U.S. v. Hayes

• Decision Date: 03 August 2009
• Docket Number: No. 08-2296.,No. 08-2245.,08-2245.,08-2296.
• Citation: 574 F.3d 460
• Parties: UNITED STATES of America, Appellee, v. Chante M. HAYES, Appellant. United States of America, Appellee, v. Gwendolyn Silvers, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

574 F.3d 460

UNITED STATES of America, Appellee, v. Chante M. HAYES, Appellant.

United States of America, Appellee, v. Gwendolyn Silvers, Appellant.

No. 08-2245.

No. 08-2296.

United States Court of Appeals, Eighth Circuit.

Submitted: January 14, 2009.

Filed: August 3, 2009.

Ronald Eugene Jenkins (for Silvers), William Shane Margulis (for Hayes), argued, St. Louis, MO, for appellant.

Dorothy L. McMuty, AUSA, argued, Thomas Christian Albus, AUSA, on the brief, St. Louis, MO, for appellee.

Before LOKEN, Chief Judge, WOLLMAN and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Chante M. Hayes ("Hayes") and Gwendolyn Silvers ("Silvers"), Hayes's aunt, were convicted by a jury of conspiracy to commit health care fraud in violation of 18 U.S.C. §§ 371, 1035, 1347 and 2 and one count of making a false statement relating to health care matters in violation of 18 U.S.C. §§ 1035 and 2. In addition, Silvers was convicted of nine additional counts of making false statements relating to health care matters in violation of 18 U.S.C. §§ 1035 and 2; the jury found Hayes not guilty of these offenses. The district court sentenced Hayes to 51 months imprisonment on each count on which she was convicted, to be served concurrently, to be followed by 37 months supervised release. The district court also ordered Hayes to pay restitution in the amount of $545,713. The district court sentenced Silvers to 51 months imprisonment on each of the 13 counts on which she was convicted, to be served concurrently, followed by three years supervised release. The district court also imposed restitution of $545,713.

On appeal, Hayes contends that the district court erred by denying her: (1) motion to dismiss all counts of the superceding indictment, (2) Batson challenge,¹ (3) objection to the deliberate ignorance jury instruction, (4) motion for judgment of acquittal, and (5) challenges to sentencing enhancements for her role in the offense and abuse of trust. We reverse the district court's denial of Hayes's motion for acquittal on the false statement count and conclude that the district court clearly erred in imposing the abuse of trust enhancement. We reject Hayes's remaining contentions. Silvers asserts that the district court erred in: (1) denying her motion for judgment of acquittal, (2) its response to a question from the jury, and (3) determining the total amount of loss attributable to her. We determine that none of Silvers's arguments warrant reversal, and we affirm.

I.

The Medicaid program was established in 1965 by Title XIX of the Social Security Act ("the Act"), codified at 42 U.S.C. § 1396-1396v. The primary purpose of the program is to provide federal financial assistance to States that elect to reimburse certain costs of medical treatment for needy individuals. States voluntarily agree to participate in the program, but must comply with federal requirements once they do so.

Ahlborn v. Ark. Dept. of Human Servs., 397 F.3d 620, 623 (8th Cir.2005) (citation omitted). "Missouri has elected to participate in the Medicaid program," In re Estate of Shuh, 248 S.W.3d 82, 84 (Mo.Ct. App.2008), codifying its state program ("Missouri Medicaid") at Missouri Revised Statutes section 208.001 et seq. The State of Missouri administers the Missouri Medicaid program through the Division of Medical Services (DMS).² The Missouri Department of Health and Senior Services, Division of Senior and Disability Services ("DHSS") administers the Missouri Medicaid in-home services program. Mo.Code Regs. Ann. tit. 19, § 15-7.021. DHHS monitors the performance of in-home services providers to ensure that they are abiding by the Missouri Medicaid regulations. See id. § 15-7.010.

From the mid-1990s to the summer of 2005, Hayes and Silvers, along with other family members, worked for varying periods of time in three family-owned health care agencies providing Missouri Medicaid in-home services: VIP Home Services ("VIP"),³ Complete Care of America and International ("Complete Care"), and Watkins Loving Care Homes Services ("Watkins Loving Care"). From 1999 to about 2001, VIP and Complete Care were both operating. During 2002 and 2003, Complete Care and Watkins Love Care conducted business at the same time. Some clients were served by all three companies, and some employees worked for more than one of the companies. Missouri Medicaid reimbursed VIP, Complete Care, and Watkins Loving Care for in-home services that were purportedly provided to eligible elderly and disabled persons.

On January 12, 2006, a federal grand jury returned a 22-count superceding indictment against Hayes; Silvers; Jacqueline Hayes ("Jacqueline"), Hayes's mother; Sharon Johnson ("Johnson"), Silvers's sister; Earlean Hopson ("Earlean"), Silvers's aunt and Hayes's great aunt; Complete Care; and Watkins Loving Care. All of the defendants were charged with participating in a health care fraud conspiracy in violation of 18 U.S.C. §§ 371, 1035, 1347 and 2 ("count one"). They were also charged with 12 substantive counts of making a false statement relating to health care matters on various dates in violation of 18 U.S.C. §§ 1035 and 2 ("counts 2-13"). Only Jaqueline was named in counts 14-22. Jacqueline, Johnson, and Earlean entered into plea agreements with the government and pled guilty to count one; Jaqueline also pled guilty to counts 14-20.

Hayes and Silvers moved to dismiss all of the counts against them, counts 1-13, for lack of jurisdiction and failure to state an offense. The district court denied the motion. The case proceeded to trial as to Hayes and Silvers only. Jury selection took place on January 28, 2006. The district court denied defendants Batson challenge to the government's peremptory strike of venire person 22, a female African-American. The case proceeded to trial on January 29, 2006.

"We recite the facts in the light most favorable to the jury's verdicts." United States v. Engler, 521 F.3d 965, 968 (8th Cir.2008). In 1999, Jacqueline started Complete Care. The Complete Care office was in Jacqueline's home and, for a time, in the Northland office building in St. Louis County. Jacqueline, Johnson, and Silvers prepared the proposal for Complete Care to DHSS. The proposal listed Jacqueline and Johnson as the owners of Complete Care and Hayes as the vice president. DHSS approved Complete Care's proposal to provide in-home services to clients. Two written provider agreements between DHSS and Complete Care were in effect from 1998 to June 30, 1999, and from July 1999 to June 30, 2000. Barbara Reuter, a quality assurance specialist with DHSS, testified that DHSS continued to deal with Complete Care as a provider of in-home health services until July 2005. (Trial Tr. vol. II, 94.)

In addition to owning Complete Care, Jaqueline served as a supervisor. Silvers was a supervisor at Complete Care and responsible for hiring and firing, training, handling employee and client files, working with nurses, and supervising staff. Complete Care documents also identify Silvers as "Administrator." Hayes was a supervisor at Complete Care and was responsible for receiving time sheets and billing. In addition to Jaqueline, Silvers, and Hayes, some of the other individuals that worked at Complete Care are as follows: Ruth White Buchanan ("Ruth"); Monica Silvers-Smith ("Monica"), Silvers's sister-in-law; Lawrence Hayes ("Lawrence"), Silvers's nephew and Hayes's cousin; Earlean; Thelma Hayes-Jacobs ("Thelma"), Silvers's mother; Mary Young ("Young"), a longtime friend of Jacqueline; Lynette Hopson-Bassette ("Lynette"), Silvers's cousin; Theresa Hayes-Kirkland ("Theresa"), Silvers's sister and Hayes's aunt; Sabrina Silvers ("Sabrina"), Silvers's daughter and Hayes's cousin; Annie Norman ("Norman"), the daughter of Jacqueline's ex-husband; and Anthony Johnson ("Anthony"), Johnson's husband. With the exception of Norman, the district court determined that all of these individuals were the defendants' coconspirators, regardless of whether they were indicted or not, and the defendants do not challenge this ruling on appeal. (See Trial Tr. vol. VI, 200-01.) The coconspirators received immunity for their conduct related to this case in exchange for their cooperation.

Ruth began working at VIP in 1998. While working there, Ruth performed in-home health services for her husband, Silas Buchanan, even though she knew that state regulations prohibited a personal care aid from providing services to a spouse.⁴ Thelma instructed Ruth to use her maiden name "White" on all paperwork that she turned into VIP and use her nondriver's identification bearing her maiden name. Silvers was present when Thelma told Ruth to use her maiden name, and Silvers instructed Ruth to use her maiden name on the time sheets that she completed for services to her husband. Ruth did so for a number of years.

Before Ruth went to work at Complete Care, Hayes brought a Complete Care application to Ruth's house and told her to fill it out exactly as she had her application at VIP. Ruth used her maiden name, "White," on the Complete Care application, time sheets, and other documents. She testified that she signed the name "White" on any document associated with Complete Care. Ruth turned in her time sheets at the Complete Care office on Northland to Hayes or whoever was in the office. Ruth stated that she signed and submitted the 44 time sheets in Exhibit 268A. Each time sheet reflected five days of services that she provided to her husband. Ruth again stated that she used the name "White" on the time sheets because she knew that Missouri Medicaid would not pay for services a wife rendered to her husband. See Mo.Code Regs. Ann. tit. 19, § 15-7.021(18)(H). On occasion, Ruth mistakenly used her married name on time sheets. When this occurred, Silvers would tear up the time sheet, give Ruth another time sheet, and tell Ruth to use her maiden name. Silvers also asked Ruth to sign time sheets for clients, other than Silas Buchanan, but...