34 F.4th 1176
11th Cir.2022Background
- Moss, a physician and medical director at four nursing homes, recruited a physician’s assistant (Shawn Tywon) and directed billing practices that overstated physician involvement and service complexity.
- Between 2012–2015 Moss submitted 31,714 high-level nursing-facility claims (many coded 99306/99309/99310), billing $6.7 million and receiving roughly $2.5 million from Medicare/Medicaid.
- Evidence showed impossible workloads (claims requiring more than 24 hours/day) and trips to Las Vegas during dates he billed as seeing many patients in Georgia. Tywon testified most visits were cursory (3–5 minutes) and often medically unnecessary.
- Indicted for conspiracy and six counts of health-care fraud, Moss was convicted after a seven-day jury trial; Tywon pleaded guilty and cooperated.
- District court adopted a loss amount based on intended loss of the billed amount ($6.7M) reduced 10% to account for legitimately provided services, sentenced Moss to 97 months, ordered $2,256,861.32 restitution (after 10% reduction), and $2,507,623.69 forfeiture (no reduction).
Issues
| Issue | Moss’s Argument (Plaintiff) | Government’s Argument (Defendant) | Held |
|---|---|---|---|
| Whether the court erred in quashing subpoena of Tywon’s attorney (attorney‑client privilege / right to present defense) | Hannan’s testimony would impeach Tywon and was necessary to impeach key witness and protect Moss’s constitutional rights | Hannan’s communications were privileged; in any event Hannan’s testimony would have corroborated, not impeached, Tywon; any error harmless | Court upheld quash or found any error harmless beyond a reasonable doubt because Hannan would have corroborated Tywon’s account |
| Limitation on number of character witnesses | Need many patient witnesses to rebut government’s portrayal; quantity would strengthen credibility | District court properly limited cumulative character testimony; ample character testimony was admitted | Court affirmed the limitation as within district court’s broad discretion to limit cumulative evidence |
| Limiting defense closing argument about profit | Argued government failed to prove Moss actually netted a profit; jury should acquit if no profit shown | Profit motive is relevant but actual net profit is not an element; arguing lack of profit as a defense would mislead jury | Court affirmed exclusion: absence of proven profit is not a defense to fraud; argument would misstate the law |
| Whether intended loss for sentencing should be reduced to amounts actually paid (approx. $2.5M) | Moss argued his knowledge of Medicare schedules shows he intended only the amounts Medicare would pay (so intended loss ≈ amounts paid) | Government relied on U.S.S.G. presumption that billed amount is prima facie intended loss; intended loss includes unlikely or impossible harm he purposely sought | Court affirmed use of billed amount (~$6.7M) as intended loss; Moss’s knowledge did not clearly rebut that presumption |
| Whether restitution ($2,256,861.32) overstated because district court should credit more legitimate services | Moss proposed a larger reduction (to about $1.43M) based on his own methodology and consultant | Government pointed to Tywon’s testimony and visit notes showing most visits were unnecessary; district court may reasonably estimate legitimate value | Court affirmed restitution amount; district court did not clearly err in rejecting Moss’s methodology and relying on credible evidence (including Tywon) to allow only 10% credit |
| Whether forfeiture must be reduced to exclude proceeds attributable to legitimate services | Moss argued forfeiture should deduct value of legitimate services (like restitution reduction) | Government argued forfeiture focuses on defendant’s proceeds and uses a but‑for test; improperly billed claims yield $0 value if properly billed they wouldn’t have been paid | Court affirmed full forfeiture ($2,507,623.69): applying the but‑for standard, district court did not clearly err in finding no properly billed claims to which legitimate‑service reduction would apply |
Key Cases Cited
- United States v. Moran, 778 F.3d 942 (11th Cir. 2015) (district courts entitled to deference; reasonable estimate for loss; intended loss can include unlikely harm)
- United States v. Hoffman‑Vaile, 568 F.3d 1335 (11th Cir. 2009) (forfeiture under §982(a)(7) tied to a but‑for standard for proceeds traceable to the offense)
- United States v. Bikundi, 926 F.3d 761 (D.C. Cir. 2019) (fraud so pervasive that legitimate payments were propped up by fraud; entire proceeds forfeitable)
- United States v. Bane, 720 F.3d 818 (11th Cir. 2013) (restitution must reflect loss actually caused and be reduced by value of legitimate services; defendant bears burden to prove legitimacy)
- United States v. Baldwin, 774 F.3d 711 (11th Cir. 2014) (district court may accept reasonable estimate of loss where precise calculation is infeasible)
- United States v. Bazantes, 978 F.3d 1227 (11th Cir. 2020) (loss determinations reviewed for clear error)
- United States v. Goldstein, 989 F.3d 1178 (11th Cir. 2021) (forfeiture findings of fact reviewed for clear error; legal conclusions de novo)
- United States v. Pon, 963 F.3d 1207 (11th Cir. 2020) (discusses preservation of constitutional objections and harmless‑error analysis)
- United States v. Benefield, 889 F.2d 1061 (11th Cir. 1989) (trial courts have broad discretion to limit number of character witnesses)
- Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020) (describes but‑for causation formulation used in factual causation analysis)