United States v. James Hunter , 628 F. App'x 904 ( 2015 )


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  •      Case: 14-31262      Document: 00513244909         Page: 1    Date Filed: 10/23/2015
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT     United States Court of Appeals
    Fifth Circuit
    FILED
    October 23, 2015
    No. 14-31262
    Summary Calendar                             Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee
    v.
    JAMES R. HUNTER,
    Defendant-Appellant
    Appeals from the United States District Court
    for the Middle District of Louisiana
    USDC No. 3:12-CR-73-11
    Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
    PER CURIAM: *
    Defendant-Appellant James R. Hunter appeals his conviction and
    sentence for conspiracy to commit health care fraud in violation of 18 U.S.C.
    §§ 1347 and 1349 and conspiracy to pay and receive kickbacks in violation of
    18 U.S.C. § 371 and 42 U.S.C. § 1320a-7b(b)(1) and (2). Hunter contends that
    (1) the evidence was insufficient to prove that he had the requisite knowledge
    to be convicted under either statute, (2) the district court abused its discretion
    * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH
    CIR. R. 47.5.4.
    Case: 14-31262     Document: 00513244909        Page: 2   Date Filed: 10/23/2015
    No. 14-31262
    when it instructed the jury on willful blindness, and (3) his lawyer rendered
    ineffective assistance of counsel.
    The indictment alleged that Hunter and his co-defendant, Roslyn Dogan,
    recruited Medicare beneficiaries for placement at Shifa Texas for services that
    were not medically necessary or were never provided but were billed to
    Medicare. It further alleged that in return, Hoor Naz Jafri (Naz Jafri) and
    other co-conspirators paid Hunter kickbacks and that he in turn paid
    kickbacks to Medicare beneficiaries.
    To convict Hunter of conspiring to commit health care fraud, the
    government had to prove that (1) Hunter and one or more other persons agreed
    to commit health care fraud; (2) Hunter knew the unlawful purpose of the
    agreement; and (3) Hunter joined in the agreement willfully, i.e., with the
    intent to further the unlawful purpose. See United States v. Njoku, 
    737 F.3d 55
    , 63 (5th Cir. 2013), cert. denied, 
    134 S. Ct. 2319
    (2014); United States v.
    Grant, 
    683 F.3d 639
    , 643 (5th Cir. 2012). To prove that Hunter conspired to
    pay and receive kickbacks, the government had to prove (1) Hunter and one or
    more other persons agreed to pursue an unlawful objective; (2) Hunter had
    knowledge of the unlawful objective and voluntarily agreed to join the
    conspiracy; and (3) an overt act by one or more of the members of the conspiracy
    in furtherance of the its objective. See 
    Njoku, 737 F.3d at 63-64
    .
    Hunter has challenged only the knowledge elements of the statutes
    under which he was convicted, so we will not consider whether the evidence
    supported the other elements. See FED. R. APP. P. 28(a)(8); United States v.
    Scroggins, 
    599 F.3d 433
    , 446 (5th Cir. 2010). Hunter’s knowledge of Shifa
    Texas’s unlawful objective to engage in health care fraud and the unlawful
    nature of the agreement that he had with Shifa Texas to further that objective
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    could be proved by inference and circumstantial evidence. See 
    Njoku, 737 F.3d at 63-66
    ; United States v. Umawa Oke Imo, 
    739 F.3d 226
    , 235 (5th Cir. 2014).
    We conclude that the following evidence presented at trial was sufficient
    to prove that Hunter had the requisite knowledge for conspiracy to commit
    health care fraud and conspiracy to pay and receive kickbacks. The facilities
    at issue, Shifa Community Mental Health Center (Shifa Baton Rouge),
    Serenity Community Mental Health Center (Serenity), and Shifa Community
    Mental Health Center of Texas (Shifa Texas), were owned by, among others,
    Naz Jafri and Dogan and offered “Partial Hospitalization Programs” (PHPs).
    PHPs are intense treatment programs that provide patients less than 24-hour
    outpatient psychiatric care at a hospital or at a community mental health
    center and are covered by Medicare Part B. To be eligible to participate in a
    PHP, a patient must be under the care of a physician, have an acute onset of
    his mental disorder or be decompensated, and must be cognitively able to
    participate.    Medicare guidelines specify that PHP patients must receive
    therapeutic service for at least 20 hours per week and at least four days per
    week.
    At trial, Hunter’s co-conspirators testified that (1) Shifa Texas
    fraudulently billed Medicare for psychiatric services that were never provided;
    (2) Hunter’s co-defendant, Julian Kimble, employed Hunter to deliver patients
    to Shifa Texas by van who did not have a mental illness; (3) Kimble and Hunter
    then paid patients for being transported to Shifa Texas, with Hunter telling
    patients what to say to ensure their admission; and (4) when he was hired by
    Kimble, Hunter knew that he was to be paid based on the number of patients
    he brought to Shifa Texas. Although Medicare allows facilities to advertise
    their services, they may not pay patients to attend a PHP program.
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    After Kimble was investigated for health care fraud, Hunter met with
    Naz Jafri and agreed to continue the work that he and Kimble had been doing.
    He also negotiated to be paid in cash based on the number of patients that he
    transported to Shifa Texas. Although he was not employed by Shifa Texas,
    Naz Jafri paid Hunter $5000 a week to bring patients to Shifa Texas and paid
    him additional sums, depending on how many patients he brought.
    Documentary and testimonial evidence showed that Hunter paid the patients
    he brought to Shifa Texas with cash supplied by Shifa Texas.
    Hunter was a visible presence at Shifa Texas, appearing weekly, looking
    in on chaotic group sessions, and speaking daily by phone to Erika Williams,
    the facility’s office manager. Following a federal investigation into Shifa Baton
    Rouge, Hunter met with Naz Jafri and other co-conspirators in Baton Rouge,
    telling them that he would lie if questioned and that he had instructed patients
    to do likewise.
    This testimony, viewed in the light most favorable to the government,
    permitted the jury to infer that Hunter had the requisite knowledge that the
    agreement he had with Shifa Texas stemmed from an underlying scheme to
    obtain money from Medicare by false pretenses. See 
    Njoku, 737 F.3d at 63
    ; see
    also United States v. Willett, 
    751 F.3d 335
    , 341 (5th Cir. 2014).        It also
    permitted the jury to infer that Hunter had the requisite knowledge to convict
    him of the kickback offenses with which he was charged. See 
    Njoku, 737 F.3d at 64-65
    .
    Hunter also argues that the district court misstated the law when it
    issued a willful blindness instruction that tracked the Fifth Circuit Pattern
    Instruction on willful blindness because it informed the jury that it could use
    a lesser standard of proof to find that he knew of the illegal nature of his
    conduct. He further argues that the instruction was an abuse of discretion
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    because there was no evidence that he knew that being paid cash for bringing
    patients to Shifa Texas was an illegal kickback, so that there was no evidence
    to support a finding that he turned a blind eye to the illegality of the weekly
    payments in cash.
    We have held that the Fifth Circuit Pattern Instruction on willful
    blindness is a correct statement of the law as enunciated by the Supreme Court
    in Global-Tech Appliances v. SEB S.A., 
    563 U.S. 754
    , 
    131 S. Ct. 2060
    , 2071
    (2011). United States v. Brooks, 
    681 F.3d 678
    , 702 (5th Cir. 2012). This
    forecloses Hunter’s contention that the court’s jury instruction was a
    misstatement of the law. See United States v. Kuhrt, 
    788 F.3d 403
    , 416 n.4
    (5th Cir. 2015).
    We review preserved error in jury instructions under an abuse of
    discretion standard, viewing the evidence and all reasonable inferences that
    may be drawn from it in the light most favorable to the government. 
    Kuhrt, 788 F.3d at 413
    . For a willful blindness jury instruction to be warranted, the
    defendant must (1) subjectively believe that there is a high probability that a
    fact exists, and (2) take deliberate actions to avoid learning of that fact. Global-
    
    Tech, 131 S. Ct. at 2070
    . We have held that giving that instruction is proper
    when a defendant denies guilty knowledge, but the proof at trial supports a
    reasonable inference of deliberate ignorance. See, e.g., United States v. St.
    Junius, 
    739 F.3d 193
    , 205 (5th Cir. 2013). Moreover, even if the district court
    errs when it gives a deliberate ignorance instruction, any such error is
    harmless when there is substantial evidence of actual knowledge. 
    Kuhrt, 788 F.3d at 417
    .
    We conclude that the trial testimony, viewed in favor of the government,
    permits the inference that Hunter had subjective knowledge that he was
    involved in a fraudulent health care scheme and that he acted deliberately to
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    avoid knowing of the precise nature of the Medicare violations, such that the
    instruction was warranted. Furthermore, even assuming arguendo that the
    district court erred in giving that instruction, trial testimony established that
    Hunter had actual knowledge making any such error harmless. See St. 
    Junius, 739 F.3d at 205-06
    & n.15; see also 
    Kuhrt, 788 F.3d at 417-18
    . Testimony
    showed that Hunter was a willing participant in the health care fraud
    conspiracy at Shifa Texas and was associated with others at the facility who
    knew that bringing able patients to the facility was wrong. Hunter also knew
    that Kimble quit transporting patients after he was investigated by federal
    officers for health care fraud, yet Hunter took over that activity and agreed to
    lie to federal officials after Shifa Baton Rouge was investigated for health care
    fraud and instructed patients to do likewise.
    Hunter’s final contention is that his trial counsel rendered ineffective
    assistance on various grounds. We decline to review his claim on direct appeal
    because the record is insufficiently developed and that claim was not raised
    before the district court. See United States v. Gulley, 
    526 F.3d 809
    , 821 (5th
    Cir. 2008); United States v. Cantwell, 
    470 F.3d 1087
    , 1091 (5th Cir. 2006).
    AFFIRMED.
    6
    

Document Info

Docket Number: 14-31262

Citation Numbers: 628 F. App'x 904

Filed Date: 10/23/2015

Precedential Status: Non-Precedential

Modified Date: 1/13/2023