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

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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.

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