U.S. v. Mauskar

• Decision Date: 30 January 2009
• Docket Number: No. 06-20596.,06-20596.
• Citation: 557 F.3d 219
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anant MAUSKAR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

557 F.3d 219

UNITED STATES of America, Plaintiff-Appellee, v. Anant MAUSKAR, Defendant-Appellant.

No. 06-20596.

United States Court of Appeals, Fifth Circuit.

January 30, 2009.

Renata Ann Gowie, James Lee Turner, Asst. U.S. Attys., Ryan Douglas McConnell (argued), Houston, TX, for U.S.

Marcia Gail Shein (argued), Law Office of Marcia G. Shein, Decatur, GA, for Mauskar.

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

Before PRADO, ELROD and HAYNES, Circuit Judges.

JENNIFER W. ELROD, Circuit Judge:

Defendant-Appellant Anant Mauskar was convicted of twenty-one counts of defrauding Medicare and Medicaid, sentenced to 135 months in prison, and ordered to make restitution of $14,427,242. He appeals his conviction and sentence on numerous grounds. For the reasons set forth below, we affirm the judgment of the district court.

FACTS AND PROCEEDINGS

Viewed in the light most favorable to the jury's verdict, the record establishes that Anant Mauskar, a licensed physician, engaged in a conspiracy to defraud Medicare by falsely certifying that he had personally provided or supervised physical therapy services to patients of the Mirage Medical Group operated by Tonya Williams and Kimberly Selders. To effectuate this fraud, Williams paid Mauskar during the fall of 1999 to sign patient charts certifying that he had provided or supervised physical therapy services despite the fact that he had not done so. When asked by a Medicare fraud investigator whether he had actually performed or personally supervised physical therapy services for patients of the Mirage Medical Group, Mauskar stated that he had even though he had not.

Applying the same standard, the record also establishes that Mauskar conspired to defraud Medicare and Medicaid by falsely certifying that patients needed motorized wheelchairs and by performing unnecessary medical procedures and tests on those patients. "Recruiters" compensated for their efforts brought an enormous number of patients to Mauskar's office to facilitate this fraud; in 2002, for example, Mauskar prescribed 1,766 wheelchairs. Durable medical equipment ("DME") companies used Mauskar's certificates of medical necessity to obtain payment for medically unnecessary wheelchairs. The companies compounded the fraud by delivering less expensive scooters to the patients, rather than the motorized wheelchairs for which the government was charged.

Mauskar was indicted on numerous charges relating to this conduct. His first trial ended in a hung jury, and the district court declared a mistrial sua sponte on April 4, 2005. Approximately two weeks before his second trial, Mauskar filed a motion to dismiss count 1 of the indictment on grounds of duplicity,¹ which the district court denied. During his second trial, testimony from Tonya Williams revealed that she had forged some progress notes, charges sheets, and other documents by photocopying Mauskar's signature, and that the government knew of these forgeries well before Mauskar's first trial. Mauskar filed a motion to dismiss the indictment due to outrageous government conduct and/or due to violation of the Double Jeopardy Clause, alleging that the government had committed an egregious Brady violation by failing to disclose the forgeries during Mauskar's first trial. The district court denied the motion, and the jury convicted Mauskar on twenty-one counts of health care fraud and acquitted him on four counts. The district court sentenced Mauskar to 135 months in prison and ordered him to make restitution of $14,427,242. Mauskar appeals his conviction and sentence.

DISCUSSION

I. Jurisdiction

We first consider the government's suggestion in a footnote of its brief that we lack jurisdiction to consider Mauskar's challenges to his conviction because his notice of appeal indicates an intent to appeal only his sentence. United States v. Pineda, No. 92-2518, 1993 WL 209937 (5th Cir. June 3, 1993), forecloses this argument. See 5th Cir. R. 47.5.3 (providing that unpublished opinions issued before January 1, 1996, are precedent). Like Mauskar, the defendant in Pineda "designate[d] his sentence, but not his conviction" in his notice of appeal, but his "intent to appeal his conviction [was] readily apparent in his brief" and "the Government ... fully responded to [his] arguments." Id. at *3. Noting that precedent mandates broad construction of the second clause of Federal Rule of Appellate Procedure 3(c), which requires a notice of appeal to "designate the judgment or order from which an appeal is taken," the court "liberally construe[d] Pineda's notice of appeal to include a challenge to his conviction as well as his sentence." Id. (quoting United States v. Ramirez, 932 F.2d 374, 375 (5th Cir.1991)). Following this precedent, we hold that we have jurisdiction to consider Mauskar's challenges to his conviction.

II. Duplicity

A. Mauskar's motion to dismiss count 1 of the indictment on grounds of duplicity was timely.

Before reaching the substance of Mauskar's motion to dismiss count 1 of the indictment on grounds of duplicity, we address a procedural issue. Mauskar filed his motion approximately two weeks before his second trial. The district court denied the motion on the grounds that it was untimely and that a unanimity instruction would be given to protect Mauskar's rights. The government, reasoning that Federal Rule of Criminal Procedure 12 required Mauskar to file the motion before his first trial, argues that the district court was correct in holding the motion untimely.

Rule 12 requires that a motion to dismiss an indictment on the ground of duplicity be filed "before trial." See United States v. Payne, 341 F.3d 393, 402 (5th Cir.2003). It does not, however, address the question raised by the government here, which is whether a defendant who fails to challenge a duplicitous indictment before a trial ending in a mistrial is barred from raising the challenge before a subsequent trial on the same indictment. No controlling authority exists, but the long-established principle that "[t]he declaration of a mistrial renders nugatory all trial proceedings with the same result as if there had been no trial at all" militates strongly against the government's position. See United States v. Pappas, 445 F.2d 1194, 1201 (3d Cir.1971) (internal quotation marks and citations omitted); see also United States v. Groth, 682 F.2d 578, 580 (6th Cir. 1982) ("We agree with the trial judge ... that the prosecution is not bound by its first waiver. The waiver referred to the earlier trial.... Once a mistrial was declared each party was free to assert or waive his rights."). We apply this principle and hold that Mauskar's motion to dismiss the indictment was timely filed.

B. Count 1 of the indictment is not duplicitous.

"We review de novo a claim than an indictment is duplicitous." Miller, 520 F.3d at 512. "The allegation in a single count of a conspiracy to commit several crimes is not duplicitous, for `[t]he conspiracy is the crime, and that is one, however diverse its objects.'" United States v. Cooper, 966 F.2d 936, 939 (5th Cir.1992) (quoting Braverman v. United States, 317 U.S. 49, 54, 63 S.Ct. 99, 87 L.Ed. 23 (1942)). An indictment's allegations, and not the evidence adduced at trial, control whether the indictment is duplicitous:

In reviewing an indictment for duplicity, our task is not to review the evidence presented at trial to determine whether it would support charging several crimes rather than just one, but rather solely to assess whether the indictment itself can be read to charge only one violation in each count.

United States v. McDermot, No. 93-3603, 1995 WL 371036, at *4 (5th Cir. June 5, 1995) (emphasis added) (quoting United States v. Mastelotto, 717 F.2d 1238, 1244 (9th Cir.1983), overruled on other grounds by United States v. Miller, 471 U.S. 130, 105 S.Ct. 1811, 85 L.Ed.2d 99 (1985)); see also United States v. Sharpe, 193 F.3d 852 866 (5th Cir.1999) (rejecting duplicity allegation where count "[could] be read to allege only one violation"). That an indictment alleges more than one means by which conspirators "sought to accomplish [a] scheme does not render it duplicitous." McDermot, 1995 WL 371036, at *4 (citing Owens v. United States, 221 F.2d 351, 354 (5th Cir.1955)).

The government correctly argues that Mauskar's indictment in the present case is not duplicitous, as it can be read to charge a single conspiracy involving Mauskar and others with three objects. The indictment sets forth those objects as follows:

a. To violate the Health Care Fraud Statute, that is, to knowingly and willfully execute and attempt to execute a scheme and artifice: (1) to defraud a health care benefit program, namely the Medicare and Medicaid programs; and (2) to obtain, by means of material false and fraudulent pretenses, representations, and promises, money and property owned by, or under the custody and control of, health care benefit programs, namely Medicare and Medicaid; in connection with the delivery of or payment for health care benefits, items and services, namely physical therapy services, in violation of Title 18, United States Code Section 1347;

b. To violate the Health Care Fraud statute, that is, to knowingly and willfully execute and attempt to execute a scheme and artifice: (1) to defraud a health care benefit program, namely the Medicare and Medicaid programs; and (2) to obtain, by means of material false and fraudulent pretenses, representations, and promises, money and property owned by, or under the custody and control of, health care benefits programs, namely, Medicare and Medicaid; in connection with the delivery of and payment for health care benefits, items and services, namely power wheelchairs, in violation of Title 18, United States Code Section 1347; [and]

c. To violate the Anti-Kickback statute by knowingly and willfully soliciting and receiving any remuneration (including any kickback)...