614 F. App'x 141
5th Cir.2015Background
- Louis and Verna Age ran South Louisiana Home Health Care (SLHH); from 2005–2011 they, with coconspirator Ayana Alverez and patient recruiter Milton Womack, paid kickbacks, obtained fraudulent physician referrals, and submitted falsified Medicare paperwork. Medicare reimbursed SLHH about $17.1 million.
- Louis taught management of referrals/recruiters; Verna (RN) supervised Medicare paperwork. Corporate funds were used for substantial personal expenses; Louis and Verna received large direct payments and credit-card expenditures funded by the scheme.
- Grand jury indicted the Ages and others in 2011; superseding indictment in 2012 added conspiracy to commit health care fraud. Trials produced mixed initial results (mistrial on some counts), then convictions: both convicted of health-care fraud conspiracy; Louis also convicted of illegal kickback conspiracy. Sentences: Louis 180 months total; Verna concurrent 60-month terms. Court ordered $17.1 million restitution and over $9.2 million forfeiture.
- On appeal, the Ages challenged sufficiency of evidence, double jeopardy (Verna), loss amount attribution, counsel disqualification (Hilliard Fazande), and admission of evidence suggesting Louis’s responsibility for Womack’s death under Rule 404(b).
- The Fifth Circuit affirmed: evidence supported convictions; retrial did not violate Double Jeopardy; loss amount attribution stood (defendant bore burden to prove legitimate services); counsel disqualification was proper; limited references to Womack were not prejudicial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence (Verna) | Government: record and witness testimony support convictions | Verna: evidence insufficient to prove guilt beyond reasonable doubt | Affirmed — substantial evidence supports convictions |
| Double jeopardy (Verna) | Verna: acquittal on Count 3 in first trial precludes retrial conviction on Count 1 | Government: Count 3 was a separate substantive charge; conspiracy conviction requires different proof | Affirmed — retrial not barred; issues were not actually decided previously |
| Loss amount for sentencing | Government: attribute $17.1M in Medicare payments as loss | Verna: court should reduce loss to reflect legitimate services | Affirmed — defendant failed to prove legitimate services; burden rests on defendant when fraud pervasive |
| Counsel disqualification (Fazande) | Louis: district court erred in disqualifying Fazande; Verna: disqualification violated her Sixth Amendment rights | Government: Fazande had actual/potential conflicts (SLHH counsel; grand jury matters); court may refuse waiver | Affirmed — disqualification proper; Verna lacks standing to challenge |
| Admission of evidence re: Womack’s death (Rule 404(b)) | Louis: prosecutor’s questions insinuating Louis responsible for Womack were other-crimes evidence and unduly prejudicial | Government: limited testimony relevant to consciousness of guilt and impeachment; cross-examination proper | Affirmed — limited references permissible and not prejudicial given overwhelming evidence and jury instructions |
Key Cases Cited
- United States v. Gulley, 526 F.3d 809 (5th Cir. 2008) (standard for de novo sufficiency review with favorable inferences to government)
- State Marine Corp. v. Ocean Line of Azores, Inc., 41 F.3d 664 (5th Cir. 1994) (district-court factual findings reviewed for clear error)
- United States v. Alarcon, 261 F.3d 416 (5th Cir. 2001) (sufficiency review and scope of record when motion not renewed)
- United States v. Whitfield, 590 F.3d 325 (5th Cir. 2009) (burden to show an issue was actually decided to invoke collateral estoppel in double-jeopardy context)
- Dowling v. United States, 493 U.S. 342 (1990) (principles on collateral estoppel and relitigation)
- United States v. El-Mezain, 664 F.3d 467 (5th Cir. 2011) (retrial not barred when prior jury could have based verdict on issues distinct from those in retrial)
- United States v. Hebron, 684 F.3d 554 (5th Cir. 2012) (when fraud pervasive, defendant must show particular legitimate amounts to reduce loss)
- United States v. Sanchez Guerrero, 546 F.3d 328 (5th Cir. 2008) (district court discretion to refuse waiver of conflict of interest)
- Wheat v. United States, 486 U.S. 153 (1988) (trial court has substantial latitude to reject counsel-conflict waivers)
- United States v. Limones, 8 F.3d 1004 (5th Cir. 1993) (no reversible error where other-crimes suggestion was not focal and overwhelming evidence supported conviction)
- United States v. Rocha, 916 F.2d 219 (5th Cir. 1990) (evidence showing attempts to influence witness may show consciousness of guilt)
- United States v. Insaulgarat, 378 F.3d 456 (5th Cir. 2004) (jurors presumed to follow instruction that attorney questions are not evidence)
- United States v. Webster, 162 F.3d 308 (5th Cir. 1998) (courts presume jury follows limiting instructions)
- Allen v. Chandler, 555 F.3d 596 (7th Cir. 2009) (mistrial does not itself establish prejudice for later proceedings)
- Texas v. Cobb, 532 U.S. 162 (2001) (Sixth Amendment right to counsel is personal and not freely assertable by codefendants)