646 F.3d 304 (5th Cir. 2011), 10-30128, United States v. Girod

Docket Nº:10-30128, 10-30339.
Citation:646 F.3d 304
Opinion Judge:PRADO, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Ernestine GIROD; Una Favorite Brown, Defendants-Appellants. United States of America, Plaintiff-Appellee, v. Melinda Langley, Defendant-Appellant.
Attorney:Patrice Harris Sullivan, Diane Hollenshead Copes, Jordan Samuel Ginsberg (argued), Stephen Andrew Higginson, Asst. U.S. Attys., New Orleans, LA, for Plaintiff-Appellee. Martin Edward Regan, Jr., Martin E. Regan, Jr. & Associates, Catherine Lynn Bartholomew (argued), New Orleans, LA, Christopher A...
Judge Panel:Before HIGGINBOTHAM, DENNIS and PRADO, Circuit Judges.
Case Date:July 11, 2011
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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646 F.3d 304 (5th Cir. 2011)

UNITED STATES of America, Plaintiff-Appellee,

v.

Ernestine GIROD; Una Favorite Brown, Defendants-Appellants.

United States of America, Plaintiff-Appellee,

v.

Melinda Langley, Defendant-Appellant.

Nos. 10-30128, 10-30339.

United States Court of Appeals, Fifth Circuit.

July 11, 2011

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Patrice Harris Sullivan, Diane Hollenshead Copes, Jordan Samuel Ginsberg (argued), Stephen Andrew Higginson, Asst. U.S. Attys., New Orleans, LA, for Plaintiff-Appellee.

Martin Edward Regan, Jr., Martin E. Regan, Jr. & Associates, Catherine Lynn Bartholomew (argued), New Orleans, LA, Christopher Albert Aberle (argued), (Court-Appointed), Mandeville, LA, for Defendants-Appellants.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before HIGGINBOTHAM, DENNIS and PRADO, Circuit Judges.

PRADO, Circuit Judge:

Ernestine Girod, Una Favorite Brown, and Melinda Langley were each indicted on one count of conspiracy (18 U.S.C. § 371) and multiple counts of health care fraud (18 U.S.C. § 1347), and Brown and Girod were charged with three counts each of making false statements to law enforcement officers (18 U.S.C. § 1001), all in relation to fraudulent Medicaid reimbursement claims made through A New Beginning of New Orleans (" ANBNO" ), a Medicaid Early Periodic Screening Diagnosis and Treatment (" EPSDT" ) organization that provides minor, disabled Medicaid recipients with Personal Care Services (" PCS" ). A jury convicted the three women on all but three of Langley's health-care fraud counts. Brown, Girod, and Langley separately appeal their convictions and sentences on various grounds. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Brown and Langley worked for ANBNO, a PCS provider co-owned by Akasia Lee, a cooperating witness in the case who pleaded guilty to conspiracy. Specifically, ANBNO provided PCS to disabled children covered under Medicaid, teaching them activities of daily living (" ADL" ) like personal hygiene, light food preparation, and basic house cleaning. Each child had a specific plan of care (" POC" ) that detailed the activities the PCS provider could provide and Medicare would reimburse. EPSDT PCS services could only be provided in the child's home, and ANBNO employees providing PCS— including

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Brown and Langley— underwent training in proper documentation, rules, regulations, and services provided. A binder of all EPSDT rules, regulations, guidelines, time sheets, and the POC was placed in the home of each PCS client. Brown and Langley claimed to provide PCS services to Medicaid recipients, and Girod had three children on Medicaid who purportedly received PCS from ANBNO employees.

From 2001 to 2006, the defendants, among others, engaged in a conspiracy to defraud Medicaid by creating false documentation that PCS services were provided to Medicaid recipients when the services were not provided. Brown and Langley submitted false PCS time sheets and daily care sheets saying they provided specific PCS services listed in their clients' POCs, at specific times, when these services were not provided. In reality, Brown, Langley, and other ANBNO PCS providers failed to attend mandatory trainings, transported PCS clients around in their cars, took clients to social settings like the park, and babysat them— actions that are all verboten by Medicaid and not Medicaid reimbursable. Parents of PCS-eligible children, including Girod, signed off on their children's PCS time sheets in exchange for kickbacks from Lee and other ANBNO PCS providers. In sum, ANBNO defrauded Medicaid out of approximately four million dollars.

On June 5, 2008, a grand jury returned an indictment against Girod, Brown, and Langley, among others. A superceding indictment was issued on February 12, 2009, charging Girod with conspiracy (Count 1), twenty-five counts of health care fraud (Counts 15-39), and three counts of false statements to law enforcement officers (Counts 60-62); Brown with conspiracy (Count 1), ten counts of health care fraud (Counts 5-14), and three counts of false statements to law enforcement officers (Counts 63-65); and Langley with conspiracy (Count 1) and thirteen counts of health care fraud (Counts 17-59), among other defendants.

Brown filed a motion to dismiss the indictment due to prosecutorial misconduct in May 2009. After the magistrate judge conducted a hearing, he recommended that the district court deny the motion. The district court conducted two additional days of hearings on Brown's motion and summarily denied it on August 24, 2009. A jury trial was held from September 4, 2009, to September 9, 2009. The jury convicted Brown on Counts 1, 5-14, 63, and 65; Langley on Counts 1 and 47-56; and Girod on Counts 1, 15-39, and 60-62. Girod was sentenced to 24 months' imprisonment, a special assessment, and restitution in the amount of $68,140. Brown was sentenced to 21 months' imprisonment, a special assessment, and restitution in the amount of $33,405. Langley was sentenced to 15 months' imprisonment, a special assessment, and restitution in the amount of $47,717. Each also received a three-year term of supervised release.

The defendants separately timely filed their notices of appeal.

II. ANALYSIS

A. Brown's Motion To Dismiss the Indictment Due to Prosecutorial Misconduct

The Sixth Amendment guarantees a criminal defendant the right to present witnesses to " establish his defense without fear of retaliation against the witness by the government." United States v. Dupre, 117 F.3d 810, 823 (5th Cir.1997). " In addition, the Fifth Amendment protects the defendant from improper governmental interference with his defense." United States v. Bieganowski, 313 F.3d 264, 291 (5th Cir.2002) (internal quotation

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marks and citations omitted). Thus, " substantial governmental interference with a defense witness' choice to testify may violate the due process rights of the defendant." Dupre, 117 F.3d at 823 (quoting United States v. Whittington, 783 F.2d 1210, 1219 (5th Cir.1986)). Whether a defendant has made a showing of substantial interference is a fact question, and we therefore review a claim of prosecutorial intimidation for clear error. United States v. Thompson, 130 F.3d 676, 686-87 (5th Cir.1997). Any violation is subject to harmless-error analysis, and we " will not reverse unless the prosecutor's conduct was sufficiently egregious in nature and degree so as to deprive [the defendant] of a fair trial." United States v. Skilling, 554 F.3d 529, 567 (5th Cir.2009) (internal quotation marks and citation omitted) (substitution in Skilling, aff'd in part and vacated on other grounds by Skilling v. United States, __ U.S. __, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010)).

Likewise, " as a general rule, ‘ [w]itnesses ... to a crime are the property of neither the prosecution nor the defense. Both sides have an equal right, and should have an equal opportunity, to interview them.’ " United States v. Soape, 169 F.3d 257, 270 (5th Cir.1999) (quoting Gregory v. United States, 369 F.2d 185, 188 (D.C.Cir.1966)) (second alteration in original). Of course, " [n]o right of a defendant is violated when a potential witness freely chooses not to talk [to defense counsel]." In re United States, 878 F.2d 153, 157 (5th Cir.1989).

1. The Government's Visits to Defense Witnesses Allen and Randall

Brown argues that the Government substantially interfered with her right to present witnesses in her favor when agents visited Semaj Allen and Lakita Randall— both identified as defense witnesses on Brown's pretrial disclosures— and questioned them regarding the Medicaid fraud at ANBNO. Allen and Randall subsequently declined to testify on Brown's behalf. They were school teachers who worked with Brown at the same school and were PCS providers with ANBNO. Brown alleges that Allen and Randall would have testified that Brown spent time with the Morales boys— two children Brown provided PCS for— before school, at the park, and at football practice.1

We affirm Brown's convictions on this ground because the district court did not clearly err in deciding that the agents' conduct did not substantially interfere with Allen's and Randall's free choice to testify. Both the prosecution and the defense have a right to interview witnesses; the fact that Allen and Randall were interviewed after the Government found out they were on the defense witness list was not improper, even if the Government previously knew Allen and Randall were connected with ANBNO. The undisputed testimony was that the two agents asked to talk with both witnesses about the ANBNO investigation, informed them that they did not have to speak with them, and told them that answering questions was voluntary and that they could stop the interview at any time. The agents did not tell Allen or Randall that they were targets of the Medicaid fraud investigation nor did they tell Allen or Randall that they had engaged in wrongdoing or criminal conduct. Nor did the " Martha Stewart" warning that Allen's

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and Randall's only obligation was to speak truthfully amount to " substantial interference" in their decision to testify. See Bieganowski, 313 F.3d at 291-92 (holding that prosecutor's comment that a defense witness could be prosecuted for perjury did not amount to substantial interference); Thompson, 130 F.3d at 687 (holding that a warning of the consequences of perjury " even if carried out in a caustic manner, is no cause to dismiss the indictment against the defendants" ) (citation omitted).

In...

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