“Willfulness, under the AKS, means acting with specific intent to do something the law forbids.”
How later courts described this case
- “Willfulness, under the AKS, means acting with specific intent to do something the law forbids.”
Written by the judges who cited it.
The opinion
Case: 21-10292 Document: 00516915625 Page: 1 Date Filed: 10/02/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 2, 2023
No. 21-10292
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Mrugeshkumar Kumar Shah; Iris Kathleen Forrest;
Douglas Sung Won; Shawn Mark Henry; Michael
Bassem Rimlawi; Wilton McPherson Burt; Jackson
Jacob,
Defendants—Appellants.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:16-CR-516-14
Before Richman, Chief Judge, and Wiener and Willett, Circuit
Judges.
Priscilla Richman, Chief Judge:
Seven codefendants appeal their various convictions stemming from
a multi-million-dollar healthcare conspiracy involving surgery-referral
kickbacks at Forest Park Medical Center in Dallas, Texas. They challenge
convictions under the Anti-Kickback Statute (which will sometimes be
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No. 21-10292
referred to as AKS), 1 the Travel Act,2 and for money laundering. 3 Finding
no reversible error, we affirm the district court’s judgment.
I
The seven codefendants on appeal were all convicted of engaging in a
$40 million healthcare conspiracy in Dallas, Texas. Our initial discussion of
the facts is limited to the general outline of the conspiracy: its origins, its
major players, and its operation. We reserve a more detailed discussion of
the evidence against the defendants for the sections of this opinion that deal
with those facts more directly. 4
There are three main sets of actors in this case: the staff at Forest Park
Medical Center (Forest Park or the hospital), surgeons Forest Park paid to
perform surgeries at its hospital, and pass-through entities affiliated with
both Forest Park and the surgeons. The defendants in this case are, with
three exceptions, the surgeons whom Forest Park paid to direct surgeries to
the hospital—Won, Rimlawi, Shah, and Henry. One exception is Forrest—
she is a nurse. Another is Jacob—he ran Adelaide Business Solutions
(Adelaide), a pass-through entity. The other is Burt—he was part of the
hospital’s staff.
But this case begins with three men who are not parties to the current
appeal—Alan Beauchamp, Wade Barker, and Richard Toussaint. They
decided to open a hospital together—Forest Park. Forest Park was to be an
“out-of-network” hospital, meaning that it was not affiliated with any
1
42 U.S.C. § 1320a-7b.
2
18 U.S.C. § 1952.
3
18 U.S.C. § 1956(a)(1)(B)(1).
4
See infra Part II.
2
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No. 21-10292
insurance carrier and any surgeries performed there would be considered
out-of-network for the patients. They planned for their hospital to be out-of-
network because insurers were reimbursing out-of-network facilities at very
high rates. But they faced a difficulty: how to convince patients to pay out-
of-network costs when they could have the surgery performed at an in-
network facility? Their answer: pay surgeons to refer patients to Forest Park
and then waive the patient’s financial responsibility beyond what the surgery
would cost in-network.
In creating such a structure, the Government asserts that Forest Park
engaged in illegal conduct. First, the hospital was “buying surgeries,” i.e., it
paid surgeons to perform a surgery at the hospital. It is well established that
buying surgeries is illegal, as many witnesses testified. 5 Second, the
hospital’s formal internal policy was not to waive patient financial
responsibility. So, the Government argues, Forest Park’s upper management
had to cover its tracks. It did this by creating or partnering with a number of
pass-through entities to create sham marketing or consulting contracts with
the surgeons. One such entity was Adelaide, overseen by defendant Jacob.
Another was Unique, which was operated by Beauchamp, Andrea Smith (a
longtime aid to Beauchamp), and defendant Burt.
The Government argued that the conspiracy was as follows: The
hospital and surgeons reached an agreement whereby the hospital would pay
the surgeons to refer patients to Forest Park; the hospital would then contract
with a pass-through entity for sham marketing or consulting services; the
5
See Tex. Occ. Code § 102.001(a) (criminalizing accepting money for patient
referrals); Tex. Penal Code § 32.43 (same); see also, e.g., Calif. Bus. & Prof.
Code § 650(a) (California statute holding unlawful receiving money for patient referrals);
Fla. Stat. § 455.227(n) (similar Florida statute); N.Y. Educ. Law § 6530 (similar
New York statute).
3
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surgeons would contract with the same pass-through entity for sham
marketing or consulting services as well; the surgeons would then direct their
patients to Forest Park for surgery; Forest Park would obtain
reimbursements from insurers at the out-of-network rate; the hospital would
pay the pass-through entities some of those profits; and then the pass-
through entities would pass along those profits to the surgeons for marketing
and consulting services the surgeons never rendered.
Although Forest Park employed legitimate hospital staff, it also
employed a number of individuals in roles relating directly to the conspiracy.
Andrea Smith’s role was to keep track of all the surgeries that the hospital
“bought” and make sure that the surgeons were reimbursed according to the
rates they had agreed to. She created detailed spreadsheets to keep track of
this, and those spreadsheets became a major part of the Government’s case.
Burt’s job was to assist Beauchamp in recruiting surgeons and patients.
Along with Beauchamp and Smith, Burt formed an organization called
Unique that was a pass-through entity. Eventually the controller for Forest
Park began to resist doing business with Unique. The hospital’s leadership
team decided to create an outside group.
Jacob owned a radiology company near the hospital. He and
Beauchamp were friends. Beauchamp approached Jacob to join the
enterprise, and Jacob agreed. Jacob formed Adelaide, which assumed the role
of the pass-through entity formerly occupied by Unique. Forest Park paid
Adelaide monthly for services that Adelaide never rendered to the hospital.
Instead, Beauchamp sent a monthly check to Adelaide with specific
instructions as to how Jacob was to pay the surgeons he “contracted” with
for marketing or consulting services. Often, the surgeons would complain
they had not been reimbursed at their agreed-upon rate.
4
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Won, Rimlawi, Shah, and Henry are surgeons who contracted with a
pass-through entity for marketing or consulting services and who directed
some of their patients to Forest Park. Most of these patients had private
insurance, but some of them were covered by a federal healthcare program
including Medicare, TRICARE, or DOL/FECA. Forest Park then paid the
surgeons with checks issued through the pass-through entity. Forrest is a
nurse who was involved in the scheme, who at the time persuaded patients
to have their surgery performed at Forest Park.
The district court’s description is apt: “[O]nce you separate all the
‘noise,’ the trial involved a single pyramid conspiracy with a number of
participants. . . . Attempts were made to paper their dishonest conduct—to
hide behind sham contracts—which ultimately proved unsuccessful.”
The defendants who are parties to this appeal were tried together.
The jury convicted all but Burt for engaging in a conspiracy that violated the
Anti-Kickback Statute. 6 The jury convicted Jacob, Shah, Burt, Rimlawi, and
Forrest of substantive violations of that statute. It convicted Henry and Burt
on substantive violations of the Travel Act 7 as well as conspiring to commit
money laundering. The jury acquitted a surgeon who is not a party to this
appeal and failed to reach a verdict as to another. Shah was sentenced to 42
months of imprisonment; Rimlawi was sentenced to 90 months; Jacob to 96
months; Burt to 150 months; Henry to 90 months; Won to 60 months; and
Forrest to 36 months. The defendants timely appealed.
The defendants raise many of the same issues on appeal, often
adopting each other’s arguments. We have organized this opinion into
eighteen Parts following this one. This reflects the lowest combined count of
6
42 U.S.C. § 1320a-7b.
7
18 U.S.C. § 1952.
5
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the defendants’ various issues. In each part, we address the various
arguments each defendant makes regarding a particular issue, including
closely related sub-issues where appropriate. We begin with the defendants’
sufficiency of the evidence challenges. Then we address the remaining
issues: whether the Texas Commercial Bribery Statute 8 is a proper predicate
offense to a violation of the Travel Act; potential Speedy Trial Act 9 and
Court Reporter Act 10 violations; purported violations of Burt’s proffer
agreement and any Bruton 11 error stemming therefrom; various challenges to
district court evidentiary rulings, jury instructions, and prosecutor
arguments; and finally, challenges to sentencing and restitution.
II
Six defendants (all but Burt) challenge the sufficiency of the evidence
supporting their respective convictions of conspiring to violate the AKS.
The AKS provides, in relevant part, that:
(1) [w]hoever knowingly and willfully solicits or receives any
remuneration (including any kickback, bribe, or rebate) directly
or indirectly, overtly or covertly, in cash or in kind . . . in return
for referring an individual to a person for furnishing . . . of any
item or service for which payment may be made in whole or in
part under a Federal health care program, . . . shall be guilty of
a felony . . .
8
Tex. Penal Code § 32.43.
9
18 U.S.C. §§ 3161-74.
10
28 U.S.C. § 753.
11
391 U.S. 123 (1968).
6
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(2) [w]hoever knowingly and willfully offers or pays any [such]
remuneration . . . to induce [such a referral] . . . shall be guilty
of a felony. 12
These six defendants were convicted of engaging in a conspiracy to
violate the AKS. To prove a conspiracy, the prosecutors had to show: (1) an
agreement between two or more persons to pursue an unlawful objective;
(2) that the defendant knew of the unlawful objective and voluntarily joined
the conspiracy; and (3) an overt act done by one or more members of the
conspiracy in furtherance of the conspiracy’s objective. 13 The degree of
criminal intent necessary to sustain a conviction of conspiracy is the same as
to sustain a conviction of the underlying offense. 14 To prove a violation of
the AKS, the Government must prove that the defendant acted willfully, that
is, “with the specific intent to do something the law forbids” 15 or “with bad
purpose either to disobey or disregard the law.” 16
We review sufficiency of the evidence challenges de novo, but we
remain “highly deferential to the verdict.” 17 “[T]he relevant question is
whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements
12
42 U.S.C. § 1320a-7b(b)(1), (2).
13
See United States v. Njoku, 737 F.3d 55, 63-64 (5th Cir. 2013) (citing United States
v. Mauskar, 557 F.3d 219, 229 (5th Cir. 2009)).
14
Id. at 64 (quoting United States v. Peterson, 244 F.3d 385, 389 (5th Cir. 2001)).
15
Id. (quoting United States v. Garcia, 762 F.2d 1222, 1224 (5th Cir. 1985)).
16
Id. at 72.
17
United States v. Moreno-Gonzalez, 662 F.3d 369, 372 (5th Cir. 2011) (quoting
United States v. Harris, 293 F.3d 863, 869 (5th Cir. 2002)).
7
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of the crime beyond a reasonable doubt.” 18 “We will not second guess the
jury in its choice of which witnesses to believe.” 19
A. Won
Won argues that there was insufficient evidence to prove that he
agreed to violate the AKS and that he willfully sent federal patients to Forest
Park—arguing that the government had to prove that he knew the patients
he sent were federally insured. The Government contends that Won
misconstrues the AKS and that the Government did not need to prove that
Won knew his patients were federally insured.
1
First, and as an apparent matter of first impression, this court must
decide whether a conviction under the AKS requires the defendant to have
knowledge that payment for the surgeries he referred “may be made in whole
or in part under a Federal healthcare program.” 20 The Government argues
that the “Federal healthcare reference” in the statute is simply the hook
18
Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
19
United States v. Zuniga, 18 F.3d 1254, 1260 (5th Cir. 1994).
20
42 U.S.C. § 1320a-7b(b)(1). The AKS provides, in pertinent part:
(b) Illegal remunerations
(1) Whoever knowingly and willfully solicits or receives any remuneration
(including any kickback, bribe, or rebate) directly or indirectly, overtly or
covertly, in cash or in kind--
(A) in return for referring an individual to a person for the furnishing or
arranging for the furnishing of any item or service for which payment may
be made in whole or in part under a Federal health care program,
....
shall be guilty of a felony and upon conviction thereof, shall be fined not
more than $100,000 or imprisoned for not more than 10 years, or both.
8
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upon which jurisdiction is based and that, under well-settled precedent, it
need not prove scienter as to the jurisdictional element. Jurisdictional
elements “simply ensure that the Federal Government has the constitutional
authority to regulate the defendant’s conduct.” 21 The Government is not
required to prove mens rea for those elements. 22
Won argues that the federal healthcare program provision is not a
jurisdictional hook, but a substantive element of the crime for which the
Government had to prove intent. A Maryland district court has addressed
this question and decided that the federal healthcare program requirement is
a jurisdictional hook. 23 The Eleventh Circuit has addressed the question as
well, and that court also appeared to consider the requirement of a federal
healthcare program to be jurisdictional. 24 In Ruan v. United States, 25 the
Supreme Court vacated the Eleventh Circuit’s decision on other grounds.
The Supreme Court did, however, discuss the scienter requirement in a
statute. The Court concluded that “knowingly” “modifies not only the
words directly following it, but also those other statutory terms that ‘separate
wrongful from innocent acts.’” 26 We note that as a general proposition,
21
Rehaif v. United States, 139 S. Ct. 2191, 2196 (2019).
22
See id.
23
United States v. Malik, No. 16-0324, 2018 WL 3036479, at *3 (D. Md. June 18,
2018).
24
United States v. Ruan, 966 F.3d 1101, 1144-45 (11th Cir. 2020), vacated on other
grounds, Ruan v. United States, 142 S. Ct. 2370 (2022) (explaining that “[i]n determining
whether federal jurisdiction exists, the court examines the sufficiency of the evidence
offered by the government” and that “[t]he relevant inquiry in making this determination
is whether a reasonable jury could have found the jurisdictional element to have been
satisfied beyond a reasonable doubt”).
25
142 S. Ct. 2370 (2022).
26
Id. at 2377 (quoting Rehaif, 139 S. Ct. at 2197).
9
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“buying” surgeries is not “innocent” conduct. That conduct is illegal under
a number of states’ laws, and no party disputes that. 27
Nevertheless, in Ruan the Court said that “knowingly” also
“modifies . . . the words directly following it.” 28 Here, “Federal healthcare
programs” follows “knowingly.” At the very least, the federal healthcare
reference in this statute clarifies to which “item[s] or service[s]” the statute
applies. The question remains, does “knowingly” apply to “item[s] or
service[s].”
We think that Won overlooks a key clause in the AKS. The AKS
requires only that payment “may” be made by a federal healthcare
program. 29 In United States v. Miles 30 we characterized that as meaning only
that “an item or service . . . could be paid for by a federal health care
program.” 31 Further support for this proposition is found in the AKS itself,
which provides that “a person need not have actual knowledge of this section
or specific intent to commit a violation of this section.” 32 So, contrary to
Won’s argument, the Government did not have to show he knowingly
27
See, e.g., Tex. Occ. Code § 102.001(a) (criminalizing the acceptance of
money for patient referrals); Tex. Penal Code § 32.43 (same); see also, e.g., Cal. Bus.
& Prof. Code § 650(a) (California statute holding unlawful receiving money for patient
referrals); Fla. Stat. § 455.227(n) (listing as grounds for discipline, among other things,
“[e]xercising influence on the patient or client for the purpose of financial gain of the
licensee or a third party”); N.Y. Educ. Law § 6530 (defining professional misconduct
as, among other things, “[d]irectly or indirectly offering, giving, soliciting, or receiving or
agreeing to receive, any fee or other consideration to or from a third party for the referral
of a patient or in connection with the performance of professional services”).
28
Ruan, 142 S. Ct. at 2377.
29
42 U.S.C. § 1320a-7b(b)(1).
30
360 F.3d 472 (5th Cir. 2004).
31
Id. at 480 (emphasis added).
32
42 U.S.C. § 1320a-7b(h).
10
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referred federally insured patients for remuneration. All it had to show was
that he knowingly agreed to accept remuneration for referring patients that
could be federally insured. The Government met that burden. To the extent
defendants argue they cannot be guilty because they intentionally avoided
federally insured patients, they admit that they had agreed to accept
remuneration for referring patients for services that could be paid for through
a federal healthcare program. The Government did not need to prove Won
knew he was referring federally insured patients.
2
The Government did need to prove that at least some patients were
federally insured or that payment “may” have been made by a federal
healthcare program—to establish federal jurisdiction. 33 The Government
points to evidence that Won sent a TRICARE patient to Forest Park as well
as tracking sheets showing Won received credit for Medicare patients. Won
disputes both pieces of evidence. He argues that the TRICARE patient had
TRICARE only as a backup and that Aetna actually paid for her surgery. He
also argues that the tracking sheets showing Medicare patients were never
referenced at trial.
Even assuming that no TRICARE money changed hands, Won cannot
nullify the Medicare evidence by claiming that it was never discussed at trial.
The inquiry is whether a rational trier of fact could have found for the
prosecution; we review the evidence, not the prosecution’s argument. 34 The
evidence shows that Won referred some federally insured patients to Forest
33
See United States v. Ruan, 966 F.3d 1101, 1144-46 (11th Cir. 2020) (vacating AKS
conspiracy conviction because there was no federal health care program associated with the
medical facility), vacated on other grounds, Ruan v. United States, 142 S. Ct. 2370 (2022).
34
See United States v. Moreno-Gonzalez, 662 F.3d 369, 372 (5th Cir. 2011).
11
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Park. Further, it shows that Won “want[ed] to discuss [with Beauchamp]
the amount [his] surgeries [we]re going to be billed for and [the]
expect[ed] . . . reimburse[ment].” The evidence also establishes that
kickbacks were widely known to be illegal. A reasonable juror could have
found an agreement between Won and Beauchamp to refer patients to Forest
Park for remuneration, knowing that services to some of those patients might
be paid, in whole or in part, under a federally funded healthcare program.
This would satisfy the first two prongs of a conspiracy conviction. 35 Finally,
the tracking sheets provide evidence that the referrals actually happened,
satisfying the overt act element of a conspiracy conviction. 36
B. Rimlawi
Rimlawi challenges the sufficiency of the evidence to support his
conspiracy conviction for violations of the AKS on the grounds that there was
no evidence that he received kickbacks for his four federal patients. Rimlawi
argues that the evidence submitted to the jury established that the marketing
agreements paid money only for “out-of-network” surgeries. He attempts
to define “out-of-network” as excluding federal-pay surgeries. Under that
theory, he argues, the jury could not infer that he received money for
federally insured patients.
At least on paper, the agreements sought to avoid federal-pay patients,
but, regardless of what the paper agreement said, the question is whether the
jury had enough evidence in front of it to infer that Rimlawi knowingly
referred patients who may have been federal-pay patients. The Government
35
See United States v. Njoku, 737 F.3d 55, 63-64 (5th Cir. 2013); see also United States
v. Hamilton, 37 F.4th 246, 256-57 (5th Cir. 2022) (finding willfulness to conspire when the
defendant testified that she knew kickbacks were illegal and had discussed them with her
coconspirators).
36
See Njoku, 737 F.3d at 64-65; 42 U.S.C. § 1320a-7b(b)(1), (2).
12
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argues that the tracking sheets, emails, and testimony of Beauchamp provide
sufficient evidence to find that Rimlawi knowingly accepted payments “in
return for referring an individual to a person for furnishing . . . of any item or
service for which payment may be made in whole or in part under a Federal
healthcare program.” Viewed in the light most favorable to the verdict, they
do. 37 Beauchamp, for example, testified that Forest Park paid for federally
insured patients. Rimlawi admits to having federally insured patients.
Smith’s kickback tracking sheets show that Rimlawi was credited with
DOL/FECA insured patients who are federal pay, and Rimlawi does not
contest that DOL/FECA patients are federal pay. A jury could reasonably
infer that Rimlawi received kickbacks for those patients and knew that
payments might be made for at least some patients he referred by a federal
healthcare program.
C. Henry
Henry essentially repeats Won’s and Rimlawi’s arguments. He
claims that the jury did not have sufficient evidence to find that he accepted
kickbacks for federal patients and that there was insufficient evidence to
prove that he knew his DOL patients were federally insured. As to the
former, Henry’s argument fails for the same reason as Rimlawi’s. There is
evidence in the record that Henry sent DOL/FECA patients to Forest Park
and received remuneration. Henry admits this.
Henry’s second argument is stronger. He claims that in order for his
conspiracy conviction to stand, the Government needed to prove that he
knew his DOL patients were federally insured for purposes of the AKS. But
this argument fails for the same reason that Won’s argument fails. The
37
See Moreno-Gonzalez, 662 F.3d at 372 (holding that conflicting evidence must be
resolved in favor of the verdict).
13
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Government did not need to prove that the defendants knew their conduct
targeted federal healthcare programs. It needed to prove that the defendants
knew services to some patients they referred might be paid, in whole or in
part, by a federal healthcare program. Additionally, as already noted, the
AKS itself provides that “a person need not have actual knowledge of this
section or specific intent to commit a violation of this section.” 38
Henry’s reliance on this court’s holding in United States v. Anderson 39
is misplaced. Henry cites that case for the proposition that to prove
conspiracy to violate the AKS, the Government needed to prove that he
entered the conspiracy with “the specific intent that the underlying crime be
committed by some member of the conspiracy” and that the specific intent
included the intent to send patients he knew to be federally insured to Forest
Park. Anderson is inapposite. It is not an AKS case. 40
Finally, Henry admits to sending DOL/FECA patients to Forest Park.
His only argument is that he did not know they were federally insured for
purposes of the AKS. But there is sufficient evidence in the record that,
because he was a licensed DOL/FECA provider, Henry knew that FECA was
a federal program. Even if the Government were required to prove that
Henry knew he was sending federal patients to Forest Park and that
DOL/FECA was a federal program, there is sufficient evidence supporting
both.
38
42 U.S.C. § 1320a-7b(h).
39
932 F.3d 344 (5th Cir. 2019).
40
See id. at 352.
14
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D. Jacob
Jacob argues that his conspiracy conviction cannot stand because he
did not knowingly join the conspiracy. He claims that he had no knowledge
that the payments Forest Park made to Adelaide were for referrals.
Jacob’s argument fails under the weight of evidence in the record from
which the jury could conclude that he knew exactly what was transpiring.
Beauchamp testified that Jacob formed Adelaide specifically to be a pass-
through entity for his referral program. Jacob acknowledges that paid patient
referrals are illegal. Smith testified that she believed Jacob knew that the
payments were for referrals. There are numerous emails corroborating this
testimony.
Jacob has no response to this evidence other than a claim that it is
“speculative and inferential,” but that does not mean that there is not
sufficient evidence for the jury to find him guilty. Further, he relies on Forest
Park’s representation to him that the money was simply for marketing, as
well as its representation to him that such marketing agreements were legal.
This reliance ignores the evidence that Jacob was in on the conspiracy from
the beginning. Forest Park certainly laid a paper trail to cover its tracks, but
“it was within the sole province of the jury as the fact finder to . . . choose
among reasonable constructions of evidence.” 41
E. Shah
Shah’s argument fails for the same reason as the other surgeons’
(Won, Rimlawi, and Henry). Shah admits that his payments from Adelaide
were for patient referrals. His only argument is that (1) there is no evidence
41
United States v. Zuniga, 18 F.3d 1254, 1260 (5th Cir. 1994) (citing United States
v. Garza, 990 F.2d 171 (5th Cir. 1993)).
15
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that he knew accepting those payments was unlawful, and that (2) even if he
did, there is no evidence that he knew DOL was subject to the AKS.
As to his first argument, there is sufficient of evidence in the record
from which a juror could infer that Shah, as a medical professional, knew
taking money for patient referrals was unlawful. During cross-examination,
Shah’s codefendant Rimlawi agreed that “taking money for patients is
wrong” and testified, “I know I can’t take money for patients.” Several
other witnesses testified likewise. As to his second argument, it fails for the
same reasons Won’s and Henry’s argument fails. As noted in Part II(C)
(Henry), even if the government had to prove that Shah knew his patients
were federally insured and that DOL/FECA fell under the AKS umbrella,
there is sufficient evidence in the record from which the jury could infer both.
F. Forrest
Forrest claims that there was insufficient evidence to sustain her
conviction because nothing proved that she knew her involvement was
unlawful. She claims that she thought the money was for preauthorization
services. But the evidence supports the opposite inference. For one, in an
email exchange between Forrest and Smith, Forrest asks, “How do the
commissions work? I am on commission for a percentage of the surgeries
that I send over. (just mine).” Smith replied that that was correct and
requested that Forrest send over “an invoice for $10k.” At trial, Smith
testified that Forrest was being paid for the referrals. Smith was asked,
“[W]as it a service [Forrest] was paid for?” She responded, “To me it was
the — the surgeries that were done.” Beauchamp’s testimony further
cements that Forrest knew she was being paid for patient referrals, not
preauthorization services. Beauchamp was asked, “Were you paying Ms.
Forrest for preauthorization services, or were you paying her for surgical
16
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referrals?” He responded, “I was paying her for the surgical referrals, her
surgical referrals.”
Forrest further argues that the AKS does not apply to her because she
is not a physician and she lacked “control over . . . physicians,” but the text
of the statute is not so limited. It applies to “[w]hoever . . . solicits or
receives any remuneration . . . in return for referring an individual.” 42
Forrest has no answer to this. And our caselaw makes clear that the AKS is
not limited to those with “formal authority to effect the desired referral.” 43
It is enough that “remuneration [be] paid with certain illegal ends in mind.” 44
There is sufficient evidence in the record that Forrest was experienced in the
healthcare field and that it was well-known in the healthcare industry that
taking money in exchange for patient referrals was wrong.
III
Next, we turn to the substantive convictions. Jacob, Shah, and Forrest
were convicted of violating the AKS. They challenge the sufficiency of the
evidence supporting their convictions.
A. Jacob
Jacob argues that under the Government’s theory of the case, he was
to be paid 10% of the kickback and that there is insufficient evidence to sustain
his conviction because the checks the Government produced do not
represent the theorized 10% kickback, nor can they be tied to individual
patients. He also argues that he never induced Shah to steer patients to
Forest Park because Shah gave the patients a choice of hospital.
42
42 U.S.C. § 1320a-7b(b)(1).
43
United States v. Shoemaker, 746 F.3d 614, 627-30 (5th Cir. 2014).
44
Id. at 629.
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The Government counters that just because the checks do not equal
10% of the federal reimbursement does not mean they were not bribes. The
Government also points to numerous emails detailing Shah’s complaints that
he was indeed shorted his 10% and that Jacob questioned how accurate the
tracking and payments were. Shah emailed Jacob: “10% was the number told
to me by you and alan [Beauchamp].” Just because the math did not quite
compute does not mean that the checks were not bribes. Based on these
emails, the tracking sheets, and witness testimony from Beauchamp, the jury
could have reasonably inferred that the checks were inducements or
payments for referred patients in violation of the AKS.
Jacob’s argument that the Government produced no evidence that the
checks could be tied to the individual patients fares no better. At a minimum,
the jury could have reasonably concluded that the checks Jacob and Shah
received were for the patients Shah brought in on a monthly basis. There are
numerous emails between the two men that demonstrate this knowledge—
Shah complained to Jacob about being shorted month-to-month. Smith’s
tracking sheets also track referrals and surgeries by month. Beauchamp’s
testimony also established that payment was made on a monthly basis. There
was sufficient evidence from which the jury could conclude that the checks
supporting conviction were for patient referrals.
Finally, Jacob’s contention that Shah never induced patients to go to
Forest Park fails. Several witnesses said that Shah “gave [them] a choice”
of clinic, but they all ended up at Forest Park. The jury chose to believe the
Government over Shah, Jacob, and their witnesses. “We will not second
guess the jury in its choice of which witnesses to believe.” 45
45
Zuniga, 18 F.3d at 1260 (citing United States v. Jones, 839 F.2d 1041, 1047 (5th
Cir. 1988)).
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B. Shah
In challenging the sufficiency of the evidence for the substantive AKS
counts, Shah reiterates his arguments as to the lack of criminal intent for the
conspiracy count. He also adopts by reference Jacob’s arguments as to the
sufficiency of the evidence for the substantive AKS counts. Shah’s
arguments fail for the same reasons as those discussed supra Part II(E) and
Part III(A).
C. Forrest
Forrest’s arguments also fail. She reiterates her argument discussed
above in Part II(F), contending that the fact she was not the patient’s doctor
somehow excuses any inducement, but that argument fails for the reasons
stated above. She also argues, like Jacob, that the Government could not tie
the checks to her conduct. But the tracking sheets of Smith clearly tie Forrest
to the patient, month of surgery, and check. The jury had sufficient evidence
on which to convict.
IV
Burt and Henry challenge their Travel Act convictions, but there is
enough evidence to convict each of them.
The Travel Act prohibits the use of a “facility in
interstate . . . commerce with [the] intent to . . . distribute the proceeds of
an[] unlawful activity; or . . . otherwise . . . facilitate . . . an[] unlawful
activity.” 46 To convict, the Government must prove that the defendant used
facilities of interstate commerce with the specific intent to engage in or
facilitate an unlawful activity in furtherance of a criminal enterprise. 47 The
46
18 U.S.C. § 1952(a).
47
See United States v. Roberson, 6 F.3d 1088, 1094 (5th Cir. 1993).
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Supreme Court long ago recognized that the unlawful activity that predicates
a Travel Act conviction may be commercial bribery in violation of a state
statute, and it even cited the Texas statute at issue here as an example. 48
Further, this court has long held that a state statute serves merely to define
the “unlawful conduct” required in the Travel Act and that there “is no need
to prove a violation of the state law as an essential element of the federal
crime.” 49
The state law at issue here is the Texas Commercial Bribery Statute
(TCBS). The statute provides that it is a state felony for a physician to
“intentionally or knowingly solicit[], accept[], or agree[] to accept any
benefit from another person on agreement or understanding that the benefit
will influence the conduct of the [physician] in relation to the affairs of his
beneficiary.” 50
A. Burt
Burt challenges his conviction on the ground that he was convicted on
an aiding-and-abetting theory but that the physician he aided was acquitted.
He argues that the TCBS would not support his conviction. He asserts there
was no “unlawful conduct” for purposes of the Travel Act. The
Government contends that the ultimate acquittal of the principal does not
matter under Texas law and that federal law does not draw a distinction
between principals and aiders and abettors.
48
Perrin v. United States, 444 U.S. 37, 44 n.10, 50 (1979).
49
United States v. Prince, 515 F.2d 564, 566 (5th Cir. 1975).
50
Tex. Penal Code § 32.43.
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The Government is correct that federal law draws no distinction
between principals and aiders or abettors. 51 But, more importantly, the
Government is correct about the TCBS. Burt could still be found guilty of a
violation of the TCBS even if his fiduciary physician was acquitted. This is
because the TCBS criminalizes not only the fiduciary’s taking of the bribe,
but also “offer[ing], confer[ring], or agree[ing] to confer any benefit the
acceptance of which is an offense under [the statute].” 52 The Government
produced evidence that Burt handled bribe money and at least offered it to if
not conferred it on the physicians in question. 53 Because of this unlawful
conduct, the fact that a physician was acquitted means nothing for purposes
of Burt’s Travel Act conviction.
Burt relies on United States v. Armstrong 54 for the proposition that he
cannot be held liable when the principal was acquitted. But Armstrong is
inapposite because the court there held that there was insufficient evidence
to support the conviction, not that the defendant could not be convicted if
the principal was acquitted. 55 Here, it does not matter if the physician was
acquitted because there could still be sufficient evidence in the record that
Burt “offer[ed]” a benefit in violation of the TCBS regardless of whether any
physician accepted it. 56
51
18 U.S.C. § 2 (“Whoever commits an offense against the United States or aids
[or] abets . . . its commission, is punishable as a principal.”).
52
Tex. Penal Code § 32.43(c).
53
See generally infra Part IX (Burt proffer issue detailing his knowledge from the
beginning of the conspiracy of doctor kickback payments).
54
550 F.3d 382 (5th Cir. 2008).
55
See id. at 394.
56
See Tex. Penal Code § 32.43(c).
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B. Henry
Henry was convicted of a violation of the Travel Act because
commercial-bribery proceeds were moved via the internet from Forest Park
into a bank account controlled by a pass-through entity and from there to
Henry. He argues that he cannot be convicted because the Government
failed to prove that a facility of interstate commerce was used or that Henry
used such a facility. Specifically, he argues that the interstate passage of a
check is too tangential to confer federal jurisdiction. He also argues that the
Government could not prove any subsequent overt act on his part.57
The Government responds that Henry relies far too heavily on
inapposite, pre-internet caselaw and that it is now well established that the
passage of a check via the internet is a use of the facilities of interstate
commerce. This is true even for wholly intrastate transfers. 58 The
Government has the better of the two arguments here. This court’s caselaw
is clear that the use of the internet provides the interstate hook necessary for
jurisdiction. 59 Henry’s out-of-circuit cases, predating this court’s more
57
See 18 U.S.C. § 1952(a) (prohibiting the conduct itself and “thereafter
perform[ing] or attempt[ing] to perform” the conduct); United States v. Bams, 858 F.3d
937, 946 (5th Cir. 2017) (explaining that a Travel Act violation is not complete until the
defendant “commit[s] a knowing and willful act in furtherance of th[e] intent [to promote
bribery]” after using the facility of interstate commerce).
58
See, e.g., United States v. Marek, 238 F.3d 310, 318-20 (5th Cir. 2001); cf. United
States v. Lopez, 514 U.S. 549, 558 (1995) (“Congress is empowered to regulate and protect
the instrumentalities of interstate commerce, or persons or things in interstate commerce,
even though the threat may come only from intrastate activities.”); United States v.
Heacock, 31 F.3d 249, 255 (5th Cir. 1994) (“[A]ny use of the United States mails in this case
is sufficient to invoke jurisdiction under 18 U.S.C. § 1952.”).
59
See Marek, 238 F.3d at 318-20; United States v. Barlow, 568 F.3d 215, 220 (5th
Cir. 2009) (“In 2009, it is beyond debate that the Internet and email are facilities or means
of interstate commerce.”); United States v. Phea, 755 F.3d 255, 266 (5th Cir. 2014)
(explaining that “telephones, the Internet, and hotels that service interstate travelers are
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recent published decisions, are distinguishable and do not control the
outcome here.
Henry argues there is no evidence that the check traveled via the
internet or that he personally used a facility of interstate commerce. It is
undisputed that $30,000 was credited to Henry’s bank account, but he says
that the bank employee who testified as to the interstate workings of the bank
put forward hearsay when she said the check traveled through Illinois. He
also argues that the Government put on no evidence that Henry had actually
used a facility of interstate commerce.
To the extent that the bank witness’s testimony that the check was
cleared in Illinois was hearsay, it is irrelevant because all that is required
under the Act is the use of an interstate facility—even if the entire transaction
remained within the state. 60 Here, the check was indisputably routed over
computer networks before clearing Henry’s bank account. As to Henry’s
second point, that the Government cannot point to his actual use of interstate
commerce facilities, the Government responds that he “caused the use of
such facilities,” and that specific knowledge about the use of interstate
facilities is “legally irrelevant” because the “words of § 1952 do not require
specific knowledge of the use of interstate facilities.” 61 We have held that
“[t]here is no requirement that the defendant either have knowledge of the
use of interstate facilities or specifically intend to use” them. 62 The jury
all means or facilities of interstate commerce sufficient to establish the requisite interstate
nexus”).
60
See, e.g., Marek, 238 F.3d at 318-20.
61
See United States v. Doolittle, 507 F.2d 1368, 1372 (5th Cir.), aff’d, 518 F.2d 500
(5th Cir. 1975) (en banc) (per curiam).
62
United States v. Edelman, 873 F.2d 791, 794 (5th Cir. 1989) (quoting United States
v. Perrin, 580 F.2d 730, 737 (5th Cir. 1978), aff’d on other grounds, 444 U.S. 37 (1979)).
23
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could have inferred use of interstate facilities by the fact that the funds Henry
received were transferred via electronic routing over computer networks.
Finally, Henry challenges the evidence of a subsequent act. He
contends that the government put forward no proof that he actually cashed
the check. It is undisputed, however, that Henry received a $30,000 check
from the pass-through entity and that the money subsequently was credited
to Henry’s bank account. Henry’s only response is that there was no direct
evidence that he deposited that money. But there is nothing in this court’s
caselaw that requires such strict evidence of a subsequent act, and other
circuits have held that “mere acceptance of the [bribe] money” is a sufficient
overt act. 63 Further, there appears to have been no argument that someone
other than Henry deposited the money. “[T]he relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” 64 In the light most favorable to the prosecution,
the jury could have found that Henry deposited the check. At the very least,
the jury could have found that he accepted the bribe.
V
Next, Henry and Burt challenge their money laundering convictions.
Henry and Burt were charged with conspiracy to commit concealment money
laundering under 18 U.S.C. § 1956(a)(1)(B)(i), and there is sufficient
63
United States v. Arruda, 715 F.2d 671, 682 (1st Cir. 1983); see also United States v.
McNair, 605 F.3d 1152, 1214 (11th Cir. 2010) (explaining that a “conspirator’s receipt of a
benefit can be considered an overt act” and discussing United States v. Anderson, 326 F.3d
1319 (11th Cir. 2003) for further support of that proposition).
64
United States v. Moreno-Gonzalez, 662 F.3d 369, 372 (5th Cir. 2011) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
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evidence to show that they agreed to commit money laundering and that they
joined the agreement knowing its purpose and with the intent to further it. 65
To prove the charge, the Government had to establish that the men
conspired to “conduct a financial transaction with proceeds of a specified
illegal activity . . . with the knowledge that the transaction’s design was to
conceal or disguise the source of the proceeds.” 66 The predicate unlawful
activity that produced illegal proceeds was the Travel Act violation discussed
above. “Conspiracy to commit money laundering does not require that the
defendant know exactly what ‘unlawful activity’ generated the proceeds.” 67
The defendant merely must know “that the transaction involve[d] profits of
unlawful activity.” 68
The Government argues that it produced sufficient evidence that
Henry and Jacob joined with Burt in a conspiracy to commit money
laundering primarily through the testimony of Beauchamp. The
Government points to the testimony of Beauchamp to argue that Burt was a
mastermind of the operation alongside Beauchamp and that he worked with
Jacob and Jacob’s company, Adelaide, to disburse illegal proceeds. The
Government argues that Burt did the same with Henry, also based on
Beauchamp’s testimony. The proceeds came from the Travel Act
convictions, discussed above, which were predicated on bribery under the
TCBS. The men concealed the illegal nature of the proceeds that Forest Park
made on the bought surgeries by passing it through Adelaide and another
65
See United States v. Cessa, 785 F.3d 165, 173 (5th Cir. 2015).
66
Id. at 173-74.
67
United States v. Rivas-Estrada, 761 F. App’x 318, 326 (5th Cir. 2019)
(unpublished) (per curiam).
68
Cessa, 785 F.3d at 174.
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entity, NRG, under consulting and marketing contracts. Beauchamp
testified that the contracts were a sham and that both Burt and Henry knew
it. Henry was instrumental in conceiving the idea of using NRG to funnel the
proceeds to him.
Henry counters that the Government produced insufficient evidence
to prove a Travel Act violation and therefore could not prove a conspiracy to
conceal the proceeds of that unproven Travel Act violation. Similarly, Burt
argues that the evidence was insufficient to prove that the proceeds resulted
from Travel Act violations. The Government responds, citing this court’s
caselaw, that it “[is] not required to prove that [the defendants] actually
committed the substantive offense[] of . . . money laundering” because this
is a conspiracy charge. 69
The Government needed to prove only that the two men entered into
an agreement to commit money laundering, that is, to conceal the illegal
origin of ill-gotten proceeds, 70 and that they intended to carry it out. 71 The
Government has met this burden through the testimony of Beauchamp who
testified as to his relationship with Burt and the dealings between them and
Jacob in creating Adelaide to funnel money to the surgeons under the guise
of sham consulting contracts. Beauchamp testified as to the same with regard
to Henry and NRG. A reasonable juror could have found conspiracy to
commit money laundering on these facts.
69
See United States v. Reed, 908 F.3d 102, 124 (5th Cir. 2018).
70
See Cessa, 785 F.3d at 173-74; 18 U.S.C. § 1956(a)(1)(B)(i).
71
See Cessa, 785 F.3d at 173-74.
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VI
Won and Shah argue that the evidence proved several conspiracies, at
odds with the indictment which alleged only one. Henry also raises this
argument. 72 Forrest adopts this argument by reference. 73 Their argument
fails. This court will affirm a “jury’s finding that the government proved a
single conspiracy unless the evidence and all reasonable inferences, examined
in the light most favorable to the government, would preclude reasonable
jurors from finding a single conspiracy beyond a reasonable doubt.” 74 Even
then, this court will only reverse if it finds prejudice. 75
The surgeons rely on several out-of-circuit cases to establish that the
trial strayed from the indictment. Those cases lean heavily on wheel and
chain models of conspiracies that have been firmly rejected by this circuit. 76
Their argument is that, at most, the Government attempted to establish
several separate conspiracies rather than the one in the indictment. But this
court does not use wheel and chain analogies to determine whether there is a
single conspiracy. Rather, we look to “(1) the existence of a common goal;
(2) the nature of the scheme; and (3) the overlapping of the participants in
72
Henry did not raise the issue below, and although he attempted to adopt his
codefendants’ arguments for acquittal, sufficiency of the evidence challenges are fact
specific and cannot be adopted by reference. See United States v. Solis, 299 F.3d 420, 441
n.46, 444 n.70 (5th Cir. 2002).
73
As with Henry, Forrest failed to raise this issue below, and sufficiency of the
evidence challenges cannot be adopted by reference. See Solis, 299 F.3d at 444 n.70.
74
United States v. Beacham, 774 F.3d 267, 273 (5th Cir. 2014) (internal quotation
marks omitted) (quoting United States v. Simpson, 741 F.3d 539, 548 (5th Cir. 2014)).
75
See United States v. Richerson, 833 F.2d 1147, 1154-55 (5th Cir. 1987).
76
See, e.g., United States v. Elam, 678 F.2d 1234, 1246 (5th Cir. 1982).
27
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the various dealings.” 77 The surgeons fail to engage in this analysis, and even
if they had, they would be unsuccessful.
As to the first prong, this court interprets the “existence of a common
goal” broadly. 78 A common pursuit of personal gain is sufficient, and that
was unquestionably the goal of the conspiracy. 79
Second, as to the nature of the scheme, if the “activities of one aspect
of the scheme are necessary or advantageous to the success of another
aspect” then that supports a finding of a single conspiracy. 80 Here, although
each surgeon was responsible for referring his own patients, his individual
activities were advantageous to the success of the whole enterprise because
Forest Park used that revenue to pay the pass-through entities as well as the
surgeon. Moreover, the surgeons were necessary to “another aspect” of the
conspiracy—unindicted non-surgeon bribe recipients. These non-surgeon
bribe recipients referred patients to the surgeons who then passed them on
to Forest Park. These non-surgeon recipients needed the surgeons to send
those patients to Forest Park in order for the non-surgeons to receive
payment from the conspiracy.
Finally, regarding the overlapping of participants, this court finds that
“[a] single conspiracy exists where a ‘key man’ is involved in and directs
illegal activities, while various combinations of other participants exert
individual efforts toward a common goal.” 81 That is the case here.
77
Beacham, 774 F.3d at 273 (quoting United States v. Mitchell, 484 F.3d 762, 770
(5th Cir. 2007)).
78
See id.
79
Id.
80
Id. at 274 (quoting United States v. Morris, 46 F.3d 410, 415 (5th Cir. 1995)).
81
United States v. Richerson, 833 F.2d 1147, 1154 (5th Cir. 1987).
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Beauchamp, Toussaint, and Barker were the “key men.” They used Burt
and Jacob to run the day-to-day operations, and they used the surgeons and
Forrest to recruit patients all for the common goal of making money.
In arguing otherwise, the surgeons cite Kotteakos v. United States,82
which involved several separate conspiracies, but Kotteakos is easily
distinguishable. In that case, “[t]here was no drawing of all together in a
single, over-all, comprehensive plan.” 83
Even assuming no rational jury could have found a single conspiracy,
the surgeons fail to show that this error “prejudiced [their] substantial
rights.” 84 Henry and Forrest do not raise this point at all. Won and Shah
address it only briefly and fail to provide any record citations to support the
proposition that “clear, specific, and compelling prejudice” resulted in an
unfair trial. 85 They argue that there was a great disparity in the quantity of
evidence specific to them, but this court has held that quantitative disparities
alone do not prove prejudice. 86
VII
Henry argues that the TCBS is not a valid predicate offense to support
a Travel Act conviction because it has been preempted by the Texas
Solicitation of Patients Act (TSPA). 87 He first raised this argument in his
motion to dismiss the indictment and repeats it on appeal. Henry’s argument
82
328 U.S. 750 (1946).
83
Blumenthal v. United States, 332 U.S. 539, 558-59 (1947) (distinguishing
Kotteakos).
84
See Richerson, 833 F.2d at 1154-55.
85
See United States v. Reed, 908 F.3d 102, 116 (5th Cir. 2018).
86
See United States v. Merida, 765 F.2d 1205, 1219 (5th Cir. 1985).
87
Tex. Occ. Code § 102.001(a).
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is that these two statutes are in pari materia, meaning they “deal with the
same general subject, have the same general purpose, or relate to the same
person or thing or class of persons and things.” 88 According to Henry, the
TSPA, as the more recent of the two, supplants the TCBS. We review this
question of law de novo. 89
The Travel Act “aims to deny those engaged in a criminal business
enterprise access to channels of interstate commerce.” 90 It provides, inter
alia, that “[w]hoever . . . uses . . . any facility in interstate or foreign
commerce, with intent to . . . distribute the proceeds of any unlawful
activity[] or . . . otherwise promote, manage, establish, carry on, or facilitate
the promotion, management, establishment, or carrying on, of any unlawful
activity” may be fined or imprisoned. 91 The Supreme Court, citing the Texas
statute as an example, has recognized that the unlawful activity that
predicates a Travel Act conviction may be commercial bribery in violation of
a state statute. 92 Henry does not contest this; rather, he argues that the
TCBS has been supplanted by the TSPA by way of in pari materia. When
two statutes are in pari materia, Texas law dictates that they should be
harmonized. 93 The laws “should be construed together, and both given
88
Jones v. State, 396 S.W.3d 558, 561 (Tex. Crim. App. 2013) (quoting Azeez v.
State, 248 S.W.3d 182, 191 (Tex. Crim. App. 2008)).
89
See United States v. Clark, 582 F.3d 607, 612 (5th Cir. 2009) (explaining that
facial challenges to the validity of statutes are pure questions of law reviewed de novo).
90
United States v. Roberson, 6 F.3d 1088, 1094 (5th Cir. 1993).
91
18 U.S.C. § 1952(a).
92
Perrin v. United States, 444 U.S. 37, 44 n.10, 50 (1979).
93
See Aldine Indep. Sch. Dist. v. Ogg, 122 S.W.3d 257, 270 (Tex. App.—Houston
[1st Dist.] 2003, no pet.).
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effect, if possible.” 94 It is only when the statutes “irreconcilabl[y] conflict[]”
that “the more specific statute controls.” 95
Henry argues that the two statutes conflict in that the TSPA
incorporates the AKS safe harbor provisions whereas the TCBS does not. 96
In order for the TCBS and TSPA to conflict, conduct unlawful under the
TCBS must fall within a defense provided for in the TSPA. Because the two
statutes criminalize nearly identical conduct, the only way for this to be the
case is if something in the safe harbor provisions incorporated into the TSPA
would prevent conviction that otherwise would be proper under the TCBS. 97
There are twelve exceptions to the AKS found in the safe harbor provision. 98
Henry addresses none of them. Henry has forfeited this argument by failing
to brief it adequately. 99
Even assuming the statutes are in pari materia, Henry cites no
authority for why the latter would supplant the former. As discussed above,
94
Id. (citing Font v. Carr, 867 S.W.2d 873, 881 (Tex. App.—Houston [1st Dist.]
1993, writ dism’d w.o.j.)).
95
See Rodriguez v. State, 879 S.W.2d 283, 285 (Tex. App.—Houston [14th Dist.]
1994, pet. ref’d.).
96
See Tex. Occ. Code § 102.003 (citing 42 U.S.C. § 1320a-7b(b)).
97
Compare Tex. Penal Code § 32.43 (providing that fiduciaries are prohibited
from soliciting or accepting a benefit to influence the affairs of the beneficiary), with Tex.
Occ. Code § 102.001 (prohibiting accepting remuneration for soliciting a patient).
98
42 U.S.C. § 1320a-7b(b)(3).
99
See Rollins v. Home Depot USA, 8 F.4th 393, 397 & n.1 (5th Cir. 2021).
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Texas law requires that the statutes be harmonized if possible. 100 If both
cannot be given effect, then the more specific statute would control. 101
Moreover, the Supreme Court has long recognized that violation of
state commercial bribery statutes is a valid predicate for Travel Act
convictions, 102 and this court has long held that a state statute serves merely
to define the “unlawful conduct” required in the Travel Act. 103 There “is
no need to prove a violation of the state law as an essential element of the
federal crime.” 104 We decline to depart from this long-settled precedent.
VIII
Won argues that the district court erred in denying his motion to
dismiss the indictment for a violation of the Speedy Trial Act (STA). 105 The
district court did not err in denying Won’s motion because Won consented
to a continuance encompassing most of the delay he now challenges.
In May 2017, the parties requested and the court granted an “ends-of-
justice” continuance through January 2018. 106 In November 2017, Judge
Fitzwater (the original judge assigned to this case) announced he was taking
senior status and his intention to transfer this case to another judge. Because
that process would take at least several months to complete, he vacated the
100
See Aldine Indep. Sch. Dist. v. Ogg, 122 S.W.3d 257, 270 (Tex. App.—Houston
[1st Dist.] 2003, no pet.).
101
See Rodriguez v. State, 879 S.W.2d 283, 285 (Tex. App.—Houston [14th Dist.]
1994, pet. ref’d.).
102
Perrin v. United States, 444 U.S. 37, 50 (1979).
103
United States v. Prince, 515 F.2d 564, 566 (5th Cir. 1975).
104
Id.
105
18 U.S.C. §§ 3161(c)(1), 3162(a)(2).
106
See 18 U.S.C. § 3161(h)(7).
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late January 2018 trial date. Won did not object at that time. In late January,
Chief Justice Roberts assigned Judge Zouhary to the case, and again without
any objection from the defendants, Judge Zouhary set trial for early 2019. It
was not until October 2018 that Won objected to any delay.
The STA “‘generally requires a criminal defendant’s trial to start
within 70 days of his indictment or his appearance before a judicial officer,’
whichever date last occurs.” 107 But the STA includes a “long and detailed
list of periods of delay that are excluded” from the 70-day window. 108
Relevant to this appeal, the STA excludes delay resulting from a continuance
on the basis that the ends of justice outweigh the interest of the public and
the defendant in a speedy trial. 109
Won does not appear to dispute that the May 2017 continuance
through January 2018 was an ends-of-justice continuance. Nor is it disputed
that motion filings in early February 2018 tolled the 70-day clock. His only
argument for an STA violation is that the November 2017 order vacating the
January trial date reset the STA clock and that there are more than 70 non-
excludable days between November 17, 2017, and February 2018 when the
filing of motions stopped the clock. We review the district court’s factual
findings for clear error and its legal conclusions de novo. 110
This court has held that defendants are precluded from challenging
any delay to which they have consented. 111 Won consented to the May 2017
107
United States v. Dignam, 716 F.3d 915, 920-21 (5th Cir. 2013) (alteration
omitted) (quoting United States v. McNealy, 625 F.3d 858, 862 (5th Cir. 2010)).
108
Zedner v. United States, 547 U.S. 489, 497 (2006) (citing § 3161(h)).
109
18 U.S.C. § 3161(h)(7)(A).
110
Dignam, 716 F.3d at 920.
111
United States v. Whitfield, 590 F.3d 325, 358 (5th Cir. 2009).
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ends-of-justice continuance setting the trial date for no earlier than January
2018. He cannot now object to any delay between November 2017 and
January 2018 to which he has already consented. 112 He cites no authority to
support his argument that Judge Fitzwater’s November order vacating the
January trial date has any effect on his ability to challenge a delay to which he
had already consented. Nor does he support his argument that the November
order restarted the 70-day clock, and there is caselaw to support the
proposition that the November order did not restart the clock.
In United States v. Bieganowski, 113 for example, this court suggested
that an ends-of-justice continuance excluded all the days of the continuance
from STA calculations even though a later act arguably restarted the clock.114
In Bieganowski, the court granted an ends-of-justice continuance until August
23. 115 On August 12, the court granted another continuance, this one until
November. 116 The court also granted a third continuance in September. 117
The first and third continuances satisfied the requirements of the STA. 118
The second continuance arguably did not, but this court declined to answer
the question of whether it did because the third continuance met the
requirements of the STA. 119 Key to the court’s analysis was the fact that only
10 days passed between the end of the first continuance and the beginning of
112
See id.
113
313 F.3d 264 (5th Cir. 2002).
114
Id. at 282.
115
Id. at 281.
116
Id.
117
Id.
118
Id. at 282.
119
Id.
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the third. 120 The questionable second continuance was granted prior to the
end of the first one, yet this court used the end of that first continuance as the
point at which the STA would restart assuming the second continuance was
contrary to the STA. In other words, the court’s actions prior to the end of
the first continuance had no effect on the STA calculations because the
parties had consented to the entirety of that first continuance.
So too here. It is undisputed that Won consented to the May 2017
continuance through January 2018. It is also undisputed that the 70-day clock
was tolled on February 3, 2018. Won cannot point to more than 70 non-
excluded days.
IX
Won next argues that the district court violated the Court Reporter’s
Act 121 (CRA) when it went off the record 46 times during the 29-day trial.
Jacob adopts this argument specifically as to the court’s failure to record the
charge conference. But whatever gaps exist in the record of this case do not
amount to a violation of the CRA.
The CRA provides that “[e]ach session of the court” in a criminal
proceeding “shall be recorded verbatim by shorthand, mechanical means,
electronic sound recording, or any other method.” 122 In cases, as here, where
appellate counsel was not trial counsel, a CRA violation occurs when “a
substantial and significant portion of the record” is missing such that “even
the most careful consideration of the available transcript will not permit [this
120
Id.
121
28 U.S.C. § 753(b).
122
Id.
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court] to discern whether reversible error occurred.” 123 But this court has
long held that “a gapless transcription of a trial is not required.” 124 “We
have not found reversible error even when a transcript was missing seventy-
two bench conferences.” 125 “[A] merely technically incomplete record” is
not error. 126
Won argues that the 46 missing bench conferences robbed his
appellate counsel of the rationale for various district court rulings, especially
the exclusion of some of Ford’s testimony and several exhibits. Without that
rationale, Won argues, he faces substantial prejudice because he cannot
mount an appeal.
The first question presented to this court is the standard of review.
Won claims that he raised his CRA argument to the district court in a table
of evidentiary rulings he filed mid-trial and that he presents a question of law
reviewed de novo. This table memorialized Won’s objections to various
rulings, but it did not raise the CRA directly. The closest it came to the CRA
was mentioning in a footnote that “many of the evidentiary rulings regarding
trial exhibits in this case occur[red] off of the record.” Won then explains
that he filed the list to “reflect[] the current status of the trial exhibits
admitted and excluded” including “Dr. Won’s objections.” Won neither
raised the CRA nor objected to the court’s procedure. Accordingly, we agree
with the Government and review the potential violation for plain error. 127
123
United States v. Selva, 559 F.2d 1303, 1306 (5th Cir. 1977).
124
United States v. Delgado, 672 F.3d 320, 343 (5th Cir. 2012).
125
Id. (citing United States v. Gieger, 190 F.3d 661, 667 (5th Cir. 1999)).
126
Selva, 559 F.2d at 1306 n.5.
127
See United States v. Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009) (holding that
claims not raised before the district court are reviewed for plain error).
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Won must show that the error was “plain,” “affected [his] substantial
rights,” and “seriously affected the fairness” of his trial.128
Won cannot show plain error. This court has only recognized CRA
violations for truly egregious omissions like an absence from the record of
voir dire, opening statements, closing arguments, or even an entire
transcript. 129 Won does not point this court to any case in which the court
found reversible error for off-the-record bench conferences, especially when
objections were later memorialized. The Government, on the other hand,
points this court to a litany of cases in which the court has not found
reversible error even in the face of several dozen more missing conferences
than at issue here. 130 The district court did not plainly err.
X
Burt argues that the district court erred by finding that he had
breached his pre-trial proffer agreement with the Government. We hold that
the district court did not commit clear error in determining that Burt offered
evidence inconsistent with his proffer and that this constituted a breach of
his agreement.
Well before trial, Burt engaged in a proffer agreement with the Office
of the Inspector General. He agreed to tell the truth about Forest Park in
exchange for the Government not using his statements against him. The
agreement, which is interpreted according to the general principles of
128
See United States v. Conn, 657 F.3d 280, 284 (5th Cir. 2011) (per curiam).
129
United States v. Gregory, 472 F.2d 484 (5th Cir. 1973) (absence of voir dire and
opening and closing statements); Stephens v. United States, 289 F.2d 308 (5th Cir. 1961)
(absence of voir dire and closing arguments); United States v. Rosa, 434 F.2d 964 (5th Cir.
1970) (per curiam) (absence of entire transcript).
130
See, e.g., Gieger, 190 F.3d at 667 (finding no error despite missing 72 bench
conferences).
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contract law, 131 stated that the Government would not use Burt’s statements
against him in the Government’s case-in-chief “except . . . for statements
outside the proffer that are inconsistent” with the proffer. In a later
paragraph, the agreement makes clear that if Burt or his attorney elicited
“arguments that are inconsistent with [the proffer,] . . . [then the
Government] may use proffer information to rebut or refute the
inconsistencies.” In his proffer interview, Burt stated that “[y]ou don’t
entice doctors because that would be against the law” and that he realized
from the beginning that the $600,000 check Beauchamp paid to Adelaide was
for kickbacks.
In pre-trial filings, Burt argued that he did not know that the checks
were for kickbacks and that he was generally unaware of impropriety. The
Government objected, claiming that he had breached his proffer agreement.
The court held an evidentiary hearing and agreed that Burt had breached the
proffer and that the remedy, according to the agreement, was for the
Government to be able to rebut any breach statements that Burt elicited at
trial. At trial, Burt’s attorney cross-examined Forest Park’s former
controller, David Wheeler who had testified to various improprieties at
Forest Park. To impeach Wheeler, Burt used a representation letter that not
only Wheeler but also Burt had signed. The letter generally attested that
none of the signatories had knowledge of fraud within the hospital. Burt’s
attorney made use of a projector for this part of his cross examination,
blowing up the representation letter on the screen for the jury. The attorney
made repeated references to the signatures depicted on the screen, blew up
the signature page until it was quite large, and told the jury to “look at the
131
See United States v. Castaneda, 162 F.3d 832, 835-36 (5th Cir. 1998).
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signatures” while eliciting testimony from Wheeler that those signatures,
including Burt’s, attested to the fact that there was no fraud or impropriety.
The Government renewed its objection that Burt had breached the
proffer agreement. It argued, as it does on appeal, that the testimony Burt’s
attorney elicited from Wheeler that the signatures meant that no one knew of
any fraud directly contradicted Burt’s earlier statement that he knew about
the kickbacks all along. The court agreed, concluding that Burt had breached
the agreement and that the Government was entitled to rebut Burt’s
assertion that he had no knowledge of fraud. The parties disagreed as to how.
After a lengthy discussion with the parties, the court settled on a remedy
whereby the judge would read an agreed-to statement to the jury. That
statement reads as follows:
Defendant Mac Burt made statements in June 2016 to Casey
England, an agent with the Office of Inspector General. You
may have heard those initials OIG during the trial. Those
statements were during a voluntary interview where he was
represented by legal counsel. The interview, consistent with
Department of Justice policy, was not taped. The agent took
notes. Those notes include a statement by Defendant Burt that
he realized from the very beginning that the $600,000 check
Beauchamp requested from Forest Park to be paid to Adelaide
was for doctor kickbacks. You may consider this evidence as to
Defendant Burt.
Burt first claims that he did not breach the agreement because the
testimony was merely used to impeach Wheeler. Second, Burt claims that
the district court misinterpreted the proffer agreement by allowing the
Government to rebut any inconsistency during its case-in-chief. Third, Burt
argues that the court’s remedy was error. Finally, Burt argues that any error
was not harmless.
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A
The district court’s finding of breach is reviewed for clear error. 132
We review de novo whether, under those facts, the agreement was in fact
breached. 133 A factual finding is clearly erroneous only if it is implausible “in
light of the record as a whole.” 134 The court referenced the testimony of
Wheeler as well as the proffer agreement and found them to be inconsistent.
We agree.
Burt bargained with the Government to tell the truth in his proffer and
to not make inconsistent statements at trial. The agreement was explicit that
statements Burt elicited would count as inconsistent. Burt was on notice for
several months that he was violating the proffer every time he tried to argue
that he had no knowledge of any fraud or impropriety, yet at trial he elicited
testimony contrary to his proffer. Wheeler’s testimony that the
representation letter was an attestation of no impropriety, when combined
with Burt’s attorney’s focus on the signature page containing Burt’s
signature, leads to a not clearly erroneous conclusion that Burt was acting
inconsistently with his earlier statement that he had knowledge of
wrongdoing.
Burt’s argument to the contrary is not persuasive. He argues that he
was merely impeaching Wheeler, and he relies heavily on a Seventh Circuit
case for the proposition that defendants ought to be given broad leeway to
impeach government witnesses even while under the stricture of a proffer
132
Castaneda, 162 F.3d at 836 n.24 (citing United States v. Gibson, 48 F.3d 876, 878
(5th Cir. 1995) (per curiam)).
133
United States v. Chavful, 781 F.3d 758, 761 (5th Cir. 2015).
134
See United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011) (per curiam).
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agreement. 135 But United States v. Krilich 136 does more to hurt Burt’s
argument than help it. There, the Seventh Circuit affirmed the district
court’s determination that the defendant breached the proffer because he
was not merely impeaching the witness; rather, his counsel was eliciting
statements “inconsistent with the proffer.” 137 So too here.
B
Burt also argues that the district court erred by not harmonizing the
agreement’s provision protecting him from the Government’s use of any
statement in its case-in-chief with the provision allowing rebuttal evidence.
This argument fails on its face. The court expressly explained the two
provisions’ interaction, concluding that the latter provided the Government
with a rebuttal remedy should Burt breach the agreement not to make
inconsistent statements. There is no clear error in this construction.
Nor is Burt correct to argue that the rebuttal was precluded from
taking place in the Government’s case-in-chief. It is true that paragraph 3 of
the agreement explains that the Government would not use Burt’s proffer
against him in its case-in-chief, but the agreement included an express
exception for inconsistent statements. Paragraph 7 clearly provides that the
remedy is rebuttal. Moreover, this court has recognized that “rebuttal
waiver[s] might be worded so broadly as to allow admission of plea
statements in the government’s case-in-chief.” 138 If rebuttal could not take
135
See United States v. Krilich, 159 F.3d 1020, 1025 (7th Cir. 1998).
136
159 F.3d 1020 (7th Cir. 1998).
137
Id. at 1026 (holding that the testimony elicited by defense counsel went “well
beyond casting doubt on the prosecutor’s evidence” because it “advance[d] a position
inconsistent with the proffer”).
138
United States v. Sylvester, 583 F.3d 285, 292 (5th Cir. 2009).
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place during the case-in-chief, the Government might never get an
opportunity to hold defendants accountable for breaching the agreement
because defendants can choose not to present a case at all. 139
C
Burt argues that the district court’s remedy of reading a statement to
the jury prejudiced him, and he urges this court to review that decision for
abuse of discretion. This court does not appear to have addressed a standard
of review for the remedy chosen by the district court, nor does the
Government in its brief. We have suggested, however, that we would review
the admission of plea negotiation evidence for abuse of discretion. 140 We
reasoned that an objection to the admission of such evidence would be no
different than an objection to any other evidence and that the same abuse of
discretion standard should apply. 141 Other circuits have approached breaches
of plea agreements in accordance with contract principles, reasoning that
“[i]t is for the district court to decide what remedy is appropriate.” 142 We
adopt the abuse of discretion standard here.
Burt argues that the proper remedy should have been either: (1) an
instruction that Wheeler’s testimony could only be considered as to
Wheeler’s knowledge and beliefs and not Burt’s; or (2) an opportunity to
cross-examine the agent who interviewed Burt. But in doing so, Burt
139
See id.
140
Id. at 288 n.4.
141
Id.
142
United States v. Anderson, 970 F.2d 602, 608 (9th Cir. 1992); see United States v.
Chiu, 109 F.3d 624, 626 (9th Cir. 1997) (“A district court has broad discretion in fashioning
a remedy for the government’s breach of a plea agreement.”); United States v. Bowe, 257
F.3d 336, 346 (4th Cir. 2001) (holding that the defendant breached his plea agreement and
remanding to the district court to “fashion[] an appropriate remedy”).
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essentially asks this court to strike a different balance than that of the district
court. That is not our role in reviewing for abuse of discretion. “A trial court
abuses its discretion when its ruling is based on an erroneous view of the law
or a clearly erroneous assessment of the evidence.” 143 As explained above,
the district court was correct in determining that Burt elicited inconsistent
statements and in concluding that they amounted to a breach of his proffer
agreement. It is hard to see how reading the statement was an abuse of
discretion.
Burt falls back on the argument that the district court’s decision to
read the statement as opposed to allow Burt to cross-examine the agent who
interviewed him violated his due process rights. 144 He cites little in the way
of elaboration, and it does not appear that he raised this argument in the
district court. What little analysis he provides is simply a rehash of his earlier
arguments that he did not breach the agreement and an objection that the
prosecutor characterized the statement as a “confession” during closing
arguments. This argument is forfeited for lack of adequate briefing. 145 Nor
does the (limited) argument Burt makes with regard to a violation of the
Confrontation Clause affect this analysis. Burt waived any Confrontation
Clause challenge at trial. Even if he had not, he has not adequately briefed it
here and we would deem it forfeited. 146
Further, even assuming the court erred, any error was harmless given
the other, substantial evidence against Burt, including testimony from
143
United States v. Yanez Sosa, 513 F.3d 194, 200 (5th Cir. 2008) (quoting United
States v. Ragsdale, 426 F.3d 765, 774 (5th Cir. 2005)).
144
He does not raise a Confrontation Clause challenge.
145
See Rollins v. Home Depot USA, 8 F.4th 393, 397 & n.1 (5th Cir. 2021).
146
See id.
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numerous witnesses that he did in fact know what was going on from the
beginning and that the money was for bribes and illegal kickbacks.
XI
Jacob, Rimlawi, Won, and Henry all argue that the court erred by
reading a portion 147 of Burt’s proffer into the record. The defendants argue
that this was Bruton error. Shah and Forrest adopt the arguments of their
codefendants. Rimlawi further argues that the court erred in allowing the
prosecution to cross-examine him with the proffer. 148 Because the proffer
“could only be linked [to the defendants] through additional evidentiary
material,” there was no Bruton error. 149 Rimlawi’s argument, however, fares
better. Assuming the district court erred by cross-examining Rimlawi with
the proffer, that error was harmless. We will address the threshold challenge
to the admission of the proffer raised by Jacob and the physicians below. We
will then address Rimlawi’s challenge to the proffer’s use during his cross-
examination.
But first, the defendants challenge the exact wording of the court’s
limiting instruction. They urge this court to reverse because the court limited
the use of the proffer “as to Defendant Burt” and not as to Burt only. The
omission of “only” in the limiting instruction, they argue, is reversible error.
The parties have not provided any caselaw on point to support their
assertion, nor have we found any. We are not convinced that the omission of
“only” is reversible error. We may safely assume “the almost invariable
147
Reproduced above, supra Section X.
148
Assuming without deciding that Won may adopt this argument by reference, it
fails as to him for the same reasons discussed below.
149
See United States v. Powell, 732 F.3d 361, 376-77 (5th Cir. 2013).
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assumption . . . that jurors follow their instructions.” 150 The instruction
given was that the jury may consider the proffer “as to Defendant Burt.”
The “only” is implied. Additionally, any error in the instruction was
harmless given the weight of evidence against all of the defendants.
A
In Bruton, the Supreme Court held that the admission of a non-
testifying codefendant’s statements may violate a testifying codefendant’s
Sixth Amendment right to confront his accusers. 151 But “[o]rdinarily, a
witness whose testimony is introduced at a joint trial is not considered to be
a witness ‘against’ a defendant if the jury is instructed to consider that
testimony only against a codefendant.” 152 There is “a narrow exception to
this principle.” 153 If the admitted testimony “facially incriminate[s]” the
defendant, then the admission may violate the defendant’s Confrontation
Clause rights even if the court gives a limiting instruction. 154 Further,
although it is assumed that “jurors follow their instructions,” 155 the
“prosecution [can] upend[] this assumption” by “clearly, directly, and
repeatedly” using the non-testifying codefendants’ statements against a
150
Richardson v. Marsh, 481 U.S. 200, 206 (1987) (citing Francis v. Franklin, 471
U.S. 307, 325 n.9 (1985)).
151
See Bruton v. United States, 391 U.S. 123, 136-37 (1968); U.S. Const. amend.
VI.
152
Richardson, 481 U.S. at 206.
153
Id. at 207.
154
Id.
155
Id. at 206.
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testifying codefendant. 156 Such use of a non-testifying codefendant’s
statements is “a clear and obvious violation of a constitutional right that
substantially affects the fairness of judicial proceedings” and is plainly
erroneous. 157
The “key analytic factor” in deciding whether there is Bruton error is
whether the admitted proffer “clearly refer[s]” to the other codefendants or
whether it “could only be linked through additional evidentiary material.” 158
If further linkage is required, then the proffer does not “facially implicate[]”
the other physicians and it does not violate their Sixth Amendment rights. 159
We review constitutional challenges de novo, but we review the trial court’s
“evidentiary decisions on a Bruton issue . . . for abuse of discretion.” 160
Bruton errors are subject to harmless error analysis. 161
The only objectionable part of the court’s statement to the jury was
that “[Burt] realized from the very beginning that the $600,000 check
Beauchamp requested from Forest Park to be paid to Adelaide was for doctor
kickbacks.” The physicians (Won, Rimlawi, and Henry) argue that the
court’s use of “doctor” facially implicated them. Jacob argues that the
reference to his company, Adelaide, is enough to facially implicate him.
156
See United States v. Powell, 732 F.3d 361, 379 (5th Cir. 2013) (“[T]he prosecution
itself upended this assumption. The prosecution’s cross-examination of Powell clearly,
directly, and repeatedly used Akin’s statements against him.”).
157
Id. Rimlawi never raised his objection at trial, so it is reviewed for plain error.
See id.
158
Id. at 376-77.
159
See id.; see also Richardson, 481 U.S. at 206-07.
160
Powell, 732 F.3d at 376 (quoting United States v. Jimenez, 509 F.3d 682, 691 (5th
Cir. 2007)).
161
Id.
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In United States v. Powell, 162 on which the defendants rely, this court
held that the admission of a non-testifying codefendant’s statement to an
investigator did not violate Bruton. 163 A husband (Powell) and his wife (Akin)
transported cocaine together in their car. They were stopped by police and
interviewed separately. Akin made several inculpating statements to
investigators that the prosecution used at trial against Powell. The
statements related to Akin’s knowledge that the car she was a passenger in
was transporting crack cocaine. 164 Akin did not testify at trial. This court
held that the admission of the statements “did not directly implicate” Powell
despite the fact that it was well established that the two were in the car
together. 165 The testimony concerned only Akin’s knowledge and actions—
any relation to Powell had to be inferred.
So too here. Although the proffer statement directly mentions
“doctors” and Adelaide, further evidence is required to link Won, Rimlawi,
and Henry to “doctors” and Jacob to “Adelaide.” Burt’s use of “doctors”
could have referred to any number of physicians. The fact that the three
defendants were on trial and also doctors does not mean that the use of
“doctors” facially implicated them. The jury had to examine other evidence
to determine whether those three doctors were indeed the doctors who had
received kickbacks. All the proffer stands for directly is that Burt knew
Beauchamp was paying physician kickbacks. The jury had to decide which
physicians were receiving kickbacks. Likewise, although the statement
directly refers to Adelaide, more is required to link Jacob to Adelaide. First,
162
732 F.3d 361, 379 (5th Cir. 2013)
163
Id. at 377.
164
Id.
165
Id. at 377-78.
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of course, would be evidence that Jacob operates Adelaide. Second, the jury
would have to find that any illegal actions of Adelaide could be imputed to
Jacob. More evidence was required to link Jacob to the illegal conduct for
which he was eventually convicted.
B
Even if the admission of the proffer statement was not error, and we
hold that it was not, that does not end the Bruton analysis. This court has
recognized that while admission of a non-testifying defendant’s statement
may not be erroneous if properly limited, that statement’s use against other
defendants outside the limiting instruction may violate the Confrontation
Clause. 166 Here, the district court limited the proffer’s use by instructing that
the jury may consider the statement “as to Defendant Burt.” Nonetheless,
the prosecution’s subsequent use of the proffer against Rimlawi may have
been in error. 167
When Rimlawi took the stand in his own defense, the Government
used the proffer against him directly. Rimlawi claimed that he “didn’t have
any deal or side deal that was illegal or involved kickbacks.” The
Government cross-examined him with the statements of several individuals
who had testified that Rimlawi had in fact been “paid for patients.” The
prosecutor listed 10 individuals who had testified that Rimlawi was involved
in the kickback scheme. At the end of this list and as the eleventh individual
to testify against Rimlawi, the Government briefly mentioned Burt’s proffer
statement. Rimlawi claims that this admission violated the Confrontation
Clause.
166
Id. at 378-79.
167
See id. at 379.
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In Powell, discussed above, this court determined that the admission
of Akin’s statement was not Bruton error, but it held that the prosecution’s
use of that statement to cross-examine Powell was erroneous. 168 The
Government attempts to distinguish Powell, contrasting the extent of the
cross-examination in that case versus here. It is true that the cross-
examination in Powell focused more on the potentially violative statement
than here—the prosecutor brought up Akin’s statement five times in a
row. 169 But the rationale in Powell was that the prosecution “upended” the
court’s limiting instruction when it used the statement “clearly, directly, and
repeatedly” against Powell. 170 While the extent of the use of the proffer at
issue here is less than in Powell (used once versus five times), it was “clearly”
and “directly” used against Rimlawi. That use may violate Rimlawi’s
constitutional right to confront his accusers.
But even assuming without deciding that the admission of the
statement in cross-examination was error, that error was harmless. “It is well
established that a Bruton error may be considered harmless when,
disregarding the co-defendant’s confession, there is otherwise ample
evidence against the defendant.” 171 To find an error harmless, we must be
convinced beyond a reasonable doubt that the error was in fact harmless in
light of the other evidence presented at trial. 172 We will not find a Bruton
168
Id. at 378-79.
169
Id. at 378.
170
Id. at 379.
171
Id. (quoting United States v. Vejar-Urias, 165 F.3d 337, 340 (5th Cir. 1999)).
172
Vejar-Urias, 165 F.3d at 340.
49
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error harmless if there is “a reasonable probability that the defendants would
be acquitted.” 173
In Powell, the court held that even though the admission during cross-
examination was plain error, the error was harmless and the conviction could
stand because of the weight of the other evidence against Powell. 174 So too
here. As evident in the exchange at issue for Rimlawi, no fewer than 10 other
individuals implicated him in the kickback scheme. Just as Powell was caught
driving “a car loaded with crack cocaine packaged for sale,” a mountain of
other evidence inculpates Rimlawi. 175 As discussed above in Part II(B),
Beauchamp testified that Forest Park paid for federally insured patients.
Rimlawi admits to having federally insured patients. Smith’s kickback
tracking sheets show that Rimlawi was credited with DOL/FECA insured
patients, and Rimlawi does not contest that DOL/FECA patients are federal
pay.
XII
Won, Rimlawi, and Shah argue that the district court abused its
discretion in excluding various portions of two witnesses’ testimony:
Theresa Ford and Bill Meier. The court did not abuse its discretion.
The surgeons argue that the district court erred in excluding portions
of Ford and Meier’s testimony along with a related email from Ford and
certain billing invoices from Meier. The surgeons attempted to introduce
this evidence to bolster their advice-of-counsel defense. The surgeons
suggest now that neither attorney was able to testify at trial meaningfully, but
173
Powell, 732 F.3d at 379 (quoting Vejar-Urias, 165 F.3d at 340).
174
Id. at 380.
175
See id.
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that is not the case. Both attorneys testified at trial. The surgeons’ appeal
focuses on three sets of excluded evidence: (1) an email Won wrote to Ford
as well as testimony that Won told Ford that Forest Park did not accept
federally insured patients; (2) Ford’s testimony regarding how common
marketing schemes for physicians are and her opinion that Forest Park’s was
legal; and (3) Meier’s testimony concerning the same.
The court ruled that the attorneys could testify “as relevant to the
state of mind of a defendant,” but they were not allowed to “be a mouthpiece
for the defendant” or to “offer legal opinions.” The court did not allow the
lawyer-witnesses “to make legal conclusions or opinions” with regard to
central issues in the case. It excluded the evidence at issue on a variety of
grounds. The district court found testimony about the legality of the
marketing scheme to be irrelevant given that the marketing agreement was,
on its face, legal and not at issue. It also excluded the testimony regarding
the ultimate legality of the programs as legal conclusions by a lay witness. It
concluded that conversations between the surgeons and attorneys about
whether the surgeons’ actions were legal were hearsay.
Evidentiary rulings are reviewed for abuse of discretion. 176 The
harmless error doctrine applies. 177 Irrelevant evidence is inadmissible. 178 So
too is hearsay evidence that does not fall within an exception. 179 A lay
witness’s opinion testimony is limited to opinions that are “based on the
176
United States v. Liu, 960 F.2d 449, 452 (5th Cir. 1992).
177
Id.
178
See Fed. R. Evid. 402.
179
Fed. R. Evid. 801, 802.
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witness’s perception[,] helpful[,] . . . and not based on . . . specialized
knowledge.” 180
A
The district court did not abuse its discretion in excluding the Ford
email because the only statements the surgeons object to are hearsay.
The surgeons object to the exclusion of three statements: (1) a
statement that the hospital “only accepts private commercial insurance,”
and “do[es] not accept any federally funded programs and [has] no plans to
do it in the future”; (2) a statement that Forest Park told Won it was not
“participating in any federally funded program” or “affected by stark or anti-
kickback issues”; and (3) a statement that Won “want[ed] to make sure we
are compliant.”
Federal Rule of Evidence 803(3) creates an exception to hearsay for
statements concerning a declarant’s “then-existing state of mind” but not
for “a statement of memory or belief to prove the fact remembered or
believed.” 181 The Government argues that the first two statements listed
above fall outside Rule 803(3) because they are statements of memory or
belief offered to prove the fact remembered or believed. In each case, the
surgeons seek admission of testimony that Forest Park was not connected to
federally funded programs to prove the same. This court held, in nearly
identical circumstances, that this is “the kind of statement of historical fact
180
Fed. R. Evid. 701.
181
Fed. R. Evid. 803(3).
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or belief that Rule 803(3) precludes.” 182 We see no reason for a different
result here. 183
As for the third statement, Won’s only argument is that the statement
was a verbal act and not hearsay. He does not raise Rule 803(3) with regard
to that statement and has forfeited that argument. 184 The statement itself is
not a verbal act within the meaning of the term because he sought to admit it
for the truth of the matter asserted, i.e., that he sought compliance. 185
Rimlawi challenges the exclusion of his own testimony related to this
same topic, i.e., his state of mind and advice-of-counsel defense. For the
same reasons as above, the court did not abuse its discretion in excluding
them.
Shah raises a distinct challenge to the exclusion of this evidence. He
asserts that its exclusion violated his Sixth Amendment right to present a
complete advice-of-counsel defense. Even under de novo review, which
would apply here, 186 Shah’s argument lacks merit. The right protected is to
182
United States v. Gibson, 875 F.3d 179, 194 n.10 (5th Cir. 2017).
183
These statements are not, as Won argues, verbal acts that are excluded from
hearsay restrictions. See United States v. Gauthier, 248 F.3d 1138 (5th Cir. 2001)
(unpublished) (per curiam) (offering a bribe); Tompkins v. Cyr, 202 F.3d 770, 779 n.3 (5th
Cir. 2000) (making a threat).
184
See Rollins v. Home Depot USA, 8 F.4th 393, 397 & n.1 (5th Cir. 2021).
185
Cf. United States v. Hansbrough, 450 F.2d 328, 329 (5th Cir. 1971) (per curiam)
(“[T]he statement was not offered to prove the truth of the matter asserted therein (i.e.
the identity of the caller) but rather was offered merely to establish that the call was made.
As such, the statement was offered to prove a ‘verbal act.’”) (citing Overton v. United
States, 403 F.2d 444, 447 (5th Cir. 1968)). In addition, even if Rule 803(3) applies to this
statement, the district court may have been within its discretion in excluding the testimony
because it was irrelevant: it went to Won’s state of mind several years prior to the
conspiracy.
186
See United States v. Skelton, 514 F.3d 433, 438 (5th Cir. 2008).
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“present a defense” in part by “present[ing] his own witnesses to establish
a defense.” 187 Shah fails to address the fact that Ford did in fact testify about
her relationship with Won and Rimlawi (she does not appear to have ever
worked with Shah). Rimlawi’s attorney managed to ask about whether the
surgeons sought compliance with all applicable laws during her allotted time
to examine Ford. It is hard to see how Shah was not afforded the opportunity
to present a defense.
United States v. Garber 188 is not to the contrary. There, the
defendant’s witness was prevented from testifying to the existence of a legal
theory supporting the defense. 189 This court found error. 190 Here, on the
other hand, the statements the district court excluded are simple, run-of-the-
mill hearsay statements from Won. Ford was allowed to testify as to what
she looked for in making sure marketing agreements were legal. Garber is
inapposite.
B
Next, the surgeons argue that the district court erred by not allowing
Ford to testify as to the categorization of healthcare programs and the legality
of the marketing agreement she reviewed. The court did not err.
First, Ford was not allowed to testify to the jury as to whether
DOL/FECA is a federal healthcare program. But she was not qualified as an
expert witness, and the surgeons did not establish that she had personal
knowledge of the source of DOL funding. There is no abuse of discretion in
187
Taylor v. Illinois, 484 U.S. 400, 409 (1986) (quoting Washington v. Texas, 388
U.S. 14, 19 (1967)).
188
607 F.2d 92 (5th Cir. 1979) (en banc).
189
Id. at 99.
190
Id.
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precluding a lay witness from testifying as to something of which they lack
personal knowledge. 191
Second, Ford was also not allowed to testify that comarketing
agreements are common and that Forest Park’s actual arrangement was legal.
But Ford was allowed to testify about comarketing in general and the
marketing agreement Won had sent her in 2009 (which was not the one that
ended up being the operative agreement between Won and Forest Park pass-
through entities). The Government does not contest that the marketing
agreement was facially legal. What mattered, the Government urges, is what
the agreement did not say—that the physicians were accepting illegal
kickbacks as part of this agreement. Ford did not have personal knowledge
of these facts. She could not opine that the agreement Won and the pass-
through entity reached and operated under was legal. 192
C
Attorney Meier was also not allowed to testify as to the legality of the
surgeons’ marketing agreements. For the same reasons as above, the district
court did not err.
XIII
Next, Won, Rimlawi, and Shah argue that the district court erred by
denying their request for specific jury instructions on advice-of-counsel and
good-faith defenses. Jacob argues that the district court erred by denying the
good-faith instruction. Forrest adopts by reference arguments as to the
denial of the good-faith instruction. The district court did not abuse its
discretion in declining the defendants’ request for the two jury instructions
191
See Fed. R. Evid. 701.
192
See id.
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because the instructions were covered by the jury instructions given.
Alternatively, and as an independent basis for affirming, Won and Rimlawi
were not entitled to an advice-of-counsel instruction because there was not a
proper foundation for it in evidence.
Won, Rimlawi, and Shah appeal the district court’s denial of their
request for specific jury instructions as to advice-of-counsel and good-faith
defenses. Jacob appeals the denial of the good-faith instruction as well as the
district court’s ultimate instruction on willfulness because it “exceeded the
circuit pattern.” We review the denial of a jury instruction under an
“exceedingly deferential” abuse of discretion standard. 193 We afford district
courts “substantial latitude in tailoring” their jury instructions so long as the
instructions “fairly and adequately cover the issues presented.” 194 The
district court abuses its discretion only if “(1) the requested instruction is
substantively correct; (2) the requested instruction is not substantially
covered in the charge given to the jury; and (3) it concerns an important point
in the trial so that the failure to give it seriously impairs the defendant’s
ability to effectively present a particular defense.” 195
A
The defendants’ argument fails because the jury instructions the court
gave covered the instructions it denied. This court has held that “the
omission of a good faith jury instruction is not an abuse of discretion if the
defendant is able to present his good faith defense to the jury through, inter
193
Tompkins v. Cyr, 202 F.3d 770, 784 (5th Cir. 2000); see also United States v.
Daniels, 247 F.3d 598, 601 (5th Cir. 2001).
194
United States v. Hunt, 794 F.2d 1095, 1097 (5th Cir. 1986) (quoting United States
v. Kimmel, 777 F.2d 290, 293 (5th Cir. 1985)).
195
United States v. St. Gelais, 952 F.2d 90, 93 (5th Cir. 1992) (citing Hunt, 794 F.2d
at 1097).
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alia, witnesses, closing arguments, and the other jury instructions.” 196 Key
among these other jury instructions are those related to “knowing” and
“willful” conduct because good-faith reliance defenses depend on
disproving knowing or willful elements of the crime. 197 In other words, so
long as the defendants are able to present their good-faith defense within the
existing jury instructions regarding “knowing” and “willful” conduct, there
is no error.
Here, the district court’s instructions concerning “knowing” and
“willful” conduct are similar to those in United States v. Frame 198 and United
States v. Davis. 199 Although unpublished, the analysis in Frame is
informative. There, this court affirmed the denial of the jury instruction as
to a good-faith defense because it was captured within the jury instructions
actually given; the court held that the instructions made plain that the jury
was required to acquit Frame if, “because of his good faith, he lacked specific
intent.” 200 Likewise, in Davis this court affirmed the denial of a requested
jury instruction as to good faith because “those concepts were adequately
explained through the district court’s definitions of the terms ‘knowingly’
and ‘willfully.’” 201
The same result holds here. The district court instructed the jurors
that the Government had to prove that the defendants acted knowingly,
196
United States v. Frame, 236 F. App’x 15, 18 (5th Cir. 2007) (unpublished) (citing
Hunt, 794 F.2d at 1098); see also Hunt, 794 F.2d at 1098 (distinguishing prior caselaw).
197
See Frame, 236 F. App’x at 18.
198
236 F. App’x 15 (5th Cir. 2007) (unpublished).
199
132 F.3d 1092 (5th Cir. 1998).
200
Frame, 236 F. App’x at 18.
201
Davis, 132 F.3d at 1094.
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which it defined as “done voluntarily and intentionally and not because of
mistake or accident.” It then defined “willfully” as an “act [that] was
committed voluntarily and purposely with the specific intent to do something
that the law forbids, that is to say, with the bad purpose either to disobey or
disregard the law.” 202 These instructions make clear that the jury could not
convict the surgeons if they found that they had acted without the specific
intent to do something the law forbids, i.e., if they were acting in good faith. 203
In addition, Jacob’s argument that the district court’s willfulness instruction
here “exceeded circuit pattern” is unsupported by caselaw and fails.
This same instruction also substantially covers the surgeons’ advice-
of-counsel defense for the same reason. Like a good-faith reliance defense,
an advice-of-counsel defense is effective only insofar as it negates
willfulness. 204 Willfulness, under the AKS, means acting with specific intent
to do something the law forbids. 205 It does not require, as it does in a narrow
set of “complex statutes,” knowledge of the exact terms of the statute the
defendants were willfully violating. 206 In arguing that it does, the surgeons
miss the mark. In those “complex” cases, namely tax cases, we have held
that failure to instruct on an advice-of-counsel defense is reversible error
202
See United States v Ricard, 922 F.3d 639, 648 (5th Cir. 2019) (defining
“willfulness” in a nearly identical fashion).
203
See Frame, 236 F. App’x at 16 n.1, 18 (affirming conviction under nearly identical
willfulness definition despite omitting good-faith instruction); Davis, 132 F.3d at 1094
(affirming nearly identical definitions in AKS case jury instructions).
204
See United States v. Mathes, 151 F.3d 251, 255 (5th Cir. 1998) (explaining that
“[r]eliance on counsel’s advice excuses a criminal act only to the extent it negates
willfulness” (quoting United States v. Benson, 941 F.2d 598, 614 (7th Cir. 1991), mandate
recalled and amended in other respects by 957 F.2d 301 (7th Cir. 1992))).
205
United States v. Nora, 988 F.3d 823, 830 (5th Cir. 2021).
206
See United States v. Kay, 513 F.3d 432, 448 (5th Cir. 2007).
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because of the complexity of the statute at issue and the heightened scienter
required to violate it. 207 But that is not the case here.
B
As an alternative, and independent, ground for affirming the denial of
the advice-of-counsel instruction, the Government argues that the
defendants failed to establish the requisite evidentiary foundation. We agree.
A court “may . . . refuse to give a requested instruct[ion] that lacks
sufficient foundation in the evidence.” 208 An advice-of-counsel defense has
four elements: (1) before taking action, the defendant in good faith sought the
advice of an attorney; (2) for the purpose of securing advice on the lawfulness
of potential future conduct; (3) gave a full and accurate report of all material
facts; and (4) the defendant acted strictly in accordance with the attorney’s
advice. 209 A successful advice-of-counsel defense negates willfulness by
“creat[ing] (or perpetuat[ing]) an honest misunderstanding of one’s legal
duties.” 210
Even assuming without deciding that the defendants can meet the first
and second prongs of the test, they fail to meet the third and fourth. It is
undisputed that Ford only billed 1.3 hours and did so preparing an agreement
that ended up not being used. Further, neither Ford nor Meier was aware of
the surgeons’ full dealings with the principals of Forest Park. They explicitly
207
See Bursten v. United States, 395 F.2d 976, 982 (5th Cir. 1968).
208
United States v. Branch, 91 F.3d 699, 712 (5th Cir. 1996).
209
See United States v. Bush, 599 F.2d 72, 77 n.12 (5th Cir. 1979); United States v.
West, 22 F.3d 586, 598 n.36 (5th Cir. 1994) (reproducing the district court’s
“comprehensive[]” explanation of the advice-of-counsel defense to the jury).
210
United States v. Mathes, 151 F.3d 251, 255 (5th Cir. 1988) (quoting United States
v. Benson, 941 F.2d 598, 614 (7th Cir. 1991), mandate recalled and amended in other respects
by 957 F.2d 301 (7th Cir. 1992)).
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informed the surgeons that they should not accept kickbacks for patient
referrals, yet that is exactly what the surgeons did. The surgeons do not
satisfy the fourth prong of the defense as well.
XIV
Shah argues that the district court erred by not instructing the jury on
multiple conspiracies and instead instructing it only as to a single conspiracy,
as alleged in the indictment. Shah’s argument is counter to well-settled
precedent.
Shah failed to make his objection during trial, so plain error review
applies. 211 Shah argues that he preserved the objection in a document of
proposed instructions he filed before trial even began. But nowhere in his
145-page document does he note his “specific objection and the grounds for
the objection” as required by Federal Rule of Criminal Procedure 30. 212 Plain
error review applies.
“[A] failure to instruct on multiple conspiracies generally does not
constitute plain error.” 213 Shah cannot show error here because a lack of a
multiple-conspiracies instruction did not prejudice his defense that he never
conspired in the first place. 214
Won, Forrest, and Jacob attempt to adopt Shah’s argument here by
reference. The Government argues that this argument cannot be adopted by
211
See United States v. Dupre, 117 F.3d 810, 816-17 (5th Cir. 1997).
212
Fed. R. Crim. P. 30.
213
United States v. Devine, 934 F.2d 1325, 1341-42 (5th Cir. 1991) (citing United
States v. Richerson, 833 F.2d 1147, 1155-56 (5th Cir. 1987)).
214
See United States v. Hunt, 794 F.2d 1095, 1099 (5th Cir. 1986) (finding no error
when the lack of an instruction “cannot be said to have seriously impaired [the defendant’s]
ability to present his defense”).
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reference because the analysis is too fact specific. Even assuming without
deciding that Shah’s argument could be adopted by reference, any adoption
would fail for the same reasons discussed above.
XV
Shah and Jacob raise myriad complaints about the prosecutors’
actions during closing argument. Forrest adopts these arguments by
reference. Even assuming the prosecutors engaged in some misconduct
during closing argument, the defendants have failed to establish that the
misconduct affected their substantial rights.
We review allegations of prosecutorial misconduct with a two-step
analysis: first, we look to whether the prosecutor “made an improper
remark”; if so, we analyze whether that remark affected the defendant’s
“substantial rights.” 215 The defendants did not raise their objections at trial,
so we review them for plain error. 216 Reversing a conviction “on the basis of
a prosecutor’s remarks alone” is not a decision this court makes “lightly.” 217
“[T]he determinative question is whether the prosecutor’s remarks cast
serious doubt on the correctness of the jury’s verdict.” 218 This is a “high
bar.” 219 This court considers “the magnitude of the prejudicial effect,” “the
215
United States v. McCann, 613 F.3d 486, 494-95 (5th Cir. 2010) (quoting United
States v. Gallardo-Trapero, 185 F.3d 307, 320 (5th Cir. 1999)).
216
United States v. Aguilar, 645 F.3d 319, 323 (5th Cir. 2011).
217
United States v. Virgen-Moreno, 265 F.3d 276, 290 (5th Cir. 2001) (citing United
States v. Iredia, 866 F.2d 114, 117 (5th Cir. 1989)).
218
Aguilar, 645 F.3d at 325 (internal quotation marks omitted) (quoting United
States v. Gracia, 522 F.3d 597, 603 (5th Cir. 2008)).
219
Id.
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efficacy” of any instructions, and “the strength of the evidence.” 220 Even if
the surgeons can meet this high burden, this court retains discretion whether
to reverse, “which we generally will not do unless the plain error seriously
affected the fairness, integrity, or public reputation of the judicial
proceeding.” 221
The alleged misconduct can be summarized as follows: improper
vouching; personal attacks; misstatement of the evidence; telling jurors they
are victims; faulting the defense’s choice to remain silent; and shifting the
burden of proof. But most of the objected-to conduct is not objectionable
when viewed in context. For example, Shah and Jacob argue that the
prosecutor faulted the defense’s choice to remain silent, but when viewed in
context, all of the statements relate to the paucity of the evidence the defense
did put on to support their various defenses. 222 Similarly, the defendants’
objections as to burden-shifting fail for the same reason—the prosecutor’s
statements referred to their lack of evidence for affirmative defenses. 223
220
Virgen-Moreno, 265 F.3d at 290-91 (quoting United States v. Palmer, 37 F.3d
1080, 1085 (5th Cir. 1994)).
221
Aguilar, 645 F.3d at 323 (quoting Gracia, 522 F.3d at 600).
222
See United States v. Johnston, 127 F.3d 380, 396 (5th Cir. 1997) (holding that
prosecutor comments on a defendant’s silence are only prohibited if the intent to comment
on the silence was “manifest” or if the jury would “naturally and necessarily construe [the
prosecutor’s remark] as a comment on the defendant’s silence”); id. (explaining that a
prosecutor’s intent to comment on the defendant’s silence is not manifest if “there is an
equally plausible [alternative] explanation of the prosecutor’s remark”); see also United
States v. Ramirez, 963 F.2d 693, 700 (5th Cir. 1992) (allowing prosecutorial comment as to
paucity of defendant’s evidence).
223
See United States v. Mackay, 33 F.3d 489, 496 (5th Cir. 1994) (holding that the
government may “comment on the defendant’s failure to produce evidence on a phase of
the defense” (quoting United States v. Dula, 989 F.2d 772, 777 (5th Cir. 1993))).
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Shah also argues that the prosecutors committed misconduct by
telling the jurors that the jurors were victims and by making personal attacks
against the defendants. These arguments carry more weight. The
prosecutors referred to the effect the fraud had on the medical system in the
United States, explaining to the jurors that “[t]here are a lot of victims in this
case” and that “[t]he greed of the defendant[s] impacted us as a
community.” Shah complains that this amounted to a “so-called ‘golden
rule’ argument” because it urged the jury to put itself into the shoes of the
victim. 224 Citing out-of-circuit precedent, Shah contends that such
arguments are “universally condemned.” 225 He also argues that “invoking
the individual pecuniary interests of jurors as taxpayers” is improper.
In response, the Government points this court to United States v.
Robichaux 226 for the proposition that the prosecutors were allowably
“impress[ing] upon the jury the seriousness of the charges.” 227 There, this
court found no error in the statement that “Louisiana citizens and all those
who seek to purchase insurance suffer[ed] from Robichaux’s fraud.” 228 The
court reasoned that the prosecutors remained “within the bounds of
reasonableness” because they were simply “impressing upon the jury the
seriousness of the charges” which involved “complicated financial
transaction[s].” 229 We agree with the Government that if the statements in
224
See United States v. Gaspard, 744 F.2d 438, 441 n.5 (5th Cir. 1984).
225
United States v. Palma, 473 F.3d 899, 902 (8th Cir. 2007) (quoting Lovett ex rel.
Lovett v. Union Pac. R.R. Co., 201 F.3d 1074, 1083 (8th Cir. 2000)); see also Gov’t of V.I. v.
Mills, 821 F.3d 448, 458 (3rd Cir. 2016); Hodge v. Hurley, 426 F.3d 368, 384 (6th Cir. 2005).
226
995 F.2d 565 (5th Cir. 1993).
227
Id. at 570 (quoting United States v. Lowenberg, 853 F.2d 295, 304 (5th Cir. 1988)).
228
Id.
229
Id.
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Robichaux were not prejudicial, then neither are the ones here. The
statements are similar and so is the complicated nature of the transactions
and fraud.
Jacob and Shah argue that the prosecution personally attacked the
defendants. Jacob argues that the prosecution “compar[ed] him to a drug
dealer.” The prosecution had stated during closing argument that “[m]ost
criminals pay their taxes. Drug dealers pay their taxes.” Even if this
juxtaposition did constitute an improper remark, Jacob has not shown how it
substantially prejudiced him such that reversal is warranted. Shah argues
that the Government’s alleged personal attacks launched against Rimlawi
were improper and prejudicial. A prosecutor described Rimlawi and his
attorney as “cut from the same sleeve. Dirty, nasty.” The Government
“regrets” this statement, but it argues that it is not clear Shah has standing
to object to a statement made about Rimlawi. Also, even if Shah does have
standing, the Government argues that he cannot prove that he received an
unfair trial as a result. Rimlawi does not object to the statements made
concerning him. Even assuming those remarks were improper and that Shah
has standing to object, we agree with the Government that Shah cannot clear
the high burden of plain error review and reverse his conviction.
Relatedly, even assuming some of the other objected-to statements
amounted to misconduct, the defendants have not carried their burden of
showing substantial prejudice. The evidence against these defendants was
strong, these allegations of misconduct occurred solely during closing
argument, and the court offered several limiting instructions throughout the
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trial. Defendants have not shown that, taken together, the “remarks cast
serious doubt on the correctness of the jury’s verdict.” 230
XVI
Shah next argues that the district court erred in applying the abuse-of-
trust sentencing enhancement to his sentence, but the court did not clearly
err.
The district court imposed a two-level enhancement under U.S.S.G.
§ 3B1.3. The enhancement applies “[i]f the defendant abused a position of
public or private trust . . . in a manner that significantly facilitated the
commission or concealment of the offense.” 231 Shah does not dispute that
he occupied a position of trust. His only argument is that he did not use it to
facilitate significantly any crime he may have committed. We review for clear
error, upholding the enhancement “so long as it is plausible in light of the
record as a whole.” 232
We see no clear error in the district court’s finding that Shah used his
position of trust to facilitate his crime. He does not dispute that he occupied
a position of trust as his patients’ surgeon, and offered Forest Park as a
facility where those patients could have their surgeries performed. He was
then paid for that referral contrary to law.
Shah points to the fact that the sentencing memorandum discusses
how Shah was different because he treated DOL patients. Shah argues that
230
See United States v. Aguilar, 645 F.3d 319, 325 (5th Cir. 2011) (quoting United
States v. Gracia, 522 F.3d 597, 603 (5th Cir. 2008)).
231
U.S.S.G. § 3B1.3; see also United States v. Ollison, 555 F.3d 152, 165-66 (5th Cir.
2009).
232
United States v. Miller, 607 F.3d 144, 148 (5th Cir. 2010) (quoting United States
v. Ekanem, 555 F.3d 172, 175 (5th Cir. 2009)).
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the memorandum then ignored that difference by saying he “still took a
kickback.” Shah calls the district court’s alleged failure to account for this
difference nonsensical because the district court’s omnibus order applied the
enhancement to the other surgeons because they were lying to private
patients and private insurers. But Shah provides no reason why his
enhancement should be any different just because he lied to federal as
opposed to private patients.
We may affirm “on any basis supported by the record.” 233 The record
is clear that Shah used his position as a referring surgeon to facilitate the
kickback scheme for which he was convicted.
XVII
The defendants argue that the district court erred by including
proceeds from private-pay surgeries in its calculation of the improper benefit
conferred by the kickback scheme. But the district court did not err because
the bribes for private insurance patients occurred in the same course of
criminal conduct as the bribes for federal-pay patients. The calculation was
also otherwise reasonable.
At sentencing, the Government requested and the court applied, the
sentencing enhancement found at USSG § 2B4.1. That enhancement applies
to bribery and kickback cases and enhances the sentence based on the “value
of the improper benefit . . . conferred.” 234 That value is measured by
“deducting direct costs from the gross value received.” 235 Direct costs are
“all variable costs that can be specifically identified as costs of performing”
233
United States v. Chacon, 742 F.3d 219, 220 (5th Cir. 2014).
234
See United States v. Landers, 68 F.3d 882, 884 (5th Cir. 1995).
235
Id. at 886.
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the bought surgeries. 236 Variable overhead costs generally are not direct costs
because they usually “cannot readily be apportioned[,] . . . [and] sentencing
courts are not required to make precise calculations.” 237 The difference in
cost is also usually de minimis. 238 Indirect (fixed) costs, such as rent and debt
obligations, are not deducted from the value of the improper benefit. 239
Henry, Shah, Jacob, and Forrest argue that the court erred in
determining the improper benefit amount for purposes of the sentence
enhancement found at USSG § 2B4.1. They make two primary arguments:
(1) that the district court improperly included the proceeds from Forest
Park’s private-insurance patients in its calculation; and (2) that the court
calculated the direct-cost reduction incorrectly. Henry and Shah preserved
all their arguments below. Forrest did not preserve any, and her claim is
reviewed for plain error. Jacob preserved at least some of his argument, but
he raises an additional argument on appeal that he did not raise below. That
additional argument is reviewed only for plain error. For preserved claims,
we review the district court’s interpretation of the guidelines de novo and its
factual findings for clear error. 240 There is no clear error if the court’s
calculation is plausible; we give district courts wide latitude to calculate the
correct amount; and the amount “need only [be] a reasonable
estimate . . . based on available information.” 241 We begin with whether the
236
See id. at 884 n.2.
237
Id.
238
Id. at 885 n.3.
239
See id. at 885 & n.3.
240
United States v. Harris, 597 F.3d 242, 250 (5th Cir. 2010).
241
See United States v. De Nieto, 922 F.3d 669, 674-75 (5th Cir. 2019) (internal
quotation marks omitted) (quoting U.S.S.G. § 2B1.1 cmt. 3(C)).
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private-pay patient proceeds are properly within the calculation and then
turn to whether that calculation was otherwise reasonable.
A
The improper-benefit sentence enhancement scales according to the
amount of the improper benefit received. 242 The greater the improper
benefit received, the greater the sentence enhancement. Here, the district
court’s calculation of the improper benefit included not only the benefit
received from federal-pay surgeries but also from private-pay surgeries.
Shah, Forrest, and Jacob contend that the AKS conspiracy involved only
federal patients, so the improper-benefit calculation cannot include private-
pay patients. Won also attempts to raise this argument but he does so in a
single sentence unsupported by caselaw or record citations and has forfeited
it. 243
The Government raises two counterarguments. First, it says that the
conspiracy was broad enough to encompass private-pay patients. The
Government argues that the federal patients served merely to satisfy the
jurisdictional hook of the AKS, and that the defendants conspired more
broadly to receive remuneration in exchange for referring patients to Forest
Park. This conduct, the Government argues, is a conspiracy to violate the
AKS because the defendants need not have knowledge of the federal status
of their patients, see supra Part II(A). Second, the Government argues that
even if the private-pay surgeries were not themselves part of the conspiracy,
they were still relevant conduct under the sentencing guidelines and could be
242
See Landers, 68 F.3d at 886.
243
Even if not forfeited, it would fail for the same reasons as those who properly
presented this argument.
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factored into the calculation. 244 The Government argues that U.S.S.G.
§ 1B1.3 requires the court to determine the enhancement based on “all acts
and omissions, committed, aided, abetted, counseled, commanded, induced,
procured, or willfully caused by the defendant” that either “occurred during
the commission of the offense” or “were part of the same course of conduct
or common scheme or plan as the offense of conviction.” 245 The
Government argues that the private-pay patient kickbacks occurred during
the commission of the offense and were part of the same scheme. Shah and
Forrest respond that the private-pay patients were not part of the same
common scheme because they involved different victims.
As in Part II(A), we disagree with the Government’s argument that
the federal healthcare program reference in the AKS is only a jurisdictional
hook, knowledge of which is not necessary for conviction. The defendants
needed to have knowledge that services provided to referred patients may be
paid in whole or part by federal healthcare programs.
The private-pay surgeries were relevant conduct under U.S.S.G.
§ 1B1.3 and properly included within the calculation. The sentencing
guideline is broad, defining relevant conduct to include “all acts and
omissions” that occurred “during the commission of the offense” or as
“part of the same course of conduct or common scheme.” 246 “An
unadjudicated offense may be part of a ‘common scheme or plan’ if it is
‘substantially connected to the offense of conviction by at least one common
244
United States v. Thomas, 973 F.2d 1152, 1159 (5th Cir. 1992) (noting that a district
court “must consider a defendant’s relevant conduct” in calculating the guideline range).
245
U.S.S.G. § 1B1.3.
246
Id. § 1B1.3(a) (emphasis added).
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factor, such as common victims, common accomplices, common purpose, or
similar modus operandi.’” 247
While it may be a close call whether the private-pay surgeries
“occurred during the commission of the offense,” they certainly involved the
same accomplices (Smith, Burt, and Beauchamp), were completed for the
same purpose (bilk insurance providers, whether private or federal, for a high
reimbursement rate), and operated with the same modus operandi (pay
surgeons to refer surgeries to Forest Park and then use Jacob’s pass-through
entity to launder the money). 248 The district court did not err in finding that
the private-pay surgeries were part of the same common scheme as the
federal-pay surgeries.
Shah and Forrest have no answer for this other than an argument that
the private-pay surgeries involved different victims, but that does not matter
given the substantial overlap of the crimes in all other ways. 249 The
defendants also argue that the private-pay surgeries were not relevant
conduct because relevant conduct must be criminal, and Jacob argues that
the Government never requested a relevant conduct finding in the PSR. 250
Both arguments fail. First, the Government identified several statutes that
the private-pay surgeries may have violated. The district court recognized
that the Government “ha[d] proven by a preponderance of the evidence” the
247
United States v. Ortiz, 613 F.3d 550, 557 (5th Cir. 2010) (alteration omitted)
(quoting United States v. Rhine, 583 F.3d 878, 885 (5th Cir. 2009)).
248
See id.
249
See id.
250
Jacob also argues, unpreserved, that the prosecution never requested that the
PSR analyze relevant conduct and that the PSR did no such thing. But the Government
did request it, the PSR did analyze it, and the district court did as well. This is not plain
error.
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relevant conduct with which it sought to enhance the sentence. Second,
Jacob’s argument is unpreserved, so we review only for plain error, and he is
incorrect that the Government did not bring up relevant conduct—it did. So
did the PSR. The district court did as well.
Finally, Jacob raises a challenge that his enhancements were based on
acquitted conduct in violation of the Sixth Amendment right to trial by
jury. 251 He argues that sentences that consider acquitted conduct necessarily
diminish the jury trial right. In rebuttal, the Government maintains first that
Jacob was not acquitted of conspiracy to violate the Travel Act despite being
acquitted of the substantive Travel Act counts. It further argues that under
this court’s precedent, even acquitted conduct can be the basis of an
enhancement so long as the district court finds that the defendant engaged in
the conduct by a preponderance of the evidence. 252
While distinguished jurists have questioned the constitutionality of
using acquitted conduct for sentencing enhancements, 253 this court has
previously recognized that the Supreme Court’s holding in United States v.
251
As above, Won raises a similar argument in passing. He has forfeited it by failing
to brief it.
252
See United States v. Watts, 519 U.S. 148 (1997) (holding that sentencing courts
may consider conduct of which the defendant has been acquitted).
253
See, e.g., McClinton v. United States, 143 S. Ct. 2400, 2401 (2023) (Sotomayor,
J., respecting the denial of certiorari); Jones v. United States, 574 U.S. 948, 948-50 (2014)
(Scalia, J., joined by Thomas & Ginsberg, JJ., dissenting from denial of certiorari)
(encouraging the Court to decide whether the Sixth Amendment’s jury trial right permits
judges to sentence defendants based on uncharged or acquitted conduct); United States v.
Sabillon-Umana, 772 F.3d 1328, 1331 (10th Cir. 2014) (Gorsuch, J., majority) (citing Justice
Scalia’s dissent in Jones); United States v. Bell, 808 F.3d 926, 928 (D.C. Cir. 2015)
(Kavanaugh, J., concurring in denial of rehearing en banc) (per curiam) (“Allowing judges
to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise
would impose seems a dubious infringement of the rights to due process and to a jury
trial.”).
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Watts 254 forecloses Sixth Amendment challenges to the use of acquitted
conduct at sentencing. 255 In United States v. Hernandez, 256 we specifically
noted that “[Sixth Amendment] challenges are foreclosed under our
precedent” and that “the sentencing court is entitled to find by a
preponderance of the evidence all the facts relevant to the determination of
a sentence below the statutory maximum.” 257 For this reason, Jacob’s
argument is unavailing. The record reflects that the district court considered
Jacob’s arguments against the use of acquitted conduct, as well as the
applicable guidelines range. Jacob thus has not shown that the district court
erred when it enhanced his sentence based on acquitted conduct.
B
Shah, Forrest, and Henry object to the district court’s calculation of
the direct-cost reduction. The district court analyzed the hospital’s direct
costs as defined by this court’s Landers 258 formula. It looked to costs tied
directly to the surgeries performed, i.e., supplies used in the surgery that
could not be reused at a later surgery. It determined that the direct costs
averaged out to about 21.48% of the total amount Forest Park received in
reimbursements. The total amount received in reimbursements, the court
reasoned, was the starting place in determining the improper benefit
received, and no party challenges this.
254
519 U.S. 148 (1997).
255
See United States v. Hernandez, 633 F.3d 370, 374 (5th Cir. 2011); see also United
States v. Preston, 544 F. App'x 527, 528 (5th Cir. 2013) (unpublished) (per curiam); United
States v. Cabrera-Rangel, 730 F. App'x 227, 228 (5th Cir. 2018) (unpublished) (per curiam).
256
633 F.3d 370 (5th Cir. 2011).
257
Id. at 374.
258
68 F.3d 882 (5th Cir. 1995).
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Shah and Forrest challenge only the 21.48% reduction, arguing that it
should be a reduction of 94.2% instead. They arrive at their figure based on
the hospital’s net profit margin on the theory that the court had to deduct all
costs attributable to the surgery such that the only amount left is the
hospital’s net profit. We rejected this exact argument in Landers and do so
again. 259
Henry brings a narrower argument, contending that the district court
erred because it did not account for the salaries of hospital staff. But again,
his argument runs against this court’s holding in Landers that “variable
overhead costs that cannot easily be identified” are not direct costs. 260
Although we did not explicitly include staff salaries in the definition of
variable overhead costs, they will usually fall within that category of costs.
Like rent, debt obligations, and other general overhead costs, staff salaries are
not likely to change much because of a specific surgery. Regardless of how
many surgeries are performed, those salaries are still paid. In this way, the
salaries are costs “incurred independently of output” and not deductible
under Landers. 261 Henry has not established that the salaries are not
independent of output.
Henry’s other arguments to the contrary are unavailing. He cites a
study that included salaries as a measure of direct costs, but the study is
inapposite. “Direct costs” has a very broad meaning when used in an
accounting sense, sufficient even to include staff salaries, but we rejected that
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