Case: 12-20827 Document: 00512621851 Page: 1 Date Filed: 05/07/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 12-20827
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
May 7, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
PHILIP WARE,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:11-CR-112-2
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Following a jury trial, Philip Ware was convicted of conspiracy to commit
health-care fraud, in violation of 18 U.S.C. § 1349, and health-care fraud, in
violation of 18 U.S.C. § 1347, and was sentenced to 46 months of imprisonment.
On appeal, he challenges the sufficiency of the evidence to support his
convictions, specifically urging that the evidence fails to show that he
knowingly and deliberately joined a criminal venture, as was necessary to
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 12-20827
sustain his conspiracy conviction, or that he knowingly rather than
accidentally participated in any fraudulent conduct, as was necessary to
sustain his health-care fraud convictions.
A reasonable factfinder could have found the evidence sufficient to show
Ware’s knowledge of the conspiracy, his intent to join it, and his specific intent
to defraud Medicare beyond a reasonable doubt. See United States v. Umawa
Oke Imo, 739 F.3d 226, 235-36 (5th Cir. 2014) (citing United States v. Moreno-
Gonzalez, 662 F.3d 369, 372 (5th Cir. 2011)); see also United States v. Ismoila,
100 F.3d 380, 387 (5th Cir. 1996). For example, coconspirator Simone Ball’s
testimony established that she and Ware entered into an agreement and
willfully participated in a conspiracy with a friend through their company,
Preferred Plus. She testified that they knowingly submitted claims to Medicare
which plainly showed that they were billing for items of a much higher quality
than those actually delivered. Ball’s testimony further established that she and
Ware eventually discovered that the reimbursement claims they were
submitting to Medicare were themselves fake but that they nevertheless
continued the scheme. According to Ball, Ware subsequently researched how
to modify previously denied claims in order to secure additional
reimbursements, then proceeded on his own to do so. See United States v. Read,
710 F.3d 219, 226 (5th Cir. 2012).
This testimony was corroborated by phone records that confirmed,
among other things, that Ware alone called to modify falsely 105 previously
denied claims for knee braces in an effort to receive additional fraudulent
reimbursements. Bank records showed that, following those calls, Ware
withdrew large sums of cash from the bank accounts to which the Medicare
reimbursements were made. See United States v. Soape, 169 F.3d 257, 264 (5th
Cir. 1999). Bank records further showed that Ware and Ball received
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No. 12-20827
approximately $500,000 in Medicare and Medicaid reimbursements whereas
they had only purchased approximately $20,000 worth of DME inventory. See
United States v. Davis, 490 F.3d 541, 549-50 (6th Cir. 2007); United States v.
Pettigrew, 77 F.3d 1500, 1519 (5th Cir. 1996).
Ware also lied to an inspector who sought to conduct an audit of
Preferred Plus’s records, telling the inspector that Ball had the records when
she did not. This provides further circumstantial proof of Ware’s guilty
knowledge. See United States v. Villarreal, 324 F.3d 319, 325 (5th Cir. 2003);
United States v. Romero-Reyna, 867 F.2d 834, 836 (5th Cir. 1989). To the extent
that Ware argues that the evidence of his limited mental capacities
undermined the government’s evidence of specific intent, that argument is
unavailing. See United States v. Girod, 646 F.3d 304, 314-15 (5th Cir. 2011).
The jury clearly did not credit Ware’s witnesses, and we accept “all credibility
choices and reasonable inferences made by the trier of fact which tend to
support the verdict.” See Oke Imo, 739 F.3d at 235.
Accordingly, the district court’s judgment is AFFIRMED.
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