United States v. Samirkumar Shah

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 21-2581

______________

UNITED STATES OF AMERICA

v.

SAMIRKUMAR J. SHAH,

Appellant

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On Appeal from the United States District Court

for the Western District of Pennsylvania

(No. 2-16-cr-00110)

U.S. District Judge: Honorable David S. Cercone

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Submitted Under Third Circuit L.A.R. 34.1(a)

July 8, 2022

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Before: SHWARTZ, KRAUSE, and ROTH, Circuit Judges.

(Filed: July 22, 2022)

Laura S. Irwin

Eric G. Olshan

Office of United States Attorney

700 Grant Street

Suite 4000

Pittsburgh, PA 15219

Counsel for Appellee

Joshua S. Lowther

Lowther Walker

101 Marietta Street, N.W.

Suite 3325

Atlanta, GA 30303

Counsel for Appellant

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OPINION

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SHWARTZ, Circuit Judge.

Samirkumar Shah appeals his conviction and sentence

for health care fraud. Because the District Court correctly

denied his motions to disqualify the United States Attorney’s

Office (“USAO”), for a continuance, and for a judgment of

acquittal, and because his sentence is procedurally and

substantively reasonable, we will affirm.

2

I

A

Shah practiced cardiology in multiple offices in

Pennsylvania. Among other things, Shah prescribed external

counterpulsion (ECP) treatment, which is designed to increase

blood flow to the heart using compression cuffs around the

patient’s legs while they are lying down. Shah purchased ECP

beds and billed insurers, including Medicaid and Medicare

plans, for ECP treatment.

Medicaid and Medicare have three limitations for

reimbursement of ECP treatment. First, the programs cover

ECP treatment only for patients who suffer from angina (chest

pain). Second, the programs will only reimburse for ECP

treatment that was conducted under a physician’s direct

supervision. Third, the programs restrict billing for

reimbursement. Specifically, a system of codes is used to

identify the service rendered, and each coded service is

assigned a price. ECP treatment is assigned code G0166,

which is a “bundled code” because it includes companion

treatments. 1 App. 197. As result, physicians who bill code

G0166 may not also bill the separate codes for the companion

treatments on the same day “unless they are medically

necessary and delivered in a clinical setting not involving ECP

therapy.” S. App. 6. The ECP bed supplier provided Shah with

guidelines informing him of these limitations.

1

The companion treatments bundled in G0166 include

echocardiograms, Doppler tests, pulse oximetries, and

plethysmographies.

3

Insurers audited Shah’s billing and told him that he

improperly billed ECP treatments by using both the G0166

code and codes for companion treatments and that the medical

necessity of many of his ECP treatments was unsubstantiated.

Although Shah’s agreements with insurers required that he

only seek reimbursement for medically necessary treatments,

and he told one insurer that he instructed his billing department

to remove the incorrect codes, he in fact directed his third-party

billing service to continue billing “[a]ll four codes.” App. 836.

In addition to ignoring insurers’ directives, Shah (1)

prescribed ECP for patients, including an undercover agent,

who did not suffer chest pain, telling some patients that ECP

treatment would make them “younger and smarter” and could

help with conditions including high and low blood pressure,

obesity, erectile dysfunction, and restless leg syndrome, App.

385; and (2) was “very often” not present—nor was any

doctor—to supervise patients’ ECP treatments, App. 457-58.

Shah (1) told his staff that all patients had angina; (2) instructed

staff to “beef[] up” patient files before insurance reviews, long

after treatment was provided, App. 327; and (3) used pre-

printed forms that included angina diagnoses. Notably, during

an interview with the Pennsylvania Attorney General’s Office,

Shah stated that he reported angina diagnoses for patients who

did not have that condition “[f]or reimbursement purposes.”

App. 1151.

B

A grand jury indicted Shah for two counts of health care

fraud in violation of 18 U.S.C. § 1347.

4

On the first day of jury selection, Shah moved to

disqualify the entire USAO and sought a continuance to

conduct additional discovery.

Shah’s disqualification motion arose out of his prior

representation by Tina Miller, who represented Shah until June

2017, and then, ten months later, joined the USAO as a

supervisory Assistant U.S. Attorney (“AUSA”). Shah argued

that because Miller became a supervisor in the office

prosecuting him, there was “both a conflict of interest and an

appearance of a loss of impartiality.” D. Ct. ECF No. 145 at 7.

The District Court denied the motion, noting that it did not “see

any issue of any facts demonstrating a conflict of [interest]”

and emphasizing the need to avoid delaying the trial. App. 67. 2

2

After the Court ruled, it received declarations from

Miller and the two AUSAs handling the trial. Miller stated that

she did not discuss employment with the USAO when she

represented Shah and, once she joined the office, she had no

discussions about or involvement in any cases in which she had

played a role while in private practice. She also represented

that she divulged no confidential information learned during

her representation of Shah to any USAO employee or

investigative agency. The two AUSAs’ affidavits likewise

stated that Miller was not involved in Shah’s prosecution and

did not divulge any client confidences. One AUSA added that

her only discussion with Miller regarding Shah’s prosecution

involved her telling Miller that she was unable to assist on a

separate matter because she, unbeknownst to Miller, “would be

in . . . the trial of [Shah].” App. 90.

After trial, the District Court revisited Shah’s

disqualification motion, again held that disqualification of the

entire USAO was inappropriate “given the lack of . . . Miller’s

5

Shah also sought a continuance so he could have an

expert review 350 patient files seized from his offices. The

Government responded that the records had been available to

him for years and thus a continuance was inappropriate. The

Court denied the request for a continuance as untimely.

C

The trial commenced, and the Government presented

thirty-two witnesses, including Shah’s patients and employees,

the ECP bed supplier, insurers, his third-party billing service,

and law enforcement officers. After the government rested,

Shah moved for judgment of acquittal on Count Two, which

the District Court denied. The jury found Shah guilty on both

counts of health care fraud.

D

The District Court held a sentencing hearing to calculate

the loss to insurers from Shah’s conduct. FBI Special Agent

Brooklynn Riordan testified that, for each insurer, she

calculated (1) the average amount Shah billed and (2) the

average amount the insurer reimbursed Shah, and identified,

by dividing the average amount reimbursed by the average

amount billed, a reimbursement rate. She then multiplied that

rate by the total billing to that insurer, which, across all

insurers, yielded a total loss of $5,919,100.00. The

Government recommended reducing the total loss amount by

50%, which had the effect of treating half of Shah’s billing for

involvement in the government’s prosecution of defendant,”

and declined to hold an evidentiary hearing. App. 50.

6

ECP treatment and companion codes as legitimate, even

though there was no evidence that he ever legitimately used

those codes. The District Court accepted the loss calculation

over Shah’s objection.

The Court sentenced Shah to concurrent terms of 78

months’ imprisonment and three years’ supervised release and

ordered that he pay $1,234,983.60 in restitution.

Shah appeals.

II 3

A

We will address, in turn, Shah’s challenges to the

District Court’s orders denying his motions to disqualify the

entire USAO, for a continuance to conduct additional

discovery, and for judgment of acquittal on Count Two.

14

The District Court properly denied Shah’s motion to

disqualify the entire USAO. First, the District Court’s decision

3

The District Court had jurisdiction under 18 U.S.C.

§ 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a).

4

“Our standard of review on an attorney

disqualification issue includes both deferential and de novo

elements. To the extent that the district court made factual

findings, our review is for clear error . . . . [W]e exercise

plenary review to determine whether the district court’s

disqualification was arbitrary in the sense that the court did not

7

was not arbitrary. We have recognized that “[a]s long as the

court makes a ‘reasoned determination on the basis of a fully

prepared record,’ its decision will not be deemed arbitrary.”

United States v. Stewart, 185 F.3d 112, 120 (3d Cir. 1999)

(quoting United States v. Voigt, 89 F.3d 1050, 1075 (3d Cir.

1996)). Here, the District Court complied with its obligations,

as it heard oral argument and received written submissions

from both Shah and the Government on this issue and made its

decision based on a complete record, including declarations

from Miller and the two AUSAs handling Shah’s trial. Thus,

we review the Court’s ruling for abuse of discretion. See

Whittaker, 268 F.3d at 194.

Second, the District Court did not abuse its discretion.

Attorneys practicing before the United States District Court for

the Western District of Pennsylvania must adhere to the

Pennsylvania Supreme Court’s Rules of Professional Conduct.

See W.D. Pa. L. Civ. R. 83.3(A)(2); Pa. Const. art. V § 10.

Under the Pennsylvania rules, a lawyer “currently serving as a

public officer or employee . . . shall not . . . participate in any

matter in which the lawyer participated personally and

substantially while in private practice.” 204 Pa. Code R.

1.11(d). While the lawyer who switches sides “is of course

disqualified from participating in the case[,] . . . individual

rather than vicarious disqualification is the general rule.”

Commonwealth v. Miller, 422 A.2d 525, 529 (Pa. Super. Ct.

appropriately balance proper considerations of judicial

administration against the United States’ right to prosecute the

matter through counsel of its choice . . . . If the disqualification

was not arbitrary, we use an abuse of discretion standard . . . .”

United States v. Whittaker, 268 F.3d 185, 193-94 (3d Cir.

2001).

8

1980) (quotation marks and citation omitted); see also 204 Pa.

Code R. 1.11(d) cmt. (2) (“Because of the special problems

raised by imputation [of a conflict of interest] within a

government agency, [Rule 1.11(d)] does not impute the

conflicts of a [government] lawyer to other associated

government officers or employees, although ordinarily it will

be prudent to screen such lawyers.”). This is so because

disqualifying an entire prosecutor’s office, rather than just the

conflicted attorney, would impose substantial costs on

taxpayers because it would trigger the need to appoint special

prosecutors each time a member of the defense bar switches

sides. See, e.g., Miller, 422 A.2d at 529; Commonwealth v.

Harris, 460 A.2d 747, 749 (Pa. 1983) (calling such an approach

“simply not viable”). Furthermore, it would not address the

true concern: to be sure that “the acts of a public prosecutor

have [not] actually tainted the proceedings.” Harris, 460 A.2d

at 749. Because actual taint must be shown, the mere

“appearance of impropriety” is insufficient to support

disqualification of an entire office. 5 See id.

To avoid taint, USAOs use methods to wall off the

attorney from cases in which he played a role while in practice.

Disqualification of an entire USAO is required only when

screening devices, aimed at ensuring side-switching counsel is

in no way involved in the case giving rise to the conflict, were

5

Shah’s reliance on People v. Shinkle, 415 N.E.2d 909

(N.Y. Ct. App. 1980), is misplaced. Shinkle disqualified the

entire District Attorney’s office because of “the unmistakable

appearance of impropriety,” id. at 920, a rationale that is not a

basis for disqualifying government counsel under

Pennsylvania’s ethics rules, see Harris, 460 A.2d at 749;

Miller, 422 A.2d at 529.

9

not used or were ineffective. United States v. Goot, 894 F.2d

231, 234-35 (7th Cir. 1990); see United States v. Caggiano,

660 F.2d 184, 191 (6th Cir. 1981) (holding that because an

attorney was separated from all participation on matters

affecting his former client, “disqualification of an entire

government department . . . would not be appropriate”).

Here, the affidavits from Miller and the two AUSAs

who tried Shah showed Miller was properly screened. Miller

stated that she had “been recused and walled off from any

involvement or oversight” in cases where she represented a

defendant, including Shah’s matter. App. 84. To implement

the ethical screen, Miller told attorneys and supervisors

assigned to cases from which she was recused that she could

have no involvement in those cases. As to Shah specifically,

Miller stated that she neither “participated . . . in the

prosecution or supervision of this case” nor “divulged any

confidential information [she] learned” about Shah. App. 84-

85. The trial AUSAs confirmed that Miller “has not

participated in the [Shah] case in any manner” nor “divulged

[to them] client confidences.” App. 87, 90. Based on these

sworn statements, the District Court did not clearly err in

finding that Miller was screened from Shah’s prosecution. Cf.

Commonwealth v. Ford, 122 A.3d 414, 418 (Pa. Super. Ct.

2015) (remanding where trial court disqualified the entire

district attorney’s office because the record did not indicate

whether confidential information was disclosed or a “sufficient

fire wall ha[d] been . . . erected” and thus did not “support an

exception to the general rule, i.e., [did not support]

disqualification of the entire [District Attorney’s] Office”).

10

Moreover, Shah has not shown that the ethical screen

was ineffective. 6 In fact, he concedes that he has no evidence

that the denial of the disqualification motion prejudiced him in

any way. See Caggiano, 660 F.2d at 191 (reversing order

disqualifying entire USAO because, in part, “no prejudice has

resulted to anyone in this case”). Instead, Shah simply

suggests that Miller was inevitably involved in his prosecution

because of her supervisory duties. In support, he cites the

decision not to assign one of the trial AUSAs additional cases

to allow her to work on Shah’s case and the absence, in the

AUSAs’ affidavits, of information about who supervised them.

Shah also relies on State v. Tippecanoe County Court, 432

N.E.2d 1377, 1379 (Ind. 1982), in which the Indiana Supreme

Court concluded an entire district attorney’s office was

properly disqualified because the prosecutor had

“administrative control over the entire staff.” Here, however,

there is no evidence that Miller exercised any control over the

attorneys prosecuting Shah. To the contrary, she swore that

she did not “participate[] or cooperate[] in the prosecution or

supervision of [his] case,” App. 84, was never the direct

6

Shah asserts that the ethical screen was ineffective

because the trial AUSAs “found out” about Miller’s recusal

from the docket, Appellant’s Br. at 16, but the attorneys’

subjective understanding does not indicate that Miller did not

satisfy her ethical obligations to notify attorneys in the office.

In addition, United States v. Schell, 775 F.2d 559 (4th Cir.

1985), does not help Shah. Unlike this case, in Schell, there

was some evidence suggesting that the side-switching AUSA

disclosed his former client’s confidences, and this led the court

to question the effectiveness of the ethical screen there. Id. at

566. There is no indication here that Miller had any

discussions about Shah with anyone.

11

supervisor of the trial AUSAs, and would “not be involved in

evaluating their performance in prosecuting the Shah matter,”

App. 85. Any decision Miller made regarding the AUSA’s

other cases has no bearing on Shah’s prosecution.

Furthermore, Shah points to no requirement that the USAO

identify those who supervised the Shah prosecution in her

stead, and he did not rebut her sworn statement that someone

else handled the supervisory duties in Shah’s case.

Thus, the District Court did not abuse its discretion in

denying Shah’s disqualification motion. 7

2

The District Court also acted within its discretion in

denying Shah’s motion for a continuance on the first day of

jury selection so that he could have an expert examine his

patient files. Denial of a continuance “constitutes an abuse of

discretion only when it is ‘so arbitrary as to violate due

process.’” United States v. Kikumura, 947 F.2d 72, 78 (3d Cir.

1991) (quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964)).

In this case, a continuance was not warranted. First,

Shah had access to the files since his 2016 indictment pursuant

7

The District Court also acted within its discretion in

declining to hold an evidentiary hearing. While such a hearing

may be useful in some cases, it is not required. Goot, 894 F.2d

at 237. Here, the Court had affidavits from Miller and the trial

AUSAs demonstrating an effective ethical screen was in place,

and Shah presented nothing to show that Miller played any role

in his case or disclosed any information she learned while

representing him. See id.

12

to Federal Rule of Criminal Procedure 16(a)(1)(E), and his

prior counsel acknowledged receipt of a notice providing that

he could inspect and copy all seized records. Moreover, Shah

does not dispute that his counsel received at least four letters

in 2018 and 2019 reflecting that “[e]vidence gathered during

the course of the searches . . . is available for your inspection,

upon request,” S. App. 101, and he concedes that he did not

ask for access before trial. 8 Second, Shah requested the

continuance at the start of trial without providing any

explanation for the late request and despite receiving other

continuances. Cf. United States v. Irizarry, 341 F.3d 273, 305-

06 (3d Cir. 2003) (denying continuance for discovery

requested two weeks before trial despite recent superseding

indictment). Therefore, the District Court did not abuse its

discretion by denying the requested continuance. 9

8

To the extent Shah argues his counsel was ineffective

in not requesting his patient files earlier, such a claim is

generally not cognizable on direct appeal. United States v.

Givan, 320 F.3d 452, 464 (3d Cir. 2003).

9

Moreover, Shah has not shown that he suffered any

prejudice from the lack of further discovery. Although he

asserts that his patient files would reveal other symptoms that

could support angina diagnoses, trial testimony showed that his

files contained false information, he revised patient files before

insurance reviews to “make them . . . sound better,” App. 327,

and he regularly recorded angina diagnoses regardless of

whether the patient expressed chest pain—the defining

characteristic of angina.

13

3 10

The District Court properly denied Shah’s motion for a

judgment of acquittal on Count Two. Count Two charged Shah

with health care fraud by knowingly billing insurers for ECP

treatments using both the G0166 code and companion

treatment codes already encompassed by G0166. To convict

Shah of health care fraud, the Government was required to

prove, among other things, that Shah acted with the intent to

defraud the insurers who provided medical benefits. United

States ex rel. Doe v. Heart Solution, P.C., 923 F.3d 308, 319

(3d Cir. 2019); 18 U.S.C. § 1347.

Viewing the record in the light most favorable to the

Government, a reasonable jury could have found Shah acted

with intent to defraud. First, the evidence showed that Shah

knew that the G0166 code was not to be billed with codes for

component treatments on the same day. Second, the evidence

demonstrated that Shah disregarded the billing rules. Over his

third-party billing service’s objection, Shah directed the

service to continue billing “[a]ll four codes.” App. 836.

Although Shah argues that he eventually stopped billing

multiple codes—and told one insurer in 2011 that he instructed

his billing department to bill only G0166—a reasonable jury

could find that, by instructing the third-party billing service to

continue billing using both code G0166 and the codes for the

10

We exercise plenary review over an order denying a

motion for judgment of acquittal, United States v. Smith, 294

F.3d 473, 477 (3d Cir. 2002), and view the record “in the light

most favorable to the prosecution,” United States v. Garner,

961 F.3d 264, 274 (3d Cir.), cert. denied, 141 S. Ct. 932 (2020).

14

companion treatments despite being told he should not, Shah

acted with intent to defraud insurers.

Because a reasonable jury could have found Shah knew

the billing requirements for ECP treatment and deliberately

ignored them, the District Court properly denied his motion for

judgment of acquittal on Count Two.

B 11

Shah also argues that his sentence is both procedurally

and substantively unreasonable.

1 12

In reviewing the procedural reasonableness of a district

court’s sentence, we focus on, among other things, whether the

district court correctly calculated the applicable Guidelines

range. United States v. Merced, 603 F.3d 203, 215 (3d Cir.

11

“We review the factual determinations underlying a

sentence for clear error.” United States v. Douglas, 885 F.3d

145, 150 n.3 (3d Cir. 2018); see also United States v. Brennan,

326 F.3d 176, 194 (3d Cir. 2003) (reviewing loss calculation

for clear error).

12

A district court “need only make a reasonable estimate

of the loss,” based on available information in the record,

United States v. Ali, 508 F.3d 136, 145 (3d Cir. 2007) (quoting

U.S.S.G. § 2B1.1 cmt. 3(C)), and it “need not reach a precise

figure,” United States v. Tupone, 442 F.3d 145, 156 (3d Cir.

2006). “[T]he government bears the burden of establishing, by

a preponderance of the evidence, the amount of loss.” United

States v. Fumo, 655 F.3d 288, 310 (3d Cir. 2011).

15

2010). Shah disputes the District Court’s loss calculation,

which triggered a sixteen-level increase to his base offense

level under U.S.S.G. § 2B1.1(b)(1)(I).

At the sentencing hearing, Special Agent Riordan

testified that she examined insurers’ data for claims involving

ECP code G0166 together with the codes for the companion

treatments on the same day. Riordan totaled the average

amounts reimbursed by each insurer and endorsed a 50%

reduction of that amount. Given evidence suggesting that no

ECP charges were legitimate, 13 Riordan testified that the 50%

reduction yielded a “conservative” estimate. App. 1469-70.

The resulting loss calculation was $2,959,550.00, with

$1,296,502.00 coming from Medicare and Medicaid plans.

Shah’s challenge to the loss calculation method fails.

First, the average reimbursements were based on the insurance

claims data, and not Shah’s patient files as he contends.

Relying on the claims data was appropriate here given the

evidence that Shah’s patient files contained false information.

Second, witness testimony about Shah’s billing practices

support the “reasonable estimate” of loss from Shah’s health

care fraud scheme. United States v. Kolodesh, 787 F.3d 224,

239-40 (3d Cir. 2015). Shah instructed his third-party biller to

13

Indeed, as the District Court observed in its discussion

of the 50% reduction, “the vast majority of the submitted

claims under consideration were fraudulent” because any of

the following factors were present: (1) patient without a

qualifying condition; (2) records “fraudulently

created . . . after-the-fact;” (3) ECP treatment administered

when a physician was not present; or (4) billing of unbundled

codes without justification. App. 48-49.

16

continue billing “[a]ll four codes” despite insurers’ warnings

against such billing. App. 836. In addition, insurers notified

Shah that he improperly submitted unbundled bills that were

not substantiated by medical necessity. Third, treating 50% of

Shah’s ECP billing as legitimate is generous to Shah given the

“extensive and pervasive” nature of his scheme. See United

States v. Hebron, 684 F.3d 554, 563 (5th Cir. 2012). Fourth,

and relatedly, estimation was the only means to calculate the

loss. Shah’s records contained fraudulent information. Thus,

they did not provide a reliable basis to determine if any of the

ECP treatments were medically necessary. See id. (affirming

loss calculation because the defendant “should not reap the

benefits of a lower sentence because of his ability to defraud

the government to such an extent that an accurate loss

calculation is not possible”); United States v. Miell, 661 F.3d

995, 1001 (8th Cir. 2011) (affirming loss calculation that

subtracted average amount defendant returned—rather than

actual amount, due to practicality of reviewing over 2,500

files—because proceeds “were systemically tainted with

fraud” such that “it was difficult, if not impossible, to give [the

defendant] any credit for parts of his claims that might have

been legitimate”). 14

14

Shah cites United States v. Jones, 641 F.3d 706 (6th

Cir. 2011), but that case is distinguishable. Among other

things, the Jones court called the extrapolation method used

there “into question” because it appeared the district court

“[did not] even realize[] that . . . fifty-four [of over 250] files

were missing and . . . did not make a finding as to whether they

were fraudulent.” Jones, 641 F.3d at 712. Here, in contrast,

the District Court found that because Shah would “fraudulently

create [patient] files after-the-fact and solely for the benefit of

17

For these reasons, Shah’s procedural challenge fails.

2

Shah’s sentence was also substantively reasonable as

we cannot say that “no reasonable sentencing court would have

imposed the same sentence on that particular defendant for the

reasons the district court provided.” United States v. Tomko,

562 F.3d 558, 568 (3d Cir. 2009) (en banc). First, the sentence

is within the applicable Guidelines range of 78 to 97 months,

U.S.S.G. § 5A, so we may presume that it is reasonable, Rita

v. United States, 551 U.S. 338, 347 (2007).

Second, considering the totality of the circumstances,

Tomko, 562 F.3d at 567, Shah’s sentence was not greater than

necessary given the seriousness of his offense and the need for

specific deterrence, 18 U.S.C. § 3553(a)(2)(A), (B). As to

seriousness, Shah billed insurers for millions of dollars in ECP

treatments where they were either not medically necessary for

the patient or delivered without the required physician

supervision or both.

As to the need for specific deterrence, Shah twice failed

to appear for his court dates, leading the Court to issue arrest

warrants. His failure to appear as required by court order was

consistent with his flagrant disregard for his obligations to his

patients to provide only medically necessary treatment and to

follow the rules ensuring he was reimbursed for only such

receiving payment,” records that could establish which

treatments were fraudulent likely “did not exist.” App. 47-48.

18

services. His conduct reflects that he did not believe the rules

applied to him.

Because we cannot say that no reasonable sentencing

court would have imposed the same sentence, Shah’s

substantive challenge fails.

III

For the foregoing reasons, we will affirm.

19