United States v. Gregory Belcher ( 2021 )

FILED
NOT FOR PUBLICATION
MAY 24 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10133
Plaintiff-Appellee, D.C. No.
5:16-cr-00211-LHK-2
v.
GREGORY LAMONT BELCHER, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 18-10333
Plaintiff-Appellee, D.C. No.
5:16-cr-00211-LHK-1
v.
VILASINI GANESH,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding
Argued and Submitted April 16, 2021
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: SCHROEDER, RAWLINSON, and BADE, Circuit Judges.
Gregory Belcher and Vilasini Ganesh appeal their jury convictions and
sentences for crimes related to their submission of false medical insurance claims.
Belcher was convicted of one count of making a false statement relating to health
care matters in violation of 18 U.S.C. § 1035; Ganesh was convicted of five counts
of health care fraud in violation of 18 U.S.C. § 1347 and five counts of making a
false statement in violation of § 1035. The two were medical doctors who lived
together as a married couple and practiced medicine in the same office building.
Belcher was sentenced to one year and a day, and Ganesh to sixty-three months.
We affirm.
Belcher contends there was a constructive amendment to the indictment that
may have allowed the jury to convict him without finding that he acted with intent
to defraud. Yet making a false statement in violation of § 1035—the only crime of
which Belcher was convicted—does not require intent to defraud. See 18 U.S.C.
§ 1035. Whether or not Belcher believed he was actually entitled to payment from
Cigna is therefore immaterial to his conviction for making a false statement. In a
belated filing, Belcher cites United States v. Shipsey, 190 F.3d 1081 (9th Cir.
1999). In that case, the indictment alleged that the defendant obtained money from
a certain pension fund “by false pretenses,” but the jury instructions permitted
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conviction as long as he had obtained the money by a “wrongful act.” Id. at
1084–86. Because the facts alleged in the indictment therefore differed from the
facts presented and argued to the jury as sufficient to convict, we reversed. This,
however, is not such a case. Belcher was indicted for knowingly and willfully
submitting a claim for patient “M.H.” to Cigna on November 26, 2013 for
“[s]ervice not rendered on [the] dates and for [the] duration claimed,” and he was
convicted of the same factual charge.
The principal argument Belcher presents to challenge his conviction is
insufficiency of the evidence. The jury was properly instructed that, to convict
Belcher for violating § 1035, it was required to find that he knowingly made a
materially false statement. The evidence was more than sufficient to show that
Belcher, on November 26, 2013, knowingly submitted a claim for reimbursement
for physical therapy that did not occur on the date stated. As the government’s
evidence demonstrated, the claim sought compensation for massage therapy that
had been actually provided on the same day as physical therapy, and Belcher
admitted he knew that the insurer would be less likely to pay for two similar
treatments received on the same day. Belcher thus knew that he was unlawfully
submitting materially false claim information when he engaged in this “split
billing.” Belcher also used billing codes meant for physical therapy when
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requesting reimbursement for massage therapy sessions. As Belcher admitted at
trial, he knew that massage therapy—unlike physical therapy—is often not
reimbursable.
There was no abuse of discretion in the district court’s refusal to give the
defendants’ requested instructions on good faith, because the jury instructions
adequately laid out the crimes’ intent requirements. United States v. Shipsey, 363
F.3d 962, 967 (9th Cir. 2004), overruled on other grounds by United
States v. Miller, 953 F.3d 1095 (9th Cir. 2020).
Belcher and Ganesh also claim that the district court reversibly erred when it
instructed the jury that “scheme to defraud” meant a plan intended to “deceive or
cheat,” when our circuit law has established it must be a plan intended to “deceive
and cheat.” Miller, 953 F.3d at 1102–03 (citing Shaw v. United States, 137 S. Ct.
462, 469 (2016)). The problem in Miller and Shaw was that the instructions
provided could have been understood to encompass mere intent to deceive, without
any intent to gain money or property. Shaw, 137 S. Ct. at 469 (requiring “inten[t]
to deceive, cheat, or deprive a financial institution of something of value”); Miller,
953 F.3d at 1102 (requiring intent to “deceive or cheat”).
However, to the extent there was instructional error, neither Belcher nor
Ganesh objected to this error, and they failed to establish plain error. See United
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States v. Olano, 507 U.S. 725, 734–35 (1993). Belcher was convicted only under
§ 1035, which does not require a finding that the defendant committed a scheme to
defraud, nor did the district court’s instruction as to § 1035 incorporate or
reference the purported erroneous instruction as to the charges for health care fraud
under § 1347. See United States v. Marsh, 26 F.3d 1496, 1502 (9th Cir. 1994).
Ganesh failed to develop any argument establishing why any error under Shaw or
Miller prejudiced her. Thus, Belcher and Ganesh failed to demonstrate plain error
entitling them to reversal.
We also affirm the district court’s denials of the defendants’ motions for
acquittal and new trial. These motions involve spreadsheets of claim information
pulled from insurers’ databases and presented at trial without objection. Ganesh
now contends prosecutors misrepresented some legitimately billed claims in the
spreadsheets as false. Ganesh specifically points to a spreadsheet that contained
some legitimate entries representing work done by Edward DeWees, a former
colleague. After his departure, she falsely submitted other claims under his name,
many of which also appear on the spreadsheet. Counsel for the government
displayed parts of this spreadsheet during its closing argument and called attention
to how often DeWees’s name appeared. The record goes on to show, however, that
counsel used these observations only to argue that, given how many claims were
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consistently billed under DeWees’s name, Belcher and Ganesh must have entered
into a conspiratorial agreement to engage in such billing. Since the jury ultimately
acquitted Ganesh and Belcher of all conspiracy charges, Ganesh cannot show, as
she must, that the government’s alleged misuse of the spreadsheet was material.
See United States v. Renzi, 769 F.3d 731, 751 (9th Cir. 2014) (citing Napue v.
Illinois, 360 U.S. 264 (1959)).
Moreover, later in closing argument, counsel for the government examined
the individual false claims that were actually charged in the indictment under
§ 1347 and § 1035 and demonstrated their falsity by cross-referencing the
spreadsheet’s contents against matching explanation of benefit (“EOB”) forms.
Even assuming arguendo that the government’s use of the spreadsheets may have
been misinterpreted by the jury, the district court correctly concluded that the
defendants’ motions based on newly discovered evidence in the spreadsheets, not
filed until after trial, would fail for lack of diligence. Although the district court
characterized its denial of one of these motions as “for lack of jurisdiction,”
denying the motion was warranted on its merits. See Fed. R. Crim. P. 37(a)
(allowing a district court to deny a motion on the merits while an appeal is
pending).
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Belcher contends there was sentencing error in the district court’s loss
calculation. He argues that the loss to the insurance companies from compensating
for massage services should have been offset by the fair market value of such
services. But the district court reasonably concluded that no offset was appropriate
because insurers do not ordinarily reimburse any amount for massage therapy. In
addition, as the district court noted, calculating offsets or credits would have been
very difficult in this case because, per Belcher’s instructions, the therapists
involved did not keep any patient charts, documentation, or other records of what
services they had provided. The district court carefully laid out the legal and
factual bases for the loss calculations it made, and it correctly applied the “clear
and convincing” standard.
As for Ganesh’s convictions, the evidence showed that she submitted bills
for patient visits that never happened, consistently used the highest-tier medical
billing codes regardless of the nature or amount of care actually provided, and
submitted bills identifying former colleague DeWees as the care provider long
after he had stopped working with her. The government’s evidence against Ganesh
included claim spreadsheets, EOB forms, and testimony from patients, former
employees, and insurance investigators. There is no serious question that this
evidence was sufficient to convict Ganesh.
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Ganesh contends the magistrate judge erred by denying two of her motions
for substitution of counsel. With respect to the first such motion, she argues the
court failed to make an “adequate inquiry” into the nature of a conflict. See United
States v. McClendon, 782 F.2d 785, 789 (9th Cir. 1986). Ganesh made this request
less than a week before trial was scheduled to commence. She was represented at
the time by appointed counsel she had originally chosen and retained, and the
lawyer she wanted substituted told the court that he was not prepared to “substitute
in at this point in time.” The court asked current and proposed substitute counsel
about the reasons for the change in counsel, instructed Ganesh to consult with her
counsel and with her family, and gave Ganesh an opportunity to address the court.
Ganesh has never explained what further inquiry should have been made. Under
these circumstances, the court did not abuse its discretion.
Ganesh made another motion for substitution of counsel about three weeks
before the start of sentencing, which already had been delayed by over a month.
The two lawyers she wanted to be substituted refused to commit to the established
sentencing schedule. And although the court repeatedly asked for an explanation
of why keeping her current counsel would be unfair, it received only vague
answers in response. Again, there was no abuse of discretion in denying the
motion.
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Ganesh points to a chart in the superseding indictment that described certain
claim submissions as being false with respect to date and duration. She contends
that the government was required to proceed on the theory that each such claim
was false as to both and that the district court’s denial of her request to instruct the
jury accordingly resulted in a constructive amendment. But the district court
correctly ruled that evidence as to falsity on either ground was sufficient. United
States v. Miller, 471 U.S. 130, 136 (1985) (“[A]n indictment may charge . . . the
commission of any one offense in several ways,” “[a]s long as the crime and the
elements of the offense that sustain the conviction are fully and clearly set out in
the indictment.”).
The district court did not err at Ganesh’s sentencing by imposing
enhancements for abuse of a position of trust, U.S.S.G. § 3B1.3, and for
committing an offense involving ten or more victims, id. § 2B1.1(b)(2)(A)(i), and
the court appropriately calculated a loss in excess of $550,000, id. §
2B1.1(b)(1)(H). Insurers are in a position of having to trust physicians who make
claims for reimbursement. United States v. Rutgard, 116 F.3d 1270, 1293 (9th Cir.
1997). Four insurers billed by Ganesh were the financial victims of her crimes,
and, under the Guidelines, dozens of her patients were also “victims” for
sentencing enhancement purposes because their names and identifications were
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used to make false claims. U.S.S.G. § 2B1.1 cmt. n.4(E). The district court
sufficiently explained and fairly made its loss calculations, which conservatively
relied only on payments Ganesh received for claims falsely made under DeWees’s
name. The fact that Ganesh was not reimbursed for many of her other false claims
is irrelevant. Ganesh, like Belcher, argues that she should have obtained fair
market value offsets for services she rendered. We reject this argument. Ganesh
has not explained—below or before us—why she should be credited for services
that she fraudulently claimed under another doctor’s name. See United States v.
Popov, 742 F.3d 911, 916 (9th Cir. 2014). The insurers bore no obligation to pay
these falsified claims.
AFFIRMED.
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