United States v. Joe Murthil
679 F. App'x 343
| 5th Cir. | 2017Background
- Defendants Joe Ann Murthil (Memorial office manager), Roy Berkowitz and Barbara Smith (doctors at Medical Specialists) were convicted of conspiracy to commit health-care fraud (18 U.S.C. § 1349), substantive health-care fraud (18 U.S.C. § 1347), and related charges for participating in a scheme run by Mark Morad to bill Medicare for unnecessary home-health services.
- Morad recruited patients via paid recruiters, doctors certified patients as "homebound" (often with cursory exams and prefilled forms), nurses completed assessments inflating patients’ needs, and home-health agencies billed Medicare for unneeded services.
- Trial testimony placed Murthil as Memorial’s experienced office manager who handled billing, payments to recruiters, and patient assignments; Morad testified Murthil knew patients came from recruiters and that many were not homebound.
- Berkowitz and Smith admitted spending minimal time with patients, signing prefilled certification forms, and (Berkowitz) admitting some certified patients were not homebound; doctors were paid per certification.
- The jury received the Fifth Circuit deliberate-ignorance instruction; all three defendants were convicted and sentenced (Murthil 48 months, Berkowitz 64 months, Smith 80 months); Murthil and Smith challenged aspects of sentencing; all convictions and sentences were affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence as to Murthil's knowledge and participation in conspiracy and substantive fraud | Gov't: record (Morad's testimony, Murthil's role, billing records) shows she knew scheme and knowingly billed Medicare | Murthil: was a pawn who performed duties without knowing the fraud | Held: Evidence sufficient to support convictions; jurors could infer actual knowledge from experience, role, and testimony |
| Sufficiency of evidence as to Berkowitz's knowledge and substantive fraud | Gov't: admissions and testimony show Berkowitz knew patients were not homebound and certified them for pay | Berkowitz: lacked knowledge of unlawful purpose; merely performed brief exams | Held: Evidence (admissions, brief exams, prefilled forms, payment structure) supports conviction |
| Deliberate-ignorance jury instruction for Murthil | Gov't: instruction warranted by evidence of deliberate blindness | Murthil: no evidence she deliberately avoided knowledge; instruction inappropriate | Held: Even if instruction was erroneous, any error was harmless because substantial evidence of actual knowledge existed |
| Admissibility of FBI agent's summary testimony (Smith) | Gov't: summary testimony and charts under Fed. R. Evid. 1006 were proper and assisted jury | Smith: agent impermissibly reiterated and mischaracterized prior testimony, prejudicing outcome | Held: Summary testimony was permissible in limited capacity and not materially misleading; any error was not plain or was harmless |
| Sentencing — role reduction (Murthil) | Gov't: district court properly denied minor/mitigating role reduction given Murthil's essential operational role | Murthil: entitled to a reduced role under U.S.S.G. §3B1.2 | Held: No abuse of discretion; district court found she played a significant role and considered commentary |
| Sentencing — loss amount attribution (Smith) | Gov't: total fraudulent Medicare billings are prima facie evidence of intended loss; pervasive fraud justifies large loss amount | Smith: loss calculation unsupported; trial focused on few patients, not thousands of bills | Held: District court's finding of pervasive fraud supported applying billed amount as loss; burden shifted to Smith to show legitimate charges and she did not |
Key Cases Cited
- United States v. Willett, 751 F.3d 335 (5th Cir. 2014) (elements of health-care conspiracy and knowledge explained)
- United States v. Miller, 588 F.3d 897 (5th Cir. 2009) (standard for reviewing deliberate-ignorance instruction)
- United States v. Fullwood, 342 F.3d 409 (5th Cir. 2003) (use and limits of summary witnesses in complex cases)
- United States v. Delgado, 668 F.3d 219 (5th Cir. 2012) (upholding deliberate-ignorance instructions when supported by facts)
- United States v. Valdez, 726 F.3d 684 (5th Cir. 2013) (amount fraudulently billed is prima facie evidence of intended loss in health-care fraud cases)