United States v. Wanda Shorter , 874 F.3d 969 ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-2053
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WANDA SHORTER,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:14-cr-32 — Jon E. DeGuilio, Judge.
____________________
ARGUED FEBRUARY 8, 2017 — DECIDED NOVEMBER 1, 2017
____________________
Before WOOD, Chief Judge, FLAUM, Circuit Judge, and
CONLEY, District Judge. ∗
CONLEY, District Judge. In 2014, following investigations by
the Indiana Attorney General and FBI, a grand jury issued a
four-count indictment for Medicaid fraud against defendants
Wanda Shorter and her company, Empowerment Non-Emer-
gency Medical Transport, Inc. (“Empowerment”). Specifically,
∗ Of the Western District of Wisconsin, sitting by designation.
2 No. 16-2053
Shorter and Empowerment were charged with one count of
health care fraud in violation of 18 U.S.C. § 1347, and three
counts of misusing a means of identification in violation of 18
U.S.C. § 1028A. After a petit jury found her guilty on all four
counts, Shorter filed this direct appeal, challenging the indict-
ment, the admission of certain evidence at trial and the suffi-
ciency of the evidence as a whole. For the reasons that follow,
we affirm.
I. Procedural History
A. Background
In early 2011, Shorter, already a licensed nurse, formed
Empowerment to provide transportation services to Medicaid
clients. She was its sole shareholder. Following a single train-
ing session on Indiana Medicaid’s billing protocols in April
2011, Shorter began submitting invoices for Empowerment’s
services.
Indiana Medicaid provides reimbursements for health re-
lated transportation services to eligible patients. The provider
of those services agrees to follow Medicaid’s billing policies
and to seek reimbursement for only medically necessary and
truly rendered services. To ensure compliance, transportation
providers must maintain trip tickets that include the recipi-
ent’s name and identification number, date of transport, type
of services rendered, whether it was one-way or round trip,
and the mileage driven.
No. 16-2053 3
Each type of service is assigned a Medicaid code used for
reimbursement. 1 The service provider submits the applicable
codes to Medicaid, which reimburses according to set rates
specific to the type of service provided. For instance, Medi-
caid reimburses twice as much if the patient is wheelchair-
bound, and it provides additional reimbursement when an at-
tendant rides along or when rides are more than 20 but fewer
than 100 miles round-trip. Along with a few other individuals
working under Shorter’s direction, she continued to bill and
receive Medicaid reimbursements using these codes until
early 2014.
B. Indictment
On March 12, 2014, the grand jury named Shorter and Em-
powerment as defendants in a four-count indictment. Count
1 alleges that between 2011 and 2014, Shorter and Empower-
ment knowingly engaged in a scheme to defraud Indiana
Medicaid in violation of § 1347 by requesting payment for ser-
vices and transportation never actually provided, or if pro-
vided, for higher payments than justified by actual services
1
The codes relevant to the convictions here are:
• A0130: “nonambulatory” patient who must be transported
in a wheelchair;
• T 2003: “ambulatory” patient who does not need to ride in a
wheelchair;
• A0130 TK: attendant or parent who travels with a nonambu-
latory patient;
• A0130 TT: nonambulatory patient the provider picks up when
a Medicaid client is already in vehicle;
• A0425 U5: transport of a nonambulatory patient for more
than 20, but less than 100, miles round-trip.
4 No. 16-2053
and transportation provided. Counts 2 through 4 of the indict-
ment charged the defendants with violating § 1028A by
knowingly using “without lawful authority a means of iden-
tification of another person during and in relation to health
care fraud … and wire fraud.” In Count 2, defendants were
charged with fraudulently using the identification of “C.C.
(different person from Counts 3-4)” in August 2012, while
Counts 3 and 4 charged them with fraudulently using the
identification of “C.C.” in June and August 2013, respectively.
At no time before trial, did Shorter challenge the sufficiency
of the indictment.
C. Evidence at Jury Trial
To prove the allegations in Count 1, the government sub-
mitted evidence of: (1) Shorter’s personal involvement in Em-
powerment’s billing practices; (2) the results of a September
2013 Indiana Attorney General Investigation into Empower-
ment’s billing practices; (3) an October 2013 FBI search of Em-
powerment’s records; and (4) the experiences of Empower-
ment employees and of clients who used its services. As for
Shorter’s personal involvement, an FBI agent testified that
Shorter confirmed during an interview her ownership of Em-
powerment, as well as her training and comfort with Medi-
caid billing. Shorter also told the agent that her aunt, Annette
Gates, did some of Empowerment’s Medicaid reimbursement
requests between April 2012 and October 2013. Moreover,
there was substantial evidence that Shorter personally trained
Aunt Annette and a cousin, Lakesha Gates, on how to prepare
Medicaid bills.
No. 16-2053 5
Specifically, both Annette and Lakesha testified that: (1)
they submitted bills for Medicaid reimbursement in accord-
ance with Shorter’s instructions; (2) they had no knowledge
about the Indiana Medicaid billing process before beginning
work for Empowerment; and (3) they received no formal
training beyond Shorter’s instructions. They both further tes-
tified that Shorter taught them to use the same four codes for
every trip: transport of a non-ambulatory patient, when an-
other client is already in the vehicle, with an attendant and
more than 20 miles round-trip.
Multiple agents involved in the Indiana Attorney Gen-
eral’s September 2013 investigation also testified to arranging
for transportation services with Empowerment using fake
names but real Medicaid identification numbers. Each agent
arranged for and took one-way trips without use of a wheel-
chair or presence of an attendant. Nevertheless, Empower-
ment billed each of these transports as round-trip for a wheel-
chair-bound client with an attendant. Similarly, there was tes-
timony that trips of 3.4 miles and 4.2 miles were billed by Em-
powerment for 77 miles and 40 miles, respectively. An agent
further testified that despite cancelling a trip, Empowerment
later billed for the 40-mile transport of a wheelchair-bound
client with an attendant. Finally, the agents testified that Em-
powerment submitted bills for their transport in June, July,
and August 2013, well before they began requesting transpor-
tation.
As further proof of Count 1, twelve former clients and
three former drivers testified about their actual experiences
with Empowerment. This testimony was also inconsistent
with Empowerment’s actual billings for those same transports
as reflected in government summary exhibits. Among other
6 No. 16-2053
things, these exhibits showed that Empowerment coded
transports to claim a wheelchair-bound patient, round-trips,
and attendant trips, while only one client, Chitika Cox, testi-
fied that she used a wheelchair, and then only for one week at
the end of 2013. Clients further testified that their trips with
Empowerment were often one-way, not round-trips as coded,
and only two of the twelve clients testified to using an at-
tendant. 2 This client testimony was confirmed by former Em-
powerment drivers. For example, one former driver testified
that in two months driving for Empowerment, she had three
to five wheelchair patients and one patient who needed an at-
tendant. A second driver testified that between five and ten
percent of her riders needed an attendant, while a third driver
testified that attendants were not frequently present during
trips. Yet for each trip, defendants submitted reimbursement
requests seeking compensation for these additional services.
To prove Counts 2-4, the government submitted addi-
tional testimony and documentary evidence with respect to
the “C.C.” references in the indictment, including that “C.C.”
stood for Cassamdra Cook in Count 2, and for Chitika Cox in
Counts 3 and 4. Without objection, the government also sub-
mitted Exhibits 18 and 20, which included Empowerment’s
trip tickets from Cook and Cox trips, respectively, as well as
2
In addition, clients testified about the poor quality of their transports
by Empowerment, including that their rides were often late or never
showed up, and that Empowerment’s vans were shoddy and sometimes
broke down. Drivers similarly testified that the vans were in poor condi-
tion. This was consistent with driver testimony that they rarely had con-
tact with Shorter; and their payroll check bounced at times. Shorter admit-
ted that she never reconciled the billings and that she used the Medicaid
reimbursement money to buy a new house and car.
No. 16-2053 7
Exhibits 35 and 40, which were summary charts, respectively
entitled “Empowerments Billings for Chitika Cox” and “Em-
powerment’s Billings for Casamdra[sic] Cook.”
At trial, Chitika Cox acknowledged using Empowerment
to transport her to dialysis appointments three times a week,
but testified that except for one week at the end of 2013, she
never used a wheelchair, and she never traveled with an at-
tendant. For five of her scheduled trips during the period that
Empowerment billed Indiana Medicaid for this transport,
Cox cancelled altogether, and Empowerment did not drive
her to dialysis. Specifically, Empowerment’s May 6, 17, 22, and
June 10 and 19, 2013, trip tickets showed that Cox cancelled,
and her medical records confirm that she did not appear for
her medical appointment on those dates. However, the gov-
ernment submitted evidence that Empowerment billed each
of those dates as round-trip, wheelchair trips with an at-
tendant. Similarly, the trip tickets from May 1, 10, 29 and June
5, 2013, show that Cox either did not appear or did not list any
mileage, but Empowerment billed those trips as round-trip,
wheelchair transports as well.
In addition, Cook testified that she used Empowerment on
a regular basis for transport to a standing appointment on
Tuesdays at 5 p.m., but that she did not use a wheelchair. Be-
cause her mother would always pick her up, Cook also testi-
fied that these Tuesday trips were always one-way. Neverthe-
less, Empowerment billed two of these appointments as
wheelchair trips on the wrong dates, with Cook as both a pri-
mary and secondary passenger.
For her part, defendant Shorter did not attempt to defend
Empowerment’s billing practices. Instead, she opted to take
the stand in an attempt to divorce herself from her company’s
8 No. 16-2053
billing failures by emphasizing that she created Empower-
ment to offer services to the very type of people that she orig-
inally became a nurse to serve, while admitting that she did
not keep good records, which lead to the billing errors here.
In particular, Shorter denied ever “willfully and intentionally
and fraudulently, knowingly and purposely” billing for
things to which she was not entitled.
D. Charge to Jury
At the close of the government’s case, Shorter moved for
acquittal under Federal Rule of Criminal Procedure 29. In do-
ing so, Shorter’s counsel did not challenge the language of the
indictment. In fact, he conceded that the government “identi-
fied Chitika Cox and Cassamdra Cook as the ‘CC’ individuals
involved in the indictment,” and that there was evidence Em-
powerment submitted bills without their authorization, but
argued that no evidence tied Shorter to those billings, nor was
there evidence of her intent to defraud Indiana Medicaid. The
court denied Shorter’s Rule 29 motion as to all of the counts,
concluding that there was “ample evidence of fraudulent bill-
ing” and sufficient evidence with respect to the identity theft
counts. At the close of the evidence, Shorter renewed her Rule
29 motion, which was denied for the same reasons.
The court then instructed the jury on the law, including the
following instruction as Shorter had proposed: “A person who
acts on behalf of a corporation also is personally responsible
for what she does or causes someone else to do. However, a
person is not responsible for the conduct of others performed
on behalf of a corporation merely because that person is an
officer, employee, or other agent of a corporation.” Obviously
agreeing with the government’s view of the evidence, the jury
No. 16-2053 9
returned a guilty verdict on all counts, and the district court
sentenced Shorter to 75 months of imprisonment.
II. Discussion
As to all counts of conviction, the defendant challenges the
district court’s admission of certain evidence as irrelevant or
unduly prejudicial under Federal Rules of Evidence 401 or
403. Specifically, defendant challenges the admission of evi-
dence that: (1) Empowerment’s checks sometimes bounced;
(2) Empowerment’s vehicles and equipment were in disrepair;
(3) Empowerment was late or absent for pickups; (4) defend-
ant paid for a cruise for herself and her family; and (5) defend-
ant bought a car and new house. Defendant argues this evi-
dence was clearly irrelevant, highly prejudicial and only in-
troduced to taint the jury’s view of Shorter. As defendant
failed to object to any of this evidence, we review for plain
error and see none. See United States v. Haldar, 751 F.3d 450,
456 (7th Cir. 2014) (citing United States v. Alexander, 741 F.3d
866, 870 & n.1 (7th Cir. 2014) (the defendant having failed to
object at trial, we review for “plain error,” meaning an error
“so obvious and prejudicial that the district judge should have
intervened without being prompted.”).
Certainly this evidence presents the possibility of preju-
dice, but each was relevant to the government’s rebuttal of
Shorter’s defense that she created Empowerment for altruistic
reasons and billed incorrectly due to mere negligence. Ac-
cordingly, we see no error in the district judge’s failure to sua
sponte exclude these questions. See United States v. Whiting, 471
F.3d 792, 801 (7th Cir. 2006) (no abuse of discretion in admit-
ting evidence of defendant’s “management fees, expense re-
imbursements, and personal expenditures” to prove specific
intent to defraud).
10 No. 16-2053
Defendant’s challenges to Counts 2, 3, and 4 of the indict-
ment face a similar uphill battle, having failed to raise any ob-
jection before the district court as to a defect in the indictment
as required. See FED. R. CRIM. P. 12(b)(3) (if “reasonably avail-
able” and resolvable without a trial on the merits, a defendant
must challenge a defect in an indictment by motion); FED. R.
CRIM. P. 12(c)(3) (if a defendant fails to file such a pretrial mo-
tion, he or she must show “good cause” for raising this argu-
ment for the first time on appeal). Since defendant makes no
claim that her challenges on appeal were unavailable in the
district court, nor that she had good cause for not raising them
until on appeal, her challenge to the indictment fails on that
ground alone. See United States v. Acox, 595 F.3d 729, 730-32
(7th Cir. 2010) (failure to meet good cause standard is a suffi-
cient ground to reject new argument on appeal); United States
v. Johnson, 415 F.3d 728, 730-31 (7th Cir. 2005) (same).
Even if the good cause standard were satisfied, however,
the defendant has not demonstrated that Counts 2 through 4
as charged in the indictment were so “obviously defective as
not to charge the offense by any reasonable construction.”
United States v. Cox, 536 F.3d 723, 726 (7th Cir. 2008) (quoting
United States v. Sandoval, 347 F.3d 627, 633 (7th Cir. 2003)). Spe-
cifically, defendant argues for the first time on appeal that: (1)
Counts 2-4 failed to include “essential facts constituting the
offense charged” as required by Federal Rule of Criminal Pro-
cedure 7(c); and (2) the indictment provided her with inade-
quate notice and subjected her to duplicitous counts of con-
viction. As explained more fully below, the record contradicts
both assertions. Moreover, the defendant has not shown that
the phrasing of the indictment actually prejudiced the out-
come of the trial. See United States v. Vaughn, 722 F.3d 918, 925
No. 16-2053 11
(7th Cir. 2013) (indictment is subject to dismissal if the re-
quirements of Rule 7(c) are not satisfied and the defendant
suffered prejudice).
As for notice, the defendant would now take issue with
the government’s repeated use of “C.C.” to identify two, dif-
ferent individuals in Counts 2, 3, and 4, both of whose identi-
ties Shorter is charged with taking to commit Medicaid fraud.
Defendant further argues that the government exacerbated
this error by failing to separately identify the two individuals
identified as C.C. by name in its opening statement. Finally,
defendant notes that summary Trial Exhibits 35 and 40, which
did contain the individuals’ actual names, were never men-
tioned during trial, meaning the indictment fails because de-
fendant will be unable to plead double jeopardy in future
prosecutions regarding her company’s use of either C.C. dur-
ing this same period of time.
As an initial matter, the indictment’s failure to include
Cook’s and Cox’s names does not by itself warrant reversal,
even if the objection had been timely made. To the contrary,
the record shows that the defendant here knew the identities
of both C.C.s by the time of trial. Regardless, defendant made
no effort to show that she would have received a more favor-
able outcome as to any of the three counts at issue had the
charges been more explicit in this regard. United States v.
Smith, 230 F.3d 300, 306 (7th Cir. 2000) (failure to identify a
person in the indictment is insufficient to warrant reversal
“especially when no prejudice is alleged”).
With regard to the indictment not specifically identifying
Cook and Cox by name, defendant and her counsel knew the
actual identity of each C.C. by trial, at the latest. To the extent
there was any remaining confusion as to which C.C. was
12 No. 16-2053
which, the trial evidence certainly cleared that up. In particu-
lar, the testimony and exhibits relating to Empowerment’s
billings show that Cook corresponds with the C.C. in Count 2
(involving only August 2012 billings), as Empowerment sub-
mitted no bills for Cook in June or August of 2013. Likewise,
Empowerment’s billings for Cox correspond to the C.C. in
Counts 3 and 4 (involving June and August 2013 billings),
since Empowerment did not even begin billing using Cox’s
information until June of 2013. Indeed, at the close of the gov-
ernment’s evidence, defendant’s counsel acknowledged Cook
and Cox were the people described in the indictment and that
there was evidence of unauthorized use of their identities. 3
Even assuming defendant and her counsel were somehow
unaware of the identities of each C.C., she cannot show prej-
udice because her defense at trial was not specific to separate
or distinct billings; instead, defendant claimed that she was
not responsible for any of the billings errors because she had
no intent to defraud. Given this, it is unclear at best, how
things would have been different had the indictment explic-
itly charged a specific, single misuse of the C.C. identity in
each count charged. Regardless, we see no potential for prej-
udice.
3
For this reason, appellant’s citation to United States v. Stringer, 730
F.3d 120 (2d Cir. 2013), only hurts her argument here. In Stringer, the court
rejected the defendant’s complaint that the indictment should be dis-
missed because it did not identify the name of the persons whose identi-
ties had been misused, in part because the defendant had actually known
the victim’s names before trial. Id. at 124. The same is true here: the trial
record shows that Shorter knew that Cook and Cox were the C.C.’s re-
ferred to in Counts 2-4 both before and certainly during the trial itself.
No. 16-2053 13
As for defendant’s challenge to Counts 2-4 being duplic-
itous, our review is under a plain error standard. An indict-
ment is deemed “duplicitous” when it “charges two or more
distinct offenses within a single count.” United States v. Has-
sebrock, 663 F.3d 906, 916 (7th Cir. 2011); United States v. Davis,
471 F.3d 783, 790 (7th Cir. 2006). In Counts 2-4, the defendant
here is charged with “knowingly transfer[ing], possess[ing],
or us[ing], without lawful authority, a means of identification
of another person” in furtherance of health care fraud in vio-
lation of 18 U.S.C. § 1028A. Given the evidence at trial showed
that Empowerment submitted multiple billings using Cox’s
and Cook’s identities during the relevant time period for each
Count, defendant argues those counts are duplicitous. The
defendant points in particular to Trial Exhibits 35 and 40,
which contain multiple examples of fraudulent billings for
each of the time frames described in Counts 2-4.
The defendant raises an interesting question of law, alt-
hough it is not yet one addressed by this court. See, e.g., United
States v. Resnick, 823 F.3d 888, 897 (7th Cir. 2016) (citing United
States v. Olano, 507 U.S. 725, 732 (1993), for the proposition that
an error is not plain “unless [it] is clear under current law”).
In particular, this court has not squarely decided whether
each charge brought under § 1028A may be satisfied by more
than one misuse of another’s identity. The defendant cites
United States v. Soto, 799 F.3d 68, 87-88 (1st Cir. 2015), in which
the court held that “each use constitutes its own violation of §
1028A,” but that decision does not plainly answer the ques-
tion before this court. Indeed, in Soto, the First Circuit cited to
a decision from this court, United States v. Cejas, 761 F.3d 717,
731 (7th Cir. 2014), in support of its holding, but Cejas actually
rejected a double jeopardy challenge to two violations of 18
U.S.C. § 924(c), after finding the two violations involved “two
14 No. 16-2053
drug offenses based on separate and distinct conduct.” 761
F.3d at 731. While the Cejas and Soto decisions may provide
support for defendant’s position, they certainly do not ex-
pressly address the proper unit of prosecution for § 1028A in
this circuit. Given that this issue is before us on plain error
review, therefore, any arguable error is certainly not plain.
Even assuming plain error, defendant has not shown ac-
tual prejudice. Duplicitous charges may prejudice a defend-
ant in four ways: “the defendant may not understand the
charges against [her], might be convicted by less than a unan-
imous jury, may be prejudiced by evidentiary rulings at trial,
or may be subjected to double jeopardy.” Davis, 471 F.3d at
790. Defendant argues that she has been prejudiced in three
of those four ways, but none of those ways has any traction
on this record. First, defendant argues that the indictment did
not properly inform her of the nature of the charges, because
it grouped together the Cook and Cox billings from August
2012, June 2013 and August 2013. However, the prejudice in-
quiry concerns whether the defendant was able to prepare a
defense at trial. See United States v. Kimberlin, 781 F.2d 1247,
1250 (7th Cir. 1985). As explained above, the trial record does
not suggest that appellant was confused about the charges. As
mentioned already, defendant’s theory at trial was not to dis-
pute the inaccuracy of any individual billings. Instead, de-
fendant generally challenged her culpability for any and all
errors based on her lack of intent. Perhaps most significantly,
defendant makes no showing that her defense would have
changed if the indictment were more precise or limiting in its
description of the specific false billings at issue with respect
to Counts 2-4.
No. 16-2053 15
Second, the defendant argues even less persuasively that
the indictment’s broad language might prevent her from as-
serting a double jeopardy argument with respect to these
counts in the future. As the government points out, broadly-
worded indictments charging the defendant with fraudulent
billings during a specified time period would bar later prose-
cution for any billings during those time periods. See United
States v. Folks, 236 F.3d 384, 392 (7th Cir. 2001) (precluding the
possibility of a second prosecution for conduct encompassed
by a broadly-worded indictment). Defendant argues alterna-
tively that she may not assert double jeopardy in the future
because there is no pleading that actually identifies which
C.C. is involved for each count, and another court will not be
equipped to determine who each of the victims actually were.
To give that position any credence, however, the court would
have to ignore the trial record identifying each C.C. by name,
since defendant would be able to cite to that record in the
highly unlikely event that another jurisdiction would attempt
to prosecute her for the Cook August 2012 billings or the Cox
June and August 2013 billings.
Third, appellant contends that duplicitous counts created
the possibility of non-unanimous verdicts as to Counts 2-4,
because the jury was not instructed that they had to all agree
on a “particular billing.” While an instruction on unanimity
may have been preferable in this context, defendant was the
one in the best position to both see and raise that issue. Obvi-
ously, the defendant did not perceive any problem with this,
nor do we. Even if defendant could articulate some specific an-
imus or material problem of differentiation, she again failed
to object, and we can see no plain error here. See United Sates
v. Mannava, 565 F.3d 412, 415 (7th Cir. 2009) (“An error is plain
16 No. 16-2053
if it is clearly an error and could with some nontrivial proba-
bility have changed the outcome of the case.”); see also United
States v. Pavloski, 574 F.2d 933, 936 (7th Cir. 1978) (“no possi-
bility of prejudice through lack of unanimity” because the de-
fendant did not dispute that he did the acts).
Finally, the defendant challenges the sufficiency of the ev-
idence as to Counts 2-4. To clear this “nearly insurmountable
hurdle” in reversing a conviction, defendant has to show that
there was “no evidence, no matter how it is weighed, from
which a rational jury could find guilt beyond a reasonable
doubt.” United States v. Bek, 493 F.3d 790, 798 (7th Cir. 2007).
As the government submitted a substantial amount of evi-
dence to support the convictions for Counts 2-4, defendant’s
challenge also fails to clear that formidable hurdle.
This then leaves defendant’s challenge to the admissibility
of Trial Exhibits 35 and 40. As an initial matter, the admission
of these exhibits was never an issue at trial. While defendant
would now argue that Federal Rule of Evidence 1006 requires
a witness to testify that the content of summaries are accurate
to admit them at trial, citing to United States v. Green, 428 F.3d
1131, 1134 (8th Cir. 2005), defendant expressly stated that she
had no objection to any of the trial exhibits, so she has waived
her right to do so on appeal. United States v. Murry, 395 F.3d
712, 717-19 (7th Cir. 2005). In fact, the government elicited tes-
timony that Exhibit 35 was a summary of Empowerment’s
billing for Cox, and the government referred to Exhibit 40
during closing without objection.
Regardless, the Green opinion is mistaken in reciting the
requirements for admission of a 1006 summary. In particular,
there is no explicit requirement that a witness testify about its
accuracy at trial. To the extent the Eighth Circuit suggested
No. 16-2053 17
otherwise in Green, it misapplied its earlier decision in United
States v. King, 616 F.2d 1034 (8th Cir. 1980), which was a case
involving the admissibility of pedagogical charts prepared by
a government witness to summarize her knowledge of the or-
ganization of housing projects. Id. at 1041. In that case, the
presence of a witness was crucial. However, a proponent of a
summary exhibit need only make a showing “that the under-
lying records are accurate and would be admissible as evi-
dence.” United States v. Oros, 578 F.3d 703, 708 (7th Cir. 2009).
If defendant had objected to the admissibility of Exhibits 35
and 40, a witness may have been the government’s avenue to
lay such a foundation, but since the defendant never objected,
we are left to guess whether the 1006 summaries were accu-
rate compilations of admissible evidence. Since they appear
to be, we certainly have no basis to second-guess the district
court’s exercise of sound discretion in admitting them. At
minimum, the defendant has once again failed to establish
clear error in the summaries’ admission.
Moreover, Trial Exhibits 35 and 40 support defendant’s
convictions for Counts 2-4, along with other substantial, inde-
pendent evidence admitted at trial. For instance, Cook and
Cox both testified that they did not ride in a wheelchair dur-
ing the relevant time periods, while Exhibits 35 and 40 show
that Empowerment billed for Cook and Cox’s supposed need
for wheelchair assistance during the relevant time period.
Further, Empowerment’s 2012 billings for Cook showed that
she was both the first and second passenger, supporting the
jury’s finding as to Count 2. Finally, even though Cox testified
that she did not have an attendant during her 2013 rides, the
evidence shows Empowerment billed for an attendant during
the relevant time periods for Counts 3 and 4.
18 No. 16-2053
Significantly, defendant fails to address Exhibit 18, Em-
powerment’s actual trip tickets for Cook and Cox during the
relevant time periods, which independently support the con-
clusion that she used their identities to carry out Medicaid
fraud. Nor does defendant attempt to explain away the testi-
mony of Cook or Cox. Instead, defendant would have us fo-
cus on the fact that there was no direct evidence that she per-
sonally submitted the billings for reimbursement. In particu-
lar, defendant points to testimony of witnesses that she only
sometimes did the billings, and Annette submitted the
billings during the relevant time periods as to Counts 2-4.
However, this argument ignores the other, powerful cir-
cumstantial evidence that permitted the jury to convict her, es-
pecially because the jury could reasonably infer from the evi-
dence that she “caused” the fraudulent billings. United States
v. Thomas, 763 F.3d 689, 693 (7th Cir. 2014) (“[D]irect evidence
is not required to find an element of a crime beyond a reason-
able doubt”). In fact, the testimony of the trial witnesses am-
ply supports the conclusion that Shorter either personally
submitted fraudulent billing using Cook’s and Cox’s identi-
ties herself or that Annette or Lakesha submitted those
billings at the defendant’s direction. First, there is Shorter’s
statements to an FBI agent that she was both comfortable with
and actively involved in the billing process. Second, the evi-
dence showed that Shorter was actively involved in both
training Annette and Laskesha and managing how they pre-
pared the bills. Third, Annette and Lakesha both testified gen-
erally that they did the billing for Empowerment consistent
with the training that the defendant provided, and they each
testified specifically to coding Empowerment’s Medicaid
billings using only the four codes that Shorter instructed them
No. 16-2053 19
to use without knowing if they applied. To the extent the evi-
dence showed that Shorter did not personally prepare the rel-
evant fraudulent billings, therefore, the jury had ample
grounds to reasonably conclude that those fraudulent bills
were submitted at her direction.
Accordingly, we AFFIRM.