United States District Court, W.D. Louisiana, Shreveport Division
HORNSBY MAGISTRATE JUDGE.
ELIZABETH E. FOOTE UNITED STATES DISTRICT JUDGE.
the Court is a motion for judgment of acquittal and motion
for new trial [Record Document 72], and a supplemental motion
thereto [Record Document 89], filed by the Defendant, Tom
McCardell (“McCardell”). The Government opposes
these motions. See Record Document 90. Following a
thorough review of the parties' submissions and the
record, the Defendant's motions are
was the administrator of Physician's Behavioral Hospital
(“PBH”), a mental health and substance abuse
inpatient treatment facility located in Shreveport,
Louisiana. McCardell was charged in an Indictment with
fourteen counts of paying illegal kickbacks to Gloria Himmons
(“Himmons”) in exchange for Himmons' referral
of patients to PBH. PBH billed Medicare for the treatment and
services it provided to those patients. This violated
Medicare's Anti-Kickback Statute, which makes it illegal
for anyone to knowingly and willfully offer or pay “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 . . . .” 42 U.S.C. § 1320a-7b(b)(2)(A).
evidence adduced at trial showed that instead of actually
hiring Himmons, PBH (at McCardell's direction) created a
fraudulent employment file on Himmons' son, Vander
Himmons, and issued checks to Vander Himmons for the patient
recruitment efforts of his mother. Vander Himmons then
provided the checks to his mother. PBH personnel testified
that most of their communications regarding patient referrals
were had with Himmons, not Vander Himmons, PBH's alleged
employee. Vander Himmons testified that he did not perform
any work for PBH. During the course of the scheme, Himmons
referred approximately 90 patients to PBH, for whom PBH
billed Medicare. At trial, through both witness testimony and
in closing argument, McCardell presented an affirmative
defense that his payments to Himmons were excepted from
liability under the statutory safe harbor provision,
spite of his defense, on the fourth day of trial, the jury
convicted McCardell of all fourteen counts of the Indictment.
These motions followed McCardell's conviction.
Standard of Review for Rule 29 Judgment of
standard for evaluating a defendant's motion for
acquittal 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.” Jackson v.
Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979). Thus, the
Court's task at this stage is to view not only the
evidence, but also all reasonable inferences, in the light
most favorable to the Government. See United States v.
Mendoza, 522 F.3d 482, 488 (5th Cir. 2008). “[A]ll
credibility determinations are made in the light most
favorable to the verdict.” Id. (quoting
United States v. Moreno, 185 F.3d 465, 471 (5th Cir.
1999)). “In effect, the court assumes the truth of the
evidence offered by the prosecution.” United States
v. Robertson, 110 F.3d 1113, 1117 (5th Cir. 1997). The
Court reviews the sufficiency of circumstantial evidence in
the same manner that it reviews the sufficiency of direct
evidence. See United States v. DeJean, 613 F.2d
1356, 1358 (5th Cir. 1980). Moreover, “[a]ll evidence
is considered, not just that supporting the verdict, but the
evidence need not conclusively disprove alternatives; the
jury is free to choose among reasonable constructions of the
evidence.” United States v. Peterson, 244 F.3d
385, 389 (5th Cir. 2001) (internal marks omitted). “The
evidence need not exclude every reasonable hypothesis of
innocence or be wholly inconsistent with every conclusion
except that of guilt . . . .” United States v.
Lopez, 74 F.3d 575, 577 (5th Cir. 1996).
“Circumstances altogether inconclusive, if separately
considered, may, by their number and joint operation,
especially when corroborated by moral coincidences, be
sufficient to constitute conclusive proof.” United
States v. Vasquez, 677 F.3d 685, 692 (5th Cir. 2012).
“Jurors may properly ‘use their common sense'
and ‘evaluate the facts in light of their common
knowledge of the natural tendencies and inclinations of human
beings.'” Id. (quoting United States
v. Ayala, 887 F.2d 62, 67 (5th Cir. 1989)).
this Court will not weigh the evidence or assess the
credibility of witnesses, Lopez, 74 F.3d at 577, but
rather should determine “only whether the jury made a
rational decision, not whether its verdict was correct on the
issue of guilt or innocence.” United States v.
Dean, 59 F.3d 1479, 1484 (5th Cir. 1995). However,
“[a] verdict may not rest on mere suspicion,
speculation, or conjecture, or on an overly attenuated piling
of inference on inference.” United States v.
Moreland, 665 F.3d 137, 149 (5th Cir. 2011). “If
the evidence is relatively balanced, a reasonable juror could
not convict beyond a reasonable doubt . . . .”
Peterson, 244 F.3d at 389. Under those
circumstances, the Court should grant the Defendant's
Standard of Review for New Trial Pursuant to Rule
Rule of Criminal Procedure 33 allows a court to “vacate
any judgment and grant a new trial if the interest of justice
so requires.” Fed. R. Cr. P. 33(a). “Such motions
are disfavored and reviewed with great caution.”
United States v. Turner, 674 F.3d 420, 429 (5th Cir.
2012). As such, the remedy of a new trial is
“rarely” granted, United States v.
O'Keefe, 128 F.3d 885, 898 (5th Cir. 1997),
“unless there would be a miscarriage of justice or the
weight of evidence preponderates against the verdict.”
United States v. Wright, 634 F.3d 770, 775 (5th Cir.
2011). The burden of demonstrating that a new trial is
warranted rests on the defendant. See United States v.
Soto-Silva, 129 F.3d 340, 343 (5th Cir. 1997).
reviewing a motion for new trial based on the weight of the
evidence, the Court is permitted to weigh the evidence and
assess the credibility of the witnesses. See United
States v. Ramos-Cardenas, 524 F.3d 600, 605 (5th Cir.
2008). “But the ‘court may not reweigh the
evidence and set aside the verdict simply because it feels
some other result would be more reasonable.'”
Id. (quoting United States v. Robertson,
110 F.3d 1113 (5th Cir. 1997)). Instead, the “evidence
must preponderate heavily against the verdict” such
that allowing the verdict to stand would constitute a
miscarriage of justice. Id.
initial motion for acquittal or a new trial alleged simply
that “the Government failed to offer sufficient
evidence upon which a rational jury could find Tom McCardell
guilty beyond any reasonable doubt, ” but represented
that the trial transcripts were necessary to “fully and
adequately set forth the legal and factual arguments”
supporting McCardell's motion. See Record
Document 72, pp. 2-3. After the Court allowed additional time
for the defense to obtain and review the trial transcripts,
McCardell filed his supplemental motion, which set forth his
arguments- both legal and factual- for acquittal or a new
trial. Significantly, McCardell did not renew his claim of
insufficiency of the evidence, and thus the Court finds that
argument has been abandoned.
now raises four trial errors that he alleges warrant an
acquittal or a new trial: (1) the Court erred by
characterizing the safe harbor provision as an affirmative
defense; (2) the Court erred by requiring the jury to find
the applicability of the safe harbor provision before
allowing the jury to consider whether a bona fide employment
relationship existed between PBH and Himmons, which negated
his presumption of innocence; (3) the Court erred in finding
that the bona fide employee exception entails a seven-factor
test that McCardell was required to satisfy; and (4) the
Government failed to provide the defense with all exculpatory
and impeachment evidence on Himmons. The Court finds all of
these arguments lack merit for the reasons discussed below.
The Safe Harbor Provision.
first three challenges are related and will thus be addressed
together. As set forth above, the Anti-Kickback Statute
“criminalizes the payment of any fund or benefits
designed to encourage an individual to refer another party to
a Medicare or Medicaid provider . . . .” United
States v. Nowlin, 640 F. App'x 337, 344 (5th Cir.