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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-13656
Non-Argument Calendar
________________________
D.C. Docket No. 2:15-cr-00037-RWS-JCF-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MATILDA PRINCE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(August 12, 2019)
Before ROSENBAUM, JILL PRYOR and FAY, Circuit Judges.
PER CURIAM:
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Matilda Prince appeals her convictions for 29 counts of health care fraud, in
violation of 18 U.S.C. § 1347. We affirm.
I. BACKGROUND
Prince was charged in a superseding indictment by a grand jury with 29
counts of health care fraud by filing 29 false claims for payment with Medicare
and Medicaid, in violation of 18 U.S.C. § 1347. The superseding indictment
alleged the following. Prince was the owner and operator of Pickens Eye Clinic, a
company located in Jasper, Georgia, which purported to provide a variety of
optometry and ophthalmology services to a primarily senior citizen population.
Her brother, Martin Prince, owned an eye care company called The Eye Gallery,
which provided the same services and for which Prince worked, advertised, and
provided eye care services. Prince was never licensed in Georgia as a physician,
optometrist, ophthalmologist, or dispensing optician.
In order to obtain reimbursement for the eye care services allegedly
performed by Pickens Eye Clinic and The Eye Gallery, Prince entered “Current
Procedural Terminology Manual” (“CPT”) codes identifying medical services and
procedures on claims she electronically submitted to Medicare and Medicaid,
which, through fiscal intermediaries, relied on the codes in paying the claims. The
claims were submitted to Medicare and Medicaid using the names, identities, and
uniquely assigned provider numbers of two medical providers who were licensed
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optometrists that Prince had hired through a third-party physician contracting
agency. Prince made claims to Medicare and Medicaid for optometry services that
had not been provided.
In November 2010, Prince was ordered in a proceeding in the Superior Court
of DeKalb County, Georgia, not to receive any benefits, or be employed or
involved with, any entity that received Medicaid or Medicare funding for a period
of five years and to pay restitution in the amount of $109,712.26 to Georgia
Medicaid. She and Pickens Eye Clinic were also excluded by the U.S. Department
of Health and Human Services from participating in Medicare, Medicaid, and all
federal health care programs, making them ineligible to submit claims for any
services provided after September 20, 2011.
The superseding indictment also alleged that Prince generated business by
offering on-site eye exams and prescription glasses at no charge to Medicare and
Medicaid recipients at public housing complexes with large senior citizen
populations. After receiving Medicare and Medicaid numbers from recipients, she
used their identities and the identities of the licensed optometrists to submit claims
for optometry services, such as “closure of the lacrimal punctum by plug,” and
backdated claims for optometry services that were not rendered. The indictment
included a table of the Medicare and Medicaid claims by date of service, date the
claim was submitted, CPT code, and patient, separated into 29 counts. Counts 2
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through 4 alleged that Prince had made fraudulent claims with respect to a patient
named “W.M.” for services dated June 27, July 18, and August 8, 2011.
Prince entered a not-guilty plea. The government filed a notice of intent to
introduce evidence under Federal Rule of Evidence 404(b). It then filed a motion
in limine to admit at trial intrinsic evidence or, in the alternative, to admit similar
acts evidence under Rule 404. The exhibits included a single-count indictment
from DeKalb County Superior Court on December 10, 2009, charging Prince with
Medicaid fraud, in violation of § 49-4-146 of the Georgia Code. The exhibits also
included Prince’s state court criminal judgment and a later consent order to modify
her sentence, which showed that Prince pled guilty to the count and was sentenced
as a “first offender” to a ten-year term of probation, required to pay restitution of
$109,172.26, and barred from owning, deriving income from, or being employed
by any business that received Medicare or Medicaid funds for five years.
The district court granted the motion with respect to Prince’s 2010
conviction for Medicaid fraud and sentencing under the Georgia First Offender Act
and evidence of her exclusion from federal health care programs in 2011. It
reasoned that the evidence was intrinsic because it was inextricably intertwined
with the charged offenses and was therefore not prohibited by Rule 404(b). It also
concluded that, even if it was not intrinsic, the evidence was still admissible under
Rule 404(b).
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Walter Morton and Debbie Sanders, residents of the Summerville Housing
Authority apartment building, testified about their experiences with The Eye
Gallery and Prince. They both testified that they received eye exams and ordered
glasses when Prince visited their apartment building in May 2012. They each saw
Prince a few more times when she came to their apartment building to deliver
glasses, fit some residents for sunglasses, and deliver sunglasses. Prince billed
Medicare and Medicaid for providing Morton and Sanders with the service of
closing the lacrimal punctum by plugs multiple times and listed Dr. Carl Llabres as
the treating optometrist. While Morton could not recall whether he had very small
plugs placed in his tear ducts, Sanders confirmed that she did not receive that
procedure, nor had she seen any residents getting plugs in their eyes during
Prince’s visits. Sanders identified three forms she had signed but not read, which
she was required to bring to Prince on May 23, 2012, for the free eye exam and
eyeglasses. The documents were claim forms, which showed she had plug
procedures to close her tear duct openings on June 27, July 18, and August 8, 2011,
billed through Pickens Eye Clinic. On cross-examination, she confirmed that she
did sign the documents.
Dorothy Swift, an investigative analyst with the Department of Health and
Human Services, Office of the Inspector General, testified regarding Prince and
Pickens Eye Clinic’s exclusion from Medicare in September 2011 based on her
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state conviction. The government asked the district court to give a limiting
instruction regarding her testimony about Prince’s state court conviction and
exclusion from federal health care programs. The district court instructed the jury
that it could consider evidence of other violations or potential alleged violations of
the law for the limited purpose of determining whether Prince had the intent to
commit the crime charged, whether there was some accident or mistake on her part
in committing the charged crime, and as proof of some method or means of
accomplishing an illegal act, but not to decide whether she actually committed the
crimes charged.
Mary Davis, Linda Romine, and Cindy Hightower also testified that they
had attended Prince’s clinic at their apartment complex, Calhoun Gardens, where
they received eye exams, and some received glasses. They each testified that they
had not received punctum plugs.
Betty Lue Gordon, an employee at PRN Eye Associates, a referral services
for optometrists, testified that she sent two optometrists, Dr. Llabres and Dr.
Desarae Bonds, to Pickens Eye Clinic and The Eye Gallery. In every case, she
always dealt with Prince, not her brother. Prince only requested optometrists to
perform simple eye exams, never anything more invasive or complex. Dr. Bonds
also testified regarding working for Prince from 2010 to 2013 and how the
punctum plugs procedure works. She was not aware that Prince had submitted
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claims for payment to Medicare and Medicaid under her name for performing the
punctum plug procedure, and she never authorized Prince to bill Medicare or
Medicaid under her name for those procedures.
On the third day of trial, the government informed the court that it would be
calling witnesses to talk about Prince’s state conviction and asked the district court
about giving another limiting instruction. Prince’s counsel did not request one, and
the district court did not give one to avoid over-emphasizing the evidence. Robert
Jones, a Georgia Medicaid investigative auditor, testified that Prince’s restitution
for her state conviction was paid in two lump payments. Additionally, Darlene
Herndon, a Georgia Medicaid Fraud Control Unit auditor, testified over Prince’s
objection as to Prince’s conviction in state court and explained that Prince was
prohibited from owing or receiving any money from Medicare or Medicaid for ten
years based on her state conviction.
The government submitted death certificates for Adrian Pickle and James
Edwards, the other patients referred to in Counts 8 through 10 and 26 through 29
of the indictment, who died before trial. Dr. Llabres did not testify at trial.
The government rested, and the defense made a Federal Rule of Criminal
Procedure 29 motion challenging the sufficiency of the evidence. The district
court denied the motion. The defense then called V.J. Henville, an investigator
with the Federal Defender Program, who testified that Lacrimedics, a company that
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sold punctum plugs, provided records showing that Prince ordered several hundred
punctum plugs from 2002 to 2010. Lisa Riley, an employee of Prince from 2011
to 2013, testified that she observed a physician named Dr. Llabres perform the
punctum plug procedure on residents at Calhoun Gardens.
After the defense rested and the court instructed the jury, Prince renewed her
Rule 29 motion, which the district court denied. In its charge to the jury, the
district court again gave a limiting instruction on how the jury could consider
Prince’s similar acts leading to her state court conviction. After 3 days of trial, the
jury convicted Prince on all 29 counts. The district court sentenced Prince to a
below-guidelines term of 40 months of imprisonment for each count, to run
concurrently, followed by 3 years of supervised release and ordered her to pay
$607,347.51 in total restitution to Medicare and Georgia Medicaid.
On appeal, Prince first argues that her indictment for health care fraud was
multiplicitous because it charged one crime in multiple counts. Second, she argues
that the district court abused its discretion by admitting evidence of her state
conviction because it was not intrinsic evidence and was inadmissible under
Federal Rule of Evidence 404(b). She also argues that its probative value was
substantially outweighed by the risk of undue prejudice. Third, she argues that
there was insufficient evidence to sustain a guilty verdict as to her submitting three
false insurance claims under the name Walter Morton.
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II. DISCUSSION
A. Multiplicity
Whether an indictment is multiplicitous is a question of law that we review
de novo. United States v. Pacchioli, 718 F.3d 1294, 1307 (11th Cir. 2013). If a
defendant fails to raise a claim that the indictment was multiplicitous before trial
under Federal Rule of Criminal Procedure 12(b)(3)(B) and (c), we may review the
forfeited claim for plain error. United States v. Gonzalez, 834 F.3d 1206, 1218
(11th Cir. 2016). “We may correct a plain error only when (1) an error has
occurred, (2) the error was plain, . . . (3) the error affected substantial rights,” and
(4) “the error seriously affect[ed] the fairness, integrity, or public reputation of
judicial proceedings.” Id. (alteration in original) (quoting United States v. Cotton,
535 U.S. 625, 631-32, 122 S. Ct. 1781, 1785 (2002)). “[A]n error cannot meet the
‘plain’ requirement of the plain error rule if it is not clear under current law.”
United States v. Frank, 599 F.3d 1221, 1239 (11th Cir. 2010) (quoting United
States v. Castro, 455 F.3d 1249, 1253 (11th Cir. 2006)). Therefore, if the explicit
language of the statute or rule does not specifically resolve the issue, and there is
no precedent from us or the Supreme Court directly resolving it, there is no plain
error. Id. As for sentencing challenges, we have held multiplicity to be “harmless
error” where the conviction on one of the counts would stand and the defendant’s
sentences were concurrent. Pacchioli, 718 F.3d at 1308.
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“An indictment is multiplicitous if it charges a single offense in more than
one count. A multiplicitous indictment not only subjects the defendant to
numerous sentences for one offense, but also ‘prejudice[s] the defendant and
confuse[s] the jury by suggesting that not one but several crimes have been
committed.’” United States v. Williams, 527 F.3d 1235, 1241 (11th Cir. 2008).
(alterations in original) (citations omitted) (quoting United States v. Hearod, 499
F.2d 1003, 1005 (5th Cir. 1974)). “A multiplicitous indictment therefore violates
the principles of double jeopardy because it gives the jury numerous opportunities
to convict the defendant for the same offense.” Id. We use the Blockburger 1 test
to determine whether an indictment is multiplicitous and verify that each count
requires an element of proof that the other counts do not require. Id.; see also
United States v. Costa, 947 F.2d 919, 926 (11th Cir. 1991) (holding that charges
are not multiplicitous where they differ by even a single element or alleged fact).
What constitutes an “execution” of a scheme to defraud is a fact-specific
inquiry. United States v. De La Mata, 266 F.3d 1275, 1287 (11th Cir. 2001).
Whether a particular transaction is an “execution” of the scheme or merely a
component of the scheme depends on “the ultimate goal of the scheme, the nature
of the scheme, the benefits intended, the interdependence of the acts, and the
number of parties involved.” Id. at 1288.
1
Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182 (1932).
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We have interpreted the similarly worded bank fraud statute to allow for a
defendant to be charged in separate counts for each “execution” of a scheme to
defraud. See id. at 1287; United States v. Sirang, 70 F.3d 588, 595-96 (11th Cir.
1995). Although we did not rule directly on the issue of multiplicity in De La
Mata, we defined what constituted a single “execution” of bank fraud. 266 F.3d at
1289. Specifically, we held that each signing of a lease with the victim bank, as
opposed to each lease payment, constituted an execution of bank fraud because
only the signing of the lease exposed the bank to new financial risks. Id.
Similarly, in Sirang, the defendant was charged with four separate counts of bank
fraud for withdrawing four checks from an account and depositing them into the
receiving bank on the same day. 70 F.3d at 595-96. We rejected his multiplicity
claim, holding that each check involved a separate movement of money and
created a separate risk for the receiving bank, and thus, each check was a separate
execution of the scheme. Id.
A person commits health care fraud when she:
knowingly and willfully executes, or attempts 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,
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in connection with the delivery of or payment for health care benefits,
items, or services, [and as a result, the individual] shall be fined under
this title or imprisoned not more than 10 years, or both.
18 U.S.C. § 1347(a).
Because Prince failed to raise a claim that the indictment was multiplicitous
before trial, we review Prince’s challenge only for plain error. See Gonzalez, 834
F.3d at 1218. Notably, Prince does not challenge her total sentences, and any
possible error in her sentences was harmless because the alleged multiplicitous
counts resulted in concurrent sentences. See Pacchioli, 718 F.3d at 1308. Prince
cannot show there was any error in the indictment because each false claim she
filed with Medicare or Medicaid was a separate execution of her scheme to defraud
the government.
Although Prince’s scheme targeted only Medicare and Medicaid, she
achieved the ultimate goal in her scheme and the benefits she intended, obtaining
payment, with each fraudulent claim she made to Medicare or Medicaid. De La
Mata, 266 F.3d at 1288. Like the scheme in Sirang, Prince’s scheme involved
separate movements of money for each fraudulent claim against Medicare or
Medicaid. See Sirang, 70 F.3d at 595-96. Moreover, for each count alleged in the
indictment, the government was required to prove each element of § 1347 with
respect to each separate claim, including that each transaction was fraudulent. See
Williams, 527 F.3d at 1241. Accordingly, each claim was properly treated as a
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separate execution of the scheme. the district court did not err, much less plainly
err, by allowing the government to proceed under the superseding indictment. See
Frank, 599 F.3d at 1239.
B. State Conviction Evidence
We review the district court’s decision to admit or exclude evidence for an
abuse of discretion. United States v. Crabtree, 878 F.3d 1274, 1287 (11th Cir.
2018). We will affirm an evidentiary decision unless the district court made a clear
error of judgment or applied the wrong legal standard. United States v. Frazier,
387 F.3d 1244, 1259 (11th Cir. 2004) (en banc). The abuse of discretion standard
gives district courts considerable leeway, and they have a range of choice about
whether to admit or exclude evidence. Id. at 1258-59. One reason for granting
district courts discretion in their evidentiary rulings is that district courts may have
knowledge about the case that is not conveyed in the record. United States v.
Brown, 415 F.3d 1257, 1265 (11th Cir. 2005). “[A]ll doubt should be resolved in
favor of admissibility” if the proffered evidence has substantial probative value and
does not tend to prejudice or confuse the jury. Frazier, 387 F.3d at 1303 (quoting
United States v. Terebecki, 692 F.2d 1345, 1351 (11th Cir. 1987) (Hill, J.,
dissenting)).
Rule 404(b) prohibits evidence of other crimes, wrongs, or acts from being
admitted to prove a defendant’s character in order to show action in conformity
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with her character. Fed. R. Evid. 404(b). However, such evidence may be
admitted for other purposes, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident. Id.
With respect to intent, we have authorized admission of evidence of similar frauds
committed by a defendant to show that she had the intent to commit the fraud
charged in an indictment. See United States v. Brown, 665 F.3d 1239, 1242-43,
1248 (11th Cir. 2011) (holding that evidence of the defendant’s involvement in two
prior bank fraud schemes was admissible to show his fraudulent intent and absence
of mistake in committing the charged fraud scheme). A defendant places her intent
at issue by pleading not guilty. See United States v. Edouard, 485 F.3d 1324, 1345
(11th Cir. 2007).
Evidence of criminal activity other than the charged offense is not subject to
Rule 404(b) if it is: (1) evidence of an uncharged offense which arose out of the
same transaction or series of transactions as the charged offense; (2) evidence that
is necessary to complete the story of the crime; or (3) evidence that is inextricably
intertwined with evidence regarding the charged offense. United States v. Ford,
784 F.3d 1386, 1393 (11th Cir. 2015). Evidence concerning uncharged conduct is
intrinsic evidence when the uncharged conduct was part of the same scheme or
series of transactions as the charged offense and used the same modus operandi.
Id. at 1394. Evidence is inextricably intertwined with the evidence of the charged
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offense when “it forms an integral and natural part of the witness’s accounts of the
circumstances surrounding the offenses for which the defendant was indicted.”
Edouard, 485 F.3d at 1344 (quotation marks omitted).
Whether offered under Rule 404(b) or as intrinsic evidence, the district court
must find that the probative value of the proffered evidence is not substantially
outweighed by unfair prejudice and that it meets the other requirements of Rule
403. Ford, 784 F.3d at 1393. Evidence is excludable if its probative value is
substantially outweighed by a danger of unfair prejudice. See Fed. R. Evid. 403.
The district court did not abuse its discretion by ruling that evidence of
Prince’s 2010 state guilty plea to Medicaid fraud and subsequent sentencing as a
first-time offender was admissible as evidence of her resulting exclusion from
federal health care programs in 2011. The district court correctly determined that
the evidence was intrinsic, as Prince used a similar modus operandi to accomplish
her fraud, even though she used a company incorporated under her brother’s name
to conceal it. See Ford, 784 F.3d at 1393-94. Importantly, her exclusion from
federal health care programs as a result of her state conviction explained why she
backdated claims and used The Eye Gallery, instead of Pickens Eye Clinic, to
submit the instant fraudulent claims.
In addition, evidence of her state guilty plea and restitution obligation,
alongside her lump sum payments of restitution, showed her intent and motive for
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committing the instant fraud. Therefore, Prince’s state conviction was necessary to
complete the story of her crime. See id. Furthermore, the district court correctly
concluded that, in the alternative, the evidence was admissible under Rule 404(b)
as evidence of Prince’s intent, identity, knowledge, lack of accident, and absence
of mistake. See Fed. R. Evid. 404(b). As in Brown, evidence of Prince’s guilty
plea, first-offender sentence, and resulting exclusion from Medicare and Medicaid
showed her fraudulent intent and absence of mistake in committing the charged
offenses under the cover of the new company, The Eye Gallery, and in her
brother’s name. See Brown, 665 F.3d at 1242-43, 1248.
Finally, the probative value of the evidence was not substantially
outweighed by the risk of undue prejudice. See Fed. R. Evid. 403. First, Prince
placed her knowledge and intent at issue by pleading not guilty. Edouard, 485
F.3d at 1345. The government was required to rely on probative circumstantial
evidence of her intent to commit fraud, given the lack of direct evidence of her
intent. Id. Her argument that the government did not need to show she pleaded
guilty to show that she owed restitution has merit. However, as mentioned above,
the government entered into evidence the state criminal judgment for multiple
reasons, including to show why the claims were linked to The Eye Gallery and her
brother, and to prove that the claims were backdated. See Ford, 784 F.3d at 1393-
94. Therefore, the district court did not abuse its discretion when it concluded that
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the probative value of the state court judgment evidence was not substantially
outweighed by the risk of undue prejudice. See Fed. R. Evid. 403.
The district court also limited the prejudicial effect of the evidence by giving
a limiting instruction before the evidence was first presented and again in the jury
charge. Thus, the district court acted within its discretion when it declined to
exclude the evidence of Prince’s state conviction and sentence. See Crabtree, 878
F.3d at 1287.
C. Sufficiency of the Evidence
We review de novo whether sufficient evidence supports a conviction,
drawing all reasonable factual inferences from the evidence in favor of the verdict.
United States v. Beckles, 565 F.3d 832, 840 (11th Cir. 2009). We assume that the
jury made all credibility choices in support of the verdict. United States v.
Thompson, 473 F.3d 1137, 1142 (11th Cir. 2006). Evidence is sufficient if a
reasonable trier of fact could find that it established guilt beyond a reasonable
doubt. Beckles, 565 F.3d at 840. In rebutting the government’s evidence, a
defendant must do more than put forth a reasonable hypothesis of innocence,
because the issue is whether a reasonable jury could have convicted, not whether a
conviction was the only reasonable result. Id. at 840-41.
To support a conviction for health care fraud under 18 U.S.C. § 1347, the
government must prove that the defendant: (1) knowingly and willfully executed,
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or attempted to execute, a scheme to (2) defraud a health care program or to obtain
by false or fraudulent pretenses money or property under the custody or control of
a health care program, (3) “in connection with the delivery of or payment for
health care benefits, items, or services.” 18 U.S.C. § 1347. The government must
show that the defendant knew that the submitted claims were false. United States
v. Medina, 485 F.3d 1291, 1297 (11th Cir. 2007). In a mail fraud case, we
explained that knowingly making false representations is one way in which a
person may execute a scheme to defraud. United States v. Scott, 701 F.2d 1340,
1343-44 (11th Cir. 1983). In another mail fraud case, we explained that to prove
that a defendant intentionally executed a scheme to defraud, the government must
prove that she had the specific intent to defraud. United States v. Suba, 132 F.3d
662, 675 (11th Cir. 1998). However, the government may rely on circumstantial
evidence to establish specific intent. Id.
In challenging whether sufficient evidence supported her convictions as to
Counts 2 through 4 involving Morton, Prince appears to challenge only whether
the claims described in those counts were false or fraudulent. Although Morton
testified at trial that he could not be sure that he did not receive a punctum plug,
and Dr. Llabres, who allegedly had performed the procedure, did not testify, there
was sufficient evidence for a jury to find Prince guilty of health care fraud for the
counts involving Morton. See Williams, 527 F.3d at 1244. The circumstantial
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evidence supported that Morton, like the other patients at the Summerville Housing
Authority apartment, did not receive the punctum plug procedure billed by Prince.
See Beckles, 565 F.3d at 840. The evidence was uncontested that Prince billed for
a punctum plug procedure performed on Morton. Meanwhile, Morton testified that
he had only seen Prince twice, having an eye exam and receiving eye drops on the
first visit and only picking up glasses on the second. He testified that he was
“blown away” by the Medicare and Medicaid benefits statement claiming he had
received the punctum plug procedure.
Sanders testified that she was there on the same day that Morton received an
eye exam and also received a benefits statement stating she had received the
punctum plug procedure, even though she did not receive the procedure or see
anyone who did. Thus, Morton’s testimony that he was surprised by the punctum
plug claim and Sanders’s testimony that no one received the punctum plug
procedure on the day she and Morton received their eye exams supports an
inference that Morton did not receive the punctum plug procedure.
Furthermore, Dr. Bonds testified that the procedure could not be performed
at a community center. She testified that she was at the community center on the
same day Morton allegedly received the procedure, did not perform the procedure
or see anyone perform the procedure, did not see the necessary equipment for the
procedure, and Prince was not qualified to perform the procedure. As reflected in
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the testimony of Davis, Hightower, and Romine, Prince’s billing Medicare for
services she did not perform for Morton and Sanders was consistent with her
practice of billing services she did not provide to the Calhoun Gardens residents
that same summer. Thus, the trial testimony established Prince’s pattern of
fraudulent billing.
Prince’s pattern of fraudulent billing alone was arguably insufficient to
support an inference that she submitted false claims as to Morton. However, taken
together with Sanders’s and Morton’s testimony also supporting an inference that
Prince never performed the procedure during her visit to the Summerville Housing
Authority apartment, the evidence was sufficient to support an inference that
Morton, like Sanders, Davis, Hightower, and Romine, never received the punctum
plug procedure on the date billed.
Accordingly, based on the testimony of Sanders, Morton, Dr. Bond, Jones,
Davis, Hightower, and Romine, a reasonable factfinder could infer that Dr. Llabres
never performed the procedure on Morton that was billed to Medicare, even though
Morton was unsure whether the procedure was performed on him and Dr. Llabres
did not testify.
Finding no merit in the arguments presented, we affirm the convictions and
sentences.
AFFIRMED.
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