U.S. v. Hickman

• Decision Date: 16 May 2003
• Docket Number: No. 02-20174.,No. 02-20196.,02-20174.,02-20196.
• Citation: 331 F.3d 439
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joyce Lee HICKMAN, also known as Joyce Saunders, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Joyce Lee Hickman, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

331 F.3d 439

UNITED STATES of America, Plaintiff-Appellee, v. Joyce Lee HICKMAN, also known as Joyce Saunders, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Joyce Lee Hickman, Defendant-Appellant.

No. 02-20174.

No. 02-20196.

United States Court of Appeals, Fifth Circuit.

May 16, 2003.

COPYRIGHT MATERIAL OMITTED

Renata Ann Gowie (argued) and James Lee Turner, Asst. U.S. Attys., Houston, TX, for Plaintiff-Apellee.

Roland E. Dahlin, II, Fed. Pub. Def., Brent Evan Newton, Asst. Fed. Pub. Def., Houston, TX, for Defendant-Appellant.

Appeals from the United States District Court for the Southern District of Texas.

Before HIGGINBOTHAM, EMILIO M. GARZA and DENNIS, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Joyce Lee Hickman, also known as Joyce Saunders, was indicted for thirty-two counts of health care fraud, in violation of 18 U.S.C. § 1347, by two separate grand juries. The two cases were consolidated for trial and a jury convicted Hickman on all counts. Her convictions were based on a series of fraudulent transactions billed from 1995 to 2001, by her umbrella company, Total Medical Management, to Medicare, Medicaid, and private insurance companies. During this period, Hickman fraudulently billed over $29 million, and received over $9 million, for durable medical equipment ("DME") that was never ordered and inpatient doctor visits and health care services that never occurred. Hickman was sentenced to two concurrent 120-month terms of imprisonment (on counts one to seventeen of the first indictment and one to fourteen of the second indictment, respectively) and one consecutive 90-month term for count 15 of the second indictment. The court also imposed three years of supervised release, to run concurrently on all counts. Finally, the district court ordered Hickman to pay restitution in the amount of $9,348,654.49 for each case, to run concurrently.

Hickman timely appeals, challenging her sentences on five separate grounds. Specifically, she argues that: (1) the district court's instructions to the jury omitted two elements of the offense and failed to properly charge a third element, and these errors constitute plain error; (2) the district court's removal of one prospective juror for cause constitutes reversible error; (3) her convictions under the first three counts of the first indictment violate the Ex Post Facto Clause; (4) the district court's written and oral sentences were inconsistent and thus the written judgments must be amended; and (5) the district court committed plain error by enhancing her offense level under U.S.S.G. § 2F1.1(b)(8)(B) in light of United States v. Soileau, 309 F.3d 877 (5th Cir.2002). Because we find that Hickman's convictions on three counts violate the Ex Post Facto Clause and remand for resentencing, we do not reach the fourth and fifth issues.¹

The charges arose out of a series of transactions involving Total Medical Management ("TMM"), a company owned by Hickman.² TMM included a billing service for physicians, a DME company, and a medical and dental clinic. Hickman ran virtually every aspect of TMM: among other things, she made every business decision, signed the checks and authorized payments, had reimbursement payments sent directly to her, opened all business mail, and exclusively handled the DME billing.

The first three counts of the first indictment involved electronic claims that were submitted by TMM to Palmetto Government Benefit Administrators ("Palmetto GBA"), the entity that processed Medicare DME claims from various states including Texas. In the fall of 1995, TMM submitted a claim for beneficiary Lee Perkins for a lymphedema pump that was never prescribed or authorized by the treating physician. In fact, the designated physician testified that his signature had been forged and the diagnosis was false. In the spring of 1996, TMM submitted a claim for beneficiary Joyce Richardson for various DME that had never been prescribed. Again the physician listed on the claim testified that her name was listed incorrectly, that she had not authorized the claim, and that she had not treated Joyce Richardson. Around the same time, TMM submitted a similarly fraudulent claim for beneficiary Agatha Moore. Palmetto GBA paid TMM $3,820.54 in Medicare funds for the Lee Perkins claim and $2,579.60 in Medicare funds for the Joyce Richardson and Agatha Moore claims. Hickman endorsed both checks and deposited them in TMM's bank account.

Counts four to seventeen of the first indictment involved claims for fictitious inpatient doctor visits. Hickman's TMM Medical Group submitted the claims on behalf of doctors LaVerne Natalie Carroll and Warren Dailey. These claims involved Medicare, Medicaid, and crossover claims (submitted to both Medicare and Medicaid) processed by Trailblazers Health Enterprise, L.L.C., the Medicare carrier for Texas, and National Heritage Insurance Company, the Medicaid contractor for Texas. The Government presented evidence that Hickman submitted fraudulent claims for at least fourteen different patients, for a total of at least 731 fictitious visits and more than $109,000 in billed charges. Virtually all of this money was deposited in TMM's account, over which Hickman had exclusive access. Hickman's estranged husband testified that they regularly used this account to pay their personal expenses.

The remaining fifteen counts, charged in the second indictment, involved various bogus claims. Dr. Nwannem Obi-Okoye worked as an independent contractor for Hickman at the VIP Medical Clinic. Obi-Okoye testified that Hickman had obtained a second Medicare provider number in Obi-Okoye's name without her permission. Under this second provider number, Hickman fraudulently billed over $74,000 worth of inpatient hospital visits for six different patients to Medicare.

Hickman also submitted over $27,000 worth of chemotherapy claims to Guardian Insurance Company of America for beneficiary Jenazare Placek. Jenazare Placek testified that she had visited Hickman's clinic once, but that she had never received chemotherapy at the clinic.³ Likewise, VIP Medical Clinic submitted at least three false claims for beneficiary Bridgett Roberson to CNA, Roberson's insurance provider, for over $19,000 worth of physical therapy that never occurred. Finally, Hickman billed over $68,000 in claims to UTMB Health Care Systems and NYL-Care, the insurance providers for Texas state employees, on behalf of beneficiary Dena Lee for chemotherapy services that never happened.

We now consider each of Hickman's claims of trial error. Hickman first argues that the district court's instructions to the jury were erroneous for several reasons. Hickman concedes, however, that because she failed to object below, the appropriate standard of review is plain error. United States v. Daniels, 281 F.3d 168, 183 (5th Cir.2002). Error is plain only when it is clear or obvious and it affects the defendant's substantial rights. United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). A defendant's substantial rights are only affected if the error "affected the outcome of the district court proceedings." United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). If these conditions are met, then we will only reverse the error if it seriously affects the "fairness, integrity, or public reputation of judicial proceedings." Cotton, 535 U.S. at 631-32, 122 S.Ct. 1781 (citation omitted).

Hickman points out that the district court did not charge two elements of the offense in the instructions, and failed to properly charge a third element. First, Hickman was charged with violating 18 U.S.C. § 1347, which makes it a crime to defraud a "health care benefit program."⁴ The jury was not instructed, however, that a "health care benefit program" is defined as "any public or private plan or contract, affecting commerce, under which any medical benefit, item, or service is provided to any individual...." 18 U.S.C. § 24(b) (emphasis added). Hickman contends that the district court's failure to charge the jury on the "affecting commerce" requirement is reversible error, because this requirement constitutes a jurisdictional element, and thus an essential element of the offense. See United States v. Pierson, 139 F.3d 501, 503 (5th Cir.1998) (indicating that the words "affecting commerce" create a jurisdictional element).

Hickman is correct that a defendant is entitled to have all the essential elements of a charged offense submitted to a jury and proven beyond a reasonable doubt. United States v. Gaudin, 515 U.S. 506, 510, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995). Likewise, Hickman is probably correct that the jurisdictional element of § 1347 is an essential element of that offense. See, e.g., United States v. Westbrook, 119 F.3d 1176, 1191 (5th Cir.1997) (stating that the "government must provide proof of some effect on interstate commerce" to show that the defendants' actions violated a statute that has an "affecting commerce"-like requirement); United States v. Parker, 104 F.3d 72, 73 (5th Cir.1997) (en banc) (implying that the "affecting commerce" requirement of the Hobbs Act, 18 U.S.C. § 1951, is an essential element of the crime). We need not affirmatively decide this issue though, because, regardless, Hickman has not shown plain error.

The jury found Hickman guilty of defrauding Medicare and Medicaid on multiple occasions, as well as large private insurance companies. Hickman does not argue that Medicare and Medicaid are not "health care benefit programs" with the meaning of § 24(b). And it cannot seriously be contended that these institutions and their functions do not affect commerce. Hickman argues only that the word "commerce" was never used at trial. Even if we assume, arguendo, that this error was plain and affected Hickman's substantial rights, the final prong of the plain error standard is not satisfied. The evidence clearly shows...