93 F.4th 845
5th Cir.2024Background
- Lindell King and Ynedra Diggs were convicted for conspiracy to defraud the United States and for accepting Medicare kickbacks in connection with group homes they operated for vulnerable adults.
- From these patients, Dr. Paulo Bettega’s clinic collected $537,992.55 from Medicare by billing for mental health services that were largely unnecessary, fabricated, or not provided.
- The government used audio recordings as evidence, featuring co-conspirators and a confidential informant, over defense objections regarding admissibility and the right to confrontation.
- King was sentenced to 60 months and Diggs to 70 months, both receiving sentence enhancements based on the determined amount of improper benefit ($537,992.55).
- Both were ordered to pay restitution, jointly and severally, for the full amount fraudulently billed to Medicare.
- On appeal, King and Diggs challenged the admission of recordings, the calculation of loss/benefit for sentencing, and the restitution award, but the Fifth Circuit affirmed all rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of Recordings (Confrontation Clause) | Recordings were non-testimonial and admissible as coconspirator statements or to provide context. | Violated Confrontation Clause; included testimonial statements from non-testifying witnesses. | Not a violation; statements were non-testimonial, used for context, and part of integrated conversations. |
| Admission of Recordings (Hearsay) | Statements by party opponents and coconspirators, or for context, are not hearsay. | Recordings constituted inadmissible hearsay. | Not hearsay under Rule 801(d)(2); properly admitted. |
| Sentencing Enhancement (Loss/Benefit Calculation) | Entire amount Medicare paid should count as improper benefit due to pervasive fraud. | Some services may have been legitimate; loss amount was overstated. | Full amount stands; defendants failed to provide credible evidence of legitimate services. |
| Restitution Calculation and Scope | Restitution should equal full fraudulent Medicare loss, not just received kickbacks. | Should be limited to $70,000 received in bribes or proportionate to individual responsibility. | Full joint and several restitution for $537,992.55 is proper under MVRA for all foreseeable loss caused by the conspiracy. |
Key Cases Cited
- United States v. Noria, 945 F.3d 847 (5th Cir. 2019) (standard for Confrontation Clause appellate review)
- United States v. Sanjar, 876 F.3d 725 (5th Cir. 2017) (admissibility of coconspirator statements; loss calculation)
- United States v. Cheramie, 51 F.3d 538 (5th Cir. 1995) (recorded statements can provide context, not hearsay)
- United States v. Gutierrez-Chavez, 842 F.2d 77 (5th Cir. 1988) (statements admissible for context)
- United States v. Ricard, 922 F.3d 639 (5th Cir. 2019) (offsets to restitution for legitimate services)
- United States v. Mathew, 916 F.3d 510 (5th Cir. 2019) (restitution scope in Medicare fraud conspiracy)
- United States v. Sharma, 703 F.3d 318 (5th Cir. 2012) (restitution must offset legitimate services in healthcare fraud)