United States v. Sandra Thompson

Case: 18-30390 Document: 00514834218 Page: 1 Date Filed: 02/13/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 18-30390
Fifth Circuit
FILED
February 13, 2019
UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
SANDRA PARKMAN THOMPSON,
Defendant - Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:13-CR-243-2
Before HIGGINBOTHAM, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM:*
Sandra Parkman Thompson appeals her convictions for conspiracy,
health care fraud, and receipt of health care kickbacks. She was convicted by
a jury in the Eastern District of Louisiana as a result of her participation in a
health care fraud scheme at Psalms 23, a durable medical equipment (“DME”)
company, where she worked as a medical marketer. On appeal, Thompson
argues that there was insufficient evidence to sustain her convictions and that
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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the district court abused its discretion by failing to provide the jury with
Thompson’s proposed theory of the defense. We affirm.
I.
Thompson worked as a medical marketer for Psalms 23 Durable Medical
Equipment, a DME supply company in New Orleans owned by Tracy Brown.
Medicare covers certain DME, which is equipment designed for a medical
purpose for repeated use such as power wheelchairs (“PWCs”) and accessories,
orthotics, walkers, and commodes. For a beneficiary to be eligible for DME
under Medicare, a physician is required to examine the patient and determine
that the DME is medically necessary. The Medicare supplier manual sets out
the requirements for a determination of medical necessity for various DME—
for example, Medicare covers PWCs when a patient would be bed- or chair-
confined without the wheelchair, is unable to operate a wheelchair manually,
and is capable of operating the controls of the power wheelchair. In order for
Medicare to pay a claim to a DME supplier, the beneficiary needs a physician’s
order for the specific piece of equipment and the physician’s progress notes
showing the diagnosis. The patient then takes the order to any DME supplier,
who determines the sizing of the DME and, if applicable, goes to the patient’s
home to verify that the equipment is compatible. To be eligible for Medicare
reimbursement, a DME supplier is required to enroll in the Medicare program
and agree to follow Medicare rules. Among other prohibitions, the Medicare
rules prevent DME suppliers from accepting kickbacks, or payment for making
a referral for DME, and prevent routine waivers of copayments.
Fraud investigators working on behalf of Medicare started investigating
Psalms 23 after receiving a fraud alert from Medicare stating that suppliers
were billing for the same patients to receive “arthritis kits,” an item which
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Medicare does not cover, and PWCs. 1 The fraud investigator referred the case
to the Office of Inspector General, detailing the problems with the
reimbursement documentation submitted by Psalms 23, including the fact that
the documentation submitted was on Psalms 23 letterhead, 2 Psalms 23 did not
provide some of the DME for which it sought reimbursement, and many
patients did not have progress notes showing diagnosis or treatment that
would correspond to DME received.
As a medical marketer, it was Thompson’s job to identify patients for
potential referral for DME who were covered under Medicare. 3 In an interview
with FBI Special Agent Steed, 4 Thompson described her referrals of Medicare
beneficiaries, primarily to Dr. Anthony Jase, for PWCs and arthritis kits: she
referred family members and those she recruited at community health fairs;
wore a lab coat or scrubs to attract people who may have medical needs; and
targeted a 55-and-older high-rise, where she had a contact who would give her
information about new residents in exchange for beer. Dr. Jase testified that
Thompson would refer patients to him, telling him that the patients had been
displaced by Hurricane Katrina, had lost their DME in the displacement, and
had been disconnected from their doctors. Thompson asked Dr. Jase to write
prescriptions for replacement DME for the patients and Dr. Jase would write
1 Twilla Bacon, the investigator, testified that the arthritis kits were a “red flag”
because all of the patients were given braces for both arms, both legs, a back brace, and a
heating pad which Bacon testified was not a normal order from other suppliers. She testified
that it was a red flag for a patient who was prescribed an arthritis kit to be given a PWC
because it would be unusual to see braces on both arms and legs along with the use of a power
wheelchair.
2 Bacon testified that forms completed by the doctor would not normally be on supplier
letterhead. She stated that “every single form was on a Psalms 23 . . . generated form.”
3 In her interview with FBI Special Agent Steed, Thompson described those patients
as those with a “red, white, and blue card.”
4 Special Agent Steed described the tone of the interview as “very cordial, very
friendly, non-confrontational.”
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a prescription without having seen or examined the patients. 5 Dr. Jase would
sign the order forms prescribing DME and “face-to-face” forms that were
supposed to be filled out contemporaneously with seeing a patient. He testified
that he never filled out any part of the form other than the signature line. Dr.
Jase also stated that Thompson was the only medical marketer he worked with
from Psalms 23. Thompson was paid $500 for every patient who received a
PWC and $300 for every patient who received an arthritis kit.
In a June 2010 phone call recorded by the government, Dr. Jase called
Thompson and informed her that he had spoken to federal agents about signing
prescriptions for DME to be supplied by Psalms 23 and another DME company,
Lobdale Medical Services, LLC (“Lobdale”). During that call Thompson
discussed giving blank order sheets to Dr. Jase to sign and agreed that they
would “be on the same page.” 6
In 2010, Thompson was indicted in the Middle District of Louisiana for
a separate conspiracy arising out of her work as a medical marketer for
Lobdale. 7 The course of conduct in the Lobdale case was almost identical to the
instant conspiracy: Thompson participated in a scheme through which Lobdale
charged Medicare for durable medical equipment that beneficiaries did not
need or did not receive. 8 Thompson received a commission for recruiting
individuals to receive equipment and used false information about the
5 Dr. Jase testified that he never saw any of the patients referred by Thompson for the
purpose of prescribing DME.
6 Thompson told Dr. Jase: “We going to be on the same page but let me tell you this. I
want, I want you to hear this clear. There ain’t no way that I’m gonna let you go down for
nothing. I’m not fixing to let you go down on no lie. I’m not fixing to let you go down—if I got
to go to jail you ain’t going down on nothing.”
7 United States v. Thompson, 569 F. App’x 316 (5th Cir. 2014) (per curiam) (affirming
Thompson’s conviction).
8 Id.
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beneficiaries to obtain prescriptions and orders for medical equipment from Dr.
Jase. 9
While serving her sentence for her conviction in the Lobdale case,
Thompson was indicted in the instant case. On November 1, 2013, a grand jury
returned an indictment charging Thompson with one count of conspiracy to
commit health care fraud, in violation of 18 U.S.C. § 1349 (Count 1); one count
of conspiracy to pay and receive health care kickbacks, in violation of 18 U.S.C.
§ 371 (Count 2); five counts of health care fraud, in violation of 18 U.S.C.
§ 1347 and 18 U.S.C. § 2 (Counts 3–7), and five counts of receipt of health care
kickbacks, in violation of 42 U.S.C. § 1320a-7(b)(1)(A) and (2)(A) (Counts 13–
18). 10
The case proceeded to trial and Thompson made motions for acquittal at
the close of the government’s case and after the close of the defense case which
were denied. On November 7, 2017, a jury convicted Thompson of both
conspiracy counts (Counts 1–2), two counts of health care fraud (Counts 3–4)
and five counts of receipt of health care kickbacks (Counts 13–18). Thompson
was acquitted on three counts of health care fraud (Counts 5–7). Thompson
filed a post-trial motion for judgment of acquittal which the district court
denied. Thompson was sentenced to 32 months’ imprisonment. This appeal
followed.
II.
Thompson contends that the evidence was legally insufficient to support
her convictions for conspiracy, health care fraud, or receipt of kickbacks. We
Id.
9
Thompson was indicted with her alleged co-conspirator, Tracy Brown. Prior to trial,
10
Thompson moved to dismiss the indictment on double jeopardy grounds, arguing that her
indictment in this case charged the same offenses of which she had been convicted in the
Lobdale case. The district court denied that motion and this court affirmed. United States v.
Thompson, 690 F. App’x 244 (5th Cir. 2017) (per curiam).
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review challenges to the sufficiency of evidence de novo, asking whether a
rational jury could find that all the elements of the crime were proved beyond
a reasonable doubt. 11 In making that determination, “we view the evidence and
all inferences to be drawn from it in the light most favorable to the verdict.” 12
While “[a] conviction may not rest on ‘mere suspicion, speculation, or
conjecture, or on an overly attenuated piling of inference on inference,’” 13 the
conviction will be affirmed “if ‘any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’” 14
A.
Thompson first challenges the sufficiency of the government’s evidence
of conspiracy. Relying on this court’s recent decision in United States v. Ganji, 15
Thompson contends that the government’s evidence of conspiracy was
insufficient because none of the witnesses acted with Thompson to commit the
charged conduct and therefore could not provide direct evidence of Thompson’s
conduct. She emphasizes that the only witness who dealt with Thompson
directly was Dr. Jase, whose testimony Thompson suggests actually
corroborates the defense theory that Thompson did not know Dr. Jase was
planning to prescribe DME without meeting patients.
To support a conviction for conspiracy under 18 U.S.C. § 1349, the
government must prove beyond a reasonable doubt that “(1) two or more
persons made an agreement to commit health care fraud; (2) that the
defendant knew the unlawful purpose of the agreement; and (3) that the
11 United States v. Chapman, 851 F.3d 363, 376 (5th Cir. 2017) (citing United States
v. Wise, 221 F.3d 140, 147, 154 (5th Cir. 2000)).
12 United States v. Jones, 873 F.3d 482, 489 (5th Cir. 2017) (quoting United States v.
Delgado, 401 F.3d 290, 296 (5th Cir. 2005)).
13 United States v. Gonzalez, 907 F.3d 869, 873 (5th Cir. 2018) (per curiam) (quoting
United States v. Moreland, 665 F.3d 137, 149 (5th Cir. 2011)).
14 Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
15 880 F.3d 760 (5th Cir. 2018).
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defendant joined in the agreement . . . with the intent to further the unlawful
purpose.” 16 The government can prove the existence of any element through
circumstantial evidence, 17 but “proof of an agreement to enter a conspiracy is
not to be lightly inferred.” 18 To support a conviction of conspiracy under 18
U.S.C. § 371, the government must prove beyond a reasonable doubt “(1) an
agreement between two or more persons to pursue an unlawful objective; (2)
the defendant's knowledge of the unlawful objective and voluntary agreement
to join the conspiracy; and (3) an overt act by one or more of the members of
the conspiracy in furtherance of the objective of the conspiracy.” 19
In Ganji, the owner of a home health agency and one of its medical
directors were charged and convicted with conspiracy to commit health care
fraud and health care fraud for participation in a scheme in which agency
employees were provided incentives to recruit Medicare beneficiaries. 20 This
court reversed the convictions. 21 The government had attempted to prove
conspiracy by demonstrating concerted action between the alleged
conspirators. 22 However, while the cooperating witnesses themselves admitted
to fraudulently certifying patients for home health care, the government
witnesses testified that they did not even know one of the defendants and the
government had attempted to ascribe the owner of the agency with knowledge
of the agreement by sole virtue of her position in the company. 23 While the
16 Ganji, 880 F.3d at 767 (quoting United Staets v. Eghobor, 812 F.3d 352, 362 (5th
Cir. 2015) (internal quotation marks omitted)).
17 United States v. Willett, 751 F.3d 335, 339 (5th Cir. 2014).
18 Ganji, 880 F.3d at 768 (quoting United States v. Johnson, 439 F.2d 885, 888 (5th
Cir. 1971) (internal quotation marks and alterations omitted)).
19 United States v. Mauskar, 557 F.3d 219, 229 (5th Cir. 2009) (quoting United States
v. Williams, 507 F.3d 950, 910 n.4 (5th Cir. 2007)).
20 Ganji, 880 F.3d at 763–64.
21 Id. at 763.
22 Id. at 768.
23 Id. at 770, 776.
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government can prove that an agreement existed through evidence of the
conspirators’ concerted actions, “[t]he actions and the surrounding
circumstances must be incriminating enough to warrant a finding that the
Government proved the existence of an agreement beyond a reasonable
doubt.” 24 In Ganji, the government’s “concerted action” evidence was
insufficient because the doctors and nurses who testified “spoke of their own
fraudulent actions, but never testified that they agreed with [the defendants]
to carry out these activities.” 25 So while there was evidence of a conspiracy, the
government presented no evidence implicating the defendants in that
conspiracy and there was not sufficient evidence to allow a rational juror to
infer that either defendant had agreed to participate in a conspiracy. 26
The evidence here is different. Dr. Jase testified that Thompson
convinced him to sign DME orders by telling him the beneficiaries’ equipment
was lost in Hurricane Katrina. In her interview with Special Agent Steed,
Thompson stated that she had received referral fees for recruiting PWC and
arthritis kit patients and collected DME orders that had Dr. Jase’s signature
but no patient information. In a recorded phone call with Dr. Jase, Thompson
admitted to letting prospective patients pick DME from a catalog without the
assistance or supervision of a doctor. In her own testimony, Thompson stated
that she would not get paid by Tracy Brown until Dr. Jase signed the approval
form for the patient to get the DME. The government also introduced evidence
about patients who were referred for DME by Thompson who did not need the
equipment and were never examined by Dr. Jase. Dr. Jase testified that he had
never seen any of the patients referred by Thompson for the purpose of
24 Id. at 767–68 (“Concerted action between the conspirators illustrates that an
agreement had to exist because the individuals would not have otherwise acted in that
particular manner.”).
25 Id. at 770.
26 Id. at 777.
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describing DME. When viewing the evidence in the light most favorable to the
prosecution, the evidence is sufficient for a rational jury to determine that the
government proved beyond a reasonable doubt that Thompson participated in
the conspiracy. 27
B.
Thompson also contends that the evidence adduced at trial was
insufficient to support her convictions under the Anti-Kickback statute.
Thompson primarily challenges the referral forms—she argues that the
government did not make an effort to identify her handwriting on the forms
and that there was insufficient evidence for the jury to infer that Thompson
had filled out the forms.
The Anti-Kickback Statute prohibits receipt or solicitation of
commissions in exchange for referring a Medicare patient to a Medicare
provider. 28 To prove a violation of the Anti-Kickback statute’s prohibition on
soliciting or receiving remuneration for referrals to a federal health care
program, the government must prove:
(1) the defendant solicited or received any remuneration, including
any kickback or bribe, directly or indirectly, overtly or covertly, in
cash or in kind, to any person; (2) that the remuneration was
solicited or received to induce such person to refer an individual to
a person for furnishing or arranging of an item or service; (3) that
the item or service was one for which payment may be made in
whole or in part under a federal health care program; and (4) that
the defendant acted knowingly and willfully. 29
With respect to the knowledge element, the government need not prove that
the defendant had “actual knowledge of [the statute] or specific intent to
27 United States v. Bowen, 818 F.3d 179, 186 (5th Cir. 2016) (quoting United States v.
Roetcisoender, 792 F.3d 547, 550 (5th Cir. 2015)).
28 42 U.S.C. § 1320a-7b(b)(1)(A).
29 United States v. St. Junius, 739 F.3d 193, 210 n.18 (5th Cir. 2013) (citing § 1320a-
7b(b)(1)(A)).
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commit a violation of [the statute],” 30 but rather that the defendant “willfully
committed an act that violated the statute.” 31
Thompson was convicted of receiving kickbacks for referrals of five
patients, all of whom had DME prescriptions from Dr. Jase. Dr. Jase testified
that he had not examined any of the patients for the purpose of prescribing
DME, that his signature was on the prescriptions, and that Thompson was the
only Psalms 23 employee he worked with. Dr. Jase also acknowledged that he
never filled out any part of the referral form other than the signature line.
Psalms 23 employee Patrice Williams confirmed that all of the referrals that
Thompson made to Psalms 23 were from Dr. Jase. Special Agent Bradford
testified about the link between the number of prescriptions for DME signed
by Dr. Jase for arthritis kits and PWCs and the total amount of referral fees
received by Thompson by Psalms 23. 32 There was also testimony by Special
Agent Bradford about the dates listed in Thompson’s referral file for each
patient, the dates that Medicare was billed for each patient’s DME, and the
dates on the Psalms 23 checks to Thompson. Taken together, there is sufficient
evidence to sustain Thompson’s kickback convictions.
C.
In her final sufficiency challenge, Thompson asserts that there was
insufficient evidence to prove that she had the requisite criminal intent to
commit health care fraud or receive kickbacks. Thompson emphasizes the
testimony of the health care fraud investigator, Twilla Bacon, who
acknowledged that she may not expect a medical marketer to have full
30 42 U.S.C. § 1320a-7b(h).
31 St. Junius, 739 F.3d at 210.
32 Dr. Jase prescribed 56 PWCs and 66 arthritis kits; Thompson received a commission
of $500 for every PWC and $300 for each arthritis kit. The amount that she would have been
paid for a referral fee for each Dr. Jase prescription is within $1,000 of the amount she
received from Psalms 23 ($48,700).
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knowledge of the health care rules and regulations. She also points to Special
Agent Steed’s description of her demeanor during her interview as cordial and
non-confrontational as evidence that she had no intent to defraud Medicare.
Thompson likens her case to United States v. Rufai, where the Tenth
Circuit reversed convictions for aiding and abetting health care fraud, holding
that there was insufficient proof of knowledge and intent. 33 In Rufai, the
defendant had been acquitted on the charge of conspiracy to commit health
care fraud and convicted of five counts of aiding and abetting health care
fraud. 34 In reversing the aiding and abetting convictions for insufficient proof
of the defendant’s knowing and willful participation in the fraud, the court
noted that the government had tried to prove the defendant’s knowledge
through his association with his business partner who perpetrated the fraud,
resting on a series of inferences that amounted to “impermissible guilt by
association.” 35 The government had failed to prove that the defendant was
exposed to any criminal activity or knew that any illegal activity was taking
place—relying solely on his relationship with his partner. 36
Thompson’s reliance on Rufai is unavailing. Here, there was evidence of
Thompson’s repeated exposure to the fraud and evidence from which the jury
could rationally infer that Thompson was a knowing participant in the fraud.
There was testimony that Thompson drove patients who were fully ambulatory
to Dr. Jase and that those patients were able to get in and out of her non-
wheelchair accessible car, and that she then proceeded to refer them for PWCs.
A rational jury could conclude that she knew she was referring patients who
did not need DME. In her recorded conversation with Dr. Jase, Thompson
33 732 F.3d 1175, 1195 (10th Cir. 2013).
34 Id. at 1178.
35 Id. at 1194.
36 Id. at 1192.
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denied receiving $48,000 in profits from her referrals and agreed with Dr. Jase
that they would be on the same page in giving a story to the government. While
Thompson makes much of her purported belief that Dr. Jase was examining
patients that she referred for DME, there was conflicting testimony 37 and it is
the province of the jury to “weigh any conflicting evidence and evaluate the
credibility of witnesses.” 38 We conclude that there was sufficient evidence of
Thompson’s willful and knowing participation in the scheme to sustain her
convictions.
III.
Thompson also contends that the trial court erred in refusing to charge
the jury on its theory of the defense. Thompson proposed a five-paragraph jury
instruction that described Thompson’s “theory of defense.” Determining that
the proposed instruction included a statement of contested facts and recited
the closing statement that defense counsel had already given, the district court
rejected Thompson’s proposal. Instead, the district court proposed an
alternative instruction omitting the recitation of facts:
Ms. Sandra Parkman Thompson denies she conspired with anyone
at Psalms 23 to knowingly violate any federal law. Nor did she
knowingly join in any such conspiracy. As to all counts she
contends she did not act with knowledge that her conduct was
unlawful.
Thompson’s counsel rejected the court’s proposal, stating that he would argue
his version to the jury and that he objected to the court’s more limited
instruction. 39
37 Dr. Jase testified that she dropped paperwork off for DME referrals knowing that
he had not examined the patients. Thompson told Special Agent Steed in her interview that
she brought patients to Dr. Jase’s office.
38 United States v. Gibson, 875 F.3d 179, 185 (5th Cir. 2017) (quoting United States v.
Grant, 683 F.3d 639, 642 (5th Cir. 2012)).
39 Counsel stated that the court’s proposal would be giving the jury “a shell or giving
them a conclusion with nothing to back it up.”
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We review a district court’s refusal to include a requested jury
instruction for an abuse of discretion and the district court is afforded
“substantial latitude” in formulating jury instructions. 40 We ask “whether the
court’s charge, as a whole, is a correct statement of the law and whether it
clearly instructs jurors as to the principles of the law applicable to the factual
issues confronting them.” 41
It was well within the district court’s discretion to decline to give
Thompson’s proposed instruction. Examining the charge “in the full context of
trial including the final arguments of counsel”—as we must—it is clear that
Thompson’s contention that she was unaware that her actions were criminal
was “fully and completely developed for the jury.” 42 “A central purpose of the
charge is to provide the framework for the argument by counsel.” 43 The district
court’s instructions did just that: the jury was instructed on each of the crimes
charged, including the requirement that the government prove that Thompson
acted knowingly and willfully. 44 This court has upheld a district court’s refusal
to include a “good faith” instruction to the jury where the defense is
“substantially covered by the charge given and the defendant has had the
40 United States v. Daniels, 247 F.3d 598, 601 (5th Cir. 2001) (quoting United States
v. Rochester, 898 F.2d 971, 978 (5th Cir. 1990)).
41 United States v. Kay, 513 F.3d 432, 446 (5th Cir. 2007) (internal citation omitted).
42 United States v. Fooladi, 746 F.2d 1027, 1030 (5th Cir. 1984) (citing United States
v. Bush, 599 F.2d 72, 78 (5th Cir. 1979)). During his closing argument, Thompson’s counsel
stated: “But in any event, the point of the matter is that—the judge is going to tell you that
just because someone like Sandie is mistaken, mistaken about whether what she’s doing is
criminal, doesn’t make it criminal. I’ll say it again. The judge is going to tell you, as the
arbiter of the law, he will instruct you, which you promised to follow those rules, that a
mistake is not the equivalent of guilty. If you make a mistake but you don’t know that you
made a mistake about something being legal or not legal, it’s not criminal.”
43 Id.44 The court gave the pattern jury instruction definitions of “knowingly” (“the act was
done voluntarily and intentionally, not because of mistake or accident”) and “willfully” (“the
act was committed voluntarily and purposely with the specific intent to do something that
the law forbids; that is to say, with a bad purpose either to disobey or disregard the law”).
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opportunity to argue good faith to the jury.” 45 Where the defendant has
presented testimony or evidence that she did not intend to commit the charged
crime and the jury is instructed on the law of specific intent, a charge
sufficiently covers a good-faith defense and the district court does not abuse its
discretion in rejecting the defendant’s more specific proposed good-faith
instruction. 46 “[A] defendant is not entitled to a ‘judicial narrative of his version
of the facts’” and this court has repeatedly rejected requested instructions that
are “more in the nature of a jury argument than a charge” where the
instructions as given adequately cover the theory of the defense. 47
While Thompson’s counsel capably articulated cogent reasons why a trial
judge may choose to exercise its discretion to include a defendant’s requested
jury instruction—particularly where jurors are provided with a copy of the
indictment—it is not required under existing precedent. The district court did
not abuse its discretion here.
IV.
For the foregoing reasons, we affirm Thompson’s convictions.
45 United States v. Upton, 91 F.3d 677, 683 (5th Cir. 1996) (quoting United States v.
Giraldi, 86 F.3d 1368, 1376 (5th Cir. 1996) (internal quotation marks omitted)).
46 Id. (holding that testimony by defendant and instruction on “knowingly” and
“willfully” was sufficient); see also United States v. Brooks, 681 F.3d 678, 705 n.22 (5th Cir.
2012) (“Here, the Defendants–Appellants were permitted to argue that they acted in good
faith and had no intent to defraud, and the jury instructions accurately conveyed the specific
intent required to both [charged crimes].”).
47 United States v. Lance, 853 F.2d 1177, 1184 (5th Cir. 1988) (quoting United States
v. Barham, 595 F.2d 231, 244–45 (5th Cir. 1979)); see also United States v. Stone, 960 F.2d
426, 433 (5th Cir. 1992) (“Because the elements of agreement and intent—as well as the legal
defenses based on lack of agreement—were substantially covered in the charge given to the
jury, a theory of the defense that merely recounted the facts without those elements was not
required.”).
14