from the United States District Court for the Eastern
District of Louisiana
DAVIS, GRAVES, and COSTA, Circuit Judges.
COSTA, Circuit Judge
Brown was convicted of multiple health care fraud and
kickback offenses perpetrated through her medical equipment
company. We must decide whether the evidence introduced at
trial was sufficient to sustain her conviction; whether the
jury was properly given a deliberate ignorance instruction;
whether an expert was properly allowed to testify; and
whether a leadership enhancement was properly included in her
Guidelines calculation. Because we find that the trial court
did not err on any of these points, we AFFIRM.
was the co-owner of the medical equipment company Psalms 23.
Psalms 23 provided equipment for Medicare beneficiaries. In
2005, Brown hired marketers to assist in finding patients for
whom Psalms could provide medical equipment. For legitimate
equipment companies, patient referrals often come directly
from doctors who prescribe the equipment to patients. For her
marketers, Brown emphasized that they should refer patients
who needed motorized wheelchairs and scooters, as these were
the most profitable pieces of equipment. Instead of paying
the marketers a set salary, Brown proposed a commission
system; marketers would be paid on a per-piece-of-equipment
basis. Federal law forbids commission payments for referrals,
as they greatly increase the incentive for fraud (that is,
for recruiting patients who do not need the equipment).
See 42 U.S.C. § 1320a-7b(b)(1)(A). As a result
of this setup- and Brown's encouragement to refer the
most profitable equipment-many patients were billed for the
same equipment, which is highly unusual for a legitimate
supplier. Indeed, expensive power wheelchairs, wheelchair
accessories, and orthotics represented more than 95% of
Psalms' Medicare billings. And sometimes Psalms billed
Medicare for expensive versions of the orthotics while
purchasing much cheaper counterparts to give to the patients.
To detail just one example of this upcoding, Psalms routinely
billed Medicare $830 for a sophisticated back brace (HCPCS
code L0631), but provided beneficiaries with a different
brace (HCPCS code L0625) that cost about $11. By upcoding
this one brace 334 times, Psalms billed Medicare more than a
quarter million dollars above what the brace given to
just about all the equipment that was ordered, only two
doctors were used to certify that the equipment was needed.
Both doctors testified that they never met with Brown,
working instead through the marketers to refer patients to
Psalms. Many of these patients did not actually need the
equipment the doctors prescribed. And that was if the doctors
even wrote out the prescription; one marketer stated that she
filled out prescriptions and progress reports for patients
herself and only used the doctor as a rubber stamp. Another
doctor who evaluated patients and referred them to Brown,
asked that payments be made out to her mother to avoid
"the appearance of impropriety."
of 2007, Brown hired a consultant to show her the "right
way" to bill Medicare. The consultant identified a
number of the fraud indicators identified above and then
• Psalms did not have a physical therapist, which
Medicare requires to ensure that the orthotics fit the
• Psalms did not collect copays from beneficiaries,
something Medicare requires and that helps ensure that the
equipment is needed.
• Psalms repeatedly ordered bilateral braces-one for
each side of the body-meaning the patient was immobilized,
which did not "make any sense" to the consultant.
• Medicare did not pay for full series of orthotics
(knee brace, arm brace, back brace, and heating pad) that
Psalms was billing as "arthritis kits."
• Psalms never billed for manual wheelchairs, instead
selling only the more expensive power wheelchairs.
• At least one marketer (that the consultant was aware
of) was being paid on commission ...