United States v. Kidd
| Decision Date | 26 June 2020 |
| Docket Number | No. 18-3328, No. 18-3558,No. 18-3327,18-3327 |
| Citation | 963 F.3d 742 |
| Parties | UNITED STATES of America, Plaintiff - Appellee, v. Dana Enoch KIDD, Jr., Defendant - Appellant. United States of America, Plaintiff - Appellee, v. Adam John Burke, Defendant - Appellant. United States of America, Plaintiff - Appellee, v. Abdirahin Khalif Ibrahim, Defendant - Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Craig Raymond Baune, Assistant U.S. Attorney, U.S. Attorney's Office, District of Minnesota, Minneapolis, MN, Lisa D. Kirkpatrick, Assistant U.S. Attorney, U.S. Attorney's Office, Saint Paul, MN, Finnuala K. Tessier, U.S. Department of Justice, Criminal Division, Appellate Section, Washington, DC, for Plaintiff - Appellee Dana Enoch Kidd, Jr.
Dana Enoch Kidd, Jr., Pro Se
Jennifer Marie Macaulay, Macaulay Law Offices, Saint Paul, MN, for Defendant - Appellant
Adam John Burke, Pro Se
Aaron James Morrison, Wold & Morrison Law, Minneapolis, MN, for Defendant - Appellant Adam John Burke
Kaitlin Ek, Robins & Kaplan, Minneapolis, MN, William Mauzy, Mauzy Law Firm, Minneapolis, MN, for Defendant - Appellant Abdirahin Khalif Ibrahim
Abdirahin Khalif Ibrahim, Pro Se
Before COLLOTON, WOLLMAN, and KELLY, Circuit Judges.
A jury convicted Adam Burke, Abdirahin Ibrahim, and Dana Kidd of mail fraud and conspiracy to commit mail fraud. See 18 U.S.C. §§ 1341, 1349. The defendants appeal their convictions and sentences on various grounds. We conclude that there was no reversible error and affirm the judgments of the district court.1
Adam Burke was a licensed chiropractor who operated Burke Chiropractic in Edina, Minnesota. Between 2012 and 2015, Burke's business model centered on treating patients involved in automobile accidents. Patients needing treatment qualified for mandatory insurance coverage under Minnesota's No-Fault Insurance Act. The Act requires automobile insurers to pay for up to $20,000 in qualifying medical expenses, including chiropractic treatment, after an automobile accident, regardless of fault. Minn. Stat. § 65B.44, subdiv. 1 and 2. The Act allowed Burke to bill insurance companies directly and to receive reimbursement for qualifying treatment that he provided to patients. Id ., subdiv. 1(a).
Minnesota law regulates how health care providers may solicit patients. It is a felony for a health care provider to employ a "runner" to procure or solicit patients. Minn. Stat. § 609.612, subdiv. 2. A runner "procures or solicits prospective patients through telephonic, electronic, or written communication, or in-person contact" on behalf of a health care provider "when the person knows or has reason to know that the provider's purpose is to perform or obtain services or benefits under or relating to a contract of motor vehicle insurance." Id. , subdiv. 1(c). The statute provides that "[c]harges for any services rendered by a health care provider, who violated this section in regard to the person for whom such services were rendered, are noncompensable and unenforceable as a matter of law." Id ., subdiv. 2. The No-Fault Insurance Act also defines the use of a runner as an unethical practice. Minn. Stat. § 65B.54, subdiv. 6(a).
According to evidence at trial, Burke nonetheless employed several runners, including Ibrahim, Kidd, and Samatar Omar. Burke paid his runners to solicit people involved in automobile accidents and to ensure that patients returned for each appointment in the prescribed treatment plan. The runners often promised to pay the prospective patients. If a patient missed an appointment, Burke expected the runner to prod the patient to return for further treatment, or to recruit a new patient without additional payment from Burke.
Burke compensated his runners per patient after each patient attended a threshold number of appointments. The runners used these disbursements to pay patients; they also collected their own "consulting fee" from Burke. Between 2012 and 2015, Burke paid Ibrahim over $200,000 and Kidd over $90,000 for their services as runners.
Burke's business model relied on billing insurance companies for as many treatments as possible under the No-Fault Insurance Act. Burke usually recommended the same treatment plan for automobile accident patients—two to three appointments per week and a total of thirty to forty appointments. Burke coached runners to tell patients to schedule fifty appointments, with the hope that patients would attend at least forty that could be billed to insurance. He recommended more appointments for patients who were eligible for insurance coverage under the Act than he suggested for patients who paid cash. Burke's patients testified that even when treatments were not helpful, they felt pressured by Burke's runners to attend the appointments.
Burke also recommended treatments to patients who had not actually endured auto accidents. In late 2013, an undercover agent posing as "Mike Brown" sought treatment from Burke. "Brown" represented that he was experiencing neck pain after a recent automobile accident. Burke diagnosed the agent with a curved neck due to the "accident," and recommended a treatment of fifty in-office visits. The agent ultimately became a runner for Burke and brought in other undercover agents for treatment. None of the undercover patients had been injured or involved in automobile accidents, but Burke submitted claims for their treatments as well.
To conceal his use of runners, Burke sought to make it appear that Omar, Ibrahim, and Kidd provided marketing services for his clinic. Kidd and Ibrahim set up corporate entities that entered into false "consulting" and "marketing" contracts with Burke Chiropractic. Kidd and Ibrahim created invoices that billed Burke for phony marketing services and events. Burke also instructed his runners to coach patients that they should not disclose their recruitment to an insurance company.
A grand jury charged Burke, Ibrahim, and Kidd with conspiracy to commit mail fraud. See 18 U.S.C. § 1349. The indictment also charged mail fraud: twelve counts against Burke and three counts against Ibrahim and Kidd. See 18 U.S.C. § 1341. Burke's defense at trial was that he billed only for services that were medically necessary and thus did not participate in a scheme to defraud. Burke also claimed that Ibrahim and Kidd provided legitimate marketing services, and that Omar testified to the contrary solely to reduce his own sentence. Ibrahim and Kidd both said they did not know that Burke's use of runners was illegal, and did not intend to defraud the insurers.
A jury convicted Burke and Ibrahim on all counts and Kidd on the conspiracy and one count of mail fraud. The district court sentenced Burke to 90 months’ imprisonment, Kidd to 24 months’ imprisonment, and Ibrahim to 300 days in prison.
All three defendants challenge the sufficiency of the evidence supporting their convictions. We review the issue de novo , construing the evidence in the light most favorable to the verdict. The question is whether a reasonable jury could have found the defendant guilty beyond a reasonable doubt. United States v. Shafer , 608 F.3d 1056, 1066-67 (8th Cir. 2010).
The defendants first argue that they did not commit mail fraud or conspire to do so because concealing the runner payments did not prevent the insurance companies from acquiring "material" information. Mail fraud requires, among other elements, proof that a defendant devised or participated in a "scheme to defraud." United States v. Onwumere , 530 F.3d 651, 653 (8th Cir. 2008). A conspiracy requires an agreement to devise or participate in such a scheme. United States v. Anderson , 783 F.3d 727, 749 (8th Cir. 2015). A scheme to defraud includes "acts taken to conceal, create a false impression, mislead, or otherwise deceive in order to prevent the other party from acquiring material information." United States v. Steffen , 687 F.3d 1104, 1115 (8th Cir. 2012) (internal quotation omitted). The district court properly instructed the jury that information is "material" if it has "a natural tendency to influence, or is capable of influencing, the decision of a reasonable person in deciding whether to engage or not to engage in a particular transaction." See Neder v. United States , 527 U.S. 1, 16, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) ; Preston v. United States , 312 F.3d 959, 961 (8th Cir. 2002).
In this case, the grand jury charged that the defendants devised a scheme to defraud insurance companies and conspired to do so. The prosecution, therefore, was required to prove that knowledge of the runner payments would have tended to influence or was capable of influencing an insurer's decision whether to reimburse the claims.
The evidence at trial met this standard for two reasons. First, if the insurance companies had known that Burke employed runners to recruit patients, then the companies would have investigated Burke's claims more carefully. Minnesota law mandates that insurers cover "necessary medical care" following an automobile accident. Minn. Stat. § 65B.44, subdiv. 1(b). Greater scrutiny would have been warranted because use of a runner makes it more likely that treatment is driven purely by desire for profit rather than medical necessity. Further investigation likely would have led the companies to deny some of the claims.
The government presented evidence that Burke sought reimbursement for treatments that were not medically necessary. For example, Burke diagnosed the undercover agent "Mike Brown" with a curved neck when the agent had no actual injury, and insisted on treating the agent even after he disclaimed any pain. Burke then submitted claims for treatment of both "Brown" and the undercover agents whom "Brown" recruited as patients, even though none of the agents was injured or involved in an automobile accident. Another patient, recruited by Kidd, testified that treatments for which Burke submitted claims—a spinal adjustment, hot and cold pack...
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