United States v. Harold Persaud

NOT RECOMMENDED FOR PUBLICATION
File Name: 17a0332n.06
Nos. 16-3105; 16-3427; 16-3578
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Jun 13, 2017
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE
HAROLD PERSAUD, )
NORTHERN DISTRICT OF
)
OHIO
Defendant-Appellant. )
)
)
BEFORE: BOGGS, McKEAGUE, and GRIFFIN, Circuit Judges.
BOGGS, Circuit Judge. On August 20, 2014, defendant-appellant Harold Persaud, M.D.
was named in a 16-count federal grand jury indictment in the Northern District of Ohio. He was
charged with one count of health-care fraud, in violation of 18 U.S.C. § 1347, fourteen counts of
making false statements relating to health-care matters, in violation of 18 U.S.C. § 1035, and one
count of money laundering, in violation of 18 U.S.C. § 1957. The grand jury also returned a
forfeiture finding, requiring Persaud to forfeit any and all property linked to the charges,
including $343,634.671 seized from two bank accounts associated with Persaud and his wife.
The thrust of the government’s charges was that Dr. Persaud, a cardiologist working in
his own private practice in Westlake, Ohio, ordered unnecessary tests and systematically
overestimated the degree of arterial blockage in his patients in order to justify costly
1
This amount includes $93,446.25 seized from the account of Harold Persaud and $250,188.42 seized
from an account belonging to his wife, Roberta Persaud.
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interventional procedures such as “stenting.”2 The government also accused Persaud of
“upcoding” certain medical bills—that is, Persaud intentionally overreported the complexity of
his patients’ medical issues in order to maximize his reimbursement from Medicare and private
insurers.
Persaud pleaded not guilty. In a nearly one-month jury trial, lasting from August 31,
2015, to September 28, 2015, the government presented 34 witnesses, including 11 physicians,
eight patients, and four nurses. The defense relied on five witnesses, including an expert
cardiologist, two referring physicians, and a coding expert. The jury ultimately convicted
Persaud on all charges, except for one of the false-statement counts listed in the indictment. In a
subsequent money-judgment hearing, the same jury returned special verdicts concluding that:
(1) the $343,634.67 seized from the Persauds’ bank accounts was forfeitable proceeds of
Persaud’s health-care fraud scheme; (2) the $250,188.42 seized from Persaud’s wife’s account
was related to his money-laundering conviction; and (3) Persaud’s scheme generated gross
proceeds in the amount of $2,100,000.
The district court sentenced Persaud to 20 years of imprisonment, a $1,500 special
assessment, and restitution. The district court later determined the outstanding restitution
amount to be $5,486,857.03,3 which consists of money damages to be paid to Persaud’s patients,
their private insurers, and the United States. Persaud filed separate appeals challenging his
conviction and sentence, the forfeiture order, the restitution order, and the district court’s order
denying release pending the outcome of this appeal. The first three challenges have been
2
Stenting involves inserting a small mesh tube into arteries that have been weakened or narrowed by
cardiovascular disease. The stent expands and supports the artery walls to permit blood to flow through
the weakened arteries more easily.
3
The district court determined that Persaud owed a total amount of $5,487,663.70, but that he had earned
credit for certain restitution obligations that he had already satisfied.
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consolidated in this appeal; another panel has already denied Persaud’s request for release. The
government has also filed a motion to strike portions of Persaud’s briefs on appeal, arguing that
they impermissibly relied upon evidence that was not admitted at trial.
For the following reasons, we affirm Persaud’s convictions on all counts, his sentence,
and the district court’s restitution and forfeiture orders, and we dismiss the government’s motion
as moot.
I
A
Persaud’s medical practice focused on the treatment of coronary artery disease (“CAD”).
CAD involves the narrowing or blockage of the coronary arteries and is usually caused by age
and the accumulation of cholesterol and fatty deposits on artery walls. When the narrowing of
the artery becomes significant, it may begin to cause heart problems. The American College of
Cardiology defines significant CAD as an artery where the blockage (referred to as stenosis)
exceeds 70% of the artery’s diameter. In the case of the left main coronary artery, however, the
stenosis threshold for significant CAD is 50%. Although the definition of CAD incorporates
these stenosis thresholds, another key determining factor in any CAD diagnosis is the patient’s
symptoms. Only when a patient reports symptoms of heart disease and stenosis levels above
safe thresholds is a CAD diagnosis appropriate.
Properly diagnosing a patient’s CAD can involve a variety of tests, each with advantages
and disadvantages. Electrocardiograms (“EKG”) and echocardiograms (“ECHO”) are relatively
low-risk tests that use electric signals and ultrasound waves to give the diagnosing doctor an idea
of the patient’s heart rate and chamber integrity. Nuclear Stress Tests (“NST”) involve injecting
a patient with a radioactive material, subjecting the patient to cardiovascular exercise, and then
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observing the blood flow through the heart while under stress and at rest. Because this procedure
involves injecting the patient with radioactive materials and strenuous exercise, NSTs put a
patient at a greater risk of harm than an EKG or an ECHO.
If these tests reveal that the heart is receiving insufficient blood flow and a patient is
reporting symptoms of heart disease, then additional invasive imaging procedures may be
prescribed to determine whether a patient is experiencing arterial stenosis. These tests also
involve risks and generally are not performed except when a patient reports symptoms of CAD
and undergoes an NST that indicates blood-flow deficiencies. The most common invasive
imaging procedure is a cardiac catheterization, in which a doctor uses a catheter inserted in the
patient’s blood vessels to inject contrast material into the patient’s major arteries. Subsequent x-
rays of the patient’s vessels, called angiograms, detect the contrast material and permit the
diagnosing doctor to identify potential stenosis. If the angiogram is inconclusive, a doctor may
order an intra-vascular ultrasound (“IVUS”) to obtain more detailed images of a patient’s blood-
vessel walls. An IVUS is generally considered to be a riskier procedure than an angiogram, and
doctors typically reserve the test for patients whose angiograms indicate potentially troubling
stenosis levels (between 50% and 70%) or to monitor the placement of a stent.
Once a doctor diagnoses dangerous arterial blockage, he may then prescribe one of
several invasive procedures depending upon the severity of the patient’s condition. One of these
procedures is called percutaneous coronary intervention (“PCI”), which involves the insertion of
a small wire-mesh stent into the obstructed artery. Although the insertion of a stent may improve
a patient’s blood flow and reduce his CAD symptoms, it cannot cure the underlying cause of
CAD or prevent its progression. The insertion of a stent is also permanent; once placed, it
cannot be removed. Moreover, the insertion of a stent can cause additional medical
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complications, including blood clotting (requiring the prescription of blood-thinning
medications) and restenosis, which involves the narrowing of a previously stented artery.
Coronary bypass surgery is an even more invasive option and is typically reserved for
only the most severe cases of CAD. Bypass surgery involves grafting an artery from another
place in a patient’s body and using it to divert blood flow around a severely blocked artery in the
heart. Risks include complications from general anesthesia, stroke, and even death. Patients
generally take several months to recover from bypass surgery and are required to undergo
continued follow-up visits with a cardiologist for life.
B
Persaud’s alleged scheme involved systemically overscheduling, over-testing, over-
treating, and over-billing his patients. At each step in the medical process, from patient intake to
the prescription of treatment, the government alleges Persaud improperly cut corners and
intentionally overestimated the severity of his patients’ conditions in order to prescribe
unnecessary treatment and increase profit.
For Persaud’s scheme to work, he first had to maximize his intake of patients. According
to the government’s witnesses, he did this by routinely overscheduling patients and falsifying the
amount of time he spent with them on their medical records. Witnesses testified that Persaud
scheduled two patients for every fifteen-minute block on his calendar and routinely saw upwards
of 20 patients between 9 a.m. and 11:15 a.m. on any given office day. Even though Persaud
spent an average of five to ten minutes in the exam room with each patient, he would indicate
that he spent thirty to thirty-five minutes with each patient in the medical records. He also
allegedly pressured his patients’ spouses to undergo medical tests, regardless of whether they
actually reported symptoms of heart disease.
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For each of these office visits, Persaud also allegedly engaged in the practice of
“upcoding” his patients’ medical bills. The American Medical Association publishes an annual
guide that assigns codes, called current procedural terminology (“CPT”), to the various
procedures that a medical professional can perform. Doctors and insurance companies use these
CPT codes to document medical services for insurance reimbursement. Persaud’s office used
four billing codes, numbered consecutively from 99212 to 99215, to document patient office
visits. The codes were arranged in terms of the complexity of the visit, with 99212 indicating the
least complex office visit and 99215 indicating the most complex office visit. Insurers
reimbursed doctors accordingly, paying $41.06 for the least complex office visit and $136.42 for
the most complex office visit. Even though Persaud only saw his patients for an average of five
to ten minutes per visit, Persaud used the highest CPT code for his patients’ visits the vast
majority of the time. Persaud personally selected the CPT code for each of his patients and did
not permit his staff to override his selection. When Persaud’s billing practices attracted the
attention of health-insurance auditors,4 he began to edit the existing patient files that the auditors
had selected for review, adding additional notes and observations to support his inflated CPT
codes.
According to the government’s witnesses, Persaud also routinely required his patients to
undergo unnecessary NSTs, a procedure made all the more profitable by the fact that Persaud
owned an NST machine.5 Despite the fact that annual NSTs are frowned upon as unnecessary
and excessive,6 Persaud subjected his patients to yearly NSTs. To justify the tests to his patients’
4
Four major health-insurance providers—Humana, Anthem, Medicare, and Optum—conducted audits or
post-payment reviews on Persaud because of his abnormal CPT billings.
5
This permitted Persaud to bill the insurance company both for the use of the machine and for
interpreting the results. Had Persaud instead performed the test at the hospital, he could only bill for the
latter.
6
Experts at trial testified that the medical community had rejected annual NSTs by 2005.
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insurers, he would use a pre-populated template form that assigned his patients the same litany of
vague symptoms: “chest pain, possible angina, abnormal ECG, arrhythmia, CAD, [and]
dyspnea.” He also actively recruited his patients’ spouses to undergo NSTs, regardless of
whether they reported symptoms of CAD. On days when he conducted NSTs, he would try and
process 10 in a single day, soliciting replacement patients from the adjoining hospital if one of
his scheduled patients canceled. In some instances, Persaud used wheelchair-assisted
replacement patients in treadmill-based NSTs, even though medical protocol requires patients
who need assistance walking to undergo less physically strenuous chemical tests. Even when
NSTs were prescribed appropriately, Persaud insisted on using the cheapest radioactive isotopes,
refused to pay for an additional stress technician to administer the test, and rushed his patients
through the procedure.
Persaud then allegedly falsified his patients’ NST results in order to convince them to
undergo additional catheterization testing at local hospitals. These tests produced angiograms of
the patients’ arteries, which gave a rough depiction of the extent of any arterial blockage.
Although interpreting angiograms is an inexact science subject to reasonable differences in
professional opinion, most cardiologists who interpret the same angiogram will indicate similar
levels of blockage. An expert at Persaud’s trial testified that the inter-observer variability
between cardiologists reviewing the same angiogram will typically be within 10 percentage
points of one another. In Persaud’s cases, however, the inter-observer variability between
Persaud and the reviewing cardiologists generally exceeded 10 percentage points, often by a
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large margin.7 In some instances, Persaud allegedly overestimated the amount of stenosis by
over 40 or 50 percentage points and used his diagnosis to justify additional invasive procedures.
Occasionally, the angiograms would not indicate a visually obvious blockage. When this
was the case, Persaud allegedly prescribed additional IVUS tests in order to fabricate higher
stenosis levels. Experts at Persaud’s trial testified that, as an initial matter, Persaud’s use of
IVUS testing on patients with visually clear angiograms was suspect because IVUS tests are
intended only to be used on “close call” blockages—i.e., where the angiogram indicates
potentially troubling stenosis levels. Moreover, when he did conduct IVUS tests, he frequently
manipulated the results in order to produce stenosis levels high enough to justify additional
interventional treatment.8
These additional treatments, in turn, permitted Persaud to accumulate even greater profits
because they required his patients to undergo regular follow-up visits and tests. Both stent
patients and bypass patients require additional treatments. Bypass patients, in particular, require
frequent follow-up visits. In at least one instance, Persaud allegedly overestimated a patient’s
stenosis levels in order to refer him to bypass surgery, resulting in 7 billable office visits
involving that patient in a single year.
C
Investigation into Persaud’s medical practice began in 2012, when Persaud recommended
that one of his patients undergo bypass surgery. Dr. John Coletta, chief cardiologist at St. John
Medical Center, was assigned to monitor the patient until surgery could be scheduled. Coletta
7
Persaud disputes this, arguing that the cardiologists who testified at his trial only had access to his
angiograms while his stenosis diagnoses were based on more accurate IVUS tests. This issue will be
addressed in greater detail in Part II.B–C.
8
IVUS measures stenosis in a blood vessel by calculating the dimensions of the vessel walls and any
blockages within. The cardiologist, however, retains discretion over how the machine calculates the
dimensions of the blood vessel. Persaud allegedly “re-drew” the lines representing his patients’ blood
vessel walls in order to inflate their levels of stenosis.
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and catheterization-lab nurse Cathie Parsh noticed that Persaud’s records severely overestimated
the extent of the patient’s arterial blockage. The patient’s angiogram, for example, indicated
stenosis levels of 30%, well below the threshold for a serious interventional procedure like
bypass surgery. The patient’s IVUS images appeared not to depict a constricted artery, but
rather measurements of the inside of the guide catheter used to set the device in place. Even the
symptoms listed in the patient’s medical records did not match testimony by the patient, who told
Colleta that he was experiencing no chest pain and had no problems engaging in moderate
physical activity. Subsequent testing led Coletta to conclude that there was no reason for the
patient to undergo bypass surgery.
Spurred by this discovery, Coletta spearheaded a review of all 12 of the IVUS tests that
Persaud performed at St. John Medical Center on patients during the 3 months prior to the falsely
referred bypass patient. Of the 11 instances where Coletta was able to obtain IVUS images from
Persaud’s tests, he determined that 7 of those cases involved measurements of the guide catheter
rather than the artery. When Coletta confronted Persaud, he resisted Coletta’s line of questioning
and refused to explain why his IVUS images improperly measured the guide catheter.
Persaud’s reaction to Coletta’s investigation led the board at St. John Medical Center to
collect more records from Persaud’s stent patients—some 65 patient records in total—and send
them to Dr. Barry George at Ohio State University for further analysis. Dr. George concluded
that not only did Persaud misinterpret the IVUS images in each one of the 65 cases sent for
analysis, but that 43 of the 65 stent procedures were completely unnecessary. The hospital then
sent additional angiogram film on 190 of Persaud’s stent patients to Dr. Hiram Bezerra at
University Hospitals Case Medical Center in Cleveland, Ohio, who concluded that 174 of the
190 stents Persaud inserted were placed in blood vessels with less than 70% stenosis—the
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threshold at which stenting is considered medically appropriate. Other hospitals associated with
Persaud also began reviewing his patients’ files and uncovered similar instances of unnecessary
medical procedures.9
Soon thereafter, St. John Medical Center revoked Persaud’s practicing privilege and sent
letters to his patients informing them that they may have received unnecessary stents. When a
local newspaper picked up the story on August 31, 2012, federal investigators began to look into
Persaud’s medical practice for potential fraud. Significantly, on the same day that the newspaper
ran the story, Persaud transferred $250,000 from his business account in order to open an
account in his wife’s name at another local bank. On October 12, 2012, federal law enforcement
obtained and executed a search warrant for Persaud’s office in order to secure patient records.
Law-enforcement agents also served subpoenas on Persaud for additional patient files, several of
which Persaud claimed not to have, but later disclosed to his patients upon their request.
As the investigation proceeded, the government hired several experts to review the details
of Persaud’s scheme. Dr. Ian Gilchrist, an interventional cardiologist, examined Persaud’s
hospital files, angiograms, and IVUS images. He reviewed a sample of 34 of Persaud’s stent
patients and found all of the procedures to be medically unnecessary. He further chose 10 of the
original 34 samples as examples of grossly problematic conduct, and he ensured that the
10 samples chosen were taken from all three hospitals where Persaud practiced.10 Gilchrist
concluded that the 10-patient sample included 14 medically unnecessary stents (7 of which were
inserted in different areas than those that Persaud diagnosed as problematic), 13 unnecessary
9
Southwest General sent its records to an external cardiologist, who found that 18 of the 87 stents he
reviewed were medically unnecessary. He also found that some of Persaud’s IVUS measurements were
improper. Fairview Hospital also conducted a review of Persaud’s patients and found that 51 of
Persaud’s 147 stent patients received medically unnecessary stents and that for an additional 45 of those
patients, the necessity of the procedure was uncertain.
10
The 10 patients chosen were later listed in Persaud’s indictment as victims of his alleged scheme.
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aortograms and angiograms, and 7 unnecessary catheterizations. Dr. Robert Biederman
reviewed Persaud’s NST practice, concluding that 16 of the 21 NSTs that were performed on
Gilchrist’s 10-patient sample were medically unnecessary. Biederman also took issue with
Persaud’s practice of prescribing yearly NSTs. Sonda Kunzi examined Persaud’s billing practice
using the same 10-patient sample relied upon by Gilchrist and Biederman. Kunzi determined
that the 10 patients resulted in 294 billable encounters with Persaud, of which each and every
encounter was overbilled. All of these experts testified at Persaud’s trial.
D
Based on the government’s investigation, a federal grand jury returned a 16-count
indictment, charging Persaud with one count of health-care fraud, fourteen counts of making
false statements relating to health-care matters, and one count of money laundering (on the basis
of Persaud’s transfer of funds to his wife). The grand jury also concluded that Persaud, if found
guilty of the charges, was also required to forfeit any proceedings of the fraud.
Persaud’s trial, which lasted nearly one month, involved 39 witnesses, including 14
physicians, eight patients, four nurses, and two coding experts. After hearing the evidence, the
jury convicted Persaud on all counts, save one of the false-statement charges. The same jury
later returned a special money-judgment verdict, concluding that: (1) the $343,634.67 seized
from the Persauds’ bank accounts was forfeitable proceeds of Persaud’s health-care fraud
scheme; (2) the $250,188.42 seized from Persaud’s wife’s account was involved in his money-
laundering conviction; and (3) Persaud’s scheme generated gross proceeds in the amount of
$2,100,000.
The district court sentenced Persaud to 20 years of imprisonment, a $1,500 special
assessment, and restitution. The district court later determined the outstanding restitution
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amount to be $5,486,857.03, which consists of money damages to be paid to Persaud’s patients,
their private insurers, and the United States. Persaud filed separate appeals challenging his
conviction and sentence, the forfeiture order, the restitution order, and the district court’s order
denying release pending the outcome of this appeal. The first three challenges have been
consolidated in this appeal; another panel has already denied Persaud’s request for release. The
government also filed a motion to strike portions of Persuad’s brief on appeal, arguing that
Persaud impermissibly relied on evidence that was not admitted at trial. This opinion resolves
both Persaud’s consolidated appeal and the government’s motion.
II
Persaud argues that the government presented insufficient evidence to sustain his
convictions for health-care fraud, making false statements relating to health-care matters, and
money laundering. An appellant challenging his conviction on sufficiency-of-the-evidence
grounds faces a high bar—Persaud’s conviction must be upheld if, “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. Warshak, 631 F.3d
266, 308 (6th Cir. 2010) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Consequently,
“we will reverse a judgment for insufficiency of the evidence only if, viewing the record as a
whole, the judgment is not supported by substantial and competent evidence.” United States v.
Blakeney, 942 F.2d 1001, 1010 (6th Cir. 1991) (citation omitted).
Persaud’s conviction for health-care fraud was based upon his scheme in its entirety,
from false diagnosis to the unnecessary stenting of patients. His convictions for making false
statements, however, rely exclusively on the alleged inflation of particular patients’ stenosis
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levels. Lastly, his money-laundering conviction requires both that his medical practice be
fraudulent and that he transferred the $250,000 check, as proceeds of that fraud, to his wife.
A
To commit health-care fraud, one must “knowingly and willfully execute[], or attempt[]
to execute, a scheme or artifice to defraud any health care benefit program” or fraudulently
obtain “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.” 18 U.S.C. § 1347. A conviction under this statute requires that the
government prove beyond a reasonable doubt that the defendant “(1) knowingly devised a
scheme or artifice to defraud a health care benefit program in connection with the delivery of or
payment for health care benefits, items or services; (2) executed or attempted to execute this
scheme or artifice to defraud; and (3) acted with intent to defraud.” United States v. Agbebiyi,
575 F. App’x 624, 634 (6th Cir. 2014) (quoting United States v. Martinez, 588 F.3d 301, 314
(6th Cir. 2009)). Proving fraudulent intent does not require direct evidence. Rather, “a jury may
consider circumstantial evidence and infer intent from evidence of efforts to conceal the
unlawful activity, from misrepresentations, from proof of knowledge, and from profits.” Ibid.
(citing United States v. Davis, 490 F.3d 541, 549 (6th Cir. 2007)).
The thrust of Persaud’s argument on appeal is that he was simply an over-protective
cardiologist who is guilty of nothing more than relying on outdated practice methods in treating
his patients. The government’s experts, Persaud argues, are unfairly second-guessing his
reasonable decisions with the benefit of hindsight and fail to “confront the realities and
exigencies of clinical practice.”
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The problem with Persaud’s approach, however, is that he is effectively asking this court
to re-weigh the expert testimony that was presented at trial. Persaud is not arguing that the
government failed to present sufficient expert testimony to prove the required elements of health-
care fraud. Rather, Persaud is arguing that the government’s expert witnesses were simply
wrong, either because they relied upon incomplete information or made incorrect assumptions
about the standards of professional medical care. But the reliability and believability of expert
testimony, once that testimony has been properly admitted,11 is exclusively for the jury to decide.
This court has long held the view that “[t]he weight and credibility of the testimony of [a party’s]
expert witnesses were for the jury.” O’Donnell v. Geneva Metal Wheel Co., 183 F.2d 733, 737
(6th Cir. 1950); see also Bathory v. Procter & Gamble Distrib. Co., 306 F.2d 22, 25 (6th Cir.
1962) (“It was for the jury, however, to weigh the evidence, to determine the credibility of these
[expert] witnesses and to cull the truth out of these seeming contradictions.”); Dickerson v.
Shepard Warner Elevator Co., 287 F.2d 255, 259 (6th Cir. 1961) (“The weight given to lay and
expert testimony and the credibility of such witnesses was for the jury to determine.”). Our task
on review is to determine whether any rational trier of fact, viewing the evidence presented at
trial in its entirety, could find the defendant guilty beyond a reasonable doubt of all of the
elements of the crime for which he was convicted. It cannot be the case that a juror acts
irrationally as a matter of law when he credits the testimony of one expert witness over another.
Stated differently, Persaud’s challenge fails because so much of his appeal depends on
dismantling the methodology of the government’s expert witnesses. Where he attempts to
introduce new evidence or advance new arguments on appeal, moreover, he improperly asks this
court to overturn his conviction based on evidence that was never placed before the jury. See
11
Persaud is not arguing that the admission of the testimony of the government’s expert witnesses
violated Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), which establishes standards
for the admissibility of expert-witness testimony in federal court.
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United States v. Ovalle, 136 F.3d 1092, 1108 n.17 (6th Cir. 1998) (“[I]t is a rule of long standing
in this court that we will not reverse on grounds not raised in the trial court.” (citation omitted));
Blakeney, 942 F.2d at 1010 (explaining that appellate review for sufficiency of the evidence is
limited to “viewing the record as a whole” (citation omitted)). To make this point clear, we will
address each of the arguments Persaud raises in his appeal and briefly explain why they fail to
undermine the sufficiency of his convictions.
He first challenges the government’s allegation that he systematically over-tested his
patients and falsified the results of those tests in order to support additional interventional
treatment. He begins by attacking the government’s expert-witness testimony regarding NSTs,
arguing that current NST practice standards—i.e., those that forbid annual NSTs on cardiac
patients—are a recent development in medicine. Thus, he argues, his practice of annual testing
is, at best, obsolete and not a sign of health-care fraud. He then proceeds patient by patient
through the 10-patient sample and explains why, with respect to the 9 patients Dr. Biederman
identified as having been prescribed 16 unnecessary NSTs, other evidence contained within each
patient’s record justified the procedures. Although Persaud presents alternative reasons behind
his reliance on NST testing, these reasons were never presented to the jury at trial. Moreover,
the government presented a wealth of uncontested evidence that supports a conviction of health-
care fraud. Persaud does not challenge, for example, the fact that he owned an NST machine and
thus could profit more from its use, the fact that he tried to process 10 NST patients per day and
frequently solicited replacement patients to fill that quota, the fact that he used wheelchair-bound
patients in treadmill-based NSTs even though chemical tests were more appropriate for patients
of their condition, or the fact that he used the cheapest radioactive isotopes and rushed his
patients through the procedure. See supra at Part I.B. This evidence, taken in conjunction with
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the lengthy testimony of the government’s expert witnesses, could support a rational juror’s
conclusion that Persaud’s NST practice constituted fraud.
Persaud then challenges the government’s allegations with respect to his angiographic-
testing practice—specifically, that Persaud improperly prescribed additional angiograms for
patients whose NSTs were normal. Here, Persaud does not address each of his patients’ cases
individually, instead choosing to discuss his catheterization philosophy more broadly. Persaud
emphasizes the fact that some of the government’s experts weren’t privy to his patients’ long-
term medical records and that angiographic testing can sometimes be appropriate where a patient
discloses a family history of heart disease. Problematically, Persaud can only point to one
patient, identified as RE, whose family history actually supports a prescription of further
angiographic testing. The government, meanwhile, points to a range of cases in which Persaud
conducted angiographic tests and inserted stents in areas of the heart that were inconsistent with
the areas where the NSTs allegedly indicated problems. Persaud’s argument on appeal is
nothing more than an attack upon the reliability of the government’s expert-witness testimony.
A rational juror could infer fraud from the government’s expert testimony and conclude that
Persaud’s emphasis on family history was nothing more than post-hoc rationalization.
Persaud next addresses his practice of prescribing additional IVUS tests, which he raises
twice in his brief. When he first addresses IVUS testing, he emphasizes his over-protective
testing philosophy rather than individual patient cases. Although he points to one patient—
again, the patient identified as RE—as an example of a case where the government’s witnesses at
least partially agreed with his decision to prescribe additional IVUS testing, the gist of Persaud’s
argument is that the decision to recommend additional testing is inherently subjective. Because
he knew the details of his patients’ lives, Persaud argues, he was better positioned to determine
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whether their symptoms merited further testing. The government, however, produced expert
witnesses who testified at trial that IVUS tests were designed to be used as a tie-breaking tool,
intended only to clarify the extent of arterial blockage where the angiogram suggested potentially
troubling stenosis levels (usually in the 50 to 70% range). A rational factfinder is entitled to rely
on the government’s expert testimony in concluding that Persaud’s use of IVUS testing on
patients whose angiograms revealed little or no arterial blockage violated this medical norm and
was indicative of health-care fraud.
Persaud also argues that the government’s experts lacked sufficient information to
analyze properly his use of the IVUS tests. This argument focuses on the allegation that the
majority of the images he took with the IVUS machine were useless because they depicted the
inside of the guide catheter rather than the patient’s arteries. He emphasizes that the experts only
had access to the small number of images that were actually saved and preserved during the
IVUS exam. Such a small sample size, he argues, is insufficient to determine whether his use of
the machine was improper. He specifically points out that, in a small number of cases, the
government’s own experts disagreed as to whether a recorded IVUS image was of the guide
catheter or of the patient’s arteries. He also argues that, contrary to some of the evidence that
was presented at trial, he was not responsible for what images were and were not recorded;
rather, that responsibility fell to the IVUS technician.12 Again, Persaud’s arguments effectively
ask this court to do what it cannot do: “conceptualize our role as that of a jury, deciding the case
anew.” Davis, 490 F.3d 541. The jury, not this court, is intended to weigh the import of expert
testimony and balance it against the weight of the defense’s evidence. Our task is merely to
12
As Persaud notes, there is some dispute here. One catheterization nurse testified at trial that Persaud
only used the “sled method” to conduct an IVUS, which would mean that Persaud would have been the
sole person responsible for determining when the “sled” was recording images. On cross-examination,
however, she also admitted that Persaud occasionally used an alternative method, in which the operating
technician held that responsibility.
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determine whether a rational jury could conclude, based on the record that was presented before
the jury, that Persaud’s use of IVUS is indicative of health-care fraud. That the jury believed the
government’s experts over the defendant’s experts is the jury’s prerogative, not grounds to
overturn the jury’s decision.
Persaud then moves on to address allegations that he inserted unnecessary stents in his
patients. Here, as with his arguments regarding IVUS testing, his approach is highly specific,
objecting to individual experts’ testimony and the evidence they presented. He makes two
general arguments against the stenting allegations: (1) that the government’s 70% stenosis
threshold is an inaccurate oversimplification of existing medical practice, and (2) that the
government’s experts rendered conclusions about the appropriateness of his stenting practices
based on incomplete or wrong information. Neither argument has merit.
The government introduced numerous witnesses who testified that 70% was the generally
accepted threshold for arterial intervention procedures such as stenting. Some, as Persaud points
out in his appeal, did testify that the 70% figure was a general guideline and that stent placement
can be appropriate at lower levels of stenosis. The jury nonetheless had ample evidence to
conclude that 70% was a generally accepted threshold for cardiac intervention and that, even if
lower levels of stenosis might on occasion merit stenting, Persaud’s practice of routine stenting
amounted to health-care fraud.
The government also introduced several experts who testified that Persaud’s stenting was
inappropriate because of the level of stenosis recorded by angiogram. Persaud argues on appeal
that judging the appropriateness of a stent insert by angiogram introduces “systematic error”
because IVUS tests will routinely report a higher level of stenosis than an angiogram, and
Persaud used IVUS tests to determine whether to place a stent. Ignoring the fact that one of the
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many allegations included in Persaud’s indictment is that he intentionally overestimated stenosis
levels in his IVUS tests, Persaud’s argument fails because he is yet again effectively asking this
court to impermissibly re-weigh his experts over those of the government. The credibility of the
government’s expert testimony, the admissibility of which is not at issue in this appeal, cannot be
attacked in a sufficiency-of-the-evidence challenge, which asks whether a rational jury could rely
on the expert’s testimony in concluding that Persaud is guilty beyond a reasonable doubt.
Lastly, Persaud challenges the government’s expert who testified that Persaud
intentionally “upcoded” his medical bills. Here, as with the other challenges he raises, Persaud
attacks only the methodology of the government’s expert witness, arguing that she relied upon
incomplete information. The jury had ample opportunity to hear from both parties’ expert
witnesses during trial. Simply because they favored the government expert’s account over the
account of Persaud’s expert does not undermine the evidentiary basis of the jury’s verdict.
From Persaud’s NST testing scheme through the “upcoding” of his patients’ medical
bills, the government presented sufficient evidence to permit a rational factfinder to find Persaud
guilty beyond a reasonable doubt of all of the elements of health-care fraud. Therefore, we
affirm Persaud’s conviction on this count.
C
18 U.S.C. § 1035 forbids the making of any “materially false, fictitious, or fraudulent
statements or representations . . . in connection with the delivery of or payment for health care
benefits, items, or services.” To establish guilt, the government must prove that the defendant
made these false statements knowingly and willfully. See United States v. Hunt, 521 F.3d 636,
648 (6th Cir. 2008). The false statements at issue in this case are Persaud’s representations of
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specific patients’ stenosis levels, which the government alleges were inflated for the purpose of
justifying additional interventional procedures.
Here, just as with his arguments regarding his fraud conviction, Persaud attacks the
methodology of the government’s experts. Specifically, he attacks the experts’ findings that his
diagnosis of his patients’ stenosis levels fell outside of the standard inter-observer variability
range of 10 percentage points. He argues that the government’s witnesses improperly compared
Persaud’s stenosis diagnoses, which were based on IVUS images, with expert diagnoses that
were based on his patients’ angiogram images. Since IVUS tests yield more precise
measurements of a patient’s stenosis levels, Persaud argues, any comparison between his IVUS
findings and the angiogram images is akin to comparing apples and oranges. one does compare
expert findings on the same test, Persaud argues that his findings fall well within the standard
range of inter-observer variability.
Problematically for Persaud, however, the government’s witnesses presented a different
interpretation of the data to the jury. To begin with, as many of the government’s witnesses
pointed out, the mere fact that Persaud prescribed additional IVUS tests for patients whose
angiograms revealed only minimal stenosis was itself indicative of fraudulent activity. In
addition, the government’s experts testified that, regardless of Persaud’s angiogram readings, his
IVUS readings were inherently fraudulent because he intentionally interchanged percent
diameter stenosis with percent area stenosis in order to inflate his patients’ stenosis values.13
Because a rational factfinder may rely upon admitted expert testimony at trial, the vast majority
13
Percent diameter stenosis represents the extent of a patient’s arterial blockage as measured by the
diameter of the target artery, while percent area stenosis represents the extent of a patient’s arterial
blockage as measured by the area of the target artery. Because area is a function of the radius squared
and multiplied by pi, percent area stenosis will always return a higher percentage value than percent
diameter stenosis, even when measuring the same level of blockage. As one government expert testified,
the different measurements are “two different kettles of fish.”
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of which implicated Persaud in a scheme to falsify his patients’ stenosis levels, he has failed to
show that his false-statement convictions are not supported by evidence on the record.
Therefore, we affirm Persaud’s false-statement convictions as well.
D
Lastly, Persaud contests his money-laundering conviction, which is governed by
18 U.S.C. § 1957. In order to be found guilty of money laundering, “a defendant must
(1) knowingly engage, or attempt to engage in a monetary transaction, (2) know that the funds
involved in the transaction are criminally derived, (3) use criminally derived funds in excess of
$10,000 in the transaction, and (4) use funds ‘derived from specified unlawful activity.’” United
States v. Young, 266 F.3d 468, 476 (6th Cir. 2001) (quoting 18 U.S.C. § 1957). Persaud’s
money-laundering conviction stems from a $250,000 transfer that Persaud made from his bank
account to a bank account belonging to his wife on the day that a local newspaper published an
article about ongoing hospital investigations into his cardiology practice.
There is no question that the $250,000 transfer exceeds the amount threshold in the
money-laundering statute. The only question is whether Persaud knew that the funds were
derived from specific criminal activity. He argues on appeal that, since he did not commit
health-care fraud, he cannot be guilty of money laundering. Because we conclude that Persaud is
guilty of health-care fraud, he is also guilty of money laundering. Therefore, we affirm
Persaud’s conviction on this count as well.
III
Persaud also challenged his sentence and the district court’s restitution and forfeiture
orders in separate cases that were consolidated with this appeal. In his appellate brief, however,
Persaud failed to raise substantive arguments on any of these points, referring only to his lengthy
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sentence in passing in the last paragraph of his brief. Our case law makes clear that “[i]t is not
sufficient for a party to mention a possible argument in the most skeletal way, leaving the court
to . . . put flesh on its bones.” McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997)
(alteration in original) (quoting Citizens Awareness Network, Inc. v. United States Nuclear
Regulatory Comm’n, 59 F.3d 284, 293–94 (1st Cir. 1995)). Because “[i]ssues adverted to in a
perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed
waived,” ibid., Persaud has forfeited any argument pertaining to his sentence or the district
court’s restitution and forfeiture orders.
IV
Persaud raises several thoughtful evidentiary arguments in his appeal. All of these issues,
however, were fairly presented to the jury at trial. Persaud had every opportunity to expose the
weaknesses of the government’s experts through cross-examination, and by all accounts did so.
The jury was entitled to accept the view of the government’s experts over those of Persaud’s
experts. Because a rational factfinder may rely upon admitted expert testimony in determining a
defendant’s guilt, Persaud has not met his burden of demonstrating that his conviction was not
supported by sufficient evidence. We therefore AFFIRM Persaud’s convictions on all counts,
his sentence, and the district court’s restitution and forfeiture orders, and we DISMISS the
government’s motion to strike as moot.
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