U.S. v. Miles

• Decision Date: 13 February 2004
• Docket Number: No. 02-20017.,02-20017.
• Citation: 360 F.3d 472
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alice MILES, Richard Miles and Carrie Hamilton, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

360 F.3d 472

UNITED STATES of America, Plaintiff-Appellee, v. Alice MILES, Richard Miles and Carrie Hamilton, Defendants-Appellants.

No. 02-20017.

United States Court of Appeals, Fifth Circuit.

Filed February 13, 2004.

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Mitchel Neurock (argued), Laredo, TX, James Lee Turner, Asst. U.S. Atty., Houston, TX, for Plaintiff-Appellee.

F. Clinton Broden (argued), Broden & Mickelsen, Dallas, TX, for Alice Miles.

Scott D. Levy (argued), Houston, TX, for Richard Miles.

Timothy Allison Meche (argued), New Orleans, LA, for Carrie Hamilton.

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

Before GARWOOD, JONES and STEWART, Circuit Judges.

EDITH H. JONES, Circuit Judge:

In October 1999, a federal grand jury in the Southern District of Texas filed a 32-count indictment charging Carrie Hamilton, Richard Miles, Alice Miles, and Harold Miles with multiple crimes related to fraud on the Medicare program. A jury acquitted Harold Miles, convicted Richard Miles of two mail fraud counts, and convicted Alice Miles and Carrie Hamilton of 28 and 29 counts, respectively.¹ The three remaining defendants appeal on a variety of grounds, the most significant of which challenge their convictions for money laundering promotion and illegal Medicare kickbacks. We reverse the money laundering promotion and kickback counts. We also reverse the court's sentencing finding that Medicare is a "financial institution" within the meaning of U.S.S.G. § 2B1.1(b)(12)(A). We otherwise affirm the convictions and remand for resentencing.

I. BACKGROUND

Affiliated Professional Home Health ("APRO") was formed in 1993 in Houston, Texas by Carrie Hamilton, Alice Miles, and Richard Miles. Richard Miles, a vice-principal of a Houston-area high school, was married to Alice Miles, a registered nurse, and is the brother of both Hamilton, also a registered nurse, and Harold Miles, an APRO employee. When APRO obtained certification from the Texas Department of Health and a Medicare provider number, the company began to treat Medicare-covered patients and obtain reimbursement for in-home visits to such patients.

Medicare requires home health care providers to report their expenses and number of patient visits. In turn, Medicare calculates a "per-visit" rate which it then uses to reimburse the home health provider over the next year. At the end of each year, providers are required to submit their actual expenses to Medicare so that it can determine whether it has under- or overpaid the provider for that year. The expenses reported by providers to Medicare include the direct costs of patient care, including salaries and employee benefits as well as general operating expenses such as office rent and equipment. Indirect costs may be expensed to Medicare on a pro-rata basis according to the proportion of Medicare patients served by the provider. Medicare also reimburses a wide variety of additional expenses incurred by home health care providers such as mileage incurred in travel to and from patient residences. The touchstone for reimbursement is that costs must be reasonable, related to patient care, and necessary for the provider's business functions. See 42 U.S.C. § 1395f(b); 42 U.S.C. § 1995x(v).

In an effort to promote efficiency despite the cost-plus nature of reimbursement, Medicare contracts with intermediary agencies to audit providers' cost reports. Further, because the Medicare reimbursement system offers the not-so-wily criminal numerous avenues to defraud the federal government, intermediary agencies closely monitor provider reports for fraudulent activity. APRO's relationship with Medicare was conducted through Palmetto Government Benefits Association ("Palmetto"), a subsidiary of South Carolina Blue Cross/Blue Shield.

In this case, the Government presented evidence that the defendants, through APRO, submitted cost reports that grossly inflated expenses for items ranging from mileage to employee salaries. For example, Hamilton was reimbursed for a whopping 282,000 travel miles from 1994-1996, a period when she also frequently visited Louisiana casinos. Alice Miles, another avid gambler, was reimbursed for 150,000 travel miles over three years, while her husband, whose primary job kept him occupied for most of the work day, was reimbursed for 180,000 miles over four years.

APRO also obtained reimbursement for costs that included personal expenses such as renovations to the Hamiltons' home, renovations to the Miles' parents' residence, and various home appliances. Eventually, the amount of money coming in to APRO for fake charges became so large that in order to sustain the claimed level of expenses over the next year — so that APRO would not have to return overpayments to the federal government — the APRO principals began to use a variety of other methods to bilk Medicare out of taxpayer funds. These methods included their writing large-dollar checks to employees for "expenses" or "back pay" and then requiring the employees to cash the checks and hand the funds back to the APRO principals. Appellants billed expenses to Medicare for two or three times the actual cost incurred. At times, they engaged in more intricate schemes involving the splitting of large reimbursement checks into smaller cashier's checks which were then deposited into the APRO principals' bank accounts or used for personal expenses. On one occasion, Hamilton split an APRO check into cash and three cashier's checks at one bank. She deposited two of the cashier's checks into her own account at another bank and used a portion of the funds to obtain a fourth cashier's check to purchase a new Ford Mustang convertible. The third cashier's check from the original bank was cashed at the Star Casino.

Beginning in May 1997, Palmetto, the Health Care Financing Administration ("HCFA") and the Texas Department of Health systematically uncovered APRO's extensive effort to defraud Medicare. That October, Medicare acted to stem the flow of federal funds to APRO by suspending its provider number. APRO filed a federal lawsuit alleging racial bias on the part of HCFA and the Texas Department of Health. The district court preliminarily enjoined Medicare to reinstate APRO's provider status pending the litigation, but this court reversed the grant of relief. See Affiliated Prof'l Home Health Care Agency v. Shalala, 164 F.3d 282 (5th Cir.1999). In June 1998, federal agents executed a search warrant at APRO's premises and seized various business records. The investigation and raid eventually led to the 32-count indictment filed against the four defendants and the convictions here at issue.

II. DISCUSSION

A. Money Laundering Promotion Convictions

Carrie Hamilton and Alice Miles were convicted on Counts 8-13 of the indictment, which charged them with aiding and abetting money laundering promotion, a crime perpetrated by anyone who

... knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity ... with the intent to promote the carrying on of specified unlawful activity.

18 U.S.C. § 1956(a)(1)(A)(I). This statute criminalizes all financial transactions that involve funds or property that are derived from specified illegal activity, where the transactions are intentionally aimed at promoting specified unlawful activity. The counts at issue here involved specific payments made by APRO for office rent (Counts 8 and 12), payroll (Count 11), and payroll taxes (Counts 9, 10 and 13). Both Hamilton and Alice Miles claim that the evidence adduced at trial was insufficient to support their convictions under this statute.

1. Standard of Review

In evaluating whether the evidence produced at trial is sufficient to support a jury conviction, this court examines whether a rational jury, viewing the evidence in the light most favorable to the prosecution, could have found the essential elements of the offense to be satisfied beyond a reasonable doubt. See United States v. Rivera, 295 F.3d 461, 466 (5th Cir.2002). In reviewing the evidence presented at trial, we draw all reasonable inferences in favor of the jury's verdict. Id. We do not evaluate whether the jury's verdict was correct, but rather, whether the jury's decision was rational. Id.

2. Discussion

To sustain a conviction under the money laundering promotion statute, the Government must show that the defendant: (1) conducted or attempted to conduct a financial transaction, (2) which the defendant then knew involved the proceeds of unlawful activity, (3) with the intent to promote or further unlawful activity. See United States v. Delgado, 256 F.3d 264, 275 (5th Cir.2001). Neither defendant argues on appeal that the financial transactions underlying Counts 8-13 were not in fact conducted, or that the funds used in these transactions were not, at least in part, the proceeds of unlawful activity. Rather, both defendants contend that as the funds were used to pay APRO's "ordinary business expenses," the transactions do not demonstrate an intent to promote or further the Medicare fraud taking place at APRO.

In examining the question of intent necessary for a money laundering promotion conviction, this court has held that the Government must present either direct proof of an intent to promote such illegal activity or proof that a given type of transaction, on its face, indicates an intent to promote such illegal activity. See United States v. Brown, 186 F.3d 661, 670-71 (5th Cir.1999). Absent such proof, this court has held that a defendant may not be convicted where the "proceeds of some relatively minor fraudulent transactions" are used to pay the operating expenses of "an otherwise legitimate business enterprise." Id. at 671. In Brown, this court reversed the money laundering promotion convictions of a...