from the United States District Court for the Southern
District of Florida D.C. Docket No. 1:13-cr-20505-RNS-2
WILSON and ROSENBAUM, Circuit Judges, and ROBRENO,
WILSON, Circuit Judge:
appeal involves multiple defendants convicted in an extensive
Medicare fraud scheme. From 2004 to 2011, Health Care
Solutions Network, Inc. (HCSN), an operator of mental health
centers in Miami and North Carolina, billed Medicare for over
$63M in fraudulent claims. Defendants Dr. Roger Rousseau,
Doris Crabtree, Liliana Marks, and Angela Salafia are former
employees of HCSN who were charged and convicted in
connection with that fraud.
convicted all the defendants of conspiracy to commit
healthcare fraud, in violation of 18 U.S.C. § 1349, and
also convicted Dr. Rousseau of two counts of healthcare
fraud, in violation of 18 U.S.C. §§ 1347 and 2.
They now appeal on multiple grounds, including double
jeopardy, sufficiency of the evidence, and numerous
procedural and evidentiary decisions made by the district
court which they claim rendered the trial fundamentally
unfair. Rousseau also appeals his Guidelines sentencing
thorough review and with the benefit of oral argument, we
affirm on all issues.
was set up as a "partial hospitalization program"
(PHP), which are designed to provide intensive psychiatric
therapy to patients with "serious and acutely
symptomatic mental illnesses." United States v.
Willner, 795 F.3d 1297, 1302 (11th Cir. 2015). These
programs serve as a bridge between restrictive inpatient
care, such as a psychiatric hospital, and routine outpatient
care. A PHP that complies with federal law and state coverage
requirements may seek Medicare reimbursement for its
accordance with Medicare standards, patients should be
referred to a PHP by a psychiatrist or mental health
specialist. Incentivizing such referrals through kickbacks
violates federal law. 42 U.S.C. § 1320a-7b(b)(2)(A).
Qualifying PHP patients must be admitted "under the
supervision of a physician pursuant to an individualized,
written plan of treatment." 42 U.S.C. § 1395x(ff).
Treatment involves intensive, all-day individual and group
therapy, which must not be "primarily recreational or
diversionary." Id. The attending physician is
responsible for managing each patient's treatment, which
must be "reasonable and necessary for the diagnosis or
active treatment of the individual's condition."
Medicare does not prescribe a fixed amount of time that
patients should remain at a PHP, stays in excess of three
months indicate that treatment is ineffective and no longer
appropriate. Decisions to admit and discharge patients must
be closely monitored by the attending physician.
seeking Medicare reimbursement must also comply with strict
documentation requirements. At intake, medical personnel
record patients' history, symptoms, and medications. Once
enrolled, a patient's progress must be thoroughly
charted, from the types of treatment provided to details of
participation in specific therapy sessions. This both
provides a medical record justifying the patient's
continued treatment and ensures that each patient is
discharged-or readmitted-consistent with her medical needs.
The Fraud at HCSN
were not the practices at HCSN. From intake to discharge,
HCSN organized its business around procuring, retaining, and
readmitting patients to maximize billing potential, without
respect to patients' health needs. It then ensured
patient files complied with Medicare coverage requirements by
editing intake information, fabricating treatment plans, and
falsifying therapy and treatment notes.
owner, Armando Gonzalez, orchestrated this fraud scheme,
which involved coconspirators at every level of the company.
Rousseau, the medical director at HCSN's Miami locations,
was the attending physician for over $30M of fraudulent
billing to Medicare at HCSN-East. Crabtree, Marks, and
Salafia were in charge of day-to-day therapy at HCSN-East,
where they were also responsible for patient therapy notes.
fraud began with patient recruitment. HCSN solicited patients
from hospital employees and owners of assisted living
facilities in exchange for cash kickbacks. Many of these
patients did not qualify for PHP treatment. Upon intake, HCSN
employees altered patient profiles in order to conceal
disqualifying information, such as evidence that patients
suffered from Alzheimer's disease or dementia. HCSN
treated patients for inordinately long periods of
time-generally at least four months-and then
"recycled" patients by discharging them and
immediately admitting them to another HCSN location.
notes and billing sheets were systematically altered to
support Medicare claims and to survive Medicare audits.
Therapists fabricated therapy notes for absent patients,
falsified details from therapy sessions, and
"cloned" notes by copy and pasting therapy notes,
verbatim, from one patient's file to another's.
"Ghost lists" of non-existent patients helped HCSN
employees organize "ghost billing" of services that
never took place.
scheme spanned seven years, involved three HCSN locations,
and amounted to over $63M in fraudulent claims.
owner, numerous employees, and beneficiaries of the illegal
kickbacks were charged in connection with the healthcare
fraud at HCSN. The defendants' indictment charged them
with the following: (1) all defendants with conspiracy to
commit health care fraud, 18 U.S.C. § 1349; (2) Rousseau
with two substantive counts of health care fraud, 18 U.S.C.
§§ 1347 and 2; and (3) Crabtree, Marks, and Salafia
with two counts of making false statements related to health
care matters, 18 U.S.C. § 1035. Two trials ensued.
conclusion of the first trial, the jury acquitted Crabtree,
Marks, and Salafia of the false statements counts but failed
to reach a verdict on all other counts. At trial, the
district court had granted the government's request to
deliver an instruction for Pinkerton liability with
the false statements jury instruction.Once acquitted of
the false statements charges, Crabtree, Marks, and Salafia
moved for acquittal on the conspiracy count; they argued that
the jury's false statements acquittal necessarily
entailed a finding that they were not a part of a conspiracy.
The district court denied the motion for acquittal, holding
that acquittal on the false statements counts did not
foreclose retrial for conspiracy.
defendants' second trial, a jury found all defendants
guilty of conspiracy to commit healthcare fraud and found
Rousseau guilty of both substantive counts of health care
fraud. The district court applied a six-level enhancement to
Rousseau's guideline range-a two-level vulnerable victims
enhancement and a four-level enhancement for organizing
criminal activity involving more than five people.
See U.S.S.G. §§ 3A1.1, 3B1.1. The district
court sentenced Rousseau to 192 months in prison (100 months
below the 292-365 month guideline range) and ordered him to
pay $23M in restitution. It sentenced Crabtree, Marks, and
Salafia to between five and six years' imprisonment and
ordered each to pay over $16M in restitution.
defendants now make multiple claims on appeal. We address
them in four parts. First, we discuss Crabtree, Marks, and
Salafia's double jeopardy argument. Second, we determine
whether there was sufficient evidence at trial to uphold the
defendants' convictions. Third, we tackle the
trial-related claims: whether the district court erred (1) by
admitting testimony and evidence about Medicare local
coverage determinations, Medicare rules and regulations, PHP
standard practices, and testimony regarding illegal
kickbacks; (2) by dismissing a tardy juror; and (3) by
instructing the jury on deliberate ignorance and aiding and
abetting liability. Fourth, and finally, we determine whether
the district court properly applied the two Guidelines
enhancements to Rousseau's sentence.
Marks, and Salafia renew their collateral estoppel argument
rejected at the first trial. They claim that because the jury
acquitted them of the false statements counts-after the
district court issued a Pinkerton liability
instruction-the jury necessarily concluded as a factual
matter that they were not a part of the healthcare fraud
conspiracy at HCSN. And because that fact was essential to
the conspiracy count, the Fifth Amendment barred the
government from retrying them for conspiracy.
review a district court's collateral estoppel ruling de
novo, and the "party asserting estoppel bears the burden
of persuasion that the jury found the facts on which the
defense of estoppel rests and that those facts bar another
trial about them." United States v. Ohayon, 483
F.3d 1281, 1286 (11th Cir. 2007).
Double Jeopardy Clause of the Fifth Amendment does not
generally preclude the government from reprosecuting
defendants on mistried counts. United States v.
Shenberg, 89 F.3d 1461, 1478 (11th Cir. 1996). But the
doctrine of collateral estoppel creates an exception to this
rule "when an issue of ultimate fact has once been
determined by a valid and final judgment, " and when
that issue constitutes an essential element of the mistried
charge. Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct.
1189, 1194 (1970). In such cases, the Fifth Amendment
guarantee against double jeopardy prohibits the government
from reprosecuting the defendant for the mistried charge.
Id. at 445-46, 90 S.Ct. at 1195.
our collateral estoppel double jeopardy analysis involves two
steps. "First, [the] court must examine the verdict
and the record to see what facts, if any, were necessarily
determined in the acquittal at the first trial. Second, the
court must determine whether the previously determined facts
constituted an essential element of the second offense."
Ohayon, 483 F.3d at 1286 (internal quotation marks
and citation omitted). An "essential element" is a
factual, not legal, component of an offense. Id. at
1293. This is an objective inquiry which asks "whether a
rational jury could have grounded its verdict upon an issue
other than that which the defendant seeks to foreclose from
consideration." Id. at 1286.
the defendants' double jeopardy argument falls short,
because acquittal on the false statements charges did not
necessarily determine any factual issue essential to the
healthcare fraud conspiracy charge. A rational jury could
have acquitted without foreclosing the issue of whether the
defendants were part of the healthcare fraud conspiracy at
HCSN; therefore, retrial did not violate the Double Jeopardy
Clause of the Fifth Amendment.
begin with our first task: determining what facts were
necessarily decided by the jury at the first trial.
Id. Upon thorough review of the indictment, the
arguments and evidence put forth at trial, and the jury
instructions, we find that an acquittal on the false
statements charges necessarily determined that Crabtree,
Marks, and Salafia did not knowingly and willfully make
materially false statements on six particular patient
notes. Nor are they vicariously liable for that
crime. But beyond that, "it is far from clear what facts
the jury decided when it acquitted" the defendants on
the false statements counts, and "[w]e will not