United States v. Carolyn Sue Davis (06-5073) and Otis Davis (06-5074)United States v. Carolyn Sue Davis (06-5073) and Otis Davis (06-5074)
OPINION
Carolyn Sue Davis (hereinafter “Ms. Davis”) and Otis Davis (hereinafter “Mr. Davis”) (collectively “appellants”) appeal their August 25, 2005 convictions for twelve counts of aiding and abetting Medicare fraud, in violation of
BACKGROUND
On August 25, 2005, a jury convicted Carolyn Sue Davis and her husband, Otis Davis, on twelve counts of aiding and abetting Medicare fraud in violation of
From Dr. Sundaram’s office, the patients were directed to J & J Medical, a durable medical equipment (hereinafter “DME”) company created and owned by Mr. Davis, a retired coal miner, for their oxygen supplies. A DME company is paid by Medicare for supplying equipment by submitting a certificate of medical necessity (hereinafter “CMN”), created electronically from a computer-generated form and electronically submitted to the insurer, here, Medicare contractor Palmetto GBA, which pays upon its processing of the claim. A CMN contains three sections with instructions as to the party to complete each portion. The middle portion, Section B, requires someone from the doctor’s office to provide the patient’s blood-oxygen levels. The form explicitly stipulates that the supplier of the health care product is not to fill out this medical information. At the bottom of the form, the doctor is to sign and confirm that the medical information is true and accurate.
The investigation of J & J Medical began in March of 2002, when a Health and Human Services investigator discovered information about questionable practices of the company in relation to Dr. Sundaram. Examination revealed that the vast majority of J & J Medical clients were referrals from Dr. Sundaram. It also indicated that Ms. Davis, as a volunteer at Dr. Sundar-am’s clinics, had special access to the doctor’s patients, their files, and their prescriptions. During an interview with the investigator, and later at trial, Dr. Sundar-am unequivocally stated that he had never authorized anyone to sign prescription forms for him, nor had he authorized anyone to sign a CMN for him.
Yet at trial, witnesses from the offices of Dr. Sundaram and J & J Medical testified that they personally observed Ms. Davis doctoring prescriptions and forging the doctor’s signature on them, as well as forging his signatures and including data on CMNs without any paperwork to ensure that the data required for Medicare reimbursement was accurate. Connie Webb, who volunteered in Dr. Sundaram’s office, testified that Ms. Davis directed her to go to J & J Medical on at least four or five occasions to sign the doctor’s name to CMNs. Upon completion of the forms, Webb would have someone at the J & J Medical office supply her with copies of
Multiple witnesses also testified as to the falsification of “check-off’ sheets, forms used in Dr. Sundaram’s office, but not legally required, as a measure to ensure patients had a choice of medical suppliers. Ms. Blair, Amanda Tibbs, a medical billing agent working in the same building as J & J Medical, and Jennifer Akers, Ms. Davis’s daughter and an employee of J & J Medical, recounted at trial that Ms. Davis directed a group at the J & J Medical office to fill out “check-off’ sheets, sign them with the patients’ names, copy them, and put them in patient files.
In addition to recalling instances of fraud that they witnessed in the course of the Medicare fraud scheme itself, many testified as to the various ways the Davis’s attempted to cover up their misdeeds when they became aware of the investigation. Ms. Blair testified that Ms. Davis offered to give her fifteen dollars to remove “all of the prescriptions and anything that would incriminate her.” Upon her refusal, she stated that Mr. Davis ultimately removed the items. Jennifer Akers and her husband both took the stand and testified that Mr. and Ms. Davis together came to their house to request that they hide a garbage bag containing improperly completed CMNs and prescriptions at various stages of completion.
At the conclusion of the trial, the jury found Ms. Davis and Mr. Davis guilty on all twelve counts of violating
ANALYSIS
I. Defendant Carolyn Sue Davis
A. Defendant Carolyn Sue Davis argues on appeal that the trial court erred by excluding evidence that oxygen received by the miners was medically necessary, asserting such evidence to be relevant to whether any alleged misrepresentations were material. In essence, Ms. Davis posits that “those paperwork mistakes, if any, only resulted in payments of claims that were proper rather that any false statements” of medical necessity where none existed. Four of the miners named in the first twelve counts testified that they did need oxygen and continued to receive oxygen. Ms. Davis suggests that, during her trial on charges of health
knowingly and willfully executes, or attempts to execute, a scheme or artifice—
(1) to defraud any health care benefit program; or
(2) to obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money ... owned by ... any health care benefit program,
in connection with the delivery of or payment for health care benefits, items, or services....
The only case either party cites to interpret the meaning of the statute is
Piacen-tile v. Walk,
an unpublished case from the Eastern District of Pennsylvania, holding that “any information added [to a CMN], without authorization, by an individual other than the physician signing the CMN” is false. No. 93-5773,
On its face,
The judge’s instructions to the jury make it clear that proof of patient need would not aid the jury in rendering its verdict. Before dismissing the jury to deliberate, the judge explained to them that “any false statements or assertions that concern a material aspect of the matter in question that were either known to be untrue when made or made with reckless indifference to their truth” would constitute “false or fraudulent pretenses, representations, or premises.” He also emphasized that “[i]t [was] not necessary for the government to prove that the health care benefit program suffered any financial loss.” As the jury was not tasked with determining whether the Medicare claims made were ultimately unnecessary, but instead had to determine whether the claims filed made false representations, the medical-necessity evidence was irrelevant to the conviction under
B. Ms. Davis also asserts that the trial court improperly limited the cross-examination of Connie Webb by not allowing Davis’s counsel to question Ms. Webb regarding her alleged extramarital relationship with Dr. Sundaram. We review the trial court’s disposition of this issue for abuse of discretion.
United States v. Bistrup,
C. Ms. Davis further alleges that the district court erred in the way that it permitted trial presentation of Exhibit 13, a black bag containing various documents, including CMNs and prescriptions, that afforded undue emphasis to certain incriminating documents. Ms. Davis takes issue with the fact that the court allowed some of these documents to be seen by the jury in a grouped fashion and that some of the documents were marked with labels. This court reviews the manner in which evidence was presented to a
D. Ms. Davis asserts that the district court’s response to a question posed by the jury unduly emphasized an aspect of the case that was harmful to her. This court reviews a district court’s “actions in responding to questions from the jury” for abuse of discretion.
United States v. August,
II. Defendant Otis Davis
A. Otis Davis first asserts that the district court erred by allowing him to be represented jointly by the same attorney who represented his wife. This court has previously found that “[a] defendant may make a knowing, intelligent, and voluntary waiver of [his] right to conflict-free counsel, and a defendant has a Sixth-Amendment right to counsel of [his] choice.”
United States v. Straughter,
Mr. Davis now argues that “when the waiver occurred, no discovery had been asked for or received by the defense and thus any waiver executed was premature in light of the evidence as it was developed at trial.” However, as the trial court explicitly instructed the defendants to report to their attorney any conflicts that should arise, and defendants accepted this responsibility, Mr. Davis cannot complain to the court regarding any fallout from his failure to do so.
B. Mr. Davis asserts that the trial court erred in denying his motion for a directed verdict acquitting him of the twelve counts of health care fraud. 1 When this court reviews a conviction for sufficiency of the evidence, we do not conceptualize our role as that of a jury, deciding the case anew, but rather we review the jury’s verdict subject to a highly deferential standard. As the Supreme Court has explained:
[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia,
Mr. Davis asserts that any participation in the scheme on his part was unknowing and that there is no evidence that he knew the claims were fraudulent when submitted. As one federal district court noted when interpreting
The record provided ample support for the jury to make the inference that Mr. Davis had the requisite knowledge and fraudulent intent to be a participant in the health care scheme, by virtue of the repeated occurrence of fraudulent activities, spearheaded by his wife, at his place of business and his home. Though testimony on Ms. Davis’s involvement with J & J Medical dominated the trial, her participation in the company does not negate her husband’s work with it. Mr. Davis was the sole owner of J & J Medical. He usually wrote the checks for the corporation, hired and fired employees, and fre
Additionally, the record contains testimony on the part of a number of witnesses that implicates Mr. Davis in cover-up operations to destroy evidence, from which the jury could infer that he sought to conceal his own wrongful acts. Ms. Blair testified that, when she refused Ms. Davis’s offer to pay her fifteen dollars to “go in her office and remove all of her prescriptions and anything that would incriminate her ... her husband and another fellow ... did it.” The Akers both testified that Mr. Davis came to their home with his wife to deliver a garbage bag containing improperly completed CMNs and prescriptions at various stages of completion.
In addition to evaluating Mr. Davis’s knowledge, motive, and conduct based on the testimony of others, the jury also had the opportunity to hear from Mr. Davis himself when he took the stand. He testified at trial, denying any knowledge of or direct involvement in the health-care fraud scheme. This provided the jury with an opportunity to view his demeanor and judge his credibility, a trial-level advantage for which an appellate court’s review of a paper record can provide no comparable substitute. As indicated by the verdict, the jurors hearing this testimony unanimously agreed that Mr. Davis had knowingly aided and abetted Medicare fraud. We are loath to override their conclusion. The Supreme Court has made clear that “[t]he trier of fact, not the appellate court, holds ‘the responsibility ... fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.’ ”
Tibbs v. Florida,
CONCLUSION
For the foregoing reasons, we AFFIRM the district court.
Notes
. Defendant concedes that "there was sufficient evidence to proceed on the obstruction charge, based on the act of cleaning out the desk and being present when the check off sheets were prepared.” App’t Otis Davis’s Br. at 25.