United States v. Jackson

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 2, 2007

Charles R. Fulbruge III
Clerk
No. 04-20600

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

CLEMIS LARAINE JACKSON, MD; WESLEY ALFORD BOYD, JR

Defendants - Appellants

Appeals from the United States District Court
for the Southern District of Texas, Houston
No. 4:02-CR-120-3

Before KING, GARZA, and OWEN, Circuit Judges.

KING, Circuit Judge:*

Defendants-appellants Clemis Laraine Jackson, M.D. and

Wesley Alford Boyd, Jr. appeal their convictions and sentences

resulting from their involvement in physical-therapy clinics that

fraudulently billed Medicare and Medicaid. For the reasons that

follow, we affirm Jackson’s convictions and sentence. We also

affirm Boyd’s convictions for conspiracy and payment of illegal

remunerations (kickbacks). But concluding that the government

presented insufficient evidence, we reverse Boyd’s conviction for

*
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this opinion should not be published and is not precedent except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.
health-care fraud, and we vacate his sentence and remand for

resentencing.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case centers around two Houston, Texas, physical-

therapy clinics that engaged in fraudulent billing of Medicare

and Medicaid. The first of the clinics, Quality Medi-Care Health

Care Clinic, Inc. (“Quality”), was opened and operated by Henry

Lewis Reece, Jr. and Mark Anthony Broussard. Quality was open

from about 1996 to 1998. Initially, Quality’s business consisted

primarily of automobile-accident victims. At some point,

however, Broussard brought his friend, defendant-appellant Wesley

Alford Boyd, Jr., to meet with Reece, and Boyd advised them that

they should get Quality enrolled with Medicare and Medicaid.

Broussard and Reece hired Boyd as a consultant and paid him

$10,000 to assist them in transitioning Quality into a primarily

Medicare/Medicaid clinic. Boyd’s involvement with Quality was

limited to this transition period.

Since Medicare and Medicaid would pay only for services

billed by a physician, Reece and Broussard brought defendant-

appellant Clemis Laraine Jackson, M.D. on board as Quality’s

Medical Director. Jackson’s role was to perform a physical

examination on each patient, diagnose the patient, and prescribe

and oversee the patient’s physical therapy.

Although it was unlawful to do so, Quality hired individuals

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to recruit Medicare and Medicaid patients to the clinic and paid

them $100 to $300 for each patient referral. These “marketers”

targeted areas with a high concentration of elderly individuals.

Reece testified that Boyd told him and Broussard of adult-day-

care centers and elderly communities where potential patients

could be found. In addition to using marketers, Quality paid its

employees bonuses for patient referrals.

Quality also intentionally misdiagnosed patients in order to

receive maximum payment from Medicare and Medicaid. Initially,

the clinic diagnosed many patients with arthritis. But after

Reece learned that Medicare did not pay as much for arthritis-

related therapy since it was merely palliative, he asked Jackson

to diagnose arthritic patients with conditions such as sprains

and strains. Jackson complied, and the clinic reaped the benefit

of higher Medicare payments.

The clinic also ignored Medicare and Medicaid’s requirement

of direct physician supervision. Medicare and Medicaid covers

physical therapy only if it is performed under the direct

supervision of a doctor. Although the therapy does not need to

be performed in a doctor’s immediate presence, Medicare and

Medicaid cover it only if it is performed in the same suite while

a doctor is present to assist if needed. But Quality billed

Medicare and Medicaid for therapy performed while Dr. Jackson was

not at the clinic, as well as for therapy provided in patients’

homes and not in Dr. Jackson’s presence. Reece testified that

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Boyd told him the direct-supervision requirement was a gray area

and that the clinic would not be investigated as long as it did

not bill more than a certain amount.

Quality additionally billed Medicare and Medicaid for

services that were never performed. This included billing for

extra, unperformed therapy sessions as well as for extra,

unperformed treatments within a therapy session.

At some point after Quality closed, Boyd approached Reece

and Broussard, told them he was not doing well, and offered to

sell them his Medicare and Medicaid provider numbers so that they

could open a new clinic. Boyd, Reece, and Broussard partnered

together to open the second clinic at issue in this case, Phycare

Healthcare Systems (“Phycare”). Phycare’s physician was Howard

Grant, M.D. Many of Phycare’s initial patients and employees

came from Quality. Like Quality, Phycare employed marketers who

were paid to recruit patients, and it paid its employees bonuses

for patient referrals.

Initially, Boyd was not heavily involved in Phycare’s day-

to-day operations, which were primarily overseen by Reece. But

after a short period, in April 1998, Boyd terminated the

partnership, and Reece and Broussard were no longer associated

with Phycare. After this occurred, Dr. Grant ran the day-to-day

operations. Throughout this period, however, Boyd was the sole

signatory on Phycare’s bank account; Boyd wrote the employees’

paychecks, and he endorsed and deposited the checks that came in

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to Phycare.

After a dispute between Boyd and Dr. Grant,1 Boyd severed

their business ties. Boyd subsequently opened Houston Rehab with

his mortuary-school classmate, Carl Brooks, in a different suite

of the same building where Phycare was located.2 Houston Rehab

also employed the use of individuals to recruit patients to the

clinic.

After an investigation involving both state and federal law-

enforcement agencies into various physical-therapy clinics,3 the

grand jury handed down a 70-count indictment.4 Count 1 charged

that Boyd and Jackson, along with several other individuals,

conspired together in violation of 18 U.S.C. § 371 to pay illegal

remunerations (kickbacks), to commit health-care fraud, and to

launder money. Counts 2 to 14 alleged various payments of

1
The dispute centered around (1) money Dr. Grant believed
Boyd owed him and (2) improper billing for Phycare patient
Timothy Brown, which is discussed in detail in the section of the
opinion pertaining to the sufficiency of the evidence.
2
The government and Boyd dispute whether Houston Rehab was
a new clinic separate from Phycare or rather the same clinic as
Phycare but with a new name. This dispute is not important for
the purposes of deciding this appeal.
3
The investigation looked into many more clinics than the
three mentioned here. We discuss solely Quality, Phycare, and
Houston Rehab because they are the only clinics relevant to this
appeal.
4
Nine individuals, including Jackson, Boyd, Reece, and
Broussard, were indicted. Pursuant to a plea agreement, Reece
pleaded guilty and testified in this case. Jackson, Boyd, and
Ronald A. Haley, M.D. proceeded to a jury trial. The jury
acquitted Haley of all charges.

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illegal remunerations in violation of 42 U.S.C.

§ 1320a-7b(b)(2)(A). Boyd was charged in counts 9 and 10 for two

checks paid to Phycare employee Michelle Gordon, allegedly for

patient referrals. Counts 15 to 60 alleged health-care fraud in

violation of 18 U.S.C. § 1347. Boyd was charged in count 44 in

connection with an allegedly fraudulent claim Phycare submitted

to Medicare for patient Timothy Brown.5

The jury convicted Jackson and Boyd of the counts listed

above. Boyd and Jackson now appeal both their convictions and

their sentences.

II. SUFFICIENCY OF THE EVIDENCE

A. Standard of Review

Because Boyd preserved his challenge to the sufficiency of

the evidence, we review de novo the district court’s denial of

his Rule 29 motion for a judgment of acquittal. United States v.

Anderson, 174 F.3d 515, 522 (5th Cir. 1999) (citing United States

v. Payne, 99 F.3d 1273, 1278 (5th Cir. 1996)).

In reviewing the sufficiency of the evidence, we view the

5
Boyd was also charged in counts 50, 51, 52, and 53 in
connection with certain Medicare billing performed by Houston
Rehab. The district court granted Boyd’s Rule 29 motion for a
judgment of acquittal on these counts.

Additionally, Jackson was charged in counts 24 and 25, but
the jury acquitted him of these charges.

Counts 61 to 70 alleged money laundering in violation of 18
U.S.C. § 1956(a)(1)(B)(i). Neither Boyd nor Jackson was charged
with money laundering.

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evidence and the inferences drawn therefrom in the light most

favorable to the verdict, and we determine whether a rational

jury could have found the defendant guilty beyond a reasonable

doubt. Id. (citing United States v. Burton, 126 F.3d 666, 669

(5th Cir. 1997); Payne, 99 F.3d at 1278). “The evidence need not

exclude every reasonable hypothesis of innocence or be wholly

inconsistent with every conclusion except that of guilt, and the

jury is free to choose among reasonable constructions of the

evidence.” Id. (quoting Burton, 126 F.3d at 669-70). “Moreover,

our standard of review does not change if the evidence that

sustains the conviction is circumstantial rather than direct.”

Id. (citing Burton, 126 F.3d at 670; United States v. Cardenas, 9

F.3d 1139, 1156 (5th Cir. 1993); United States v. Bell, 678 F.2d

547, 549 n.3 (Former 5th Cir. 1982)).

But “a verdict may not rest on mere suspicion, speculation,

or conjecture, or on an overly attenuated piling of inference on

inference.” United States v. Pettigrew, 77 F.3d 1500, 1521 (5th

Cir. 1996) (citing United Stats v. Menesses, 962 F.2d 420, 427

(5th Cir. 1992)). And “if the evidence, viewed in the light most

favorable to the verdict, gives equal or nearly equal

circumstantial support to a theory of guilt and a theory of

innocence, we must reverse the conviction.” United States v.

Salazar, 66 F.3d 723, 728 (5th Cir. 1995) (per curiam) (citing

United States v. Sanchez, 961 F.2d 1169, 1173 (5th Cir. 1992)).

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B. Health-Care Fraud

Boyd first challenges the sufficiency of the evidence for

his conviction on count 44 of health-care fraud in violation of

18 U.S.C. § 1347.6 After carefully reviewing the trial testimony

in the light most favorable to the government, we conclude that a

rational jury could not have found that the government proved

every element of count 44 beyond a reasonable doubt.

The indictment alleged in counts 15 to 60 that various

defendants engaged in a scheme to fraudulently obtain money from

Medicare and Medicaid by billing Medicare and Medicaid for

therapy not covered, not ordered by a physician, not provided by

qualified persons, and/or not provided at all. Count 44

specifically charged Boyd with submitting a false claim to

Medicare in the amount of $1,890.00 for services relating to

Phycare patient Timothy Brown.

6
Section 1347 makes it a crime to

knowingly and willfully execute[], or
attempt[] 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.

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 Brown testified that he was referred to Phycare in April

1998. Dr. Grant evaluated Brown during his first visit, and

Brown received treatment at Dr. Grant’s office three times a week

for several weeks. But in May or June of 1998, transportation

issues caused Brown to stop going to Phycare for further

treatment. After Brown stopped going to Phycare, however, he

received several Medicare Explanation of Benefits statements

indicating that Phycare had billed Medicare for treating Brown in

June and July of 1998. Brown discussed these statements in

person with Dr. Grant, and Dr. Grant explained that someone else

was billing Medicare automatically and that the automatic billing

had not been halted. Brown asked Dr. Grant for some money for

bringing the matter to his attention, and Dr. Grant paid Brown

$200 or $250 in cash. Brown also talked with Boyd by phone; Boyd

told Brown that the money Medicare paid on the claims would be

returned to Medicare.

Boyd does not dispute that Phycare continued to bill

Medicare for treating Brown even after Brown had stopped going to

Phycare. But Boyd contends that there is insufficient evidence

he knowingly billed Medicare for these unperformed services. He

argues that the evidence demonstrates the billing was being

performed automatically and that the false claim was submitted

because Brown stopped showing up for his appointments.

To establish that Boyd submitted the claim fraudulently, the

government first points to evidence that Boyd owned Phycare, that

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Boyd derived the most personal benefit from Phycare’s operation,

that Boyd was the sole signatory on Phycare’s bank account, that

Medicare paid Phycare $875.00 on the claim underlying count 44,

and that Boyd endorsed and deposited the Medicare check in

Phycare’s account. But this evidence does nothing more than

associate Boyd to some degree with the inaccurate claim; it does

not establish Boyd’s knowledge that the claim was inaccurate

either when it was submitted to Medicare or when the check was

received and deposited. Boyd’s having deposited the Medicare

check is equally as consistent with his purported belief in the

claim’s accuracy as it is with his alleged knowledge of its

inaccuracy.

The government next contends that Boyd’s conviction may be

sustained because the false claim for Brown’s therapy was

submitted in the course of a broad scheme to defraud Medicare.

At oral argument, the government opined that the only reason

Phycare was opened was to defraud Medicare and Medicaid and that

every claim Phycare submitted was therefore fraudulent. But as

we explain below, the government failed to establish that Boyd’s

knowledge of and participation in a scheme to defraud Medicare

extended to the practice of billing Medicare for therapy that was

never performed.

We acknowledge that the government did establish Boyd’s

participation in certain untoward practices at Phycare. For

example, Boyd participated in paying Phycare’s employees bonuses

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for referring patients. But there was no evidence that the

individual who referred Brown to Phycare was paid a referral

bonus. The government also established that Boyd condoned Reece

and Broussard’s practice at Quality of billing Medicare and

Medicaid for therapy that was performed without direct physician

supervision; Boyd told Reece, Broussard, and Jackson that this

was a gray area and that Quality would not be investigated as

long as it did not bill more than a certain amount. But the

government did not establish that this practice occurred at

Phycare.7 Moreover, it is undisputed that Brown’s therapy was

performed in Phycare’s office under the supervision of Dr. Grant.

Thus, although the government established Boyd’s participation in

certain questionable, even unlawful, practices at Phycare, none

of these practices was sufficient to sustain Boyd’s conviction on

count 44 because there was no evidence that these practices

occurred with respect to Brown’s therapy.

The only way the claim underlying count 44 could have been

fraudulent is if it were submitted to Medicare with knowledge

that the services were not performed. It thus would have been

highly relevant to count 44 had the government established that

Phycare routinely billed Medicare for services that were never

performed. But apart from the claim for Brown’s treatment, the

7
Reece did testify that Phycare was “going to operate in
the same manner that Quality . . . was operating,” but beyond
this broad statement, he did not testify that the direct-
physician-supervision rule was being violated at Phycare.

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government failed to present evidence that Phycare ever billed

Medicare for extra, unperformed therapy. And although the

government did establish that Quality routinely billed Medicare

for unperformed services after Boyd’s consultation services for

Quality were completed, the government never linked Boyd to such

billing at Quality. In sum, the government wholly failed to

present evidence that Boyd engaged in a scheme to defraud

Medicare by submitting claims for services that were never

performed.

Furthermore, the government never presented any evidence

refuting the innocent explanation its own witness provided for

the inaccurate claims: that the billing had been set up to be

done automatically and had simply not been stopped after Brown

stopped coming in for therapy. For example, there is no evidence

that Phycare continued to bill for Brown’s unperformed treatments

after Brown brought the situation to Boyd’s attention. Moreover,

the defense presented two letters that Boyd wrote to Dr. Grant in

which Boyd chided Dr. Grant for paying Brown money and asked Dr.

Grant for accurate documentation of the dates of Brown’s

treatment so that Boyd could determine how much to refund

Medicare; Dr. Grant never provided this information. And soon

after this incident, and in part because of this incident, Boyd

severed his relationship with Dr. Grant.

We conclude that the jury’s verdict on count 44 cannot

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stand, and we reverse Boyd’s conviction for health-care fraud.8

C. Illegal Remunerations (Kickbacks)

Boyd was convicted of counts 9 and 10 for the payment of

illegal remunerations (kickbacks) in violation of 42 U.S.C.

§ 1320a-7b(b)(2)(A).9 These counts concerned two checks in the

amounts of $300 and $200, respectively, that Boyd wrote to

Phycare employee Michelle Gordon allegedly for referring patients

to the clinic.

Boyd challenges the sufficiency of the evidence for these

counts. He does not dispute that he wrote the checks or that the

checks, if they were in fact payments for patient referrals, were

in connection with a federal health-care program. Instead, he

asserts that there was insufficient evidence the checks were for

patient referrals and that they instead could have been payroll

checks.

8
Because we reverse Boyd’s conviction for count 44, we need
not address Boyd’s argument that the jury instructions pertaining
to this count were erroneous.
9
Under this provision,

whoever knowingly and willfully offers or pays
any remuneration (including any kickback,
bribe, or rebate) directly or indirectly,
overtly or covertly, in cash or in kind to any
person to induce such person . . . to refer an
individual to a person for the furnishing or
arranging for the furnishing of any item or
service for which payment may be made in whole
or in part under a Federal health care
program . . . shall be guilty of a felony.

42 U.S.C. § 1320a-7b(b)(2)(A).

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 Boyd relies primarily on the fact that Gordon changed her

testimony at trial. During direct examination, Gordon testified

that she received these checks as bonuses for referring patients

to the clinic, but on cross examination she changed her testimony

and said that she could not remember whether the particular

checks were for patient referrals or for her salary.10

We conclude that despite Gordon’s changed testimony, there

was sufficient evidence that these two checks were payments for

Gordon’s patient referrals. Gordon testified that she referred

up to 20 patients to Phycare, that she was paid by check for

patient referrals, and that Boyd wrote all the checks she

received from Phycare; Gordon never changed this part of her

testimony. Moreover, the $300 check that was the basis for count

9 was notated “PR” in the memo line; although Boyd argued that

“PR” stood for “payroll” rather than “patient referral,” the jury

was free to conclude otherwise in light of the other evidence.

The government additionally presented evidence that Gordon’s

normal payroll checks were for more than $500 and were not in

even amounts, and they were often notated “salary” or “salary +

gas.” Furthermore, the amounts of these particular checks were

in line with the $100-to-$300 range that Reece testified his

employees at Quality were paid for each referral.

10
Ultimately, on redirect examination, Gordon testified
that the check that was the basis for count 9 could have been for
payroll or for patient referral: “[W]hichever way you-all want it
to be. I don’t know. I can’t remember.”

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 Based on this additional evidence, we conclude that a

rational jury could have found beyond a reasonable doubt that

Boyd wrote the particular checks in issue as payment for Gordon’s

referring Medicare or Medicaid patients to Phycare.

III. JURY INSTRUCTIONS

A. Standard of Review

Because Boyd did not preserve his arguments by proffering

the proper objections below, our review of the jury instructions

is for plain error. See United States v. Fuchs, 467 F.3d 889,

901 (5th Cir. 2006) (citing United States v. Rubio, 321 F.3d 517,

523 (5th Cir. 2003)). Under this standard, we may reverse only

if (1) there was error, (2) the error was clear and obvious, and

(3) the error affected the defendant’s substantial rights. See

id. (quoting United States v. Garcia Abrego, 141 F.3d 142, 165

(5th Cir. 1998)); FED. R. CRIM. P. 52(b). “In determining whether

a particular jury instruction was erroneous, we consider the jury

charge as a whole.” Russell v. Plano Bank & Trust, 130 F.3d 715,

721 (5th Cir. 1997) (reviewing for plain error) (citing Turnage

v. Gen. Elec. Co., 953 F.2d 206, 211-12 (5th Cir. 1992)).

Generally, to demonstrate that his substantial rights were

affected, “the defendant must make a specific showing of

prejudice.” United States v. Olano, 507 U.S. 725, 735 (1993);

see also United States v. Hickman, 331 F.3d 439, 443 (5th Cir.

2003) (“A defendant’s substantial rights are only affected if the

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error ‘affected the outcome of the district court proceedings.’”

(quoting Olano, 507 U.S. at 734)). Even if these criteria are

satisfied, reversal is discretionary; we reverse only if we

conclude that “the error seriously affects the fairness,

integrity or public reputation of judicial proceedings.” Olano,

507 U.S. at 736 (quotation marks and brackets omitted) (quoting

United States v. Atkinson, 297 U.S. 157, 160 (1936)); Garcia

Abrego, 141 F.3d at 166.

B. Illegal Remunerations (Kickbacks)

Boyd contends that the jury instructions for counts 9 and 10

contained plain error because the jury was instructed that it

could convict him based on “any kickback” paid “to any person.”

The portion of the jury instructions pertaining to these counts

described the first element of the crime of illegal remunerations

as, “offer[ing] or pa[ying] remuneration, including any kickback

or bribe, directly or indirectly, overtly or covertly, in cash or

in kind to any person.” Boyd argues that because there was

evidence that Boyd may have been involved with other kickback

payments, there was a substantial risk that the jury may have

convicted him on the basis of other purported kickbacks.

Viewing the jury charge as a whole, we conclude that the

instructions for counts 9 and 10 did not amount to plain error.

The district court instructed the jury that it was to “decide

whether the Government has proved beyond a reasonable doubt that

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the defendants are guilty of the crimes charged. The defendants

are not on trial for any act, conduct, or offense not alleged in

the indictment.” Furthermore, in the instructions pertaining to

counts 9 and 10, the court explained that the indictment charged

Boyd with making specific payments in the amounts of $300 and

$200. The court’s instruction on the first element simply

tracked substantially the language of 42 U.S.C. § 1320a-7b(b)(2).

Contrary to Boyd’s argument, we believe the risk of juror

confusion was low. We conclude that Boyd has not demonstrated

plain error that affected his substantial rights.

C. Multiple Conspiracies

Boyd’s contention that the district court committed plain

error by not giving the jury a multiple-conspiracies instruction

is baseless. In the portion of the instructions pertaining to

the conspiracy count, the court did include this circuit’s

pattern multiple-conspiracies instruction.11

11
The court instructed the jury:

Further, you must determine whether the
conspiracy charged in the indictment existed,
and, if it did, whether the defendant was a
member of it. If you find that the conspiracy
charged did not exist, then you must return a
not guilty verdict, even though you find that
some other conspiracy existed. If you find
that a defendant was not a member of the
conspiracy charged in the indictment, then you
must find that defendant not guilty, even
though that defendant may have been a member
of some other conspiracy.

Cf. FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS (CRIMINAL) § 2.21 (2001).

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D. Ex-Post-Facto Instruction

Count 1 charged Boyd with conspiracy to commit health-care

fraud, launder money, and pay illegal remunerations. With

respect to conspiracy to commit health-care fraud, Boyd argues

that the district court should have instructed the jury that it

could consider only the conduct that occurred after the health-

care-fraud statute took effect. The health-care-fraud statute,

18 U.S.C. § 1347, was enacted on August 21, 1996, but the

indictment alleged in count 1 that the conspiracy began in or

before January 1996. Boyd argues that if his conspiracy

conviction was based on conduct occurring before the effective

date of the health-care fraud statute, then his conviction

violates the Ex Post Facto Clause, U.S. CONST. art. I, § 9, cl. 3.

As we stated above, we review for plain error. Assuming

without deciding that the district court should have given a jury

instruction regarding the effective date of the statute, Boyd

must also demonstrate that his substantial rights were

affected——i.e., he must show a reasonable probability that absent

the error he would have been acquitted of the conspiracy charge.

See Olano, 507 U.S. 725, 735.

Boyd has failed to show any affect on his substantial rights

for two reasons. First, since conspiracy is a continuing

offense, the jury could still have convicted Boyd of conspiracy

to commit health-care fraud if it found that the conspiracy

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continued after the effective date of the health-care-fraud

statute. See Garcia Abrego, 141 F.3d at 167. Boyd has not

demonstrated that the conspiracy ended before the health-care-

fraud statute was enacted.

And second, the special verdict form demonstrates that the

jury would have convicted Boyd of conspiracy even had the court

given an instruction as to the effective date of the statute.

The jury reported on a special verdict form that it unanimously

found that Boyd had conspired to commit all three alleged

purposes of the conspiracy (health-care fraud, money laundering,

and payment of illegal remunerations). The jury’s finding as to

any one of the three purposes is sufficient to support a

conviction on count 1. See, e.g., United States v. Calle, 120

F.3d 43, 45 (5th Cir. 1997) (“[A] general guilty verdict on a

multiple-object conspiracy may stand even if the evidence is

insufficient to sustain a conviction on one of the charged

objects.” (citing Griffin v. United States, 502 U.S. 46, 60

(1991))). Since the jury found that Boyd also conspired to

launder money and to pay illegal remunerations, the outcome at

trial would have been the same absent the alleged error.

IV. CONSTRUCTIVE AMENDMENT

Jackson asserts that the jury instructions constructively

amended the indictment because they permitted the jury to convict

him of conspiracy to commit health-care fraud on the basis of a

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scheme to defraud Medicare and Medicaid of the intangible right

of honest services, when the indictment charged only a scheme to

defraud Medicare and Medicaid of money and property. Concluding

that the error did not affect Jackson’s substantial rights, we

reject Jackson’s argument that the error was reversible.

A. Standard of Review

As Jackson acknowledges, our review is for plain error

because Jackson did not properly object to the jury instructions

below. See United States v. Bieganowski, 313 F.3d 264, 287 (5th

Cir. 2002) (citing United States v. Delgado, 256 F.3d 264, 278

(5th Cir. 2001)).

B. Discussion

“[T]he Fifth Amendment guarantees a criminal defendant that

he will only be tried on the charges that have been alleged in an

indictment handed down by a grand jury” and that the indictment

will not “be broadened or altered except by the grand jury.”

United States v. Griffin, 324 F.3d 330, 355 (5th Cir. 2003)

(internal quotation marks omitted) (quoting United States v.

Arlen, 947 F.2d 139, 144 (5th Cir. 1991)). A constructive

amendment of the indictment, in violation of these guarantees,

“occurs when the trial court[,] through its instructions and

facts it permits in evidence, allows proof of an essential

element of a crime on an alternative basis permitted by the

statute but not charged in the indictment.” Id. (internal

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quotation marks omitted) (quoting Arlen, 947 F.2d at 144).

Jackson was charged in count 1 with conspiracy to defraud

the United States in violation of 18 U.S.C. § 371 by, inter alia,

conspiring to commit health-care fraud as defined in 18 U.S.C.

§ 1347.12 The indictment alleged that Jackson conspired to

commit health-care fraud by agreeing to execute a scheme to

fraudulently obtain money and property from Medicare and

Medicaid; the indictment did not allege that Jackson agreed to

execute a scheme to deprive the government of the intangible

right to honest services.

In the jury instructions relating to count 1, the district

court enumerated the elements of both conspiracy and health-care

fraud. The court instructed the jury that an element of health-

care fraud was a scheme or artifice to defraud a health-care

benefit program, but the instructions did not at this point

define “scheme to defraud.” Seven pages later, however, in the

portion of the instructions relating to the substantive health-

care-fraud counts, the instructions defined “scheme to defraud”

as including “any scheme to deprive another of money, property,

or of the intangible right to honest services by means of false

12
Count 1 also charged that Jackson violated § 371 by
conspiring to commit money laundering and to pay illegal
kickbacks. On a special verdict form, the jury reported that it
unanimously agreed that Jackson conspired to commit health-care
fraud; only six of the twelve members agreed that Jackson
conspired to commit money laundering; and only one member found
that Jackson conspired to pay illegal kickbacks.

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or fraudulent pretenses, representations, or promises.” 1 R. 215

(emphasis added).

Jackson contends that the district court’s inclusion of

“intangible right to honest services” in the jury instructions’

definition of “scheme to defraud” constituted a constructive

amendment of the indictment since it was not charged in the

indictment. He argues that his conviction must be reversed

because the jury was permitted to convict him of conspiracy on a

basis not charged in the indictment.

The government conceded at oral argument that “intangible

right to honest services” should not have been included in the

jury instructions. But the government contests Jackson’s

position that the conviction should be reversed, arguing that

Jackson has not demonstrated that the error affected his

substantial rights.

Jackson argues that his substantial rights were affected

because the jury could have found that he engaged in a scheme to

deprive Medicare and Medicaid of the intangible right to honest

services.13 But under the third prong of plain-error review, it

is Jackson’s burden to demonstrate a substantial probability that

absent the error the outcome at trial would have been different.

Hence, it is not enough that the jury could have convicted

13
Although Jackson’s services were provided directly to the
patients, the jury could have found that they were provided
indirectly to the Medicare and Medicaid programs since these
programs were paying for the patients’ treatment.

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Jackson based on the “honest services” language; Jackson must

also demonstrate a reasonable possibility that the jury would

have acquitted him had only the “money and property” language

been included in the instructions. Jackson has failed in this

regard. The government’s theory was that Jackson engaged in a

scheme to defraud Medicare and Medicaid through false billing.

Jackson has not articulated any rational basis on which the

jury——once it accepted the government’s theory, as it ostensibly

did——could have found that the purpose of the scheme was to

deprive Medicare and Medicaid of the right to honest services and

not also to deprive them of money and property.

United States v. Griffin, on which Jackson relies heavily,

is distinguishable. The panel in that case, reviewing for plain

error, vacated the defendants’ mail-fraud convictions because of

a constructive amendment of the indictment. Griffin, 324 F.3d at

355-56. As in this case, the jury instructions in Griffin

defined “scheme or artifice to defraud” as including a scheme “to

deprive another of the intangible right to honest services,” even

though the indictment charged only a scheme to obtain money and

property. Id. at 353. The difference between Griffin and this

case is that in Griffin the object of the scheme was to obtain

unissued tax credits, which the panel held was not money or

property as those terms were used in the mail-fraud statute. See

id. at 352-55. The only possible basis for the convictions was

therefore under the “honest services” language, which did not

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appear in the indictment. Unlike in Griffin, the evidence in

this case of Jackson’s involvement in a scheme to fraudulently

bill Medicare and Medicaid supports a conviction under the “money

and property” language that was charged in the indictment.

Jackson’s reliance on United States v. Adams is also

misplaced since the standard of review in that case was not for

plain error as it is here. See 778 F.2d 1117, 1120 (5th Cir.

1985) (noting that the defendant objected below). This

distinction is crucial because when there is a constructive

amendment that was properly objected to before the trial court,

the conviction must be vacated regardless of any showing of

prejudice. Griffin, 324 F.3d at 355 (quoting United States v.

Mikolajczyk, 137 F.3d 237, 243 (5th Cir. 1998)). But where, as

here, the defendant fails to raise the error below, the defendant

carries the heavy burden of demonstrating that the error affected

his substantial rights. See id. at 355-56; Olano, 507 U.S. at

734.

Instead, this case is most analogous to United States v.

Dixon, 273 F.3d 636 (5th Cir. 2001). In Dixon, the defendant was

charged with kidnapping for the purpose of committing aggravated

sexual abuse. Id. at 637. But the trial judge instructed the

jury that to convict it needed to find that the defendant held

the victim for “some benefit,” which could have included either

sexual gratification or financial gain, even though financial

gain was not charged in the indictment. Id. at 638-39. The jury

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convicted the defendant of kidnapping. Id. at 638. Reviewing

the jury instructions for plain error, the Dixon panel concluded

that the defendant had not demonstrated any effect on his

substantial rights. Id. at 640. The panel recalled evidence of

the victim’s sexual activity during the kidnapping and reasoned

that the jury must have found that the defendant had sexually

assaulted the victim. Id. Given the “overwhelming evidence that

the ‘benefit’ [the] defendant derived from the kidnapping was

aggravated sexual abuse, as specifically charged in the

indictment,” the panel affirmed the conviction. Id.

Based on the evidence in this case, the jury could not have

convicted Jackson based on the “honest services” language without

also finding that the purpose of the scheme was to deprive

Medicare and Medicaid of money and property. Consequently, we

conclude that the inclusion of “intangible right to honest

services” in the jury instructions did not affect Jackson’s

substantial rights, and we decline to reverse his conspiracy

conviction on this basis.

V. INTERFERENCE WITH A WITNESS

Jackson asserts that the government substantially interfered

with its own witness Kim Boutte’s right to testify, violating

Jackson’s constitutional right to present a defense. We disagree

that the government’s conduct affected Jackson’s rights.

The government subpoenaed Boutte, who had been a secretary

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at Houston Rehab and who had not worked with Jackson, to testify

at trial. Boutte moved to quash the subpoena, asserting her

Fifth Amendment privilege against self-incrimination. At a

hearing, Boutte alleged that a statement she had given the

government implicating four defendants was partially false and

that she had produced the statement only in response to pressure

from the government. She also averred that when she brought this

to the attention of a government lawyer, the lawyer threatened

her. Moreover, she told the court that there was not any

testimony she could give at trial that would not tend to

incriminate her. The court gave defense counsel an opportunity

to question Boutte, but Jackson’s counsel declined. The court

then granted Boutte’s motion and released her.

Jackson argues for the first time on appeal that Boutte’s

testimony would have benefitted him and that the government’s

interference thus violated his right to present a defense.

Because Jackson did not preserve his arguments below, we review

for plain error, even though Jackson’s arguments pertain to

alleged constitutional violations. See United States v. Knowles,

29 F.3d 947, 951 (5th Cir. 1994) (“[A]lleged constitutional

errors in criminal convictions——that do not amount to plain

error——are forever forfeited by the failure to object

contemporaneously to that error in the district court.”).

“The Sixth Amendment guarantees a criminal defendant the

right to present witnesses to ‘establish his defense without fear

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of retaliation against the witness by the government.’”

Bieganowski, 313 F.3d at 291 (quoting United States v. Dupre, 117

F.3d 810, 823 (5th Cir. 1997)). “In addition, the Fifth

Amendment protects the defendant from improper governmental

interference with his defense. Thus, ‘substantial governmental

interference with a defense witness’[s] choice to testify may

violate the due process rights of the defendant.’” Id. (quoting

Dupre, 117 F.3d at 823).

Jackson contends that the government’s interference with

Boutte’s free and unhampered choice to testify violated his Fifth

and Sixth Amendment rights to present a defense. He asserts that

Boutte’s testimony would have been exculpatory to at least some

defendants and that any exculpatory evidence would have had some

impact on the government’s case against him on the conspiracy

count.

But Jackson has not demonstrated that the government

interfered with his ability to present his own defense because

Boutte was a government witness, not Jackson’s witness. Jackson

acknowledges this problem and attempts to overcome it by arguing

that Boutte was a de facto defense witness. He asserts that we

may assume Boutte’s trial testimony would not have benefitted the

government since it would have been contrary to her previous

statement implicating certain defendants. But even accepting

this assumption arguendo, Jackson has not alleged that he would

have called Boutte to testify for him absent the government’s

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interference, nor has he made any specific showing of prejudice

beyond his conclusory allegation that Boutte’s testimony would

somehow have hurt the government’s case generally. Jackson has

thus failed to demonstrate plain error that affected his

substantial rights.

VI. SENTENCING ISSUES

A. Boyd’s Sentence

Because we reverse Boyd’s conviction on count 44, we also

vacate his sentence and remand for resentencing. We nonetheless

address here Boyd’s arguments about alleged sentencing error.

1. Booker Error

Relying on Apprendi v. New Jersey, 530 U.S. 466 (2000),

Blakely v. Washington, 542 U.S. 296 (2004), and United States v.

Booker, 543 U.S. 220 (2005), Boyd contends that the district

court erred by enhancing his sentence based on facts not found by

the jury beyond a reasonable doubt. He argues that the district

court should have granted his motion for a new trial to give the

jury an opportunity to make factual findings for sentencing.

Booker error occurs when the sentencing judge bound by

mandatory United States Sentencing Guidelines (“Guidelines” or

“U.S.S.G.”) increases the Guidelines sentencing range based on

facts not found by the jury or admitted by the defendant. United

States v. Mares, 402 F.3d 511, 518 (5th Cir.), cert. denied, 126

S. Ct. 43 (2005). But under Booker, “with the mandatory use of

-28-
the Guidelines excised, . . . [t]he sentencing judge is entitled

to find by a preponderance of the evidence all the facts relevant

to the determination of a Guideline[s] sentencing range.” Id. at

519. Boyd was sentenced under the post-Booker advisory

Guidelines system, and the record indicates that the district

judge was aware of the Guidelines’ advisory nature. There was

therefore no Booker error in Boyd’s sentencing.

2. Mass-Marketing Enhancement

Boyd also contends that the district court’s application of

a two-level enhancement under U.S.S.G. § 2B1.1(b)(2)(A)(ii) for

the use of mass marketing was improper.

Since Boyd objected to the enhancement below, we review the

district court’s factual findings for clear error and its

interpretation and application of the Guidelines de novo. United

States v. Angeles-Mendoza, 407 F.3d 742, 746-47 (5th Cir. 2005).

“A factual finding is not clearly erroneous as long as it is

plausible in light of the record as a whole.” United States v.

Holmes, 406 F.3d 337, 363 (5th Cir.) (quoting United States v.

Powers, 168 F.3d 741, 752 (5th Cir. 1999)), cert. denied, 126 S.

Ct. 375 (2005).

U.S.S.G. § 2B1.1(b)(2)(A)(ii) provides for a two-level

enhancement if the offense was committed through mass marketing.

The commentary to the Guidelines defines “mass marketing” as “a

plan, program, promotion, or campaign that is conducted through

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solicitation by telephone, mail, the Internet, or other means to

induce a large number of persons to (i) purchase goods or

services; (ii) participate in a contest or sweepstakes; or (iii)

invest for financial profit.” U.S.S.G. § 2B1.1 cmt. n.4(A).

Boyd argues here, as he did below, that the mass-marketing

enhancement encompasses only techniques of modern mass

communication, such as billboards, radio, television, the

Internet, newspaper, and bulk mail. He posits that the

application of the enhancement in this case was improper because

the marketing primarily involved personal, face-to-face

recruiting of patients, not channels of mass communication.

But the definition of “mass marketing” is not limited to the

mass-communication channels listed in the commentary. Instead,

the commentary “explicitly contemplates ‘other means’ of mass-

marketing.” United States v. Magnuson, 307 F.3d 333, 335 (5th

Cir. 2002) (per curiam). Section 2B1.1(b)(2)(A)(ii) “merely

requires advertising that reaches ‘a large number of persons.’”

Id. (quoting United States v. Pirello, 255 F.3d 728, 731 (9th

Cir. 2001)).

Based on the following evidence, we discern no clear error

in the district court’s implicit finding that the face-to-face

marketing in this case was intended to reach a large number of

persons. First, as part of his consulting services to Quality,

Boyd taught Reece and Broussard how to use marketers to find

elderly patients, and Boyd suggested areas where such patients

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could be found, such as adult day-care centers and elderly

communities. Second, Gordon testified that Boyd paid her for

recruiting up to 20 patients to Phycare. And third, part of

Houston Rehab’s business involved recruiting patients to the

clinic, and the clinic had at least one person recruiting full

time. Furthermore, Boyd does not dispute that the marketing

methods were intended to reach and did in fact reach a large

number of persons.

Accordingly, we conclude that the district court did not err

in applying a two-level enhancement for the use of mass

marketing.

B. Jackson’s Sentence

The district court calculated Jackson’s Guidelines base

offense level at 24 and imposed a 3-level enhancement for his

managerial role in the offense and a 2-level enhancement for

violating a position of trust, resulting in a total offense level

of 29. Factoring in Jackson’s Category III criminal history, the

court arrived at a Guidelines range of 108 to 135 months’

imprisonment. But the court sentenced Jackson to 60 months’

imprisonment, the statutory maximum for a conspiracy conviction

under 18 U.S.C. § 371.

Jackson maintains that his sentence should be vacated

because of Booker error. Since he failed to properly object

below, we review Jackson’s sentence for plain error. See Mares,

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402 F.3d at 520. As the government concedes, Jackson satisfies

the first two prongs of plain-error review: there was error

because he was sentenced under a mandatory scheme, and the error

is plain under Booker. See id. at 520-21. The question

therefore is whether Jackson has demonstrated that his

substantial rights were affected. To make such a showing,

Jackson must demonstrate that under an advisory system, the

district court would have imposed a significantly different

sentence, i.e., a sentence of less than 60 months’ imprisonment.

See id. at 521.

Jackson first argues that the Booker error affected his

substantial rights because the district judge’s own factual

findings caused his Guidelines range to be increased from 2-8

months to 108-135 months. But Booker error does not occur simply

because the district judge enhances a sentence based upon her own

factual findings; rather, Booker error occurs “when the

sentencing judge bound by mandatory Guidelines increase[s] the

sentencing range under the Guidelines based on facts not found by

the jury or admitted by the defendant.” Id. at 518 (emphasis

added). Hence, it is not enough that Jackson has demonstrated

that the district judge’s own factual findings resulted in a

higher sentence; he must also demonstrate a sufficient

probability——sufficient enough to undermine confidence in the

outcome——that his sentence would have been lower under an

advisory, rather than mandatory, system. See id. at 521.

-32-
 Jackson next argues that the district court would have

imposed a lesser sentence under an advisory scheme. Jackson

points to the district judge’s remarks during the sentencing

proceeding wherein she stated that she lacked any discretion over

the sentence to be imposed. Jackson also notes that the district

court imposed the lowest possible sentence under the mandatory

scheme. After reviewing the transcript of the sentencing

proceedings, however, we are not persuaded that the district

judge would have imposed a sentence below 60 months’ imprisonment

under an advisory Guidelines system. The district judge’s

comment that she lacked discretion with regard to Jackson’s

sentence referred simply to the fact that there was no range of

possible sentences from which she could select since the low end

of the Guidelines range (108 months) exceeded the 60-month

statutory maximum. Furthermore, Jackson has not even attempted

to demonstrate that a sentence of less than 60 months, which

would have varied from the 108-month Guidelines minimum by more

than 48 months, would have been reasonable.14

14
Jackson also makes the following arguments solely to
preserve them: (1) that application of the plain-error standard
is inappropriate in this case because it would have been futile
for him to object to the mandatory nature of the Guidelines prior
to Blakely; (2) that under Bouie v. City of Columbia, 378 U.S.
347 (1964), and Marks v. United States, 430 U.S. 188, 196-97 &
n.13 (1977), and their progeny, due process forbids the
retroactive application of Booker’s remedial holding to him; (3)
that Mares misapplies the plain-error standard of United States
v. Dominguez Benitez, 542 U.S. 74 (2004); and (4) that he is not
required to show prejudice because the error was structural since
it affected the entire framework of the sentencing proceedings in

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 VII. CONCLUSION

For the foregoing reasons, Jackson’s convictions and

sentence are AFFIRMED; Boyd’s convictions on counts 1

(conspiracy) and counts 9 and 10 (illegal remunerations) are

AFFIRMED; Boyd’s conviction on count 44 (health-care fraud) is

REVERSED; and Boyd’s sentence is VACATED and the case REMANDED

for resentencing.

this case. As Jackson recognizes, these arguments are foreclosed
by this court’s precedents.

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