United States v. Sanjar

• Decision Date: 30 November 2017
• Docket Number: No. 15-20025,15-20025
• Citation: 876 F.3d 725
• Parties: UNITED STATES of America, Plaintiff–Appellee Cross–Appellant v. Mansour SANJAR; Cyrus Sajadi; Chandra Nunn, Adam Main; Shokoufeh Hakimi, Defendants–Appellants Cross–Appellees Shawn Manney, Defendant–Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

876 F.3d 725

UNITED STATES of America, Plaintiff–Appellee Cross–Appellant

v.Mansour SANJAR; Cyrus Sajadi; Chandra Nunn, Adam Main; Shokoufeh Hakimi, Defendants–Appellants Cross–Appellees

Shawn Manney, Defendant–Appellant

No. 15-20025

United States Court of Appeals, Fifth Circuit.

Filed November 30, 2017

David Brian Goodhand, U.S. Department of Justice, Criminal Division, Ellen R. Meltzer, Esq., Special Counsel, U.S. Department of Justice, Washington, DC, for Plaintiff–Appellee Cross–Appellant.

Michael Martin Essmyer, Sr., Esq., Essmyer & Daniel, P.C., Houston, TX, for Defendant–Appellant Cross–Appellee Mansour Sanjar.

Stanley G. Schneider, Schneider & McKinney, P.C., Houston, TX, for Defendant–Appellant Cross–Appellee Cyrus Sajadi

Yolanda Evette Jarmon, Esq., Law Office of Yolanda Jarmon, Houston, TX, for Defendant–Appellant Cross–Appellee Chandra Nunn.

Margaret Loraine Schmucker, Cedar Park, TX, for Defendant–Appellant Cross–Appellee Adam Main.

James Gregory Rytting, Philip Harlan Hilder, Quentin Tate Williams, Hilder & Associates, P.C., Houston, TX, for Defendant–Appellant Cross–Appellee Shokoufeh Hakimi.

Cynthia Jean–Marie Cline, Esq., Houston, TX, for Defendant–Appellant Shawn Manney.

Before JONES, BARKSDALE, and COSTA, Circuit Judges.

GREGG COSTA, Circuit Judge:

Defendant Main's petition for panel rehearing is GRANTED IN PART and DENIED IN PART. Main's petition for rehearing en banc is DENIED.

IT IS ORDERED that our prior panel decision, United States v. Sanjar , 853 F.3d 190 (5th Cir. 2017), is WITHDRAWN as to Adam Main, and the following is SUBSTITUTED in its place. The only changes to the prior opinion are in sections V(B), VII(A), and the conclusion.

The reason Willie Sutton once gave for robbing banks is true of Medicare today: that's where the money is. So it is not surprising that we consider another case alleging a scheme to defraud the multibillion dollar government program. A jury convicted the six defendants of that fraud as well as paying and receiving kickbacks for referrals. Their appeal alleges defects throughout the investigation and prosecution of the case, beginning with the search of the medical office, running through the trial, and ending with the financial obligations imposed as part of their sentence. The government also appeals, objecting to the district court's decision to offset the defendants' restitution liability with any amounts recovered through forfeiture.

I.

Drs. Mansour Sanjar and Cyrus Sajadi enrolled Spectrum Psychiatric Services P.A., their recently formed community mental-health center, as a Medicare provider in 2006. For the following six years, Spectrum held itself out as providing partial hospitalization program (PHP) care. During that time, Spectrum billed Medicare over $90 million for PHP services.

PHPs offer intensive treatment to mentally-ill patients, serving as an alternative to traditional hospitalization. To qualify, a patient must be suffering a severe onset of his or her illness; a situation the government's expert describes as a "crisis." Qualifying patients are required to undergo mental-health evaluations within twenty-four hours of admission, see a doctor daily, and receive twenty hours of treatment weekly. Given the intensive nature of PHP care, Medicare reimburses it at a higher rate than alternative treatments.

That financial incentive led Sanjar and Sajadi to submit what the jury found to be fraudulent bills. The evidence, construed in favor of the government as the jury's verdict requires, showed that the bills were fraudulent in two respects. Patients, although they had a history of mental illness, were not suffering from the acute onsets PHP serves. One patient, for example, testified that at the time she was admitted to Spectrum, she was not experiencing a severe episode of her chronic depression or any other mental-health issues. Spectrum's pattern of PHP care was also at odds with the acute onset that the program covers. Such episodes should be random, but Spectrum cycled patients between PHP and the intensive outpatient program (IOP)—a less intensive treatment with lower reimbursement rates—according to set timelines: ninety days in PHP, then four to six weeks in IOP, at which time the cycle would restart.

Apart from whether PHP treatment was medically necessary for the patients, the clinic was not providing that level of care. Patient after patient billed as PHP participants testified to never interacting with doctors for more than ten minutes. Instead, they often spent their time at Spectrum watching movies, playing games, listening to music, and socializing. So recreational and diversionary were the services Spectrum provided that one patient described it as a "Mickey Mouse facility."

Such a scheme, of course, requires patients. This is where three other defendants and the kickbacks come into play. Spectrum's Office Administrator, Shokoufeh Hakimi, oversaw this effort. Hakimi first used Charles Roberts to recruit patients. Roberts, who pleaded guilty and testified at trial, paid group-home operators to send their Medicare-eligible residents to Spectrum. Among those to whom Roberts gave kickbacks were group-home owners Chandra Nunn and Shawn Manney. Roberts paid each $100 per patient every two weeks, which was half of what he earned. Apparently concerned about detection, Nunn required her payments in cash.

Before long, Nunn's greed overcame her initial timidity. She cut Roberts out of the scheme and began dealing directly with Sanjar, Sajadi, and Hakimi. Her referrals alone spawned $28.5 million in PHP claims for Spectrum. Nunn maintained her steady supply of Medicare beneficiaries by paying residents of her group home to attend Spectrum. She gave payments the way she took them: in cash. A group-home resident testified that Nunn once gave her envelopes full of money, labeled with residents' names, to hand out to other residents attending Spectrum.

The final defendant, Physician Assistant Adam Main, helped cover up the fraud. Sanjar and Sajadi had him falsify and backdate medical charts to make it appear patients were suffering severe onsets of mental illnesses. One patient's file, for example, lists that he was suffering from major depressive disorder

, undergoing daily panic attacks, and relapsing on cocaine. But at trial the patient testified that he was not experiencing any such symptoms when he met with Main, had never before been diagnosed with major depressive disorder, and could not afford cocaine.

The doctors similarly instructed Head Social Worker Terry Moore, another Spectrum employee who pleaded guilty and testified, to print and affix new dates to prior mental-health evaluations for repeat patients. Sanjar and Sajadi further signed medical charts even when they did not oversee patient evaluations.

This operation lasted half a decade. Although Medicare paid out nowhere close to the more than $90 million Spectrum sought for PHP reimbursements, it did pay just under $7 million.¹

Federal agents began to focus on Spectrum after arresting Roberts for his role as a recruiter in a separate health care fraud scheme. Roberts cooperated and the information he provided about Spectrum launched an investigation that resulted in an indictment charging:

• Sanjar, Sajadi, Hakimi, Main, and Nunn with conspiracy to commit health care fraud, in violation of 18 U.S.C. § 1349 (Count One);

• Four counts of health care fraud under 18 U.S.C. § 1347 tied to some of the conspirators (Counts Two–Five)² ;

• Sanjar, Sajadi, Hakimi, Nunn, and Manney with conspiracy to defraud the United States and pay health care kickbacks, in violation of 18 U.S.C. § 371 (Count Six); and

• Five counts of health care kickbacks under 42 U.S.C. § 1320a-7b(b)(1), (b)(2) tied to some of the conspirators (Counts Seven–Eleven)³ .

A jury found defendants guilty of all but the kickback charge in Count Nine that applied to Sanjar and Manney. Based on varying assessments of each defendant's role in the offense, the district court sentenced them to terms of imprisonment ranging from 24 to 148 months. Sanjar, Sajadi, and Main were further ordered to pay restitution and forfeit illegal proceeds.

II.

Sanjar alleges error in the way the government investigated the case, contending that the warrant authorizing the search of Spectrum does not comply with the constitutional requirement that it "particularly describ[e] the ... things to be seized." U.S. CONST. amend. IV.

We interpret that language to require enough detail in the warrant to allow a reasonable agent to know what items she is permitted to take. United States v. Aguirre , 664 F.3d 606, 614 (5th Cir. 2011). The concern is that the magistrate authorizing the warrant, and not the agents executing it, should be deciding which items may be seized. United States v. Allen , 625 F.3d 830, 834–35 (5th Cir. 2010) (citing Marron v. United States , 275 U.S. 192, 196, 48 S.Ct. 74, 72 L.Ed. 231 (1927) ). Generic language may satisfy this "particularity" requirement if describing a more specific item is not possible. Williams v. Kunze , 806 F.2d 594, 598 (5th Cir. 1986).

The warrant must further not be overbroad, meaning "there must be probable cause to seize the particular things named in the warrant." United States v. SDI Future Health, Inc. , 568 F.3d 684, 702 (9th Cir. 2009). This related but distinct concept flows from the probable cause requirement. Together, the two aspects of the Fourth Amendment require that (1) a warrant provide sufficient notice of what the agents may seize and (2) probable cause exist to justify listing those items as potential evidence subject to seizure. Kunze , 806 F.2d at 598–99 (treating these as separate questions).

Sanjar's challenge, which mostly objects to the warrant allowing seizure of all patient files, seems to be more about the latter. In terms of the notice the former requires, the warrant authorizes seizure of "documents constituting ... patient files" as well as those relating to Medicare claims, the PHP program, and...