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Date: 12-04-2021
Case Style:
United States of America v. Jonathon Nora
Case Number: 18-31078
Judge: Stephen A. Higginson
Court:
United States Court of Appeals
for the Fifth Circuit
On appeal from The United States District Court
for the Eastern District of Louisiana
Plaintiff's Attorney: United States Attorney’s Office
Defendant's Attorney:
Description:
New Orleans, LA - Criminal defense lawyer represented defendant with three crimes conspiracy to commit health care fraud.
While Nora is the sole appellant in this case, he was not alone at trial.
Nora was tried and convicted alongside five codefendants for his involvement
in a large home health care fraud and kickback scheme in connection with his
employment at Abide Home Health Care Services, Inc. His codefendants—
Dr. Shelton Barnes, Dr. Michael Jones, Dr. Henry Evans, Dr. Gregory
Molden, and Paula Jones—also appealed their convictions, but their case was
resolved by a separate panel of this court in United States v. Barnes, 979 F.3d
283 (5th Cir. 2020). That panel affirmed the codefendants’ convictions. Id.
at 292. In doing so, it also described the nature of the fraud and kickback
schemes run out of Abide, the facts of which are also relevant to Nora’s
appeal. Id. at 292-94. We thus borrow Barnes’s description of the overall
schemes before turning our focus to Nora’s specific role at Abide.
As described in Barnes:
Dr. Shelton Barnes, Dr. Michael Jones, Dr. Henry
Evans, Paula Jones, and Dr. Gregory Molden were each
previously employed by Abide Home Care Services, Inc., a
home health agency owned by Lisa Crinel. Barnes, Michael
Jones, Evans, and Molden served as “house doctors.” In that
role, the physicians referred patients to Abide for home health
care services. Paula Jones, Michael Jones’s wife, was one of
Abide’s billers. As a biller, Jones would process Medicare
filings. She would use the Kinnser billing system (Kinnser) to
ensure that all appropriate documentation existed for each bill.
As part of Abide’s business model, it would “provide home
health services to qualified patients and then bill Medicare
accordingly.”
Medicare reimburses providers for home health care
services if a particular patient is (1) eligible for Medicare and
(2) meets certain requirements. Those requirements include,
inter alia, that the patient is “‘homebound,’ under a certifying
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3
doctor’s care, and in need of skilled services.” Certifying a
patient for home health care begins with an initial referral,
which typically originates with the patient’s primary care
physician. Next, “a nurse goes to the patient’s home to assess
if [he or] she is homebound, completing an Outcome and
Assessment Information Set [ (OASIS) ].” From the OASIS
assessment, the nurse develops a plan of care on a form known
as a “485” for the prescribing physician’s review. Only a
physician can approve a 485 plan. Physicians are expected to
review the forms to ensure they are accurate. These forms, as
well as a face-to-face addendum certifying that the nurse met
with the patient, are then routed to Medicare. This process
permits payment for one 60-day episode. Patients can then be
recertified for subsequent episodes.
Medicare determines how much will be paid for each
episode based, in part, on the patient’s diagnosis. Each
diagnosis has a corresponding code derived from the
International Statistical Classification of Diseases and Related
Health Problems 9th Revision (an ICD-9 code).
Reimbursements are higher for some diagnoses than others.
So-called “case-mix diagnoses” such as rheumatoid arthritis,
cerebral lipidosis, and low vision, receive higher payments than
other, comparatively simpler diagnoses. As a result, false or
erroneous entries on the OASIS form can ultimately result in
higher Medicare reimbursements.
The government came to suspect that Abide was
committing health care fraud. Specifically, the government
alleged that “Abide billed Medicare based on plans of care that
doctors authorized for medically unnecessary home health
services.” According to the government, several patients who
had received home health care from Abide did not, in fact, need
such services. Each physician had “approved [case-mix]
diagnoses to patients on . . . 485s that were medically
unsupported.” Paula Jones had also participated in the
scheme. Through Kinnser, Abide employees were able to
predict how much Medicare would reimburse for a particular
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4
episode of home health care. If the episode did not meet
Abide’s “break-even point,” Jones would send “the files back
to the case managers to see if they could get the score up.”
These and other actions “fraudulently inflated Medicare’s
reimbursement to Abide.”
Relatedly, the government also came to suspect that
Abide was “pay[ing] doctors, directly or indirectly, for
referring patients.” The government alleged that Crinel (the
owner of Abide) had paid the physicians for patient referrals.
Some of these payments were “disguised as compensation for
services performed as [medical directors]” for Abide. The
government also alleged that Paula Jones’s salary, which had
doubled during her time working for Abide, was based on her
husband’s referrals. This conduct, the government alleged,
constituted a violation of 42 U.S.C. §§ 1320a-7b(b)(1),
(b)(2)—the anti-kickback statute.
Barnes, 979 F.3d at 292-93 (quoting United States v. Ganji, 880 F.3d 760, 764,
777 (5th Cir. 2018)).
In addition to Nora and his codefendants at trial, the Government
alleged that many others participated in the fraud. In total, the Government
indicted 23 individuals. Several pleaded guilty instead of going to trial,
including Crinel—the head of Abide and chief orchestrator of the fraud. As
part of her plea bargain, Crinel agreed to cooperate with the Government and
to testify at trial against Nora and his codefendants. The trial lasted 21 days
and included evidence relating to Nora’s role at Abide and his purported
involvement in the fraud and kickback schemes.
Nora began working at Abide on October 6, 2009, when Crinel hired
him to be a full-time data entry clerk earning $13 an hour. At the time, Nora
was 22 years old and had a high school degree along with some college credits.
On September 27, 2012, he was promoted to the position of office manager
and began earning an annual salary of $60,000. Nora continued to work at
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5
Abide through March 25, 2014, the date the Government executed a number
of search warrants on Abide. Notably, Nora remained salaried throughout his
employment at Abide and the Government points to no evidence that he
received other compensation.
In this role, Nora coordinated new patient intake and admissions. To
begin the processing of a new patient, Nora would field calls from referrers
of potential new patients. Nora would then collect that patient’s Medicare or
other insurance information to verify her benefits covered Abide’s services.
He would then assign a nurse to conduct an evaluation of the patient’s
eligibility for home health care. If the nurse approved the patient for care,
Nora would then assign a field nurse to make the regular home health visits.
Nora also helped with the data entry of forms generated during this process,
such as the OASIS forms and 485s completed by reviewing nurses and case
managers.
Abide received patient referrals from a variety of sources, including
from its own house doctors and other employees, as well as outside doctors
and other non-employees. Abide also engaged in various marketing practices
to identify potential patients, such as by sending recruiters to local health
fairs. Nora was among those assigned to follow up with potential patients
identified by recruiters. Nora would call these potential patients, reintroduce
Abide, and ask about their interest in home health care. If the potential
patient was interested and had her own doctor, Nora would contact that
doctor to see if the doctor approved of home health services for the patient.
If the doctor did approve, the doctor would send a referral form to Nora, who
would in turn submit it to Abide’s reviewing nurses. If the potential patient
did not have her own doctor, Nora would offer the patient the services of one
of Abide’s house doctors, who could review the patient’ssuitability for home
health care. In addition, when a potential patient had her own doctor, but the
doctor did not think home health care was appropriate for that patient, Nora
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6
would follow up with the patient to inform her of her doctor’s
recommendation. Nora would also tell these patients that they might still be
eligible for home health care, but that they would need to be evaluated by a
different doctor. If the patient remained interested in Abide’s services
notwithstanding her own doctor’s recommendation, Nora would offer to
assign the patient to one of Abide’s house doctors for a separate evaluation
of her eligibility.
Beyond the admissions process, Nora was responsible for scheduling
home nursing visits for the patients and processing the visit notes. He also
helped track patient recertifications.
The evidence at trial showed that Nora’s role entangled him, to some
extent, in three practices that were central to Abide’s fraud and kickback
schemes.
The first was Abide’s use of house doctors. As the court in Barnes
described (in the excerpt above), Abide would rely on its house doctors to
approve medically unnecessary plans of care so that it could bill Medicare for
patients who would otherwise not qualify for home health services. By virtue
of his role in assigning prospective patients to these house doctors, the
Government contended that Nora was complicit in this practice.
The second was Abide’s pay-for-referral system. As just discussed,
Abide relied on referrals to acquire new patients. And when a referral
successfully resulted in a new patient, Abide would pay the person who made
the referral. The Government contended at trial that these referral payments
were illegal “kickbacks” in violation of 42 U.S.C. § 1320a-7b(b). There was
abundant evidence at trial showing that Nora was involved in processing
these payments and that he knew they were for patient referrals. Nora helped
maintain a log of referrals and would inform the referrers that their referred
patient had been admitted and that they could thus receive compensation in
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return. Nora was also sometimes instructed to deliver referral payment
checks to those who had made successful referrals.
The third practice at Abide in which Nora was involved was known as
“ghosting.” As described above by the court in Barnes, when a patient
satisfies Medicare’s requirements for home health services, Medicare will
approve payment for one 60-day episode of care. Should the patient need
additional care beyond that episode, they can be recertified for additional 60-
day episodes. However, as Crinel explained at trial, home health is intended
to be a temporary benefit and it raises a “red flag” to Medicare if a patient is
re-certified for too many episodes in a row.
To avoid suspicion, Crinel instituted a system whereby patients would
be “ghosted.” Here’s how ghosting worked: once a patient had been in
Abide’s system for “a couple of years,” Abide would officially discharge the
patient but informally hold onto them, with the assigned nurses continuing
to make home visits. From the patient’s perspective, nothing had changed
and thus the patient had no incentive to leave Abide and seek home health
services elsewhere. But from Medicare’s perspective, this patient was no
longer receiving services from Abide. While a patient was being ghosted,
Abide would not bill that patient or charge Medicare. When Abide’s nurses
would visit a ghosted patient, instead of entering the visit data into Abide’s
electronic record system as was done for formal visits, the nurses submitted
a paper note to record the visit. After 60 days, the ghosted patient would be
re-enrolled as an official patient and Abide would resume billing Medicare.
In contrast to Nora’s involvement in the pay-for-referral scheme, it is
not clear what Nora’s responsibilities were with respect to ghosting. Crinel
maintained a list of patients who needed to be ghosted and would send that
list to Gaynell Leal, a case manager at Abide, and to Nora. It is not clear what
Nora would do once he received that list, but the evidence suggests he was at
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least aware of what was happening (in the sense that he knew patients were
being discharged but still treated by Abide’s nurses1
) and helped make
scheduling changes to facilitate the practice. For example, Leal testified that
after receiving the list from Crinel, she wrote up a note describing that a
certain patient should be discharged and then brought back at a later date.
She gave that note to Nora so that he could, in his capacity as a scheduler,
inform the patient’s assigned nurse that the patient had been discharged but
that the nurse should continue making visits and turning in paper notes
recording the visit data. Leal also testified that “[e]veryone in the office”
knew about ghosting.
Beyond Nora’s general involvement in Abide’s practices, the
Government also introduced evidence related to one of Abide’s patients
named “EvLa.” Nora’s purported involvement with EvLa’s experience at
Abide formed the basis of his conviction for aiding and abetting health care
fraud (Count 27).
EvLa was a patient at a group home that referred its patients to Abide
for home health services. The owner of the group home, Verinese Sutton,
testified that—as a general matter—when she wanted to refer a patient to
Abide she would sometimes call Nora to make the referral. After receiving
the referral, Nora would send a nurse from Abide to assess the patient and
would then refer the patient to Dr. Michael Jones, one of Abide’s house
doctors. Sutton also described that when she went to Abide to pick up her
referral payments, Nora would usually be the one to hand her the checks.
Separately, Sutton also testified that EvLa was one of her group home
patients who received home health care services from Abide. EvLa was under
1 As will be discussed below, it is a separate question whether Nora was aware of
the unlawful purpose behind ghosting.
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the care of Dr. Jones. Other evidence was introduced at trial that showed that
EvLa was not actually homebound and that she was thus ineligible for home
health care.
Aside from the evidence describing Nora’s general involvement in
sometimes fielding Sutton’s referrals to Abide and his handling of Sutton’s
payments, there is no specific evidence about whether he was involved with
EvLa’s experience at Abide or with her treatment by Dr. Jones.
At the conclusion of the Government’s case-in-chief, Nora moved for
a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29,
which the district court denied without particularizing evidence of Nora’s
knowledge of the unlawfulness of Abide’s practices. Just as he had not made
any opening argument, Nora did not call any defense witnesses. The jury
then returned its verdict convicting Nora on all three counts. Following the
verdict, Nora renewed his motion for judgment of acquittal, and in the
alternative, moved for a new trial. The district court denied the motion, again
without pointing to particularized evidence of Nora’s knowledge of the
unlawfulness of Abide’s practices.
The district court sentenced Nora to a concurrent sentence of 40
months’ imprisonment on each count, followed by one year of supervised
release. This was a downward variance from the Guidelines range because
the court found that “the loss calculation overstated [Nora’s] participation.”
The court also ordered Nora to pay restitution to Medicare in the amount of
$12,921,797.
Nora filed a timely notice of appeal.
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II. Legal Standard
As he argued to the district court in his Rule 29 motions, Nora asserts
here that his convictions are not supported by sufficient evidence.
Where, as here, a defendant has timely moved for a
judgment of acquittal, this court reviews challenges to the
sufficiency of the evidence de novo. Though de novo, this review
is nevertheless highly deferential to the verdict. Because of the
shortcomings inherent in examining a cold appellate record
without the benefit of the dramatic insights gained from
watching the trial, we review the evidence and all reasonable
inferences in the light most favorable to the prosecution and to
determine whether any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.
United States v. Nicholson, 961 F.3d 328, 338 (5th Cir. 2020) (internal
quotation marks and citations omitted).
III. Discussion
There is no dispute that Nora worked at Abide while fraud and
kickback schemes occurred, but what is in dispute is whether Nora knew that
his work was unlawful. Or, legally, whether there was sufficient evidence
introduced at trial for a rational juror to conclude beyond a reasonable doubt
that Nora acted “willfully” to defraud Medicare or to pay illegal health care
kickbacks.
18 U.S.C. § 1347(a)(1) makes it a crime to “knowingly and
willfully . . . defraud any health care benefit program.” 18 U.S.C. § 1349
extends that liability to those who conspire to defraud a health care benefit
program.
42 U.S.C. § 1320a-7b(b)(2), the anti-kickback statute, makes it a crime
to “knowingly and willfully offer[] or pay[] any remuneration (including any
kickback, bribe, or rebate)” to induce someone to refer an individual to a
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health care provider for which payment may be made under a federal health
care program.
“As a general matter, when used in the criminal context, a ‘willful’
act is one undertaken with a ‘bad purpose.’ In other words, in order to
establish a ‘willful’ violation of a statute, ‘the Government must prove that
the defendant acted with knowledge that his conduct was unlawful.’”
Bryan v. United States, 524 U.S. 184, 191-92 (1998) (quoting Ratzlaf v. United
States, 510 U.S. 135, 137 (1994)).2
Although the precise meaning of the term “willfully” can vary
depending on the context, id. at 191, this court has held that the general
understanding of the term applies to its use in the general health care fraud
statute and the health care anti-kickback statute. See, e.g., United States v.
Ricard, 922 F.3d 639, 648 (5th Cir. 2019) (“Willfulness in the Medicare
kickback statute means that the act was committed voluntarily and purposely
with the specific intent to do something the law forbids; that is to say, with
bad purpose either to disobey or disregard the law.” (internal quotation
marks and citation omitted)); United States v. St. John, 625 F. App’x 661, 666
(5th Cir. 2015) (per curiam) (accepting the district court’s § 1347 willfulness
instruction, which stated that “willfully . . . means that the act was committed
voluntarily or purposely, with the specific intent to do something the law
forbids; that is to say, with bad purpose either to disobey or disregard the
law” (alteration in original)); see also United States v. Willett, 751 F.3d 335,
2 The Court in Bryan also described the general definition of “knowingly” when
used in the criminal context. Bryan, 524 U.S. at 193 (“[U]nless the text of the statute
dictates a different result, the term ‘knowingly’ merely requires proof of knowledge of the
facts that constitute the offense.”).
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339 (5th Cir. 2014) (holding that § 1347 requires “specific intent to
defraud”).
3
Neither conspiracy nor aider and abettor liability lowers this mens rea
requirement. Conspiracy “has two intent elements—intent to further the
unlawful purpose and the level of intent required for proving the underlying
substantive offense.” United States v. Brooks, 681 F.3d 678, 699 (5th Cir.
2012); see also Willett, 751 F.3d at 339 (“To prove a conspiracy to commit
health-care fraud in violation of 18 U.S.C. § 1349, the government must
prove . . . that the defendant joined in the agreement willfully, that is, with
intent to further the unlawful purpose.” (internal quotation marks and
citation omitted)). And aider and abettor liability under 18 U.S.C. § 2
“results from the existence of a community of unlawful intent between the
aider or abettor and the principal.” United States v. Sanders, 952 F.3d 263,
277 (5th Cir. 2020). In other words, an aider and abettor must share the same
level of intent as the principal. United States v. Williams, 985 F.2d 749, 755
(5th Cir. 1993).
Nora argued throughout his trial and now to us that he “did not have
the intent, knowledge, nor awareness of an illegal health care fraud scheme
or illegal health care kickbacks at Abide required to convict him . . . .” For
example, he argues that while he may have understood that Abide was
3 Importantly, with this general definition of willfulness, for a defendant to act with
knowledge that his conduct is unlawful does notrequire him to have awareness of the specific
law he is charged with violating. Congress has made clear that such a heightened showing
is not required to convict a defendant of committing health care fraud or paying illegal
health care kick-backs; both statutes were amended in 2010 to specify that “a person need
not have actual knowledge of this section or specific intent to commit a violation of this
section.” 18 U.S.C. § 1347(b); 42 U.S.C. § 1320a-7b(h); see also John, 625 F. App’x at 666.
See generally Robb DeGraw, Defining “Willful” Remuneration, 14 J. L. & Health 271
(2000) (discussing various interpretations of “willful” in the context of the anti-kickback
statute and in criminal law more broadly).
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making referral payments for new patients, there was no evidence at trial that
proved that he knew these payments constituted unlawful kickbacks. He
argues the same is true with respect to his role in the various practices that
constituted Abide’s fraud on Medicare and with respect to Abide’s treatment
of EvLa.
We agree. While the Government presented evidence at trial
detailing Nora’s role at Abide and his work responsibilities, the evidence did
not prove that Nora understood Abide’s various practices and schemes to be
fraudulent or unlawful, and thus there was insufficient evidence to conclude
that Nora acted with “bad purpose” in carrying out his responsibilities at
Abide. Furthermore, the evidence the Government points to as suggestive of
Nora’s understanding of the unlawful nature of his work at Abide fails upon
close inspection.
For example, the Government argues that Nora “received training on
compliance, Medicare, and home health,” with the implication being that
this training alerted him to the unlawful nature of Abide’s practices. But the
evidence cited in support of this assertion comprises two pieces of paper of
limited probative value.
The first is a one-page certificate that states that Nora “has
successfully completed” the “2013 Palmetto GBA Home Health Workshop
Series” sponsored by the “HomeCare Association of Louisiana” which is
described as an “approved provider of continuing nursing education.” The
certificate states that the workshop lasted for four hours. Through the
testimony of an investigating agent, the Government only further elicited that
this was a “home-health-specific training” and that Palmetto GBA was a
Medicare contractor. There is no evidence about what this training entailed
or if it discussed health care laws or Medicare regulations at all, let alone
regulations about kickbacks or activity relating to “ghosting.”
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The second piece of evidence is an Abide form signed by Nora on
October 29, 2009, that states that Nora “participated with the compliance
program” and has “been briefed on compliance.” It also states that Nora has
“been made aware that if [Nora] know[s] of any fraudulent behavior and/or
abuse of any kind, [he] is to report this behavior to the CEO and/or
DON/Administrator as soon as possible.” Again, there is no description of
what this compliance program entailed.
In addition, the Government cites the fact that Nora would attend regular staff meetings at Abide, where among other things, “any changes to
Medicare regulations” were discussed. There is no further evidence about
what regulations were discussed at these meetings.
This evidence is insufficient. 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.”
Of course, formal trainings were not the only route for Nora to learn
about health care regulations or the impropriety of Abide’s practices. He
could have learned directly from his colleagues. Indeed, Nora worked with
individuals at Abide who clearly understood that Abide was engaging in widespread unlawful and fraudulent activity. Gaynell Leal, for example, testified
that she knew that Abide engaged in “ghosting” in order to avoid “draw[ing]
a red flag to Medicare.” And Crinel, of course, knew that Nora’s work helped
Abide elude health care regulations.
Both Leal and Crinel testified for the Government to explain Abide’s
schemes. Yet neither person (nor anyone else, for that matter) testified that
Nora understood the unlawful or fraudulent purpose behind Abide’s practices. Neither testified that she had had a conversation with Nora about
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avoiding red flags, or the illicitness of referral payments, or that the house
doctors unlawfully approved medically unnecessary plans of care.
Leal testified that “[e]veryone in the office” knew about ghosting. But
Leal goes no further than that. We do not know whether everyone in the office knew just that Abide engaged in that practice, or whether everyone in the
office knew that the practice was employed to evade Medicare regulations.
Arguably, the “ghosting” practice is inherently suspicious. But even if a reasonable person in Nora’s shoes should have known (or at least suspected)
that ghosting was unlawful, that 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. See United States v. Crow, 504
F. App’x 285, 287 (5th Cir. 2012) (per curiam) (describing that negligence
could not give rise to liability for health care fraud where the statute required
the defendant act “knowingly and willfully”).
Similarly, Crinel testified that there was a “culture” at Abide “that
[Abide] needed to hold on to [its] patients so [it] [could] make payroll” and
that medical necessity did not matter. She also described that she once threatened to fire Leal and Nora when they had discharged a patient. Crinel’s testimony isn’t worthless—if an organization has a pervasive culture of disregard for the rules, that can lend credence to the case that an individual member of that organization is aware of wrongdoing. This type of “everybody
knew” testimony can thus bolster a case that an individual acted willfully.
But here, it just isn’t enough. These two general statements about a business
operating in a health care industry subject to a complex system of laws and
regulations cannot impute “bad purpose” to all 150 employees who worked
there.
Comparing the evidence presented against Nora in this case to the evidence presented in a similar case against a similarly situated defendant
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further reveals what is lacking here. In United States v. Murthil, the defendant, Joe Ann Murthil, was the office manager at Memorial, a home health
care provider. 679 F. App’x 343, 347 (5th Cir. 2017) (per curiam). Memorial
was run by Mark Morad, who used it to orchestrate a broad health care fraud
and kickback scheme similar to the one run by Crinel out of Abide. See id. at
346-47. And like Crinel here, Morad was the Government’s key witness at
trial. Id. at 346. For her role in Morad’s schemes, Murthil was convicted of
conspiracy to commit health care fraud, conspiracy to pay health care kickbacks, and substantive health care fraud—an identical slate of convictions to
Nora’s. Id. On appeal, Murthil argued that there was insufficient evidence to
conclude that she acted with the requisite level of intent. Id. at 348-49. She
argued that she was a “‘pawn’ that the other conspirators took advantage of
‘because she did her job without asking questions.’” Id.
In affirming Murthil’s convictions, this court explained that:
The Government presented testimony that Murthil, the
office manager at Memorial, had two decades of experience in
the home healthcare field and that, in her role as the person in
charge of billing, Murthil understood the healthcare regulations. Among other evidence, Morad testified that Murthil
knew her patients came from recruiters, not from doctor’s referrals, that Murthil understood that clients were not homebound, and that it was Murthil’s responsibility to keep track of
and reassign non-homebound patients away from nurses who
were unwilling to risk their licenses by treating non-homebound patients to nurses who were willing to treat and recertify
such patients. Based on the totality of this evidence in the extensive record, we conclude that a rational trier of fact could
have found that Murthil was knowingly complicit in Morad’s
scheme to defraud Medicare.
. . .
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As to Murthil’s knowledge that the checks she gave to
patient recruiters were illegal kickbacks under 18 U.S.C. § 371,
among other evidence, Morad testified that he had conversations with Murthil regarding the impropriety of selling Medicare numbers and about paying kickbacks to recruiters. He also
testified that a recruiter was allowed to give patient information
only to Murthil, “the only person that [he] trusted” because
he “did not want anyone else in the office to know that [he] was
paying kickbacks to [a recruiter] or that’s how [they] were getting [their] patients.”
Id. at 349.
Thus, in Murthil, the Government had presented evidence that (1)
Murthil had 20 years of experience in the home health care field and understood Medicare regulations due to her role handling billing, (2) she knew patients were not homebound and reassigned those patients to nurses who were
willing to risk their licenses, (3) she had had conversations with Morad about
the impropriety of paying kickbacks to recruiters, and (4) she was the only
one trusted by Morad—the chief facilitator of the fraud.
Nora, by contrast, joined Abide at age 22 with a high school degree.
He did not handle billing. The Government identifies no evidence that he
knew that 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
afoul of regulations and risk their licenses. Crinel, cooperating with the Government, never testified that she had any conversations with Nora about the
impropriety of Abide’s practices, nor that Nora served as a co-conspirator.4
That the Government had the cooperation of the chief orchestrator of
4 Indeed, after its oral argument before this panel, the Government appropriately
notified the court that it had made an overstatement during oral argument, when it asserted
that Crinel had testified specifically that Nora knew about the fraud. She had not done so.
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Abide’s fraud but nevertheless failed to elicit testimony directly establishing
the knowing complicity of Nora is especially telling.
Perhaps recognizing the absence of specific evidence demonstrating
Nora’s knowledge of the unlawfulness of Abide’s practices, the Government
argues that because Nora worked for five years at Abide and his role put him
near many of its fraudulent or illegal practices, “it is difficult to believe that
he was oblivious to what was happening at Abide or his role in it.” In support,
it cites decisions of this court for the purported principle that “proximity” to
fraudulent activities alone can support an inference of knowledge of unlawfulness.
It is true that this court has held that “proximity to the fraudulent activities” can lead to an inference of knowledge of fraud. See, e.g., Willett, 751
F.3d at 340; see also United States v. Thompson, 761 F. App’x 283, 291 (5th
Cir. 2019) (per curiam) (finding the defendant’s “repeated exposure to the
fraud” to be probative of his knowledge). But in those cases, the defendants’
“proximity” to fraud was probative because it directly exposed them to dishonest and fraudulent behavior. For example, in Willett, the question was
whether the defendant knew about the fraudulent “upcoding” of equipment
bills sent to Medicare. 751 F.3d at 340. There, the Government introduced
evidence that the defendant, after delivering equipment to hospitals and receiving confirmatory delivery tickets in return, would then be present (i.e., in
“proximity”) while his co-conspirator (who was also his wife of 35 years)
“ripped off or doctored codes on the delivery tickets,” or wrote in codes
where there were no existing codes. Id. Moreover, in these cases, there was
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other evidence separate from “proximity” that proved the defendants’
knowledge of the fraud.5
Here, as already described, other evidence of Nora’s knowledge is
lacking. And the Government’s argument about Nora’s “proximity” to the
fraud taking place at Abide is devoid of specifics—it does not identify evidence showing that Nora directly observed, or deliberately closed his eyes to,
fraudulent behavior such that a rational juror could infer that he knew about
Abide’s fraud. Therefore, Nora’s “proximity” to Abide’s fraudulent practices does not supply sufficient evidence to convict him.
In sum, even under our extremely deferential review of jury verdicts,
there was insufficient evidence put forth at trial for a rational juror to conclude beyond a reasonable doubt that Nora acted with the knowledge that his
conduct was unlawful. The Government thus failed to prove that Nora acted
“willfully” with respect to each count. Specifically, there was insufficient evidence proving (1) that Nora knew that Abide was defrauding Medicare,
through “ghosting,” its use of house doctors, or otherwise (Count 1);(2) that
Nora knew that Abide’s referral payments constituted illegal kickbacks
5 For example, in Willett, a witness also testified that she had overheard the
defendant and his wife having a suspicious conversation that suggested they were engaging
in wrongdoing and collaborating together. 751 F.3d at 340. In Thompson, there was evidence
that the defendant—a medical marketer—would drive “fully ambulatory” patients to the
doctor and watch them “get in and out of her non-wheelchair accessible car,” all before
referring those same patients to the doctor as needing the use of powered wheelchairs. 761
F. App’x at 291. In United States v. Martinez, in addition to citing the defendants’ proximity
to the fraud, this court also pointed to the existence of direct video evidence showing the
defendants had engaged in fraudulent medical procedures and submitted false claims. 921
F.3d 452, 469, 471 (5th Cir. 2019). Moreover, there was testimony that the non-doctor
defendant in Martinez would make patient referral payments by placing the cash behind a
bathroom medicine cabinet, for the recipient to collect. Id. at 467. In upholding her
conviction, the court pointed to this deceptive practice as evidence that she knew of the
illegality of the payments. Id.
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(Count 2); or (3) that Nora had involvement with EvLa’s treatment at Abide
(let alone that he knew she was not actually homebound) (Count 27).
Outcome: For the foregoing reasons, we REVERSE Nora’s convictions for
conspiracy to commit health care fraud (Count 1), conspiracy to pay illegal
health care kickbacks (Count 2), and aiding and abetting health care fraud
(Count 27). We therefore also VACATE his sentence.
Plaintiff's Experts:
Defendant's Experts:
Comments: