Case: 14-20579 Document: 00513401222 Page: 1 Date Filed: 03/01/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-20579 FILED
Summary Calendar March 1, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
ANDREA MICHELLE TELLISON,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:13-CR-167
Before BARKSDALE, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM: *
Andrea Michelle Tellison claims the evidence was insufficient to support
her jury-trial convictions for: 14 counts of health-care fraud, in violation of 18
U.S.C. §§ 1347 and 2 (aiding-and-abetting liability); and, seven counts of
aggravated identity theft, in violation of 18 U.S.C. § 1028A.
Tellison preserved her sufficiency claims because she moved for
judgment of acquittal at the close of the Government’s case and rested without
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 14-20579
introducing any evidence. See United States v. DeLeon, 247 F.3d 593, 596 n.1
(5th Cir. 2001). Accordingly, her claims are reviewed de novo, “view[ing] all
evidence . . . in the light most favorable to the [G]overnment, with all
reasonable inferences and credibility choices to be made in support of the jury’s
verdict”. United States v. Grant, 683 F.3d 639, 642 (5th Cir. 2012) (quoting
United States v. Ford, 558 F.3d 371, 375 (5th Cir. 2009)). “The evidence
presented need not exclude every reasonable hypothesis of innocence or be
wholly inconsistent with every conclusion except that of guilt.” United States
v. Imo, 739 F.3d 226, 235 (5th Cir. 2014) (internal quotation marks omitted)
(quoting United States v. Moreno-Gonzalez, 662 F.3d 369, 372 (5th Cir. 2011)).
To prove health-care fraud, the Government must establish, beyond a
reasonable doubt, that Tellison
knowingly and willfully execute[d], or attempt[ed] to
execute, a scheme or artifice[ ] (1) to defraud any
health care benefit program; or (2) to obtain, by means
of false or fraudulent pretenses, representations, or
promises, any of the money or property owned by, or
under the custody or control of, any health care benefit
program, in connection with the delivery of or payment
for health care benefits, items, or services.
Id. at 235–36 (quoting 18 U.S.C. § 1347). The Government need not prove that
Tellison either submitted fraudulent documentation or “had actual knowledge
of or specifically intended to violate the applicable health care fraud statutes”.
Id.
For aiding-and-abetting liability, “the Government must establish [,
beyond a reasonable doubt,] that (1) the elements of [health-care fraud]
occurred and (2) [Tellison] associated with the criminal activity, participated
in it, and acted to help it succeed”. United States v. Barnes, 803 F.3d 209, 216
(5th Cir. 2015).
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No. 14-20579
Tellison does not dispute that Texas Durable Medical Company, which
she co-owned and managed, defrauded Medicare and Medicaid by submitting
claims for enteral nutrition and feeding supplies that were not: prescribed by
a physician; medically necessary; or delivered to beneficiaries. Instead, she
contends the Government has not established she: submitted the fraudulent
claims; assisted another person in doing so; or knew of them.
For the following reasons, and viewing the evidence in the requisite light
most favorable to the Government, sufficient evidence established that
Tellison knowingly and willfully defrauded Medicare and Medicaid, or aided
and abetted others in doing so. The Government established, inter alia:
Tellison’s signature was on forms falsely certifying beneficiaries needed
enteral nutrition; Tellison admitted to investigators that she knew Texas
Durable was billing Medicare and Medicaid for items that were neither
medically necessary nor being delivered to beneficiaries; and Tellison admitted
she was responsible for the company’s daily activities, including its billing.
Moreover, Tellison’s knowledge and intent to defraud Medicare and
Medicaid could have been inferred from her position of authority at Texas
Durable. See United States v. Willett, 751 F.3d 335, 339–42 (5th Cir. 2014).
The Government presented evidence that, in addition to being a co-owner and
manager of Texas Durable, Tellison: was listed as the company’s authorized
representative and contact person on Medicare forms, bank accounts, and
suppliers’ records; was present during several on-site inspections; was
responsible for ensuring the company complied with state and federal laws;
and had extensive knowledge of the billing codes for enteral nutrition and
feeding supplies.
Concerning her identity-theft convictions (Texas Durable’s knowingly
and unlawfully using physicians’ unique identification numbers to submit the
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No. 14-20579
fraudulent claims to Medicare and Medicaid), Tellison asserts only that,
because there was no evidence she committed health-care fraud, the evidence
was, therefore, insufficient to support her convictions for aggravated identity
theft. But, as discussed supra, the evidence was sufficient to sustain those
convictions. In any event, Tellison does not provide factual or legal analysis to
support her claim. Consequently, she has abandoned her challenge due to
inadequate briefing. United States v. Cothran, 302 F.3d 279, 286 n.7 (5th Cir.
2002).
AFFIRMED.
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