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United States v. McCardell

United States District Court, W.D. Louisiana, Shreveport Division

October 23, 2017

UNITED STATES OF AMERICA
v.
TOM McCARDELL

          HORNSBY MAGISTRATE JUDGE.

          MEMORANDUM RULING

          ELIZABETH E. FOOTE UNITED STATES DISTRICT JUDGE.

         Before 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 DENIED.

         I. Background.

         McCardell 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).

         The 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, discussed infra.

         In 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.

         II. Standard of Review for Rule 29 Judgment of Acquittal.

         The 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)).

         Therefore, 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 motion.

         III. Standard of Review for New Trial Pursuant to Rule 33.

         Federal 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).

         In 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.

         IV. Analysis.

         McCardell's 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.

         McCardell 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.

         A. The Safe Harbor Provision.

         McCardell's 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. ...


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