Health Care Fraud Conspiracies that Overlap in Time, Place, Personnel, and Statutory Charge Don't Violate Double Jeopardy Since Government Sought to Punish Different Activity

United States v. Njoku, No. 12-20095 (5th Cir. Dec. 2, 2013) (Dennis, Clement, Southwick)

Four defendants were convicted on numerous counts related to committing health care fraud, receiving or paying healthcare kickbacks, and/or making false statements for use in determining rights Medicare benefits and payments.  The panel affirms the convictions and sentences but remands to the district court to amend Njoku’s written sentence of 63 months to conform with the oral sentence of 60 months.

The panel finds the Government presented sufficient evidence that Njoku knew of the unlawful purpose of both the health care fraud conspiracy and the kickback conspiracy and that she joined in those agreements willfully.  She also challenges the two conspiracy counts as multiplicitous.  (Since she did not object to the indictment as multiplicitous, the convictions stand but the sentences can be challenged under plain error review.)  Njoku argues that her health care fraud conspiracy conviction was based entirely on proof of the kickback conspiracy, so the kickback conspiracy is a lesser included of the health care fraud conspiracy.  The panel disagrees, noting that one conspiracy is under 18 U.S.C. § 1349 (proof of conspiracy to commit fraud and that fraud is the object of the conspiracy) and the other under 18 U.S.C. § 371 (proof of conspiracy against United States and the commission of an overt act).  Further, the indictment described the unlawful purpose of the health care conspiracy as the receipt of kickbacks in addition to the submission of fraudulent claims to Medicare.

Defendant Ellis challenges her trial on the of conspiracy to commit health care fraud as violating the Double Jeopardy Clause because she was acquitted of a conspiracy to commit health care fraud after a trial by jury prior to the instant indictment.  The first indictment focused on her activity as a recruiter and the other focused on her falsification of nursing notes and medical certifications.  Since she established a prima facie nonfrivolous double jeopardy claim, the Government bears the burden to prove by a preponderance of the evidence that she was charged in separate conspiracies.  The panel undertakes the five-prong test to determine whether there were two agreements and conspiracies.  It concludes that “the time, statutory offenses, and places involved suggest that there was one agreement.  Nevertheless, . . . two agreements and two conspiracies existed because of the separate functions that central co-conspirators provided in each scheme and the distinctive activity that the Government sought to punish in each case.” 

Ellis also argues that in her acquittal of the first charged conspiracy, the jury necessarily determined that she did not know her paid referrals were illegal, which she argues would bar any subsequent prosecution on whether she willfully received kickbacks.  The panel finds that the first jury could have based the acquittal either on Ellis not knowing that the paid referrals were illegal or on her not intending to further the unlawful purpose as charged in the indictment.  Since the jury did not have to necessarily find that she did not know the referrals were illegal, she was not twice put in jeopardy.

During trial, Ellis sought to introduce portions of testimony by a person, Clifford Ubani, who testified in the first trial that he never agreed with Ellis to do something unlawful but invoked his right against self-incrimination in the second trial.  The district court excluded this evidence finding its admission would require the admission of additional evidence in order to explain the statement in the proper context and would be more misleading or confusing than probative.  The panel also rejects Ellis’s argument that the district court’s ruling violated her Sixth Amendment right to present a complete defense.

With regard to sentencing, the panel affirms the loss amount calculated for Ellis, finding that the Government presented reliable evidence of actual loss and the district court properly considered Ellis’s contrary evidence.  The panel also affirms Ezinne Ubani’s enhancements as a manager/supervisor and abuse of trust, noting that “Medicare invests an important trust in RNs who complete OASIS questionnaires and certify plans of care for initial episodes of care and recertifications . . . .”

Latest Supreme Court Opinions - Fourth Amendment, Plain Error, Padilla, Double Jeopardy

Florida v. Harris, No. 11-817 (Kagan, unanimous)
The government does not need to produce a dog’s training and certification records, in addition to other evidence, to demonstrate a drug detection dog’s reliability. Instead, "[t]he question—similar to every inquiry into probable cause—is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. A sniff is up to snuff when it meets that test." In so holding, the Court reversed the Florida Supreme Court’s decision.
[The other dog sniff case, Florida v. Jardines (No. 11-564), which presents the question "whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause," has not yet been decided.]

Bailey v. United States, No. 11-770 (Kennedy, Roberts, Scalia, Ginsburg, Sotomayor, and Kagan, majority; Breyer, Thomas, and Alito, dissent)The detention of an individual who had left the premises before the search began and was a mile away before police detained him was not lawful under Michigan v. Summers, 452 U.S. 692 (1981), which authorizes law enforcement officers "to detain the occupants of the premises while a proper search is conducted" without need for any level of suspicion. The Court added that "[i]n closer cases courts can consider a number of factors to determine whether an occupant was detained within the immediate vicinity of the premises to be searched, including the lawful limits of the premises, whether the occupant was within the line of sight of his dwelling, the ease of reentry from the occupant’s location, and other relevant factors." Lawful detention under an alternative avenue, such as a Terry stop, is of course still possible.
Henderson v. United States, No. 11-9307 (Breyer, Roberts, Kennedy, Ginsburg, Sotomayor, and Kagan, majority; Scalia, Thomas, and Alito, dissent)
Under Federal Rule of Criminal Procedure 52(b), error is plain if it is clear at the time of appeal.
　

Chaidez v. United States, No. 11-820 (Kagan, Roberts, Scalia, Kennedy, Breyer, and Alito, majority; Thomas, concurrence; Sotomayor and Ginsburg, dissent)
Padilla v. Kentucky, 559 U. S. ___ (2010), does not apply retroactively to cases already final on direct review. In Padilla, the Supreme Court held that the Sixth Amendment requires an attorney for a criminal defendant to provide advice about the risk of deportation arising from a guilty plea. The Court concludes in Chaidez that, "under the principles set out in Teague v. Lane, 489 U. S. 288 (1989), Padilla does not have retroactive effect."

Evans v. Michigan, No. 11-1327 (Sotomayor, Roberts, Scalia, Kennedy, Thomas, Ginsburg, Breyer, and Kagan, majority; Alito, dissent)
Retrial following a court-decreed acquittal is barred, even if the acquittal was based on an incorrect legal conclusion, as was the case here.

Double Jeopardy Doesn't Bar Mistrial Caused by Prosecutorial Misconduct Unless Prosecutor Intended to Cause Mistrial

United States v. Dugue, No. 12-60529 (5th Cir. Aug. 9, 2012) (per curiam) (Reavley, Smith, Clement)

Here's what happened: The district court excluded 404(b) evidence prior to trial.  The Government later filed an exhibit list that included the excluded 404(b) evidence.  Dugue moved to exclude that evidence from trial, a motion the court granted.  During trial, while cross-examining Dugue, the prosecutor brought up the 404(b) evidence.  Why?  "The prosecutor claimed that, by raising his eyebrow and nodding his head, the district judge had given her permission to introduce the [excluded evidence.]"  The district court granted Dugue's motion for a mistrial, but refused to bar a retrial because it found that the prosecutor had not intended to "goad" Dugue into moving for the mistrial.

Dugue appealed, arguing that if it looks, walks, and quacks like a duck, it's a duck:

He alleges that “[w]here a Government attorney acts with reckless disregard for the Orders of the Court, under circumstances where only a mistrial can cure the resultant prejudice, the intent to cause a mistrial can be inferred.” This court has never adopted such a per se rule and we question whether such a rule would be sufficient to show that the district court clearly erred. Instead, we have followed the Supreme Court’s ruling in [Oregon v.] Kennedy[, 456 U.S. 667 (1982)].

In Kennedy, the Court made it clear that prosecutorial misconduct alone is not sufficient for a retrial to result in a double jeopardy violation: “Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant’s motion, therefore, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause.” Retrial is not barred even where the prosecution engages in “intentional misconduct that seriously prejudices the defendant.” Once the court determines that the prosecutor’s conduct was not intended to terminate the trial, “that is the end of the matter for purposes of the Double Jeopardy Clause of the Fifth Amendment. . . .”

United States v. Wharton, 320 F.3d 526, 531-32 (5th Cir. 2003) (internal citations omitted). For Dugue to obtain retrial, he would need to prove that [the prosecutor's reference to the excluded evidence] was intended to cause a mistrial—a factual determination.

The court went on to hold that the district court's factual determination to the contrary was not clear error, so the retrial is not barred.  There was the obligatory scolding, as well:

The prosecutor displayed overreaching and unprofessional conduct in ignoring the district court’s two orders not to discuss the [excluded evidence]. Her excuse, that the judge’s head nod in response to her raised eyebrow implied permission to introduce previously excluded evidence, is certainly unacceptable. . . . The prosecutor’s improper behavior offers a reminder that attorneys should hew closely to the orders excluding evidence and seek clear permission when they are approaching those topics at a later point in trial.

Revocation Sentence Vacated as Plainly Unreasonable; Panel Purports to Limit Holding to Cases "Indistinguishable . . . In All Material Respects"

United States v. Willis, No. 08-10018 (5th Cir. Mar. 24, 2009) (Jolly, Smith, Owen)

In 1998, Willis was convicted of two counts of being a felon in possession of a firearm. "The two counts were premised on Willis’s simultaneous possession of two firearms and were, therefore, multiplicitous in violation of the Fifth Amendment’s prohibition against double jeopardy." Unfortunately, Willis never objected to the indictment, and he did not raise the issue on direct appeal or in two subsequent § 2255 petitions.

After serving his sentences on the two counts---which ran concurrently---Willis commenced serving two concurrent terms of supervised release. He violated, and was revoked. Willis raised the multiplicity argument at the revocation hearing, asking that a sentence be imposed for just one of the revoked terms. The district court rejected Willis's argument, and sentenced him to two consecutive 24-month terms of imprisonment.

Willis appealed. He did not challenge the underlying convictions or sentences; as the court points out, "[i]t is by now well-established that a defendant may not use the appeal of a revocation of supervised release to challenge an underlying conviction or original sentence." Instead, Willis argued that the second of the two revocation sentences was unreasonable because it was multiplicitious.

The court held that the second sentence was plainly unreasonable (and, for that reason, declined for at least the second time "to decide whether to subject revocation sentences to the 'unreasonable' or the 'plainly unreasonable' standard of review"):

There is no question but that the second revocation sentence is multiplicitous in its own right. We do not hold, however, that the second revocation sentence is not a legal sentence. That revocation sentence stems from one of the two original sentences; that original sentence, which Willis has already served, remains undisturbed and therefore legal. If the original sentence is legal, then the revocation sentence, which depends upon it, is also legal. Our opinion does not question the revocation sentence’s legality.

We question instead the mere fact of the second revocation sentence, which would require that Willis serve two revocation sentences, consecutively, as a penalty for what all parties now agree was only one offense. The second revocation sentence would therefore have the practical effect of incarcerating Willis for an additional twenty-four months. We especially note that the original sentence, including the term of supervised release, was imposed to run concurrently. The fact of its multiplicity, although legal, is, under all circumstances present, plainly unreasonable.

Intriguingly, the court goes on to not only emphasize the narrowness of its holding, but also to "limit the precedential value of our holding to cases presenting indistinguishable facts in all material respects." Which of course prompts two questions: 1) Can a panel (or even the court sitting en banc, for that matter) do that? 2) Given the narrowness of the holding, is such a purported limit even necessary?