900 F.3d 405
7th Cir.2018Background
- Jenette George ran a referral business (Ttenej) and entered a "Work for Hire" agreement with Rosner Home Health Care to refer patients in exchange for payments.
- Evidence (recordings, bank records, referral logs, and George’s admissions) showed she was paid $500 per patient admitted to Rosner, sometimes in cash, and admitted knowing such per‑patient payments were illegal once cash payments began.
- George was convicted after a bench trial of conspiracy (18 U.S.C. § 371 and 42 U.S.C. § 1320a‑7b(b)(2)(A)) and two substantive Anti‑Kickback Statute counts (42 U.S.C. § 1320a‑7b(b)(1)(A)) for April 12, 2012 and May 17, 2012; sentence: six months confinement substituted day‑for‑day at a community confinement center.
- On appeal George argued (1) insufficient evidence for conspiracy and AKS counts, (2) improper cross‑examination (including questioning about a marketing book and her legal knowledge), and (3) the district court should have given a missing‑witness instruction concerning cooperator Edgardo "Gary" Hernal.
- The district court’s factual findings credited the recordings and George’s post‑arrest admissions; the court concluded her conduct and state of mind satisfied the AKS elements and that no safe harbor applied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for conspiracy | Gov: evidence (agreement, ongoing referrals, payments, records, admissions) shows participation in conspiracy | George: she was merely a contractor/marketer; akin to buyer‑seller in drug cases, lacking stake in Medicare billing | Affirmed — circumstantial and direct evidence supported that George joined and benefited from the conspiracy |
| Sufficiency for Anti‑Kickback convictions (scope of "any person") | Gov: AKS prohibits remuneration for referrals by any person; George’s payments were intended to induce referrals | George: statute limited to "relevant decisionmakers" who can influence certification/referral decisions | Affirmed — court rejects a narrow Miles reading; intent to induce referrals controls and George’s conduct falls within AKS |
| Knowledge/willfulness & safe harbor defense | Gov: admissions, recordings, bank records, and her statements show knowledge; safe harbors not proved | George: she had good‑faith belief safe harbors applied (claimed employment or FQHC exception) | Affirmed — sufficient proof of knowing/willful conduct; George failed to prove application of either safe harbor |
| Cross‑examination & missing‑witness instruction | Gov: cross examined her about book she introduced and her state of mind; did not call Hernal but used his recordings | George: improper lay witness legal opinion questions; court should infer adverse testimony from Hernal’s absence | Cross‑examination proper (she opened book topic and can testify re: her knowledge); missing‑witness instruction not warranted and any error harmless |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (standard for reviewing sufficiency of the evidence)
- United States v. Patel, 778 F.3d 607 (7th Cir.) (viewing evidence in government’s favor on sufficiency review)
- United States v. Shoemaker, 746 F.3d 614 (5th Cir.) (intent to induce referrals, not a narrow "decisionmaker" test)
- United States v. Miles, 360 F.3d 472 (5th Cir.) (discussed on scope of "any person" under AKS)
- United States v. Polin, 194 F.3d 863 (7th Cir.) (payments to a sales rep for patient referrals as classic kickback)
- United States v. Tavarez, 626 F.3d 902 (7th Cir.) (standards for missing‑witness instruction)