U.S. v. Marrero
| Decision Date | 18 June 1990 |
| Docket Number | No. 89-1387,89-1387 |
| Citation | 904 F.2d 251 |
| Parties | 30 Fed. R. Evid. Serv. 562 UNITED STATES of America, Plaintiff-Appellee, v. Lucy MARRERO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Frank Maloney and S. Belinda Wright, Maloney, Yeager & Autry, P.C., Austin, Tex., for defendant-appellant.
Thomas L. Kolker, Austin, Tex., for Amicus, American Civ. Liberties Union.
Dan H. Mills, Austin, Tex., LeRoy Morgan Jahn, W. Ray Jahn, and Philip Police, Asst. U.S. Attys., and Helen M. Eversberg, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before KING, JOHNSON and HIGGINBOTHAM, Circuit Judges.
Lucy Marrero appeals her convictions and sentences for presenting false insurance claims to an agency of the United States and for theft of government property having a value in excess of $100.00. For the reasons cited herein, we affirm.
Lucy Marrero, who holds a doctorate degree in psychology, established a private practice as a consulting psychologist on a part-time basis in Austin, Texas in 1981. Marrero's offices were opened under the name Psychotherapy and Industrial Research Institute; however, the name was later changed to Psychotherapy Institute (hereinafter the Institute). At the Institute, Marrero treated patients from nearby Bergstrom Air Force Base who were insured by the Civilian Health and Medical Program of the Uniform Services (hereinafter CHAMPUS). 1 For those patients who were covered by CHAMPUS, Marrero, through the Institute, submitted claims to CHAMPUS for services rendered. Payment on the Institute's CHAMPUS claims was based on the time spent in the counseling session, the type of therapy involved, and whether the particular therapist held a masters or a doctorate degree. During the period of time relevant to this appeal, CHAMPUS paid for up to sixty minutes of individual therapy at the rate of $82.50, up to ninety minutes of ordinary family therapy at the rate of $126.00, and at the rate of $137.80 for up to ninety minutes of conjoint marital therapy. A session lasting between thirty-one and sixty minutes was paid at the hourly rate whereas a session lasting between sixty-one and ninety minutes was paid at the ninety minute rate.
Marrero experienced a rapid growth in her practice at the Institute and consequently, in 1982, began hiring additional therapists. By the end of 1983, Marrero had employed some ten to fifteen therapists at the Institute and was submitting approximately 600 CHAMPUS claims every month. After the intake process, which was typically conducted either by Marrero or an associate, had been completed for a particular patient, the Institute's therapists would conduct ongoing counseling sessions in the patient's home, at the Institute, or, on certain occasions, at the patient's office.
Therapists at the Institute kept time cards, referred to as "provider cards." Provider cards ostensibly reflected the name of the patient and the date, nature, and length of all therapy sessions conducted. Regardless of the type of session conducted, Marrero instructed the Institute's therapists to record their sessions as family sessions, billable at the higher rate, if the family was eligible for that type of therapy and any family member other than the identified patient was seen at any session. 2 The Institute's therapists periodically submitted their provider cards to Marrero and were paid by Marrero on the basis of the hours they actually spent with the patients as reflected on the provider cards, receiving between twenty and forty dollars an hour for conducting the counseling sessions.
The Institute's therapists were not privy to and did not complete the claim forms which Marrero submitted to CHAMPUS. Instead, the forms were kept by Marrero. Initially, the claim forms were completed and submitted to CHAMPUS by either Marrero or her sister, Debra Thompson. Later, however, Marrero employed insurance billing clerks at the Institute whose responsibility was the preparation, completion and filing of CHAMPUS claim forms.
As Marrero's practice continued to flourish and as the billing system became more comprehensive, Marrero was compelled to selectively divulge the details of her system. In the latter part of 1983, Marrero personally gave a new insurance billing clerk at the Institute, Beverly King, instructions regarding the procedure King was to use when completing and submitting CHAMPUS claims--instructions on which King took notes. Marrero gave King explicit instructions to refrain from discussing the Institute's "insurance" matters with any one else. 3 At one point during the period covered by the indictment, Marrero required King to keep the Institute's insurance records at King's home. Marrero kept patient files in a locked storage cabinet at the Institute.
As mentioned previously, the Institute's therapists generally did not see the completed claim forms submitted to CHAMPUS. Instead, Marrero obtained the therapists' consent for Marrero and her office staff to sign the claim forms for them. 4 The claim forms were mailed by the clerks when Marrero so instructed, and Marrero would check to see if they had been mailed and when. The Institute's therapists were paid on the basis of the actual number and duration of counseling sessions as reflected on provider cards, not for the duration and number of sessions for which CHAMPUS claims were filed. 5
In January 1984, Marrero asked Gary Marks (hereinafter Marks), who holds a doctorate degree in computer science, to design a computer program to implement the billing procedures discussed above. Marks questioned Marrero's billing practices and refused to design the program. Shortly thereafter, Marrero asked Robert Conrad (hereinafter Conrad), a sales manager for an Austin computer company, to assist her in submitting backlogged CHAMPUS claims and to design a computer program to automate the Institute's billing system. Conrad was reluctant to bill in the fashion Marrero had indicated and instead suggested that the computer billing program be designed to generate a list of appointment dates which would be submitted to the individual therapists to confirm whether the designated counseling sessions had actually been conducted. Marrero rejected the idea and insisted that patients rarely cancelled appointments. Conrad's suggestion of the verification procedure would turn out to be the end of his relationship with Marrero; Conrad left the Institute before completing the billing system.
On October 1, 1984, Jeanine Gross (hereinafter Gross) received a bill from her insurance carrier for the treatment of her son at the Institute which substantially exceeded the bill she expected. It appeared to Gross that she was being double-billed. Before complaining to Marrero, Gross demanded a copy of the Institute claim forms, which she received. The forms confirmed Gross's suspicions. Gross thereafter confronted Marrero and Marrero agreed to change the billings.
Thereafter, the impropriety of Marrero's billing scheme continued to manifest itself, and on June 7, 1988, a federal grand jury indicted Marrero with twenty-one counts of presenting false claims to CHAMPUS, an agency of the United States, in violation of 18 U.S.C. Sec. 287 (counts 1-21) and twenty-one counts of theft of government property having a value in excess of $100.00 in violation of 18 U.S.C. Sec. 641 (counts 22-42). Four families who were treated at the Institute and whose treatment forms the basis for the indictment are the Beckers (counts 1-4 and 22-27), the Odoms (counts 20-21, 41-42), the Gaddises (counts 5-15 and 30-37) and the DeKays (counts 16-19 and 38-40).
At the ensuing trial, evidence was introduced that the actual services rendered to the above four families were inconsistent with the services reflected on claim forms which had been submitted to CHAMPUS by Marrero through the Institute. The evidence also showed, among other things, that CHAMPUS had been billed for twice-weekly sessions--one individual therapy session and one family therapy session--even when those sessions did not actually take place. Further, it was also shown that the time billed by the Institute for therapy sessions often exceeded the time the patient actually spent in the session. The jury was told that one of Marrero's therapists, a Dr. Dooley (hereinafter Dooley), in August 1983, had become aware of the irregularities in the Institute's billing system and had confronted Marrero. Marrero told Dooley she would remedy the situation. Marrero thereafter remedied the situation by instructing her insurance clerk not to bill Dooley's patients in accordance with the usual billing procedure. Marrero, however, did instruct the clerk to bill all of Dooley's sessions as family therapy even when the sessions consisted of only individual therapy.
A jury convicted Marrero on seventeen counts of presenting false claims to an agency of the United States and on twenty counts of theft of government property. Marrero was sentenced to concurrent terms of five years' imprisonment on the presenting false claim counts and concurrent terms of seven years on the theft of government property counts. The sentences on the theft counts were to run consecutively to the sentences imposed on the false claims counts. Thus, Marrero's total term of imprisonment was twelve years. Marrero was also fined $150,000.00 and ordered to pay a $50.00 special assessment on the one count to which 18 U.S.C. Sec. 3013 was applicable. Restitution was to be paid in accordance with the resolution of the pendent civil proceeding. Thereafter, Marrero timely filed the instant appeal.
Marrero challenges the sufficiency of the evidence supporting her convictions. To evaluate a challenge to the sufficiency...
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