United States v. Juanetta Martin

Case: 12-31275 Document: 00512524708 Page: 1 Date Filed: 02/06/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 12-31275 February 6, 2014
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
JUANETTA T. MARTIN; MORRIQUE TURNER, SR.,
Defendants-Appellants
Appeals from the United States District Court
for the Western District of Louisiana
USDC No. 3:10-CR-138
Before KING, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
Juanetta T. Martin challenges the sufficiency of the evidence supporting
her conviction on two counts of committing health care fraud, in violation of 18
U.S.C. § 1347. She also challenges the district court’s loss calculation and
restitution award. Morrique Turner, Sr., challenges the sufficiency of the
evidence for his conviction of conspiracy to commit health care fraud and mail
fraud, in violation of 18 U.S.C. §§ 371, 1347, and 1341. For the following
reasons, we AFFIRM the defendants’ convictions and Martin’s sentence.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
1. Medicaid
Juanetta T. Martin, a licensed practical nurse (“LPN”), worked full-time
at Morehouse General Hospital (“Morehouse General”) in Bastrop, Louisiana.
Martin also owned and operated a home health care business, Bayou Home
Bureau, Inc. (“Bayou”). Bayou was incorporated in 1999 to provide residential
personal care to elderly and invalid patients. Morrique Turner, Sr., Martin’s
son, was a Bayou employee who provided homecare services.
From 1999 until 2009, Bayou acted as a Medicaid provider, eventually
providing home sitting and nursing care for between fifty and sixty Medicaid
patients. 1 As a Medicaid provider, Bayou submitted claims for payment to
Medicaid based on fifteen-minute “units” of care. Bayou also was required to
maintain the last five years’ worth of timesheets and nurse notes including the
caretaker’s name, as well as a description of the type of care provided.
Abigail Emery, Turner’s ex-wife and Martin’s former daughter-in-law,
was responsible for submitting claims on behalf of Bayou to Medicaid. Emery
was trained by Henry Cotton, a consultant and Martin’s friend. Cotton
instructed Emery to bill the maximum allowable number of units approved by
Medicaid each week. Emery eventually became concerned about Bayou’s
billing practices when Medicaid audited Bayou. As part of the audit, Medicaid
asked to see Bayou’s timesheets and nurse notes.
After reading Medicaid’s manuals and learning that billing was to be
done based on timesheets and nurse notes, Emery brought her concerns about
Bayou’s maximum billing practices to Martin and Cotton. Despite Emery’s
1Medicaid is a public health care benefit program designed to provide free and below-
cost health coverage primarily to economically disadvantaged individuals.
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warning, Martin and Cotton did not instruct her to change how she submitted
claims to Medicaid. In particular, Emery continued receiving timesheets from
Bayou’s employees twice per month, making it impossible for her to submit
accurate information to Medicaid, which required weekly billing. 2
Furthermore, the billing information Emery received, and which was
submitted to Medicaid, did not accurately reflect the care patients were
provided. Some Bayou employees would not complete their own timesheets
and nurse notes. Turner, for example, paid someone in the office to prepare
the nurse notes for him. Sitters also would report caring for patients even
when those patients were hospitalized and could not receive the stated care.
In one example, Bayou billed Medicaid for care Turner purportedly provided
to a patient on September 20, 23, and 25, 2005, despite that patient being
hospitalized from September 16 to September 26, 2005. In another example,
Lizzie Smith, Martin’s co-worker at Morehouse General and a Bayou employee,
turned in timesheets and nurse notes stating that she cared for a child patient.
In reality, the child was being cared for by her family. Smith asked Martin if
this was allowed. Although Martin initially said no because doing so would
mean engaging in fraud, Martin several weeks later brought Smith the
necessary paperwork to fill out. Martin told Smith that billing Medicaid was
“okay” provided that someone was watching the patient.
Partly as a result of these practices, Medicaid repeatedly audited Bayou.
In response to each audit, Emery and other Bayou employees would gather the
necessary records, including timesheets and nurse notes. If a record did not
exist, Martin and Cotton instructed Bayou’s employees to create it. Although,
2 Unsurprisingly, Martin fiercely contested much of Emery’s testimony at trial.
Cotton testified that Emery acted contrary to how he had trained her. In her brief to this
court, Martin largely blames Emery for Bayou’s billing errors. To the extent Emery was
instructed to utilize maximum billing, Martin maintains that the idea was Cotton’s, not
Martin’s.
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after the first audit, Medicaid provided Bayou with an “education letter”
advising Bayou how to avoid overlapping care issues, Bayou did not change its
billing practices. In all, Medicaid sanctioned Bayou eight times for a total of
approximately $68,000 for repeatedly billing for services allegedly rendered
when a patient was hospitalized.
As a result of Bayou’s continuing problems, the Medicaid Fraud Control
Unit of the Louisiana Attorney General’s Office initiated a criminal
investigation. As part of the investigation, certain of Bayou’s timesheets and
nurse notes were subpoenaed. Bayou produced only some of the required
documents. A search warrant executed on Bayou’s office revealed a “very
unorganized” state of affairs with “documents strewn about.” After a criminal
indictment was filed, Martin gave three employees, including Smith and
Turner, each a form entitled “Affidavit of No Plea Agreement,” in which the
employee agreed to produce an affidavit stating that he did not wish to take
any sort of plea agreement that was offered. Martin had Smith sign and
notarize the document.
2. Blue Cross/Blue Shield
In addition to operating Bayou and working at Morehouse General,
Martin, in her individual capacity, enrolled as an LPN provider with Blue
Cross/Blue Shield (“Blue Cross”). 3 In that role, she cared for two Blue Cross-
insured patients, C.S. and E.D. Billing to Blue Cross was based on current
procedural technology (“CPT”) codes. CPT codes were developed by the
American Medical Association, and consist of five-digit codes that represent a
specific service provided by the biller. Each claim included information about
the patient, the insured, and the services provided.
3 Although not disputing that she enrolled as an individual LPN provider, Martin
contends that Cotton advised and assisted her in obtaining her provider number.
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Although initially billing Blue Cross between $450 and $500 per day of
care for each of her two patients, Martin, in less than a year, began submitting
daily care charges for as much as $800, and for as much as $1,600 a short time
later. Martin’s submission of claims exceeding $800,000 “in a very short period
of time” led Blue Cross to commence an investigation. As part of this
investigation, Blue Cross asked Martin for the patients’ records. Martin
proved “not very cooperative,” and Blue Cross had to make repeated efforts to
get Martin to produce the requested documents. Blue Cross was also contacted
by a woman identifying herself as Susan Turner, who stated that she would be
Martin’s point-of-contact. Susan Turner was “very aggressive” and challenged
Blue Cross’s authority to access the records. Blue Cross eventually warned
Martin that if the records were not provided, it would seek to recoup the over
$800,000 Blue Cross had paid her.
Martin supplied the records Blue Cross demanded in December 2008.
Unlike the claims Martin had previously filed utilizing CPT codes, these
records consisted of nurse notes, which included, among other things, the date
and times care was provided; the type of care; and patient information such as
vital signs, fluid intake and output, and bowel movements. The nurse notes
were signed by Martin.
Comparing Martin’s nurse notes with the times Martin clocked in to her
full-time job revealed that Martin was billing Blue Cross for services allegedly
performed on days she was working at Morehouse General. For example, on
February 12, 2007, Martin’s records state that C.S. was dressed, bathed, fed,
and transferred; his urine output and bowel movements were measured; and
medications were provided at 11 a.m., 2 p.m., 5 p.m., and 10 p.m. Martin billed
Blue Cross $500 for these services. That same day, Martin began work at
Morehouse General at 6:35 a.m., and remained there until 6:56 p.m.
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Additional analysis of Martin’s records showed that on three occasions
she billed Blue Cross for services provided to a patient while he was
hospitalized. In one instance, C.S. was hospitalized on February 6, 2007, and
discharged on February 8, 2007. Martin’s records stated that C.S. was
provided homecare on each of the three days he was in the hospital, for which
Martin billed Blue Cross a total of $1,500. Martin also continued to work full-
time at Morehouse General during this time.
As already noted, Martin’s billing practices also fluctuated significantly
between February 2007 and September 2008. Although the services for which
Martin billed Blue Cross did not change, the amount she charged increased,
with isolated exceptions, substantially. As to E.D., Martin’s claims increased
from $450 per day of care in July 2007, to $600 in September 2007, and finally
to $800 in December 2007. For C.S., Martin billed Blue Cross $500 per day of
care from February 2007 to May 2007. From June 2007 to November 2007,
Martin increased her daily charges to $700. Between February 2008 and
September 2008, Martin’s daily care charges then ranged from as low as $800
to as high as $1,600, before settling at $1,000. In all, Blue Cross paid Martin
$813,422.50, of which $200,853 was for services allegedly rendered on days she
worked at Morehouse General, or while C.S. was hospitalized.
B. Procedural Background
On April 29, 2010, Martin, Turner, Smith, and three other Bayou
employees were charged in a ten-count indictment alleging two health care
fraud schemes designed to defraud Blue Cross and Medicaid. As relevant to
this appeal, Count 1 of the indictment charged all defendants with conspiracy
to commit health care fraud and mail fraud, in violation of 18 U.S.C. §§ 371,
1347, and 1341. Count 2 charged Martin with committing mail fraud, in
violation of 18 U.S.C. § 1341. Counts 3 and 4 charged her with committing
health care fraud relating to her treatment of E.D. and C.S., in violation of 18
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U.S.C. § 1347. Count 7 charged Turner with health care fraud pertaining to
the scheme to defraud Medicaid, in violation of 18 U.S.C. § 1347.
One of the defendants named in the indictment pleaded guilty to health
care fraud prior to trial. A jury trial as to the remaining defendants
commenced on August 6, 2012. Smith pleaded guilty on the second day of trial.
The other defendants moved for judgments of acquittal pursuant to Rule 29 of
the Federal Rules of Criminal Procedure at the close of the government’s case-
in-chief. The district court denied the defendants’ motions. At the close of the
evidence, the defendants re-urged their Rule 29 motions, which, again, were
denied. The jury found Martin guilty on Counts 1, 3, and 4, and found her not
guilty on Count 2. Turner was convicted on Count 1, but acquitted on Count
7. Martin and Turner filed post-trial motions for new trials and judgments of
acquittal. The district court denied the motions.
Martin’s presentence investigation report (“PSR”) issued on September
18, 2012. Martin filed numerous objections, and the PSR was subsequently
revised on October 17, 2012. The revised PSR calculated Martin’s offense level
to be 22, based on a base offense level of 6, a fraud loss calculation of
$921,021.50 resulting in a fourteen-level enhancement, and a two-level
enhancement for Martin’s role as “organizer, manager, or supervisor” in the
criminal activity. Together with a Criminal History Category of I, the advisory
Guidelines sentence range for Martin was forty-one to fifty-one months’
imprisonment. The PSR recommended restitution in the amount of
$921,021.50, of which $813,422.50 would be due Blue Cross, and $107,599
would be due Medicaid.
At sentencing, the government presented testimony by Federal Bureau
of Investigation Agent Palmer Allen in support of the PSR’s loss calculation.
Martin’s attorney read a letter sent by E.D. attesting to the care Martin had
provided her. Martin’s counsel also called another witness to testify about the
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proper restitution amount for Medicaid. Finally, counsel called Rufus Martin,
Jr., to testify that his mother, Martin, would take him with her while she
visited E.D. and C.S. in the mornings before he had to go to school. After
listening to this testimony, the district court determined that the total actual
loss suffered by Blue Cross and Medicaid was only $232,310.12. Of that
amount, Blue Cross’s actual loss was $200,853, of which $185,800 was
attributed to C.S., and $15,053 to E.D. The remaining loss of $31,457.12 was
suffered by Medicaid. The lower total loss figure reduced Martin’s offense level
by two points, resulting in a revised Guidelines sentencing range of thirty-
three to forty-one months’ incarceration. The district court sentenced Martin
to thirty-nine months’ imprisonment, a three-year term of supervised release,
and restitution in the amount of $200,853 as to Blue Cross and $31,457.12 as
to Medicaid. Turner was sentenced to a two-year term of supervised probation.
Martin timely filed a notice of appeal challenging her conviction as to
Counts 3 and 4, and her sentence. Turner then timely filed a notice of appeal
challenging his conviction as to Count 1.
II. DISCUSSION
Martin and Turner appeal their convictions, each on the basis that the
evidence was insufficient to support the jury’s verdict. Martin further
challenges the district court’s loss calculation and its restitution award because
it failed to include the value of the services provided. We consider each issue
in turn.
A. Evidentiary Sufficiency
1. Standard of review
We review properly preserved sufficiency-of-the-evidence claims de novo.
See United States v. Ollison, 555 F.3d 152, 158 (5th Cir. 2009). While our
review is de novo, this court must view all of the evidence, resolve all credibility
determinations, and make all reasonable inferences in favor of the jury verdict.
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United States v. Winkler, 639 F.3d 692, 696 (5th Cir. 2011). We must
determine “whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” United States v. Pruett, 681
F.3d 232, 238 (5th Cir. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)). “To be sufficient, the evidence need not exclude every reasonable
hypothesis of innocence, so long as the totality of the evidence permits a
conclusion of guilt beyond a reasonable doubt.” United States v. Hicks, 389
F.3d 514, 533 (5th Cir. 2004).
2. Martin’s conviction
Martin argues that the evidence was insufficient to support the jury’s
verdict as to Counts 3 and 4 of the indictment, which charged her with
committing health care fraud upon Blue Cross. The crux of her argument is
that the trial evidence showed that she in good faith believed she could bill
Blue Cross under her individual provider number for the services of her
employees. In support, she states that she never attempted to hide the fact
that other LPNs were providing nursing services to E.D. and C.S., and that she
engaged in extensive research, including conversations with Blue Cross, before
obtaining an individual provider number with Blue Cross. Martin also argues
that her understanding that services provided by other LPNs could be charged
to Blue Cross is supported by Blue Cross’s billing structure, which paid a fixed
fee for specific CPT-coded procedures. She explains her escalating billing rate
as a billing error by Blue Cross.
The government responds that, viewing the evidence in the light most
favorable to the verdict, a rational jury could have convicted Martin of health
care fraud beyond a reasonable doubt based on her failure to provide the care
described in the nurse notes. It states that “[c]ontrary to Martin’s argument,
the government did not assert that it was fraud if Martin billed for services
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rendered by another,” but rather “[t]he government proved that Martin billed
Blue Cross for services that were not rendered.” The government counters
Martin’s explanation for her escalating charges by observing that the wide
variations occurred over a relatively short period of time (between February
2007 and September 2008), and without any accompanying change in services.
18 U.S.C. § 1347, the statute under which Martin was convicted,
provides that
(a) 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. . . .
(b) With respect to violations of this section, a person need not have
actual knowledge of this section or specific intent to commit a
violation of this section.
18 U.S.C. § 1347.
After considering Martin’s sufficiency-of-the-evidence argument, we find
the following evidence sufficient to affirm Martin’s conviction. Martin applied
for an individual provider number from Blue Cross. Although she could have
created a business entity and applied for a provider number that would allow
her to bill Blue Cross for services rendered by her employees, she instead
elected to obtain a provider number as an individual. In that capacity, she
billed Blue Cross over the course of several months vastly different amounts
for the same services. As to one of her two patients, Martin submitted claims
that fluctuated between $450 per day of care in July 2007 and $800 per day of
care in December 2007. As to her other patient, Martin submitted claims for
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$500 per day of care from February 2007 to May 2007, before eventually filing
daily claims for as much as $1,600 in March 2008.
When Blue Cross requested supporting billing documentation, Martin
was “not very cooperative.” After Blue Cross persisted in its demand for the
records it was contacted by Susan Turner, Martin’s new point-of-contact, who
proved “very aggressive” and challenged Blue Cross’s authority to access the
records.
The nurse notes that eventually were sent to Blue Cross contain Martin’s
signature at the bottom of each note in the section reading “Nurse’s Signature.”
Trial testimony by Blue Cross investigator Kandyce Cowart stated that such a
signature represented that the signing nurse provided the care detailed in the
note. Martin does not dispute that on at least some of the days when she was
working at Morehouse General (or when one of her patients was hospitalized),
she did not personally provide all the care listed in the nurse notes.
This evidence was sufficient for the jury to find Martin guilty of
committing health care fraud, in violation of 18 U.S.C. § 1347. Martin’s
arguments to the contrary are unpersuasive. She relies on Cotton’s testimony
that she carefully researched Blue Cross’s billing practices, and on E.D.’s
testimony that the billed-for services were provided, but the jury was entitled
to find those witnesses not credible.
Martin also attacks her conviction by relying on Blue Cross’s billing
structure. She describes Blue Cross’s purported reason for not allowing an
individual to bill for employees’ services—double-billing—as nonsensical
because if two providers billed Blue Cross for the same care to the same client,
then Blue Cross would surely investigate. Martin appears to suggest that the
mere fact that a scheme to defraud an insurance company would likely fail due
to that company’s safeguards bolsters her good-faith-belief defense. To the
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extent this argument is in any way persuasive, the jury was able to consider
it, and evidently rejected it in rendering a guilty verdict.
Paradoxically, while Martin argues that Blue Cross’s ability to catch
mistakes like double-billing supports her understanding of Blue Cross’s billing
structure, she also argues that Blue Cross’s propensity for making mistakes
explains her escalating billing rates. Martin quotes Cowart’s trial testimony
that Blue Cross would mistakenly pay claims without cross-checking whether
the amount matched what Blue Cross had agreed to pay under a particular
plan. Martin’s argument appears to be that there must have been nothing
wrong with her billing if Blue Cross paid it. As the government rightly
observes, “the evidence that [Martin] cites explains only why Blue Cross paid
the ridiculously high bills she was submitting. It does not address why she
submitted them.”
Turning to the nurse notes, Martin contends that Blue Cross did not pay
claims according to the amount of time it took to complete a procedure, but
only based on whether the service was provided. From this premise, Martin
leaps to the conclusion that the jury should not have interpreted the nurse
notes to mean that the signing nurse was required to provide the care detailed
therein. We understand Martin to mean that because Blue Cross allegedly
was concerned only with whether the procedure was performed, not how long
it took, Blue Cross also must not have been concerned with who provided the
care, so long as it was provided by an LPN like Martin. Whatever persuasive
value Martin’s argument might have in isolation from the other trial evidence
is undone by considering that evidence in its entirety. As we have observed,
Cowart’s trial testimony was that by signing the nurse notes, Martin
represented that she herself provided the care in question. Martin also
charged an ever-changing amount for the same services. Additionally, she
charged Blue Cross for care that neither she, nor any other LPN in her employ,
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could have provided because the patient who purportedly received it was, at
that, hospitalized.
In addressing sufficiency-of-the-evidence arguments, we ask only
“whether a rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” United States v. Grant, 683 F.3d 639, 642
(5th Cir. 2012) (internal quotation marks and citation omitted). Here, the jury
heard evidence of Blue Cross’s billing structure and was unpersuaded by
Martin’s novel interpretation of it. The jury acted as a rational trier of fact in
finding Martin guilty in light of the trial evidence. Accordingly, we affirm
Martin’s conviction for health care fraud.
3. Turner’s conviction
Like Martin, Turner challenges the sufficiency of the evidence in this
case. Turner argues that there was insufficient evidence to convict him on
Count 1 of the indictment, which charged him with conspiracy. According to
Turner, the only evidence potentially linking him to the conspiracy relates to
two distinct time periods: August 28 to August 31, 2005; and September 16 to
September 26, 2005. Turner’s argument as to both of these periods is the same.
He does not dispute that timesheets, nurse notes, and paychecks show that he
purportedly provided homecare services to a Medicaid patient on those dates.
He also does not dispute that the patient listed in those records could not have
received the stated care because the patient was hospitalized. Turner instead
argues that this overlap is insufficient to convict him of conspiracy because he
worked more hours that were not billed to Medicaid caring for the patient while
the patient was not in the hospital, than hours that were billed while the
patient was hospitalized. In other words, he asserts that Medicaid made a net
gain.
The government in its response contends that the evidence at trial
established a pattern of fraudulent billing by Bayou. It relies on nurse notes
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that show that Turner provided care to a patient, J.M., while that patient was
hospitalized. The government draws a parallel to other care purportedly
provided by other Bayou caretakers, which it says was similarly fraudulent.
Relying on United States v. Stephens, 571 F.3d 401, 404 (5th Cir. 2009), the
government contends that “[t]his evidence of concerted action establishes the
conspiracy and Turner’s knowing participation in it.”
Under 18 U.S.C. § 371, the government was required to prove three
elements beyond a reasonable doubt to convict Turner of conspiracy to commit
health care fraud: “(1) [that] two or more persons made an agreement to
commit health care fraud; (2) that [Turner] knew the unlawful purpose of the
agreement; and (3) that [Turner] joined in the agreement willfully, that is, with
the intent to further the unlawful purpose.” Grant, 683 F.3d at 643. “The
[g]overnment is not required to provide direct evidence of the conspiracy.”
Stephens, 571 F.3d at 404. “Circumstantial evidence can prove knowledge and
participation.” United States v. Njoku, 737 F.3d 55, 63 (5th Cir. 2013).
Turner’s arguments largely amount to asking us to vacate his conviction
because there was no direct evidence of his participating in or knowing of the
conspiracy. However, “voluntary participation may be inferred from a
collection of circumstances, and knowledge may be inferred from surrounding
circumstances.” Stephens, 571 F.3d at 404 (citation omitted). Here, the trial
evidence showed that timesheets and nurse notes were submitted at Turner’s
behest, which represented that he provided homecare to a patient who was, at
the time, hospitalized. The jury was free to consider Turner’s untruthful
timesheets and nurse notes in the context of other Bayou employees submitting
similarly inaccurate reports, which also alleged care that was not actually
provided. For example, one patient was admitted into a hospital on June 14,
2008, and discharged on July 16, 2008. Bayou nevertheless billed Medicaid for
home services during this time, and nurse notes by one of Turner’s co-
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defendants documented care from June 16 through June 22, 2008. Another
patient was hospitalized from December 3 to December 19, 2005. Bayou billed
for services rendered from December 5 to December 11, 2005, and nurse notes
by another co-defendant stated that services were rendered on December 5
through December 9, and December 13 through December 15, 2005. From
these examples and others, the jury had sufficient evidence of fraudulent
activity to compare to Turner’s own dishonest acts, and infer Turner’s willing
participation in Bayou’s scheme to defraud Medicaid.
That Turner did not personally prepare the timesheets or nurse notes is
irrelevant because other trial evidence showed that Turner paid another
employee to prepare them for him. Specifically, Emery testified that Dewanda
Turner prepared the forms for Turner. Moreover, trial testimony by Bryan
Edwards, an investigator with the Louisiana Attorney General’s Office,
showed that it was the caretaker’s responsibility to accurately fill out the
timesheets. The jury thus could conclude that the information contained in
the timesheets and nurse sheets was provided by Turner.
It likewise is irrelevant that Medicaid may have been charged less than
the number of hours Turner worked. The operative grounds for Turner’s
conviction was his submission of timesheets and nurse notes seeking payment
for care Turner did not, in fact, provide. It is that act which caused Medicaid’s
injury, and permitted the jury to find him guilty of conspiracy. Because there
was sufficient evidence from which the jury could infer Turner’s participation
in the scheme to defraud Medicaid, his conspiracy conviction is affirmed.
B. Loss Calculation and Restitution Award
1. Standard of review
This court reviews a district court’s application of the Guidelines de novo
and reviews its findings of fact at sentencing for clear error. United States v.
Klein, 543 F.3d 206, 213 (5th Cir. 2008). A court “review[s] de novo the district
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court’s method of determining loss, while clear error review applies to the
background factual findings that determine whether or not a particular
method is appropriate.” United States v. Isiwele, 635 F.3d 196, 202 (5th Cir.
2011). “The determination of the amount of loss is a factual finding reviewed
for clear error,” and “[w]e give the district court wide latitude to determin[e]
the amount of loss.” United States v. Cothran, 302 F.3d 279, 287 (5th Cir.
2002).
The legality of a restitution order is reviewed de novo. United States v.
Adams, 363 F.3d 363, 365 (5th Cir. 2004). A legal restitution order is reviewed
for abuse of discretion. Cothran, 302 F.3d at 288. This court “may affirm in
the absence of express findings ‘if the record provides an adequate basis to
support the restitution order.’” United States v. Sharma, 703 F.3d 318, 322
(5th Cir. 2012) (footnote omitted), cert. denied, 134 S. Ct. 78 (2013).
2. Martin’s sentence
The district court found that Blue Cross’s actual loss was $200,853 and
ordered restitution for the same. Martin asserts that the district court erred
in its loss calculation, and consequently also entered an erroneous restitution
order, by failing to credit the value of the LPN services she provided. Because
her Blue Cross patients received all the care Blue Cross was billed for, Martin
argues, the actual loss (and subsequent restitution award) should only have
been $31,457—the amount of loss Medicaid suffered from Bayou’s fraudulent
billing. Revised thusly, the loss amount would have resulted in an offense level
of only 14, instead of 20. Together with a Criminal History Category of I,
Martin’s Guidelines sentence range would have been fifteen to twenty-one
months, likely resulting in a sentence lower than the thirty-nine months’
imprisonment the district court imposed.
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The government asks us to affirm the district court’s loss calculation and
restitution order because “the evidence established that no services were
actually rendered.” 4
Section 2B1.1 of the United States Sentencing Guidelines (“U.S.S.G.”)
increases the offense level of a defendant convicted of fraud based on the actual
or intended loss, whichever is greater. U.S.S.G. § 2B1.1 cmt. n.3(A). “Actual
loss” is the reasonably foreseeable pecuniary harm that resulted from the
offense, while “intended loss” is “the pecuniary harm that was intended to
result from the offense.” Id. The district court need only make a reasonable
estimation based upon the available information. Cothran, 302 F.3d at 287.
The burden is on the government to prove loss by a preponderance of the
evidence. United States v. Nelson, 732 F.3d 504, 521 (5th Cir. 2013). However,
where “the fraud [is] so extensive and pervasive that separating legitimate
benefits from fraudulent ones is not reasonably practicable, the burden shifts
to the defendant to make a showing that particular amounts are legitimate.”
United States v. Hebron, 684 F.3d 554, 563 (5th Cir. 2012).
At sentencing, the government requested that the district court adopt
the PSR’s loss calculation of $813,422.50—the total amount Blue Cross paid
Martin. The district court rejected the government’s argument. It instead
found that Blue Cross suffered the lower actual loss figure of $200,853. This
number comported with the amount Martin claimed for services rendered on
days when she worked at Morehouse General, or when one of her Blue Cross
patients was hospitalized. The exact calculation was based on charts
4 The government also argues that this court should review Martin’s arguments only
for plain error, as Martin did not object below to the amount of loss calculated or the amount
of restitution imposed. Because we affirm the district court’s sentence, we do not consider
this argument, other than to note that Martin, in her objections to the PSR, disputed the loss
calculation as to Blue Cross, and, at sentencing, repeatedly made clear that she objected to
any finding of loss.
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No. 12-31275
presented by Cowart and Agent Allen. Pursuant to U.S.S.G. § 2B1.1, the
district court imposed a twelve-level enhancement for fraud-based losses of
more than $200,000, but less than $400,000. It then sentenced Martin to
thirty-nine months’ imprisonment. The district court also ordered $200,853 in
restitution for Blue Cross.
We uphold the district court’s loss calculation and restitution order.
First, there was no legal error with the method by which the district court
reached the $200,853 loss amount. The district court based this figure on the
amount Martin billed Blue Cross for services she herself could not have
provided either because she was working at Morehouse General or because a
patient was hospitalized. Martin does not challenge this method of calculation,
and we conclude that it bears a reasonable relation to the actual harm of the
offense. See United States v. Randall, 157 F.3d 328, 331 (5th Cir. 1998).
Second, although Martin does not take issue with the district court’s method
of calculating loss, she does contend that the calculation was in error because
it did not include the value of the services rendered. In making this argument,
Martin does not challenge any particular date on which services were or were
not provided. Instead, she broadly argues that the loss amount, and the
restitution award on which it was based, should be zero because her Blue Cross
patients received the billed-for care when Martin visited them, before or after
her full-time job, or when another LPN did so.
Martin made the same argument, unsuccessfully, in her motions for
judgments of acquittal and for a new trial. The district court observed that
Martin’s nurse notes represented that she cared for E.D. on certain
dates when Martin was on duty at Morehouse General Hospital.
Blue Cross . . . was charged for and paid the claims Martin
submitted for E.D.’s care, relying on the records that showed
Martin was providing the care. The evidence did not bear out
Martin’s theories that another Bayou nurse performed these
services for E.D. or that she routinely performed these services
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No. 12-31275
before and after her shifts at the hospital, and the jury was entitled
to reject these theories accordingly.
The district court reached the same conclusion as to Martin’s other Blue Cross
patient, C.S.
We find no error in the district court’s reasoning. Although a defendant
is entitled to a credit for services she performs, see United States v. Jones, 475
F.3d 701, 706 (5th Cir. 2007), Martin’s objection to her sentence is simply a
repackaging of the arguments she relies on to challenge the sufficiency of the
evidence supporting her conviction. Just as we have found that evidence
sufficient to uphold her conviction for health care fraud, we similarly conclude
that, in light of all the evidence already discussed, the district court did not err
in rejecting her claims that she or another LPN cared for the Blue Cross
patients. Martin’s is not a case in which the government’s proposed loss
calculation was based on unsubstantiated claims that particular health care
services were not rendered. See id. at 705–07. Here, the district court was
able to rely on the same evidence heard by the jury, which showed that in
signing her name and obtaining an individual provider number, Martin
represented that she personally provided the care described in the nurse notes.
The district court also heard testimony by Agent Allen at sentencing that,
based on the times Martin clocked in and out of work at Morehouse General,
Martin could not have provided all the care listed in the nurse notes.
Accordingly, we hold that Martin has not shown that the district court’s loss
calculation of $200,853 was clearly erroneous or misapplied the law. We thus
affirm the district court’s sentence.
III. CONCLUSION
For the aforementioned reasons, we AFFIRM Martin’s and Turner’s
convictions, and Martin’s sentence.
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