside and on the patient’s facility floor
or unit.” As for code 99310, the first two “key components” must
be “comprehensive” instead of just “detailed” and the third must
involve “[m]edical decision making of high complexity” instead of
just “moderate complexity.” The manual states that “[t]he patient
may be unstable or may have developed a significant new problem
requiring immediate physician attention,” and that the visit typi-
cally takes 35 minutes.
For Medicare to pay a claim (or “reimburse” it), several re-
quirements must be met. The service must be provided to a real
patient who is properly enrolled as a Medicare beneficiary; it must
be provided by a health care provider properly licensed and “en-
rolled” as a Medicare provider; it must be a service covered by
Medicare; and it must be properly documented and billed. The
service also must be reasonable and medically necessary. Health
care providers sign a “certification statement” agreeing that they
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19-14548 Opinion of the Court 7
will comply with all of those requirements and will not submit false
claims.
When Medicare reimburses a claim, the amount that it pays
is based on a predetermined fee schedule that it sets. A health care
provider is free to submit a claim for a dollar amount that exceeds
the amount in the fee schedule, but Medicare will not pay more
than the schedule amount. It is common practice for physicians to
submit claims exceeding the amount in the fee schedule, even
though they know they won’t get reimbursed the excess amount.
An important fact that determines how much Medicare pays
the provider is whether the service was performed by a physician
or a non-physician. In the nursing home setting, Medicare requires
a distinction between non-physicians, or “mid-level practitioners”
as they are called, and physicians. Physician’s assistants and nurse
practitioners must bill at a rate that is only 85% of the physician’s
rate.
And to properly bill Medicare at the physician’s rate for ser-
vices provided in a nursing home setting, the physician must be the
one in the patient’s room directly providing the service to the pa-
tient. When an assistant performs the service, the claim submitted
to Medicare must disclose that fact.
B. The Fraud Scheme
Moss was the medical director and attending physician at
four nursing homes. He recruited Shawn Tywon to be his physi-
cian’s assistant and, as it turned out, his co-conspirator. Moss had
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8 Opinion of the Court 19-14548
Tywon help with the nursing home patients, and he trained Tywon
how to conduct visits with those patients.
Between January 2012 and January 2015 Moss billed 31,714
claims to Medicare for nursing home visits; 477 were coded as
99306, the highest code for “initial nursing facility care.” And
25,468 were coded as 99309, and 5,769 as 99310, which are the two
highest codes for “subsequent nursing facility care.” In that three-
year period, Moss billed $6,701,163.00 for those claims, and Medi-
care reimbursed him $2,171,098.85. As for Medicaid, during that
same three-year period, Moss billed 17,336 claims for those same
codes, and Medicaid paid him $336,524.84. Nearly all of those
claims were submitted to Medicare as though Moss had personally
performed the services.
Those numbers suggest a staggering amount of work, a
seemingly impossible amount of it. And, as it turned out, that
amount of work was impossible. The claims Moss submitted
would have required him to see more than 50 patients a day for 293
of the days in the three-year conspiracy period, and even more than
100 a day on some days and more than 150 a day on other days.
Not only that, but based on how long the CPT manual suggested
those visits should take, Moss was sometimes billing Medicare for
services that added up to more than 24 hours a day. He did that on
275 days. And on some days he billed for services that would have
taken him more than 70 hours on that day. The services Moss
billed on one stellar day would have required him to put in nearly
100 hours in that one 24-hour period. People sometimes wish there
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were more hours in a day, but Moss alone miraculously stretched
some of his days to far more than 24 hours.
Of course, Moss’ miracle was non-miraculous, old-fashioned
fraud. He obtained money to which he was not entitled by making
statements that weren’t true, or failing to disclose what was true.
One way he crammed into some days more services than any day
could hold is by claiming he had performed services that others ac-
tually had done. He did that so he could bill those services at the
higher physician rate when payment should have been calculated
at the lower rate due the non-physician who had actually per-
formed the services. Typically, that non-physician was Tywon,
who was his physician’s assistant, or it was a different employee
who was a nurse practitioner. Moss specifically directed that those
services be billed in his name at his higher rate even though he
knew that because those services were performed by non-physi-
cians they could lawfully be billed only at a lower rate.
The claims submitted during two periods of time, which are
the basis for the substantive counts against Moss, are examples of
what he did. The first is a series of claims for nearly $52,000, which
collectively represented that from February 1 through 5, 2014,
Moss personally saw 234 Medicare patients and 134 Medicaid pa-
tients in Georgia. The second is a series of claims for just over
$80,000, which collectively represented that from June 10 through
18, 2014, Moss personally had seen 345 Medicare patients and 193
Medicaid patients in Georgia. Those two sets of claims are out-
standing in the field of Moss’ fraudulent claims because, instead of
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10 Opinion of the Court 19-14548
being in Georgia treating patients on those dates, as he claimed,
Moss had been in Las Vegas gambling.
Moss did not travel on only one fraudulent path. In addition
to submitting claims that were fraudulent because he had not per-
formed the services that he had billed in his name and at his rate,
he submitted claims that were fraudulent in another way. He also
submitted claims that were fraudulent because –– whoever he
claimed had performed them –– they were for services that were
medically unnecessary or did not involve the level of complexity
indicated by the CPT codes that Moss put on those claims. Recall
that between January 2012 and January 2015, Moss submitted
31,714 claims for services that he represented were covered by the
highest CPT codes, which were meant to reflect the most complex
procedures or services and that typically required 25 to 45 minutes
a visit. The reality was nowhere close.
Tywon testified that “probably for 95 percent of the time or
more” when he himself had visited a patient, “there was nothing to
do.” Instead, what he would do is walk into the patient’s room, ask
if everything was okay, and because a “majority of the time” the
patient said he didn’t need anything, Tywon would then leave. He
usually did not do a physical examination, take blood pressure, or
check the patient’s pulse. As Tywon stipulated in his plea agree-
ment, he would just “lay eyes” on the patients, spending only “3 to
5 minutes with” them during visits, except for in the uncommon
event that they had some actual medical need. According to him,
there was no medical purpose for most of the visits and he did not
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19-14548 Opinion of the Court 11
think he had any reason to be making them. Moss had him make
the visit anyway and bill it at the highest code solely because Moss
wanted to increase his payments from Medicare, which he did. In
that way, Moss added another layer of fraud on top of billing in his
name instead of Tywon’s name; he also billed for any services that
were provided as if they were far more complex and time consum-
ing than they actually were.
The notes Tywon generated for his patient visits were en-
tirely consistent with his testimony. They were typically copy-
pasted from one visit to the next with the only changes being the
date, a brief indication of what the patient was doing (like eating
lunch or watching tv), and typically noted that there were “no
changes” or “no complaints,” meaning there was nothing new that
was wrong with the patient. Usually when Tywon wrote “no
changes” instead of “no complaints,” it indicated that the patient
was asleep when he visited and did not even wake up. That is a far
cry from what the CPT manual required for the high codes Moss
used to bill the visits: 25 minutes of time, a “significant new prob-
lem,” and a detailed interval history or examination with medical
decision making of moderate complexity.
II. PROCEDURAL HISTORY
A. Indictment and Trial
Moss and Tywon were indicted for defrauding Medicare and
Medicaid. The indictment alleged one count of conspiracy to com-
mit health care fraud, in violation of 18 U.S.C. § 1349, and six
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counts of health care fraud, in violation of 18 U.S.C. § 1347. The
six substantive counts were for specific claims Moss submitted dur-
ing the two time periods when he was in Las Vegas but billed Med-
icare and Medicaid for seeing patients in Georgia. Tywon pleaded
guilty to conspiracy and agreed to cooperate with the government.
Moss went to trial. After a seven-day trial, a jury found him
guilty on all counts. The jury had heard from several witnesses
including Moss’ former employees, a person from a billing com-
pany Moss had used, government investigators, and Tywon.
Those witnesses testified to Moss’ intimate knowledge of Medicare
and Medicaid’s reimbursement rates and coding policies, his in-
structions to generate more (fraudulent) claims to bill to the two
programs, and his instructions to bill all claims in his name and at
the highest CPT codes despite his knowing that doing so was ille-
gal. The jury also heard evidence about how the representations
Moss made in the billings were impossible: his claiming to have
performed more than 24 hours of services a day, his claiming to
have seen over 50 patients a day, and his claiming to have seen pa-
tients in Georgia when he was actually in Las Vegas. It wasn’t a
close case.
B. Sentencing
Moss’ presentence investigation report recommended a
guidelines range of 78 to 97 months. That range was based primar-
ily on a loss of $6,701,163, which was the amount Moss had billed
to Medicare and Medicaid; that factor alone caused an 18-level in-
crease to his offense level. After much argument about the loss
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amount, the district court adopted the PSR but reduced the loss
amount by 10 percent to $6,031,046.70. That reduction was for
what the court estimated to be the value of legitimate medical ser-
vices that Moss had provided. The ten percent reduction to the
loss amount did not, however, change the guidelines range.
The court sentenced Moss to 97 months imprisonment, the
top of the guidelines range. It also ordered him to forfeit
$2,507,623.69 and to pay $2,256,861.32 in restitution. The forfei-
ture amount was for the total that Medicare and Medicaid had paid
to Moss, with no reduction for any legitimate services he had pro-
vided. The restitution amount was what Medicare and Medicaid
had paid Moss, with the 10 percent reduction based on the court’s
estimate of the legitimate services Moss had provided.
Moss moved for a new trial, which the district court denied.
This is his appeal of his convictions and sentence, as well as of the
restitution and forfeiture amounts.
III. CONVICTION ISSUES
As we said in another health care fraud case, Moss “raises
[three] contentions about his convictions, [none] of which ques-
tions the sufficiency of the evidence to convict him.” United States
v. Pon, 963 F.3d 1207, 1219 (11th Cir. 2020). And none of which
has any merit.
A. The Testimony of Tywon’s Attorney
Moss contends that the district court erred in quashing his
subpoena of Tywon’s attorney, Miles Hannan. Moss argues he
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14 Opinion of the Court 19-14548
could have used Hannan’s testimony to impeach the testimony of
Tywon, the government’s key witness. But that is not what attor-
ney Hannan’s testimony would have done.
1. Background
As mentioned, Moss’ co-conspirator Shawn Tywon pleaded
guilty to conspiracy and agreed to cooperate with the government.
Part of Tywon’s plea agreement addressed his compensation dur-
ing the conspiracy. It stated that “Tywon was paid $4500 bi-weekly
by Moss . . . . Aside from his paychecks and occasional loans from
Moss, Tywon received no other form of compensation.” Later,
while being prepared by the prosecutor for his testimony at Moss’
trial, Tywon revealed that he’d also received cash payments from
Moss “on a semi-regular basis” and that Moss had occasionally paid
some of his expenses.
The government became concerned that Tywon had
breached his plea agreement and that attorney Hannan might be
disqualified from representing him. Acting on that concern, it filed
a motion seeking clarification from the court of whether Hannan
had a conflict of interest. The conflict, according to the motion,
was that Tywon told the government he had not mentioned the
cash payments sooner because “Hannan[] had instructed him not
to mention receiving cash beyond his paychecks to the government
‘unless they specifically ask about it.’ Tywon indicated he
had . . . acted under Attorney Hannan’s advice not to mention the
cash . . . throughout his plea negotiations and entry.”
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The motion recounted that the government had contacted
Hannan and asked him if he “had instructed Tywon to conceal ma-
terial facts from the government.” As the government’s motion
described it, Hannan denied doing so and his “version of his con-
versations with Tywon is diametrically opposed to that of his cli-
ent.”
The court held a hearing on the government’s motion for
clarification. At the hearing, the court talked with Tywon and Han-
nan in chambers and outside the presence of the government and
Moss. Tywon told the court about his and Hannan’s failed efforts
to inform the government before the entry of the plea about the
cash payments. He also told the court that when the prosecutors
asked why he hadn’t brought it up sooner he told them: “Well, be-
cause Mr. Hannan told me that when you asked me to bring it up.”
Hannan confirmed Tywon’s statements were “substantially
accurate,” confirmed he had not instructed Tywon to conceal the
cash payments, and indicated what he’d told Tywon was that he
“didn’t need to volunteer any information, just answer any ques-
tions.” He also told the court that the cash payments had “been
there all along” because they were “considered to be loans,” which
is “in the Plea Agreement.” The court ruled that there was only
miscommunication, not any misconduct, and that Hannan was not
disqualified.
Moss sought to call Hannan to testify at Moss’ trial, thinking
that Hannan would contradict Tywon’s testimony. At trial, after
Moss’ defense counsel examined Tywon in front of the jury and
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16 Opinion of the Court 19-14548
then briefly questioned Hannan outside the presence of the jury,
the court quashed Moss’ subpoena of Hannan. It ruled that his tes-
timony would have been about communications protected by the
attorney-client privilege and that Tywon had not waived the privi-
lege.
2. Analysis
Moss argues that the court erred in ruling that Tywon had
not waived the attorney-client privilege and in quashing the sub-
poena of Hannan on that basis. He also argues that the district
court’s ruling violated his Fifth and Sixth Amendment rights to pre-
sent a defense. The government responds that Moss failed to pre-
serve the constitutional objection, meaning plain error review ap-
plies, and that the court committed no error under any standard
anyway. It also argues that any error was harmless.
There are two things we need not decide. The first is
whether Moss preserved his constitutional objection. Cf. Pon, 963
F.3d at 1225–26 (discussing in dicta how not every contemporane-
ous objection is a “constitutional objection” and that “[o]ur prece-
dent indicates that an objection on nonconstitutional grounds is
not enough to preserve a constitutional issue”) (quotation marks
omitted). We need not decide that issue because Moss’ argument
fails whether we apply de novo or plain error review.
The second issue we need not decide is whether Tywon
waived the attorney-client privilege. Even if he did and the court
erroneously quashed the subpoena of Hannan in violation of Moss’
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19-14548 Opinion of the Court 17
constitutional rights, any error was harmless beyond a reasonable
doubt. See id. at 1226–27 (explaining that a “constitutional error is
harmless if the government proves beyond a reasonable doubt that
the error complained of did not contribute to the verdict obtained,”
and satisfying that standard “necessarily means that any nonconsti-
tutional error . . . was harmless as well”) (quotation marks omit-
ted). The court’s ruling was harmless because Hannan’s testimony
would not have helped Moss, and likely would have hurt him by
corroborating Tywon’s testimony.
Moss’ theory rests on a faulty foundation: that Hannan’s tes-
timony could have been used to impeach Tywon. He bases that
belief on the government’s motion seeking clarification of whether
Hannan was disqualified. That motion stated that Hannan’s “ver-
sion of his conversations with Tywon is diametrically opposed to
that of his client.” But Moss fails to account for all the evidence,
testimony, and clarification that came after that motion. And what
he doesn’t account for indicates the opposite of what Moss as-
serts — it shows that Hannan’s testimony would have corrobo-
rated Tywon’s testimony, not impeached it.
That Hannan would have corroborated Tywon’s testimony
is evident both from the conversation the two of them had with
the district court judge in chambers and from the questioning of
each of them during the trial. In chambers, Tywon explained to
the judge what had happened, including the fact that he had ini-
tially told the government that he did not bring up the cash pay-
ments sooner “because Mr. Hannan told me that when [the
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18 Opinion of the Court 19-14548
government] asked me[,] to [then] bring it up.” When asked if
Tywon’s explanation was “substantially accurate” Hannan said
“yes.” That’s agreement not disagreement, corroboration not con-
tradiction.
The consistency between Tywon’s and Hannan’s accounts
of what happened was also evident in what took place in the court-
room. Moss’ counsel cross-examined Tywon extensively in the
presence of the jury about the cash payments and plea agreement.
He asked Tywon if he had told the government that his “lawyer
told [him] not to reveal the cash throughout the investigation, to
the judge or to anyone.” Tywon responded unequivocally: “No.”
That is the same answer attorney Hannan gave during the trial
when Moss’ defense counsel asked him outside the presence of the
jury whether he had told Moss to conceal the cash payments from
the government.3
After more cross-examination at trial, Tywon specified that
what he’d told the government about the payments was: “My at-
torney told me not to volunteer that until it was asked — or not to
reveal that until I was asked.” That is also what Hannan had pre-
viously told the court, before the trial, when he was questioned by
the court in chambers. And when Moss’ counsel had a chance to
question Hannan at the trial and outside the presence of the jury,
3Hannan was not on the stand or under oath when he gave that answer. The
district court explained that: “You are an officer of the Court. It is not required
that you be put under oath.”
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19-14548 Opinion of the Court 19
counsel did not ask him whether he had simply given Tywon the
generalized advice about not volunteering information. Had that
question been asked of Hannan, as the government surely would
have if he had testified before the jury, his in-chambers statement
indicates that his answer would have been consistent with Tywon’s
testimony.
There is more evidence that Hannan would have corrobo-
rated Tywon’s testimony that the cash payments were considered
“loans,” which the plea agreement expressly mentioned. Tywon
testified before the jury that Moss had told him the cash payments
were actually loans and that Tywon did not have to claim them on
his taxes because “the accountant has it worked out as a loan.” Ear-
lier, during the in-chambers questioning, Hannan had told the
judge that the cash payments had “been there all along” because
the “money that [Tywon] was receiving in the form of cash was
later considered to be loans,” so “it’s in the Plea Agreement.” Had
he testified before the jury, Hannan would have corroborated
Tywon’s testimony about the cash payments being loans.
As a result, any erroneous exclusion of attorney Hannan’s
testimony was harmless beyond a reasonable doubt. His testimony
would not have impeached Tywon’s.
B. Character Witnesses
Moss contends that the district court erred in limiting how
many character witnesses he could present to “rebut[] the
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20 Opinion of the Court 19-14548
government’s attempt to portray Dr. Moss as an uncaring, unsym-
pathetic doctor, only concerned about money.”
Moss was allowed to present six character witnesses: four
former patients, one former patient’s wife, and one registered
nurse who had worked with him in an emergency room. Those
witnesses testified in detail about the medical care that Moss pro-
vided, and they testified consistently that in their opinions he had
a good character and was compassionate, caring, and honest. Their
testimony covered a total of roughly 54 transcript pages. When
Moss attempted to call even more character witnesses — he had as
many as ten more he wanted to put on the stand — the court de-
nied him permission because their testimony “would be cumula-
tive.”
Moss challenges that ruling. He argues that he needed more
character witnesses to rebut the government’s portrayal of him be-
cause “quantity is quality,” and it would be harder for the jury to
dismiss opinions about Moss if “they were supported by patient,
after patient, after patient.”
It is well-established that district courts have considerable
“discretion to limit the number of character witnesses” and that
“we should overturn these determinations ‘rarely and only on a
clear showing of prejudicial abuse of discretion.’” United States v.
Benefield, 889 F.2d 1061, 1065 (11th Cir. 1989) (cleaned up)
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19-14548 Opinion of the Court 21
(quoting Michelson v. United States, 335 U.S. 469, 480 (1948)); see
also Fed. R. Evid. 403.
The discretion vested in the district courts has long been rec-
ognized, originating at least a century ago in a decision of our pre-
decessor Court. See, e.g., Chapa v. United States, 261 F. 775, 776
(5th Cir. 1919) (affirming the district court’s decision to allow only
13 of 150 tendered witnesses to testify that they had been cured by
an occultist because “[i]t is discretionary with a trial court to limit
the amount of cumulative evidence, and in this case it does not ap-
pear that this discretion was abused”). 4 We have upheld a district
court limiting a defendant to presenting only five of ten character
witnesses, see Benefield, 889 F.2d at 1065–66, and have several
times upheld a limit of three, see, e,g., United States v. Gray, 507
F.2d 1013, 1015–16 (5th Cir. 1975). Those decisions and others like
them establish that Moss has not made a “clear showing of preju-
dicial abuse of discretion” in the district court’s limitation on his
number of character witnesses. Benefield, 889 F.2d at 1065 (quota-
tion marks omitted).
We add that Moss overstates the importance of character
witness testimony in this case. The court prohibited the character
witnesses from testifying to Moss’ billing practices, a ruling he does
not challenge. And billing practices were what mattered given the
4
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
we adopted as binding precedent all decisions of the former Fifth Circuit issued
before October 1, 1981.
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22 Opinion of the Court 19-14548
charges. Moss was not on trial for being unkind or uncaring, or for
not being compassionate when he did see patients, but for lying
about seeing some patients at all and for billing Medicare for ser-
vices he did not provide.
C. Closing Argument
Moss contends that the district court improperly limited part
of his counsel’s closing argument when he was discussing whether
Moss had made a profit. The government had argued that he was
motivated by profit. And profit is relevant to motive, which is al-
ways relevant in a criminal case. See United States v. Hill, 643 F.3d
807, 843 (11th Cir. 2011). But the argument of Moss’ counsel that
the court limited was not about whether profit had motivated
Moss. Instead, it was about whether the government had proven
Moss’ medical practice made a profit. That argument would have
misled the jury by treating profit as an element of the crime and
the failure to prove profit as a basis for acquittal.
Defense counsel began by discussing the expenses Moss had
practicing medicine. He argued that the government had “brought
you an FBI agent who spent all this time looking at the bank rec-
ords. I don’t know what the math is in Washington, but Dr. Moss
had all of the expenses.” After briefly discussing those expenses,
counsel said: “And [the government is] saying [Moss] made a profit?
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19-14548 Opinion of the Court 23
There’s not one bit of proof. They have a duty to prove it beyond
a reasonable doubt. They don’t prove it, you acquit.”
A transcript paragraph later, Moss’ counsel went back to
what the government had to prove, stating:
So now, as you said, the judge will tell you we don’t
have to prove anything because he’s presumed inno-
cent. They failed to bring you any accounting that he
made a dime. That he made a dollar. Or that he
didn’t lose money. It’s vacant. But they stood up
here and said it went into his bank account. Not into
Shawn Tywon’s.
At that point the court intervened. It stated that whether Moss
“made a profit in his medical practice was not an issue in the case,
and I think that’s an improper argument. And I so instruct the jury.
Don’t argue that.”
That ruling and that instruction were not error. It is one
thing to argue that a defendant was not motivated by profit and
another to argue that he didn’t commit a crime because there was
no proof that he had netted a profit. No one, including criminals,
is perfect. A person can be motivated to commit a crime by hope
of profit, even though he does not succeed in turning one. The
government does not have to prove a penny of profit to establish
the elements of fraud. A paucity of proof of profit is no defense.
Defense counsel was not entitled to argue that it was.
IV. SENTENCE ISSUES
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24 Opinion of the Court 19-14548
Moss challenges the loss amount used to determine his sen-
tence, the dollar amount he must pay in restitution, and how much
he must forfeit.
A. Intended Loss Amount
Moss contends that his sentence should be vacated because
the district court miscalculated the loss amount attributable to him,
resulting in an offense level and a guidelines range that were higher
than they should have been. An issue about the calculation of the
guidelines range goes to the procedural reasonableness of the sen-
tence. See United States v. Green, 981 F.3d 945, 953 (11th Cir.
2020).
The district court found that Moss was accountable for a loss
amount of $6,031,046.70. That finding was based on an intended
loss of $6,701,163. That was the amount Moss had billed to Medi-
care, reduced by 10 percent, which was the court’s estimate of the
value of the legitimate medical services he had provided. Moss at-
tacks both the intended loss amount of $6.7 million which he thinks
should be lower, and the 10 percent reduction which he thinks
should be higher.
“[W]e review the district court’s loss determination only for
clear error.” United States v. Bazantes, 978 F.3d 1227, 1249 (11th
Cir. 2020). Because “[d]istrict courts are in a unique position to
evaluate the evidence relevant to a loss determination, . . . their de-
terminations are entitled to appropriate deference.” United States
v. Moran, 778 F.3d 942, 973 (11th Cir. 2015); accord U.S.S.G.
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19-14548 Opinion of the Court 25
§ 2B1.1 cmt. n.3(C). A district court need not make a precise deter-
mination of loss amount, but only a reasonable estimate of it given
the available information. Moran, 778 F.3d at 973. The estimate
must be based on “reliable and specific” facts, and the court cannot
“speculate about the existence of facts that would result in a higher
sentence.” See id. Instead, it must make factual findings about the
loss amount “based on evidence heard during trial, undisputed
statements in the PSI, or evidence presented during sentencing.”
Id.
As for the intended loss amount attributed to Moss, the
court followed U.S.S.G. § 2B1.1 and its commentary about in-
tended loss. That commentary is “binding on the courts” because
it does not “contradict the plain meaning of the text of the Guide-
lines.” See United States v. Wilks, 464 F.3d 1240, 1245 (11th Cir.
2006) (quotation marks omitted). It specifies that “loss is the
greater of actual loss or intended loss.” U.S.S.G. § 2B1.1 cmt.
n.3(A). And it also specifies that “[i]ntended loss” is “the pecuniary
harm that the defendant purposely sought to inflict,” including “pe-
cuniary harm that would have been impossible or unlikely to oc-
cur.” Id. at cmt. n.3(A)(ii). One example the commentary gives of
unlikely harm that should be included is “an insurance fraud in
which the claim exceeded the insured value.” Id.
And when it comes to “federal health care offenses involving
government health care programs,” § 2B1.1’s commentary pro-
vides a rebuttable presumption that the intended loss equals the
amount the defendant billed a government agency. Id. at cmt.
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26 Opinion of the Court 19-14548
n.3(F)(viii) (emphasis and capitalization omitted). The commen-
tary puts it this way: “[T]he aggregate dollar amount of fraudulent
bills submitted to the Government health care program shall con-
stitute prima facie evidence of the amount of the intended loss, i.e.,
is evidence sufficient to establish the amount of the intended loss,
if not rebutted.” Id.
Moss contends that presumption was rebutted because the
evidence showed he was highly knowledgeable about Medicare’s
reimbursement policies. He argues that evidence establishes he
knew Medicare would not pay more than what is in its reimburse-
ment schedules, regardless of how high he overbilled. Moss’ argu-
ment actually goes further than that. He argues he knew Medi-
care’s reimbursement schedules so well that he knew exactly how
much he’d get: the roughly $2.5 million that Medicare ended up
paying him. And since he knew that Medicare would pay only $2.5
million, he argues, that was the amount he intended to receive, and
no more than that.
We will assume that Moss’ knowledge of Medicare’s reim-
bursement policies and schedules is enough to rebut the presump-
tion in § 2B1.1’s commentary that the intended loss was the
amount he billed Medicare. Even assuming that, the district court
still did not clearly err in finding that Moss’ intended loss is $6.7
million, not $2.5 million.
After all, intended loss is “pecuniary harm that the defendant
purposely sought to inflict” and also “includes intended pecuniary
harm that would have been impossible or unlikely to occur.”
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19-14548 Opinion of the Court 27
U.S.S.G. § 2B1.1 cmt. n.3(A)(ii) (emphasis added). The plain mean-
ing of that definition is confirmed by the commentary’s insurance
fraud example we mentioned. Id. What makes it unlikely the ac-
tual loss will be as high as the full amount of the fraudulent insur-
ance claim is that the claim exceeds the insured value, and insur-
ance companies rarely if ever slip up and pay the excessive amount.
The hypothetical defendant in that commentary example knew it
was “unlikely” the claim would be paid in full, but he submitted
the full amount anyway with the greedy hope that he would mis-
takenly be paid the full amount.
That commentary example is similar to what Moss did. He
intentionally billed in a way that would maximize the money he
received from Medicare. As the district court put it: “[W]hile
[Moss] may not have expected that Medicare . . . would reimburse
him at a rate of 100 percent, it is apparent that he manipulated his
billings to maximize his profits. The Court finds this evidence cred-
ible.” The way Moss “maximized” his profits was by always billing
his claims at a rate higher than the one in Medicare’s schedules.
That matters because Medicare pays either the billed amount or
the scheduled amount, whichever one is lower. If the schedule says
$100 and the physician’s claim says $60, Medicare will pay $60. But
if the schedule says $100 and the physician’s claim says $120, Med-
icare will pay $100. By billing more than the scheduled amount,
Moss ensured that he always got the full amount Medicare would
pay.
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28 Opinion of the Court 19-14548
That’s not the only way that overshooting the payment
schedules profited him. Medicare adjusts those schedules at least
annually. By billing well over the scheduled amount, Moss may
have been able to capture rate increases up to his billed amount.
His own argument is that he knew Medicare’s reimbursement pol-
icies exceptionally well. It follows that he would have known
about Medicare periodically adjusting its payment schedules. He
would have known how inflating the amount of each bill would
get him the maximum possible payments from Medicare and the
full benefit from any of its schedule increases.
It was unlikely that Medicare’s rates would have increased
all the way up to the amount Moss billed, or that Medicare would
have mistakenly paid him the full billed amount. But Moss tried.
As we’ve said several times now, intended loss includes even loss
and harm that is unlikely to occur. The factfindings made by the
district court show that Moss’ actions fall within § 2B1.1’s com-
mentary and its example. Our review of the intended loss amount
is only for clear error, and there is none.
B. Restitution
Moss contends that the $2,256,861.32 the district court or-
dered him to pay in restitution is too much. The court added the
amounts that Medicare and Medicaid had paid him for claims
billed under CPT codes 99306, 99309, and 99310, which came to a
total of $2,507,623.69. It reduced that amount by $250,762.37,
based on the court’s estimate that 10 percent of the services Moss
provided had been legitimate.
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19-14548 Opinion of the Court 29
Moss claims that he is entitled to more than a 10 percent re-
duction for legitimate services. He claims that the 10 percent re-
duction is based on nothing but a single line of testimony from
Tywon: his statement that when he visited patients “probably for
95 percent of the time or more, there was nothing to do,” meaning
that 95 percent of the time the visits were not medically necessary.
(The court apparently doubled the percentage of medically neces-
sary visits from Tywon’s testimony, which was to Moss’ benefit.)
Instead of relying on Tywon’s testimony, Moss says, the court
should have used an estimate he provided in a sentencing memo-
randum and presented at the sentence hearing. Moss’ estimate was
that the value of legitimate services was $1,079,219.39, which
would reduce restitution to $1,428,404.30. 5
We review de novo the legality of a restitution order, but
only for clear error the factual findings underpinning the order.
United States v. Edwards, 728 F.3d 1286, 1291 (11th Cir. 2013). We
will find a clear error if, “after reviewing all the evidence, we are
5 The loss amount that determines Moss’ offense level is also reduced for le-
gitimate services rendered. See U.S.S.G. § 2B1.1 cmt. n.3(E)(i). Moss received
an increase of 18 levels because the loss amount was between $3.5 and $9.5
million. See U.S.S.G. § 2B1.1(b)(1). We have already held that the proper
starting point for calculating Moss’ loss amount is an intended loss of roughly
$6.7 million. Supra at 29. Even if we subtract from that figure the total
amount of legitimate services Moss argues he provided, it would not take the
loss amount below $3.5 million, so it would not affect his guidelines range.
Any error would be harmless. See United States v. Sarras, 575 F.3d 1191, 1220
n.39 (11th Cir. 2009).
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30 Opinion of the Court 19-14548
left with the definite and firm conviction that a mistake has been
committed.” United States v. Alicea, 875 F.3d 606, 608 (11th Cir.
2017) (quotation marks omitted).
“Under 18 U.S.C. § 3663A(c), [the Mandatory Victims Resti-
tution Act,] a defendant convicted of fraud must pay restitution to
victims of the offense.” United States v. Bane, 720 F.3d 818, 827
(11th Cir. 2013). Restitution “must be based on the amount of loss
actually caused by the defendant’s conduct,” United States v. Bald-
win, 774 F.3d 711, 728 (11th Cir. 2014), and reduced by the value of
legitimate medical services provided, see Bane, 720 F.3d at 828.
Moss “bears the burden to prove the value of any medically neces-
sary goods or services he provided that he claims should not be in-
cluded in the restitution amount.” Id. at 829 n.10.
When calculating the restitution amount, “the determina-
tion . . . is by nature an inexact science, [and] where difficulties
arise, a district court may accept a ‘reasonable estimate’ of the loss
based on the evidence presented.” Baldwin, 774 F.3d at 728 (cita-
tion omitted). Difficulties have certainly arisen here. There is no
“definite and easy” way to calculate restitution with “a simple
mathematical exercise.” United States v. Sheffield, 939 F.3d 1274,
1277–78 (11th Cir. 2019). Although there is a record of how much
Medicare and Medicaid paid to Moss and that number is exact, the
dollar amount of legitimate services is anything but exact. The
only thing anyone can do is estimate.
That includes Moss, who, as mentioned, provided the dis-
trict court with an estimate of legitimate services. He provided the
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19-14548 Opinion of the Court 31
estimate in a sentencing memorandum that explained the method-
ology behind it, and he also called as a witness at the sentence hear-
ing the medical practice consultant who had helped prepare Moss’
estimate.
After the court reviewed the sentencing memorandum, lis-
tened to extensive direct and cross-examination of Moss’ medical
practice consultant witness, asked that witness additional ques-
tions, and heard argument from and questioned the attorneys, the
court rejected Moss’ estimate. The court primarily pointed out a
problem with Moss’ methodology. It noted that he had presented
evidence that patients had been visited, but not that the visits were
medically necessary in the first place. The court put it like this:
“While presenting evidence as to the number of visits performed,
[Moss] has failed to present evidence establishing the legitimacy of
those visits. It is of no consequence that Mr. Tywon may have seen
an average of 4.5 rehab patients a day when Mr. Tywon has testi-
fied that 95 percent of those services were fraudulent.”
We have carefully reviewed Moss’ estimate and conclude
that the district court did not clearly err in rejecting it and in iden-
tifying the fatal defect in his methodology we just discussed. The
burden was on Moss to show that the services he provided were
medically necessary. See Bane, 720 F.3d at 829 n.10. When services
are not medically necessary, Medicare reimburses at a rate of $0.
Because of that, it does not matter how many medically unneces-
sary visits Moss and his employees may have made to patients,
which was the basis of Moss’ estimate. Zero times a thousand is
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32 Opinion of the Court 19-14548
still zero. Because Moss’ estimate failed to embrace, salute, or even
nod at medical necessity, the district court did not clearly err in giv-
ing it little or no value.
As for the district court’s estimate of 10 percent, it was not
clearly erroneous and there was evidence supporting it. One major
piece of evidence was Tywon’s testimony. He estimated that only
five percent of the time when he visited patients was there anything
to do. The court’s findings about legitimate services expressly re-
lied on Tywon’s testimony, indicating that it found him credible.
We defer to the court’s credibility determinations. See United
States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002). (As
we’ve mentioned, just to be safe the court doubled in Moss’ favor
Tywon’s estimated percentage of legitimacy, which is not some-
thing Moss can complain about.) Additionally, Tywon’s testimony
was supported by the notes that documented his patient visits,
which were mostly copy-pasted from one to the next and rarely
reflected any changed medical conditions.
Our review of Moss’ estimate and the court’s reasons for re-
jecting it does not leave us with a firm and definite conviction that
the court made a mistake. The court committed no clear error in
rejecting Moss’ estimate and in ordering restitution in the amount
of $2,256,861.32.
C. Forfeiture
The district court ordered Moss to forfeit $2,507,623.69.
That is the total that Medicare and Medicaid paid him for claims
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19-14548 Opinion of the Court 33
billed under CPT codes 99306, 99309, and 99310. Unlike with the
restitution amount, the court did not reduce the forfeiture amount
by 10 percent for legitimate services. Nor, for that matter, did it
reduce the forfeiture amount by any estimate for legitimate ser-
vices. Moss contends that was error. He argues that the forfeiture
amount must be reduced by the amount of legitimate services he
provided. The issue turns in part on statutory interpretation and
in part on a factual determination.
“In reviewing forfeiture orders, we review findings of fact
for clear error and legal conclusions de novo.” United States v.
Goldstein, 989 F.3d 1178, 1202 (11th Cir. 2021). We review de novo
questions of statutory interpretation. United States v. Segarra, 582
F.3d 1269, 1271 (11th Cir. 2009).
An important preliminary point is that just because the loss
and restitution amounts were reduced by 10 percent does not nec-
essarily mean the forfeiture amount must be. “[R]estitution and
forfeiture serve different goals. The focus of restitution is on the
victim, but forfeiture focuses on the defendant.” United States v.
Hoffman-Vaile, 568 F.3d 1335, 1344 (11th Cir. 2009) (citation and
quotation marks omitted and alterations adopted). Unlike restitu-
tion, “forfeiture is also a punitive action against the defendant.” Id.at 1344–45 (quotation marks omitted). In addition to those differ-
ent purposes, the forfeiture order in this case was required by dif-
ferent and broader statutory text than the restitution order. That
text is our focus.
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34 Opinion of the Court 19-14548
Forfeiture was ordered under 18 U.S.C. § 982(a)(7), which
provides that, in convictions for federal health care offenses like
Moss’, the court “shall order the person to forfeit property, real or
personal, that constitutes or is derived, directly or indirectly, from
gross proceeds traceable to the commission of the offense.” The
question is whether that text encompasses the proceeds Moss’ re-
ceived for providing legitimate services. The key to answering the
question is determining what makes proceeds “gross proceeds
traceable to the commission of the offense.”
Our precedent tells us how to make that determination. We
have effectively defined § 982(a)(7)’s use of the words “gross pro-
ceeds traceable” to impose a “but for” standard. See Hoffman-
Vaile, 568 F.3d at 1344. We did so in holding that a defendant who
had been reimbursed by Medicare as well as private parties had to
forfeit the amounts received from both Medicare and the private
parties. Id. We concluded that the amounts the defendant “re-
ceived from private insurance companies [were] ‘gross proceeds
traceable to the commission of’ her fraud because, but for her Med-
icare fraud, she would not have been entitled to collect these
sums.” Id. (emphasis added).
The D.C. Circuit has used similar “but for” reasoning when
deciding whether forfeiture ordered under § 982(a)(7) excludes le-
gitimate services from proceeds. See United States v. Bikundi, 926
F.3d 761 (D.C. Cir. 2019). It held “no” in a case where the money
obtained from the fraud had propped up the defendants’ legitimate
services. See id. at 793. As the district court had found, the fraud
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19-14548 Opinion of the Court 35
was pervasive and the defendant’s operations could not have con-
tinued at all without it. Id. Part of its findings were that the de-
fendants’ company “would not have operated but for [each] de-
fendant’s fraud” and that the total amount of Medicaid proceeds
received “was only paid due to the defendants’ persistent and ram-
pant fraudulent conduct.” Id. (quotation marks omitted; alteration
and emphasis in original). “Because the pervasive fraud was inte-
gral to each and every Medicaid payment to” the defendants, all of
the payments were properly considered as being “constitute[d]” or
“‘derived, directly or indirectly’ from ‘gross proceeds traceable’” to
the fraud. Id. (quoting 18 U.S.C. § 982(a)(7)) (alteration in original).
That statutory interpretation points us toward using a but
for test, which leaves this factual determination: but for his Medi-
care fraud, would Moss have been entitled to collect proceeds for
his legitimate services? See Hoffman-Vaile, 568 F.3d at 1344;
Bikundi, 926 F.3d at 793. “But for” means that if one thing hadn’t
happened another thing would not have happened. “In other
words, a but-for test directs us to change one thing at a time and
see if the outcome changes. If it does, we have found a but-for
cause.” Bostock v. Clayton Cnty., Ga., 140 S. Ct. 1731, 1739 (2020).
So we ask if Moss had not committed fraud, would he have been
entitled to any proceeds for his legitimate services?
As an illustration, consider a hypothetical where a doctor
submits three claims. Claims one and two involve some legitimate
services but are fraudulent because they are improperly billed
while claim three is legitimate and properly billed, not fraudulent.
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36 Opinion of the Court 19-14548
Take away the fraud — which is claims one and two — and claim
three would still be for legitimate proceeds that the doctor would
be entitled to be paid for even without the fraudulent claims. 6
Compare and contrast that with Moss. As in the hypothet-
ical, Moss’ fraud was his improper billing of claims. But take away
the fraudulent billing and what’s left? The record does not reveal
any of Moss’ claims that were both for legitimate services and
properly billed — no “claim three” category claims were shown.
Not a single one. As far as the record shows, it’s all fraudulent bill-
ing. During both the sentence proceedings and this appeal Moss
has not identified one specific claim in the record that was properly
billed.
Here’s the thing. It is not enough that Moss and his employ-
ees may have provided some underlying legitimate services but
overbilled for them. That’s not enough because Medicare values
an improperly billed claim at $0, regardless of what amount of un-
derlying legitimate services might have been provided and could
have been reimbursed if there hadn’t been any improper billing.
6 There may still be reasons that claim three in that hypothetical would fail the
but-for test. One reason would be a Bikundi scenario, where the legitimate
services were being so heavily propped up by money from the fraud that they
could not exist without it. See Bikundi, 926 F.3d at 793 (holding there should
be no reduction in the forfeiture amount based on legitimate services where
the district court had found that the defendant’s “continuing operations were
maintained based on fraudulent records in employee and patient files and
fraudulent timesheets submitted for reimbursement”).
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19-14548 Opinion of the Court 37
For example, if a medical service was performed by a physician’s
assistant and could properly have been billed at $75, but was im-
properly billed at the physician’s rate of $100, Medicare would not
value that claim at, or pay, $75. Instead, Medicare would value the
claim at, and pay, $0 because it was improperly billed. Had Medi-
care known of Moss’ improper billing, it would not have paid him
some discounted rate — it would have paid him nothing. The
gross proceeds from an improperly billed claim are all traceable to
the improper billing, even the portion of proceeds that could have
been paid for legitimate services if they had been properly billed.
Because the question of whether the record shows any of
Moss’ claims were properly billed is a factual one, we review only
for clear error the district court’s implicit finding that none were
properly billed. See Goldstein, 989 F.3d at 1202. Given Moss’ fail-
ure to identify a single properly billed claim, he has not persuaded
us that the district court clearly erred.
AFFIRMED.