United States v. Veasey

• Decision Date: 28 January 2021
• Docket Number: No. 17-10665,17-10665
• Parties: UNITED STATES OF AMERICA, Plaintiff—Appellee, v. WILBERT JAMES VEASEY, JR.; CHARITY ELEDA, R.N.; JACQUES ROY, M.D.; CYNTHIA STIGER, Defendants—Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

UNITED STATES OF AMERICA, Plaintiff—Appellee, v. WILBERT JAMES VEASEY, JR.; CHARITY ELEDA, R.N.;JACQUES ROY, M.D.; CYNTHIA STIGER, Defendants—Appellants.

No. 17-10665

United States Court of Appeals for the Fifth Circuit

January 28, 2021

Appeal from the United States District Court for the Northern District of Texas

USDC No. 3:12-CR-54

Before GRAVES, COSTA, and ENGELHARDT, Circuit Judges.

PER CURIAM:^*

This is a direct criminal appeal by four defendants convicted of multiple counts in a health care fraud case. On appeal, the defendants challenge their convictions and sentences. Finding no error, we AFFIRMthe judgments in the district court as to all four appellants for the reasons stated herein.

FACTS AND PROCEDURAL HISTORY

Wilbert James Veasey, Jr. and Cynthia Stiger were the owners and registered directors of Apple of Your Eye Health Care Services, a home health care provider in Dallas. Charity Eleda operated Charry HHA. Dr. Jacques Roy operated a medical company called Medistat and was the certifying physician for various home health providers. All of these entities provided services to Medicare beneficiaries.

Medicare is a federal health care program for people who are over the age of 65 or disabled. Medicare has multiple parts and is administered by the United States Department of Health and Human Services (HHS) through the Center for Medicare & Medicaid Services.¹ Part A covers hospital insurance and includes home health services. Part B covers medical insurance. A health care provider must apply to Medicare and be assigned a National Provider Identifier (NPI) to be able to provide services to a Medicare beneficiary and bill Medicare. This requires the provider to follow certain laws, rules and regulations.

There are additional requirements for home health services under Medicare. To qualify for home health, a beneficiary must: essentially be confined to the home; under the care of a physician who certifies that the beneficiary is homebound; be receiving services under a plan of care established by and reviewed periodically by the physician; and need skilled nursing services, physical therapy or speech therapy on an intermittent basis,i.e., fewer than eight hours a day and seven days a week.² The standard form for a certification of need and plan of care (POC) is numbered 485. The physician who prescribes home health must sign the 485 POC before Medicare will pay the home health agency (HHA) in full. The POC must include various information including diagnoses, types of services, frequency of visits, prognosis, rehabilitation potential, functional limitations, activities permitted, medications, treatments, nutritional requirements, safety measures, discharge plans and goals. Physicians cannot prescribe services to an entity in which they have a financial interest.

Between 2004 and 2011, the number of HHAs in Dallas tripled. Federal authorities³ began investigating Roy based on the large number of patients he certified for home health. At the time, Roy was first in the nation in certifying patients and more than double the next highest certifying physician. Roy was also receiving a large amount of payments from HHAs. The HHAs included those operated by Veasey, Stiger and Eleda.

Chelsie Drews, a special agent with the FBI and member of the strike force, testified that, pursuant to the investigation, officials conducted surveillance and interviewed beneficiaries. Through those interviews, authorities began to discover evidence of beneficiaries who did not appear to meet the requisite criteria for home health services. Investigators executed search warrants at various locations associated with the appellants and the relevant HHAs. As a result, authorities indicted several individuals,including Roy, Stiger, Veasey, and Eleda, who are the individuals relevant to this appeal, for conspiracy to commit health care fraud and substantive counts of health care fraud.

In the multicount superseding indictment: Count 1 charged Roy, Veasey, Stiger and Eleda with conspiracy to commit health care fraud in violation of 18 U.S.C. § 1349; Counts 2, 3 and 4 charged Roy and Veasey with health care fraud in violation of 18 U.S.C. § 1347; Counts 5, 6, 7 charged Roy with health care fraud; Counts 8, 9, 10, 11 charged Roy and Eleda with health care fraud; Counts 12-14 charged Eleda with false statements to Medicare in violation of 42 U.S.C. § 1320a-7b(a)(2); Counts 15 and 16 charged Roy with false statements relating to health care matters in violation of 18 U.S.C. § 1035; and Count 17 charged Roy with obstruction of justice in violation of 18 U.S.C. § 1505. Before trial, the court dismissed Count 5 on the government's motion.

Roy, Veasey, Stiger and Eleda were tried together. Roy was acquitted on Count 6, but the defendants were convicted on all remaining counts. Roy was sentenced to 120 months as to each of Counts 1-3, consecutively to each other; 120 months as to each of Counts 4 and 7-11, to run concurrently with each other and concurrently with Counts 1-3; and sixty months as to each of Counts 15-17, to run concurrently with each other, concurrently with Counts 4 and 7-11, and consecutively to Counts 1-3. Roy's total aggregate sentence was 420 months, along with six years of supervised release and various forfeitures. Pursuant to the Mandatory Victims Restitution Act of 1996 (MVRA), Roy was also ordered to pay restitution in the amount of $268,147,699.15, jointly and severally with Stiger, Veasey, Eleda and three other defendants who are not parties to this appeal. The restitution would be disbursed to the Centers for Medicare and Medicaid Services.

Stiger was sentenced to 120 months as to Count 1, three years of supervised release, and ordered to pay restitution in the amount of $23,630,777.26, jointly and severally with Roy and Veasey, to be disbursed to Medicare and Medicaid.

Veasey was sentenced to 120 months as to Count 1 and 90 months as to Counts 2, 3 and 4, to run concurrently to each other and consecutively to the term in Count 1. Veasey's total aggregate sentence was 210 months, along with two years of supervised release, and he was ordered to pay $23,630,777.26 in restitution, jointly and severally with Roy, Stiger, Eleda, and three other defendants not parties to this appeal.

Eleda was sentenced to 48 months each as to Counts 1, 8-11 and 12-14, to run concurrently, three years of supervised release and ordered to pay restitution in the amount of $397,294.51, jointly and severally with Roy.

Thereafter, the appellants filed this appeal.

DISCUSSION

I. Whether the district court abused its discretion when it refused to strike a juror based on perceived bias against the defense.

Roy, Veasey, Stiger and Eleda all assert that the district court abused its discretion when it refused to remove a juror that they argue demonstrated bias toward the defense.

A district court may dismiss a juror for "good cause" after trial has begun. Fed. R. Crim. P. 23(b)(2)(B). We review a district court's decision to dismiss a juror for abuse of discretion. United States v. Pruett, 681 F.3d 232, 247 (5th Cir. 2012) (per curiam). "A district court abuses its discretion only when its ruling is based on an erroneous view of the law or on a clearly erroneous assessment of the evidence." United States v. Ebron, 683 F.3d 105, 126 (5th Cir. 2012). "A factual finding is not clearly erroneous as long as itis plausible in light of the record as a whole." Id. at 126-27. "A district court's decision to remove a juror is discretionary whenever the judge becomes convinced that the juror's abilities to perform his duties become impaired." United States v. Virgen-Moreno, 265 F.3d 276, 288 (5th Cir. 2001) (internal marks and citations omitted).

This court has also said that an inability to follow instructions or a lack of candor may be a valid basis for dismissing a juror. Ebron, 683 F.3d at 127 (internal citations omitted). Stiger's counsel concedes that her trial counsel did not join the request to remove the juror. Thus, Stiger would have to meet the more stringent plain error standard and show an error, that is clear or obvious and which affects her substantial rights. Fed. R. Civ. P. 52(b); see also Molina-Martinez v. United States, 136 S.Ct. 1338, 1343 (2016); and United States v. Olano, 507 U.S. 725, 732-34 (1993)

During the trial when Roy's defense counsel was cross-examining Drews, a juror interrupted the proceedings to give the judge a note. The note stated: "We need to take a break for the judge. The judge is not alert. Lawyer is badgering witness. Thank you." The district court called a bench conference to discuss the note and ways of handling the situation. Defense counsel wanted to dismiss the juror as being prejudicial. The government wanted to ignore the note and move on. The court decided to conduct an in camera examination of the juror on the record. During this examination, the court said:

Let me explain a couple things. The lawyer is asking questions, and they are tough questions. That does not mean she is being badgered. Nobody has made any objection.

Now, as for you saying I am not alert, I am alert. You may have heard me say yesterday I had a doctor's appointment. The reason I had a doctor's appointment is I had surgery on my right eye. You may notice it is much redder than the other, and I was a little concerned because I thought it should be healingfaster, but the doctor said it is doing fine. The vision is okay, and what it does at times is it becomes irritated, and I will close it at times because of that. It is healing.

The juror said, "okay." The court then continued:

But just so you know, the witness—when tough questions are being asked or—or the lawyers are asking questions, all the lawyers are doing is trying to test the witness' recall, test how she investigated the case and so forth, okay.

Now, if it gets out of line, if he is mistreating her, the lawyers are going to object or else I am going to step in. It has not gotten to that

...