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United States v. Mazkouri

United States Court of Appeals, Fifth Circuit

December 16, 2019

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
RIYAZ MAZKOURI, also known as Riaz Mazcuri, Defendant-Appellant.

          Appeal from the United States District Court for the Southern District of Texas

          Before SOUTHWICK, WILLETT, and OLDHAM, Circuit Judges.

          ANDREW S. OLDHAM, Circuit Judge

         A jury convicted Dr. Riaz Mazcuri for his role in a massive conspiracy to commit healthcare fraud at Riverside General Hospital. The jury also convicted him of fraudulently billing Medicare by exploiting five nursing-home residents with severe dementia. Mazcuri challenges his conviction and sentence. We affirm.

         I.

         From 2006 to 2012, Mazcuri was the attending physician at two partial-hospitalization programs at Riverside General Hospital ("Riverside")- Riverside Central ("Central") and Devotions Care Solutions ("Devotions"). Partial-hospitalization programs are outpatient psychiatric services designed to provide intensive, daily treatment to patients who have been discharged from inpatient treatment or who suffer from an acute exacerbation of a chronic mental disorder. Mazcuri orchestrated a conspiracy at these facilities to bill Medicare for unprovided or unnecessary services.

         Count 1 of the indictment charged Mazcuri with conspiracy to commit healthcare fraud. At trial, Mazcuri's co-conspirator Regina Askew testified that Mazcuri admitted large numbers of patients to Central after speaking with them for only about five minutes. When he was in a rush, Mazcuri sometimes admitted patients after seeing them in a group or talking to them briefly on the sidewalk.

         Kristen Behn Courtney, who worked as a van driver and technician at Central, testified that she picked up patients with Alzheimer's disease or other forms of severe dementia from a nursing home called Mission Care. She observed that those patients often had to be coaxed into entering her van because they didn't understand where they were going. Courtney also prepared Central's patients for "doctor days," when Mazcuri would visit the facility to see his patients. On those days, Mazcuri spent "maybe a minute, minute and a half," with each patient. He visited groups of patients in wheelchairs and never talked to them individually. Sometimes, Mazcuri left the facility without having seen all of his patients. Robert Crane, another co-conspirator, testified that similar practices occurred at Devotions. Askew, Courtney, and Crane were just a few of the many witnesses who testified about Mazcuri's role in the conspiracy.

         Counts 2-6 of the indictment charged Mazcuri with aiding and abetting healthcare fraud involving five specific patients at the Mission Care nursing home. Mazcuri admitted these five patients to Central, but they all had severe dementia and could not have benefited from treatment. For example, the patient involved in Count 3 believed the year was 1938 when it was 2009 and thought he lived in a casino. When the Mission Care psychiatrist asked the patient involved in Count 4 where she was, she responded, "October, October." Her dementia was so advanced that the psychiatrist recommended her for hospice care one year before Mazcuri authorized her treatment at Central. The patient involved in Count 5 had Alzheimer's and could not understand why a driver was picking her up from Mission Care each day. These patients' illnesses were so severe that they were not eligible for partial-hospitalization programs. But Mazcuri admitted them anyway and sent the bill to Medicare.

         These were not the only patients with severe dementia that Mazcuri exploited. Courtney testified that Government's Exhibit 67 contained a list of patients with post-admission instructions such as, "Take off dementia" and "Take off Alzheimer's." She explained: "[I]f they had those diagnoses, they were not appropriate for the [partial-hospitalization] program. So, we had to take [them] off."

         With respect to the five patients involved in Counts 2-6, Mazcuri personally billed Medicare for 382 visits, totaling $44, 500, and Riverside billed Medicare for 2, 713 days of services, totaling $1, 555, 100. Over the course of the conspiracy from 2006 to 2012, Mazcuri and Riverside together billed Medicare for $69, 512, 730.25. Medicare paid $22, 922, 199.91 on those claims.

         A jury found Mazcuri guilty on all six counts. The district court calculated a final offense level of forty-three under the Sentencing Guidelines. That typically results in a recommendation of life in prison. But Mazcuri's counts each carried a maximum penalty of ten years. Under the Guidelines, that meant his recommended sentence was sixty years. U.S.S.G. § 5G1.2(d). The district court varied downward from the Guidelines recommendation and imposed a sentence of 150 months. It also ordered restitution of $22, 922, 199.91 and forfeiture of $500, 000. Mazcuri timely appealed.

         II.

         Mazcuri challenges his conviction based on three alleged errors by the district court. He argues that these errors were so prejudicial that we must grant him a new trial. We reject each argument in turn.

         A.

         Mazcuri argues that the district court violated Federal Rule of Evidence 1006 when it admitted into evidence certain summary charts, marked as Government's Exhibits 93-97. Those exhibits summarize fraudulent activity found in two voluminous spreadsheets, Government's Exhibits 3 and 5. The summary charts show that Mazcuri sometimes billed more than twenty-four hours of services in a single day. For example, one chart shows that Mazcuri reported 58.9 hours of service for 106 patients on July 22, 2008.

         Rule 1006 permits the use of "a summary, chart, or calculation to prove the content of voluminous writings" that "cannot be conveniently examined in court." The district court has broad discretion to admit these sorts of summary charts. See Irons v. Aircraft Serv. Int'l, Inc., 392 Fed.Appx. 305, 314 (5th Cir. 2010). The parties dispute whether Mazcuri preserved his Rule 1006 arguments in the trial court and hence whether plain-error review applies. See Puckett v. United States, 556 U.S. 129, 135 (2009); United States v. Sanchez-Hernandez, 931 F.3d 408, 410-11 (5th Cir. 2019). We need not resolve the disagreement, however, because Mazcuri's arguments are meritless under any standard of review.

         First, Mazcuri is wrong to claim that the Government should have disclosed the summary charts earlier. Rule 1006 says that a chart's "proponent must make the originals or duplicates available . . . at a reasonable time and place." But the rule says nothing about when the summary chart itself must be disclosed to other parties. See, e.g., Colón-Fontánez v. Municipality of San Juan, 660 F.3d 17, 30 (1st Cir. 2011); United States v. Bakker, 925 F.2d 728, 736 (4th Cir. 1991); Coates v. Johnson & Johnson, 756 F.2d 524, 550 (7th Cir. 1985). Mazcuri's argument about the timing of the charts' disclosure has no basis in Rule 1006, so we reject it.

         Second, Mazcuri cannot challenge the summary charts on the basis that they included claims submitted by Cadwalder Behavioral Clinics. We have held that for Rule 1006, the "essential requirement is not that the charts be free from reliance on any assumptions, but rather that these assumptions be supported by evidence in the record." United States v. Armstrong, 619 F.3d 380, 384 (5th Cir. 2010) (quoting United States v. Buck, 324 F.3d 786, 791 (5th Cir. 2003)). Here, there is no dispute that the summary charts accurately reflect the claims data in Exhibits 3 and 5. And the Government proved at trial that Mazcuri was the medical director for Cadwalder and had submitted bills using Cadwalder's provider number. If ...


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