United States v. Charlotte Garnes , 587 F. App'x 60 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4537
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CHARLOTTE ELIZABETH GARNES, a/k/a Charlotte Elizabeth Carter,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
Chief District Judge. (3:12-cr-00249-FDW-DCK-1)
Submitted: August 8, 2014 Decided: October 20, 2014
Before KING, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William D. Auman, AUMAN LAW OFFICES, Asheville, North Carolina,
for Appellant. Anne M. Tompkins, United States Attorney,
William M. Miller, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal jury convicted Charlotte Elizabeth Garnes of
conspiracy to commit health care fraud, obstruction of an
official proceeding, and ten counts of making a false statement
relating to a health care benefit program. In this appeal, she
raises three claims challenging her conviction and sentence. We
affirm.
I.
Garnes first claims that the district court abused its
discretion by permitting the government to cross-examine her
regarding an extramarital affair with her former boss. “We
review evidentiary rulings for abuse of discretion.” United
States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997).
We conclude that the district court acted within its
discretion in allowing the government’s questions. During cross-
examination, the government sought to show that Garnes had been
fired from her previous employment for failure to maintain
proper records. Garnes responded to this line of questioning by
stating that she was dismissed because she reported the “owner’s
wife or owner’s girlfriend” for fraudulently billing using
Garnes’s Medicaid number (J.A. 861). Seeking to impeach this
alternative explanation, the government then questioned Garnes
about her extramarital affair with the owner, and Garnes’s
counsel objected on the basis of Federal Rule of Evidence
2
404(b). The district court correctly overruled the objection
because Rule 404(b) does not control evidence offered for
impeachment on cross-examination. 1 See also United States v.
Smith, 451 F.3d 209, 223 (4th Cir. 2006) (“[T]he rules of
evidence permit cross-examination of a witness about specific
instances of misconduct if probative of truthfulness [and] the
trial court has wide discretion to decide whether (and to what
extent) such questioning is proper and relevant.”). 2
1
The 1972 Advisory Committee Notes to Rule 404(b) state
that the Rule does not require a court to exclude evidence that
is offered for a purpose other than to suggest that the
defendant acted in conformity with a character trait on a
particular occasion; such evidence “does not fall within [the
Rule’s] prohibition.” In this case, the evidence in question was
offered not to show propensity but as probative of Garnes’s
character for truthfulness, which Federal Rule of Evidence
608(b) explicitly allows on cross-examination.
2
Recognizing that Rule 404(b) was “perhaps not the most
appropriate reference” for her objection during trial, Garnes
also argues, for the first time on appeal, that the questioning
should have been excluded under Federal Rule of Evidence 403
(Appellant’s Br. at 9). Because Garnes did not raise this
argument at trial, we review the district court’s ruling for
plain error with respect to Rule 403. United States v. Pratt,
239 F.3d 640, 644 (4th Cir. 2001).
Rule 403 allows a court to exclude relevant evidence if the
danger of unfair prejudice it presents substantially outweighs
its probative value. As discussed above, the government’s
questions regarding Garnes’s extramarital affair were probative
of the veracity of her testimony regarding her dismissal from
her previous job. We cannot say that the district court’s
judgment that these questions were not substantially more
prejudicial than probative rises to the level of plain error.
3
II.
Garnes next claims that the district court erred by denying
her motion for a judgment of acquittal under Federal Rule of
Criminal Procedure 29. Specifically, she contends that the
evidence the government presented was insufficient to establish
that her convictions for conspiracy to commit health care fraud
and making false statements relating to a health care benefit
program were “knowing and willful.” 3
We review challenges to the sufficiency of the evidence de
novo, United States v. Alerre, 430 F.3d 681, 693 (4th Cir.
2005), and we “must sustain the verdict if there is substantial
evidence, viewed in the light most favorable to the Government,”
to support it, Burks v. United States, 437 U.S. 1, 17 (1978). “A
defendant challenging the sufficiency of the evidence faces a
heavy burden.” United States v. Bonner, 648 F.3d 209, 213 (4th
Cir. 2011).
A.
To convict Garnes of conspiracy to commit health care
fraud, the government was required to show that Garnes had
3
Garnes also challenges the sufficiency of the evidence
supporting her conviction for obstruction of an official
proceeding, arguing that the evidence adduced at trial “lack[ed]
the requisite legal standard” (Appellant’s Br. at 16). We have
reviewed the record and find this contention to be without
merit.
4
“knowingly and willfully executed” a fraudulent health care
scheme. United States v. Louthian, 756 F.3d 295, 303 (4th Cir.
2014). This Court has long recognized that the jury may infer
knowledge and intent from circumstantial evidence in conspiracy
cases. See United States v. Tucker, 376 F.3d 236, 238 (4th Cir.
2004). The jury may also rely on a theory of willful blindness
to establish intent “when ... the evidence supports an inference
of deliberate ignorance.” United States v. Zayyad, 741 F.3d 452,
463 (4th Cir. 2014) (citations omitted).
Evidence at trial established that Garnes and two
unlicensed counselors, Teresa Marible and Sylvia Jackson,
knowingly and willfully entered into an agreement to defraud the
North Carolina Medicaid agency. The government presented
evidence that Garnes submitted numerous reimbursement claims in
which she falsely represented that she personally had provided
services; that 90% of Garnes’s Medicaid reimbursements from 2009
to 2011 were for services provided by Marible and Jackson; and
that many of these claims were facially invalid. 4 This evidence
is sufficient to establish that Garnes had knowingly and
willingly agreed to participate in a fraudulent healthcare
scheme with Marible and Jackson. Accordingly, we affirm the
4
For example, claimed therapy sessions exceeded 24 hours in
a day on at least 43 occasions.
5
district court’s denial of Garnes’s motion for acquittal on the
conspiracy count.
B.
To convict Garnes of making a false statement relating to a
health care benefit program, the government was required to show
that Garnes “knowingly and willfully made materially false or
fraudulent statements in connection with the delivery of or
payment for health care benefits, items, or services.” United
States v. McLean, 715 F.3d 129, 140 (4th Cir. 2013). “The
specific intent to defraud may be inferred from the totality of
the circumstances, and need not be proven by direct evidence.”
Id. Garnes asserts that, with respect to each count, the
evidence establishes only that her statements were “careless and
negligent,” rather than knowing and willful.
Having reviewed the record under the appropriate standard,
we conclude that the government presented sufficient evidence
from which a jury could find that each false statement with
which Garnes was charged was made knowingly and willfully.
Specifically, on each of the ten counts, the government
presented evidence of at least one of the following: Garnes
submitted claims for services rendered in North Carolina when
she was in fact in a different state or country on the service
date; Garnes’s patient progress notes are inapplicable to the
patients to whom the claimed services were provided; the patient
6
notes are inconsistent with the duration of the claimed
services; or the claimed services were provided to patients who
testified that they never received services from Garnes. Any one
of these pieces of evidence is sufficient to establish that
Garnes knowingly and willingly made false statements relating to
a health care benefit program. Accordingly, we affirm the
district court’s denial of Garnes’s motion for acquittal on the
false statement counts.
III.
Finally, Garnes argues that in calculating her sentencing
guidelines range, the district court improperly held her
responsible for losses caused by her co-defendant, Oriaku
Hampton-Sowell. This argument fails because the district court
was entitled to include the amount of losses caused by her co-
conspirators in calculating the range. The guidelines define a
defendant’s relevant conduct to include “all reasonably
foreseeable acts and omissions of others in furtherance of the
jointly undertaken criminal activity.” U.S.S.G. §1B1.3(a)(1)(B).
The evidence adduced at trial was sufficient to support the
conclusion that Garnes and Hampton-Sowell were jointly engaged
in criminal activity, and that Hampton-Sowell’s fraudulent
billings were reasonably foreseeable to Garnes. Therefore, the
7
district court did not err in calculating Garnes’s guidelines
range. 5
IV.
Based on the foregoing, Garnes’s convictions and sentence
are hereby
AFFIRMED.
5
Garnes also contends that the district court erred in
ordering her to pay restitution for Hampton-Sowell’s fraudulent
charges. Under the Mandatory Victims Restitution Act, 18 U.S.C.
§ 3663A, “each member of a conspiracy that in turn causes
property loss to a victim is responsible for the loss caused by
the offense, not merely for the losses caused by a particular
conspirator’s overt acts.” United States v. Seignious, 757 F.3d
155, 161 (4th Cir. 2014) (citations omitted). Accordingly,
because Garnes was convicted of conspiracy to commit healthcare
fraud with Hampton-Sowell, Garnes’s restitution argument fails.
8