Case: 09-60562 Document: 00511144732 Page: 1 Date Filed: 06/17/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 17, 2010
No. 09-60562 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JACQUALINE CRAWLEY,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:07-CR-125-4
Before REAVLEY, WIENER, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Jacqualine Crawley appeals following her conviction for conspiracy to
commit health care fraud, substantive health care fraud, and making false
statements relating to health care. The charges resulted from Crawley’s
participation in a scheme to submit false and inflated bills to Medicare for
physical therapy-type services rendered to elderly patients. She challenges both
her conviction and sentence. We affirm Crawley’s conviction and sentence but
interpret the sentence to reflect that the restitution ordered by the district court
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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as a condition of Crawley’s supervised release is subject to her ability to pay as
ordered.
Crawley first argues that the district court erroneously instructed the jury
on deliberate ignorance and then compounded the error by refusing to give a
requested balancing instruction. We find no abuse of discretion because the
court’s charge was supported by the evidence. See United States v. Miller, 588
F.3d 897, 905 (5th Cir. 2009). A deliberate ignorance instruction is proper when
“the evidence shows (1) subjective awareness of a high probability of the
existence of illegal conduct and (2) purposeful contrivance to avoid learning of
the illegal conduct.” United States v. Nguyen, 493 F.3d 613, 619 (5th Cir. 2007)
(internal quotation and citation omitted). Viewed in the light most favorable to
the Government, the evidence showed that Crawley misrepresented to several
witnesses her qualifications as a physical or occupational therapist, giving the
false impression that a licensed therapist was training technicians and
supervising the services provided to patients. The evidence also showed that
Crawley, who was responsible for day to day operation of the company known as
Rehabilicare, added services to patient treatment records that had not been
performed and instructed technicians to date falsely the signature blocks for
reviewing physicians. Furthermore, Crawley was aware from attending a
Medicare billing seminar that Rehabilicare’s billing practice based on the body
parts treated rather than on time spent with the patients was improper. We
conclude that the evidence was sufficient to show that Crawley had a subjective
awareness of a high probability of illegal conduct. See Nguyen, 493 F.3d at 619.
The evidence also permits an inference of purposeful contrivance to avoid
learning of illegal conduct. The evidence showed that Crawley heard the
instructor from the Medicare seminar state that if a company billed based on
body parts, it would be “in big trouble.” In her defense, Crawley relied on a
training manual statement that she believed allowed for billing based either on
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treatment areas or on time, and she contended that this was a “gray” area. But
the manual further indicated that the method of billing was dependent upon the
description of the billing code. The evidence permits an inference that Crawley
ignored this part of the statement, as the Government presented evidence that
Rehabilicare’s billing codes were time-based. Under the circumstances,
Crawley’s failure to question further Rehabilicare’s billing method suggests
purposeful contrivance. See United States v. Lara-Velasquez, 919 F.2d 946, 952
(5th Cir. 1990). In any event, we also conclude that the same evidence showing
Crawley’s subjective awareness of the probability of illegal conduct also supports
a conclusion that Crawley had actual knowledge that her conduct was illegal.
Therefore, any error in the court’s charge was harmless. See United States v.
Wofford, 560 F.3d 341, 354 (5th Cir. 2009).
Crawley next challenges the sufficiency of the evidence to support her
conviction, arguing that she lacked intent to defraud Medicare and that she was
merely mistaken about the Medicare billing regulations. We are not persuaded.
The evidence showed that Crawley and co-defendant Pam Hull were intimately
involved in the business of Rehabilicare. Crawley, Hull, and other co-owners
made decisions together about Rehabilicare’s operation. Crawley helped recruit
doctors and falsely represented the qualifications of herself and Rehabilicare’s
staff. She altered patient treatment records and instructed technicians to falsely
date treatment forms. She advocated the continued use of Rehabilicare’s billing
practice even after she learned the practice was improper. When all inferences
are drawn in the light most favorable to the Government, the evidence was
sufficient for the jury to find that Crawley participated in a conspiracy to
defraud Medicare, committed health care fraud, and made false statements
about health care. See United States v. Mauskar, 557 F.3d 219, 229 (5th Cir.
2009); see also 18 U.S.C. §§ 371, 1035, 1347.
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Crawley further argues that the district court erroneously admitted expert
testimony from Government witness Dr. William Woodall, who she argues was
not properly disclosed and was permitted to give an opinion beyond his expertise.
The district court is given wide latitude in the admission of expert testimony,
and we will not overturn the district court’s decision unless it was manifestly
erroneous. See United States v. Simmons, 470 F.3d 1115, 1121 (5th Cir. 2006).
We decline to do so here. We conclude that the Government’s disclosure of Dr.
Woodall complied with F EDERAL R ULE OF C RIMINAL P ROCEDURE 16.
Furthermore, we are satisfied that Dr. Woodall’s testimony, including opinions
about physical medicine and Rehabilicare to which Crawley did not object, fell
within his expert knowledge and qualifications. See United States v. Anderson,
560 F.3d 275, 281 (5th Cir. 2009) (upholding admission of expert testimony
where witness was qualified as an expert based on experience); F ED. R. E VID.
702.
Finally, Crawley challenges the district court’s restitution order on the
grounds that the court improperly determined the restitution amount, set an
unreasonable monthly payment schedule, and improperly conditioned her
supervised release on her payment of restitution. We review the legality of the
district court’s restitution order de novo. United States v. Taylor, 582 F.3d 558,
565 (5th Cir. 2009). If a restitution order is legally permitted, we review the
order for an abuse of discretion. Id.
The district court’s determination of the total restitution amount included
losses attributable to Crawley as a result of her participation in the business of
Rehabilicare and a related company known as Mississippi Care Partners. But
it also included losses resulting from Crawley’s activity with two other
companies, Progressive Physical Medicine and Statewide Physical Medicine.
Crawley objects to the inclusion of losses from Progressive and Statewide in the
restitution order because she was not charged with any offenses related to those
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companies. We conclude, however, that the district court did not abuse its
discretion. Because Crawley’s counts of conviction required proof of a conspiracy
or a scheme, the district court was entitled to include within its restitution order
all losses resulting from the conspiracy or scheme, which included Crawley’s
activity related to Progressive and Statewide.1 See United States v. Maturin, 488
F.3d 657, 661 (5th Cir. 2007); see also 18 U.S.C. § 3663A(a)(2). The district court
was also entitled to rely on information contained in the presentence report
(PSR) as to the amount of loss because Crawley offered no evidence contesting
the PSR and did not show that it was inaccurate or unreliable. See United
States v. Ford, 558 F.3d 371, 376–77 (5th Cir. 2009).
The district court ordered Crawley to pay restitution at a rate of $2500 per
month, and it made the restitution payments a condition of Crawley’s supervised
release. Crawley argues that she should be ordered to make only nominal
restitution payments and that payment should not be a condition of supervised
release because of her inability to pay. Under the Mandatory Victims
Restitution Act, the district court was required to order restitution in the full
amount of loss regardless of the defendant’s economic circumstances. See 18
U.S.C. § 3664(f)(1)(A). The district court has discretion to order only nominal
periodic payments, 18 U.S.C. § 3664(f)(3)(B), and to order restitution as a
condition of supervised release. See Maturin, 488 F.3d at 660 n.1; 18 U.S.C.
§ 3583(d). Nevertheless, the financial resources of the defendant are relevant
to determining the schedule under which restitution is to be paid. See United
States v. Calbat, 266 F.3d 358, 366 (5th Cir. 2001); 18 U.S.C. § 3664(f)(2). The
1
Crawley also argues that the amounts related to Progressive and Statewide should
be excluded from the restitution order because they are beyond the temporal scope of the
indictment. Although she argued in the district court that these amounts were not charged
in the indictment, Crawley raised no argument about their temporal relationship to the
charges. Because she raises this argument for first time on appeal in her reply brief, we
decline to consider it. See United States v. Aguirre-Villa, 460 F.3d 681, 683 n.2 (5th Cir. 2006).
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district court is in the best position to determine the defendant’s ability to pay
and the reasonableness of a payment schedule. Having said that, however, we
note that in this case the district court determined that Crawley lacked the
ability to pay a fine or interest on the restitution, and the PSR shows that
Crawley’s current financial means are limited. The Government makes no
argument about Crawley’s ability to pay. We see no reason to believe the court
intended to order under those circumstances that Crawley could be sent back to
prison for failure to make restitution payments in a timely manner. See Calbat,
266 F.3d at 366. We believe that the district court’s judgment should be
interpreted to be that supervised release is not conditional upon payment of
restitution if Crawley is unable to pay as ordered.
AFFIRMED.
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