U.S. v. Wijegoonaratna

• Decision Date: 26 April 2019
• Docket Number: No. 17-50255,17-50255
• Citation: 922 F.3d 983
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sri WIJEGOONARATNA, aka Dr. J, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

922 F.3d 983

UNITED STATES of America, Plaintiff-Appellee,

v.Sri WIJEGOONARATNA, aka Dr. J, Defendant-Appellant.

No. 17-50255

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 5, 2019 Pasadena, California

Filed April 26, 2019

Alyssa D. Bell (argued), Anya J. Goldstein, and Reuven L. Cohen, Cohen Williams LLP, Los Angeles, California, for Defendant-Appellant.

Steven M. Arkow (argued), Assistant United States Attorney; Lawrence S. Middleton, Chief, Criminal Division; Nicola T. Hanna, United States Attorney, Los Angeles, California; for Plaintiff-Appellee.

Before: Ronald M. Gould, Jacqueline H. Nguyen, and John B. Owens, Circuit Judges.

GOULD, Circuit Judge:

Defendant Sri Wijegoonaratna appeals his jury conviction and sentence for seven counts of health care fraud in violation of 18 U.S.C. § 1347. We affirm Wijegoonaratna's conviction, and we affirm in part and vacate and remand in part his sentence.

I

A

Hospice care is designed for patients with terminal illnesses who choose to forgo active treatment of their terminal condition and instead receive palliative care, including pain relief and family bereavement services. Hospice care may be provided in the patient's home or in a facility such as a nursing home.

For eligible Medicare beneficiaries, Medicare pays around $ 200-250 per day for hospice care. To be eligible, a patient must be certified as terminally ill by two licensed physicians. "Terminally ill" means that the patient's prognosis is less than six months if the disease runs its normal course. The two licensed physicians are typically the hospice medical director or staff physician and the patient's attending physician. Patients are initially certified for ninety days of service. If a patient requires hospice care beyond those ninety days, the patient can be recertified for an additional period. Recertification requires just one physician.

About 85% of hospice patients die in hospice care (the remaining 15% end hospice care alive). Patients receive hospice care for an average of sixty-six days, but about half receive hospice care for fewer than twenty days before dying.

Priscilla Villabroza acquired California Hospice Care ("CHC") in 2008. Sharon Patrow, her daughter, handled business operations; Erwin Castillo, a registered nurse, handled medical matters. Dr. Violeta Atiga worked as the medical director.

Patient admission at CHC required three documents: (1) a nursing assessment, completed by a nurse during a visit; (2) a history and physical, completed by a physician during a visit; and (3) a patient intake form, completed by CHC office staff. At trial, the parties disputed the order in which these documents were completed. Once a patient's file was complete, the patient's attending physician and Dr. Atiga would certify that the patient was terminally ill.

According to trial testimony, CHC's practice was to fraudulently bill Medicare and Medi-Cal for hospice care given to patients who had been falsely certified as terminally ill. CHC illegally paid recruiters to refer patients to CHC. CHC also falsified records and even paid some patients to be on hospice. Although CHC certified its patients as terminally ill, the majority of CHC patients did not die within six months of admission.

Wijegoonaratna filled several roles at CHC from November 2009 to May 2013. For most CHC patients, Wijegoonaratna was the attending physician—the physician who completed the "history and physical," certified the patient as hospice-eligible (along with Dr. Atiga), and remained responsible for the patient's care. Wijegoonaratna also recruited around half of CHC's patients, participated in team meetings, and served as its associate medical director. He continued in these roles even after he was indicted and placed on pretrial release in a different criminal case. All told, CHC paid Wijegoonaratna over $ 325,000 while he worked with CHC, not including any cash payments he received, e.g., for illegal kickbacks.

B

After investigators discovered CHC's fraud, Wijegoonaratna was charged with nine counts of healthcare fraud in violation of 18 U.S.C. § 1347. He was charged along with Villabroza, Patrow, a nurse, a patient recruiter, and another doctor (Boyao Huang). Castillo was charged separately.

Wijegoonaratna and Huang went to trial. Wijegoonaratna was tried on seven counts, each one representing a patient Wijegoonaratna had fraudulently certified as terminally ill and for whose care CHC had billed Medicare or Medi-Cal.

The government presented the testimony of family members, doctors, a hospice expert, and the patients to show that none of the seven patients was in fact terminally ill.

The defense argued that Wijegoonaratna's diagnoses merely confirmed earlier assessments made by the nurses. The defense attempted to show that Wijegoonaratna's diagnoses were legitimate—that is, that the patients were actually eligible for hospice care—because another medical professional made the same diagnoses. At a minimum, the defense hoped that the jury would conclude that Wijegoonaratna was lazy, but not criminal: that he did not perform his own review, and instead negligently, but without intent to defraud, copied the nurse's earlier assessment.

To support that theory, during closing argument the defense highlighted one piece of evidence: an intake form in a patient's file that listed a terminal illness. Defense counsel referred to the document as the patient's nursing assessment (which was to be completed by a nurse during a visit), but the document that defense counsel described was in fact the intake form (completed by CHC office staff). By contrast, the nursing assessment contained a non-terminal diagnosis; it was the intake form that contained the terminal illness. Wijegoonaratna's history and physical contained the same diagnosis as the intake form.

Ignoring the differences between the two documents and who was to prepare them, defense counsel argued that Wijegoonaratna had merely copied the intake form diagnosis into his history and physical.

In its rebuttal, the government emphasized Wijegoonaratna's independent duty to assess patients medically and his deep involvement in CHC. The government also addressed the specific document highlighted by the defense. First, the government pointed out that the nursing assessment in the patient's file contained a non-terminal diagnosis. Second, the government suggested that the office staff who filled out the intake form had copied Wijegoonaratna's diagnosis, and not the other way around.

At that point, defense counsel objected that there was "no such evidence" that the office staff copied Wijegoonaratna's diagnosis. The court overruled the objection. The government continued its rebuttal, emphasizing that "the intake form is not the nurse's assessment." At the end of closing arguments, Wijegoonaratna moved for a mistrial based on those statements, but the court denied the motion.

The jury convicted Wijegoonaratna on all seven counts.

The presentence report calculated two guideline ranges: one for the six counts (counts 1, 2, 3, 4, 7, and 8) committed while the 2010 Sentencing Commission Guidelines Manual was in effect, and one for the remaining count (count 9), which was committed after the 2010 Guidelines Manual was revised to Wijegoonaratna's detriment.¹ Under the 2010 Guidelines Manual, Wijegoonaratna's offense level was 29 and the guideline range was 87–108 months. In 2011, the Sentencing Commission added a two-level specific offense characteristic for a loss greater than $ 1 million to a government healthcare program. U.S.S.G. § 2B1.1(b)(7) (2016). Because of those additional two levels, for count 9, Wijegoonaratna's offense level was 31 and the guideline range was 108–135 months.

Under both versions of the Guidelines Manual, an 18-level loss enhancement applied. See U.S.S.G. § 2B1.1(b)(1)(J) & cmt. 3(A) (2010); U.S.S.G. § 2B1.1(b)(1)(J) & cmt. 3(F)(viii) (2016). The loss enhancement was based on the amount CHC billed (and Medicare paid) for Wijegoonaratna's patients, excluding those patients who died while receiving CHC hospice care.

CHC billed $ 4,014,989, and Medicare paid $ 3,384,202, for Wijegoonaratna's patients who were alive when they were discharged from hospice care. Under both versions of the Guidelines Manual, Wijegoonaratna was also subject to a three-level increase for committing an offense while on pretrial release. U.S.S.G. § 3C1.3 (2010) ; U.S.S.G. § 3C1.3 (2016). In his sentencing memorandum, Wijegoonaratna challenged the loss amount calculation as lacking evidentiary and legal support. He also argued that his age and deteriorating health justified a downward variance.

At the sentencing hearing, Wijegoonaratna did not raise any new objections. Addressing Wijegoonaratna's request for a shorter sentence based on his health condition, the court noted that Wijegoonaratna "made the decision for 130 persons that their underlying health conditions should not be treated, that they should go into hospice and waive and give up their right to treatment."

The district court overruled Wijegoonaratna's objection to the loss amount calculation. The court then stated that Wijegoonaratna's total offense level is 31 and guideline range is 108–135 months. The court then imposed a 108-month prison sentence: 78 months on the first six counts and 30 months on the remaining count, to be served concurrently, with an additional 30 months based on the sentencing enhancement, to be served consecutively.

II

A

Wijegoonaratna challenges his conviction on the ground that the prosecutor committed misconduct when he represented that the nurses completing the intake form copied Wijegoonaratna's assessment.

We usually review for abuse of discretion a district court's overruling of an objection to prosecutorial misconduct. See, e.g. , United States v. Tucker , 641 F.3d 1110, 1120 (9th Cir. 2011) ; United States v. Tam , 240 F.3d 797, 802 (9th Cir. 2001). However, Wijegoonaratna points out that in United States v....