774 F.3d 256
5th Cir.2014Background
- Collins (aka “Big Brother”) and Robison led a scheme recruiting people to submit false auto-accident insurance claims and fabricate related medical treatment, using fake chiropractic clinics, assumed names, and PO boxes.
- Investigators found coordinated use of damaged cars, coached claimants, sham medical billing, and jailhouse calls; some defendants attempted to procure false affidavits and to influence witnesses pretrial.
- A grand jury indicted Collins on multiple counts (conspiracy to commit mail and health-care fraud, mail fraud, aggravated identity theft, conspiracy to tamper with witnesses); Robison was charged on a subset of counts.
- A jury convicted both defendants on all counts tried; Collins was sentenced to 180 months and restitution; Robison to 110 months and restitution; both appealed.
- On appeal, defendants raised sufficiency-of-evidence challenges, McCarran–Ferguson reverse-preemption, First Amendment and variance claims on witness tampering, and sentencing challenges (loss amount, mass-marketing/victims, sophisticated means, obstruction).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of conspiracy to commit health-care fraud (Count One) | Gov: evidence shows Collins led scheme, coached claimants, ran billing and clinics | Collins: insurers are auto-insurers not "health care benefit programs"; insufficient proof of agreement | Affirmed: auto-insurers paying medical treatment qualify as health-care benefit programs; witness testimony supported agreement |
| Mail fraud (Count Two) and concurrent-sentence doctrine | Gov: evidence shows organized filing and PO-box receipt; sentences run concurrently | Defendants: seek vacatur under concurrent-sentence doctrine because Count Two runs concurrently and special assessments prevent perfect concurrency | Concurrent-sentence doctrine inapplicable; special assessments and restitution prevent creating full concurrence; mail fraud convictions upheld |
| McCarran–Ferguson reverse-preemption | Gov: federal fraud statutes not preempted where they don't impair state insurance law | Collins: federal mail-fraud statute invalidates or impairs state insurance regulation | Rejected: no conflict; statutes operate compatibly; reverse-preemption inapplicable |
| Conspiracy to tamper with witnesses (Count Nine) and First Amendment | Gov: jail calls and witnesses show corrupt persuasion to induce false testimony | Defendants: mere offering of affidavits (and refusals) is protected advocacy; variance alleged | Affirmed: evidence and recorded calls show corrupt persuasion; conviction does not implicate protected speech |
| Sentencing: loss amount and Guidelines enhancements | Gov: PSR calculated loss from successful and averaged unsuccessful claims; enhancements for mass-marketing, sophisticated means, obstruction appropriate | Collins: disputes hearsay use, inclusion of unsuccessful claims, mass-marketing evidence, and double-counting for obstruction | Affirmed: district court may consider hearsay for sentencing; unsuccessful claims and factual findings support loss; mass-marketing and sophisticated-means enhancements proper; obstruction enhancement not impermissible double-counting |
Key Cases Cited
- United States v. Grant, 683 F.3d 639 (5th Cir.) (standard for de novo review of sufficiency preserved at trial)
- United States v. Harris, 293 F.3d 863 (5th Cir.) (deference to jury verdict on sufficiency)
- United States v. Asibor, 109 F.3d 1023 (5th Cir.) (standard for reviewing sufficiency of evidence)
- United States v. Lucien, 347 F.3d 45 (2d Cir.) (auto-insurance paying medical treatment qualifies under §1347)
- United States v. Gelin, 712 F.3d 612 (1st Cir.) (applying healthcare-fraud statute to automobile insurer payments)
- United States v. Stovall, 825 F.2d 817 (5th Cir.) (discussion of concurrent-sentence doctrine and special assessments)
- Ray v. United States, 481 U.S. 736 (U.S.) (special assessments can prevent sentences from being fully concurrent)
- Humana Inc. v. Forsyth, 525 U.S. 299 (U.S.) (McCarran–Ferguson reverse-preemption framework)
- Arthur Andersen LLP v. United States, 544 U.S. 696 (U.S.) (distinguishing protected persuasion from corrupt persuasion)
- Alleyne v. United States, 133 S. Ct. 2151 (U.S.) (Apprendi/Alleyne principle limiting facts that increase statutory minimums; inapplicable to Guidelines calculations)