U.S. v. Hunt

• Decision Date: 11 April 2008
• Docket Number: No. 06-6300.,No. 06-6301.,06-6300.,06-6301.
• Parties: UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. Russell Wayne HUNT, Defendant-Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

521 F.3d 636

UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. Russell Wayne HUNT, Defendant-Appellant/Cross-Appellee.

No. 06-6300.

No. 06-6301.

United States Court of Appeals, Sixth Circuit.

Argued: November 28, 2007.

Decided and Filed: April 11, 2008.

ARGUED: Kimberly S. Hodde, Hodde & Associates, Nashville, Tennessee, for Appellant. Jimmie Lynn Ramsaur, Assistant United States Attorney, Nashville,

Tennessee, for Appellee. ON BRIEF: Kimberly S. Hodde, Hodde & Associates, Nashville, Tennessee, Richard J. Braun, Braun & Crotwell, PLLC, Nashville, Tennessee, for Appellant. Jimmie Lynn Ramsaur, Assistant United States Attorney, Nashville, Tennessee, for Appellee.

Before: MARTIN, SILER, and ROGERS, Circuit Judges.

ROGERS, J., delivered the opinion of the court, in which SILER, J., joined. MARTIN, J. (pp. 650-65), delivered a separate opinion concurring in part and dissenting in part.

OPINION

ROGERS, Circuit Judge.

Following a jury trial, Russell Wayne Hunt was convicted of health care fraud in violation of 18 U.S.C. § 1347, conspiracy to commit health care fraud in violation of 18 U.S.C. § 371, and making false statements relating to health care fraud in violation of 18 U.S.C. § 1035. He was sentenced to five years of probation, a $6,000 fine, a $1,200 special assessment, and restitution in the amount of $151,161.78, to be paid jointly and severally with his co-conspirators. Hunt now argues that his convictions should be overturned because: (1) his Sixth Amendment right to present his own witnesses and establish his defense was violated by the Government's ensuring that two primary defense witnesses would not be available to testify at trial; (2) the district court erred by refusing to admit exculpatory hearsay statements made by a codefendant; and (3) there was insufficient evidence to support his convictions. In the alternative, Hunt contends that the restitution order must be modified because the district court incorrectly calculated the amount owed. For its part, the Government, in a cross-appeal, contends that the sentence imposed by the district court is substantively unreasonable. Hunt's arguments are unavailing, but the Government is correct that his sentence is substantively unreasonable. Therefore, we affirm Hunt's convictions while vacating his sentence and remanding the case for resentencing.

I.

At the times relevant to this case, Russell Wayne Hunt was a physician licensed to practice medicine in the state of Tennessee. This case revolves around his involvement with mobile diagnostic testing companies owned by Mark Noble, who pled guilty to making false statements related to health care matters. From 1999 until 2001, Noble was the operator and part owner of a mobile diagnostic testing company called Vascular Check, Inc. ("VCI"), and between 2002 and 2003, he was the owner and operator of an identical company known as Health Tech Screenings ("HTS"). Those companies performed carotid artery ultrasound tests, which allow doctors to determine whether there is blockage in the carotid artery that could lead to a stroke. The tests were performed throughout the state, of Tennessee, typically at places like senior citizens' centers and trade shows. VCI and HTS both billed Medicare and Blue Cross/Blue Shield for the services. Medicare and private insurance only pay for diagnostic tests that have been determined to be medically necessary by a treating physician or a nurse practitioner or physician's assistant working under the license of a treating physician.

Hunt became acquainted with Noble in 1999, shortly after Hunt had opened his own private practice. Noble informed Hunt about the health fairs and corporate events that Noble's company attended, and Hunt decided that setting up a booth at such events would be a good way to market his new practice. Hunt's attendance at those events allowed him to become more familiar with Noble's enterprises by observing them. Eventually, Noble asked if Hunt would be willing to evaluate patients on behalf of Noble's company at those events. Hunt's role was to review a medical history questionnaire filled out by a patient, perform an examination on the patient, and then make a determination as to whether the carotid artery ultrasound test was medically necessary.

At some point in 2001, Hunt informed Noble that he was too busy in his private practice to continue seeing patients on behalf of Noble's company. Hunt provided Noble with a list of nurse practitioners and suggested that Noble hire someone off that list to see patients under Hunt's medical license. Noble never hired a nurse practitioner though. Instead, Noble simply began bringing the medical history questionnaires and the unsigned orders to Hunt after the tests had already been performed, and Hunt would then sign the orders without having seen the patients. After Hunt signed the orders without having seen or examined the patients, Noble would submit claims to Medicare in order to receive payment for the tests. For his trouble, Hunt received $10 per signature from Noble. If a particular patient had private insurance through Blue Cross/Blue Shield, Noble would submit a claim to that company for the test, and Hunt would also submit a claim for his "consultation" with the patient. In the claims that he submitted to Blue Cross/Blue Shield, Hunt billed under a consultation code that requires a face-to-face examination of the patient.

In 2002, the government began investigating Noble and his companies on suspicion of Medicare fraud. During the investigation, Hunt told special agents from the Department of Health and Human Services that he was not paid $10 per signed order, and that all of the tests had been ordered before they were performed. Neither statement was true. In addition, Hunt claimed that a nurse practitioner working under his license was examining the patients, although he admitted that he had never met that person, did not know that person's name, and had not confirmed that person's credentials.

As a result of the investigation, Hunt, Noble, and Patricia Reed, one of Noble's employees, were indicted in August of 2004 for health care fraud, conspiracy to commit health care fraud, and making false statements relating to health care matters. Noble subsequently pled guilty to making false statements relating to health care matters, and he was sentenced to 37 months in prison, three years of supervised release, and payment of restitution in the amount of $242,738. Reed pled guilty to assisting in making a false statement involving a federal health care program, and she was sentenced to four years of probation and ordered to pay restitution in the amount of $19,000. Dr. Bartee, another physician who signed orders for Noble's companies, negotiated a pretrial diversion agreement with the Government. Unlike Hunt, Dr. Bartee appears to have physically examined patients before ordering the tests, and he stopped signing orders for Noble in 2002 after becoming suspicious about the legality of Noble's conduct.

A superseding indictment of Hunt was issued on July 20, 2005. Hunt maintained his innocence and proceeded to trial. During the trial, he sought to have admitted into evidence two hearsay statements from an affidavit made by Noble during the investigation. In those statements, Noble said, "I don't feel Doctor Russell Hunt, Dr. Moore, Dr. Bartee did anything wrong," and "Dr. Hunt does not know that RN Haines [sic] is represented as a PA."¹ The district court ruled both statements inadmissible. Hunt also sought to elicit testimony from Noble and Dr. Bartee, but they both refused to testify on Fifth Amendment grounds. Dr. Bartee refused to testify because of concerns about how his testimony might affect his diversion agreement, which had not been finalized by the time of trial, and Noble refused to testify because of his exposure to potential prosecution in other districts.

After the jury convicted Hunt on all counts, his sentencing hearing was held on September 1, 2006. Although the Guidelines Range was from 27 to 33 months of imprisonment, the district court sentenced Hunt to five years of probation. In reaching that decision, the district court engaged in a lengthy discussion of the evidence that it believed to be indicative of a lack of fraudulent intent on Hunt's part. Ultimately, the district court concluded that Hunt had been "hoodwinked" by Noble. The district court also expressed great concern about the fact that several individuals whom the court considered to be equally culpable had not been prosecuted. The district court also appears to have given weight to the fact that Hunt would probably lose his medical license, as well as the fact that the carotid artery ultrasound tests performed on the patients did not hurt anyone and may have significantly helped many individuals. The district court also considered that Hunt was a well-liked and well-respected physician who worked hard to break out of his humble background. In addition to probation, the district court ordered Hunt to pay a $6,000 fine, a $1,200 special assessment, and restitution in the amount of $151,161.78, which he would owe jointly and severally with the other defendants.². Hunt was further ordered to pay $50,000 of the restitution within 60 days.

II.

The Government did not violate Hunt's Sixth Amendment right to present his own witnesses and establish a defense because there were no prosecutorial "actions aimed at discouraging defense witnesses from testifying...." United States v. Emuegbunam, 268 F.3d 377, 400 (6th Cir.2001) (citing Webb v. Texas, 409 U.S. 95, 98, 93 S.Ct. 851, 34 L.Ed.2d 330 (1972); United States v. Thomas, 488 F.2d 334, 336 (6th Cir.1973)). It is true that two potential defense witnesses — Mark Noble and Dr. Bartee — refused to testify on Fifth Amendment grounds, but the Government did nothing to discourage or inhibit them from testifying. Indeed, the Government was not even the...