United States v. Barnes

Decision Date28 October 2020
Docket NumberNo. 18-31074,18-31074
CitationUnited States v. Barnes, 979 F.3d 283 (5th Cir. 2020)
Parties UNITED STATES of America, Plaintiff–Appellee, v. Shelton BARNES; Michael Jones; Henry Evans ; Paula Jones; Gregory Molden, M.D., Defendants–Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

Diane Hollenshead Copes, Esq., Kevin G. Boitmann, Jeffrey Ryan McLaren, Assistant U.S. Attorneys, U.S. Attorney's Office, Eastern District of Louisiana, New Orleans, LA, for PlaintiffAppellee.

Edward Joseph Castaing, Jr., Esq., Crull, Castaing & Lilly, New Orleans, LA, for DefendantAppellantShelton Barnes.

Robert Charles Jenkins, Jr., Esq., Robert C. Jenkins & Associates, New Orleans, LA, for DefendantAppellantMichael Jones.

Vincent James Booth, Counsel, Booth & Booth, A.P.L.C., Herbert V. Larson, Jr., New Orleans, LA, for DefendantAppellantHenry Evans.

Elizabeth Kay Stepp, Oberheiden Law Group, P.L.L.C., Dallas, TX, Richard T. Simmons, Jr., Attorney, Hailey, McNamara, Hall, Larmann & Papale, L.L.P., Metairie, LA, for DefendantAppellantPaula Jones.

William Todd Hughey, Esq., Hughey Law Firm, Marshall, TX, Harold Paul Moore, Harold P. Moore, Attorney at Law, Mandeville, LA, for DefendantAppellantGregory Molden, M.D.

Before OWEN, Chief Judge, and HAYNES and COSTA, Circuit Judges.

PRISCILLA R. OWEN, Chief Judge:

Shelton Barnes, Michael Jones, Henry Evans, Paula Jones, and Gregory Molden were convicted of offenses related to Medicare fraud.We affirm.

I

Dr. Shelton Barnes, Dr. Michael Jones, Dr. Henry Evans, Paula Jones, and Dr. Gregory Molden were each previously employed by Abide Home Care Services, Inc., a home health agency owned by Lisa Crinel.Barnes, Michael Jones, Evans, and Molden served as "house doctors."In that role, the physicians referred patients to Abide for home health care services.Paula Jones, Michael Jones's wife, was one of Abide's billers.As a biller, Jones would process Medicare filings.She would use the Kinnser billing system (Kinnser) to ensure that all appropriate documentation existed for each bill.As part of Abide's business model, it would "provide home health services to qualified patients and then bill Medicare accordingly."

Medicare reimburses providers for home health care services if a particular patient is (1) eligible for Medicare and (2) meets certain requirements.Those requirements include, inter alia , that the patient is " ‘homebound,’ under a certifying doctor's care, and in need of skilled services."1Certifying a patient for home health care begins with an initial referral, which typically originates with the patient's primary care physician.2Next, "a nurse goes to the patient's home to assess if [he or]she is homebound, completing an Outcome and Assessment Information Set [ (OASIS) ]."3From the OASIS assessment, the nurse develops a plan of care on a form known as a "485" for the prescribing physician's review.Only a physician can approve a 485 plan.Physicians are expected to review the forms to ensure they are accurate.These forms, as well as a face-to-face addendum certifying that the nurse met with the patient, are then routed to Medicare.4This process permits payment for one 60-day episode.Patients can then be recertified for subsequent episodes.

Medicare determines how much will be paid for each episode based, in part, on the patient's diagnosis.Each diagnosis has a corresponding code derived from the International Statistical Classification of Diseases and Related Health Problems 9th Revision (an ICD-9 code).Reimbursements are higher for some diagnoses than others.So-called "case-mix diagnoses" such as rheumatoid arthritis, cerebral lipidosis, and low vision, receive higher payments than other, comparatively simpler diagnoses.As a result, false or erroneous entries on the OASIS form can ultimately result in higher Medicare reimbursements.

The government came to suspect that Abide was committing health care fraud.Specifically, the government alleged that "Abide billed Medicare based on plans of care that doctors authorized for medically unnecessary home health services."According to the government, several patients who had received home health care from Abide did not, in fact, need such services.Each physician had "approved [case-mix] diagnoses to patients on ... 485s that were medically unsupported."Paula Jones had also participated in the scheme.Through Kinnser, Abide employees were able to predict how much Medicare would reimburse for a particular episode of home health care.If the episode did not meet Abide's "break-even point," Jones would send "the files back to the case managers to see if they could get the score up."These and other actions "fraudulently inflated Medicare's reimbursement to Abide."

Relatedly, the government also came to suspect that Abide was "pay[ing] doctors, directly or indirectly, for referring patients."The government alleged that Crinel (the owner of Abide) had paid the physicians for patient referrals.Some of these payments were "disguised as compensation for services performed as [medical directors]" for Abide.The government also alleged that Paula Jones's salary, which had doubled during her time working for Abide, was based on her husband's referrals.This conduct, the government alleged, constituted a violation of 42 U.S.C. §§ 1320a-7b(b)(1), (b)(2) —the anti-kickback statute.

Barnes, Michael Jones, Evans, Paula Jones, and Molden were each charged with conspiracy to commit health care fraud and conspiracy to violate the anti-kickback statute.Each physician was also charged with several counts of substantive health care fraud.Finally, Barnes was charged with obstructing a federal audit in violation of 18 U.S.C. §§ 2and1516.According to the government, upon learning he was under audit, Barnes falsified documents to justify his fraudulent certifications.

At trial, Crinel, Wilneisha Jakes(Crinel's daughter and an Abide employee), Rhonda Maberry(an assistant manager at Abide), and Eleshia Williams(Barnes's biller) testified for the government.Dr. Lutz also testified for the government.He evaluated the medical records of several of Abide's patients and opined as to whether home health care was medically necessary.The defendants presented several witnesses; Evans also testified in his own defense.The jury convicted Barnes, Michael Jones, Paula Jones, and Molden of conspiracy to commit health care fraud and conspiracy to violate the anti-kickback statute.Barnes, Evans, Michael Jones, and Molden were each found guilty of several counts of substantive health care fraud.The jury also convicted Barnes of obstructing a federal audit.Thereafter, each was sentenced to a term of imprisonment.This appeal followed.

II

We first consider the issues raised by Shelton Barnes.

A

Barnes challenges the sufficiency of the evidence supporting each of his convictions."[P]reserved sufficiency-of-the-evidence challenges" are reviewed de novo.5Under that standard, "we review[ ] the record to determine whether, considering the evidence and all reasonable inferences in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."6

Barnes was convicted on both counts of conspiracy identified in the indictment.Count 1 alleged that he conspired to commit healthcare fraud, in violation of 18 U.S.C. §§ 1347and1349.Section 1347 punishes "[w]hoever knowingly and willfully executes, or attempts to execute, a scheme or artifice ... to defraud any health care benefit program ... in connection with the delivery of or payment for health care benefits, items, or services."7To convict on Count 1, the government was required to prove: "(1) two or more persons made an agreement to commit health care fraud; (2)the defendant knew the unlawful purpose of the agreement; and (3)the defendant joined in the agreement willfully, that is, with the intent to further the unlawful purpose."8

Count 2 alleged that Barnes conspired with others to "knowingly and willfully solicit and receive ... kickbacks and bribes ... in return for referring individuals for" Medicare services in violation of 42 U.S.C. §§ 1320a-7b(b)(1), (b)(2), and18U.S.C. § 371.As summarized in United States v. Gibson , the anti-kickback statute"criminalizes the payment of any funds or benefits designed to encourage an individual to refer another party to a Medicare provider for services to be paid for by the Medicare program."9To convict on Count 2, the government was required to establish: "(1) an agreement between two or more persons to pursue [the] unlawful objective; (2)the defendant's knowledge of the unlawful objective and voluntary agreement to join the conspiracy; and (3) an overt act by one or more of the members of the conspiracy in furtherance of the objective of the conspiracy."10

The sine qua non of a conspiracy is an agreement.11We have previously recognized that "[a]greements need not be spoken or formal."12"[T]he [g]overnment can use evidence of the conspirators’ concerted actions to prove an agreement existed."13Nevertheless, "[p]roof of an agreement to enter a conspiracy is not to be lightly inferred."14" ‘Mere similarity of conduct among various persons and the fact that they have associated with or are related to each other’ is insufficient to prove an agreement."15"Conspirators do not enter into an agreement by happenstance ...."16

On appeal, Barnes relies heavily on our previous decision in United States v. Ganji in arguing that there was insufficient evidence to convict him of either conspiracy.In Ganji , Elaine Davis, the owner of a home health care agency, and Dr. Ganji, a physician associated with Davis's agency, were charged and ultimately convicted of conspiracy to commit health care fraud and substantive health care fraud.17We reversed on sufficiency-of-the-evidence grounds.18As to each conspiracy conviction, we concluded the government failed to establish either individual entered into an agreement...

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18 cases
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    • U.S. Court of Appeals — Fifth Circuit
    • Junio 03, 2021
    ...district court adopted the probation officer's extrapolation analysis of the amount of the intended loss, necessarily finding that Hyde's fraud was extensive and pervasive. On this record, Hyde cannot show that this finding was clearly erroneous. See id. Thus, Hyde had the burden of showing that the loss calculation was materially untrue, that is, that particular contracts considered in determining the loss amount were legitimate. See Hebron, 684 F.3d at 563. Hyde has not attempteddefendant to make a showing that particular amounts are legitimate." United States v. Hebron, 684 F.3d 554, 563 (5th Cir. 2012). Pervasiveness under Hebron is a factual finding reviewed for clear error. United States v. Barnes, 979 F.3d 283, 311-12 (5th Cir. 2020). The district court adopted the probation officer's extrapolation analysis of the amount of the intended loss, necessarily finding that Hyde's fraud was extensive and pervasive. On this record, Hyde cannot...
  • United States v. Nora
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    • U.S. Court of Appeals — Fifth Circuit
    • Febrero 24, 2021
    ...track patient recertifications.The evidence at trial showed that Nora's role entangled him, to some extent, in three practices that were central to Abide's fraud and kickback schemes.The first was Abide's use of house doctors. As the court in Barnes described (in the excerpt above), Abide would rely on its house doctors to approve medically unnecessary plans of care so that it could bill Medicare for patients who would otherwise not qualify for home health services. By virtue of hiscompensation in return. Nora was also sometimes instructed to deliver referral payment checks to those who had made successful referrals.The third practice at Abide in which Nora was involved was known as "ghosting." As described above by the court in Barnes , when a patient satisfies Medicare's requirements for home health services, Medicare will approve payment for one 60-day episode of care. Should the patient need additional care beyond that episode, they can be recertified for additionalcodefendants—Dr. Shelton Barnes, Dr. Michael Jones, Dr. Henry Evans, Dr. Gregory Molden, and Paula Jones—also appealed their convictions, but their case was resolved by a separate panel of this court in United States v. Barnes , 979 F.3d 283 (5th Cir. 2020). That panel affirmed the codefendants’ convictions. Id. at 292. In doing so, it also described the nature of the fraud and kickback schemes run out of Abide, the facts of which are also relevant to Nora's appeal. Id. at 292-94....
  • United States v. Davis
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • Noviembre 15, 2022
    ...respect to the first two elements but vacate and remand the forfeiture order for further consideration.A. Restitution We review restitution orders for abuse of discretion and fact findings for clear error. United States v. Barnes , 979 F.3d 283, 313 (5th Cir. 2020). "A factual finding is clearly erroneous only if based on the record as a whole, we are left with the definite and firm conviction that a mistake has been committed." United States v. Sharma , 703 F.3d 318, 322 (5th Cir....
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    • U.S. District Court — Southern District of Mississippi
    • Abril 26, 2021
    ...principles and methods," and (4) "the expert has reliably applied the principles and methods to the facts of the case." Thus, "[e]xpert testimony is admissible only if it is both relevant and reliable." United States v. Barnes , 979 F.3d 283, 307 (5th Cir. 2020) (quoting United States v. Hodge , 933 F.3d 468, 477 (5th Cir. 2019) ). Factors a court should use in assessing the reliability of expert testimony "include whether the expert's theory or technique: (1) can be or has...
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    • James Publishing R. Rogge Dunn
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  • Preliminary Sections
    • United States
    • Trial Objections James Publishing R. Rogge Dunn
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    ...Compound Ques O, 611(a) Compound Ques asks for 2 or more facts of Witn simultaneously Ques w/too many predicates confuses Witn or calls for conclusion, & creates confusing/unreliable response 611(a), §417 ; U.S. v. Barnes , 979 F.3d 283 (5th 2020); U.S. v. Cadden , 965 F.3d 1 (1st 2020) Conclusion Called For O, 701 Calls for Legal Conclusion. Invades jury’s province At common law, Witn could only testify to facts they observed. Today, some lay Witn can testify to conclusions...