Petition for Writ of Certiorari — Shelton Barnes, Petitioner v. United States
Supreme Court briefJun 1, 2021
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No. _________
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------SHELTON BARNES,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
---------------------------------♦--------------------------------On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Fifth Circuit
---------------------------------♦--------------------------------PETITION FOR WRIT OF CERTIORARI
---------------------------------♦--------------------------------EDWARD J. CASTAING, JR.
CRULL, CASTAING & LILLY
601 Poydras Street, Suite 2323
New Orleans, LA 70130
Tel.: (504) 581-7700
Fax: (504) 581-5523
ecastaing@cclhlaw.com
Counsel of Record for Petitioner
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
QUESTIONS PRESENTED
(1) Does the Panel Decision of the United States
Court of Appeals for the Fifth Circuit, rendered
October 28, 2020 (979 F.3d 283 (5th Cir. 2020), WL
6304699, rehearing denied January 4, 2021 (hereinafter Panel Decision), conflict with its own authority, holding and reversal in U.S. v. Ganji, 880
F.3d 760 (5th Cir. 2018), which is not substantially
distinguishable from the present case, and with
the same lack of criminal intent and sufficiency of
evidence?
(2) Does the Panel Decision conflict with the holding
and reversal in the co-defendant and alleged coconspirator appeal in United States v. Nora, 988
F.3d 823 (5th Cir. 2021), WL 716628, No. 18-31078,
rendered February 24, 2021, by a different Panel
of the Fifth Circuit?
(3) Does the Panel Decision conflict with U.S. v. Nora,
supra, and U.S. v. Ganji, supra, both decisions from
the Fifth Circuit?
(4) Does the Panel Decision create a lack of uniformity with U.S. v. Nora, supra, and U.S. v. Ganji,
supra, and other cases, particularly regarding sufficiency of evidence for the knowledge and intent
requisite to sustain a conviction?
(5) Did the improper comments and conduct by the
government prosecutor, during the government’s
rebuttal closing argument, as repeatedly found by
the District Court and Fifth Circuit Panel, constitute a violation of Petitioner’s rights to due process
of law and a fair trial; and, unconstitutionally and
ii
QUESTIONS PRESENTED – Continued
substantially impeach the integrity of the proceedings, at that key and crucial time period, especially
without the ability of the victim, Petitioner, to defend himself from it?
(6) Was the District Court’s and Panel’s reading and
interpretation of the obstruction statute, 18 U.S.C.
1516(a), as applied to that count of conviction,
Count 47, reasonable; or, unconstitutionally overly
broad to fit the government’s case and sustain the
convictions, even though the statute can clearly
and reasonably be read to require that Petitioner,
and not Medicare, be the recipient of $100,000.00
per year benefit from his Medicare billings, or, at
least, so confusing as to violate the rule of lenity,
and due process of law.
(7) Did the purported expert, Dr. Brobson Lutz’s unqualified, confusing, misleading and uneducated
testimony as an expert, particularly in the area of
homebound status, unconstitutionally and unreasonably confuse the jury and deprive Dr. Barnes of
due process of law and a fair trial?
iii
PARTIES TO THE PROCEEDING
Petitioner, Shelton Barnes, was the defendant in
the District Court proceedings and appellant in the
Court of Appeals proceedings. Respondent, United
States of America, was the plaintiff in the District
Court proceedings and appellee in the Court of Appeals
proceedings. App. 1, 64, 66.
RELATED PROCEEDINGS
United States v. Shelton Barnes, 979 F.3d 283 (5th Cir.
2020).
United States v. Nora, 988 F.3d 823 (5th Cir. 2021).
iv
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ................................
i
PARTIES TO THE PROCEEDING ......................
iii
RELATED PROCEEDINGS ................................
iii
TABLE OF AUTHORITIES .................................
vi
PETITION FOR A WRIT OF CERTIORARI .......
1
OPINIONS BELOW.............................................
1
JURISDICTION ...................................................
1
CONSTITUTIONAL AND STATUTORY PROVISIONS ...............................................................
2
STATEMENT OF THE CASE..............................
2
REASONS FOR GRANTING THE PETITION ...
4
SUMMARY ..........................................................
4
ARGUMENT ........................................................
6
CONFLICT OF AUTHORITIES – INSUFFICIENCY OF KNOWLEDGE AND INTENT ....
6
REVERSIBLE ERROR BY IMPROPER PERSONAL ATTACK BY PROSECUTOR DURING REBUTTAL CLOSE ................................. 20
COUNT 47 – OBSTRUCTION OF FEDERAL
AUDIT – LACK OF JURISDICTIONAL ELEMENT ............................................................... 29
DR. LUTZ ......................................................... 34
CONCLUSION..................................................... 34
v
TABLE OF CONTENTS – Continued
Page
APPENDIX
United States Court of Appeals for the Fifth Circuit, Opinion, October 28, 2020 ....................... App. 1
United States Court of Appeals for the Fifth Circuit, Judgment, October 28, 2020 .................. App. 64
United States District Court for the Eastern
District of Louisiana, Judgment, September
28, 2018 .......................................................... App. 66
United States Court of Appeals for the Fifth Circuit, Order Denying Petition for Rehearing,
January 4, 2021 .............................................. App. 80
vi
TABLE OF AUTHORITIES
Page
CASES
United States v. Andrews, 22 F.3d 1328 (5th Cir.
1994) ........................................................................25
United States v. Bennett, 874 F.3d 236 (5th Cir.
2017) ........................................................................25
United States v. Dorr, 636 F.2d 117 (5th Cir. Unit
A, Feb. 1981) ............................................................25
United States v. Ganji, et al., 880 F.3d 760 (5th
Cir. 2018) ......................................................... passim
United States v. Garza, 608 F.2d 659 (5th Cir.
1979) ........................................................................26
United States v. Gracia, 522 F.3d 597 (5th Cir.
2008) ........................................................................26
United States v. Insaulgarat, 378 F.3d 456 (5th
Cir. 2004) .................................................................25
United States v. Mendoza, 522 F.3d 482 (5th Cir.
2008) ........................................................................25
United States v. Morganfield, 501 F.3d 453 (5th
Cir. 2007) .................................................................25
United States v. Murrah, 888 F.2d 24 (5th Cir.
1989) ........................................................................25
United States v. Nora, 988 F.3d 823 (5th Cir.
2021) ................................................................ passim
United States v. Plasser American Corp., et al.,
57 F.Supp. 140 (E.D. PA, 1999) ...............................32
vii
TABLE OF AUTHORITIES – Continued
Page
United States v. Raney, 633 F.3d 385 (5th Cir.
2011) ........................................................................26
United States v. Smith, 814 F.3d 268 (5th Cir.
2016) .................................................................. 26, 27
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. V ....................................................5
U.S. Const. amend. VI ...................................................5
STATUTES
18 U.S.C. § 371 ..............................................................2
18 U.S.C. § 1347 ............................................................2
18 U.S.C. § 1516 .................................................. 2, 3, 30
18 U.S.C. § 1516(a) .................................. 2, 6, 30, 31, 32
28 U.S.C. § 1254(1) ........................................................1
RULES
Federal Rules of Evidence, Rule 404(a)(1) .................22
Federal Rules of Evidence, Rule 404(b)(1) .................27
Federal Rules of Criminal Procedure, Rule 29 ............3
1
PETITION FOR A WRIT OF CERTIORARI
Petitioner/Appellant/Defendant, Shelton Barnes,
through undersigned counsel, respectfully petitions
for a writ of certiorari to review the judgment of the
United States Court of Appeals for the Fifth Circuit in
this case. App. 1, 64, 66.
---------------------------------♦---------------------------------
OPINIONS BELOW
The Opinion of the United States Court of Appeals
for the Fifth Circuit is published at 979 F.3d 283 (5th
Cir. 2020), WL 6304699. The proceedings and record
in the District Court are filed in Case No. 15-cr-61, Section E, The Honorable Susie Morgan presiding. On
January 24, 2021, the Petition for Rehearing was denied. App. 80.
---------------------------------♦---------------------------------
JURISDICTION
The Judgment of the Court of Appeals for the Fifth
Circuit was entered on October 28, 2020. This Court
extended the time within which to file any Petition for
a Writ of Certiorari to 150 days from this date of rendering by the Court of Appeals. The jurisdiction of this
Court is invoked under 28 U.S.C. § 1254(1).
---------------------------------♦---------------------------------
2
CONSTITUTIONAL AND
STATUTORY PROVISIONS
This case involves the U.S. Constitution, 5th Amendment – Due Process of Law, 6th Amendment – Fair
Trial, 18 U.S.C. § 371, 18 U.S.C. § 1347, 18 U.S.C.
§ 1516, 18 U.S.C. § 1516(a).
---------------------------------♦---------------------------------
STATEMENT OF THE CASE
On March 12, 2015, the grand jury in the Eastern
District of Louisiana, returned a 26-Count Indictment
against twenty African-American healthcare providers, ranging from aides and nurses to physicians, for
conspiracy to commit healthcare fraud, 18 U.S.C.
§ 1347; conspiracy to pay and receive kickbacks, 18
U.S.C. § 371; and nineteen substantive counts of
healthcare fraud, pertaining to specified patient beneficiaries, 18 U.S.C. § 1347. The original Indictment also
named and included lead defendant, Lisa A. Crinel, the
owner of Abide Home Health, her daughter, manager,
Wilnesha Jakes. Lisa Crinel and others were also
charged separately in Counts 23-26, for fraud in connection with BP claims.
Petitioner, Dr. Barnes, now age 67, was a named
defendant in both conspiracy counts and many of the
substantive counts. Prior to these charges, Petitioner
had a completely clean record, and served his community for more than forty years treating low economic, Medicaid and Medicare, patients in Orleans
Parish, and mainly African Americans and minorities.
3
Petitioner, as an internal medicine specialist, shared
office space with his Pediatrician wife, who testified at
trial. Petitioner taught medical students, residents,
and nurse practitioners for many years.
After the First Superseding Indictment, filed
April 21, 2016, and numerous guilty pleas, the Second
Superseding Indictment was filed September 8, 2016,
against the remaining six defendants, including Dr.
Barnes and three other physicians, Dr. Henry Evans,
Dr. Gregory Molden, Dr. Michael Jones; Paula Jones,
the wife of defendant Dr. Michael Jones; and Abide’s
administrator, clerk or dispatcher, Jonathan Nora.
These are the six defendants that proceeded jointly to
trial.
Dr. Barnes was named in the conspiracy Counts 1,
healthcare fraud, and 2, kickbacks, and with substantive healthcare fraud Counts 3, 4, 5, 6, 7, 8, 9, 10, 11,
12, 13, 14, 15, 16 and 17; along with obstruction of a
federal audit in Count 47, 18 U.S.C. § 1516. He exercised his right to a jury trial, which commenced on
April 10, 2017, and concluded on May 9, 2017, with a
guilty verdict against him on all counts in which he
was charged. ROA.2887, 15853.
At the close of the government’s evidence, and at
the close of all evidence prior to submission to the jury,
Dr. Barnes moved for Judgment of Acquittal under
Rule 29, F.R.Crim.P. Dr. Barnes filed post-trial motions
challenging the sufficiency of the evidence and errors
committed by the government and the court, to wit:
Memorandum in Support of Dr. Shelton Barnes Rule
4
29 Motion (Doc. 1052, ROA.2702); Motion for Judgment of Acquittal, and, in the Alternative for New
Trial, and in Further Alternative, to Arrest Judgment
(Doc. 1074, ROA.2908), Rebuttal Memorandum Submitted by Dr. Shelton Barnes (Doc. 1168, ROA.3083),
Supplemental Memorandum (Doc. 1419, ROA.3166),
Second Supplemental Memorandum by Dr. Shelton
Barnes (Doc. 1435, ROA.3192), Reply Memorandum
(Doc. 1461, ROA.3304). All defense motions were denied by the District Court.
Dr. Barnes was sentenced to a term of imprisonment for 60 months, and restitution in the amount of
$10,850,229.00. ROA.3508, 3547.
Dr. Barnes perfected his appeal. Oral argument
was held on November 6, 2019. The Panel rendered its
unanimous decision on October 28, 2020, affirming the
District Court rulings and convictions. U.S. v. Barnes,
et al., 979 F.3d 283 (5th Cir. 2020). Rehearing was denied on January 4, 2021. Petitioner, Dr. Barnes, thus,
files this Petition.
---------------------------------♦---------------------------------
REASONS FOR GRANTING THE PETITION
SUMMARY
The Opinion and holding of the Fifth Circuit
Panel, 979 F.3d 283 (5th Cir. 2020), is erroneous and
unconstitutional. Due to the shortened time and space
limitations, Petitioner is unable to set forth all pertinent facts, so he adopts, repeats and incorporates his
5
statement of facts in his Brief of Appellant, Doc.
514957710, Pgs. 5-49. These facts show that Petitioner
is covered by the precedent of U.S. v. Ganji, et al., 880
F.3d 760 (5th Cir. 2018), and that there was no criminal
intent according to the Ganji, supra, standard, imputed to Dr. Barnes for the violations of conspiracy,
healthcare fraud and kickbacks, and obstruction of
justice. The Fifth Circuit abandoned and disregarded
its own holding and description of specific intent described in Ganji, supra, and refused to apply it in the
present case, or ignored facts in the record that would
require application of Ganji, supra, thereby setting
forth a conflict in the standards in two cases in the
Fifth Circuit, emanating from the Eastern District of
Louisiana.
The companion case of Petitioner’s co-defendant,
Jonathan Nora, U.S. v. Nora, 988 F.3d 823 (5th Cir.
2021), followed the same reasoning as Ganji, supra,
and held the government to the strict standard of
knowledge and intent, similar to Ganji, supra, and reversed and vacated Mr. Nora’s convictions, tragically,
after he had begun serving his sentence of imprisonment. The standard of knowledge and criminal intent
in Ganji, supra, and Nora, supra, on the one hand, and
the lower standard, in the Fifth Circuit’s affirmation
herein, on the other hand, are at substantial odds and
cannot be reconciled.
The Fifth and Sixth Amendment requirements of
due process of law and a fair trial mandate reversal
under the Constitutional standards described in Ganji,
6
supra, and Nora, supra, rather than the present Fifth
Circuit lower standard.
The government’s closing rebuttal argument constituted improper prosecutorial comment and conduct,
as repeatedly recognized by the District Court and the
Fifth Circuit, and substantially and materially infected the proceedings and impeached the integrity of
them.
The jurisdictional element of $100,000 per year in
18 U.S.C. § 1516(a) was totally lacking.
The testimony of the purported expert, Dr. Brobson
Lutz, should never have been allowed.
---------------------------------♦---------------------------------
ARGUMENT
The Supreme Court must grant this Petition for
the following reasons.
CONFLICT OF AUTHORITIES –
INSUFFICIENCY OF KNOWLEDGE AND INTENT
If the reasoning, holding and precedent of U.S. v.
Ganji, supra, and U.S. v. Nora, supra, were followed, as
they should be, the Panel erroneously upheld the guilty
verdicts against Dr. Barnes. There is no question that,
if Dr. Barnes’ facts are similar to the healthcare providers in Ganji, supra, and the reasoning in Nora, supra, the verdicts and Panel opinion must be reversed.
The Panel admitted that “ . . . , of [c]ourse Barnes’ case
7
bears some similarities to Ganji. But we strongly disagree with his assessment that his case is ‘practically
identical, or more than substantially so,’ to Ganji.
Perhaps the most significant difference is the fact
that this case is one of ‘the vast majority’ of concert of
action cases [] [in which] the [government] presents
an insider with direct evidence of the conspiratorial
scheme.” U.S. v. Barnes, supra, at Page 296.
The Panel emphasized the lack of proof of knowledge on the part of the Ganji, supra, defendants, thus
justifying reversal therein, and, particularly, that
there was no “insider” proof in that case, but that Petitioner, Dr. Barnes, was a knowing member of the conspiracy and committed the acts in the Indictment per
insider testimony. The Panel relied on testimony of
Rhonda Maberry, Dr. Barnes’ PA, who pleaded guilty to
conspiring with him to commit healthcare fraud; and
the testimony of Lisa Crinel, the owner of the Abide
facility and lead witness for the government, who also
pleaded guilty, and her daughter Wilnesha Jakes, who
was given a pass, diversion, in return for her mother’s
guilty plea. The Court also relied on testimony by
Eleisha Williams, Dr. Barnes’ biller, who, along with
Ms. Maberry, prepared documents for an audit that the
government claimed was fraudulent and obstructed
justice. Ms. Williams also pleaded guilty without mentioning Dr. Barnes in her Factual Basis. The Panel
found that the testimony of these felons, pleading and
cooperating witnesses, created sufficient inferences of
guilt beyond a reasonable doubt. What the Panel did,
however, was cherry pick certain statements made by
8
these witnesses, mainly on direct examination, without mentioning, much less considering, substantial
countervailing statements by them in direct and cross
examination. The Panel simply ignored other key facts,
which taken as true from government witnesses, can
lead only to a conclusion of reasonable doubt – both respective sets of testimony cannot be true.
The following ignored facts and evidence that came
out under oath during the government’s case substantially oppose and contradict the cherry picked, out of
context statements of these witnesses on which the
Panel’s opinion was based to show, non-substantially,
that there was “insider” proof of criminal intent. The
following facts in the record, when considered and
weighed along with the Panel’s limited chosen facts,
necessarily result in reason doubt.
The lead government witness, and owner of Abide,
Lisa Crinel, made so many exculpatory statements,
countervailing to the Panel’s distinguishment of Ganji,
supra, that the government prosecutor blew up and attempted to impeach her own witness. First, Ms. Crinel
testified repeatedly that she did not believe that she
had violated the law (ROA.8171, 8172, 8174, 8188,
8191, 8192, 8190), in any aspect of the charges against
her and the defendants, except for her own violations
of fraudulent case mix diagnosis committed with her
own internal staff, with no involvement by any of the
doctors, which was confirmed by government witnesses
Linda Johnston, who was not charged in this case,
ROA.8460, 8463-8468, and Gaynell Leal, ROA.9016,
9
9023-9028, 9060, 9063. ROA.7122-7126, ROA.8267,
8270. That was not mentioned in the Panel opinion.
Next, Ms. Crinel testified that the only reason she
pleaded guilty was that the government gave diversion
to her daughter (ROA.6931-6933), who was at the top
management of Abide, and the return of much jewelry and other expensive items. ROA.6937-6942,
ROA.8178-8182.
The Panel also failed to mention that, in no part of
Ms. Crinel’s direct or cross examination, did she testify
to any knowledge on the part of Dr. Barnes regarding
eligibility of patients and the homebound status that
he referred and certified. She did not testify in direct
or cross examination that Dr. Barnes knowingly certified or recertified ineligible patients.
It is true that Ms. Crinel stated on direct, equivocally, that her patients did not need home health,
(ROA.7143, 7144), but, on cross examination, she
stated emphatically that “they were all medically
necessary” . . . “they were all good, right? – Correct.”
ROA.8269. The Panel made no mention of that key fact.
Contrary to Lisa Crinel’s testimony regarding Dr.
Barnes’ Medical Director contract, and what she expected of him, she stated that he fulfilled the terms of
his contract and even earned a raise without requesting one. ROA.8018, 8019, 8026, 8027, 8194, 8195, 8196,
8197.
The Panel also did not mention that Ms. Crinel
stated under cross examination that there was no
10
conspiracy whatsoever with Dr. Barnes and the other
doctors. ROA.8329, 8331, to wit:
Leading up to a later impeachment of its own witness, Ms. Crinel, the government asked her on direct
examination if the Abide patients needed home health,
and she stated that they did, but then reversed her answer:
BY MS. SULLIVAN:
Q. Okay. Did all of your patients need
home care?
A.
I would like to think they did.
Q.
Did they?
A.
No, they didn’t.
ROA.7143, 44.
On cross examination, Ms. Crinel testified that she
believed that all Abide patients certified by the defendant doctors were eligible and medically necessary, to
wit:
Q. And you just testified earlier today that
none of these doctors were certifying any 485s
that weren’t medically necessary, correct?
A. I would think they were all medically necessary.
Q.
They were all good, right?
A.
Correct.
(Emphasis added.) ROA.8269.
11
So, the government’s lead witness, Ms. Crinel, an
alleged conspirator, to prove that patients were not
homebound, were not eligible, the witness who completely ran Abide, and was there all day, every day
and night, stated that all of the Abide patients, including those referred and/or certified, recertified by
Dr. Barnes, were homebound. This defeated the entire
government case and was not brought out by the government on direct examination.
Ms. Crinel provided all information to Mark Dyer,
her CPA, and held nothing back. ROA.8047. He reviewed regular day-to-day bookkeeping at month end,
and spoke to him every week and month. ROA.8047.
He never told her she was doing anything wrong – his
advice was financial. ROA.8051, 8054. She gave all the
facts regarding marketers to Mr. Dyer and attorney
Pizza. ROA.8059. Mr. Dyer knew that Dr. Barnes was
being paid monthly checks under his Medical Director
contract, and referring patients, and knew of payments
to Ms. Maberry and Ms. Williams, as a marketer.
ROA.8006, 8065, 8066.
Ms. Crinel stated under cross examination that
she disclosed to her CPA, Mr. Dyer, that these doctors
were being paid for referrals, and that there was no
conspiracy, to wit:
Q.
And with regard to your CPA, Mr. Dyer –
A.
Correct.
Q. – did you tell him, “Look, I’m paying
money to these doctors for referrals”? Did you
tell him that directly and say that?
12
A.
I’m sure Mark and I had a conversation.
Q.
Now, was he part of the conspiracy?
A. Was Mark part of the conspiracy? He
knew I was paying for referrals to the doctors.
Now, as far as being part of a conspiracy, I
never thought I had a conspiracy going on. So
I would say, no, I didn’t think he was part of a
conspiracy.
Q. So when you talked with Mr. Dyer about
the referrals, you didn’t think you were doing
anything wrong; and he didn’t correct you, correct?
A.
Correct.
ROA.8329. (Emphasis added.)
She repeated that there was no conspiracy with
the doctors. ROA.8329, 8331.
Q. But to your knowledge, he was not a
member of the conspiracy?
A. I didn’t think it was a conspiracy going on
for him to be a member of.
Q. Because you didn’t think you were in a
conspiracy at that time?
A.
No, I didn’t. (Emphasis added.)
Following the truthful testimony under oath by
Ms. Crinel during cross examination, the government
erupted and attempted to impeach her. The government reminded Ms. Crinel of her plea, and Factual Basis, and other statements, but she stood firm that she
13
first learned of any criminal exposure from her new
counsel. ROA.8403, 8405, 8422, 8423, 8428. In spite
of the government’s repeated leading questions, Ms.
Crinel reconfirmed the internal case manager conspiracy for changing diagnosis, without knowledge or input
from doctors. ROA.8440, 8442, 8444.
Why did not the Panel even address those sworn
exculpatory statements?
So, the “insider” testimony arguably required by
Ganji, supra, was not supplied by the lead government
conspirator and witness, Lisa Crinel.
The testimony of Lisa Crinel’s daughter, Wilnesha
Jakes, which provided her mother with the motive to
plead guilty to a crime that her mother did not think
was illegal at pertinent times, also did not provide “insider” information. She actually supported his work
under his Medical Director contract. ROA.6462-6464.
She also believed that there was nothing illegal about
paying Dr. Barnes for patient referrals. ROA.6307, and
did not believe it was illegal to employ marketers.
ROA.6442. This was hardly an inculpatory insider testimony.
The testimony of Eleisha Williams also directly
contradicted any contention by the Panel that she was
an insider providing insider information incriminating
to Dr. Barnes. Yet, her exculpatory facts were not mentioned by the Panel. She did not discuss Dr. Barnes’
G-Code billing with him. ROA.9725. Dr. Barnes did
not instruct her or anyone else to perform any fraudulent or unlawful services in addressing the batch of
14
rejection letters from Medicare that were holding up
Dr. Barnes’ billings, and was the subject of the government’s claims of obstruction of justice in the audit.
ROA.9726-9728, 10301. There was no input from Dr.
Barnes for her preparation of the documents that were
needed for the audit. ROA.9729, 9734, 9735, 10394. Dr.
Barnes was not even present when she was performing
the supposed illegal services. ROA.10321.
The Panel also did not address Ms. Williams’ private, secret and concealed arrangement with others to
split referral fees, all without the knowledge of Dr.
Barnes. ROA.9741, 9742, 10321-10323.
Much unlike an insider, Ms. Williams never believed that she was violating any laws. ROA.10312. Dr.
Barnes never told her to do anything wrong, she never
suspected that he was doing anything illegal, and
would not have worked for him if she had believed
so. ROA.10312, 10313, 10321, 10352. Ms. Williams
pleaded guilty to a marketing offense, which was probably lawful under Ganji, supra, ROA.10330, as she
never felt like she was violating the law at any pertinent time. Her marketing plea under her Factual Basis
made no mention of Dr. Barnes and it had nothing to
do with him. ROA.10330, 10331. The government followed its modus operandi and also sought to impeach
Ms. Williams, rather than accept her’s and Ms. Crinel’s
truth. ROA.10343, 10344, 10347.
There was no information from Ms. Williams that
could remotely be deemed “insider” knowledge of Dr.
Barnes’ criminal intent.
15
The only other witness that could provide “insider”
testimony was Rhonda Maberry, Dr. Barnes’ PA. Certain statements that she made regarding her personal
violations, and not necessarily Dr. Barnes’, was also
mentioned by the Panel as probative of Dr. Barnes’
criminal intent, and contrary to the treatment of Dr.
Murray’s admission or plea in Ganji, supra, which
were found not to be probative of Dr. Ganji’s intent.
The Panel ignored the following.
Ms. Maberry never told Dr. Barnes that she was
signing 485 voucher forms for Dr. Barnes for patients
she had not seen. ROA.1391. She never did tell Dr.
Barnes that she was billing for patients she had
not seen and was committing fraud on Medicare.
ROA.13196. This is completely contrary to nefarious
insider, conspiratorial, information requisite for criminal intent.
Ms. Maberry also testified that she told Dr. Barnes
that patients were kept in home health for long periods
of time, but not that she or Dr. Barnes were doing
anything wrong – she only impuned Lisa Crinel for
that. ROA.13080.
Ms. Maberry also stated on direct examination
that she told Dr. Barnes that some of the patients were
not homebound, but that’s all she said about it.
ROA.13129. She did not specify that she or Dr. Barnes
were responsible for that. And, again, she reasonably
could again have been impuning Lisa Crinel.
16
Ms. Maberry testified that Dr. Barnes merely “implied” that she should fill in information on audit
forms. ROA.13151. Similarly, it was only “implied”
that she had to do wrong as part of her job. More specifically, Dr. Barnes never told her to violate the law.
ROA.13171. She also fessed up to Dr. Barnes that she
was going to the FBI, which she did not, “and tell them
everything that has been going on that I’ve done. I did
say that to him.” But, she never did say to Dr. Barnes
that he was also committing fraud in any way – only
what she had done. ROA.13195. Dr. Barnes did not respond – he did not tell Ms. Maberry not to report to the
FBI.
With regard to the “bag of audit letters,” Dr.
Barnes only told her that the forms had to be completed for the audit. ROA.13221, 13222. He never did
direct and tell her what to do, only to answer the letters, but not how to do it. ROA.13221, 13222. He did
not tell her to falsify or make up any records.
Actually, Ms. Maberry’s testimony about Dr.
Barnes being a bad record keeper fits within the negligence or lax category in Ganji, supra, which does not
establish a crime.
The above, as well as the entire record, supports a
finding that there was not sufficient evidence, especially from an “insider,” to establish guilty knowledge,
specific intent on the part of Dr. Barnes. It is clear that
the testimony of the above witnesses, and others, establish guilt on their own part, but without any proof
of knowledge or involvement by Dr. Barnes, which falls
17
within the exonerating treatment of Dr. Murray’s guilt
in Ganji, supra.
To the extent that Ganji, supra, requires an “insider” to establish knowledge and intent on the part of
Dr. Barnes, these “insiders,” Ms. Crinel, Ms. Williams
and Ms. Maberry, as well as Ms. Jakes, provided no
such linkage, criminally, to Dr. Barnes. This was tantamount to the admissions by government witness, Dr.
Murray, in Ganji, supra, admitting his own guilt, but
not being able to impute that guilty knowledge to Dr.
Ganji. Ganji, supra, at 772, 773, 778. The above facts,
which were not considered, or were ignored by the
Panel, actually exonerate Dr. Barnes.
This also applies to all of the substantive counts in
the Indictment for specific beneficiaries. Neither Dr.
Lutz nor any other witness testified, or could have testified, that they told Dr. Barnes that patients were not
homebound. None of them provided such assessment
to Dr. Barnes. All inferences fail.
The above justification for reversal under Ganji,
supra, is more than sufficient. Adding to that is the
properly applied standards in U.S. v. Nora, supra, from
the same Court of Appeals, but a different Panel, resulting in reversal for Mr. Nora, a co-defendant of Petitioner, strictly on grounds of lack of knowledge and
intent like in Ganji, supra. It is hard to find a more
telltale, glaring admission of the inconsistency, conflict, and lack of due process of law, when one Panel,
in the present case, disregards facts showing lack of
18
knowledge and intent for Petitioner, but, yet, a different Panel, a short time later, finds them.
If the standards described in Nora, supra, as well
as Ganji, supra, had been followed in the present case,
Petitioner’s convictions would have been reversed. Mr.
Nora was a dispatcher for the criminal enterprise,
Abide Home Health, working directly under lead admitted and convicted conspirator, Lisa Crinel, and was
truly an insider in the illegal organization. The facts
are well set forth in Nora, supra. What the court in
Nora, supra, found lacking, was that even though fraud
and wrongdoing was taking place all around him, and
probably even in the same room, he lacked knowledge
of the illegality of billing for ineligible patients and the
other allegations of fraud similar to those against Dr.
Barnes. The court found that there was no specific evidence that Mr. Nora was involved with these allegations, even though they were happening all around
him, or that unlawful kickbacks were occurring for doctors that he lined up for unlawful services not provided, et al. The court found that there simply was no
evidence that “Nora acted with ‘bad purpose’ in carrying out his responsibilities at Abide.” Id. at Page 831.
The Panel found that the following is insufficient evidence to justify a conviction, to wit: “A juror would have
to make a speculative leap about the content of these
trainings and meetings – that they somehow alerted
Nora to the unlawfulness of Abide’s practices and the
actions he took to support them. A rational juror would
need more to conclude that Nora acted ‘willfully.’ ” Id.
at Page 831. The same should apply to Petitioner –
19
neither Dr. Lutz, nor Lisa Crinel, nor the nurses who
pleaded guilty, even those close to him, never told Dr.
Barnes that, based on their observations, patients he
was certifying were not homebound and eligible. The
jury had to make a “speculative leap” to reach that conclusion.
Directly on point with Petitioner herein, “the government identifies no evidence that he [Nora] knew of
any of Abide’s patients were not actually homebound,
or that he knew he was assigning patients to nurses or
doctors who were willing to run a file of regulations
and risk their licenses. Id. at Page 832. Further, in
spite of the fact “that the government had the cooperation of chief orchestrator of Abide’s fraud but nevertheless failed to elicit testimony directly establishing
the knowing complicity of Nora is especially telling.”
This is exactly what occurred with Petitioner, Dr.
Barnes. Lisa Crinel would not testify explicitly, specifically or directly, that she had conspiratorial conversations with Dr. Barnes, or gave him knowledge of such
activities. She even stated that she believed that all of
the patients were eligible and there was no conspiracy
with the doctors. Id. at Page 833.
The court also found lacking the government’s position that Mr. Nora must have known the unlawfulness, because of his longtime role working for Abide,
and his “proximity to the fraudulent activities” can
lead to an inference of knowledge of fraud. Id. at Page
833. Well, if it were not a sufficient inference of Mr.
Nora, it absolutely cannot be for Dr. Barnes, who did
not work on the premises of Abide, and evidence
20
suggested that he only visited a couple of times a
month when necessary to serve as Medical Director. No
one bothered to tell him of the fraud and the illegal activities, including his own nurses on whom he relied,
lawfully under the regulations. And, the “culture” at
Abide is not sufficient to input “bad purpose.” Id. at
Page 830.
Similar to the fallback position in Ganji, supra,
that negligence and lax practices do not satisfy criminal intent, the Panel found that Mr. Nora’s closeness
“would only make Nora guilty of negligently participating in a fraud – it does not prove that Nora acted
‘willfully’ in facilitating ghosting and the fraud it furthered.” Id. at Page 832.
The entire decision in Nora, supra, is commended
to this Court for obvious resolution in favor of Petitioner, Dr. Barnes.
---------------------------------♦---------------------------------
REVERSIBLE ERROR BY IMPROPER
PERSONAL ATTACK BY PROSECUTOR
DURING REBUTTAL CLOSE
During the cross examination on the traverse of
Dr. Lutz’s qualifications to testify as an expert, he was
describing his medical practice, in part, as follows:
Q. Do you see patients in the morning and
in the afternoon?
A. Yes, sir. Except we don’t see them on Friday afternoons.
21
Q.
Why is that?
A.
We take Friday afternoons off.
Q. That’s where we know each other from,
from Galatoire’s, right?
A. I learned that from attorneys, yes, sir, to
take Friday afternoon off.
Q. But you only have lunch at Galatoire’s on
Fridays?
A. No, I don’t eat there on Galatoire’s at
lunch. There’s too many attorneys. They make
too much noise.
(ROA.10067, 10068.)
During the closing argument by counsel for Paula
Jones, he stated, inoffensively, that “Dr. Lutz goes to
Galatoire’s.” (ROA.15764.)
Substantively, offensively and inflammatorily, the
government counsel, during her rebuttal closing argument, responded, as follows:
He [Dr. Lutz] is not an elitist. He worked for
the City of New Orleans when these defendants, these elite defendants probably weren’t
out of medical school. He worked for the City
of New Orleans in home health for the inner
city. So that’s offensive that this man can’t go
out and have a martini at a place he said he
did. Well, he won’t because these defense attorneys are there.
(Emphasis added.) ROA.15769, 15770.
22
. . . These are elite people in the city of New
Orleans. They’ve got four medical degrees
among them. They’ve got a cardiologist fellowship among them. We’ve got a nurse. We’ve got
somebody that brags about having a –
(Emphasis added.) ROA.15770.
Government counsel did so in an explosive and
boisterous way, after she crossed the courtroom from
the podium near the jury to the other side of the room
where the defense tables were located, and looked directly at undersigned counsel and others, just a few
feet away, and made these statements.
Shortly thereafter, and at the appropriate time,
undersigned counsel and others, particularly Jonathan
Nora’s counsel, who is an Episcopal Priest, interrupted
and approached the bench just as government counsel
was about to repeat that Dr. Lutz “brags about having
a. . . .” Counsel gave the court reasons for their objections, as well as in post-trial motions, that the attack
against the defendants as elitist appealed to character
and class; that it was a fiction that undersigned counsel had ever gone to Galatoire’s and drank liquor; that
he has not consumed an alcoholic beverage since the
early 1970’s; that it was downright offensive; and, that
the government counsel should make an apology to the
court and jury. ROA.15771. The government’s statement also implicated Rule 404(a)(1), Federal Rules of
Evidence, as impugning the character of the defendants and their counsel to bring about a conviction.
Shockingly, government counsel did not apologize either at the bench or in open court in front of the jury,
23
and the court did not instruct the jury to disregard the
government’s non-evidentiary and unconstitutional
statements.
Although the court passed up the opportunity in
front of the jury to right the wrong committed by the
government’s improper argument, the court did address these errors in its Order and Reasons denying all
post-trial motions. ROA.3315, 3400. After citing Fifth
Circuit standards for prosecutorial statements during
closing argument, the court held that “[w]ith regard to
the government’s rebuttal comments on the ‘elite’ status of the Defendants and temperance of defense counsel, the Court find that the comments were improper.”
(Emphasis added.) ROA.3402. “The court did not admonish the government in front of the jury or otherwise issue a curative instruction at the time, which
weighs in favor of Mr. Barnes.” (Emphasis added.)
ROA.3402, 3403. The court reasoned that these improper comments did not constitute reversible error,
and may have been partially induced by other counsel.
The court failed to recognize, however, that undersigned counsel for Dr. Barnes, who needed credibility
for himself and his client at that crucial time in the
trial, was deemed a boozer by the government, and his
client an elitist. Nothing counsel for Dr. Barnes said
induced or caused the government’s inflammatory reaction, and the court failed to recognize that government counsel approached undersigned counsel and Dr.
Barnes right in front of where they were sitting, in full
view and hearing of the jury, who would soon deliberate. So, even if another party at the table somehow
24
induced the comment, which did not happen, reversible harm was caused against Dr. Barnes and his counsel.
The prosecutor’s rebuttal argument violated Dr.
Barnes’ rights to due process of law and a fair trial, the
Fifth and Sixth Amendments. She referred to the doctor defendants as “elite,” apparently because they became specialized physicians and “highly educated.”
ROA.15435. On top of that, she attacked the integrity
and credibility of defense counsel charged with the
highest responsibility in our profession – representing
citizens charged with crimes, who suffer the risk and
penalty of loss of freedom and property. She stated, unprovokedly, that “these defense attorneys,” including
undersigned counsel, frequent Galatoire’s for martinis
on Friday afternoons. “These defense attorneys” represented their clients in the most ethical and professional way possible, and nothing they did justified such
an attack on their character in front of the jury. Undersigned counsel has devoted himself solely to the practice of law for more than forty-seven years, and has not
consumed any alcoholic beverage for more than fortyfive of them to the present. And, he has never attended
Galatoire’s on any Friday afternoon, or any other time
and drank alcohol.
It was shocking, especially without reprimand by
the Court, for the United States government to make
such a claim, publicly, in front of the jury, without apology, and without correction and instruction by the
court. It should have been told to the jury that the government attorney did not tell the truth to the jury on
25
that point, which, if reprimanded and corrected by the
court, would have impugned her credibility. Yet, she
proceeded with impunity. Her conduct was so wrong,
that speculation on whether it had an impact on the
jury need not be suggested.
The improper comments and conduct by government counsel were not limited to any particular count
in the Indictment for which Dr. Barnes was convicted
– it applied to the entire case against him.
The following jurisprudence supports reversal for
the “improper” comments, as found by the trial judge.
ROA.3402. United States v. Bennett, 874 F.3d 236, 254
(5th Cir. 2017); United States v. Mendoza, 522 F.3d 482,
491 (5th Cir. 2008); United States v. Morganfield, 501
F.3d 453, 467 (5th Cir. 2007); Morganfield, supra (quoting United States v. Insaulgarat, 378 F.3d 456, 461 (5th
Cir. 2004); United States v. Andrews, 22 F.3d 1328, 1341
(5th Cir. 1994); United States v. Murrah, 888 F.2d 24,
26 (5th Cir. 1989); United States v. Dorr, 636 F.2d 117,
120 (5th Cir. Unit A Feb. 1981).
In the instant case, the prosecutor made statements similar to ones that this Court has condemned
on multiple other occasions. Specifically, she urged convictions based, in part, on her own personal belief and
on evidence that had not been presented at trial. She
said of defendants, “these are elite people,” which is a
statement not based on any witness’s testimony or documentary evidence and amounts to nothing more than
her own personal opinion. Similarly, the accusations
leveled against defense counsel that they spend their
26
Friday afternoons drinking martinis at Galatoire’s has
no basis in reality, let alone the trial record. As the district court admits, these statements were improper
and constitute error.
Accord: United States v. Smith, 814 F.3d 268, 276
(5th Cir. 2016); United States v. Garza, 608 F.2d 659,
666 (5th Cir. 1979); United States v. Gracia, 522 F.3d
597 (5th Cir. 2008); United States v. Raney, 633 F.3d
385, 395-396 (5th Cir. 2011) (“These types of improper
remarks substantially effect a defendant’s rights and
the integrity of this court.”) (Emphasis added.)
The jury was not instructed to disregard the prosecutor’s comments on his “elite” status or his attorney’s
allegedly lush behavior. Instead, the trial court’s overruling of defense counsel’s objections invited consideration of those negative and false attack’s on their
character. The context in which the statements were
made is vitally important on this point – here sits a
doctor accused of neglecting the care of patients who
primarily are impoverished and underserved members
of our community, and a United States prosecutor – the
voice of the United States Government – calls him an
elitist. Indeed, any reasonable beliefs jurors held that
Dr. Barnes cared enough about his patients not to defraud them intentionally were likely dashed when the
prosecutor labeled him an elitist. And, these statements were made on the prosecutor’s closing rebuttal,
so the jurors’ last mental image before they went into
deliberation was likely the false one of the elitist doctors and their defense counsel cavorting in the rooms
of Galatoire’s, martinis in hand, while their patients
27
and clients were left to fend for themselves. Here, the
prosecutor crossed the line. She forgot her role as prosecutor “is not that it shall win a case, but that justice
shall be done.” United States v. Smith, supra, Pg. 277.
Because the prosecutor’s misconduct substantially affected the fairness, integrity, and public reputation of
the proceedings, a reversal is warranted.
The prosecutor’s statements also constituted prohibited character evidence, in violation of Federal Rule
of Evidence, Rule 404(b)(1).
The prosecutor’s accusations that the defendants
are elite and their legal representatives lushes bear
not just on their credibility, but on their character as
well. The negative connotation that comes with being
an “elitist,” especially in this day and age where class
awareness seems heightened, was that those in the
elite class do not care about those in classes below
them. The implication is that Dr. Barnes and his codefendants were not concerned with the little people
they were supposed to be serving and, therefore, were
more likely to defraud them. This false and unfounded
character attack was a thinly veiled offer of proof that
Dr. Barnes acted in accordance with his alleged “elite”
character on the specific occasions that the Government claims were fraud, which is, by definition, prohibited character evidence. Being that this was one of the
last points made to the jury before deliberation, it is
likely that the verdict was seriously affected.
The District Court acknowledged that the prosecutors’ comments during its rebuttal closing argument
28
was “improper,” but that the Court erroneously, and
mistakenly, did not take any action in front of the jury.
Also, not unexpectedly, the government did not apologize for its conduct. The District Court felt that this
was a small part of a very long trial, with much evidence adduced against the defendants, which belied
the crucial and strategic fact that it occurred during
the government’s rebuttal closing, emotionally and
boisterously, when the defense had no opportunity to
rebut it. Actually, that was one of the last things the
jury heard before deliberating – that the defendant
doctors were elitists and their lawyers hung out at the
elite restaurant, Galatoires, on Friday afternoons, sipping alcohol. And, it was not just one blip in the trial,
or the government’s closing, it was a major part
thereof. Government counsel at the top of her voice approached the defense table and shouted her remarks
to everyone, including undersigned counsel who does
not consume alcohol and has never gone to Galatoires
on any afternoon and drink alcohol. But, that was the
impression given to this jury, who must stand guard on
justice, and the lives of these highly qualified AfricanAmerican doctors, healthcare providers, sitting next to
their lawyers who were doing everything they could to
save and preserve their clients’ freedom. Yet, the District Court and the Panel throw all of that out of the
window, thereby permitting it to happen again, and destroy the integrity of the trial proceedings.
The Panel mentioned multiple times that, along
with the District Court, “the prosecutor’s comments
were improper.”
29
The prosecutor’s description of the defendants as elitist was arguably in response
to the defenses initial attacks against Dr.
Lutz. But even assuming that comment was
appropriate, no similar justification validates
the prosecutions comments aimed at defense
counsel. Attacking defense counsel was unwarranted, unprovoked, and irrelevant. The
district court therefore correctly concluded
that the prosecution’s remarks during rebuttal were improper.
979 F.3d at 299.
Nevertheless, in spite of this lower standard, the
Panel agreed with the District Court that “the comments were but a small part of a long trial,” with
“abundant evidence of [Barnes’] guilt.” Id., 979 F.3d at
299. The Panel found “the case against Barnes was
strong,” as a viewpoint for the prosecutors’ improper
comments, thereby providing justification and a green
light for it to happen again. Id. at Page 299. The government, in effect, was permitted to attack the character, not only of the defendants, but of their counsel, all
outside any rule of evidence. The jury was then free to
disregard everything that the defendants’ attorneys
stated to the jury.
COUNT 47 – OBSTRUCTION
OF FEDERAL AUDIT –
LACK OF JURISDICTIONAL ELEMENT
Following the close of the government’s evidence,
and at the close of all evidence, defendant, Dr. Shelton
30
Barnes, made his oral Rule 29 motion. One of the
grounds thereof was that the government did not prove
beyond a reasonable doubt the jurisdictional and essential element under Count 47, Obstruction of a
Federal Audit, 18 U.S.C. § 1516(a), and set forth in
Count 47 of the Second Superseding Indictment, and
on ROA.5201, 5202 of the Court’s Jury Instructions.
ROA.25169.
In further support thereof, Dr. Barnes filed his posttrial memorandum in support (Doc. 1052, ROA.2702).
In its Order and Reasons (Doc. 1078, ROA.2937), the
court erroneously denied the Rule 29 motion for Count
47. The court ruled that Dr. Barnes’ interpretation of
18 U.S.C. § 1516, that the $100,000 jurisdictional
amount applied to Dr. Barnes, and his receipts, was
unreasonable, as the $100,000 jurisdictional element
falls on another government agency, Medicare, as the
only reasonable interpretation. Supporting or countervailing jurisprudence and authorities could not be
found by the parties and the court.
The reasons for this jurisdictional deficiency, and
the grounds for the Rule 29 motion, are as follows.
The government must prove beyond a reasonable
doubt that Dr. Barnes, “with intent to deceive or defraud the United States” influenced, obstructed or impeded Pinnacle in the performance of its official duties
“relating to a person, entity, or program receiving in excess of $100,000, directly or indirectly, from the United
States in any one-year period under a contract or subcontract, . . . .” (Emphasis added.) The common-sense
31
view of this statute is that Dr. Barnes, “as a person,”
must have received funds of the United States exceeding $100,000 “in any one-year period.” The government
failed to prove this jurisdictional threshold. The government may have proven that Dr. Barnes received in
excess of $100,000, total, during the six-year period of
the indictment, but it did not prove, and could not
prove, because it did not happen, that Dr. Barnes received in excess of $100,000 in any one year. That was
fatal to the existence of Count 47.
It is clear from government Exhibit 1211, et seq.,
(ROA.82857) containing the numerous Pinnacle audit
letters, which are addressed solely to Dr. Barnes, in Logansport, Louisiana, “Dear Doctor or Supplier,” that he,
and he alone, was being audited. Clearly, it was Dr.
Barnes’ oversight, G-code billing that was the sole target and subject of Pinnacle’s audit contract.
The government may argue that the recipient of
the statutory threshold was a “program,” and that
“program” is Medicare, itself. This makes no sense,
because that would mean that the United States, paid
$100,000, to an agency of the United States, i.e., Medicare – that the United States paid to itself $100,000 in
any one year. Medicare is the government. The intent
on the face of the statute is that any person, such as
Dr. Barnes, or a program, must be separate from the
United States, and receive in excess of $100,000 from
the U.S., in any one-year period, to be covered by 18
U.S.C. § 1516(a).
32
The face of the statute further illustrates the unreasonableness of the government’s and the court’s interpretation that the government itself, i.e., Medicare,
is the recipient, when the statute states that the funds
are provided “ . . . from the United States in any one
year period. . . .” (18 U.S.C. § 1516(a).) There would be
no need to show funds from the payor, the United
States, to itself, Medicare, because the United States
already has the money – it is only sending funds to itself, according to the government and the court. This is
an unreasonable interpretation and must be stricken.
If there is any doubt on this coverage, and this
Court believes that the statute is ambiguous, the Rule
of Lenity applies. U.S. v. Plasser American Corp., et al.,
57 F.Supp. 140 (E.D. PA, 1999).
The exceptional importance of the Panel’s affirmation of this Count is that it writes out of Congress’ statute, 18 U.S.C. § 1516(a), the jurisdictional element that
the government must prove beyond a reasonable doubt
– that “a person, entity or program . . . ” must receive
“an excess of $100,000, directly or indirectly, from the
United States in any one year period under a contract
or subcontract. . . .” (Emphasis added.) How can the
United States provide something to itself, in excess of
$100,000, yearly, when it already has the $100,000?
The Panel’s opinion makes no sense. The government
already has the $100,000, and it is a fallacious requirement to say that it must provide $100,000 annually to
itself, i.e. the Medicare program. The recipient of the
$100,000 must, in reasonable interpretation, be a third
party, such as Dr. Barnes. Medicare has received more
33
than $100,000 from the United States, as Medicare is
the United States – it does not have to receive anything from itself, from what it already has in its coffers.
To make that element sensible, the recipient has to be
someone who receives the money “from the United
States,” and that can only be a third party, such as Dr.
Barnes. The Panel was interpreting the statute to suit
the government’s lack of evidence, and created a new
rule.
The Panel’s explanation that, “in this case, the audit was undoubtedly related to Medicare, a program receiving in an excess of $100,000 . . . from the United
States.” (Pg. 10.) But, being “related” to Medicare, is
not part of the statute – it has nothing to do with
providing money from the United States to a person or
entity. Certainly, the audit was “undoubtedly related
to Medicare,” but, so what? That does not mean that
the vendor or contractor, Dr. Barnes, received that jurisdictional amount. Further, how can, according to the
statute, funds be provided “from the United States in
any one year period” the payor, to any payee, who is the
United States, itself, i.e. Medicare. The United States
already has the money – it would only be sending funds
to itself, according to the government and the Court.
This is an unreasonable interpretation and must be
stricken by the Panel.
The Panel states that this clear interpretation
from the face of the statute “would inherently thwart
Congress’s intentions. . . .” (Pgs. 10, 11.) But, Congress’s
intentions must be reasonable and make sense, and
34
not be a twisted view for the government to send
money to itself to save the statute.
The government completely failed to even attempt
to prove that Dr. Barnes received $100,000 in any year.
The evidence showed that he clearly did not.
DR. LUTZ
Petitioner/Appellant Dr. Barnes adopts as his own
the briefs, argument and presentation of Co-Defendants/
Appellants, Petitioner, Dr. Henry Evans, and others, on
all issues related to Dr. Lutz.
---------------------------------♦---------------------------------
CONCLUSION
For the foregoing reasons, Dr. Shelton Barnes
prays the Court to grant his Writ of Certiorari and reverse the convictions against him.
Respectfully submitted,
EDWARD J. CASTAING, JR.
CRULL, CASTAING & LILLY
601 Poydras Street, Suite 2323
New Orleans, LA 70130
Tel.: (504) 581-7700
Fax: (504) 581-5523
ecastaing@cclhlaw.com
Counsel of Record for Petitioner
June 1, 2021
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.