United States Court of Appeals, District of Columbia Circuit
Argued, November 21, 2013
[Copyrighted Material Omitted]
Appeal from the United States District Court for the District of Columbia. (No. 1:11-cr-00151-1).
Steven N. Herman argued the cause for appellant. With him on the brief was Steven M. Salky.
Katherine M. Kelly, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Ronald C. Machen Jr., U.S. Attorney, and Elizabeth Trosman and Elizabeth H. Danello, Assistant U.S. Attorneys.
Before: HENDERSON, BROWN and GRIFFITH, Circuit Judges. Opinion for the Court filed by Circuit Judge GRIFFITH.
Griffith, Circuit Judge
A jury found that Dr. Jacqueline Wheeler, the owner of a medical clinic in Washington, D.C., fraudulently collected millions of dollars from Medicaid for procedures that were never performed. The district court imposed a substantial prison sentence and ordered Wheeler to forfeit those funds. On appeal, Wheeler challenges both her conviction and sentence. We reject her arguments and affirm the district court.
Wheeler owned and managed the Health Advocacy Center, a clinic that treated Medicaid patients. Between January 2006 and April 2008, Wheeler, who was wholly responsible for all of the Center's medical billing, submitted bills to Medicaid for more than $8 million in treatment allegedly provided. Medicaid paid the Center roughly $3.5 million on those bills, $3.1 million of which was for massage treatments.
Acting on a tip that the Center was cheating Medicaid, the Inspector General of the U.S. Department of Health and Human Services began an investigation in 2008. The FBI and Medicaid's Fraud Control Unit soon joined the effort. Investigators easily concluded that many of the Center's bills to Medicaid were false. For example, several bills claimed that the Center had given more than twenty-four hours of massage therapy to a single patient on a single day. Others reported hundreds of hours of massage therapy for days when only one therapist was on staff. Some sought payment for the treatment of patients hospitalized elsewhere.
An investigator visited the Center in late 2008, but Wheeler turned her away. The investigator threatened to return. That night, Wheeler called Acquinette Robinson, a Center employee, at 4:00 a.m. and asked for help moving files from the clinic to Wheeler's home. Were the files not moved immediately, Wheeler warned her, all of the Center's employees would soon lose their jobs. Robinson refused, and Wheeler moved the files herself. FBI agents obtained warrants and searched the Center and Wheeler's home on February 18, 2009, seizing documents from both locations.
On May 13, 2011, a grand jury indicted Wheeler on one count of healthcare fraud under 18 U.S.C. § 1347 and numerous counts of making false statements relating to healthcare matters under 18 U.S.C. § 1035. The primary battle during the eight-day trial that followed was waged over whether the billings submitted by Wheeler were intentionally false. The government sought to show that they were, asserting that Wheeler used her ill-gotten
gains to finance a lavish lifestyle, and highlighting her middle-of-the-night plea for help moving files in the wake of the rebuffed investigator's threatened return. Wheeler, on the other hand, claimed that she had inadvertently inflated the Center's bills for massage therapy fifteen-fold by misunderstanding Medicaid's billing protocols. Those protocols measured time of treatment in units of fifteen minutes. Wheeler claimed that she thought each unit was a single minute, not fifteen. Stressing that the Center was poorly managed and disorganized, she asserted that her oversight of this detail was understandable.
The jury returned guilty verdicts against Wheeler on all counts. She moved for acquittal, arguing that the government had offered insufficient evidence of intent, and for a new trial, contending that some of the statements and argument at trial had impermissibly prejudiced her. The district court denied Wheeler's motions and sentenced her to concurrent sentences of seventy-five months' imprisonment on the healthcare fraud count and sixty months on the false statements counts. The court also ordered restitution to Medicaid of the approximately $3.1 million paid on bills for massage therapy.
Wheeler appeals, asserting various evidentiary and sentencing errors by the district court. We have jurisdiction under 28 U.S.C. ...