United States v. Robinett
| Decision Date | 13 October 2020 |
| Docket Number | No. 18-11402,18-11402 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KELLY ROBINETT; KINGSLEY NWANGUMA; JOY OGWUEGBU, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeals from the United States District Court for the Northern District of Texas
Before OWEN, Chief Judge, and BARKSDALE and DUNCAN, Circuit Judges.
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Dr. Kelly Robinett, Kingsley Nwanguma, and Joy Ogwuegbu were convicted by a jury of conspiracy to commit health care fraud, health care fraud and aiding and abetting, which are offenses under 18 U.S.C. §§ 2, 1347, and 1349. The defendants raise numerous issues, including challenges to the sufficiency of the evidence and to aspects of their respective sentences. Weaffirm the district court's judgment in part. We vacate and remand Nwanguma's and Ogwuegbu's sentences for reformation as discussed in parts III(G) and IV(C).
Two home health care companies were alleged to have been involved in fraudulent conduct: Boomer House Calls (Boomer HC) and Timely Home Health (Timely HH). Dr. Kelly Robinett owned the majority of the shares of Boomer HC. Kingsley Nwanguma, a licensed vocational nurse (LVN), worked for Timely HH. Joy Ogwuegbu served as Timely HH's head of nursing. Other individuals relevant to the current appeal include: Usani Ewah and Patience Okoroji, Timely HH's owners; Dr. Claudio, a physician associated with Timely HH; and Shawn Chamberlain, a physician's assistant who was operating under Robinett's supervision and who owned the remaining interest in Boomer HC. Timely HH and Boomer HC billed Medicare for home health care services. The home health care process typically begins when "a patient's primary care physician . . . refers [him or] her for home health services."1 The physician can issue such a referral by phoning the home health care agency and ordering a home health care assessment. After receiving the order, the agency sends a written confirmation for the physician's signature. A nurse or physician's assistant then (1) visits the patient, (2) completes an Outcome and Assessment Information Set (OASIS) to determine whether the patient is homebound, and (3) drafts a plan of care, or Form 485.2 A physician then signs the Form 485, certifying that the patient is "homebound, under [the] doctor's care, and in need of skilled services."3 The process results in payment for one sixty-day episode of care, during which an LVN provides skilled nursing care to the patient. Thepatient can then be recertified for additional episodes if necessary. Under this framework, Timely HH would bill Medicare for home health treatment under Part A Medicare coverage. Boomer HC would bill Medicare for completing home health certifications under Part A and under Part B for physician visits.
Government investigators received a tip that Timely HH was engaged in fraudulent conduct. A subsequent investigation confirmed the government's suspicions and revealed misconduct at Boomer HC as well. Robinett, Nwanguma, and Ogwuegbu were indicted, and the case proceeded to trial.
The jury convicted Robinett and Nwanguma of conspiracy and substantive health care fraud. Ogwuegbu was acquitted of conspiracy but found guilty of substantive health care fraud. This appeal followed.
Each defendant raises separate arguments on appeal. We first address the issues presented by Robinett.
Robinett asserts there was insufficient evidence of conspiracy to commit health care fraud and substantive health care fraud. Our inquiry requires us to consider whether, "viewing the evidence and reasonable inferences in light most favorable to the verdict, [a] rational jury 'could have found the essential elements of [each] offense to be satisfied beyond a reasonable doubt.'"4
To convict Robinett of conspiracy, the prosecution needed to prove beyond a reasonable doubt that: "(1) two or more persons made an agreement to commit health care fraud; (2) that the defendant knew the unlawful purpose of the agreement; and (3) that the defendant joined in the agreement . . . with the intent to further the unlawful purpose."5 Robinett alleges there wasinsufficient evidence of an agreement to engage in fraud, and insufficient evidence he knew the unlawful purpose of the agreement.
In presenting its case against Robinett, the government relied heavily on the testimony of Shawn Chamberlain, a physician's assistant who owned a 49% interest in Boomer HC. Chamberlain could not own a majority interest in the company under Texas law because he was not a physician. He originally teamed with Dr. Olusola to operate Boomer HC. Olusola owned 51% of Boomer HC, and after Olusola left the company, Chamberlain recruited Robinett to become the 51% owner. Chamberlain filled out Boomer HC's Medicaid enrollment form in Robinett's name. The form included an assignment of benefits to Chamberlain. Robinett signed the form. Chamberlain paid Robinette in alternating amounts, $2,000 every other month and $1,500 in the other months. Chamberlain testified that he would meet with Robinett periodically to exchange Form 485s and telephone orders. Robinett would sign the documents and return them to Chamberlain. Chamberlain testified that Robinett knew he was signing fraudulent documents. Robinett and Chamberlain met once or twice a week in a parking lot where Chamberlain would give Robinett Form 485s to sign. Robinett never saw patients, he never saw their OASIS forms or health charts, and he never declined to sign a home health care certification. At one point, Robinett spent a month in rehabilitation for alcohol abuse. During that time, Chamberlain met Robinett outside the facility and handed him stacks of patient certifications to sign. Robinett did not have access to patients' charts during this time. Chamberlain testified that This testimony establishes each element of a conspiracy to defraud Medicare to the requisite standard.
Likewise, there was sufficient evidence to convict on Counts 4, 5, and 6, the substantive health care fraud charges concerning patients B.H., L.S., and S.S., respectively.6 Each substantive offense was the "foreseeable" outgrowth of having engaged in a conspiracy to defraud Medicare.7 Under the Pinkerton doctrine, "the jury was entitled to convict [him] on the substantive counts as well."8
We next consider if the district court erred when it refused to sever Robinett's trial from the remaining co-defendants' pursuant to Rule 14 of the Federal Rules of Criminal Procedure. Rule 14 provides that "[i]f the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires."9 However, generally, "persons indicted together should be tried together, especially in conspiracy cases."10
We review the denial of Robinett's Rule 14 motion "only for abuse of discretion."11 On appeal, Robinett argues severance was appropriate because of the significant risk of prejudicial spillover. He asserts his motion should have been granted because his temporal involvement in the conspiracy was comparatively narrower than the remaining defendants and because evidencethat others falsified records was irrelevant to the central question in his case, namely whether he knew the records were false.
First, Robinett exaggerates the spillover risk here. He may have only participated in the final few years of the conspiracy. But that fact alone is insufficient to rebut the presumption of joint trials in conspiracy cases.12 The government also convincingly argues that evidence suggesting others falsified records would have been admissible were Robinett tried separately. Even if Robinett's trial turned on whether he knew the records were false, the government would still have had to prove that the records were falsified in order to prove that Robinett knew (or was deliberately ignorant) of their falsity. Likewise, the existence of facially falsified documents was probative of Robinett's knowledge and intent to defraud. Second, the judge's instruction that each count, and the evidence pertaining to it, should be considered separately was sufficient to alleviate the risk of unfair prejudice in this case.13 The district court did not abuse its discretion by trying Robinett with his co-defendants.14
Robinett contends the district court abused its discretion in giving a deliberate ignorance instruction to the jury.15 Robinett argues there was insufficient evidence that he "was subjectively aware of a high probability of the existence of the illegal conduct" or that he "purposely contrived to avoid learning of the illegal conduct," both of which are required for the trial court toissue the instruction.16
The evidence demonstrated that Robinett was aware of fraud in the home health care industry but (1) failed to read home health certifications before signing them; (2) signed telephone orders appearing to originate with him but in fact originating with Timely HH; and (3) owned a controlling share in Boomer HC but did not have access to the entity's bank account and appeared unaware of how much Boomer HC billed Medicare. As one government witness stated, Robinett engaged in such conduct because it was "easy money." The finder of fact could rationally infer from this evidence that Robinett "was subjectively aware of a high probability of the existence of the illegal conduct" and that he "purposely contrived to avoid learning of the illegal conduct."17 Instructing the jury regarding deliberate ignorance was not error.
Robinett was ordered to pay $1,435,608.16 in restitution. He argues that the district court (1) erroneously double-counted certain Medicare...
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