United States v. Yolanda Nowlin
640 F. App'x 337
5th Cir.2016Background
- Yolanda Nowlin owned and ran Yellabone, a durable medical equipment (DME) supplier enrolled in Medicare/Medicaid; she hired Carla Parnell to manage operations.
- Indictment alleged schemes to submit false or upcoded claims, bill for items not delivered or not medically necessary, and pay ‘‘commissions’’ (kickbacks) to induce referrals.
- Jury convicted Nowlin of: conspiracy to commit health care fraud (18 U.S.C. § 1349); four substantive health-care-fraud counts (18 U.S.C. § 1347 and § 2); conspiracy to violate the Anti‑Kickback Statute (18 U.S.C. § 371); and social-security fraud (18 U.S.C. § 641 and § 2).
- District court sentenced Nowlin to 132 months’ imprisonment, three years’ supervised release, restitution of $850,597.10, and a $700 special assessment.
- On appeal Nowlin challenged sufficiency of evidence on several counts, denial of certain jury instructions (safe-harbor, multiplicity), a prosecutor’s remarks, and multiple Guidelines enhancements; the Fifth Circuit affirmed in all respects.
Issues
| Issue | Nowlin's Argument | Government's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for health-care-fraud conspiracy and substantive counts | Jury relied too heavily on cooperating witness Parnell; insufficient proof Nowlin had requisite knowledge or intent | Abundant circumstantial and direct evidence (enrollment certifications, beneficiaries’ testimony, altered prescriptions, billing records, bank deposits, Parnell’s testimony) showed knowledge and intent | Affirmed — evidence sufficient to support convictions |
| Sufficiency of evidence for conspiracy to violate Anti‑Kickback Statute | No proof of willful agreement to pay illicit referral payments | Testimony and records showed recurring commission payments to nonemployees (Johnson, Bosquez) paid by Nowlin/Yellabone to induce referrals | Affirmed — sufficient evidence of conspiracy to pay kickbacks |
| Refusal to give Medicare safe‑harbor jury instruction | Court should have instructed jury that bona fide employee payments are exempt (Nowlin argued as to Parnell) | No evidence that referral recipients (Johnson, Bosquez) were bona fide employees (no tax withholding, commissions, control, or contracts); Parnell issue was not raised below | Affirmed — no error; plain‑error review fails because indictment and record do not support safe‑harbor instruction for alleged recipients |
| Multiplicity (counts 1 and 6) | Counts charging conspiracy to commit health‑care fraud and conspiracy to violate Anti‑Kickback Statute are multiplicitous | Each conspiracy requires proof of an element the other does not (e.g., § 371 requires an overt act); distinct statutory objects | Affirmed — no multiplicity; separate conspiracies permissible |
| Jury instruction language using term "kickbacks" | Term misstated instruction or prejudiced jury | Instruction tracked statutory language describing remuneration (including kickback) | Affirmed — instruction proper and not reversible error |
| Prosecutor’s objection suggesting defendant’s statements would be offered only if she testified (Fifth Amendment) | Objection was an improper comment on Nowlin’s silence and warranted mistrial | Objection was a hearsay objection, an equally plausible non‑constitutional explanation; court repeatedly instructed jury on right not to testify | Affirmed — no plain error; comments not manifestly intended as a comment on silence and did not affect substantial rights |
| Sentencing enhancements: 250+ victims, aggravating role, abuse of trust | Victim count overstated (only government or programs as victims); insufficient participants for organizer/leader; DME owner not a position of trust | HHS evidence identified 250+ beneficiaries whose identifiers were used; evidence showed Nowlin led and controlled scheme; owner of DME occupies position of trust | Affirmed — Guidelines enhancements upheld (victim count, §3B1.1 organizer/leader, §3B1.3 abuse of trust) |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for sufficiency of the evidence review)
- United States v. Daniels, 723 F.3d 562 (5th Cir. 2013) (de novo review of Rule 29 denial)
- United States v. Njoku, 737 F.3d 55 (5th Cir. 2013) (conspiracies under §1349 and §371 are distinct; multiplicity)
- United States v. Jones, 733 F.3d 574 (5th Cir. 2013) (multiplicity and conspiracy analysis)
- United States v. Willett, 751 F.3d 335 (5th Cir. 2014) (elements of health‑care fraud under §1347)
- United States v. Miller, 607 F.3d 144 (5th Cir. 2010) (owner of DME company can occupy position of trust under §3B1.3)
- United States v. Shoemaker, 746 F.3d 614 (5th Cir. 2014) (accomplice/plea‑agreement witness testimony may support conviction if not incredible)
- United States v. Grosz, 76 F.3d 1318 (5th Cir. 1996) (contextual review of prosecutorial remarks alleged to comment on failure to testify)
- United States v. Bohuchot, 625 F.3d 892 (5th Cir. 2010) (prosecutor’s intent and effect regarding comments on defendant’s silence)
- United States v. Montoya‑Ortiz, 7 F.3d 1171 (5th Cir. 1993) (prohibition on commenting on defendant’s failure to testify)