United States v. Mauskar

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 06-20596 January 30, 2009

Charles R. Fulbruge III

UNITED STATES OF AMERICA, Clerk

Plaintiff-Appellee,

v.

ANANT MAUSKAR,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

Before PRADO, ELROD, and HAYNES, Circuit Judges.

JENNIFER W. ELROD, Circuit Judge:

Defendant-Appellant Anant Mauskar was convicted of twenty-one counts

of defrauding Medicare and Medicaid, sentenced to 135 months in prison, and

ordered to make restitution of $14,427,242. He appeals his conviction and

sentence on numerous grounds. For the reasons set forth below, we affirm the

judgment of the district court.

FACTS AND PROCEEDINGS

Viewed in the light most favorable to the jury’s verdict, the record

establishes that Anant Mauskar, a licensed physician, engaged in a conspiracy

to defraud Medicare by falsely certifying that he had personally provided or

supervised physical therapy services to patients of the Mirage Medical Group

No. 06-20596

operated by Tonya Williams and Kimberly Selders. To effectuate this fraud,

Williams paid Mauskar during the fall of 1999 to sign patient charts certifying

that he had provided or supervised physical therapy services despite the fact

that he had not done so. When asked by a Medicare fraud investigator whether

he had actually performed or personally supervised physical therapy services for

patients of the Mirage Medical Group, Mauskar stated that he had even though

he had not.

Applying the same standard, the record also establishes that Mauskar

conspired to defraud Medicare and Medicaid by falsely certifying that patients

needed motorized wheelchairs and by performing unnecessary medical

procedures and tests on those patients. “Recruiters” compensated for their

efforts brought an enormous number of patients to Mauskar’s office to facilitate

this fraud; in 2002, for example, Mauskar prescribed 1,766 wheelchairs.

Durable medical equipment (“DME”) companies used Mauskar’s certificates of

medical necessity to obtain payment for medically unnecessary wheelchairs. The

companies compounded the fraud by delivering less expensive scooters to the

patients, rather than the motorized wheelchairs for which the government was

charged.

Mauskar was indicted on numerous charges relating to this conduct. His

first trial ended in a hung jury, and the district court declared a mistrial sua

sponte on April 4, 2005. Approximately two weeks before his second trial,

Mauskar filed a motion to dismiss count 1 of the indictment on grounds of

duplicity,1 which the district court denied. During his second trial, testimony

from Tonya Williams revealed that she had forged some progress notes, charges

sheets, and other documents by photocopying Mauskar’s signature, and that the

government knew of these forgeries well before Mauskar’s first trial. Mauskar

1

In this context, “‘[d]uplicity’ occurs when a single count in an indictment contains two

or more distinct offenses.” United States v. Miller, 520 F.3d 504, 512 (5th Cir. 2008).

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filed a motion to dismiss the indictment due to outrageous government conduct

and/or due to violation of the Double Jeopardy Clause, alleging that the

government had committed an egregious Brady violation by failing to disclose

the forgeries during Mauskar’s first trial. The district court denied the motion,

and the jury convicted Mauskar on twenty-one counts of health care fraud and

acquitted him on four counts. The district court sentenced Mauskar to 135

months in prison and ordered him to make restitution of $14,427,242. Mauskar

appeals his conviction and sentence.

DISCUSSION

I. Jurisdiction

We first consider the government’s suggestion in a footnote of its brief that

we lack jurisdiction to consider Mauskar’s challenges to his conviction because

his notice of appeal indicates an intent to appeal only his sentence. United

States v. Pineda, No. 92-2518, 1993 WL 209937 (5th Cir. June 3, 1993),

forecloses this argument. See 5th Cir. R. 47.5.3 (providing that unpublished

opinions issued before January 1, 1996, are precedent). Like Mauskar, the

defendant in Pineda “designate[d] his sentence, but not his conviction” in his

notice of appeal, but his “intent to appeal his conviction [was] readily apparent

in his brief” and “the Government . . . fully responded to [his] arguments.” Id.

at *3. Noting that precedent mandates broad construction of the second clause

of Federal Rule of Appellate Procedure 3(c), which requires a notice of appeal to

“designate the judgment or order from which an appeal is taken,” the court

“liberally construe[d] Pineda’s notice of appeal to include a challenge to his

conviction as well as his sentence.” Id. (quoting United States v. Ramirez, 932

F.2d 374, 375 (5th Cir. 1991)). Following this precedent, we hold that we have

jurisdiction to consider Mauskar’s challenges to his conviction.

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No. 06-20596

II. Duplicity

A. Mauskar’s motion to dismiss count 1 of the indictment on grounds of

duplicity was timely.

Before reaching the substance of Mauskar’s motion to dismiss count 1 of

the indictment on grounds of duplicity, we address a procedural issue. Mauskar

filed his motion approximately two weeks before his second trial. The district

court denied the motion on the grounds that it was untimely and that a

unanimity instruction would be given to protect Mauskar’s rights. The

government, reasoning that Federal Rule of Criminal Procedure 12 required

Mauskar to file the motion before his first trial, argues that the district court

was correct in holding the motion untimely.

Rule 12 requires that a motion to dismiss an indictment on the ground of

duplicity be filed “before trial.” See United States v. Payne, 341 F.3d 393, 402

(5th Cir. 2003). It does not, however, address the question raised by the

government here, which is whether a defendant who fails to challenge a

duplicitous indictment before a trial ending in a mistrial is barred from raising

the challenge before a subsequent trial on the same indictment. No controlling

authority exists, but the long-established principle that “[t]he declaration of a

mistrial renders nugatory all trial proceedings with the same result as if there

had been no trial at all” militates strongly against the government’s position.

See United States v. Pappas, 445 F.2d 1194, 1201 (3d Cir. 1971) (internal

quotation marks and citations omitted); see also United States v. Groth, 682 F.2d

578, 580 (6th Cir. 1982) (“We agree with the trial judge . . . that the prosecution

is not bound by its first waiver. The waiver referred to the earlier trial . . . .

Once a mistrial was declared each party was free to assert or waive his rights.”).

We apply this principle and hold that Mauskar’s motion to dismiss the

indictment was timely filed.

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No. 06-20596

B. Count 1 of the indictment is not duplicitous.

“We review de novo a claim than an indictment is duplicitous.” Miller, 520

F.3d at 512. “The allegation in a single count of a conspiracy to commit several

crimes is not duplicitous, for ‘[t]he conspiracy is the crime, and that is one,

however diverse its objects.’” United States v. Cooper, 966 F.2d 936, 939 (5th

Cir. 1992) (quoting Braverman v. United States, 317 U.S. 49, 54 (1942)). An

indictment’s allegations, and not the evidence adduced at trial, control whether

the indictment is duplicitous:

In reviewing an indictment for duplicity, our task is not to review

the evidence presented at trial to determine whether it would

support charging several crimes rather than just one, but rather

solely to assess whether the indictment itself can be read to charge

only one violation in each count.

United States v. McDermot, No. 93-3603, 1995 WL 371036, at *4 (5th Cir. June

5, 1995) (emphasis added) (quoting United States v. Mastelotto, 717 F.2d 1238,

1244 (9th Cir. 1983), overruled on other grounds by United States v. Miller, 471

U.S. 130 (1985)); see also United States v. Sharpe, 193 F.3d 852, 866 (5th Cir.

1999) (rejecting duplicity allegation where count “[could] be read to allege only

one violation”). That an indictment alleges more than one means by which

conspirators “sought to accomplish [a] scheme does not render it duplicitous.”

McDermot, 1995 WL 371036, at *4 (citing Owens v. United States, 221 F.2d 351,

354 (5th Cir. 1955)).

The government correctly argues that Mauskar’s indictment in the present

case is not duplicitous, as it can be read to charge a single conspiracy involving

Mauskar and others with three objects. The indictment sets forth those objects

as follows:

a. To violate the Health Care Fraud Statute, that is, to

knowingly and willfully execute and attempt to execute a

scheme and artifice: (1) to defraud a health care benefit

program, namely the Medicare and Medicaid programs; and

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No. 06-20596

(2) to obtain, by means of material false and fraudulent

pretenses, representations, and promises, money and property

owned by, or under the custody and control of, health care

benefit programs, namely Medicare and Medicaid; in

connection with the delivery of or payment for health care

benefits, items and services, namely physical therapy

services, in violation of Title 18, United States Code Section

1347;

b. To violate the Health Care Fraud statute, that is, to

knowingly and willfully execute and attempt to execute a

scheme and artifice: (1) to defraud a health care benefit

program, namely the Medicare and Medicaid programs; and

(2) to obtain, by means of material false and fraudulent

pretenses, representations, and promises, money and property

owned by, or under the custody and control of, health care

benefits programs, namely, Medicare and Medicaid; in

connection with the delivery of and payment for health care

benefits, items and services, namely power wheelchairs, in

violation of Title 18, United States Code Section 1347; [and]

c. To violate the Anti-Kickback statute by knowingly and

willfully soliciting and receiving any remuneration (including

any kickback) directly or indirectly, overtly or covertly, in

cash or in kind to induce the referral of Medicare and

Medicaid beneficiaries for the furnishing and arranging for

the furnishing of any item or service for which payment may

be made in whole or in part under the Medicare and Medicaid

programs, in violations of Title 42 U.S.C. § 1320a-7b(b)(2)(A).

The fact that the evidence at trial may have established two distinct

conspiracies—one between Mauskar and persons associated with the Mirage

Medical Group and another between Mauskar and persons associated with the

DME companies—is irrelevant to the duplicity analysis.

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No. 06-20596

C. Assuming arguendo that count 1 is duplicitous, no prejudice

resulted.

1. The district court’s unanimity instruction to the jury was

sufficient to guard against a non-unanimous verdict.

The district court gave the jury the following unanimity instruction:

Your verdict, whether it is guilty or not guilty, must be

unanimous. The following instruction applies to the unanimity

requirement as to count one.

As I have explained, count one of the second superseding

indictment accuses the defendant of committing the crime of

conspiracy in up to three different ways. We went over this. The

first is the defendant conspired to commit health care fraud in

connection with the delivery of or payment for physical therapy

services. The second is the defendant conspired to commit health

care fraud in connection with the delivery of or payment for durable

medical equipment, namely power wheelchairs. And the third is

that the defendant conspired to solicit or receive remuneration in

return for referring Medicare and Medicaid patients.

The government does not have to prove all three of these

objects of conspiracy for you to return a verdict of guilty on this

charge. Proof beyond a reasonable doubt on one object of the

conspiracy is enough. But in order to return a guilty verdict, all

twelve of you must agree that the same one has been proved. All of

you must agree that the government proved beyond a reasonable

doubt that the defendant conspired to commit health care fraud in

connection with the delivery of or payment for physical therapy

services, or all of you must agree that the government proved

beyond a reasonable doubt that the defendant . . . conspired to

commit health care fraud in connection with the delivery of or

payment for durable medical equipment, or all of you must agree

that the government proved beyond a reasonable doubt that the

defendant conspired to solicit or receive remuneration in return for

referring Medicare and Medicaid patients. In other words, if four of

you believe A was proved and four of you believe B was proved and

four of you believe C was proved, you’re not unanimous. Everybody

has to agree on the same one for you to find a guilty verdict.

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No. 06-20596

Now, of course all of you may also agree that the conspiracy,

if you have so found, has had as its object the commission of more

than one of the alleged federal offenses, so long as you are

unanimous on each of the federal offenses.

This instruction was sufficient to guard against a non-unanimous verdict. See

United States v. Fisher, 106 F.3d 622, 633 (5th Cir. 1997) (holding a specific

unanimity instruction “sufficient to cure any alleged defect in the indictment”),

abrogated on other grounds by Ohler v. United States, 529 U.S. 753 (2000).

Notwithstanding Mauskar’s suggestion to the contrary, the ambiguity of the

verdict as to which object or objects of the conspiracy the jury unanimously

agreed upon does not change this result.

2. Count 1 did not violate Mauskar’s rights under the Double

Jeopardy Clause.

Mauskar argues without citation to authority that “Count One . . .

diminished [his] right to be free from Double Jeopardy” because (1) “[a]ssuming

. . . that the jury unanimously agreed that one means submitted to them was

proven and the other two were not, then a third trial would place Mauskar in

jeopardy of conviction on a theory that was unanimously rejected”; and (2) “it’s

possible that the jury in the first trial . . . unanimously agreed that Mauskar was

not guilty of one of the conspiracies entailed in Count One but could not decide

the issue as to any one of the other theories, thereby contributing to the

mistrial.” We review the district court’s denial of Mauksar’s “motion to dismiss

[the] indictment on double jeopardy grounds de novo and accept the underlying

factual findings of the district court unless clearly erroneous.” United States v.

Gonzales, 76 F.3d 1339, 1342 (5th Cir. 1996).

Mauskar’s first argument is irrelevant, as the possibility that the Double

Jeopardy Clause would bar a third trial has no bearing on the disposition of

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No. 06-20596

Mauskar’s present appeal.2 His second argument does not account for the fact

that Mauskar’s first trial ended as a result of the jury’s failure to reach a verdict.

“It has been established . . . since the opinion of Justice Story in United States

v. Perez, 9 Wheat. 579, 6 L. Ed. 165 (1824), that a failure of the jury to agree on

a verdict was an instance of ‘manifest necessity’ which permitted a trial judge

to terminate the first trial and retry the defendant . . . .” Richardson v. United

States, 468 U.S. 317, 323–24 (1984). In Richardson, the petitioner argued that

the Double Jeopardy Clause barred his retrial on federal drug charges after the

jury in his first trial convicted him on one count but was unable to reach a

verdict on two others. Id. at 318, 322–23. The Court rejected this argument,

holding that the “Double Jeopardy Clause by its terms applies only where there

has been some event . . . which terminates the original jeopardy” and that “the

failure of the jury to reach a verdict is not an event which terminates jeopardy.”

Id. at 325; see also United States v. Miller, 952 F.2d 866, 874 (5th Cir. 1992)

(“Following Richardson, we hold that double jeopardy does not bar this retrial,

and because under Richardson jeopardy has not terminated, double jeopardy will

not be available as a ground for challenging any subsequent conviction that may

result.”). In support of its holding, the Court observed that despite Oregon v.

Kennedy, 456 U.S. 667 (1982), and other cases “examin[ing] the application of

double jeopardy principles to mistrials granted for reasons other than the

inability of the jury to agree,” it had “constantly adhered to the rule that a retrial

following a ‘hung jury’ does not violate the Double Jeopardy Clause.”

Richardson, 468 U.S. at 324. This authority forecloses Mauskar’s argument that

the Double Jeopardy Clause barred his second trial. See United States v. Achobe,

No. 06-20229, 2008 WL 5255896, at *6 (5th Cir. Dec. 18, 2008).

2

Nevertheless, we note that the government conceded during oral argument that the

Double Jeopardy Clause would preclude any future trial of Mauskar for conduct described in

count 1.

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No. 06-20596

3. The ambiguity of the jury’s general verdict as to count 1 of the

indictment did not adversely affect Mauskar’s sentence.

Mauskar correctly argues that the jury’s general verdict as to count 1 does

not reveal which of the conspiracy’s objects the jury found Mauskar to have

committed. This ambiguity, however, did not adversely affect Mauskar’s

sentence. Under U.S.S.G. § 1B1.2(d), “[a] conviction on a count charging a

conspiracy to commit more than one offense shall be treated as if the defendant

had been convicted on a separate count of conspiracy for each offense that the

defendant conspired to commit.” This provision applies “with respect to an

object offense if the court, were it sitting as a trier of fact, would convict the

defendant of conspiring to commit the object offense.” Id. § 1B1.2 cmt. n.4. As

discussed below in section III, “[m]ore than sufficient evidence exists from which

the district court, sitting as a trier of fact, could have found that” Mauskar

conspired to defraud the government both by submitting false claims for physical

therapy services and by unnecessarily prescribing motorized wheelchairs.

Moreover, the district court expressly declined to consider the third object

offense of the conspiracy—soliciting or receiving kickbacks—in determining

Mauskar’s sentence:

The ninth objection is to Paragraph 27, objecting to the

defendant’s statement that Nadine Norman received financial

kickbacks from the DME suppliers and that defendant received

those as well through Nadine Norman.

There is some evidence that the Court is able to consider with

respect to that possibility. However, after having sat through two

trials on this general subject and having heard all that I’ve heard,

I find that the government has not presented sufficient proof . . .

that there were kickbacks being paid for me to . . . deny that

objection; and, therefore, that objection will be sustained.

Mauskar thus cannot establish that the verdict’s ambiguity as to count 1 caused

any error in his sentencing.

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No. 06-20596

III. Sufficiency of the Evidence

Mauskar raises numerous challenges to the sufficiency of the evidence to

support his conviction. Our inquiry in assessing such challenges in a criminal

case is whether a “reasonable trier of fact could have found that the evidence

established guilt beyond a reasonable doubt.” United States v. Mergerson, 4 F.3d

337, 341 (5th Cir. 1993) (quoting United States v. Bell, 678 F.2d 547, 549 (5th

Cir. 1982) (en banc)). We view “all evidence and all reasonable inferences drawn

from it in the light most favorable to the government.” Id.

A. Count 1

Count 1 of the indictment alleges a single conspiracy with three objects:

(1) defrauding Medicare by a scheme relating to physical therapy services; (2)

defrauding Medicare and Medicaid by a scheme relating to motorized

wheelchairs; and (3) violating the anti-kickback statute by soliciting and

receiving remuneration to induce referral of Medicare and Medicaid

beneficiaries. To convict Mauskar of conspiracy, the government had to show:

(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. Williams, 507 F.3d 905, 910 n.4 (5th Cir. 2007), cert. denied, 128

S. Ct. 2074 (2008) (quoting United States v. Peterson, 244 F.3d 385, 389 (5th Cir.

2001)). “[E]ach element may be proven by circumstantial evidence,” United

States v. Mulderig, 120 F.3d 534, 547 (5th Cir. 1997), and proof of a tacit

conspiratorial agreement is sufficient, United States v. Freeman, 434 F.3d 369,

376 (5th Cir. 2005). Notwithstanding Mauskar’s argument to the contrary, the

government need have proved only one object of the conspiracy for us to sustain

his conviction on count 1: “[A] general guilty verdict on a multiple-object

conspiracy may stand even if the evidence is insufficient to sustain a conviction

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No. 06-20596

on one of the charged objects.” United States v. Mann, 493 F.3d 484, 492 (5th

Cir. 2007) (quoting United States v. Calle, 120 F.3d 43, 45 (5th Cir. 1997)).

Applying this framework, the record contains ample evidence, some of which is

discussed below, to support Mauskar’s conviction on count 1.

B. Counts 2, 4, 6, and 9

Counts 2, 4, 6, and 9 relate to Mauskar’s false certification that he

provided physical therapy services to Mirage patients. Mauskar’s only challenge

to the sufficiency of the evidence supporting these counts is that he did not

understand that by signing a patient’s chart, he certified that he had performed

physical therapy services for that patient. The record reflects, however, that

Mauskar signed a Medicare form on September 9, 1999, certifying that he

directly supervised physical therapy services in a patient’s home. The record

also reflects that Mauskar told a Medicare investigator that Mirage patients

came to his office for treatment, when in fact they did not. This evidence, as well

as other evidence in the record, is sufficient to establish Mauskar’s culpability

in falsely certifying his treatment of Mirage patients.

C. Counts 10, 12, 14, 16, 18, 20, 22, 24, 26, 28, 30, 32, 34, 36, 38, and

40

Counts 10, 12, 14, 16, 18, 20, 22, 24, 26, 28, 30, 32, 34, 36, 38, and 40 relate

to Mauskar’s prescription of motorized wheelchairs to Medicare and Medicaid

patients who did not need them. Mauskar first argues that “[t]here was no

evidence [he] willingly and knowingly assisted [the DME companies] in their

scheme to defraud.” To the contrary, the record is replete with such evidence.

It is undisputed, for example, that Mauskar prescribed a motorized wheelchair

to Herman Conway despite the fact Conway was jogging a mile twice a day at

the time Mauskar examined him. Conway testified that he used the scooter for

“recreational purposes.”

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No. 06-20596

Mauskar next argues that the DME companies’ alteration of the

certificates of medical necessity he signed forecloses his conviction on all of the

above-referenced counts but one. This argument fails for at least two reasons.

First, the DME companies’ alteration of the certificates does not affect the

evidence that Mauskar himself fraudently billed medically unnecessary tests

and evaluations irrelevant to the procurement of a motorized wheelchair.

Second, the alteration of the certificates for the purpose of ensuring the

government would accept them does not diminish Mauskar’s responsibility for

signing the certificates. If he had not signed them, the government would not

have suffered the losses it did.

Finally, Mauskar argues that “[t]here was no evidence presented that . . .

Mauskar knew that [the DME companies] were delivering less expensive

scooters while billing Medicare for motorized wheelchairs.” The record belies

this assertion. One of the patients to whom Mauskar prescribed a motorized

wheelchair testified that Mauskar asked her if she wanted a scooter:

Q. Now, let me show you what’s marked with Bates 1217. Did

Dr. Mauskar ask you if you needed a motorized wheelchair

because you needed help moving in around your home, your

house?

A. Yes, he asked me did I want a wheel -- a motor -- a scooter. A

scooter.

Q. He asked if you wanted a scooter?

A. Uh-huh.

Q. He said specifically “a scooter”?

A. A scooter, uh-huh.

Another patient testified she told Mauskar’s receptionist that she had come to

“see the physician about a motor scooter.” This, along with other evidence in the

record, is sufficient to support an inference that Mauskar knew the DME

companies were providing his patients with scooters rather than motorized

wheelchairs. Moreover, even assuming Mauskar had been ignorant of the fact

the DME companies charged the government for motorized wheelchairs and

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No. 06-20596

delivered less expensive scooters, the evidence would be sufficient to support his

conviction on the counts at issue—the DME companies’ compounding the fraud

by delivering scooters did not relieve Mauskar of his responsibility for falsely

certifying patients’ eligibility for motorized wheelchairs.

IV. Brady and Outrageous Government Conduct

The record establishes that before Mauskar’s first trial, the government

knew Tonya Williams had forged Mauskar’s signature on treatment charge

sheets, progress notes, and other documents. Williams testified on cross

examination during Mauskar’s second trial that the government had been aware

of the forgery for more than two years:

Q: Who did you tell that you had been photocopying Dr.

Mauskar’s signature?

A: Mr. Louis, Mr. McGregor.

Q: And was this at a meeting you had at the U.S. Attorney’s

Office?

A: Yes.

Q: And it was before the trial began?

A: Yes.

Q: Is it while you were in prison or before you went to prison?

A: Before I went to prison.

Q: So, the government has known for at least for the last two

years that you photocopied these signatures.

A: (Nods head.)

Q: Yes or no?

A: Yes.

The government concedes that at least some of these documents were relevant

to some of the charges against Mauskar, and that it failed to disclose the

forgeries until after Mauskar’s second trial was underway. Following Williams’s

testimony, Mauskar moved for dismissal of the indictment due to outrageous

government conduct and/or violation of the Double Jeopardy Clause, alleging

that the government committed an egregious Brady violation by failing to

disclose the forgery.

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“To make out a Brady violation, a defendant must show that (1) evidence

was suppressed; (2) the suppressed evidence was favorable to the defense; and

(3) the suppressed evidence was material to either guilt or punishment.” Miller,

520 F.3d at 514 (internal quotation marks and citations omitted). “Evidence is

material under Brady when there is a ‘reasonable probability’ that the outcome

of the trial would have been different if the suppressed evidence had been

disclosed to the defendant.” United States v. Runyan, 290 F.3d 223, 245 (5th Cir.

2002). Mauskar, however, fails on appeal to identify the forged documents with

any specificity, or to explain to which charges the documents were relevant. In

fact, Mauskar acknowledges that he was acquitted on some of those charges.

Without this information, we cannot conduct the analysis necessary to determine

whether the documents were “material” within the meaning of Brady. See Kyles

v. Whitley, 514 U.S. 419, 437 (1995) (“[S]howing that the prosecution knew of an

item of favorable evidence unknown to the defense does not amount to a Brady

violation, without more.”); see also Smith v. Black, 904 F.2d 950, 967 (5th Cir.

1990) (observing that “[t]he materiality of Brady material depends almost

entirely on the value of the evidence relative to the other evidence mustered by

the [government]”), vacated, 503 U.S. 930 (1992), abrogated on other grounds by

Stringer v. Black, 503 U.S. 222 (1992).

Nor has Mauskar established the existence of outrageous government

conduct that required dismissal of his indictment, a question we review de novo.

United States v. Asibor, 109 F.3d 1023, 1039 (5th Cir. 1997). “Government

misconduct does not mandate dismissal of an indictment unless it is ‘so

outrageous’ that it violates the principle of ‘fundamental fairness’ under the due

process clause of the Fifth Amendment.” United States v. Johnson, 68 F.3d 899,

902 (5th Cir. 1995) (citing United States v. Russell, 411 U.S. 423, 431–32 (1973)).

“Such a violation will only be found in the rarest circumstances.” Id. (citing

United States v. Yater, 756 F.2d 1058, 1066 (5th Cir. 1985)); see also United

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States v. Childs, 447 F.3d 541, 545 (7th Cir. 2006) (observing that “dismissing

criminal charges against a defendant because of government misconduct” is an

“extreme step”). We are deeply concerned by the government’s failure to disclose

Williams’s forgery of Mauskar’s signature on documents relating to the charges

against him.3 “The duty of a prosecutor, as the representative of the sovereign

in a criminal case, is not that it shall win a case but that justice shall be done.”

Dickson v. Quarterman, 462 F.3d 470, 479 (5th Cir. 2006) (internal quotation

marks and citations omitted). Nonetheless, we cannot say on the record before

us that the nondisclosure in the present case is so “shocking to the universal

sense of justice,” Russell, 411 U.S. at 432 (quoting Kinsella v. United States ex

rel. Singleton, 361 U.S. 234, 246 (U.S. 1960)), that the government should have

been deprived for all time of the opportunity to prosecute Mauskar.

In so concluding, we note that contrary to Mauskar’s assertion, the

government did not suborn perjured testimony from Tonya Williams regarding

the authenticity of signatures on the forged documents. Williams testified

during Mauskar’s first trial that she had never written “Dr. Mauskar’s name on

any Medicare application form that was submitted to Medicare.” This testimony

is not inconsistent with her subsequent testimony during Mauskar’s second trial

that she forged treatment sheets, progress notes, and other documents. Had the

government suborned perjury regarding the authenticity of signatures on the

forged documents relating to the charges against Mauskar, the outcome of this

appeal may have been different.

V. Sentencing Errors

Mauskar objects to numerous alleged sentencing errors in the district

court. In considering these objections, we review the district court’s factual

3

We are also disappointed with the government’s suggestion that Williams did not

“forge” Mauskar’s signature because she photocopied, rather than wrote, his signature onto the

forged forms. Such an argument is beneath a member of the Bar representing the United

States before this court.

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findings for clear error and its interpretation of the Guidelines de novo. United

States v. Angeles-Mendoza, 407 F.3d 742, 747 (5th Cir. 2005). “A factual finding

is not clearly erroneous so long as it is plausible in light of the record as a

whole.” United States v. Holmes, 406 F.3d 337, 363 (5th Cir. 2005) (quoting

United States v. Powers, 168 F.3d 741, 752 (5th Cir. 1999)).

A. Mass-Marketing Enhancement

U.S.S.G. § 2B1.1(b)(2)(A) provides for a two-level enhancement if “the

offense . . . was committed through mass-marketing.” The commentary to

section 2B1.1 defines “mass-marketing” as “a plan, program, promotion, or

campaign that is conducted through solicitation by telephone, mail, the Internet,

or other means to induce a large number of persons to (i) purchase goods or

services; (ii) participate in a contest or sweepstakes; or (iii) invest for financial

profit.” U.S.S.G. § 2B1.1 cmt. n.4(A). “Mass-marketing” is not limited to the

mass-communication methods listed in the commentary, as the definition

“explicitly contemplates ‘other means’ of mass-marketing.” United States v.

Magnuson, 307 F.3d 333, 335 (5th Cir. 2002). As we have recognized, “[f]ace-to-

face marketing [] intended to reach a large number of persons” for the purpose

of facilitating health care fraud can constitute “mass-marketing.” United States

v. Jackson, 220 F. App’x 317, 332 (5th Cir. Mar. 2, 2007).

The district court, on the recommendation of the presentence investigation

report, found section 2B1.1(b)(2)(A)(ii) applicable over Mauskar’s objection that

while “he may have known about” the mass-marketing, the record contained no

“evidence he actually participated in that or encouraged it or developed it or

planned it.” Mauskar renewed his objection to the mass-marketing

enhancement in a motion filed shortly after sentencing, arguing that precedent

did not support the enhancement absent evidence that Mauskar was “personally

involved in the mass-marketing.” The district court again rejected Mauskar’s

argument, finding that he was “inextricably involved in the mass marketing

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No. 06-20596

aspect of the offense.” In support of this finding, the district court noted that

“well over a thousand elderly, ambulatory Medicare beneficiaries were escorted

to Defendant Mauskar’s medical clinic to acquire free motorized wheelchairs”

and that “Mauskar’s staff used a separate sign-in sheet for the Medicare

wheelchair applicants . . . [to] reduce the number of arguments . . . about who

was entitled to be paid the recruiting fee for having brought in the wheelchair

applicants.”

The plain language of the Guidelines forecloses Mauskar’s argument that

the mass-marketing enhancement does not apply to his conduct. The

mass-marketing enhancement is applicable if an “offense . . . was committed

through mass-marketing.” U.S.S.G. § 2B1.1(b)(2)(A)(ii). “‘Offense’ means the

offense of conviction and all relevant conduct under § 1B1.3 (Relevant Conduct)

unless a different meaning is specified or is otherwise clear from the context.”

U.S.S.G. § 1B1.1 cmt. n.1(H). And “in the case of a jointly undertaken criminal

activity,” relevant conduct includes “all reasonably foreseeable acts and

omissions of others in furtherance of the jointly undertaken criminal activity.”

U.S.S.G. § 1B1.3(a)(1)(B). Given this standard, the district court did not err in

finding Mauskar eligible for the mass-marketing enhancement.

B. Calculation of Loss

U.S.S.G. § 2B1.1(b)(1) provides for a twenty-level enhancement if a

defendant’s offense, including “all reasonably foreseeable acts and omissions of

others in furtherance of the jointly undertaken criminal activity,” id.

§ 1B1.3(a)(1)(B), resulted in a loss between $7,000,000 and $20,000,000. “Loss

is the greater of actual loss or intended loss.” Id. § 2B1.1 cmt. n.3(A). “‘Intended

loss’ (I) means the pecuniary harm that was intended to result from the offense;

and (II) includes intended pecuniary harm that would have been impossible or

unlikely to occur.” Id. § 2B1.1 cmt. n.3(A)(ii). “The [district] court need make

only a reasonable estimate of the loss” based on available information. Id.

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No. 06-20596

§ 2B1.1 cmt. n.3(C). Here, the district court estimated $15,311,867 as the total

loss attributable to Mauskar and accordingly applied a twenty-level

enhancement.

In his opening brief, Mauskar raises three objections to the district court’s

loss estimate, all of which relate to his responsibility for $13,480,000 the DME

companies billed Medicare for medically unnecessary motorized wheelchairs.

First, Mauskar argues that he is not responsible for an unspecified portion of

that amount because the DME companies altered some certificates of medical

necessity, after Mauskar signed them, to ensure that the government would

accept the certificates and pay for the wheelchairs. This argument fails because

the district court did not include the allegedly altered certificates in its loss

calculation: “[I]n view of the questionable CMNs, which the defendant has

estimated at 600 off of 2400, I’m going to be somewhat even more conservative

and base my loss finding here upon the 1685 CMNs that the government was

able to document out of Dr. Mauskar’s own files.” Even had the district court

decided to include the allegedly altered certificates in its loss calculation, it

would not have clearly erred. By signing the certificates of medical necessity,

Mauskar verified ineligible patients’ eligibility for power wheelchairs; it was

entirely foreseeable from his perspective that the DME companies would use

those CMNs to defraud Medicare and Medicaid.

Second, Mauskar suggests that he should not be held responsible for the

$13,480,000 because he was unaware that the DME companies billed Medicare

and Medicaid for power wheelchairs and delivered less expensive scooters. This

argument, which Mauskar did not make before the district court, is without

merit. The fact that the DME companies billed the government for power

wheelchairs and delivered scooters does not absolve Mauskar from responsibility

for issuing certificates of eligibility for power wheelchairs to ineligible patients,

regardless of whether he knew of this additional dimension of the conspiracy.

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No. 06-20596

In any event, Mauskar’s failure to make this argument before the district court

forecloses our review. See United States v. Guerrero, 5 F.3d 868, 871 (5th Cir.

1993) (holding that fact questions that could have been resolved by the district

court upon proper objection can never constitute plain error).

Third, Mauskar asserts without explanation that “if [he] is responsible for

any of the loss in this regard it should be limited to the amount paid [to] the

DMEs for the specific patients whose information was presented at trial, an

amount totaling $86,226[,] . . . with a reduction for the amount secured through

alterations to Mauskar’s prescriptions without his knowledge.” To the extent

Mauskar means to argue that the district court could consider only evidence

presented at trial in sentencing Mauskar, his argument is without merit, as

“[t]he sentencing judge is entitled to find by a preponderance of the evidence all

the facts relevant to the determination of a Guideline sentencing range.” United

States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). Further, as discussed above,

the record reflects that the district court did not consider the altered CMNs in

calculating the loss that resulted from Mauskar’s conduct. Mauskar’s argument

on this point thus fails.

In his reply brief, Mauskar asserts that because the DME companies billed

approximately $10,000 per patient but the government paid approximately

$5,000 per patient, the district court erred in finding Mauskar responsible for

eighty percent of the amount billed, rather than fifty percent. As above,

Mauskar’s failure to raise this argument before the district court forecloses

appellate review. See Guerrero, 5 F.3d at 871. Moreover, even assuming

arguendo that the district court did err on this point, the error would be

harmless, as even the application of Mauskar’s proposed fifty percent discount

rate would not reduce the loss estimate below $7,000,000, the threshold for a

twenty-level enhancement under section 2B1.1(b)(1). See United States v.

Watson, 966 F.2d 161, 164 (5th Cir. 1992) (“Watson has not demonstrated that

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No. 06-20596

the evidence is sufficient to reduce the value of the stolen property by . . . the

amount necessary to decrease his offense level . . . . Accordingly, any error by

the district court would be harmless.” (citations omitted)).

C. Aggravating Role Enhancement

U.S.S.G. § 3B1.1(b) provides for a three-level enhancement “[i]f the

defendant was a manager or supervisor (but not an organizer or leader) and the

criminal activity involved five or more participants or was otherwise extensive.”

“To 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. § 3B1.1 n.2. “A ‘participant’ is a person who is criminally responsible for the

commission of the offense, but need not have been convicted.” Id. § 3B1.1 n.1.

The district court applied the enhancement to Mauskar, finding by a

preponderance of the evidence that he had supervised at least one criminally

responsible participant, Nadine Norman, and that the criminal activity at issue

was “otherwise extensive.”

Mauskar raises three objections to the district court’s analysis. First, he

criticizes the district court’s finding that Nadine Norman, Mauskar’s former

office manager, was a criminally responsible participant, noting that she was

acquitted of all charges. To the extent this criticism constitutes an argument

that Norman’s acquittal precluded the district court’s finding that she was a

criminally responsible participant, the argument fails. See United States v.

Davis, 19 F.3d 166, 172 (5th Cir. 1994) (“The district court could have enhanced

Davis’ sentence based on his leadership of Facey and Coulton despite their

acquittals.”).

Second, Mauskar asserts that “[t]he employees used to support this

enhancement were not ‘criminal participants’ as required for application of this

enhancement.” This argument also fails. The court reviews the district court’s

preponderance-of-the-evidence factual determination that Nadine Norman was

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No. 06-20596

a criminally responsible participant for clear error, and that determination is

“plausible in light of the record as a whole.” See United States v. Holmes, 406

F.3d 337, 363 (5th Cir. 2005). During Mauskar’s first trial, for example, one

witness testified that Norman (1) paid recruiters for referring patients to

Mauskar’s practice; (2) requested kickbacks from the medical equipment

companies; and (3) controlled which recruiters could bring patients to Mauskar’s

office. Another witness testified that Norman received a cash payment of

between seven and eight thousand dollars from a medical equipment company

representative in the parking lot of Mauskar’s office. Supported by this

evidence, the district court’s determination easily withstands clear error review.

Third, Mauskar asserts that “any supervision provided by [him] over

[criminally responsible participants] was during the course and scope of their

employment” and implies that this fact precludes an aggravating role

enhancement. Neither the text of section 3B1.1(b) nor case law supports

Mauskar’s argument on this point; to the contrary, numerous courts have upheld

aggravating role enhancements based on supervision of employees. See, e.g.,

United States v. Chau, 293 F.3d 96, 103 (3d Cir. 2002) (“Chau argues that this

enhancement is improper because he merely directed his handyman, Fantom,

to clean up the building . . . . However, this is sufficient for a district court to

impose this enhancement.”); United States v. Austin, 103 F.3d 606, 611 (7th Cir.

1997) (holding that district court’s finding that a defendant’s employee was a

criminally responsible participant within the meaning of section 3B1.1 was not

clearly erroneous).

D. Abuse of Trust Enhancement

U.S.S.G. § 3B1.3 provides for a two-level enhancement if “the defendant

abused a position of public or private trust . . . in a manner that significantly

facilitated the commission or concealment of the offense.” The district court

found section 3B1.3 applicable to Mauskar, noting that Medicare and Medicaid

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No. 06-20596

relied on him to give “honest and accurate assessments” of his patients’ need for

power wheelchairs and physical therapy services. Mauskar argues before this

court that “Medicare placed its trust in the physical therapy clinics and the DME

companies, not in Mauskar.” As the district court recognized, however, Medicare

and Medicaid do rely on physicians such as Mauskar to provide honest

assessments of their patients’ needs for the medical services and products the

government provides. Consistent with this fact, we have previously held that

medical providers maintain a position of trust with the insurers they bill and

have approved sentence enhancements for violations of that trust. See, e.g.,

United States v. Gieger, 190 F.3d 661, 665 (5th Cir. 1999); United States v.

Iloani, 143 F.3d 921, 922–23 (5th Cir. 1998). The district court’s application of

section 3B1.3 is thus consistent with our precedent.

E. Booker

After United States v. Booker, 543 U.S. 220 (2005), a criminal defendant’s

argument for a sentence below that prescribed by the Sentencing Guidelines can

take one of two forms:

First, [a defendant] might argue within the Guidelines’ framework,

for a departure from the applicable Guidelines range on the ground

that his circumstances present an “atypical case” that falls outside

the “heartland” to which the United States Sentencing Commission

intends each individual Guideline to apply. Second, [a defendant]

might argue that, independent of the Guidelines, application of the

sentencing factors set forth in 18 U.S.C. § 3553(a) (2000 ed. and

Supp IV) warrants a lower sentence.

Rita v. United States, 127 S. Ct. 2456, 2461 (2007) (citing Booker, 543 U.S. at

259–60). Mauskar argues that we should vacate his sentence because the

district court “erroneously believed that [it] was confined to a ‘heartland’

analysis”—in other words, that the district court failed to recognize that

application of the sentencing factors set forth in section 3553(a) might warrant

a lower sentence independent of the Guidelines. To the contrary, the district

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No. 06-20596

court recognized the advisory nature of the Guidelines and explicitly declined to

impose a below-Guidelines sentence in reliance on the factors set forth in section

3553(a): “The Court has considered the advisory guidelines and finds that a

sentence within the recommended range suggested by the advisory guidelines

is appropriate to the circumstances of this case and serves the purpose of

fulfilling the function of [Title] 18, United States Code, Section 3553(a).”

Mauskar’s argument on this point is thus without merit.

CONCLUSION

For the reasons set forth above, the judgment of the district court is

AFFIRMED.

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