United States v. Memar, 17-3098

• Decision Date: 17 October 2018
• Docket Number: No. 17-3098,17-3098
• Citation: 906 F.3d 652
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Omeed MEMAR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

906 F.3d 652

UNITED STATES of America, Plaintiff-Appellee,

v.Omeed MEMAR, Defendant-Appellant.

No. 17-3098

United States Court of Appeals, Seventh Circuit.

Argued May 23, 2018

Decided October 17, 2018

Stephen Chahn Lee, Kartik K. Raman, Attorneys, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Taher Kameli, Attorney, Kameli Law Group, LLC, Chicago, IL, for Defendant–Appellant.

Before Wood, Chief Judge, and Bauer and Scudder, Circuit Judges.

Wood, Chief Judge.

Anyone who has encountered medical billing, either from the provider side or the patient side, would agree that it could kindly be described as complex. But that does not mean that the rules are impossible to decipher, or that anything goes. There is a line between honest billing and fraud, and in the present case, the government charged Dr. Omeed Memar with crossing it.

The government focused on eight cases in which Memar diagnosed patients with a precancerous condition known as actinic keratosis

, which produces distinctive skin lesions. He treated the patients in question by applying intense pulsed light ("IPL") to supposed lesions on their faces and then billing their insurance providers for the procedures. The government suspected that there were no such lesions, and that instead this was a ruse to trick insurance companies into reimbursing the charges for cosmetic procedures outside the scope of the policies. A jury agreed with the government. On appeal, Memar primarily insists that the evidence was insufficient to support the verdict. We are not persuaded: we see ample evidence in this record from which the jury could find that Memar’s conduct was fraudulent. We find no reversible error elsewhere either, and so the convictions must stand.

I

Until recently, Memar was a practicing dermatologist in Chicago. In 2015, he was indicted on eight counts of health care fraud, in violation of 18 U.S.C. § 1347, and eight counts of making false statements affecting a health care matter, in violation of 18 U.S.C. § 1035(a)(2). These charges relate to Memar’s care for the eight patients we described above. After each session of IPL treatment for the alleged actinic keratosis

, Memar submitted claims to the patients' insurance companies, using billing code 17004, for the destruction of 15 or more precancerous lesions. The insurance companies paid, since the paperwork represented that the treatments were medically necessary and not cosmetic.

At trial, the government presented two theories of fraud: it contended that the eight patients named in the indictment did not actually have actinic keratosis

; and it asserted that the use of IPL alone could not destroy the lesions produced by actinic keratosis. In support of the first theory, the prosecution presented expert testimony from Dr. Edward Victor Ross, who explained that actinic keratosis most commonly presents as red scaly lesions and is uncommon among patients under 40. Dr. Ross also opined that IPL alone, without other substances or devices, was ineffective at treating actinic keratosis.

The eight patients, who were mostly in their 20s and 30s, all took the stand. Many of them stated that Memar never told them that they had actinic keratosis

or a precancerous condition, something they said they would have remembered. They had not seen scaly spots on their skin. To their knowledge, the IPL was to address other medical problems or to improve their skin’s appearance. Another dermatologist, Dr. Neha Robinson, confirmed that two of the patients did not have lesions when she saw them during the same period as the one in which they were receiving IPL treatments from Memar.

Memar’s medical assistants also testified. They reported that at each IPL visit, they copied into the patients' charts diagrams of where each actinic keratosis

lesion was located. They did this without examining the patients' faces at the time of the visit. Two of the assistants said that they would write down that a patient had multiple lesions even if they observed none. One assistant admitted that she believed she "was doing treatments on patients that didn't have these diagnoses."

The government additionally offered testimony from a representative of Blue Cross Blue Shield (BCBS), James Krupkowski, about a meeting he and others had with Memar. BCBS suspected that Memar used IPL on a patient for cosmetic reasons, and so Krupkowski confronted him about it. Memar responded, according to Krupkowski, that the IPL was for "prevention," since the patient "had a proven history of cancer

." The prosecution introduced records showing that shortly after this meeting, Memar dramatically reduced the frequency with which he billed for the destruction of 15 or more actinic keratosis lesions. Patients testified that they were told their IPL treatments would no longer be covered, but they were not offered any alternative treatments—surprising if the treatment was for precancerous conditions.

In his defense, Memar called eight other patients with actinic keratosis

. These people, some of whom had had biopsies to confirm their disease, were generally older and knew they had precancerous lesions. They testified that Memar discussed multiple treatment options with them, and they underwent other procedures in addition to IPL. The defense also called an expert, Dr. David Goldberg. Dr. Goldberg did not employ IPL alone to treat actinic keratosis in his practice, but he did say that he used it to treat his wife’s actinic keratosis at home.

Finally, Memar testified in his own defense. He stood by his diagnoses and maintained that the efficacy of unsupplemented IPL, though investigational, had some support in the field. On cross-examination, Memar repeatedly denied the prosecution’s suggestion that he admitted in the meeting with BCBS that he used IPL for photorejuvenation (a cosmetic purpose).

Though Memar and Krupkowski’s testimony was clear that there had been no such admission, the prosecution falsely stated three times during its closing argument that Memar told BCBS that he used IPL for photorejuvenation. Memar’s attorney did not object, but he did not let the comments slide. In his closing statement, defense counsel quickly turned to this mischaracterization of testimony. He reminded the jury that neither Krupkowski nor Memar testified to an admission about photorejuvenation. A few minutes later, the defense attorney used the misstatement to attack the government’s credibility, citing the alleged "confession" to BCBS as proof that the jury was "not getting the truth." But this was not the end of the matter. In its rebuttal, the prosecution referred again to the same nonexistent testimony while listing evidence against Memar. The defense did not object.

Ultimately, the jury convicted Memar on all 16 counts. The court declined Memar’s motion under Federal Rules of Criminal Procedure 29 and 33 to enter a judgment of acquittal or to grant a new trial. He was sentenced to a three-year period of supervised release, during which he must perform community service and pay fines and restitution. On appeal, Memar repeats his two reasons for attacking his convictions:

that the evidence was insufficient to prove all elements of the offenses, and that the prosecution’s improper remarks tainted the verdict.

II

Memar first argues that there was insufficient evidence to prove the three elements required for his convictions: the falsity of his representations, the willfulness of his false statements, and his intent to defraud. See United States v. Chhibber , 741 F.3d 852, 858–59 (7th Cir. 2014) (defining a section 1347 offense); United States v. Natale , 719 F.3d 719, 742 (7th Cir. 2013) (same for section 1035(a)(2) ).

In evaluating Memar’s challenge to the sufficiency of the evidence, we ask not whether we would have found Memar guilty in the first instance. Rather, we consider "only if, after viewing the evidence in the light most favorable to the government, the record is devoid of evidence from which a rational trier of fact could find guilt beyond a reasonable doubt." Chhibber , 741 F.3d at 858. This deferential inquiry, articulated by the Supreme Court in Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the context of collateral review but widely accepted as a general standard, prevents us from reweighing evidence or assessing witness credibility. United States v. Moshiri , 858 F.3d 1077, 1081–82 (7th Cir. 2017). All we can do is look at the record as a whole and ask whether the evidence would permit a reasonable jury to find each element. United States v. Farmer , 717 F.3d 559, 563 (7th Cir. 2013). Memar may not simply relitigate his defense on direct appeal. Cf. Natale , 719 F.3d at 743.

Moreover, contrary to Memar’s assertions, there is nothing wrong with circumstantial evidence of guilt. United States v. Jones , 713 F.3d 336, 340 (7th Cir. 2013) ; United States v. Galati , 230 F.3d 254, 258 (7th Cir. 2000). While a verdict based on speculation cannot stand, one premised on reasonable inferences is sound. Jones , 713 F.3d at 340 ; see also United States v. Daniel , 749 F.3d 608, 614 (7th Cir. 2014) (circumstantial evidence and inferences from the scheme to defraud can establish specific intent to defraud); United States v. Rucker , 738 F.3d 878, 884 (7th Cir. 2013) (circumstantial evidence can be used to establish knowing participation in a scheme to defraud).

A

We look first at the question whether the evidence supported the jury’s finding that Memar purposefully misdiagnosed patients as having actinic keratosis

. The government presented substantial proof to demonstrate the falsity of those diagnoses. Numerous patients testified that they had zero—let alone over 15—scaly patches on their faces. Dr. Robinson confirmed that two of the patients did not have actinic keratosis. One of Memar’s medical assistants admitted that she wrote in patient charts that actinic keratosis lesions were present when they in fact were not. Another said that she...