United States v. Yolanda Nowlin , 640 F. App'x 337 ( 2016 )

Case: 14-20247 Document: 00513395845 Page: 1 Date Filed: 02/25/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-20247 United States Court of Appeals
Fifth Circuit
FILED
UNITED STATES OF AMERICA, February 25, 2016
Lyle W. Cayce
Plaintiff - Appellee Clerk
v.
YOLANDA NOWLIN,
Defendant - Appellant
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:12-CR-730
Before DAVIS, BARKSDALE and DENNIS, Circuit Judges.
PER CURIAM:*
Yolanda Nowlin, the owner and operator of a durable medical equipment
supply business, was convicted by a jury of conspiracy to commit health care
fraud, four substantive counts of committing health care fraud, conspiracy to
violate the Anti-Kickback Statute, and social security fraud. The district court
sentenced her to 132 months of imprisonment. On appeal, Nowlin challenges
her convictions as well as her sentence. Finding no error, we affirm.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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I.
A grand jury returned an indictment that charged Nowlin with one count
of conspiracy to commit health care fraud in violation of 18 U.S.C. § 1349 (count
one); four substantive counts of committing health care fraud in violation of 18
U.S.C. § 1347 and § 2 (counts two through five); one count of conspiracy to
violate the Anti-Kickback Statute in violation of 18 U.S.C. § 371 (count six);
and one count of social security fraud in violation of 18 U.S.C. § 641 and § 2
(count seven). The indictment alleged that Nowlin formed, owned, and
controlled Yellabone Medic Care Express Equipment Supply Company and
Yellabone Medical Equipment, Inc. (collectively, “Yellabone”), a durable
medical equipment (“DME”) company located in Bryan, Texas. Nowlin
submitted enrollment applications to Medicare and Medicaid (collectively “the
programs”) in Yellabone’s name for the submission of claims for payment for
DME supplied to Medicare/Medicaid beneficiaries by Yellabone. Nowlin hired
Carla Parnell to help manage the day-to-day operations of Yellabone.
According to the indictment, Nowlin, with the help of Parnell, used
Yellabone as an artifice to submit false claims to Medicare and Medicaid, which
resulted in Yellabone receiving reimbursements from the programs for medical
supplies that were never delivered to beneficiaries, or that, alternatively, were
not wanted nor needed by the beneficiaries. For example, the indictment
alleged that Nowlin submitted claims for ostomy supplies (which are used by
patients to discharge bodily waste) that were neither needed nor requested by
beneficiaries, and that Nowlin also submitted claims for motorized wheelchairs
when, in actuality, a less expensive scooter was actually provided to the
beneficiaries. The indictment further alleged that Nowlin conspired to pay
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illegal “kickbacks” to individuals in exchange for the referral of Medicare and
Medicaid beneficiaries to Yellabone.
Following a seven-day trial, a jury convicted Nowlin on all seven counts.
The district court sentenced her to 120 months of imprisonment on count one
to run consecutively with concurrent 12-month terms of imprisonment on each
of counts two through seven, resulting in a total of 132 months of
imprisonment. The district court also imposed a three-year term of supervised
release on each of the seven counts to run concurrently with each other,
restitution of $850,597.10, and a special assessment of $700. Nowlin appealed.
II.
Nowlin first contends that the evidence at trial was insufficient to convict
her of conspiracy to commit health care fraud (count one), the four substantive
counts of health care fraud (counts two through five), and conspiracy to violate
the Anti-Kickback Statute (count six). 1 Nowlin preserved her sufficiency
challenge by filing a motion for judgment of acquittal under Fed. R. Crim. P.
29 at the close of the Government’s case and at the close of all the evidence.
Accordingly, we review de novo the denial of her Rule 29 motion. See United
States v. Daniels, 723 F.3d 562, 569 (5th Cir. 2013). “[T]he 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.” Id. (quoting Jackson v. Virginia, 443
U.S. 307, 319 (1979)). “All reasonable inferences from the evidence must be
construed in favor of the jury verdict.” United States v. Akpan, 407 F.3d 360,
370 (5th Cir. 2005) (internal quotation marks and citation omitted). “The jury
1 As she conceded at oral argument, Nowlin does not challenge the evidence
supporting her conviction for social security fraud in violation of 18 U.S.C. § 641 and § 2.
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retains the sole authority to weigh any conflicting evidence and to evaluate the
credibility of the witnesses.” United States v. Grant, 683 F.3d 639, 642 (5th
Cir. 2012) (internal quotations marks and citation omitted). In order to be
sufficient, “‘[t]he evidence need not exclude every reasonable hypothesis of
innocence or be wholly inconsistent with every conclusion except that of guilt.”
Id. (internal quotation marks and citation omitted). As explained below, we
conclude that there was ample evidence presented at trial to sustain Nowlin’s
convictions.
A. The Health Care Fraud Offenses (Counts One through Five)
Count one of the indictment charged Nowlin with conspiracy to commit
health care fraud, in violation of 18 U.S.C. § 1349, by conspiring to submit
claims for payment for DME and supplies to Medicare and Medicaid that were
not delivered to beneficiaries, were medically unnecessary, or were the result
of “upcoding.” 2 Counts two through five of the indictment charged Nowlin with
substantive health care fraud under 18 U.S.C. § 1347 and aiding and abetting
in the offense under 18 U.S.C. § 2.
“To prove a conspiracy to commit health care fraud, the government
must prove beyond a reasonable doubt that (1) two or more persons made an
agreement to commit health care fraud; (2) the defendant knew the unlawful
purpose of the agreement; and (3) [ ] the defendant joined in the agreement
willfully, that is, with the intent to further the unlawful purpose.” Grant, 683
F.3d at 643 (citing 18 U.S.C. §§ 1347, 1349; United States v. Delgado, 668 F.3d
219, 226 (5th Cir. 2012)). “Direct evidence of a conspiracy is unnecessary; each
element may be inferred from circumstantial evidence.” Delgado, 668 F.3d at
2“Upcoding” refers to the practice of filing claims with Medicare and Medicaid for
more expensive items than were actually supplied to beneficiaries—e.g., filing a claim for the
payment of a motorized wheelchair when a less expensive scooter was actually provided.
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226 (internal quotation marks and citation omitted). “However, there is
insufficient evidence of a conspiracy if the Government has only piled inference
upon inference upon which to base a conspiracy charge.” United States v.
Umawa Oke Imo, 739 F.3d 226, 235 (5th Cir. 2014) (internal quotation marks
and citation omitted).
To prove the four substantive counts of health care fraud in violation of
18 U.S.C. § 1347, the Government was required to “prove beyond a reasonable
doubt that [Nowlin] knowingly and willfully executed, or attempted 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 or property owned by, or under the custody or control of, any
health care benefit program, in connection with the delivery of or payment for
health care benefits, items, or services.” United States v. Willett, 751 F.3d 335,
339 (5th Cir. 2014) (alternations and internal quotation marks omitted).
“To obtain a conviction for aiding and abetting under 18 U.S.C. § 2, the
Government must prove that [Nowlin] associated with the criminal venture [of
health care fraud], purposefully participated in [that] criminal activity, and
sought by [her] actions to make the venture successful.” Akpan, 407 F.3d at
370-71. “A defendant associates with a criminal venture when [she] shares in
the criminal intent of the principal.” Id. “Participation means that the
defendant engaged in some affirmative conduct designed to aid the venture.”
United States v. Lopez-Urbina, 434 F.3d 750, 757 (5th Cir. 2005) (internal
quotation marks and citation omitted).
The sole focus of Nowlin’s argument as to counts one through five is that
there was insufficient evidence adduced at trial that she had the requisite
knowledge of or specific intent to commit the charged offenses. In particular,
she argues that the jury placed undue weight on the testimony of Carla
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Parnell, who had entered into a plea agreement with the Government prior to
testifying. For the reasons explained below, we find Nowlin’s argument
unpersuasive.
Ample evidence was presented at trial showing that Nowlin had the
requisite knowledge and intent to conspire to commit, to commit, and to aid
and abet the commission of health care fraud. As an initial matter, the
evidence shows that Nowlin was aware of her obligations to truthfully comply
with Medicare and Medicaid regulations. In 2003, for example, Nowlin signed
the Medicaid and Medicare enrollment applications as the sole owner,
administrator, and delegated official for Yellabone. In doing so, Nowlin
certified numerous times that she understood and agreed to comply with
underlying regulations, which include, inter alia, only submitting claims for
equipment that has been prescribed by a doctor, providing equipment or
services prior to billing the programs, using correct procedure codes, and
delivering only new equipment to beneficiaries. In addition, other evidence
presented at trial sheds further light on the extent of Nowlin’s knowledge of
relevant program regulations and her obligation to comply with them. For
instance, U.S. Department of Health and Human Services Special Agent
Latisha Cleveland testified at trial regarding an interview that she conducted
with Nowlin in 2004. During that interview, Nowlin explained that she
understood the differences in billing for a motorized wheelchair and a power
scooter and how those different pieces of equipment have their own distinct
codes for filing claims with the programs.
Further, substantial evidence at trial showed that Nowlin knew and
intended for Yellabone to disregard its obligations to comply with program
regulations, thereby resulting in Yellabone being reimbursed by the programs
for medical equipment that was not delivered, was not new, or was not
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medically necessary as charged in the indictment. For example, the
Government’s first witness was Eleanor Brown, who was referred to Yellabone
to obtain DME for her daughter, Jisha, who suffered from cerebral palsy and
was a Medicaid beneficiary. Brown first went to Yellabone in 2004 in order to
obtain a new specialized wheelchair for Jisha. Due to Jisha’s medical
condition, the wheelchair needed to have a headrest and straps to hold her in
place. Nevertheless, the wheelchair ultimately provided by Yellabone lacked
these necessary components. After Brown complained to Nowlin about the
substandard wheelchair, Nowlin visited the Brown’s home and observed
Jisha’s condition and the wheelchair. However, Nowlin never visited the
Brown’s home again or returned Brown’s calls. Jisha was not eligible to receive
another chair from Medicaid for five years and was required to use a “bath
chair” with wheels on it instead. Later on, Brown attempted to obtain a
hospital bed, but Medicaid denied the claim because its records indicated that
Yellabone had previously delivered a bed to the Browns. Yet, Brown testified
that she had never requested that Yellabone obtain a hospital bed and that she
had never received one from Yellabone. Although Jisha never received a
specialized wheelchair or a hospital bed from Yellabone, billing documents and
Yellabone bank statements presented at trial confirmed that Medicaid
reimbursed Yellabone for a specialized wheelchair and for a hospital bed for
Jisha into a Yellabone bank account that Nowlin exclusively controlled and
from which she regularly withdrew cash.
The testimony of numerous other program beneficiaries who dealt with
Yellabone further supports a finding that Nowlin had knowledge of and
specifically intended to commit health care fraud. For example, in May 2006,
Linda Chopp, a Medicaid beneficiary, brought Nowlin a prescription for a
scooter that she received from her doctor. The scooter that Yellabone
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ultimately delivered to Chopp was used, never worked correctly, and
ultimately caused a fire in Chopp’s apartment. Nevertheless, Yellabone billed
and received payment from Medicaid for a more expensive power wheelchair—
not a scooter. Billing statements showed that Medicaid paid Yellabone over
$3500 for a power wheelchair, instead of a cheaper scooter, for Chopp in May
2006. A bank statement submitted by the Government into evidence confirmed
that Medicaid paid those funds to a Yellabone bank account that was controlled
by Nowlin and from which she regularly made ATM withdrawals.
Similar to Chopp, Robert Brown also received a scooter from Yellabone
through his program benefits. However, within three years of receiving this
scooter, Brown explained that he required a power wheelchair as a result of a
deterioration in his medical condition. Medicaid denied this request because
Yellabone had previously filed a claim for a power wheelchair instead of the
scooter that Brown had actually received. Medicare and Medicaid each
reimbursed Yellabone for the payment of a power wheel chair and deposited
those payments into a Yellabone bank account controlled by Nowlin. Brown’s
doctor, Dr. Wade Farrow, also testified at trial. Dr. Farrow confirmed that he
previously had prescribed Brown a scooter. At trial, Dr. Farrow examined a
prescription in Brown’s file at Yellabone that had been altered with white-out
and changed to request a power wheelchair.
Ada Taylor also testified at trial regarding her dealings with Yellabone.
Taylor testified that Yellabone provided her with one box of adult diapers and
one box of pull-ups for her disabled granddaughter, Chanel Wright. Taylor
never received any other supplies from Yellabone. Yet, billing data introduced
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at trial showed that Yellabone billed Medicaid for large amounts of
incontinence supplies that neither Taylor nor Wright ever received.
The testimony of these beneficiaries was further corroborated by
Yellabone employee Carla Parnell, who testified in detail that Nowlin provided
her with a list of incorrect billing codes (which resulted in the submission of
“upcoded” claims), instructed her to falsify delivery documents, and to bill for
supplies that Yellabone never provided to beneficiaries. According to Parnell,
“whether [the beneficiaries] got their equipment or not,” Nowlin “told [her] to
bill it” to the programs. The jury was free to credit Parnell’s testimony
notwithstanding the fact that she had entered into a plea agreement with the
Government. See United States v. Shoemaker, 746 F.3d 614, 623 (5th Cir.
2014) (observing that “a conviction may be based even on uncorroborated
testimony of an accomplice or of someone making a plea bargain with the
government, provided that the testimony is not incredible or otherwise
insubstantial on its face.” (internal quotation marks and citation omitted)).
In sum, the Government presented overwhelming evidence at trial that
Nowlin had the requisite knowledge and intent to commit the crimes charged
in counts one through five. See Willett, 751 F.3d at 339-43; Grant, 683 F.3d at
642-44.
B. Conspiracy to Violate the Anti-Kickback Statute (Count Six)
Nowlin also argues that there was insufficient evidence presented at
trial that she conspired to violate the Anti-Kickback Statute in violation of 18
U.S.C. § 371. “A conviction of conspiracy under Section 371 requires the
Government to prove: (1) an agreement between two or more persons to pursue
an unlawful objective; (2) the defendant’s knowledge of the unlawful objective
and voluntary agreement to join the conspiracy; and (3) an overt act by one or
more of the members of the conspiracy in furtherance of the objective of the
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conspiracy.” United States v. Njoku, 737 F.3d 55, 63-64 (5th Cir. 2013). Here,
the relevant statute tied to the conspiracy charge is the Anti-Kickback Statute,
which provides: “[W]hoever knowingly and willfully offers or pays any
remuneration (including any kickback, bribe, or rebate) directly or indirectly,
overtly or covertly, in cash or in kind to any person to induce such person . . .
to refer an individual to a person for the furnishing or arranging for the
furnishing of any item or service for which payment may be made in whole or
in part under a Federal health care program . . . shall be guilty of a felony.” 42
U.S.C. § 1320a-7b(b)(2)(A). Nowlin likewise argues that there was insufficient
evidence to establish that she had the requisite knowledge or intent to commit
the offense.
Contrary to Nowlin’s contention, the evidence adduced at trial
overwhelmingly supported a finding that she knowingly and willfully
conspired to violate the Anti-Kickback Statute. Testimony at trial made clear
that Medicare and Medicaid regulations proscribe the payment of commissions
for beneficiary referrals, and Nowlin personally signed the Yellabone
enrollment applications agreeing to comply with all relevant regulations.
Nevertheless, the evidence showed that Nowlin entered into an agreement
with various individuals whereby Yellabone would make “commission”
payments in exchange for their referring clients to Yellabone. For example,
Victoria Johnson testified that she solicited beneficiaries for Yellabone—
sometimes by herself and other times with Nowlin. At trial, Johnson identified
one of her commission files from Yellabone. She explained that she was paid
her commissions on a monthly basis. Between 2003 and 2009, she received
approximately four to six thousand dollars in checks from Yellabone and
approximately five to seven thousand dollars in cash as commissions for
referring Medicare/Medicaid beneficiaries to Yellabone. These payments
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occurred either at Nowlin’s home or at Yellabone’s office. Although Johnson
briefly worked at Yellabone as an employee in 2003, she later quit this job and
thereafter only worked “in the field” soliciting beneficiaries for Yellabone.
Yellabone did not withhold taxes from her commission checks, nor did she ever
keep an office at Yellabone or sign a sales contract. Similarly, the evidence at
trial showed that Yellabone also paid commissions to Frank Bosquez, a life
insurance salesman, based upon the number of clients he referred to the
company. The trial testimony of Turner, Benford, Parnell, and Johnson
corroborated that Bosquez received commissions for referrals and did not work
in the office. At trial, Parnell also identified the referral commission file for
Bosquez. In light of this evidence, we conclude that there was sufficient
evidence that Nowlin knowingly and willfully conspired to violate the Anti-
Kickback Statute.
III.
Nowlin also argues that the district court erred in refusing to provide a
“safe-harbor” jury instruction in relation to the count for conspiracy to violate
the Anti-Kickback Statute. This argument is likewise without merit.
As explained above, the Anti-Kickback Statute, 42 U.S.C. § 1320a-
7b(b)(2), criminalizes the payment of any funds or benefits designed to
encourage an individual to refer another party to a Medicare or Medicaid
provider such as Yellabone. See United States v. Robinson, 505 F. App’x 385,
387 (5th Cir. 2013). However, the statute contains a “safe-harbor provision,”
under which “the statute’s criminal prohibition does not apply to ‘any amount
paid by an employer to an employee (who has a bona fide employment
relationship with such employer) for employment in the provision of covered
items or services.’” Id. (quoting § 1320a-7b(b)(3)(B)). As we explained in
Robinson, relevant factors in determining whether an individual qualifies as
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an “employee” under the safe-harbor provision include “the method of
payment, whether the work is part of the regular business of the hiring party,
and the hiring party’s control over work hours.” 505 F. App’x at 387 (internal
quotation marks and citation omitted).
Nowlin’s proposed jury instructions included a “safe-harbor” instruction.
However, at the jury charge conference, both the Government and Nowlin’s
counsel agreed that no evidence showed that either Johnson or Bosquez had
signed blank employment agreements found in Yellabone files. In addition,
the district court agreed with the Government that there was no evidence
Yellabone had ever withheld income taxes from Johnson or Bosquez’s
commission payments. The district court thus denied Nowlin’s request for a
safe-harbor instruction. In so doing, the district court emphasized, inter alia,
that Johnson and Bosquez “had discretion over when and how long to work,”
their payment was on “a commission basis,” their work was certainly not
regular, the work was not subject to any employment agreement, “there were
no benefits provided, and they were not treated as employees for federal income
tax purposes.”
In her briefing on appeal, Nowlin confusingly contends that the district
court should have sua sponte provided a safe-harbor instruction because
Parnell—as opposed to either Johnson or Bosquez—was a bona fide employee
of Yellabone. Because Nowlin never argued before the district court that the
safe-harbor instruction should be provided in light of Parnell’s status as a bona
fide employee, our review is for plain error. See United States v. Job, 387 F.
App’x 445, 454 (5th Cir. 2010) (observing that “plain error” review applied to
defendant’s argument that “the district court erred by failing sua sponte to give
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a jury instruction on Medicare’s safe-harbor provision,” because the claim was
raised for the first time on appeal).
The indictment did not allege that Parnell herself was the recipient of
illegal kickbacks. To the contrary, the indictment focused exclusively on the
illegal payments made to Johnson and Bosquez in furtherance of the
conspiracy between Nowlin and Parnell. Thus, because the indictment did not
allege that Parnell was the recipient of any illegal remuneration, no plain error
exists in the district court’s failure to sua sponte provide a safe-harbor
instruction in light of Parnell’s employment status. See id. at 455-56. 3
IV.
Nowlin also argues that the district court erred in denying her motion to
dismiss the indictment on the ground of multiplicity. She contends that count
one, which charged conspiracy to commit health care fraud, and count six,
which charged conspiracy to violate the Anti-Kickback Statute, are
multiplicitous. We review Nowlin’s argument de novo. See United States v.
Jones, 733 F.3d 574, 584 (5th Cir. 2013).
“Multiplicity is the charging of a single offense in several counts. The
chief danger raised by a multiplicitous indictment is the possibility that the
defendant will receive more than one sentence for a single offense.” Id.
(internal quotation marks and citation omitted). In assessing whether
multiplicity exists, this court considers “whether each offense requires proof of
3In her brief, Nowlin also conclusorily argues that the district court erred in denying
her requested jury instructions as to good faith, violation of a regulation not being a violation
of a criminal law, and a witness having a criminal history. However, at oral argument,
Nowlin’s counsel abandoned these issues and we therefore do not address them.
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an element that the other does not.” Njoku, 737 F.3d at 67 (internal quotation
marks and citation omitted).
This court has, at least, twice rejected the argument presented by Nowlin
that multiplicity occurs when the Government charges a defendant with both
conspiracy to commit health care fraud under 18 U.S.C. § 1349 and conspiracy
to violate the Anti-Kickback Statute under 18 U.S.C. § 371. See Njoku, 737
F.3d at 67; Jones, 733 F.3d at 584. As we explained in Njoku:
The two convictions involve two conspiracies, one under 18 U.S.C.
§ 1349 and the other under 18 U.S.C. § 371. One statute requires
that the government prove an additional fact that the other does
not. Section 1349 requires proof of a conspiracy to commit an
offense of fraud and that such fraud is the object of the conspiracy.
Section 371 prohibits two or more persons from conspiring to
commit any offense against the United States. Further, Section
371 requires proof of an overt act, which Section 1349 does not.
737 F.3d at 67. Nowlin has presented no persuasive argument as to why Njoku
and Jones do not foreclose her multiplicity arguments. Accordingly, we find no
error in the district court’s refusal to dismiss the indictment. For the same
reason, we reject Nowlin’s related argument that the district court erred in
refusing to instruct the jury on multiplicitious conspiracies.
V.
Nowlin also argues that the district court erred in using the term
“kickbacks” in its jury instruction related to count six. “We review a properly
preserved challenge to a jury instruction for abuse of discretion and consider
whether the instruction, taken as a whole, is a correct statement of the law and
whether it clearly instructs jurors as to the principles of law applicable to the
factual issues confronting them.” United States v. Montgomery, 747 F.3d 303,
308 (5th Cir. 2014) (internal quotation marks and citation omitted). “But even
if the jury instruction was erroneous, we will not reverse if, in light of the entire
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record, the challenged instruction could not have affected the outcome of the
case.” Id. (internal quotation marks and citation omitted).
In its instructions to the jury, the district court explained that count six
charged Nowlin with “conspiring to: knowingly and willfully offer or pay
remuneration (including any kickback) directly or indirectly, overtly or
covertly, in cash or in kind to induce the referral of an individual to a person
for furnishing or arranging for the furnishing of any item or service for which
payment may be made in whole or in part under the Medicare and Medicaid
programs in violation of Title 42, U.S.C. § 1320a-7b(b)(2)(A); that is, to pay for
Medicare and Medicaid patients.” In so doing, the district court largely tracked
the language of the statute itself. See 42 U.S.C. § 1320a-7b(b)(2)(A) (“whoever
knowingly and willfully solicits or receives any remuneration (including any
kickback, bribe, or rebate) directly or indirectly, overtly or covertly, in cash or
in kind . . . in return for referring an individual to a person for the furnishing
or arranging for the furnishing of any item or service for which payment may
be made in whole or in part under a Federal health care program . . . shall be
guilty of a felony . . . .”). We perceive no error in the district court’s instruction
and therefore reject Nowlin’s argument.
VI.
Nowlin also argues that a prosecutor committed reversible error by
improperly commenting on her failure to testify in violation of the Fifth
Amendment.
On the second day of trial, the Government called Daniel Castillo, who
had previously worked as a Medicaid fraud investigator on the Yellabone
investigation. During cross examination, defense counsel began to question
Castillo about a 2006 report, which was prepared by another agent and which
included details of a prior interview with Nowlin. Specifically, defense counsel
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questioned Castillo regarding certain information contained in the report
related to Nowlin’s answers about her educational and employment history. In
response, the prosecutor made the following objection which is the focal point
of Nowlin’s Fifth Amendment argument on appeal:
Objection, Your Honor. My first objection would be to hearsay, in
that the defense counsel is trying to get in statements of the
defendant without presenting her as a witness through this report
that Investigator Castillo never read—or, excuse me, read, but
didn’t write. And, also, it’s not a direct statement of the defendant.
Defense counsel immediately rephrased the question before the district court
could rule upon the objection. Defense counsel then resumed questioning
Castillo about Nowlin’s responses in the 2006 report. The prosecutor again
objected as follows: “Your Honor, I renew my objection to the hearsay
statements.” The district court overruled the objection and instructed defense
counsel “to move on to something else.”
On the following day of trial, prior to the jury entering the courtroom,
defense counsel moved for a mistrial based on the prosecutor’s objection the
day prior. Specifically, the following exchange occurred:
Defense Counsel: In regard to the prosecutor’s objection yesterday,
that I was attempting to put on my client’s testimony through the
agent when she may not testify, that was an inadmissible
statement by the prosecutor, in that it stepped on my client’s Sixth
Amendment right to remain silent and we, therefore, object to that
and move for a mistrial.
The Court: All right. The motion for mistrial is denied. But I
wouldn’t go into that anymore.
Government: Certainly. Your Honor, can I bring up one other
issue? I mean, we’ve had this issue repeatedly with [defense
counsel] trying to get in statements of his client through various
witnesses. You know, it’s not a statement of a party opponent as
to his client and so we keep making that objection as to hearsay
and it just keeps going on and on and on. And I don’t know if you
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want us to keep making a hearsay objection or if we could maybe
get a ruling or an admonishment not to do that anymore.
The Court: Well, part of it—you can make your objection
individually, and I will rule on each instance. Some of it may be
admissible, some of it maybe not. I can’t make a blanket ruling
until I understand the context in which the offer occur.
Government: All right.
The Court: The motion for mistrial is denied.
Defense counsel: And in that regard, Your Honor, while we think
the hen is out of the henhouse and it’s reversible error, we still
request the Court to again instruct the jury that my client has the
right to remain silent all the way through trial and it’s not to be
taken against her.
The Court: I’ve instructed them two or three times already and I’ll
instruct them at the end. If I mention it right now, it won’t serve
any additional purpose that I can think of.
On appeal, Nowlin contends that the district court erred in denying her motion
for a mistrial based on the prosecutor’s comments.
“The Fifth Amendment prohibits a prosecutor from commenting directly
or indirectly on a defendant’s failure to testify in a criminal case.” United
States v. Montoya-Ortiz, 7 F.3d 1171, 1178 (5th Cir. 1993) (internal quotation
marks and citation omitted). “The test for determining if a constitutional
violation has occurred is whether the language used was manifestly intended
or was of such character that the jury would naturally and necessarily take it
to be a comment on the failure of the accused to testify.” United States v.
Rocha, 916 F.2d 219, 232 (5th Cir. 1990) (internal quotation marks and citation
omitted). “The prosecutor’s intent is not manifest if there is some other,
equally plausible explanation for the remark. Both inquiries are properly
conducted by reviewing the challenged remarks in context.” United States v.
Bohuchot, 625 F.3d 892, 901 (5th Cir. 2010). Further, because Nowlin failed
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to timely object to the prosecutor’s remarks by waiting until the following day
to move for a mistrial, we review her claim for plain error. Id. at 900.
Applying this framework, Nowlin has failed to establish that the
prosecutor’s comments violated her Fifth Amendment rights. Indeed, viewed
“[i]n the context of the case,” the prosecutor’s statements were clearly intended
to articulate a hearsay objection to defense counsel’s repeated questioning
about Nowlin’s statements in the 2006 report. United States v. Grosz, 76 F.3d
1318, 1326 (5th Cir. 1996). In light of this “equally plausible explanation,” the
prosecutor’s remarks did not constitute “constitutionally impermissible
comments on [Nowlin’s] decision not to testify.” Id. Further, even assuming
arguendo the prosecutor’s comments were improper, Nowlin cannot show that
any error affected her substantial rights in light of the district court’s repeated
instruction to the jury that she had the right not to testify. See Bohuchot, 625
F.3d at 901 (finding prosecutor’s comments could not have affected defendant’s
substantial rights where the “district court cautioned the jury through
instructions that ‘no inference or conclusion may be drawn from a defendant’s
decision not to testify’”).
VII.
Nowlin claims that the district court erred in applying various
sentencing enhancements. “[W]e review the district court’s factual findings for
clear error and its interpretation of the Guidelines de novo.” Njoku, 737 F.3d
at 75.
A. Number of Victims
The district court enhanced Nowlin’s offense level by six points pursuant
to U.S.S.G. § 2B1.1(b)(2)(C) because the offense involved 250 or more victims.
According to Nowlin, the district court erred because the number of victims “is
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either one (1), the United States Government, or no more than three (3),
Medicare, Medicaid, and Social Security.”
Under the Guidelines, a “victim” includes “any individual whose means
of identification was used unlawfully or without authority.” See U.S.S.G. §
2B1.1 cmt. n.4(E); United States v. Cardenas, 598 F. App’x 264, 267 (5th Cir.
2015). “‘Means of identification’ are names and numbers such as social security
numbers or dates of birth that are used to identify individuals.” United States
v. Onenese, 542 F. App’x 427, 429 n.6 (5th Cir. 2013).
In this case, the evidence at trial showed that Yellabone filed numerous
false claims with Medicare and Medicaid that included beneficiaries’ names,
dates of birth, and health insurance claim numbers (which generally
corresponds to the beneficiary’s Social Security Number). At trial, the
Government introduced evidence through HHS Special Agent Christine
Finnegan that identified more than 250 beneficiaries whose information was
used by Yellabone to file false claims. In light of this evidence, we conclude
that the district court did not err in applying the six-level enhancement. See
id. at 429-30.
B. Aggravating Role
The district court also applied a four-level aggravating role enhancement
pursuant to U.S.S.G. § 3B1.1(a), which applies “[i]f the defendant was an
organizer or leader of a criminal activity that involved five or more participants
or was otherwise extensive.”
On appeal, Nowlin contends that the district court erred in applying this
enhancement because there were less than five persons involved in the
criminal activity and there was no evidence that any other Yellabone
employees, besides Parnell, did anything criminal. However, contrary to
Nowlin’s argument, the enhancement can apply even if the criminal activity
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involved less than five participants, so long as the defendant was an organizer
or leader of a criminal activity that “was otherwise extensive.” U.S.S.G.
§ 3B1.1(a). “In assessing whether an organization is ‘otherwise extensive,’ all
persons involved during the course of the entire offense are to be considered.
Thus, a fraud that involved only three participants but used the unknowing
services of many outsiders could be considered extensive.” U.S.S.G. § 3B1.1(a)
cmt. n.3.
Contrary to Nowlin’s arguments, overwhelming evidence showed that
Nowlin exercised a leadership role at Yellabone as the exclusive owner of the
company. Further, Parnell testified, inter alia, that Nowlin instructed her to
bill for supplies that were never delivered and to forge delivery documents. In
addition to Parnell’s testimony showing that Nowlin closely monitored all
aspects of the business, both Benford and Turner testified that Nowlin
carefully oversaw the business by, for example, calling the office numerous
times per day. Moreover, Turner described Parnell as Nowlin’s “flunky,” who
did “[w]hatever Yolanda told her to do.” In sum, given the substantial evidence
showing that Nowlin was a “leader” or “organizer” and that the criminal
activity was “otherwise extensive,” the district court did not err in applying the
enhancement. See Njoku, 737 F.3d at 77.
C. Abuse of a Position of Trust
Nowlin also argues that the district court erred in applying a two-level
enhancement for abusing a position of trust pursuant to U.S.S.G. § 3B1.3.
Specifically, she argues that her position does not fall within the enhancement
because it does not qualify as a position of “public or private trust” as
contemplated by the Guidelines. See U.S.S.G. § 3B1.3.
Section 3B1.3 permits a two-level enhancement “[i]f the defendant
abused a position of public or private trust, or used a special skill, in a manner
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that significantly facilitated the commission or concealment of the offense.”
Contrary to Nowlin’s argument, this Guideline explicitly provides that “it may
be employed in addition to an adjustment [for aggravating role]” so long as the
enhancement is based on an abuse of trust rather than use of a special skill.
Id.
This court has previously rejected arguments similar to Nowlin’s and
held that the owner of a DME company occupies a position of trust within the
meaning of § 3B1.3. See United States v. Miller, 607 F.3d 144, 148-50 (5th Cir.
2010). We likewise conclude that the district court did not err in applying that
enhancement in Nowlin’s case. 4
VIII.
For these reasons, we AFFIRM Nowlin’s convictions and sentence.
4In her brief, Nowlin also argued that the district court erred in applying an
obstruction of justice enhancement. However, at oral argument, Nowlin’s counsel expressly
conceded that this argument was without merit because the district court actually refused to
apply an obstruction of justice enhancement.
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