30 F.4th 1271
11th Cir.2022Background
- Dr. Douglas Moss was medical director/attending physician at four nursing homes and (2012–2015) submitted 31,714 Medicare claims (billed ~$6.7M; Medicare paid ~$2.17M) and numerous Medicaid claims for high-level nursing‑facility CPT codes while often not personally performing or documenting the required services.
- Moss recruited and supervised PA Shawn Tywon, instructed staff to bill visits in Moss’s name at physician rates, and directed use of high CPT codes despite brief/cursory visits.
- Two discrete multi‑claim sets (Feb 1–5, 2014 and June 10–18, 2014) formed the substantive counts because Moss was in Las Vegas when he billed seeing patients in Georgia.
- A jury convicted Moss of conspiracy and six counts of health‑care fraud; the district court sentenced him to 97 months, ordered restitution of $2,256,861.32 and forfeiture of $2,507,623.69.
- On appeal Moss challenged evidentiary rulings (subpoena of cooperator’s attorney, limits on character witnesses, limits on closing argument) and sentencing calculations (intended loss, restitution, forfeiture); the Eleventh Circuit affirmed in full.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exclusion/quash of subpoena for Tywon’s attorney (attorney‑client privilege/waiver) | Government: Hannan’s testimony not required and privilege not waived; his in‑chambers statements corroborated Tywon. | Moss: Hannan would have impeached Tywon and his exclusion violated Moss’s Fifth and Sixth Amendment rights. | Court: Even assuming error, exclusion was harmless beyond a reasonable doubt because Hannan would have corroborated, not impeached, Tywon. Affirmed. |
| Limitation on number of character witnesses | Government: Trial court may limit cumulative character testimony under its discretion. | Moss: More witnesses needed to rebut government’s portrayal; quantity matters. | Court: District court acted within discretion to exclude cumulative witnesses; no clear abuse. Affirmed. |
| Restriction on defense closing argument about profit | Government: Profit relevant only to motive, not an element; arguing lack of net profit misleads jury. | Moss: He can argue government failed to prove he profited. | Court: District court properly barred argument that lack of net profit requires acquittal; profit not an element and lack of profit is not a defense. Affirmed. |
| Intended loss for Guidelines (use of billed amount vs. amounts Medicare actually paid) | Government: U.S.S.G. presumption that aggregate billed to government is prima facie intended loss; Moss intended maximum receipts. | Moss: He knew Medicare would pay only scheduled amounts (~$2.5M), so intended loss should be amount he expected to receive. | Court: Even if presumption rebutted, intended loss may include unlikely/ impossible pecuniary harm; district court reasonably found intended loss ~$6.7M. No clear error. |
| Restitution amount and reduction for legitimate services | Government: Restitution equals amounts paid by Medicare/Medicaid minus modest judicial reduction; court estimated 10% legitimate services. | Moss: Court should accept his higher estimate of legitimate services (reducing restitution substantially). | Court: Moss bore burden to prove medical necessity; his methodology failed to prove necessity; court’s 10% estimate (based on Tywon’s testimony and records) not clearly erroneous. Affirmed. |
| Forfeiture: whether proceeds must be reduced by value of legitimate services | Government: Forfeiture under 18 U.S.C. §982(a)(7) covers gross proceeds traceable to offense; but‑for test applies. | Moss: Forfeiture should exclude amounts attributable to legitimate services provided. | Court: Applies but‑for standard; record contained no properly billed legitimate claims—improperly billed claims valued at $0 by Medicare—so proceeds are traceable to the fraud; no clear error. Affirmed. |
Key Cases Cited
- United States v. Pon, 963 F.3d 1207 (11th Cir. 2020) (harmless‑beyond‑reasonable‑doubt review of constitutional error in health‑care fraud context)
- United States v. Moran, 778 F.3d 942 (11th Cir. 2015) (district court loss determinations entitled to deference; reasonable estimate standard)
- United States v. Wilks, 464 F.3d 1240 (11th Cir. 2006) (binding force of Guidelines commentary interpretation)
- United States v. Hoffman‑Vaile, 568 F.3d 1335 (11th Cir. 2009) (forfeiture uses but‑for causation analysis to trace proceeds)
- United States v. Bikundi, 926 F.3d 761 (D.C. Cir. 2019) (pervasive fraud can render all program payments forfeitable)
- United States v. Bane, 720 F.3d 818 (11th Cir. 2013) (defendant bears burden to prove value of legitimate medical services for restitution)
- United States v. Baldwin, 774 F.3d 711 (11th Cir. 2014) (district court may use reasonable estimates when restitution loss calculations are inexact)
- United States v. Goldstein, 989 F.3d 1178 (11th Cir. 2021) (standard of review for forfeiture findings)