finding willfulness to conspire when the defendant testified that she knew kickbacks were illegal and had discussed them with her coconspirators
How later courts described this case
- finding willfulness to conspire when the defendant testified that she knew kickbacks were illegal and had discussed them with her coconspirators
- loss-amount error harmless where same 20-level enhancement would have applied
Written by the judges who cited it.
The opinion
Case: 20-20645 Document: 00516357991 Page: 1 Date Filed: 06/15/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 15, 2022
No. 20-20645
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Yolanda Hamilton, Medical Doctor,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:17-CR-418-1
Before Higginson, Willett, and Ho, Circuit Judges.
Stephen A. Higginson, Circuit Judge:
A jury convicted Dr. Yolanda Hamilton of conspiracy to commit
healthcare fraud, in violation of 18 U.S.C. § 1349; conspiracy to solicit and
receive healthcare kickbacks, in violation of 18 U.S.C. § 371; and two counts
of false statements relating to healthcare matters, in violation of 18 U.S.C.
§ 1035. On appeal, Dr. Hamilton challenges both her conviction and
sentence. For the following reasons, we AFFIRM.
Case: 20-20645 Document: 00516357991 Page: 2 Date Filed: 06/15/2022
No. 20-20645
I.
Dr. Hamilton, a licensed physician, owned and operated HMS Health
and Wellness Center in Houston, Texas and was the sole physician at her
clinic. Around June 2012, Dr. Hamilton enrolled as a Medicare provider. In
addition to providing primary care and gastroenterology services, Dr.
Hamilton certified Medicare patients for home healthcare.
The relevant background on Medicare processes related to home
healthcare was helpfully summarized in United States v. Ganji, 880 F.3d 760
(5th Cir. 2018):
Home health care services are those skilled nursing or therapy
services provided to individuals who have difficulty leaving the
home without assistance. . . . The process for receiving home
health care services begins when a physician identifies a patient
as an eligible candidate. . . . Then a nurse goes to the patient’s
home to assess if she is homebound, completing an Outcome
and Assessment Information Set (“OASIS”). The nurse then
develops a plan of care based on the OASIS and forwards that
document [known as Form 485] to a physician for approval. . . .
In 2011, Medicare implemented a face-to-face requirement to
further ensure that medical professionals would not order
home health care without ever seeing the patient. This required
medical professionals to actually see the patient for the initial
meeting, but “[t]he face-to-face patient encounter may occur
through telehealth in person.” [42 C.F.R. 424.22(a)(1)(v)(B).]
Regulations allow for medical professionals who are not
physicians to complete the face-to-face encounter, but the
professionals have to be under the supervision of a physician. A
medical professional certifies that they completed this
encounter by completing a face-to-face addendum. The agency
then sends the addendum with the Form 485 certification
forms, which were used to certify patients for home health care
to Medicare for reimbursement. If the professional determines
2
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the patient is homebound [and signs the Form 485], the agency
staff immediately provides that care.
Id. at 764.
A physician signing a Form 485 (and thus certifying a patient for home
healthcare) must attest that the patient is confined to the home
(“homebound”). 42 C.F.R. § 424.22(a)(1)(ii). An individual is confined to
the home if (1) “the individual has a condition, due to an illness or injury,
that restricts the ability of the individual to leave his or her home except with
the assistance of another individual or the aid of a supportive device (such as
crutches, a cane, a wheelchair, or a walker),” or “if the individual has a
condition such that leaving his or her home is medically contraindicated,”
and (2) “there exists a normal inability to leave home and that leaving home
requires a considerable and taxing effort by the individual.” 18 U.S.C.
§ 1395n(a) (emphasis added). The initial certification lasts 60 days, after
which time the physician must recertify the patient. 42 C.F.R. § 424.22(b).
For some patients that Dr. Hamilton certified, she conducted the
required face-to-face encounter herself at her clinic. For others, a nurse
practitioner conducted the face-to-face encounter at the patient’s home.
When the patient was seen by Dr. Hamilton at her clinic, Dr. Hamilton
charged a $60 fee. This fee was typically paid by representatives of the home
healthcare agencies (“HHAs”) to whom she was certifying patients, but at
least on some occasions, the fee was paid by the patients themselves. After a
period of time, Dr. Hamilton instituted a policy that the Form 485, the
certification that the HHAs needed in order to bill Medicare for home
healthcare services, see 42 C.F.R. § 424.22(a)(1), would not be released to
the HHAs until the $60 fee was paid.
Simultaneously, some HHAs in Houston were paying individuals
known as “marketers” or “recruiters” to recruit Medicare beneficiaries for
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No. 20-20645
home healthcare. Recruiters then paid the patients they recruited in
exchange for their getting certified to receive home healthcare. HHAs often
falsified information in the OASIS and Form 485s that they submitted to
physicians for certification in order to ensure the physician certified the
patients for home healthcare.
In November 2015, the FBI executed a search warrant at HMS, Dr.
Hamilton’s clinic. A grand jury later charged Dr. Hamilton with one count
of conspiracy to commit healthcare fraud, in violation of 18 U.S.C. § 1349;
one count of conspiracy to solicit and receive kickbacks, in violation of 18
U.S.C. § 371; and four counts of making false statements relating to
healthcare matters, in violation of 18 U.S.C. § 1035. The Government
alleged that Dr. Hamilton participated in a conspiracy to commit healthcare
fraud with the HHAs by certifying patients for home healthcare when she
knew they were not homebound as defined by Medicare. Further, the
Government alleged that the $60 payments that Dr. Hamilton demanded
before she would release the certifications to the HHAs were illegal
kickbacks. The substantive counts of making false statements were tied to
Dr. Hamilton’s certification of four individual patients for home healthcare.
Dr. Hamilton was first tried in May 2019. After a six-day trial, the jury
was unable to reach a unanimous verdict, and the district court declared a
mistrial. Prior to the second trial, the Government dismissed one of the false
statements counts. In addition, Dr. Hamilton noticed her intent to call an
expert witness, but the district court excluded the witness’s testimony.
At the second trial, the Government presented testimony from: a
Medicare claims analyst; two of Dr. Hamilton’s former employees; the three
patients associated with the false statements counts; three HHA owners to
whom Dr. Hamilton certified patients (and who had already pled guilty to
healthcare fraud charges); an HHA recruiter (who had pled guilty to
4
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No. 20-20645
kickback charges); an HHA owner who met with Dr. Hamilton but did not
send patients to her clinic; and a certified fraud examiner who analyzed
Medicare claims data and patient files for the Government. Dr. Hamilton
testified in her own defense and presented numerous witnesses, including
several former employees, a former patient, and four character witnesses.
The jury returned a verdict of guilty on all counts except one of the
false statements counts, for which Dr. Hamilton was acquitted. At the close
of the Government’s case and following the verdict, Dr. Hamilton moved for
a judgment of acquittal, which the district court denied. The district court
then sentenced Dr. Hamilton to 60 months’ imprisonment, a downward
variance from the Guidelines range, and $9.5 million in restitution. Dr.
Hamilton filed a timely notice of appeal.
II.
Dr. Hamilton challenges the sufficiency of the evidence for each count
of conviction: conspiracy to commit healthcare fraud, in violation of 18
U.S.C. § 1349; conspiracy to solicit and receive healthcare kickbacks, in
violation of 18 U.S.C. § 371; and two counts of false statements relating to
healthcare matters, in violation of 18 U.S.C. § 1035.
“Where, as here, a defendant has timely moved for a judgment of
acquittal, this court reviews challenges to the sufficiency of the evidence de
novo.” United States v. Nicholson, 961 F.3d 328, 338 (5th Cir. 2020).
“Appellate review is highly deferential to the jury’s verdict, and a verdict is
affirmed unless, viewing the evidence and reasonable inferences in [the] light
most favorable to the verdict, no rational jury ‘could have found the essential
elements of the offense to be satisfied beyond a reasonable doubt.’” United
States v. Ganji, 880 F.3d 760, 767 (5th Cir. 2018) (quoting United States v.
Bowen, 818 F.3d 179, 186 (5th Cir. 2016)). However, “a verdict may not rest
on mere suspicion, speculation, or conjecture, or an overly attenuated piling
5
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No. 20-20645
of inference on inference.” United States v. Pettigrew, 77 F.3d 1500, 1521 (5th
Cir. 1996).
The parties largely agree that Dr. Hamilton engaged in the acts
underlying the convictions: Dr. Hamilton owned and operated a clinic where
she saw patients and certified those patients for home healthcare. Dr.
Hamilton had a policy of not releasing the home healthcare certifications
until $60 was paid to the clinic per patient. The HHAs regularly paid that
$60. Dr. Hamilton and the Government disagree, however, about whether
Dr. Hamilton agreed to, and did willfully participate in, a conspiracy with the
HHAs. The Government contends that Dr. Hamilton joined in a conspiracy
with the HHAs by (1) demanding a $60 kickback from the HHAs in
exchange for certifications, and (2) certifying patients for home healthcare
that she knew were not homebound. By contrast, Dr. Hamilton contends that
the $60 fee was a co-pay that she was permitted to charge under Medicare
regulations, that the HHAs paid the $60 on behalf of the patients, and that
all of the certifications for home healthcare were medically necessary based
on the information the HHAs and patients presented to Dr. Hamilton.
A.
Dr. Hamilton challenges her conviction on one count of conspiracy to
solicit and receive kickbacks (Count 2). 18 U.S.C. § 371; 42 U.S.C. § 1320a-
7b.
The Government was required to prove beyond a reasonable doubt
“(1) an agreement between two or more persons to pursue an unlawful
objective; (2) the defendant’s knowledge of the unlawful objective and
voluntary agreement to join the conspiracy; and (3) an overt act by one or
more of the members of the conspiracy in furtherance of the objective of the
conspiracy.” United States v. Mauskar, 557 F.3d 219, 229 (5th Cir. 2009)
(quoting United States v. Williams, 507 F.3d 905, 910 n.4 (5th Cir. 2007)).
6
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The Government must also prove “that the defendant acted willfully, that is,
‘with the specific intent to do something the law forbids.’” United States v.
Njoku, 737 F.3d 55, 64 (5th Cir. 2013) (quoting United States v. Garcia, 762
F.2d 1222, 1224 (5th Cir. 1985)). Here, the object of the conspiracy was to
“solicit[] or receive[] any remuneration (including any kickback, bribe, or
rebate) directly or indirectly, overtly or covertly, in cash or in kind . . . in
return for referring” a patient for home healthcare. 42 U.S.C. § 1320a-
7b(b)(1)(A).
“The sine qua non of a conspiracy is an agreement.” United States v.
Barnes, 979 F.3d 283, 295 (5th Cir. 2020). “The agreement between
conspirators may be silent and need not be formal or spoken,” United States
v. Grant, 683 F.3d 639, 643 (5th Cir. 2012), but “an agreement to commit a
crime cannot be lightly inferred,” Ganji, 880 F.3d at 768. An agreement may
be proven through “evidence of the conspirators’ concerted actions,” but
“this concert of action must illustrate a ‘conscious commitment to a common
scheme designed to achieve an unlawful objective.’” Id. at 767-68 (quoting
Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 754 (1984)).
The evidence was sufficient to prove that Dr. Hamilton made an
agreement to and did receive $60 kickbacks in exchange for home healthcare
certifications. First, the Government presented testimony from the HHA
owners and Dr. Hamilton’s former employees to show an agreement. They
testified that Dr. Hamilton required a $60 payment per patient before
certifications would be released, that Dr. Hamilton met with HHA owners
and discussed the $60 payment with them, and that the HHAs did in fact
pay the $60 fee. Second, it was not unreasonable for the jury to conclude that
the $60 payments were kickbacks, rather than legitimate co-pays, based on
the evidence that patients rarely paid the fee, that Dr. Hamilton charged a
uniform $60 fee regardless of the services rendered (despite testimony from
the Medicare claims analyst that co-pays should reflect the services
7
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No. 20-20645
provided), and that certifications were withheld until payment of the $60 fee.
See United States v. Dailey, 868 F.3d 322, 331 (5th Cir. 2017) (evidence that
defendant withheld certifications until payment supported kickback
conviction). Finally, the evidence supported a finding that Dr. Hamilton
“acted willfully,” Njoku, 737 F.3d at 64, in other words, that she knew the
$60 payments were illegal kickbacks. Dr. Hamilton testified that she knew
kickbacks were illegal. In addition, a letter from an HHA owner objecting to
the $60 fee on the grounds that it constituted a violation of Medicare rules
was found at Dr. Hamilton’s office, and one former employee testified that,
after Dr. Hamilton was indicted, she told the former employee to say that the
$60 payments were for patient co-pays, which the former employee did not
believe to be true. 1
Dr. Hamilton counters with evidence that the $60 payments were not
kickbacks but rather co-pays paid by the HHAs on behalf of patients. For
example, Dr. Hamilton and her former employees testified that Dr. Hamilton
instituted the policy requiring payment prior to releasing certifications only
after their attempts to collect co-pays from patients failed because patients
often did not have money to pay or were unreachable. One of Dr. Hamilton’s
former employees testified that because the HHAs wanted the certifications
and because Dr. Hamilton would not release them if the $60 hadn’t been
1
Dr. Hamilton argues that the evidence was insufficient to find that she acted
willfully, analogizing to United States v. Nora, 988 F.3d 823 (5th Cir. 2021). In Nora, as to
willfulness, there was evidence that the defendant had completed trainings on Medicare
regulations and compliance—without any evidence of the content of those trainings—and
testimony by alleged co-conspirators that everyone in the defendant’s workplace knew
about the misconduct. Id. at 831-32. We said that the “speculative leap” jurors would have
to make about the content of the trainings was insufficient for a finding of willfulness, and
the “general statements” that “everybody knew” were insufficient to “impute ‘bad
purpose’ to all 150 employees.” Id. Here, the evidence of willfulness, though
circumstantial, was not solely based on general statements or speculative leaps.
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paid, the HHAs voluntarily paid the $60. The same former employee also
testified that an HHA owner told her that they recouped the $60 co-pay from
patients. Former employees also testified that the $60 payments were for
“the patient’s balance,” not just “paperwork.” 2
While there was undoubtedly evidence at trial to support Dr.
Hamilton’s theory of the case, the jury was entitled to believe the
Government’s theory instead. See United States v. Bell, 678 F.2d 547, 549
(5th Cir. Unit B 1982) (en banc) (“A jury is free to choose among reasonable
constructions of the evidence.”); see also United States v. Vargas-Ocampo, 747
F.3d 299, 301-302 (5th Cir. 2014) (en banc) (abandoning use of the
“equipoise rule”). Dr. Hamilton’s argument that “the jury should have
believed her theory over the government’s theory . . . does not establish
insufficiency of the evidence.” United States v. Veasey, 843 F. App’x 555, 564
(5th Cir. 2021) (per curiam). Because the Government presented evidence
from which the jury could reasonably infer that Dr. Hamilton made an
agreement to receive kickbacks in exchange for home healthcare
certifications, and that she did so willfully, the evidence was sufficient to
support the conviction for conspiracy to solicit and receive kickbacks.
B.
Dr. Hamilton next challenges her conviction on one count of
conspiracy to commit healthcare fraud (Count 1). 18 U.S.C. §§ 1347, 1349.
2
Dr. Hamilton also argues that because it was the patients and recruiters, rather
than she, who chose the HHAs, the Government failed to show that Dr. Hamilton
“referred” patients to the HHAs. See 42 U.S.C. § 1320a-7b(b)(1)(A) (“Whoever
knowingly and willfully solicits or receives” a kickback “in return for referring an individual
. . . .” (emphasis added)). However, in United States v. Dailey, 868 F.3d 322 (5th Cir. 2017),
we rejected that same argument, holding that “[b]y signing the Form 485s in exchange for
a kickback, Dailey was authorizing care by a particular provider . . . and was therefore
‘referring’ patients to that provider.” Id. at 331.
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The Government alleged that Dr. Hamilton joined in a conspiracy to commit
healthcare fraud both by submitting claims obtained through kickbacks and
by certifying patients for home healthcare who Dr. Hamilton knew were not
homebound.
At trial, the Government was required to prove beyond a reasonable
doubt that “(1) two or more persons made an agreement to commit health
care fraud; (2) that the defendant knew the unlawful purpose of the
agreement; and (3) that the defendant joined in the agreement willfully, that
is, with the intent to further the unlawful purpose.” Grant, 683 F.3d at 643.
A person commits healthcare fraud by “knowingly and willingly execut[ing]
. . . a scheme . . . to defraud any healthcare benefit program.” 18 U.S.C.
§ 1347(a)(1).
Dr. Hamilton argues that the Government failed to prove her
certifications were fraudulent because there was no expert testimony on the
medical necessity of home healthcare for her patients. She reasons that
because Medicare requires a physician to make the determination that home
healthcare is medically necessary, it is a determination “based on scientific,
technical, or other specialized knowledge,” and the “arguments of counsel
and interpretations of lay witnesses” cannot be the sole basis for a jury’s
determination of lack of medical necessity. Fed. R. Evid. 701.
We have repeatedly disavowed categorical rules requiring expert
testimony for a jury finding of medical necessity. See United States v. Sanjar,
876 F.3d 725, 745 (5th Cir. 2017); United States v. Martinez, 921 F.3d 452,
474-75 (5th Cir. 2019); United States v. Mesquias, 29 F.4th 276, 282 (5th Cir.
2022). In Sanjar, we left open the possibility that there could be “technical
medical diagnoses on which expert testimony would be needed to prove
medical necessity.” 876 F.3d at 745. But that is not the case here. Though
we have said that whether a person is homebound is “a medico-legal
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determination,” which “is akin to a term of art,” United States v. Barnes, 979
F.3d 283, 308 (5th Cir. 2020), the Medicare definition of homebound, 3 with
which the jury here was provided, 4 is not overly technical and describes
conditions “suffered and understood by millions,” Sanjar, 876 F.3d at 746.
Armed with the Medicare definition of homebound, the jury could
evaluate—based on the medical records introduced at trial and on the
testimony of patients, employees, and Dr. Hamilton herself—whether Dr.
Hamilton’s patients were homebound and, if not, whether she knew that
patients were not homebound.
Dr. Hamilton points us to United States v. Martinez, in which we stated
“a simple but significant rule: so long as the jury was not forced to rely on
disconnected generalizations to conclude [services] were not medically
necessary, and instead had some evidence to support the impropriety of each
claim, there will be sufficient evidence for the convictions.” 921 F.3d at 475.
Dr. Hamilton argues that the jury’s conclusion that her certifications were
not medically necessary (i.e., that her patients were not homebound) rests on
“disconnected generalizations.” Id. However, Martinez discussed expert
testimony on medical necessity in the context of substantive healthcare fraud
charges, not conspiracy, id. at 472-73, so reliance on generalizations there was
3
For Medicare, an individual is confined to the home if (1) “the individual has a
condition, due to an illness or injury, that restricts the ability of the individual to leave his
or her home except with the assistance of another individual or the aid of a supportive
device (such as crutches, a cane, a wheelchair, or a walker),” or “if the individual has a
condition such that leaving his or her home is medically contraindicated,” and (2) “there
exists a normal inability to leave home and . . . leaving home requires a considerable and
taxing effort by the individual.” 18 U.S.C. § 1395n(a) (emphasis added).
4
At trial, the Government’s Medicare claims analyst testified as to the Medicare
definition of homebound. Though Dr. Hamilton disputes the accuracy of that testimony,
the Medicare claims analyst’s definition matches the Medicare definition. See 42 U.S.C.
§ 1395n(a).
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more suspect than in the case of conspiracy, where the Government need not
prove that specific certifications were medically unnecessary.
Moreover, there was more than “some evidence to support the
impropriety” of Dr. Hamilton’s certifications. Id. at 475. At trial, an HHA
owner and an HHA recruiter testified that their patients were not
homebound. The HHA recruiter testified that she sent patients to Dr.
Hamilton’s clinic because it was “easy” to get certifications there, and “it
was very obvious” her patients were not homebound. Dr. Hamilton’s former
employees testified that some or most of the patients that were certified as
homebound could walk or get around “unassisted.” In addition, several
patients testified that they were able to leave home on their own, did not use
assistive devices, and did not need the care Dr. Hamilton certified they did—
but did not lie about their condition to Dr. Hamilton. Finally, an HHA
owner testified that every time she paid the $60 fee, Dr. Hamilton provided
the certification—from which the jury could infer that certification decisions
were based on payment, not medical necessity.
The evidence of fraud here is less direct than in some of our previous
cases. For example, Dr. Hamilton and her former employees testified that
she actually examined the patients she certified for home healthcare, unlike
in many healthcare fraud cases. See, e.g., Njoku, 737 F.3d at 63; Sanjar, 876
F.3d at 746; United States v. Ramirez, 979 F.3d 276, 278 (5th Cir. 2020);
Dailey, 868 F.3d at 329. In addition, none of the witnesses expressed direct
knowledge that Dr. Hamilton had agreed to certify patients fraudulently or
that she was aware the patients were not homebound, unlike in many
healthcare fraud cases. See, e.g., United States v. Eghobor, 812 F.3d 352, 362
(5th Cir. 2015) (“The government’s primary witness . . . testified that
Eghobor admitted patients into PTM by falsifying OASIS forms and Plans
of Care.”); Njoku, 737 F.3d at 63 (“[A co-conspirator] admitted to falsifying
forms submitted to Medicare and said that other people she worked with,
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including Njoku, participated.”). Dr. Hamilton argues that in light of the
lack of direct evidence, and the fact that her actions could be interpreted as
entirely lawful, the verdict impermissibly rests on “mere suspicion,
speculation, or conjecture, or an overly attenuated piling of inference on
inference.” Martinez, 921 F.3d at 466 (quoting United States v. Pettigrew, 77
F.3d 1500, 1521 (5th Cir. 1996)).
But Dr. Hamilton “cannot obtain an acquittal simply by ignoring
inferences that can logically be drawn from the totality of the evidence.” Id.
The Government’s evidence that patients were not homebound and that
their condition was evident was sufficient for the jury to infer that Dr.
Hamilton knew the patients were not homebound when she certified them
for home healthcare. 5 See id. at 475 (patient testimony that “they did not
have the symptoms for which tests were conducted” supported jury finding
of fraud); United States v. Robinett, 832 F. App’x 261, 268 (5th Cir. 2020)
(per curiam) (evidence that patients “walked two miles each day” and
“cooked [their] own meals” supported finding that defendant knew patients
were not homebound). Though Dr. Hamilton testified that her decisions
were based on her medical judgment and the information presented to her by
the HHAs and the patients, the jury was entitled to discredit her testimony. 6
5
In addition, the jury’s conclusion that Dr. Hamilton’s certifications were
fraudulent was supported by the evidence that she was being paid to sign them. Cf.
Martinez, 921 F.3d at 471 (“Evidence of the kickback scheme is relevant to the conspiracy
to commit health care fraud because paying patients is clearly a possible indicator of health
care fraud.”).
6
Dr. Hamilton analogizes to United States v. Ganji, 880 F.3d 760 (5th Cir. 2018),
in which we held the evidence insufficient to support a physician’s conviction for
conspiracy to commit healthcare fraud. Id. at 772. In Ganji, the defendant “provided
testimony of her innocence,” giving legitimate explanations for the Government’s
circumstantial evidence of fraud. Id. at 771. But in that case, none of the witnesses “could
provide direct evidence of their alleged co-conspirator’s actions because the witnesses
never acted with the defendants,” and thus there was insufficient evidence to prove an
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See Grant, 683 F.3d at 642 (“The jury ‘retains the sole authority to weigh any
conflicting evidence and to evaluate the credibility of the witnesses.’”
(quoting United States v. Loe, 262 F.3d 427, 432 (5th Cir. 2001))). For the
evidence to be sufficient, it “need not exclude every reasonable hypothesis
of innocence or be wholly inconsistent with every conclusion except that of
guilt.” United States v. Eghobor, 812 F.3d 352, 362 (5th Cir. 2015) (quoting
Grant, 683 F.3d at 642). “[V]iewing the evidence and reasonable inferences
in [the] light most favorable to the verdict,” Ganji, 880 F.3d at 767, as we
must, and accepting the jury’s credibility determinations, there was
sufficient evidence to support Dr. Hamilton’s conviction for conspiracy to
commit healthcare fraud.
C.
Dr. Hamilton challenges her convictions on two counts of making
false statements relating to healthcare matters, 18 U.S.C. § 1035, based on
her certifications of patients Kesha Martin and Bernard Miller for home
healthcare (Counts 3 and 4).
To support a conviction for making false statements related to
healthcare matters, the Government must prove beyond a reasonable doubt
that “(1) the defendant made a materially false, fictitious, or fraudulent
statement or misrepresentation; (2) in connection with the delivery of [or
payment for] health care benefits; and (3) [s]he did so knowingly and
willfully.” Dailey, 868 F.3d at 330.
agreement. Id. at 766. Absent any other “evidence of the conspirators’ individual actions,”
the defendant’s unrebutted testimony was sufficient to undermine the conviction. Id. at
768. Here, like in Ganji, Dr. Hamilton gave innocent explanations for much of the
Government’s circumstantial evidence. But unlike in Ganji, Dr. Hamilton’s co-
conspirators, patients, and employees testified as to Dr. Hamilton’s “individual actions”
such that there was evidentiary support for the finding of an agreement.
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Martin’s and Miller’s testimony at trial was sufficient to prove that
neither patient was homebound. Martin testified that at the time she was
being certified for home healthcare by Dr. Hamilton, she would sometimes
ride the bus by herself to Dr. Hamilton’s clinic; she did not have “any trouble
getting up the stairs”; she grocery shopped for herself and carried her own
groceries; and she was “able to leave the house just fine.” Similarly, Miller
testified that he would “on some occasions” travel by bus to Dr. Hamilton’s
clinic and that he could leave his home, walk around his apartment complex
by himself, and go grocery shopping and carry his own groceries. Miller also
testified that he used the treadmill or elliptical machine at Dr. Hamilton’s
office. 7 Both Martin and Miller denied having some of the medical issues
described in their Form 485s. 8
Further, based on Martin’s and Miller’s testimony, the jury could
infer that Dr. Hamilton knew that neither patient was homebound when she
certified them for home healthcare. Martin testified that she did not
“pretend that [she was] sick” when she saw Dr. Hamilton, and Miller
testified that he did not tell Dr. Hamilton that he could not leave his home.
Both Martin and Miller testified that Dr. Hamilton did not ask if they were
able to leave their homes.
Although Dr. Hamilton testified that she believed home healthcare to
be medically necessary based on her examinations of Martin and Miller and
7
Dr. Hamilton responded that Miller used a recumbent bike in her office, not an
elliptical, and that he did so with assistance for therapeutic purposes.
8
Dr. Hamilton argues that any false statements in the Form 485s were made by the
HHAs, not by her. But Dr. Hamilton’s signatures on the Form 485 certifying that patients
were homebound, were themselves false statements if Dr. Hamilton knew the patients were
not homebound.
15
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No. 20-20645
their diagnoses, 9 the jury was entitled to discount that testimony. See Grant,
683 F.3d at 642 (“The jury ‘retains the sole authority to weigh any conflicting
evidence and to evaluate the credibility of the witnesses.’” (quoting Loe, 262
F.3d at 431)). And the patients’ testimony alone adequately supported the
opposite conclusion. Thus, the evidence was sufficient to convict Dr.
Hamilton of making false statements related to the certifications of Martin
and Miller.
III.
Dr. Hamilton argues that she is entitled to a new trial because the
Government—contrary to an alleged pre-trial agreement—failed to notify
defense counsel that Dr. Hamilton’s former employees were considered co-
conspirators, 10 and, as a result, the district court did not give a cautionary
instruction regarding the testimony of Dr. Hamilton’s former employees.
This argument fails for several reasons. First, Dr. Hamilton has not
shown that the Government was obligated to provide notice in advance of
trial if it considered the testifying employees co-conspirators. Prior to the
first trial, Dr. Hamilton filed a motion requesting that the Government give
9
For example, as to Martin, Dr. Hamilton testified, “[W]hen I saw [Martin] in the
office, she was balled up a lot of times on the examination table, having difficulty, you know
from pain. And when she walked, she was limping and bent over, you know walking with
support.” As to Miller, Dr. Hamilton testified, “Mr. Miller had some significant MRIs
done that showed herniation, disk herniations, impingement of his nerve. I remember
times when he could barely even walk at all.”
10
At sentencing, the presentence investigation report (“PSR”) contained a list of
unindicted co-conspirators, including the two former employees who testified for the
Government, and the Government filed a clarification to add several other former
employees to that list. The Government’s Sentencing Memorandum reiterated that Dr.
Hamilton’s employees were participants in the scheme as part of its argument in favor of
the Sentencing Guidelines leadership role enhancement. These representations led Dr.
Hamilton to believe that the Government considered the former employees co-
conspirators.
16
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No. 20-20645
notice of any statements it intended to introduce under Federal Rule of
Evidence 801(d)(2)(E), which exempts statements of a co-conspirator from
the definition of hearsay, and the Government agreed to do so. Dr.
Hamilton’s request, and the Government’s agreement, pertained specifically
to out-of-court statements made by alleged co-conspirators. Dr. Hamilton
did not request, and the Government did not agree to provide, general notice
of all individuals the Government deemed co-conspirators.
Second, any failure by the Government to explicitly notify defense
counsel that it considered the employees co-conspirators was harmless
because the district court gave a cautionary instruction about the testimony
of accomplices or co-conspirators. The district court’s instruction was
nearly identical to this circuit’s pattern jury instruction on accomplice
testimony. See Fifth Circuit Pattern Jury Instructions (Criminal) § 1.16
(2019). The instruction includes as an accomplice “one who has entered into
a plea agreement with the government” but does not limit accomplices to
those who have pled guilty. Based on the former employees’ testimony on
their involvement in the conspiracy, and at least one former employee’s
testimony that she met with the Government several times, the jury could
have inferred that the former employees were alleged accomplices and that
the cautionary instruction applied to them.
Finally, regardless of whether the Government labels a witness as a
co-conspirator, the accomplice instruction is only relevant if the witness
“ha[s] anything to gain by testifying” against the defendant. United States v.
Hinds, 662 F.2d 362, 370-71 (5th Cir. Unit B 1981) (holding that there was
“no plain error in failing to give” the accomplice instruction where
accomplices “had [no]thing to gain by testifying” because they “had been
sentenced and were serving prison terms”); see also Cool v. United States, 409
U.S. 100, 103 (1972) (per curiam) (“[Accomplice instructions] represent no
more than a commonsense recognition that an accomplice may have a special
17
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No. 20-20645
interest in testifying, thus casting doubt upon his veracity.”). Here, the
former employees had no special interest in testifying against Dr. Hamilton
because they were not targeted for prosecution. 11 To the extent any of the
former employees might have believed they would be prosecuted, Dr.
Hamilton had notice of that possibility from Government disclosures
regarding which employees had been interviewed by the Government, how
many times they had been interviewed, and the content of those interviews.
Thus, Dr. Hamilton had ample opportunity to request an accomplice
instruction specifically regarding the former employees’ testimony,
regardless of any failure by the Government to notify defense counsel that it
considered the employees co-conspirators. 12
IV.
Dr. Hamilton also challenges her sentence. After overruling all of Dr.
Hamilton’s objections to the PSR, the district court imposed a sentence of
$9.5 million in restitution and 60 months’ imprisonment, a downward
variance from the statutory maximum of 300 months, which was below the
Guidelines range of 324 to 405 months.
Dr. Hamilton first argues that the district court erred by overruling
her objection to the application of the Sentencing Guidelines’ four-level
11
At the sentencing hearing, the Government clarified that it did not consider Dr.
Hamilton’s employees to be “knowing and willful members of the conspiracy” who “have
criminal liability” but rather that they were included as participants in the PSR for the
purpose of proving that the conspiracy was “otherwise extensive,” as required for the
Sentencing Guidelines’ aggravating role enhancement. See U.S.S.G. § 3B1.1 (2018).
12
In her brief, Dr. Hamilton also raises a claim for a new trial based on the district
court’s exclusion of her expert witness. However, Dr. Hamilton “cited no authority in
support of her contentions,” and failed to explain the error in the district court’s ruling.
United States v. Demmitt, 706 F.3d 665, 670 (5th Cir. 2013). Thus, the argument is waived.
Procter & Gamble Co. v. Amway Corp., 376 F.3d 496, 499 n.1 (5th Cir. 2004).
18
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No. 20-20645
enhancement for being a leader or organizer. U.S.S.G. § 3B1.1(a). “A
defendant’s role in the offense is a factual finding reviewed for clear error.”
United States v. Warren, 986 F.3d 557, 567 (5th Cir. 2021). “A factual finding
is not clearly erroneous if it is plausible in light of the record read as a whole.”
United States v. Akins, 746 F.3d 590, 609 (5th Cir. 2014) (quoting United
States v. Rose, 449 F.3d 627, 633 (5th Cir. 2006)).
The Sentencing Guidelines impose a four-level increase in the base
offense level “[i]f the defendant was an organizer or leader of a criminal
activity that involved five or more participants or was otherwise extensive.”
U.S.S.G. § 3B1.1(a). The commentary to the Guidelines notes that “[t]o
qualify for an adjustment under this section, the defendant must have been
the organizer, leader, manager, or supervisor of one or more other
participants.” Id. cmt. 2; see also United States v. Ronning, 47 F.3d 710, 712
(5th Cir. 1995). The commentary defines a participant as “a person who is
criminally responsible for the commission of the offense, but need not have
been convicted.” Id. cmt. 1.
The district court did not err in overruling Dr. Hamilton’s objection
to the leader-organizer enhancement. There is little doubt that the
conspiracy here involved five or more criminally responsible participants or
was otherwise extensive. Four co-conspirators, who had already pled guilty,
testified at trial. And many more recruiters and HHA owners were involved
in the conspiracy, as were Dr. Hamilton’s employees (even if unknowingly).
All those actors can be considered in determining that the activity was
“otherwise extensive,” even if not all were criminally responsible. U.S.S.G.
§ 3B1.1 cmt. 3. Application of the enhancement here does require that Dr.
Hamilton acted as the leader or organizer of at least one other criminally
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responsible participant. Id. at cmts. 1, 2. 13 The HHA owners’ testimony
that Dr. Hamilton discussed the $60 fee in meetings that she arranged and
testimony that Dr. Hamilton was responsible for both setting the fee amount
and instituting the policy that $60 be paid before releasing certifications
support a finding that Dr. Hamilton acted as an organizer of the HHA agency
owners in establishing an agreement to pay and receive kickbacks. Thus, she
qualified for the leader-organizer enhancement.
V.
Dr. Hamilton next challenges the PSR’s calculation of the loss
amount and its effect on her Sentencing Guidelines range. 14
The Sentencing Guidelines provide that “the amount of loss resulting
from a crime involving fraud is a specific offense characteristic that increases
a defendant’s base offense level.” United States v. Mahmood, 820 F.3d 177,
192 (5th Cir. 2016); U.S.S.G. § 2B1.1(b)(1) (2018). The Guidelines
commentary defines the loss amount as “the greater of actual loss or
intended loss.” § 2B1.1 cmt. 3(A).
“A district court’s loss calculation, and its embedded determination
that the loss amount was reasonably foreseeable to the defendant, are factual
findings reviewed for clear error.” United States v. Brown, 727 F.3d 329, 341
(5th Cir. 2013). Even if the district court committed a procedural error in
13
For that reason, the enhancement could not have applied based on Dr.
Hamilton’s role as an organizer or leader of her employees because, as the Government
acknowledged, there is no evidence that Dr. Hamilton’s employees were criminally
responsible.
14
Dr. Hamilton’s briefs make several passing references to restitution, but she does
not argue or explain how the alleged errors in the loss amount calculation affected the
district court’s partial restitution award. Nor does she cite any authority specifically related
to restitution other than the applicable standard of review. As such, any argument as to
restitution is inadequately briefed and therefore waived. Demmitt, 706 F.3d at 670.
20
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No. 20-20645
calculating the Guidelines range, “[n]ot every procedural error requires
reversal.” United States v. Sanchez, 850 F.3d 767, 769 (5th Cir. 2017). To
show that a sentencing error is harmless, “the proponent ‘must point to
evidence in the record that will convince us that the district court had a
particular sentence in mind and would have imposed it, notwithstanding the
error.’” United States v. Ibarra-Luna, 628 F.3d 712, 718 (5th Cir. 2010)
(quoting United States v. Huskey, 137 F.3d 283, 289 (5th Cir.1998)).
Here, the PSR calculated the loss amount based on Medicare Part B
claims that Dr. Hamilton billed for the actual certifications and
recertifications, as well as for services she provided to home healthcare
patients in her clinic other than the actual certification. The loss amount also
included claims that HHAs billed to Medicare Part A for home healthcare
services they provided where Dr. Hamilton was the certifying physician. At
trial, a certified fraud examiner, whom the Government contracted to review
the Medicare claims and patient files in this case, testified about the data
underlying the PSR’s calculation. For the Medicare Part B claims, the
intended loss amount—i.e., the amount Dr. Hamilton billed to Medicare—
was $5,523,680.51, and the actual loss amount—i.e., the amount Medicare
actually paid to Dr. Hamilton—was $1,002,622. Of those Medicare Part B
claims, only $2,817,545 of the intended loss amount and $274,540.17 of the
actual loss amount was for the certifications or recertifications. For the
Medicare Part A claims, the intended loss amount—i.e., the amount HHAs
billed to Medicare—was $14,295,886.74 and the actual loss amount—i.e.,
the amount Medicare actually paid to the HHAs—was $16,388,521.86.
Including all of those Medicare claims, the PSR calculated an
intended loss amount of $19,819,547.25 and an actual loss amount of
$17,391,143.86. Based on a loss amount greater than $9.5 million but less
than $25 million, the PSR increased Dr. Hamilton’s offense level by 20
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No. 20-20645
levels. 15 U.S.S.G. § 2B1.1(b)(1). The Government endorsed the PSR’s loss
calculation at sentencing. The district court overruled Dr. Hamilton’s
objections to the loss amount, which affected the Guidelines range, see id.,
but the court reduced the restitution amount to $9.5 million.
Dr. Hamilton contends that two types of Medicare claims should have
been excluded from the loss amount: (1) claims for services Dr. Hamilton
provided to home healthcare patients in her clinic, other than the actual
certification (“non-certification Medicare Part B claims”) and (2) claims the
HHAs billed to Medicare for home healthcare services provided to patients
where Dr. Hamilton was the certifying physician (“Medicare Part A
claims”). Dr. Hamilton also argues that the loss amount included claims that
were not fraudulent.
A.
The district court did not err by overruling Dr. Hamilton’s objection
to the inclusion of Medicare Part A claims in the loss amount. In United
States v. Ramirez, 979 F.3d 276 (5th Cir. 2020), a physician was convicted of
fraudulently signing home healthcare certifications. Id. at 278. This court
affirmed the inclusion of claims that “Medicare paid for home health and
physician services based on [the defendant’s] certifications” in the loss
calculation. Id. at 280. These are precisely the type of claims that Dr.
Hamilton argues should not be included in her loss amount. Dr. Hamilton
attempts to distinguish Ramirez based on her more remote connection to the
HHAs than the defendant in that case. However, it was not the physician’s
proximity to the HHA but rather the fact that his fraud “enabled providers
15
Dr. Hamilton also received a 3-level increase under U.S.S.G. § 2B1.1(b)(7)(A)
for conviction of an offense “involving a Government health care program” and a loss
amount more than $7 million.
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No. 20-20645
to falsely bill Medicare for home health services” that led us to affirm the
inclusion of these claims in the loss amount calculation. Id. at 281. Here, as
in Ramirez, the defendant’s fraudulent certifications enabled the HHAs to
bill Medicare for home healthcare services provided to patients who were not
actually homebound. 16 And, as in Ramirez, it was “reasonably foreseeable”
to Dr. Hamilton that the HHAs would bill these claims to Medicare based
on her fraudulent certifications. Id. at 281. In light of Ramirez, it was not
error to include the Medicare Part A claims in the loss amount.
B.
However, the district court did err by overruling Dr. Hamilton’s
objection to the inclusion of the non-certification Medicare Part B claims in
the loss amount because absent the fraud Medicare would have paid for these
claims.
“[L]oss in a health care fraud case cannot include any amount the
government would have paid in the absence of the crime.” See Sanjar, 876
F.3d at 748 (citing Sharma, 703 F.3d at 324). The Sentencing Guidelines
require that the loss amount be offset based on “the fair market value of the
. . . services rendered[] by the defendant . . . before the offense was detected.”
U.S.S.G. § 2B1.1 cmt. 3(E)(i). In United States v. Mahmood, 820 F.3d 177
(5th Cir. 2016), we explained that “Medicare receives ‘value’ within the
meaning of U.S.S.G. § 2B1.1 [cmt. 3(E)(i)] when its beneficiaries receive
legitimate health care services for which Medicare would pay but for a
fraud.” Id. at 193. “[T]o be entitled to an offset against an actual loss amount
. . . , [the defendant] must establish (1) ‘that the services [he provided to
16
Medicare regulations require physician certification that a beneficiary is
homebound before HHAs can bill Medicare for home healthcare services. 42 C.F.R.
§ 424.22(a)(1).
23
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Medicare beneficiaries] were legitimate’ and (2) ‘that Medicare would have
paid for those services but for his fraud.’” United States v. Mathew, 916 F.3d
510, 521 (5th Cir. 2019) (quoting Mahmood, 820 F.3d at 194). 17
The Government contends that Medicare would not have paid the
non-certification Medicare Part B claims but for the fraud because
“Hamilton would not have seen the patients and would have been unable to
submit any of the Part B claims” if the HHAs were not sending patients there
as a result of the kickback and fraudulent certification scheme. However, the
Government misunderstands the nature of the inquiry into whether
Medicare would have paid the claims absent the fraud. The question is not
whether Dr. Hamilton would have had the opportunity to provide other
services absent the fraud, but rather whether those other services were
legitimate (i.e., medically necessary and otherwise in compliance with
Medicare regulations). See Mahmood, 820 F.3d at 194.
For example, in United States v. Ricard, 922 F.3d 639 (5th Cir. 2019),
an HHA marketer was found guilty in a kickback conspiracy “for referring
Medicare patients to a particular health care provider,” and the district court
included in the loss amount all of Medicare’s payments to the defendant’s
HHA employer because the services provided were obtained through
payment of kickbacks. Id. at 643, 646-47. We held that the loss amount
calculation was error because there was no evidence that the services the
HHA provided were not legitimate, did not meet Medicare’s basic standards
of care, or that Medicare would not have paid for the services absent the
kickback scheme. Id. at 659. The fact that the HHA would not have seen
the patients but for the defendant’s fraud did not justify the inclusion of those
17
Mathew applied this test in the context of restitution, but Mahmood calculated the
loss amount for Sentencing Guidelines purposes and restitution purposes in the same
manner. See Mahmood, 820 F.3d at 192-96.
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No. 20-20645
claims in the loss amount when the services provided were otherwise
legitimate.
Here, there is no evidence—and the Government has not argued—
that the non-certification Medicare Part B claims were medically
unnecessary or otherwise out of compliance with Medicare regulations.
Thus, “Medicare would have paid for those services but for [the] fraud,”
Mahmood, 820 F.3d at 194, and they should have been excluded from the loss
amount.
Nonetheless, this error was harmless. The intended loss amount for
the non-certification Medicare Part B claims was $2,706,135.51, and the
actual loss amount for the same claims was $728,081.83. Even deducting the
non-certification Medicare Part B claims, the total loss amount remains well
above $9.5 million—the bottom end of the range for the Guidelines’ 20-level
enhancement. See U.S.S.G. § 2B1.1(b). As such, the district court’s error in
overruling Dr. Hamilton’s objection to the inclusion of the non-certification
Medicare Part B claims in the loss amount did not affect the Sentencing
Guidelines range.
C.
Dr. Hamilton makes several other brief arguments about the loss
amount. First, she claims that the Medicare Part A loss amount included
HHA claims for home healthcare services where Dr. Hamilton’s signature
on the Form 485 was forged. However, the Government’s fraud examiner
testified that his calculations included only claims where a signed Form 485
was found at Dr. Hamilton’s clinic, and Dr. Hamilton fails to explain why
forged forms would have been found in her own office. Second, Dr. Hamilton
claims that the loss amount improperly included claims where an HHA
recruiter paid the $60 fee, but the fact that the recruiter, rather than the
HHA owner, paid the fee has no bearing on whether that fee was a kickback
25
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No. 20-20645
or whether the certification was fraudulent. Third, Dr. Hamilton challenges
the inclusion of claims for patients who paid the $60 fee themselves. Dr.
Hamilton points to only one patient for whom there was evidence that the
patient, rather than the HHA, paid the $60 fee, and that patient testified that
her HHA would pay the fee “most of the time.” Even if the district court
erred by including claims related to that patient in the loss amount, their
exclusion would not have reduced the loss amount to less than $9.5 million
and thus would not have affected the Guidelines range. For the same reason,
inclusion of claims related to the patient for whom Dr. Hamilton was
acquitted of false statements was also harmless. 18
VI.
For the foregoing reasons, Dr. Hamilton’s conviction and sentence
are AFFIRMED.
18
Dr. Hamilton also argues that of the 7,461 claims included in the Medicare Part
A loss amount, at least 4,100 were associated with patients for whom Dr. Hamilton did not
charge a $60 fee because the face-to-face encounter necessary for the certification was
conducted by a nurse practitioner (“NP”) in the patients’ homes, rather than by Dr.
Hamilton at her clinic. There are numerous factual uncertainties related to this claim that
cannot be resolved by looking to the trial record. Regardless, as to the calculation of the
Guidelines range, any error was harmless. Dr. Hamilton’s 60-month sentence would have
been well below the Guidelines range even if the loss amount had excluded all of the
Medicare Part A claims. U.S.S.G. § 2B1.1(b)(1); U.S.S.G. ch. 5, pt. A. Moreover, the
district court judge’s statement at sentencing that he was “contemplating a variance that
will take care of all of these objections” indicates that he had “a particular sentence in mind
and would have imposed it, notwithstanding [any] error.” Ibarra-Luna, 628 F.3d at 718.
26