United States v. Barnes

• Decision Date: 15 January 2019
• Docket Number: CRIMINAL ACTION NO. 15-61 SECTION: "E" (2)
• Parties: UNITED STATES OF AMERICA v. SHELTON BARNES, ET AL.
• Court: U.S. District Court — Eastern District of Louisiana

UNITED STATES OF AMERICA v. SHELTON BARNES, ET AL.

CRIMINAL ACTION NO. 15-61 SECTION: "E" (2)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

January 15, 2019

ORDER AND REASONS

Before the Court are five motions for release pending appeal, filed by Defendants Shelton Barnes, Gregory Molden, Paula Jones, Michael Jones, and Henry Evans (collectively, "Defendants").¹ The Government opposes Defendants' motions.² Defendant Barnes filed a reply memorandum.³ For the following reasons, Defendants' motions are DENIED.

BACKGROUND

On March 12, 2015, a federal grand jury returned a twenty-six-count Indictment against Defendants and sixteen other co-defendant/co-conspirators, relating to their alleged roles in a conspiracy to defraud Medicare.⁴ On April 21, 2016, the grand jury returned a Superseding Indictment that included most of the same charges as those in the original indictment but no longer included charges associated with defendants who had pleaded guilty by that time.⁵ On September 8, 2016, the grand jury returned a forty-seven-count Second Superseding Indictment including most of the same charges as those in theoriginal and First Superseding Indictment, but no longer including charges associated with the defendants who had pleaded guilty by that time.⁶

Defendants were charged as follows in the Second Superseding Indictment. All Defendants were charged in Count 1, conspiracy to commit health care fraud, and Count 2, conspiracy to receive and pay illegal health care kickbacks.⁷ Barnes also was indicted on Counts 3-7, individual counts of health care fraud relating to patient HaHa; Counts 8-11, relating to patient KiSt; Counts 11-17, relating to patient ArGi; and Count 47, relating to obstruction of a federal audit. Michael Jones was indicted on Counts 18-21, relating to patient ArGi; Counts 22-26, relating to patient LiSc; and Count 27, relating to patient EvLa. Evans was indicted on Counts 28 and 29, relating to patient JeJo; Counts 30 and 31, relating to patient JoWi; and Counts 43-46, relating to patient MaGr. Molden was indicted on Counts 32-37, relating to patient KeTr; and Counts 38-42, relating to patient ShBe. Nora was indicted Count 27, relating to patient EvLa.⁸

Trial in this matter began on April 10, 2017. On May 9, 2017, after sixteen days of trial testimony and more than two days of deliberation, the jury convicted Barnes, Molden, and Paula Jones on all counts for which they were charged in the Second Superseding Indictment.⁹ Michael Jones was found guilty as to Counts 1, 2, 18, and 22-27, and not guilty as to Counts 19, 20, and 21. Evans was found guilty as to Counts 31 and 43-46, and not guilty as to as to Counts 1, 2, and 28-30.¹⁰

Following the verdict, Defendants filed post-trial motions pursuant to Rules 29 and 33 of the Federal Rules of Criminal Procedure moving for acquittal and for newtrials.¹¹ They argued the evidence presented at trial was insufficient for a jury to convict them, contested evidentiary rulings, and raised other issues that arose before and during the trial.

On January 30, 2018, the Fifth Circuit issued an opinion in United States v. Ganji reversing and vacating convictions for conspiracy to commit health care fraud and health care fraud, finding the evidence presented at trial in that case was insufficient to support a conviction.¹² The Court permitted Defendants to file supplemental memoranda in support of their post-trial motions to address whether the Ganji decision affected the verdict.¹³ On August 27, 2018, the Court denied Defendants' post-trial motions, distinguishing Ganji and responding to each argument raised in the motions.¹⁴

Defendants were sentenced on September 25, 2018.¹⁵ They appealed their sentences to the Fifth Circuit¹⁶ and filed the instant motions for release pending appeal.¹⁷ As in their post-trial motions and supplemental memoranda, Barnes, Molden, Paula Jones, and Evans repeat their argument that, under Ganji, the evidence presented for each Defendant was insufficient to support a conviction.¹⁸ Defendants also raise many of the same issues litigated in their post-trial motions. The Government filed a consolidated opposition to the motions of Barnes, Molden, and Paula Jones,¹⁹ and a consolidatedopposition to all five Defendants' motions.²⁰ Barnes filed a reply.²¹ On November 28, 2018, the Court held oral argument on the motions.²²

LEGAL STANDARD

18 U.S.C. § 3143(b)(1) provides that, after being sentenced, a defendant who has filed an appeal shall be detained unless a court finds

(A) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released under section 3142(b) or (c) of this title; and

(B) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in—

(i) reversal,

(ii) an order for a new trial,

(iii) a sentence that does not include a term of imprisonment, or

(iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.

The Fifth Circuit has restated this test as requiring a defendant to show:

(1) that he is not likely to flee or pose a danger to the safety of others;

(2) that the appeal is not for purpose of delay;

(3) that the appeal raises a substantial question of law or fact; and

(4) that the substantial question, if decided favorably to the defendant, is likely to result in reversal, in an order for a new trial, in a sentence without imprisonment, or in a sentence with reduced imprisonment.²³

There is a presumption against the grant of release pending appeal, and the burden is on the defendant to prove by clear and convincing evidence that the factors above are met.²⁴

With respect to the first two factors, Defendants assert they are not likely to flee, they do not pose a danger to safety, and their appeals are not for the purpose of delay.²⁵The Government does not contest these points.²⁶ Rather, the Government argues Defendants have failed to show the appeals raise substantial questions of law or fact, which, if decided favorably to Defendants, are likely to result in reversals or orders for new trials.²⁷

To show a question is a "substantial question of law or fact," a defendant must show the question is one which is "novel, which has not been decided by controlling precedent, or which is fairly doubtful."²⁸ A question is substantial if it is "close" or "very well could be decided the other way," meaning "the issue presented must raise a substantial doubt (not merely a fair doubt) as to the outcome of its resolution."²⁹ This determination must be made "on a case-by-case basis."³⁰ The Fifth Circuit has stated that "the absence of controlling precedent is only one factor to be considered in the court's determination."³¹

If the Court determines an appeal raises a substantial question of law or fact, the Court must determine whether the question is one which, "if decided favorably to the defendant, is likely to result in reversal, in an order for a new trial, in a sentence without imprisonment, or in a sentence with reduced imprisonment."³² "Likely" in this context means "more probable than not."³³ In considering whether it is more probable than not the Fifth Circuit or the Supreme Court will reverse, order a new trial, or impose noimprisonment or less imprisonment, the Court will consider the standard of review an appellate court would apply to each ruling.³⁴

ANALYSIS

I. Sufficiency of the Evidence

Defendants argue the Court erred in not granting their motions for acquittal or for new trial based on the sufficiency of the evidence with respect to conspiracy to commit healthcare fraud or healthcare fraud.³⁵ The Fifth Circuit "review[s] challenges to the sufficiency of the evidence de novo. Even when examined de novo, review of the sufficiency of the evidence is highly deferential to the verdict."³⁶

In Ganji, the Fifth Circuit reversed the convictions of defendants Drs. Ganji and Davis because the Government failed to present either direct evidence of an agreement to defraud Medicare or circumstantial evidence of a concert of action sufficient to sustain a conviction.³⁷ In its Order of August 27, 2018, the Court addressed the Ganji case in the context of Defendants' motions for acquittal or for a new trial.³⁸ As the Court explained,

At the Ganji trial, the Government introduced indirect evidence of concerted action—doctors and nurses who spoke of their own fraudulent actions—but the Government elicited no testimony that any person agreed with Dr. Ganji to carry out these activities. In addition, Dr. Ganji "provided extensive, undisputed testimony" of her innocence that was unrebutted by the Government. . . . [I]mportant factual distinctions exist between Ganjiand this case. . . . In this case, the Government presented direct and compelling evidence of Shelton Barnes' and the other Defendants' agreement to join the conspiracy to commit health care fraud.³⁹

Defendants argue there is a substantial question of law as to whether the evidence presented at trial was sufficient to sustain convictions for health care fraud and conspiracy to commit health care fraud.⁴⁰ The Court turns to the arguments Defendants raise in their motions.

A. Barnes and Molden

Barnes and Molden argue, under Ganji, there is a substantial question of law as to the sufficiency of the evidence as to them.⁴¹ Barnes and Molden argue there was no direct evidence of their participation in a conspiracy to defraud Medicare.⁴² They point to the testimony of Lisa Crinel, which they argue shows there was, in fact, no conspiracy.⁴³ In its Order of August 27, 2018, the Court reviewed the evidence presented at trial as to Barnes and Molden and found that, unlike in Ganji, there was direct evidence at trial of the fraudulent actions of both defendants.⁴⁴ The Court found the evidence in this case analogous to the evidence presented in United States v. Dailey⁴⁵ and United...