561 F. App'x 312
5th Cir.2014Background
- Turner worked as a recruiter/referrer for DME suppliers (Family Healthcare Services DME / Family DME, Inc.) that billed Medicare for large "arthritis kits" largely unnecessary for individual patients.
- The Family Companies billed over $1.1 million and received over $560,000 for kits; Medicare revoked provider numbers after inspections; an FBI investigation followed.
- Turner was tried twice: first trial ended in mistrial (co-defendant Ubani testified then); second trial resulted in conviction on four counts (conspiracy to commit health-care fraud, conspiracy to receive kickbacks, and two substantive kickback counts). She received 24 months imprisonment, three years supervised release, and restitution.
- At the second trial Turner did not put on a defense and unsuccessfully sought admission of Ubani’s prior testimony under the residual hearsay exception (Rule 807) rather than the former‑testimony exception (Rule 804(b)(1)); the court excluded it because she did not show Ubani was unavailable.
- The government introduced evidence of Turner’s role recruiting beneficiaries, coaching telemarketers to say kits were free, use of pre-filled prescription forms and house doctors, internal commission schedules, emails, and checks evidencing referral payments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held | |
|---|---|---|---|---|
| Sufficiency of evidence for conspiracy to commit health-care fraud (18 U.S.C. § 1349/1347) | Turner: evidence insufficient to show agreement to defraud; doctors signed claims so orders were valid | Gov't: circumstantial evidence (recruiting, coaching, pre-filled prescriptions, house doctors, denial notes) shows tacit agreement and willful participation | Affirmed: evidence sufficient under de novo review | |
| Sufficiency of evidence for conspiracy to receive kickbacks (18 U.S.C. § 371 / Anti‑Kickback Statute) | Turner: lacked intent/knowledge to violate Anti‑Kickback Statute | Gov't: documentary commission schedule, emails, checks, and lies to FBI show agreement, knowledge, and overt acts | Affirmed: sufficient evidence to convict on Count II | |
| Sufficiency of evidence for substantive kickback counts (42 U.S.C. § 1320a‑7b(b)(1)) | Turner: payments could be legitimate employee compensation or otherwise lawful | Gov't: checks and internal commission documents show remuneration for referrals | Affirmed: evidence supports convictions on Counts III and IV | |
| Admission of Ubani’s prior testimony under residual hearsay exception (Fed. R. Evid. 807) | Turner: prior sworn testimony from mistrial should be admitted under Rule 807 | Turner: argued availability not required for Rule 807; sought to avoid Rule 804(b)(1) unavailability requirement | Affirmed: district court did not abuse discretion; Turner failed to show unavailability or reasonable efforts to secure live testimony, so residual exception inapplicable; former‑testimony exception would require unavailability | |
| Safe harbor jury instruction (Anti‑Kickback safe harbor for bona fide employees) | Turner: court should have instructed jury on employee safe harbor | Turner: asserts evidence shows she was an employee | Gov't: safe harbor is affirmative defense and Turner presented no evidence to support it | Affirmed: no error in refusing instruction because Turner presented no evidence of employee status |
Key Cases Cited
- United States v. Njoku, 737 F.3d 55 (5th Cir. 2013) (standard for reviewing sufficiency; circumstantial evidence can prove conspiracy)
- United States v. Grant, 683 F.3d 639 (5th Cir. 2012) (agreement and willful participation may be inferred from concerted action)
- United States v. McDowell, 498 F.3d 308 (5th Cir. 2007) (preservation requirement for insufficiency claims; failure limits review)
- United States v. Aldawsari, 740 F.3d 1015 (5th Cir. 2014) (standard for reviewing jury instructions and safe harbor issues)
- United States v. Phillips, 219 F.3d 404 (5th Cir. 2000) (residual hearsay exception should be used rarely; district court has considerable discretion)
- United States v. Mathis, 559 F.2d 294 (5th Cir. 1977) (availability and reasonable efforts considered in applying residual/former‑testimony exceptions)
- United States v. Achobe, 560 F.3d 259 (5th Cir. 2009) (bar on challenging sufficiency from first trial after mistrial when second trial leads to conviction)