Hosan M. Azomani v. State of Mississippi, 2016 Miss. App. LEXIS 510

Background

Dr. Hosan M. Azomani, a pediatrician, billed Mississippi Medicaid using CPT code 99215 for all patients seen on Oct. 19, 2010 (56 patients) and Jan. 3, 2011 (69 patients); Medicaid reimbursed $14,715.66 for those claims. Experts agreed none of those visits warranted 99215.
Indicted in Jan. 2014 on 13 counts of Medicaid fraud; tried in Washington County in Oct. 2014; jury convicted on two counts (the two dates) and acquitted on the rest.
Defense: Azomani testified he lacked fraudulent intent and relied on a limited 2007 internal/agency review that suggested prior coding was acceptable.
Post-conviction claims on appeal: improper venue, statute of limitations, defective jury instructions, insufficient evidence, ineffective assistance of counsel, and cumulative error.
The Court affirmed convictions and sentence (concurrent three-year terms, partial suspension, probation, restitution, and civil penalties).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Venue	State: venue was proper in Washington County where claims were submitted	Azomani: MFCA §43-13-223(1) limits actions to Hinds First Judicial District or county of defendant residence (Madison); thus Washington County improper	Waived by defendant for not pursuing pretrial motion; statute construed to apply to civil MFCA actions, not criminal prosecutions; claim fails
Statute of Limitations	State: fraud falls within exception to 2-year general limit ("obtaining money by fraud")	Azomani: general 2-year limit under §99‑1‑5 bars prosecution for 2010/2011 acts when indicted in 2014	MFCA conduct is "obtaining money or property by fraud"—no two-year bar applies; claim fails
Jury Instructions (S-11, S-12)	State: instructions adequately tracked offense and law	Azomani: instructions used disjunctive "or" vs. indictment's conjunctive "and," lowering burden to prove fraudulent intent	Procedurally barred (objection at trial raised only venue omission). On merits, settled precedent allows conjunctive pleading proven by any disjunctive alternative; no reversible error
Sufficiency of Evidence	State: experts and records show claims were not 99215 services; circumstantial evidence supports intent	Azomani: lacked intent; relied on 2007 limited audit; no evidence he represented specific hours or willful fraud	Viewing evidence in prosecution's favor, unanimous expert opinion that services did not meet 99215 and high reimbursement motive permitted inference of intent; convictions affirmed
Ineffective Assistance of Counsel	Azomani: counsel erred by not preserving instruction variance and other matters	State: record does not show deficient strategy; multiple plausible tactical reasons for counsel's choices	Court declines to resolve on direct appeal (record inadequate); advised remedy is post-conviction relief if pursued
Cumulative Error	Azomani: combined errors deprived him of fair trial	State: no individual reversible errors, so no cumulative error	No cumulative error because no individual errors found

Key Cases Cited

United States v. Carreon-Palacio, 267 F.3d 381 (5th Cir.) (failure to timely object to venue waives challenge) (federal venue-waiver analysis cited)
United States v. Delgado-Nunez, 295 F.3d 494 (5th Cir.) (allowing late venue challenges creates perverse incentives) (federal reasoning on waivability)
Coleman v. State, 947 So.2d 878 (Miss. 2006) (statutory construction reviewed de novo)
Booker v. State, 64 So.3d 965 (Miss. 2011) (a conjunctive indictment may be proved by any one disjunctive statutory alternative)
Henley v. State, 136 So.3d 413 (Miss. 2014) (insufficient evidence of intent can require acquittal) (defense relied on this precedent)
Graham v. State, 185 So.3d 992 (Miss. 2016) (standard for reviewing sufficiency of evidence)
Rodgers v. State, 166 So.3d 637 (Miss. Ct. App.) (plain-error standard: error, effect on substantive rights, manifest miscarriage of justice)