United States v. Kim Ricard
922 F.3d 639
5th Cir.2019Background
- Kim Ricard was a recruiter for home-health agencies (Progressive Home Care and later Abide) who received per-patient payments and referred psychiatric outpatients from Seaside; payments had round-dollar amounts and memo lines referencing "admits/recerts."
- Investigators found overlapping Seaside–Progressive patient lists, abrupt mass discharges after payment disputes, bank records showing payments to Seaside psychiatrists, and Ricard’s failure to file tax returns and an understated income on a loan application.
- Ricard was indicted for conspiracy to pay/receive Medicare kickbacks (18 U.S.C. § 371), three counts of receiving kickbacks (42 U.S.C. § 1320a-7b), three counts of identity theft (18 U.S.C. § 1028(a)(7)), and one count of making false statements to a federal agent (18 U.S.C. § 1001).
- At trial the government introduced evidence of a subsequent, similar scheme at Abide under Rule 404(b); the jury convicted on all counts. The district court sentenced Ricard to 51 months and ordered $1.958 million restitution to Medicare based on total Medicare payments to Progressive.
- On appeal the Fifth Circuit affirmed convictions (kickbacks, identity theft, false statements) but vacated the sentence and restitution order, holding the sentencing enhancement and restitution must net out the value of legitimate services provided by Progressive.
Issues
| Issue | Ricard’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Sufficiency of evidence (kickbacks & conspiracy) | No willfulness; she did not know payments were unlawful | Circumstantial proof (payments, patient cycling, concealment) shows knowledge and intent | Affirmed: evidence sufficient to prove knowing and willful conduct |
| Identity-theft (use of HIC numbers) | Insufficient proof she possessed/transferred HIC numbers or intended federal-law violation | Circumstantial proof of access and transfer; tied to kickback scheme | Affirmed: jury could infer possession/use and connection to kickbacks |
| False-statements (§1001) | Agent’s oral testimony was uncorroborated; interview not recorded; may have been ambiguous or literally true | Agent testified Ricard twice denied being paid per referral; jury may credit testimony | Affirmed: testimony sufficed and willfulness review fails under manifest-miscarriage standard |
| Admission of Abide evidence (Rule 404(b)) | Prejudicial; compensation differed; evidence irrelevant or unduly prejudicial | Evidence probative of intent/knowledge and similar in many respects; limiting instruction given | Affirmed: district court did not abuse discretion admitting Abide evidence |
| Deliberate-ignorance jury instruction | Instruction duplicative/wrong; should not have been given | Evidence supported claim she deliberately avoided knowledge; instruction appropriate | Affirmed: instruction not plain error and supported by record |
| Sentencing enhancement (value of improper benefit under U.S.S.G. §2B4.1) | Must deduct value of legitimate services; cannot use gross Medicare receipts | Government used total Medicare payments as improper benefit; urged Landers inapplicable | Reversed/vacated: court must deduct direct costs/value of services (Landers) and resentence |
| Restitution under MVRA | Medicare’s actual loss must be offset by value of services; here offset equals full Medicare payments => no loss | Government relied on Medicare billing data and rule forbidding payment for services procured by kickbacks | Reversed/vacated restitution: record supports full offset; actual loss is zero; restitution vacated and dismissed |
Key Cases Cited
- United States v. Miles, 360 F.3d 472 (5th Cir.) (describing scope of Medicare kickback statute)
- United States v. Sanjar, 876 F.3d 725 (5th Cir.) (inferring fraudulent intent from cycling patients and substantial profits)
- United States v. Njoku, 737 F.3d 55 (5th Cir.) (upholding recruiter’s conviction for kickback conspiracy)
- United States v. Gibson, 875 F.3d 179 (5th Cir.) (conspiracy/kickback analysis and mens rea discussion)
- Bryan v. United States, 524 U.S. 184 (Sup. Ct.) (knowledge-of-law/willfulness standard)
- United States v. Landers, 68 F.3d 882 (5th Cir.) (requirement to deduct direct costs to compute net value of improper benefit)
- United States v. Sharma, 703 F.3d 318 (5th Cir.) (restitution in health-care fraud: offset for value of legitimate services)
- United States v. Mahmood, 820 F.3d 177 (5th Cir.) (MVRA: actual loss limited to insurer’s loss after offset for services)
- United States v. Wofford, 560 F.3d 341 (5th Cir.) (standards for deliberate-ignorance jury instruction)
- Bronston v. United States, 409 U.S. 352 (Sup. Ct.) (literal-truth defense in perjury/false-statement context)
- Brogan v. United States, 522 U.S. 398 (Sup. Ct.) (false-denial can be criminal without proof of material effect)