United States v. Raymond Shoemaker

Case: 12-60754 Document: 00512572663 Page: 1 Date Filed: 03/25/2014

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 12-60754 March 25, 2014

Lyle W. Cayce

Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellant

v.

RAYMOND LAMONT SHOEMAKER, also known as Ray Shoemaker;

EARNEST LEVI GARNER, JR., also known as Lee Garner,

Defendants - Appellees

Consolidated with

No. 12-60791

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

RAYMOND LAMONT SHOEMAKER, also known as Ray Shoemaker,

Defendant - Appellant

Appeals from the United States District Court

for the Northern District of Mississippi

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Before STEWART, Chief Judge, and GARZA and SOUTHWICK, Circuit

Judges.

EMILIO M. GARZA, Circuit Judge:

Earnest Levi Garner (“Garner”) and Raymond Lamont Shoemaker

(“Shoemaker”) stood trial for various federal crimes arising from a bribe and

kickback scheme involving a community hospital. The crimes included

conspiracy, federal program bribery, paying and receiving healthcare

kickbacks, embezzlement, and making false statements to federal agents.

After the jury returned guilty verdicts on all counts, the district court entered

judgments of acquittal and, in the alternative, granted new trials as to several

of the counts. We resolve two appeals in this opinion: In No. 12-60754, the

Government appeals the district court’s judgments of acquittal and grants of

new trials for Garner and Shoemaker, and in No. 12-60791, Shoemaker

appeals the district court’s denial of his motion for judgment of acquittal or

new trial on the remaining counts, of which he alone was convicted. We vacate

the district court’s judgments of acquittal and grants of new trials, affirm

Shoemaker’s other convictions, and remand for reinstatement of the jury

verdict and for sentencing.

I

This case concerns a bribe and kickback scheme involving Tri-Lakes

Medical Center (“TLMC”), a community hospital in Panola County,

Mississippi. 1 In 2004, when the County owned 60% of TLMC, the County’s

Board of Supervisors appointed David Chandler (“Chandler”) to serve as the

1 Because both appeals concern judgments of acquittal, we present the facts in the

light most favorable to the Government. See United States v. Hanson, 161 F.3d 896, 900 (5th

Cir. 1998).

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Chairman of TLMC’s Board of Trustees. Chandler had been the County

Administrator for almost twenty years, and he was appointed to oversee the

sale of the hospital on behalf of the Board of Supervisors. As Chairman,

Chandler scheduled and set the agenda for hospital board meetings, contacted

department heads for reports, and regularly dealt with Shoemaker, then

TLMC’s Chief Operating Officer (“COO”).

Garner owned and operated a nurse staffing business known as

Guardian Angel Nursing and, later, as On-Call Staffing, which provided

temporary nurses to area hospitals. In early 2005, TLMC entered into a

contract with Guardian Angel Nursing after Chandler had arranged two

meetings between company representatives and Shoemaker. Soon thereafter,

Chandler requested that Garner pay him $5 for every nursing hour his

company billed at TLMC. According to Chandler, the $5 per hour was in return

for Chandler’s ensuring that TLMC used Garner’s company for contract nurses

and paid Garner’s bills in a timely manner. About once a month, Garner would

push Chandler to increase hours for his nurse staffing business at TLMC, and

Chandler would lobby Shoemaker accordingly. A few months after this

arrangement commenced, Chandler signed a board authorization giving

Shoemaker a $50,000 raise. Upon Garner’s request, Chandler created invoices

that did not directly correlate to billed hours but rather looked as if they were

for consulting or tax services; the memo “Accounting Fees” or “Accounting

Services” appeared on checks from Garner.

In total, Garner paid Chandler $268,000 as a result of the agreement,

and TLMC paid Garner’s company approximately $2.3 million for nursing

services. Shoemaker’s executive assistant testified that Chandler, on behalf of

Garner’s company, regularly delivered invoices to and picked up checks

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directly from Shoemaker’s office, while other vendors had no such billing

practices. Moreover, Garner’s nursing company was typically the first vendor

paid by TLMC. Over the course of one year, when TLMC engaged a total of

seven nursing companies, Garner’s company received 40% of the hospital’s

business.

Meanwhile, in mid-2005, Robert Corkern (“Corkern”) contracted to

purchase TLMC. However, in order to secure financing, he needed a non-profit

entity that would qualify for a loan backed by the United States Department

of Agriculture (“USDA”). Shoemaker offered Corkern the use of a non-profit

under his control called Kaizen, and Corkern transferred to Kaizen his right to

purchase TLMC. Subsequently, Kaizen’s name was changed to Physicians and

Surgeons Hospital Group (“PSHG”).

In the fall of 2005, Chandler signed on behalf of TLMC a contract

providing PSHG with rights to purchase the hospital from Panola County and

the City of Batesville. Thereafter, PSHG purchased TLMC for approximately

$27 million. Once the sale was finalized, Chandler left the Board, and

Shoemaker was promoted from COO to Chief Executive Officer (“CEO”).

Soon thereafter, Shoemaker began claiming that Garner and Corkern

owed him money. Just prior to the sale of the hospital, Chandler had arranged

a meeting between Shoemaker and Garner at the Como Steakhouse. During

the meeting, Garner excused Chandler from the table, whereupon Garner and

Shoemaker conversed privately for approximately thirty minutes. After the

sale of the hospital, Shoemaker demanded $25,000 from Chandler, claiming

that Garner had “promised” that sum in return for Shoemaker’s maintaining

the flow of nursing hours and payments to Garner’s business. Chandler

recounted this conversation to Garner, who initially did not respond. Chandler

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then proposed that he would begin paying Shoemaker $2,000 per month, and

Garner replied that he did not care what Chandler did as long as the money

came out of Chandler’s $5-per-hour fee. Chandler testified that he ultimately

paid Shoemaker a total of $12,000 over six months.

Later, Shoemaker demanded that Corkern pay him $250,000 for

providing use of the non-profit to acquire TLMC. Corkern refused, explaining

that it was illegal to sell a non-profit entity. There was no mention in any sale

or loan documents of any debt owed by Corkern to Shoemaker regarding the

sale of the non-profit, and Corkern testified that Shoemaker had not demanded

such payment initially.

Shoemaker ultimately secured $250,000, though not from Corkern.

While the hospital was applying to GE Capital for a line of credit that had to

be approved by the USDA, Shoemaker signed a letter to the USDA stating that

the hospital desperately needed working capital for its day-to-day operations.

The letter did not indicate that Shoemaker would also pay himself using the

funds. That same month, Shoemaker signed a statement certifying that the

loan would be used only for the hospital and would not be applied toward the

obligations of any third parties or affiliates. On the day the line of credit was

issued, Shoemaker went to TLMC’s business office and had a check for

$250,000 issued to Kaizen. No one in the business office knew that Shoemaker

had previously owned Kaizen. When TLMC received its first draw under the

GE line of credit, the $250,000 was replenished. Shoemaker later presented

an invoice to the business office indicating that the payment to Kaizen was for

“organizational costs.” Shoemaker subsequently deposited the check into a

bank account that he controlled.

5

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In October 2009, Federal Bureau of Investigation (“FBI”) Special Agent

Shannon Wright interviewed Shoemaker. At first, Shoemaker denied

receiving $10,000 in checks from Chandler. Then he said he was “99% sure”

he had not received any checks but that if he had, he would like to see them.

Afterward, Shoemaker and Chandler agreed that they would call the payments

a loan. Accordingly, the next time Agent Wright interviewed Shoemaker, he

explained that Chandler had loaned him $10,000.

Chandler later began cooperating with the government and recording his

consensual conversations with Garner. In one such conversation, Garner

wondered if Chandler’s payments to Shoemaker were “gonna be called

bribery.” They agreed to characterize the $5-per-hour arrangement as

payments for “accounting” and “professional” services, and Garner insisted

that the bill not disclose the arrangement or otherwise correspond with

nursing hours. Later in that conversation, Garner said, “You know I told you

. . . I . . . I didn’t need to know who you paid . . . what you did.” Although

Chandler’s testimony was inconsistent as to the meaning of Garner’s

statement, he ultimately explained that it referred to his payments to

Shoemaker, and to Garner’s earlier remark that he did not care what Chandler

did with his $5-per-hour fee.

Shortly thereafter, Agent Wright and USDA Special Agent Keith Luke

interviewed Garner. They asked Garner about the payments to Chandler, and

Garner explained that certain larger payments constituted a “finder’s fee” for

securing business at TLMC. He also confirmed that he paid $5 for every hour

that his company billed and collected at TLMC.

Garner and Shoemaker were subsequently charged in twelve counts of

the Superseding Indictment. Both Garner and Shoemaker were charged with

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two counts of conspiracy in violation of 18 U.S.C. § 371: Count One charged

conspiracy to violate 18 U.S.C. § 666 by bribing Chandler and Shoemaker, and

Count Four charged conspiracy to violate 42 U.S.C. § 1320a–7b, based on the

same facts alleged in Count One. Garner alone was charged in Count Two for

violating 18 U.S.C. § 666 by bribing Chandler, and in Count Five for violating

42 U.S.C. § 1320a–7b, based on the same bribes. Shoemaker alone was charged

in Count Three for receiving bribes, in violation of 18 U.S.C. § 666; in Count

Six for soliciting and receiving healthcare kickbacks, in violation of 42 U.S.C.

§ 1320a–7b; in Count Seven for making false statements to the FBI, in violation

of 18 U.S.C. § 1001; in Count Eight for conspiring to violate 18 U.S.C. § 1014

by making false statements to the USDA, in violation of 18 U.S.C. § 371; in

Counts Nine through Eleven for making various false statements to the USDA,

in violation of 18 U.S.C. §1014; and in Count Twelve for embezzlement of

$250,000, in violation of 18 U.S.C. § 666.

After a nine-day trial, the jury found both Garner and Shoemaker guilty

on all counts. Both defendants filed motions for judgment of acquittal on all

counts or, in the alternative, a new trial. The district court then granted

judgments of acquittal and, in the alternative, new trials to Garner as to

Counts One, Two, Four, and Five, and to Shoemaker on Counts One and Four.

As for Count Three, the district court denied Shoemaker’s motion for judgment

of acquittal but granted him a new trial. The district court denied Shoemaker’s

motions as to Counts Six through Twelve. Thus, no convictions stood against

Garner. Shoemaker remained convicted of Counts Three and Six through

Twelve.

The Government now appeals all judgments of acquittal and grants of

new trials. Shoemaker appeals from his remaining convictions.

7

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II

The Government contends that the district court erred in granting

judgments of acquittal to Garner on Counts One, Two, Four, and Five, and to

Shoemaker on Counts One and Four. The district court determined that

insufficient evidence supported each conviction, and on appeal, the

Government challenges these determinations.

We give no deference to a district court’s post-verdict judgment of

acquittal. United States v. Hanson, 161 F.3d 896, 900 (5th Cir. 1998). Rather,

we “decide de novo whether the relevant evidence, viewed in a light most

favorable to the government, could be accepted by a jury as adequate and

sufficient to support the conclusion of the defendant’s guilt beyond a

reasonable doubt.” Id. (internal quotation marks and citation omitted). In

considering the sufficiency of the evidence, we must bear in mind that the “jury

is free to choose among reasonable constructions of the evidence,” even when

certain evidence conflicts or suggests innocence. Id. Although a district court

may re-weigh evidence and assess witness credibility in considering a motion

for new trial, it has “[n]o such discretion” when deciding a motion for judgment

of acquittal. United States v. Robertson, 110 F.3d 1113, 1117 (5th Cir. 1997).

A

Count One charged Garner and Shoemaker with conspiring to violate 18

U.S.C. § 666 by committing federal program bribery, in violation of 18 U.S.C.

§ 371. The district court read Count One to allege two distinct conspiracies—

a conspiracy between Garner, Shoemaker, and Chandler to bribe Chandler in

violation of 18 U.S.C. § 666, and a conspiracy between the same individuals to

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bribe Shoemaker, also in violation of § 666. 2 The district court granted

judgments of acquittal on Count One to Garner and Shoemaker because it

found the Government’s evidence insufficient for both conspiracies.

1

As to the first conspiracy in Count One, the district court reasoned that

in order for the convictions to stand, the Government had to present evidence

establishing that Chandler was an “agent” under 18 U.S.C. § 666 whom the

conspiracy aimed to bribe. According to the district court, the Government’s

evidence that Chandler was a TLMC board member and Panola County

employee could not suffice. Rather, the evidence at a minimum had to

establish that Chandler possessed “control over the legal transactions of

[TLMC] in ordering nursing services.”

Section 666 criminalizes offering, giving, or agreeing to give anything of

value to any person with intent to influence or reward an “agent” of an

organization in connection with a transaction exceeding $5,000 in value, where

the organization receives over $10,000 in federal funds over any one-year

period. 18 U.S.C. § 666(a)(2). The statute also prohibits an “agent” from

soliciting, accepting, or agreeing to accept anything of value with the intent to

be influenced or rewarded in connection with such transactions. Id.

§ 666(a)(1)(B). 3 “Agent” is defined as “a person authorized to act on behalf of

2 Although the district court and Shoemaker interpret Count One to allege two

conspiracies, the Government submits that Count One alleged only one conspiracy that “later

expanded to include Shoemaker.” We decline to decide this issue, the significance of which

was not adequately briefed on appeal. To facilitate our analysis, we adopt the district court’s

bifurcation.

3 The Superseding Indictment’s language in Count One is broad and inclusive of both

§ 666(a)(2) and (a)(1)(B), alleging that the conspirators sought to “solicit, accept, offer and

give anything of value . . . .” Count Two uses the language of § 666(a)(2) in alleging that

Garner “did . . . corruptly give, offer, and agree to give” a bribe. Count Three uses the

9

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another person or a government and, in the case of an organization or

government, includes a servant or employee, and a partner, director, officer,

manager, and representative.” Id. § 666(d)(1).

In United States v. Phillips, 219 F.3d 404 (5th Cir. 2000), we considered

the scope of the term “agent” in 18 U.S.C. § 666. Phillips was a Louisiana

parish tax assessor who allegedly hired his political ally and the ally’s wife in

order to provide them with health insurance benefits. In return, the couple

paid their salaries to Phillips as a kickback. The jury was instructed that

Phillips was an “agent” of the parish if he had authority to act on its behalf and

that tax assessors are “parish officers” under Louisiana law. The jury then

convicted Phillips and his ally for theft involving a federal program in violation

of § 666. Id. at 407–10. On appeal, we considered whether the evidence

sufficiently established that Phillips was an “agent” of the parish within the

meaning of § 666.

We held that “‘agent’ . . . should be construed . . . to tie the agency

relationship to the authority that a defendant has with respect to control and

expenditure of the funds of an entity that receives federal monies.” Id. at 415

(emphasis added). Put simply, an agent is someone authorized to act on behalf

of the organization or government not only in a general manner, but “with

respect to its funds” in particular. Id. at 413. 4 Applying this test, we observed

language of § 666(a)(1)(B) in charging that Shoemaker, as an agent of TLMC, “did . . .

corruptly solicit, demand, accept, and agree to accept” a bribe.

4 See also United States v. Brown, 727 F.3d 329, 338 (5th Cir. 2013) (applying Phillips

to theft offense under 18 U.S.C. § 666(a)(1)(A) and holding that sufficient evidence supported

jury verdict given that Government’s evidence showed that co-conspirator was “agent” who

“was authorized to act on behalf of the [covered entity] with respect to its funds”); United

States v. Whitfield, 590 F.3d 325, 344–47 (5th Cir. 2009) (applying Phillips and reversing

convictions where alleged agents had no authority over covered organization’s funds when

acting in the transaction at issue).

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first that under Louisiana law, assessment districts were “independent of

parish government”; tax assessors were not parish officers; and the parish had

no power to control or determine salaries of tax assessors. Id. at 412. We

further reasoned that nothing in the record showed that Phillips had any “legal

authority to bind the parish.” Id. at 413. We explained that “because Phillips,

as a matter of law, was not an employee or officer of the parish and because he

was not authorized to act on behalf of the parish with respect to its funds,

Phillips’s actions did not and could not have threatened the integrity of federal

funds or programs.” Id. Thus, we concluded that Phillips was not an agent of

the parish for the purposes of § 666.

Here, we conclude that Chandler is an “agent” within the meaning of §

666 as interpreted in Phillips. 5 As a textual matter, § 666 lists “director” and

“officer” as examples of agents, and Chandler, as the Chairman of TLMC’s

Board of Trustees, fell within this statutory definition. 18 U.S.C. § 666(d)(1).

Moreover, Chandler “was authorized to act on behalf of [the hospital] with

respect to its funds.” Phillips, 219 F.3d at 411. Chandler scheduled and set

the agenda for hospital board meetings, contacted department heads for

5 We observe that Chandler’s “agent” status is not a necessary element of the offense

charged in either Count One or Count Two of the Superseding Indictment. 18 U.S.C. §

666(a)(2) criminalizes giving or offering anything of value to “any person, with intent to

influence or reward an agent of [a covered] organization . . . .” Thus, by the plain text of the

statute, it suffices for Count One that the conspirators agreed to have Garner give money to

Chandler, who is “any person,” with intent to influence Shoemaker, who—the parties do not

dispute—is an agent of TLMC as its COO and CEO. Likewise, for Count Two, evidence that

Garner paid Chandler with intent to influence Shoemaker would be sufficient. For both

counts, evidence of the intent to influence Shoemaker was sufficient, as explained below in

our discussion of Count Four. Therefore, proving Chandler’s status as “agent” is superfluous.

But because the jury instructions for Count Two (the substantive counterpart to the first

conspiracy in Count One) required a finding that Chandler is an agent, and because the

parties’ briefing on Count One explores this question at length, we proceed to explain why

Chandler is an agent under § 666.

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reports at board meetings, and worked closely with Shoemaker, the COO and,

later, CEO. Most significantly, Chandler signed a board authorization giving

Shoemaker a $50,000 raise and signed a contract on behalf of the hospital

providing PSHG with the rights to purchase the hospital. 6 While Phillips was

“organizationally removed” from the parish’s funds because he was not an

officer of the parish, Chandler, as Chairman of TLMC’s board, was at the top

of the relevant organization and had full authority over its funds. Id.

The district court erred by pronouncing a new requirement that the

“agent” have direct authority over the ultimate decision targeted by the bribe—

here, the “authority to order temporary nurses from providers, such as

Guardian Angel, on a day-to-day as-needed basis.” This requirement is absent

from both the statute and Phillips, which collectively require only that an

agent have general authority to act for the organization and to control its

funds. Id. at 411. 7 Because lines of authority are often blurred, to criminalize

6 Because Chandler’s status as an “agent” of TLMC suffices to sustain the convictions,

we do not decide whether Chandler was also an “agent” of Panola County.

7 Since Phillips, we have suggested that a broader definition of “agent” is more faithful

to the statutory text and purpose and to our earlier decisions addressing § 666. In United

States v. Lipscomb, 299 F.3d 303 (5th Cir. 2002), we held that because a city council member

qualified as an “agent” of his city under § 666, the district court had jurisdiction to convict

him. Id. at 315–16. We explained that Phillips added “extra-textual teeth” to the “agent”

definition by requiring the agent to have power over the organization’s funds, and that this

additional requirement was potentially in tension with earlier cases. Lipscomb, 299 F.3d at

313; see also id. at 314 (“We acknowledge that it is at least arguable . . . that this

‘organizationally removed’ language [of Phillips] conflicts with Westmoreland and Moeller,

even though . . . the Phillips panel may be perceived as having favored the ‘funds focus’ for

§ 666. To the extent that there is a conflict, however, the older case controls . . . .”); id.

(explaining that “corruption focus” of Westmoreland “has never been overruled either by this

court en banc or by the Supreme Court”). Likewise, the First, Third, Sixth, Seventh, and

Eleventh Circuits have rejected the narrower approach of Phillips. See United States v.

Fernandez, 722 F.3d 1, 11 (1st Cir. 2013); United States v. Vitillo, 490 F.3d 314, 323 (3d Cir.

2007); United States v. Hudson, 491 F.3d 590, 595 (6th Cir. 2007); United States v. Spano,

401 F.3d 837, 839–41 (7th Cir. 2005); United States v. Keen, 676 F.3d 981, 990 (11th Cir.

2012).

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only bribes paid to individuals with direct, formal authority to effect a desired

outcome would render § 666 virtually meaningless. 8

Alternatively, the district court’s opinion might be read to mean that 18

U.S.C. § 666 prohibits successful bribes, regardless of the recipient’s official

authority. 9 By this logic, despite Chandler’s lack of formal authority over

nurse staffing, if the Government had introduced evidence that he disregarded

protocols and actually channeled business to Garner’s company, then his

conviction might have been saved. Citing testimony that nurse staffing

decisions were based solely on demand and vendor availability, the district

court concluded that no evidence established that Chandler actually influenced

decisions to give business to TLMC.

To the extent that the district court concluded that proof of an actual

quid pro quo was necessary to sustain the convictions, it erred as a matter of

Moreover, the Phillips majority’s concern about avoiding constitutional doubts now

itself rests on doubtful foundations. See Phillips, 219 F.3d at 414–15 (discussing limits of

Spending Clause powers). In United States v. Sabri, 541 U.S. 600 (2004), the Supreme Court

held that § 666 is not facially unconstitutional for failing to require “any connection” between

the bribe and federal funds. Id. at 604. The Court reasoned that the Spending Clause gives

Congress authority to appropriate federal funds for the general welfare, and that the

Necessary and Proper Clause embraces power to protect the integrity of those funds using

§ 666, even when the bribe does not result in a direct misuse of federal resources. Id. at 605–

606.

Nonetheless, Phillips’s narrower approach remains good law, see Brown, 727 F.3d at

338, and it does not require federal funds to be directly linked either to the bribe or to the

agent. See Phillips, 219 F.3d at 411 (“[T]he funds in question need not be purely federal, nor

must the conduct in question have a direct effect on federal funds.”). Neither, under Phillips,

must the agent have direct authority over the outcome that is the object of the bribe, contrary

to the district court’s interpretation. We are thus satisfied that under Phillips, and on the

evidence in the record, Chandler was an “agent” under § 666.

8 See Fischer v. United States, 529 U.S. 667, 678 (2000) (“[T]he language of [§ 666]

reveals Congress’[s] expansive, unambiguous intent to ensure the integrity of organizations

participating in federal assistance programs.”).

9 On appeal, Shoemaker seems to defend both interpretations of the district court’s

opinion: “Chandler testified that he could not affect a single nursing hour and did not

influence anyone to enter the nursing contract with Garner’s company.”

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law. Nothing in Phillips or the relevant statutes requires that the bribe at

issue be successful. A conspiracy under 18 U.S.C. § 371 requires only a

knowing agreement to commit an unlawful act against the United States and

an overt act by one of the co-conspirators in furtherance of the conspiracy. See

United States v. Coleman, 609 F.3d 699, 704 (5th Cir. 2010). In Count One,

the unlawful act is that proscribed by § 666, which requires only that the bribe-

giver “corruptly” offer or give a bribe “with intent to influence or reward” the

agent. 18 U.S.C. § 666(a)(2) (emphasis added). Here, the Government

introduced ample evidence of the corrupt intent behind the payments in

question—Chandler’s testimony that he requested Garner pay him $5 per

nursing hour in return for his securing business, and that Garner would

periodically push Chandler to increase nursing hours. Neither the

Superseding Indictment nor the jury instruction includes any requirement

that Garner actually benefited from his bribe, and this absence accords with

the requirements of both § 371 and § 666. 10

2

Regarding the second conspiracy in Count One, in which Garner,

Shoemaker, and Chandler allegedly conspired to bribe Shoemaker, the district

10 Of course, evidence of a successful scheme is not wholly irrelevant, as it is probative

of the intent behind the alleged bribe payments. But here, other evidence of intent was

sufficient. Moreover, whether the bribe actually succeeded is a basic question of fact for the

jury: The “jury is free to choose among reasonable constructions of the evidence,” Hanson,

161 F.3d at 900, as well as make credibility determinations, Robertson, 110 F.3d at 1117.

Here, the jury might have disbelieved the TLMC nurse staffer’s testimony that others never

interfered with her decisions or, alternatively, understood Chandler to wield influence more

indirectly or surreptitiously, without exercising direct authority to choose nursing companies,

which he testified that he did not have. Additionally, the jury might have been persuaded by

the fact that Garner’s company captured 40% of TLMC’s business during one year.

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court found that the Government failed to introduce any evidence of the

underlying agreement.

To obtain convictions under 18 U.S.C. § 371, the Government must prove

“an agreement between two or more persons to pursue an unlawful objective,”

among other elements. Coleman, 609 F.3d at 704. “To be a conspiracy, an

express, explicit agreement is not required; a tacit agreement is enough.”

United States v. Westbrook, 119 F.3d 1176, 1189 (5th Cir. 1997). A conspiracy

may be proven with only circumstantial evidence or “inferred from a concert of

action.” United States v. Virgen-Moreno, 265 F.3d 276, 284–85 (5th Cir. 2001)

(internal quotation marks and citation omitted). Furthermore, “a conviction

may be based even on uncorroborated testimony of an accomplice or of someone

making a plea bargain with the government, provided that the testimony is

not incredible or otherwise insubstantial on its face.” United States v. Osum,

943 F.2d 1394, 1405 (5th Cir. 1991). Additionally, “the jury is the ultimate

arbiter of the credibility of a witness,” and “testimony generally should not be

declared incredible as a matter of law” unless it pertains to matters “that the

witness physically could not have observed or events that could not have

occurred under the laws of nature.” Id.

Viewing the evidence in the light most favorable to the jury’s verdict, we

conclude that evidence of the agreement between Garner, Shoemaker, and

Chandler to bribe Shoemaker was sufficient to support the convictions.

Chandler testified that Shoemaker demanded $25,000 from him, claiming that

Garner had “promised” that amount in return for Shoemaker’s maintaining

nursing hours for Garner’s business. Chandler further testified that he

recounted this conversation to Garner, who did not respond immediately, and

that when Chandler then proposed that he would begin paying Shoemaker

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$2,000 per month, Garner said that he did not care what Chandler did as long

as the money came out of Chandler’s $5-per-hour fee. Although Garner did not

agree to give his own money directly to Shoemaker, he acquiesced in

Chandler’s proposal to pay Shoemaker. Garner thereby agreed to the plan to

compensate Shoemaker for his cooperation, to which plan both Chandler and

Shoemaker agreed as well. While the above “uncorroborated testimony” would

suffice, Osum, 943 F.2d at 1405, Chandler’s testimony was corroborated by

other evidence. First, in tape-recorded exchange, Garner told Chandler, “You

know I told you . . . I . . . I didn’t need to know who you paid . . . what you did.”

Chandler testified that Garner’s comment referred to Chandler’s payments to

Shoemaker, and to Garner’s earlier remark that he did not care what Chandler

did with his $5-per-hour fee. Additionally, the Government introduced

evidence of Chandler’s monthly payments to Shoemaker, which totaled

$12,000.

Notwithstanding this evidence, the district court found that there was

“no substantive testimony” bearing on the agreement between Garner and

Shoemaker. The district court based this finding solely on the fact that at the

Como Steakhouse, Chandler had been excused from the table and therefore

could not testify about that specific conversation. The district court further

observed that “[t]he only persons present at the time in question [at the Como

Steakhouse] were Garner and Shoemaker, and no evidence was presented by

them of any such agreement.”

The district court’s reasoning misunderstands its limited task in ruling

on a motion for a judgment of acquittal. In effect, the district court concluded

that the Government was required to prove the agreement between the three

individuals with direct evidence of a specific exchange between Garner and

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Shoemaker. But there was ample circumstantial evidence—even a “concert of

action”—in the form of Chandler’s testimony about Shoemaker’s demand for

$25,000 and reference to Garner’s promise, 11 Garner’s acquiescence, and

Chandler’s payments. Virgen-Moreno, 265 F.3d at 284–85. The district court’s

11 Furthermore, the district court’s Bourjaily concerns are misplaced. In Bourjaily v.

United States, 483 U.S. 171 (1987), the Supreme Court held that a trial court may admit co-

conspirator statements under Federal Rule of Evidence 801(d)(2)(E) upon finding that the

requirements of that rule are satisfied based on a preponderance of the evidence, where such

evidence is not subject to evidentiary rules, except those on privilege, and may include the

statements in question. Id. at 175–78 (discussing treatment of preliminary questions under

Fed. R. Evid. 104(a)). Here, the district court noted in passing that “no Bourjaily findings

were made or asked to be made prior to the prosecution eliciting this testimony from

Chandler [regarding Shoemaker’s claim that Garner had ‘promised’ him $25,000].” On

appeal, Shoemaker, also citing Bourjaily in passing, claims that the district court “properly

rejected this hearsay testimony . . . .”

First, we note that neither Garner nor Shoemaker objected to the testimony at trial,

and their motions for judgment of acquittal or new trial did not mention any hearsay problem,

let alone Bourjaily. While the district court “may on its own consider whether the evidence

is insufficient to sustain a conviction,” Fed. R. Crim. P. 29(a), we know of no authority

establishing a district court’s power to base a judgment of acquittal on its sua sponte exclusion

of evidence admitted at trial without objection. But cf. Webster v. Duckworth, 767 F.2d 1206,

1215 (7th Cir. 1985) (discussing Ninth Circuit cases that permit district court to grant new

trial if some admitted evidence should have been excluded, and remaining evidence would

have been insufficient).

Second, even if Shoemaker’s statement about Garner’s promise would have been

barred following a Bourjaily hearing, there was no plain error because Garner and

Shoemaker’s “substantial rights” were not affected, United States v. Montes-Salas, 669 F.3d

240, 247 (5th Cir. 2012), since other admissible testimony would have been sufficient to

support the conspiracy convictions. First, Chandler stated that Shoemaker said, “I don’t

know what’s going on, but I’ve held up the end of my deal, but I am not getting – that Lee

hadn’t held up the end of his deal.” This statement is a party-opponent admission, admissible

against Shoemaker, and supports his conspiracy conviction on Count One because it

establishes his agreement with the other individuals that he should be receiving bribes. Fed.

R. Evid. 801(d)(2)(A). Later, when Chandler offered to pay Shoemaker $2,000 a month,

Garner said that “he didn’t care who or what [Chandler] paid as long as it came out of

[Chandler’s] $5 an hour.” Garner’s response is a party-opponent admission as well and

supports Garner’s conspiracy conviction on Count One because it establishes his agreement

with the others to provide Shoemaker with bribes (via Chandler). Thus, even without

Shoemaker’s reference to Garner’s promise, a rational jury could have found beyond a

reasonable doubt that Garner, Shoemaker, and Chandler conspired to violate 18 U.S.C. §

666.

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faulting the Government for not presenting to the jury the precise words

spoken during the Como Steakhouse conversation upends the principle that

“tacit agreement is enough” to establish a conspiracy. Westbrook, 119 F.3d at

1189. Moreover, even assuming that Garner and Shoemaker never agreed

directly with each other to enter into the conspiracy, we conclude that the

convictions are adequately supported by evidence of Garner’s verbally agreeing

to let Chandler pay Shoemaker, and Chandler’s tacitly agreeing with

Shoemaker by making the requested payments. 12 Alternatively, the district

court’s summary rejection of Chandler’s testimony amounts to an

impermissible credibility judgment. Because Chandler did not speak about

matters that he “physically could not have observed or events that could not

have occurred under the laws of nature,” his credibility was an issue for the

jury. Osum, 943 F.2d at 1405.

Accordingly, because sufficient evidence supported all requisite elements

of the conspiracies to bribe Chandler and Shoemaker, we hold that the district

court erred in granting Garner’s and Shoemaker’s motions for judgment of

acquittal on Count One.

B

Count Two charged Garner with federal program bribery in violation of

18 U.S.C. § 666. The facts alleged in Count Two were the substantive

counterpart to the first conspiracy charged in Count One: That is, Garner

allegedly carried out the conspiracy by actually bribing Chandler.

The district court granted Garner’s motion for judgment of acquittal on

Count Two on the grounds that no evidence demonstrated that Chandler was

12See United States v. Payne, 99 F.3d 1273, 1279 n.6 (5th Cir. 1996) (explaining chain

conspiracy, in which “each link may not know the entire chain”).

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an “agent” under § 666. For the reasons discussed above, see supra Part II.A.1,

the district court erred. Additionally, we reject Garner’s contention that

evidence of the requisite mens rea was insufficient. See 18 U.S.C. § 666(a)(2)

(criminalizing bribes offered “corruptly”). The jury heard Chandler’s testimony

that Garner sought to conceal the link between the bribes and nursing hours,

and pursuant to this plan, the memo “Accounting Fees” or “Accounting

Services” appeared on the checks that Garner gave to Chandler. The jury acted

well within its power to “choose among reasonable constructions of the

evidence” by crediting Chandler’s testimony, especially in light of the checks.

Hanson, 161 F.3d at 900.

The district court thus erred in granting a judgment of acquittal to

Garner on Count Two.

C

Premised on the same facts as Count One, Count Four charged Garner

and Shoemaker with conspiracy to violate 42 U.S.C. § 1320a–7b by providing

healthcare kickbacks, in violation of 18 U.S.C. § 371. The district court read

Count Four, like Count One, as alleging two distinct conspiracies—a

conspiracy between Garner, Shoemaker, and Chandler to pay kickbacks to

Chandler in violation of 42 U.S.C. § 1320a–7b(b)(2)(B), and a conspiracy

between the same individuals to pay kickbacks to Shoemaker also in violation

of § 1320a–7b(b)(2)(B). 13 The district court granted judgments of acquittal on

Count Four to Garner and Shoemaker because it found fatal omissions in the

Government’s proof of both conspiracies. With respect to the first conspiracy,

13The factual allegations of Counts One and Two are identical to those of Counts Four

and Five; the two pairs of counts differ only in the statutory basis of the charges: 18 U.S.C. §

666 underlies Counts One and Two, while 42 U.S.C. § 1320a–7b(b)(2)(B) underlies Counts

Four and Five.

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the district court reasoned that no evidence established that Chandler was a

“relevant decisionmaker” under § 1320a–7b(b)(2)(B). With respect to the

second, the district court found that there was no evidence of any agreement

underlying the conspiracy. 14

1

Regarding the first conspiracy in Count Four, the district court reasoned

that in order for the convictions under 42 U.S.C. § 1320a–7b(b)(2) to stand, the

Government had to present evidence establishing that Chandler was a

“relevant decisionmaker.” The district court concluded that because “[i]t is

undisputed that Chandler had no decision-making authority in regard to the

actual procurement of nursing staff,” he could not be a “relevant

decisionmaker.”

Enacted as part of the Medicare-Medicaid Anti-Fraud and Abuse

Amendments, 42 U.S.C. § 1320a–7b(b)(2) criminalizes the payment of

remuneration under two related circumstances:

(2) whoever knowingly and willfully offers or pays any

remuneration (including any kickback, bribe, or

rebate) directly or indirectly, overtly or covertly, in

cash or in kind to any person to induce such person—

(A) to refer an individual to a person for the

furnishing or arranging for the furnishing of

any item or service for which payment may

be made in whole or in part under a Federal

health care program, or

(B) to purchase, lease, order, or arrange for or

recommend purchasing, leasing, or ordering

14Again, as with Count One, in order to facilitate our review of the district court’s

opinion, we assume without deciding that two separate conspiracies were alleged.

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any good, facility, service, or item for which

payment may be made in whole or in part

under a Federal health care program,

shall be guilty of a felony and upon conviction thereof,

shall be fined not more than $25,000 or imprisoned for

not more than five years, or both.

42 U.S.C. § 1320a–7b(b)(2)(A), (B). Thus, the statute prohibits payments to

“any person,” so long as the payment is made with the requisite intent: The

payer must “knowingly and willfully” offer or make a payment to induce the

recipient either “to refer an individual to a person” for the provision of a

covered healthcare good or service under subsection (A), or “to purchase, lease,

order, or arrange for or recommend” procuring a covered healthcare good or

service under subsection (B).

Here, applying the statute and viewing the evidence in the light most

favorable to the jury’s verdict, we hold that sufficient evidence supported

Garner’s and Shoemaker’s convictions for conspiring to pay Chandler with the

intent “to induce [Chandler to] arrange for or recommend” procuring nursing

services from Garner. 42 U.S.C. § 1320a–7b(b)(2)(B). The Government

introduced evidence that Chandler requested that Garner pay him $5 per hour

for every nursing hour billed and collected at TLMC—payments that,

according to Chandler, were in return for his ensuring that TLMC used

Garner’s company for contract nurses. About once a month, Garner would

push Chandler to increase his company’s nursing hours at TLMC, and

Chandler would lobby Shoemaker accordingly. Moreover, Chandler testified

that he ultimately paid Shoemaker a total of $12,000 over six months in order

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to maintain influence over Shoemaker. 15 In short, the evidence sufficiently

established that a conspiracy existed to violate 42 U.S.C. § 1320a–7b(b)(2)(B)

by paying Chandler—a recipient who was “any person”—to induce him to

recommend that Shoemaker direct business to Garner’s company. 16

The district court, however, read United States v. Miles, 360 F.3d 472

(5th Cir. 2004), to limit drastically the meaning of “any person,” such that

liability cannot attach unless the “person” who receives remuneration is a

“relevant decisionmaker” with formal authority to effect the desired referral or

recommendation. 17 The Government, Shoemaker, and Garner all agree that

the district court’s reading of Miles is correct; the Government submits only

that Chandler was in fact a “relevant decisionmaker” by virtue of his role in

TLMC’s senior administration. But as explained below, Miles imposed no such

limitation on the meaning of “any person” and is wholly inapplicable to this

case.

In Miles, we considered whether sufficient evidence supported

convictions under § 1320a–7b(b)(2)(A) for alleged healthcare kickbacks paid in

return for advertising services. Id. at 480. The Miles defendants were owners

of APRO, a home healthcare company. Premier, a public relations firm,

distributed promotional materials about APRO to local doctors’ offices. After

15 When asked why he made the payments to Shoemaker, Chandler explained: “It was

requested or I – it was requested – I felt like I needed to do that to – for an obligation that

was due.” In explaining why he stopped the payments before paying the full $25,000

requested by Shoemaker, Chandler testified: “I just felt like it was double dipping. . . . [I]n

my mind, he had already had the 25 and was getting some more off of me, and I just quit.”

16 As with violations of 18 U.S.C. § 666, whether the kickbacks actually generated

incrementally more business for Garner is immaterial under 42 U.S.C. § 1320a–7b(b)(2). See

supra Part II.A.1.

17 The district court opinion states: “The Fifth Circuit has held that under a reading

of section 1320a–7b, the payment for services must be made to a ‘relevant decision maker’

with respect to the services for which an alleged kickback is paid.”

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a physician decided to use APRO’s services for a patient, the physician would

contact Premier, which then furnished APRO with billing information. Id. at

479. For every patient who used APRO’s services because of Premier’s

advertising, the defendants paid Premier $300. Id. We prefaced our analysis

by explaining that “[t]he only issue in dispute is whether Premier’s activities

constituted referrals within the meaning of the statute,” as the statute only

criminalizes payments with the intent to induce such referrals. Miles, 360 F.3d

at 480 (emphasis added). 18 We reasoned that “[t]here was no evidence that

Premier had any authority to act on behalf of a physician in selecting the

particular home health care provider.” Id. at 480. We explained that “[t]he

payments from APRO to Premier were not made to the relevant decisionmaker

as an inducement or kickback for sending patients to APRO.” Id. Accordingly,

we concluded that “APRO’s payments to Premier were not illegal kickbacks”

prohibited by 42 U.S.C. § 1320a–7b(b)(2)(A), and vacated the relevant

convictions. 19

18 Under subsection (A), the requisite culpable intent is determined in part by the

meaning of “referrals”: Payments must be made “to any person to induce such person . . . to

refer an individual to a person” for the provision of healthcare goods or services. 42 U.S.C. §

1320a–7b(b)(2)(A) (emphasis added).

19 Miles concerned subsection (A), whereas here, Count Four charged Garner and

Shoemaker under subsection (B). Unlike subsection (A)’s requirement that the payer intend

to have the payee “refer an individual to a person,” subsection (B) criminalizes payment with

intent to have the payee “recommend” healthcare goods or services. In Miles, the appellants

contended that because the term “recommend” in subsection (B) reaches a wider range of

activity (including their passive advertising) than does the act of “referral” in subsection (A),

“their payments to third parties such as Premier may only be prosecuted under subsection

(B),” and their convictions under subsection (A) were accordingly invalid. Miles, 360 F.3d at

480 n.3. We had no occasion in Miles to consider the distinction between “referral” and

“recommendation” and similarly decline to do so today, but we note that the Seventh Circuit

has roundly rejected this distinction. See United States v. Polin, 194 F.3d 863, 866 (7th Cir.

1999).

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Thus, Miles drew a distinction not between types of payees—“relevant

decisionmakers” and others—but between a payer’s intent to induce

“referrals,” which is illegal, and the intent to compensate advertisers, which is

permissible. Moreover, the factual and procedural context of that case

constrained our holding. Miles accordingly stands for a narrow legal

proposition: Where advertising facilitates an independent decision to purchase

a healthcare good or service, and where there is no evidence that the advertiser

“unduly influence[s]” or “act[s] on behalf of” the purchaser, the mere fact that

the good or service provider compensates the advertiser following each

purchase is insufficient to support the provider’s conviction for making a

payment “to refer an individual to a person” under 42 U.S.C. § 1320a–

7b(b)(2)(A). Miles, 360 F.3d at 480. 20

Miles is inapplicable to the facts before us. Here, advertising services

are not at issue. Moreover, sufficient evidence established that the payments

to Chandler aimed to induce him to “recommend” Garner’s company. 42 U.S.C.

§ 1320a–7b(b)(2)(B). That is, in paying Chandler, Garner was not asking for a

brochure bearing his company’s name to be distributed to TLMC staff; rather,

enough evidence showed that he wanted Chandler to exploit his personal

20 This distinction in Miles between undue influence and mere advertising finds a

helpful analogue in the Supreme Court’s jurisprudence on lawyers’ commercial speech. In

Shapero v. Kentucky Bar Association, 486 U.S. 466 (1988), the Court distinguished between

lawyers’ in-person solicitation on the one hand, and direct-mail solicitation on the other. The

Court explained that the latter, like print advertising, “poses much less risk of overreaching

or undue influence,” and accordingly held that a state may not subject lawyers’ direct-mail

solicitation to a blanket prohibition without offending the First and Fourteenth

Amendments. Id. at 475–76 (quoting Zauderer v. Office of Disciplinary Counsel of Supreme

Court of Ohio, 471 U.S. 626, 642 (1985)). By contrast, states may constitutionally ban in-

person solicitation by attorneys given that preventing “fraud, undue influence, . . . and other

forms of vexatious conduct” is a compelling interest, and because such a prophylactic rule is

necessary to further this interest. Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 462–68

(1978) (internal quotations omitted).

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access to TLMC executives, including Shoemaker, and to ensure that TLMC

favored Garner’s company when it chose nursing services. This conduct is an

archetypal example of the undue influence prohibited by the statute.

Contrary to the district court’s opinion and the parties’ submissions, we

did not hold in Miles that a payee with “relevant decisionmaker” status is an

independent, substantive requirement of the statute. Such a novel move would

be tantamount to re-writing the statutory text, which, as noted above,

criminalizes payments to “any person[s],” so long as they are made with the

requisite intent. See United States v. Polin, 194 F.3d 863, 866 (7th Cir. 1999)

(“The different subsections [(A) and (B)] do not distinguish between physicians

and lay-persons.”). Rather, we merely used the term “relevant decisionmaker”

as shorthand—to characterize remuneration recipients who were paid with the

culpable intent to induce “referrals.” Miles, 360 F.3d at 480. Premier, as a

public relations firm that did not unduly influence doctors through its

advertising services, could not have been paid with the requisite corrupt intent

to induce such “referrals”; therefore, it was not a “relevant decisionmaker.” Id.

In short, this label merely represents the statute’s requirement that

remuneration must be paid with certain illegal ends in mind.

The consequences of the district court’s reading of the statute and Miles

would be untenable. By its logic, if a bribe-giver wanted to avoid liability, he

could simply identify the individual with direct operational authority over the

desired decision, and bribe a manager who is at least one level removed in the

chain of command, since the manager would have no direct, formal, day-to-day

authority over the targeted decision. Alternatively, he could also avoid liability

by paying a third party external to the organization to, in turn, bribe the

decisionmaker within the organization. Such a view of the law ignores the

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statutory text, which limits liability not by narrowing the field of “any person,”

but by defining culpable intent. Indeed, intent was the focus of our inquiry in

Miles—specifically the question of whether the evidence could establish intent

to induce “referrals.” Id. at 480. 21 The focus on intent, not titles or formal

authority, also accords with Congress’s concerns in enacting the statute—to

broaden liability to reach operatives who leverage fluid, informal power and

influence. Cf. Polin, 194 F.3d at 866 (concluding that reading § 1320a–7b(b)(2)

to criminalize only payments to physicians who select pacemaker monitoring

service providers, and not payments to a pacemaker salesperson who

influences physicians’ choices, is “clearly a perversion of the Act”). 22

21 At least two other courts have explicitly rejected the district court’s reading of Miles,

which reading requires that payments be made to a “relevant decisionmaker” as a

prerequisite for any liability under the statute. In United States v. Krikheli, 2009 WL

4110306 (E.D.N.Y. 2009) (unpublished), the U.S. District Court for the Eastern District of

New York rejected the argument that § 1320a–7b(b)(2)(A) criminalizes only payments to

“decision-makers” and explained that Miles concerned a sufficiency-of-evidence challenge and

the meaning of “referral” and did not establish a broad legal holding limiting the scope of

“any person” in the statute. See id. at *4–6. Following their conviction, the defendants in

Krikheli raised the same Miles claim on appeal in challenging the sufficiency of evidence, but

the Second Circuit affirmed the convictions even “[a]ssuming, without deciding” that Miles

was correctly decided. United States v. Krikheli, 461 F. App’x 7, 9 (2d Cir. 2012)

(unpublished). But in making this assumption, the Second Circuit correctly interpreted our

narrow holding in Miles. Id. (explaining Miles as holding “that medical provider could not be

convicted under 42 U.S.C. § 1320a–7b(b)(2)(A) merely for hiring agency to send

advertisements and promotional materials to physicians, and then paying agency for each

patient referred”). But see United States v. Vernon, 723 F.3d 1234, 1254–56 (11th Cir. 2013)

(accepting that Miles stands for proposition that kickback must be paid to a “relevant

decisionmaker” in order for liability to attach, but distinguishing Miles on factual grounds).

22 The penalties originally provided in the Social Security Act for Medicare fraud were

much more limited and covered only the solicitation, offer, or receipt of kickbacks, bribes, or

rebates by “[w]hoever furnishes [Medicare] items or services.” See Social Security

Amendments of 1972, Pub. L. 92-603, § 242(b), 86 Stat. 1419. In 1977, Congress passed

amendments aiming to “clarify and restructure” the penalty provisions. H.R. Rep. 95-393,

pt. 2, at 53 (1977). The statutory language devised by Congress no longer required that bribes

be paid or received by the direct “furnish[er]” of the healthcare goods or services, or that the

payment be termed a “kickback,” “bribe,” or “rebate.” Rather, the amendments “make subject

to the penalty provisions any person who solicits or receives any remuneration” in return for

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2

We need not dwell at length on the district court’s grant of a judgment of

acquittal as to the second conspiracy alleged in Count Four—the conspiracy to

pay kickbacks to Shoemaker. The district court’s reasoning hinged on the

finding that the Government introduced no evidence of the content of the Como

Steakhouse conversation. As discussed above with respect to the parallel

conspiracy charge in Count One, evidence of the overall agreement was

sufficient. See supra Part II.A.2. 23

prohibited referrals or recommendations and “any person who offers or pays any

remuneration” in order to induce the payee to make such referrals or recommendations. Id.;

see Medicare-Medicaid Anti-Fraud and Abuse Amendments, Pub. L. 95-142, § 4(a), 91 Stat.

1179; Hanlester Network v. Shalala, 51 F.3d 1390, 1398 (9th Cir. 1995) (“The phrase ‘any

remuneration’ was intended to broaden the reach of the law which previously referred only

to kickbacks, bribes, and rebates.”). Here, the district court’s incorrect application of Miles

defeats Congress’s objective of broadening the reach of the Medicare anti-fraud provisions.

23 The Government further points to an apparent inconsistency in the district court’s

final judgment: The district court granted Shoemaker a judgment of acquittal on Count Four,

but not Count Six. The Government submits that this decision necessarily meant that the

district court determined that, for the purposes of Count Six, Shoemaker was a “relevant

decisionmaker” under Miles and 42 U.S.C. § 1320a–7b(b)(1). See Vernon, 723 F.3d at 1252

(“The two subsections are effectively the two sides of the same illegal kickback coin:

subsection (b)(1) criminalizes the soliciting or receiving of the kickback and subsection (b)(2)

criminalizes the offering or paying of the kickback.”). Thus, by the Government’s logic,

Shoemaker was also a “relevant decisionmaker” for the purposes of the second conspiracy

alleged in Count Four, and acquittal was improper.

On this issue, the Government is doubly mistaken. First, the district court opinion is

not internally inconsistent. Count Four alleges a conspiracy, which requires agreement,

while Count Six charges Shoemaker only for the solicitation or receipt of a bribe. Thus, the

district court could logically determine that sufficient evidence supported Shoemaker’s

conviction on Count Six, while also determining that evidence of his agreement with others

was not sufficient under Count Four.

Second, for purposes of Count Six, the district court never held that Shoemaker was

a “relevant decisionmaker” under Section (b)(1)—and rightly so. As discussed above, because

this case does not implicate advertising services, and given the ample evidence in this case

that Shoemaker received the kickbacks with the requisite criminal intent, Miles is

inapplicable to the analysis of Shoemaker’s criminal liability under either Count Four or Six.

See supra Part II.C.1.

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Accordingly, because sufficient evidence supported all requisite elements

of the conspiracies to provide kickbacks to Chandler and to Shoemaker, we

hold that the district court erred in granting Garner’s and Shoemaker’s

motions for judgment of acquittal on Count Four.

D

Count Five charged Garner with healthcare fraud in violation of 42

U.S.C. § 1320a–7b(b)(2)(B). Count Five is the substantive counterpart to the

first conspiracy charged in Count Four: That is, Garner allegedly realized the

conspiracy by actually paying a kickback to Chandler.

The district court granted Garner’s motion for judgment of acquittal on

Count Five on the grounds that no evidence demonstrated that Chandler was

a “relevant decisionmaker” under Miles. Miles, 360 F.3d at 480. For the

reasons already discussed, the district court misinterpreted Miles. See supra

Part II.C.1. Here, sufficient evidence established that Garner made payments

with culpable intent to induce a “recommend[ation].” 42 U.S.C. § 1320a–

7b(b)(2)(B). For other reasons previously discussed, see supra Part II.B, the

evidence of Garner’s mens rea—that he acted “knowingly and willfully”—was

sufficient to sustain his conviction. Id.

Thus, the district court erred in granting a judgment of acquittal to

Garner on Count Five.

III

The Government further contends that the district court erred in

granting a new trial to Garner on Counts One, Two, Four, and Five, and to

Shoemaker on Counts One, Three, and Four. Except for Shoemaker’s motion

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on Count Three, 24 these motions were granted in the alternative, such that

even if the judgments of acquittal were vacated on appeal, Garner and

Shoemaker would receive new trials.

We review a district court’s grant of a new trial for abuse of discretion.

Sibley v. Lemaire, 184 F.3d 481, 487 (5th Cir. 1999). A district court may

“vacate any judgment and grant a new trial if the interest of justice so

requires.” Fed. R. Crim. P. 33(a). The “interest of justice” may take into

account “the trial judge’s evaluation of witnesses and weighing of the

evidence.” United States v. Wall, 389 F.3d 457, 465–66 (5th Cir. 2004).

However, the trial judge “may not reweigh the evidence and set aside the

verdict simply because it feels some other result would be more reasonable.”

United States v. Arnold, 416 F.3d 349, 360 (5th Cir. 2005) (citation omitted).

Rather, “[t]he evidence must preponderate heavily against the verdict, such

that it would be a miscarriage of justice to let the verdict stand.” Id. A district

court is “powerless to order a new trial except on the motion of the defendant.”

United States v. Brown, 587 F.2d 187, 189 (5th Cir. 1979). Moreover, “a district

court does not have the authority to grant a motion for a new trial under Rule

33 on a basis not raised by the defendant.” United States v. Nguyen, 507 F.3d

836, 839 (5th Cir. 2007) (holding that district court abused discretion in

granting new trial on basis of prosecutor’s improper argument, where issue

was mentioned only in passing in defendant’s motion).

The district court granted Garner’s and Shoemaker’s motions for new

trial on Counts One, Two, and Three for the reason that the jury’s lack of

24 Shoemaker was not granted a judgment of acquittal on Count Three because the

district court found that as CEO, he was an “agent” of TLMC under 18 U.S.C. § 666.

Nonetheless, the district court granted his motion for a new trial on Count Three due to

insufficient jury instructions, as discussed below.

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sufficient instruction on the meaning of “agent” under 18 U.S.C. § 666 and

Phillips was prejudicial. 25 However, the “agent” issue was not raised by either

Garner or Shoemaker in their Rule 33 motions for new trial. Because the

district court has no power to grant a new trial under Rule 33 “on a basis not

raised by the defendant,” the district court abused its discretion in granting a

new trial on these grounds. Nguyen, 507 F.3d at 839.

As for Counts Four and Five, the district court granted Garner’s and

Shoemaker’s motions for new trial on the basis that Miles required a jury

instruction that Chandler “had authority as a relevant decision maker” to give

business to Garner’s company. But as explained above, this proposed

instruction derives from an incorrect understanding of Miles. See supra Part

II.C.1. Because the jury instructions adequately explained all requisite

elements for liability under 42 U.S.C. § 1320a–7b(b)(2)(B), 26 and because the

evidence did not “preponderate heavily against the verdict,” Arnold, 416 F.3d

at 360, the “interest of justice” does not require a new trial, Fed. R. Crim. P.

25 The relevant portions of Jury Instruction No. D-16 on Count Two explained that the

Government had to prove beyond a reasonable doubt “[t]hat the recipient or intended

recipient of something of value that is, Mr. David Chandler, was an agent of a state or local

government, as charged” and that “Lee Garner acted corruptly in offering a payment to David

Chandler in exchange for David Chandler using his influence as an agent of a subdivision of

the State government and Tri-Lakes to direct Tri-Lakes’ business to Guardian Angel and On-

Call Staffing . . . .”

26 Jury Instruction No. D-19 on Count Five explained that the Government had to

prove beyond a reasonable doubt “1) that Lee Garner knowingly and willfully made payments

or offered to make payments to David Chandler; 2) for the purpose of inducing David

Chandler; 3) to recommend to Ray Shoemaker that Tri-Lakes purchase services from

Guardian Angel and On-Call Staffing; 4) that could be paid for by a Federal healthcare

program.”

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33(a). Thus, the district court abused its discretion in granting Garner’s and

Shoemaker’s motions for new trial on Counts Four and Five. 27

We therefore vacate all of the district court’s grants of new trials to

Garner and Shoemaker.

IV

Shoemaker appeals his remaining convictions on various grounds.

As to his conviction on Count Twelve for embezzlement in violation of 18

U.S.C. § 666, Shoemaker contends that the supporting evidence is insufficient,

that the admission of testimony about civil violations and jury instructions

equating deliberate ignorance with knowledge warrant a new trial, that the

same jury instructions impermissibly amended the indictment, and that

cumulative error requires a new trial. He submits that his convictions on

Counts Eight through Eleven for conspiring to make and for making false

statements to the USDA in violation of 18 U.S.C. §§ 371 and 1014, respectively,

were supported by insufficient evidence and that the admission of evidence of

civil violations requires a new trial. Likewise, he challenges the sufficiency of

evidence supporting his conviction on Count Seven for making false statements

to the FBI in violation of 18 U.S.C. § 1001, and his convictions on Counts Three

and Six for soliciting and receiving bribes and kickbacks in violation of 18

U.S.C. § 666 and 42 U.S.C. § 1320a–7b, respectively. He further contends that

the district court’s denying his motion for judgment of acquittal on Count Six

while granting his co-defendant’s motion on a separate count constituted a

27Moreover, Garner did not raise the Miles issue in his motion for new trial (which

incorporated additional arguments made in his motion for acquittal). Thus, for the

independent reason that the district court had no power to grant a new trial “on a basis not

raised by the defendant,” granting a new trial to Garner on Counts Four and Five was error.

Nguyen, 507 F.3d at 839.

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retroactive misjoinder because the evidence underlying both convictions was

identical. Lastly, Shoemaker submits that the Government prejudiced his

defense by failing to comply with Brady v. Maryland, 373 U.S. 83 (1963), and

that the district court erred in determining his total offense level.

We have considered the parties’ submissions and reviewed the record.

Because we conclude that sufficient evidence supported Shoemaker’s

remaining convictions, and otherwise find no errors warranting reversal or a

new trial, we affirm Shoemaker’s convictions on Counts Three and Counts Six

through Twelve.

V

For the foregoing reasons, we VACATE the district court’s grants of

Garner’s and Shoemaker’s motions for judgment of acquittal and new trial,

AFFIRM Shoemaker’s other convictions, and REMAND for reinstatement of

the jury verdict and for sentencing.

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