United States v. Shorter

• Decision Date: 01 November 2017
• Docket Number: No. 16-2053.,16-2053.
• Citation: 874 F.3d 969
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Wanda SHORTER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

874 F.3d 969

UNITED STATES of America, Plaintiff-Appellee,

v.Wanda SHORTER, Defendant-Appellant.

No. 16-2053.

United States Court of Appeals, Seventh Circuit.

Argued February 8, 2017

Decided November 1, 2017

Nathaniel Whalen, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Hammond, IN, for Plaintiff-Appellee

Michael Bernard Nash, Attorney, Chicago, IL, for Defendant-Appellant.

Before Wood, Chief Judge, Flaum, Circuit Judge, and Conley, District Judge.^*

Conley, District Judge.

In 2014, following investigations by the Indiana Attorney General and FBI, a grand jury issued a four-count indictment for Medicaid fraud against defendants Wanda Shorter and her company, Empowerment Non-Emergency Medical Transport, Inc. ("Empowerment"). Specifically, Shorter and Empowerment were charged with one count of health care fraud in violation of 18 U.S.C. § 1347, and three counts of misusing a means of identification in violation of 18 U.S.C. § 1028A. After a petit jury found her guilty on all four counts, Shorter filed this direct appeal, challenging the indictment, the admission of certain evidence at trial and the sufficiency of the evidence as a whole. For the reasons that follow, we affirm.

I. Procedural History

A. Background

In early 2011, Shorter, already a licensed nurse, formed Empowerment to provide transportation services to Medicaid clients. She was its sole shareholder. Following a single training session on Indiana Medicaid's billing protocols in April 2011, Shorter began submitting invoices for Empowerment's services.

Indiana Medicaid provides reimbursements for health related transportation services to eligible patients. The provider of those services agrees to follow Medicaid's billing policies and to seek reimbursement for only medically necessary and truly rendered services. To ensure compliance, transportation providers must maintain trip tickets that include the recipient's name and identification number, date of transport, type of services rendered, whether it was one-way or round trip, and the mileage driven.

Each type of service is assigned a Medicaid code used for reimbursement.¹ The service provider submits the applicable codes to Medicaid, which reimburses according to set rates specific to the type of service provided. For instance, Medicaid reimburses twice as much if the patient is wheelchair-bound, and it provides additional reimbursement when an attendant rides along or when rides are more than 20 but fewer than 100 miles round-trip. Along with a few other individuals working under Shorter's direction, she continued to bill and receive Medicaid reimbursements using these codes until early 2014.

B. Indictment

On March 12, 2014, the grand jury named Shorter and Empowerment as defendants in a four-count indictment. Count 1 alleges that between 2011 and 2014, Shorter and Empowerment knowingly engaged in a scheme to defraud Indiana Medicaid in violation of § 1347 by requesting payment for services and transportation never actually provided, or if provided, for higher payments than justified by actual services and transportation provided. Counts 2 through 4 of the indictment charged the defendants with violating § 1028A by knowingly using "without lawful authority a means of identification of another person during and in relation to health care fraud ... and wire fraud." In Count 2, defendants were charged with fraudulently using the identification of "C.C. (different person from Counts 3-4)" in August 2012, while Counts 3 and 4 charged them with fraudulently using the identification of "C.C." in June and August 2013, respectively. At no time before trial, did Shorter challenge the sufficiency of the indictment.

C. Evidence at Jury Trial

To prove the allegations in Count 1, the government submitted evidence of: (1) Shorter's personal involvement in Empowerment's billing practices; (2) the results of a September 2013 Indiana Attorney General Investigation into Empowerment's billing practices; (3) an October 2013 FBI search of Empowerment's records; and (4) the experiences of Empowerment employees and of clients who used its services. As for Shorter's personal involvement, an FBI agent testified that Shorter confirmed during an interview her ownership of Empowerment, as well as her training and comfort with Medicaid billing. Shorter also told the agent that her aunt, Annette Gates, did some of Empowerment's Medicaid reimbursement requests between April 2012 and October 2013. Moreover, there was substantial evidence that Shorter personally trained Aunt Annette and a cousin, Lakesha Gates, on how to prepare Medicaid bills.

Specifically, both Annette and Lakesha testified that: (1) they submitted bills for Medicaid reimbursement in accordance with Shorter's instructions; (2) they had no knowledge about the Indiana Medicaid billing process before beginning work for Empowerment; and (3) they received no formal training beyond Shorter's instructions. They both further testified that Shorter taught them to use the same four codes for every trip: transport of a non-ambulatory patient, when another client is already in the vehicle, with an attendant and more than 20 miles round-trip.

Multiple agents involved in the Indiana Attorney General's September 2013 investigation also testified to arranging for transportation services with Empowerment using fake names but real Medicaid identification numbers. Each agent arranged for and took one-way trips without use of a wheelchair or presence of an attendant. Nevertheless, Empowerment billed each of these transports as round-trip for a wheelchair-bound client with an attendant. Similarly, there was testimony that trips of 3.4 miles and 4.2 miles were billed by Empowerment for 77 miles and 40 miles, respectively. An agent further testified that despite cancelling a trip, Empowerment later billed for the 40-mile transport of a wheelchair-bound client with an attendant. Finally, the agents testified that Empowerment submitted bills for their transport in June, July, and August 2013, well before they began requesting transportation.

As further proof of Count 1, twelve former clients and three former drivers testified about their actual experiences with Empowerment. This testimony was also inconsistent with Empowerment's actual billings for those same transports as reflected in government summary exhibits. Among other things, these exhibits showed that Empowerment coded transports to claim a wheelchair-bound patient, round-trips, and attendant trips, while only one client, Chitika Cox, testified that she used a wheelchair, and then only for one week at the end of 2013. Clients further testified that their trips with Empowerment were often one-way, not round-trips as coded, and only two of the twelve clients testified to using an attendant.² This client testimonywas confirmed by former Empowerment drivers. For example, one former driver testified that in two months driving for Empowerment, she had three to five wheelchair patients and one patient who needed an attendant. A second driver testified that between five and ten percent of her riders needed an attendant, while a third driver testified that attendants were not frequently present during trips. Yet for each trip, defendants submitted reimbursement requests seeking compensation for these additional services.

To prove Counts 2-4, the government submitted additional testimony and documentary evidence with respect to the "C.C." references in the indictment, including that "C.C." stood for Cassamdra Cook in Count 2, and for Chitika Cox in Counts 3 and 4. Without objection, the government also submitted Exhibits 18 and 20, which included Empowerment's trip tickets from Cook and Cox trips, respectively, as well as Exhibits 35 and 40, which were summary charts, respectively entitled "Empowerments Billings for Chitika Cox" and "Empowerment's Billings for Casamdra[sic] Cook."

At trial, Chitika Cox acknowledged using Empowerment to transport her to dialysis appointments three times a week, but testified that except for one week at the end of 2013, she never used a wheelchair, and she never traveled with an attendant. For five of her scheduled trips during the period that Empowerment billed Indiana Medicaid for this transport, Cox cancelled altogether, and Empowerment did not drive her to dialysis. Specifically, Empowerment's May 6, 17, 22, and June 10 and 19, 2013, trip tickets showed that Cox cancelled, and her medical records confirm that she did not appear for her medical appointment on those dates. However, the government submitted evidence that Empowerment billed each of those dates as round-trip, wheelchair trips with an attendant. Similarly, the trip tickets from May 1, 10, 29 and June 5, 2013, show that Cox either did not appear or did not list any mileage, but Empowerment billed those trips as round-trip, wheelchair transports as well.

In addition, Cook testified that she used Empowerment on a regular basis for transport to a standing appointment on Tuesdays at 5 p.m., but that she did not use a wheelchair. Because her mother would always pick her up, Cook also testified that these Tuesday trips were always one-way. Nevertheless, Empowerment billed two of these appointments as wheelchair trips on the wrong dates, with Cook as both a primary and secondary passenger.

For her part, defendant Shorter did not attempt to defend Empowerment's billing practices. Instead, she opted to take the stand in an attempt to divorce herself from her company's billing failures by emphasizing that she created Empowerment to offer services to the very type of people that she originally became a nurse to serve, while admitting that she did not keep good records, which lead to the billing errors here. In particular, Shorter denied ever "willfully and intentionally and fraudulently, knowingly and purposely" billing for things to which she was not entitled.

D. Charge to Jury

At the close of the government's case, Shorter moved for acquittal under Federal Rule of...