United States v. Dubin

• Decision Date: 04 December 2020
• Docket Number: consolidated with No. 19-50912,No. 19-50891,19-50891
• Citation: 982 F.3d 318
• Parties: UNITED STATES of America, Plaintiff—Appellee, v. William Joseph DUBIN, Defendant—Appellant, United States of America, Plaintiff—Appellee, v. David Fox Dubin, Defendant—Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

982 F.3d 318

UNITED STATES of America, Plaintiff—Appellee,

v.William Joseph DUBIN, Defendant—Appellant,United States of America, Plaintiff—Appellee,

v.David Fox Dubin, Defendant—Appellant.

No. 19-50891

consolidated with No. 19-50912

United States Court of Appeals, Fifth Circuit.

FILED December 4, 2020

Joseph H. Gay, Jr., Assistant U.S. Attorney, Mark Randolph Stelmach, Esq., Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff - Appellee

Michael Clark Gross, Gross & Esparza, P.L.L.C., San Antonio, TX, for Defendant - Appellant

Before Barksdale, Elrod, and Ho, Circuit Judges.

Rhesa Hawkins Barksdale, Circuit Judge:

William Joseph Dubin and David Fox Dubin were convicted on charges arising from a scheme to defraud Texas’ Medicaid program. Between them, they raise eight issues: sufficiency of the evidence for their convictions; running of the statute of limitations based on the superseding indictment; restitution and forfeiture amounts; and William Dubin's length of sentence. An issue of first impression for our court is whether David Dubin's fraudulently billing Medicaid for services not rendered constitutes an illegal "use" of "a means of identification of another person", in violation of 18 U.S.C. § 1028A. AFFIRMED.

I.

William Dubin was a licensed psychologist in Texas, and formed "Psychological A.R.T.S., P.C." (PARTS), in Austin, Texas, for his psychology practice. He served as its chief officer and director. His son, David Dubin, later began working for PARTS on the business side of the corporation, and provided no psychological services.

PARTS is an enrolled Medicaid provider and, as such, agreed to comply with Medicaid laws and regulations. Texas’ Medicaid program provides, inter alia , funding for psychological evaluations of children within Texas’ emergency-shelter system. In that regard, McKenzie served as the president of the board of directors of Williams House, an emergency youth shelter located approximately 80 miles from Austin. As a part of its operations, Williams House arranged for mental-health assessments and psychological evaluations at the shelter.

Former PARTS office manager King testified at trial that, between January and March 2011, McKenzie and William Dubin discussed an opportunity for PARTS to conduct evaluations at Williams House. The email discussion concluded with William Dubin's offering McKenzie "10% off the top of the first year's gross income from this project". After the discussions, PARTS began to send its employees and clinicians to Williams House and billed Medicaid for the work, as well as paying ten percent of the gross income to McKenzie.

PARTS employees performed intake interviews and psychological evaluations at Williams House. To receive Medicaid reimbursement for the work, PARTS had to certify whether a licensed psychologist performed it. Work performed by a licensed psychologist had a higher Medicaid reimbursement rate than that performed by other clinicians. At trial, King testified that she explained billing procedures and requirements to William Dubin, but that he insisted that PARTS bill at the higher rate, despite services not being performed by a licensed psychologist.

In April 2011, William Dubin directed King to pay McKenzie ten percent, in advance, of the amount estimated to be billed to Medicaid for the upcoming month. One group of evaluations that stemmed from Williams House was largely performed by a non-licensed psychologist. But, PARTS billed Medicaid for those evaluations as if they had been performed by a licensed psychologist.

Eventually, McKenzie received a contract providing $50 per hour for his referral services as an independent contractor. The contract purportedly served as a means to provide McKenzie with an above-board role for which he could be paid for his referrals. Based on time cards he submitted, McKenzie would be paid $50 per hour for referrals; but, the rate was not a "real number". Along this line, McKenzie routinely failed to submit time cards or other estimates of time spent under this contract. Instead, King devised a method to calculate McKenzie's hours after-the-fact. She calculated ten percent of the gross amount reimbursed by Medicaid for Williams House patients, divided it by McKenzie's contract hourly rate of $50, and entered the resulting number as McKenzie's hours worked. This ten-percent calculation practice continued after King left PARTS in December 2011. After a PARTS employee resigned, she provided the calculation material to the Texas Attorney General.

Townsend worked as a biller at PARTS, reporting to David Dubin. Townsend billed Medicaid for PARTS’ services rendered. David Dubin and Townsend discussed PARTS’ billing procedures, and he instructed her to bill Medicaid for the licensed-professional rate, despite this being a violation of Medicaid rules because some services were performed by students or interns, and were, therefore, ineligible for reimbursement.

Medicaid rules limit the number of billable hours per patient. After a conversation with David Dubin, Townsend frequently received his questions about how many hours remained for a patient, and she was often instructed to add hours to a patient's record after the patient had been examined and PARTS had billed for reimbursement. In one instance, Townsend was asked to add three hours of bills as "corrected claims" for 19 previously seen patients. These added-claims generated additional payments from Medicaid.

David Dubin similarly instructed Townsend's replacement, Gordon, to continue these practices, and included additional instructions for Gordon to work around other Medicaid limits. David Dubin told Gordon to bill the maximum of eight hours regardless of whether they had been performed.

After receiving a tip, Texas’ Medicaid Fraud unit inquired into PARTS’ billing practices. After receiving patient files and communications related to PARTS’ billing procedures, it was revealed that PARTS billed for services provided by a licensed psychologist and received by 300 patients totaling 1,896 hours, although those services were not performed by a licensed psychologist.

William Dubin, David Dubin, and McKenzie were charged in June 2017 for, inter alia , violating: 18 U.S.C. §§ 2 (aiding and abetting); 1349 (conspiracy to commit health-care fraud); 1347 (health-care fraud); 1028A (aggravated identity theft); 371 (conspiracy to violate 42 U.S.C. §§ 1320a-7b (b)(1) and (2) ); and 42 U.S.C. §§ 1320a-7b (b)(1) and (2) (soliciting or receiving illegal remuneration and offering to pay illegal remuneration). The superseding indictment in September 2018 did not include earlier charges against McKenzie; he pleaded guilty prior to the Dubins’ trial.

Trial began on 9 October 2018 and ended on the 26th. William and David Dubin testified.

For the 25 counts against him, William Dubin was convicted on three: count one, violating 18 U.S.C. § 371 (conspiracy to pay and receive healthcare kickbacks); and counts nine and ten, violating 42 U.S.C. § 1320a-7b(b)(2) (offering to pay, and paying, illegal remuneration for Patients C (count nine) and D (count ten)). For the 25 counts against him, David Dubin was convicted on three: count twelve, violating 18 U.S.C. § 1349 (conspiracy to commit health-care fraud); count nineteen, violating 18 U.S.C. §§ 2, 1347 (aiding and abetting and health-care fraud for Patient L); and, count twenty-five, violating 18 U.S.C. §§ 2, 1028A (aiding and abetting and aggravated identity theft for Patient L).

At sentencing, the court adopted the presentence investigation report (PSR), as modified, for William Dubin and imposed, inter alia : five years’ probation; restitution of $61,230; and forfeiture in the same amount. For David Dubin, the court adopted the PSR, as modified, and imposed, inter alia : imprisonment of twelve months and one day for counts twelve and nineteen; two years’ imprisonment for count twenty-five; restitution of $282,019.92; and forfeiture of $94,006.64.

II.

David Dubin claims the superseding indictment substantially amended the charges so that the statute of limitations had run. Both defendants challenge: the sufficiency of the evidence for their convictions; and the restitution and forfeiture amounts. And, William Dubin challenges the length of his sentence. Each challenge fails.

A.

For counts nineteen and twenty-five, David Dubin asserts the Government's amended indictment substantially altered the charges such that the superseding indictment may not revert back, and thus the two counts were time-barred. If so, his sufficiency-of-the-evidence challenges become moot because the statute ran, and those two convictions would be vacated. Essentially, if David Dubin's assertions are correct on this issue, he is also without a charge for his third conviction, on count twelve.

David Dubin failed, however, to raise this statute-of-limitations defense until in a post-trial motion for ineffective assistance of counsel, filed by his trial counsel, that admitted as much. His appellate counsel (different from trial counsel) acknowledged this at oral argument. Failure to raise this issue until post-trial waives it. United States v. Lewis , 774 F.3d 837, 845 (5th Cir. 2014) (holding criminal defendant must raise statute-of-limitations issue at trial, and defendant waives the defense if raised for first time in post-trial motion).

B.

For William and David Dubin's sufficiency-of-the-evidence challenges for their convictions, if defendant timely moves for judgment of acquittal, as in this instance, the preserved challenge is reviewed de novo . E.g. , United States v. Oti , 872 F.3d 678, 686 (5th Cir. 2017) (citation omitted). Such review "is highly deferential to the verdict" and "consider[s] the evidence in the light most favorable to the [G]overnment, with all reasonable inferences and credibility determinations made in [its] favor". Id . (internal quotation marks and citations omitted). For that review, "[t]he relevant...