UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5136
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AMY JOYELL HICKS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, District
Judge. (1:08-cr-00002-jpj-pms-2)
Submitted: July 21, 2011 Decided: September 6, 2011
Before WILKINSON, NIEMEYER and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Roanoke, Virginia,
Nancy C. Dickenson, Assistant Federal Public Defender, Brian J.
Beck, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Abingdon, Virginia, Christine Madeleine Lee,
Research and Writing Attorney, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Roanoke, Virginia, for Appellant. Timothy J. Heaphy,
United States Attorney, Roanoke, Virginia, A. Benjamin Spencer,
Special Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This is a case about double jeopardy for a defendant
who was tried twice for health care fraud by falsely billing
ambulance services to Medicare. The defendant, Amy Joyell
Hicks, was tried for violating 18 U.S.C. § 1347 (West 2000)
under a fourteen-count indictment. The jury acquitted on
thirteen of the fourteen counts – including conspiracy – but
hung as to the first count, which was the underlying substantive
crime. Hicks was subsequently retried on the first count and
convicted. She argued her conviction violated the double
jeopardy clause, and, more specifically, contravened Ashe v.
Swenson, 397 U.S. 436 (1970). We disagree and therefore affirm
her conviction.
I.
Hicks worked from October 2004, until March 2006, at
an ambulance service company known as Angel Care that provided
transportation to individuals in Southwest Virginia. In
November 2006, Hicks returned to work at Angel Care in the
capacity of an office manager, which included the responsibility
of writing “run sheets” or “trip sheets” documenting costs to
Medicare and private insurance companies for payment.
Medicare’s policy regarding reimbursement for transportation is
strict: if a patient is “ambulatory” – meaning he or she is
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able to walk – then Medicare will not cover the costs of riding
in an ambulance. In order to be covered the patient must be
“non-ambulatory” or “bedridden.” In the latter case, the
patient must ride on a stretcher in the back of the ambulance,
and may not sit up front with the driver.
The government alleges that Hicks falsified
information with respect to four Angel Care patients who were
regularly transported to their dialysis appointments. Count One
of the indictment alleges that during the period of December
2004, and September 2007, Hicks knowingly and willfully, both as
a principal and as an aider and abettor, executed or attempted
to execute a scheme of false or fraudulent pretenses,
representations, and promises in connection with the delivery
and payment of health care benefits. Unlike other counts in the
indictment – for example Counts Three through Eight which deal
with wire fraud in violation of 18 U.S.C. § 1343 (West 2000 &
Supp. 2009) – Count One of the indictment does not allege
specific transactions or dates. Nonetheless, it incorporates by
reference an introductory fact section that discusses the fact
that the four patients discussed above did not meet the
requirements for being “bedridden” but were nevertheless
transported in an ambulance that was billed to Medicare. The
fact section of the indictment does not allege particular dates,
but does contain a time period identical to the window alleged
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in Count One. Count Two of the Indictment alleges that Hicks
entered into a conspiracy with Darrell Jack Kiser, who owned and
operated Angel Care, and others relating to the “trip sheets”
submitted to Medicare. Counts Nine through Fourteen of the
Indictment allege that she made or used a false material
document in violation of 18 U.S.C. § 1001(a) (West 2000 & Supp.
2009).
After trial, a jury acquitted Hicks of thirteen of the
fourteen counts of the indictment, including conspiracy and the
substantive crime of wire fraud with respect to the specific
transactions referenced in Counts Three through Eight. The jury
hung on Count One. The judge declared a mistrial with respect
to that count. The government subsequently retried Hicks with
respect to Count One and obtained a conviction. Hicks moved to
dismiss on the grounds that the subsequent conviction violated
the double jeopardy clause because the same facts that underlay
the acquittal for Counts Two through Fourteen underlay Count One
and therefore were collateral estopped. Specifically, she
argued that health care fraud is inherently collaborative and
therefore was duplicative with the conspiracy count.
Furthermore, the count was premised solely – according to Hicks
– on the acts of faxing that underlay the wire fraud acquittal.
The basic thrust of her argument was that all counts involved
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the same nexus of facts and thus the jury’s verdict was
inexplicable.
The court held a hearing on Hick’s motion and
subsequently issued an opinion denying the defendant’s motion.
This appeal followed. On appeal, Hicks not only argues that her
conviction violates the double jeopardy clause, but also, that
the district court erred in calculating financial loss and
restitution and that the district court erred in imposing a
Guidelines Sentence.
II.
The parties agree that this case is controlled by Ashe
– which holds that the government may not re-litigate any issue
necessarily decided by a jury’s acquittal in a prior trial – and
United States v. Fiel, 35 F.3d 997 (4th Cir. 1994), which lays
out a five-factor test governing the applicability of collateral
estoppel. In Fiel, we held that the factors included “(1)
whether the issue in question is identical to the previous
issue, (2) whether it was actually determined in the prior
adjudication, (3) whether it was necessarily decided in that
proceeding, (4) whether the resulting judgment settling the
issue was final and valid, and (5) whether the parties had a
full and fair opportunity to litigate the issue in the prior
proceeding.” Id. at 1006. We further explained that “[i]n
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order for the determination of an issue to be given preclusive
effect, it must have been necessary to a judgment.” Id.
It is axiomatic that conspiracy and the substantive
crime that underlie it are not identical and do not share the
same elements. Thus, an acquittal on one does not necessarily
carry over to an acquittal on the other. Hick’s argument that
health care fraud is inherently collaborative flies in the face
of myriad convictions – for example in drug cases – where a
defendant is exonerated of one but inculpated on another. It
seems possible that while there was never an “agreement” between
employees to cook the books concerning Medicare billing, the
employees might have independently arrived at the decision to
falsify applications so that the business would not go under.
Furthermore, the evidence submitted to the jury did not directly
link Hicks to the creation or submission of the fraudulent trip
sheets for the dates in question.
Further, while Hicks was acquitted of the allegations
in Counts Three through Fourteen as to the specific dates and
transactions, the government still produced evidence that would
allow a reasonable jury to conclude that during the entire
three-year period Hicks did in fact commit health care fraud.
For example, Angel Care employees Nutter and Tomes testified
that Hicks had faxed “rubber stamped” trip sheet Medicare
payments and that she had transported patients in her own car in
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the front seat, rather than in an ambulance on a stretcher.
Other patients testified that they were often transported in an
ambulance, even though they could walk. Count One of the
indictment does not allege specific dates, contrary to Hick’s
argument that it is specific. Rather, it alleges fraud over a
general period. Thus, her conviction was not barred by double
jeopardy.
III.
Hicks next argues that the district court erred in
calculating loss restitution. We disagree and affirm the
judgment of the district court. Hicks argues that “the billings
were 50% accurate.” (Appellants’ Br. at 24.). This was because
on certain occasions the patients were in fact non-ambulatory
due to renal failure and hemorrhaging. However, it was within
the discretion of the district court not to credit this
testimony, especially given evidence that patients were
wheelchair bound, meaning they could be transported in a
wheelchair van, and did not necessarily require an ambulance.
The government has thus carried its burden of proof with respect
to this issue.
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IV.
Hick’s final argument is that the sentence imposed
under the Guidelines was unreasonable under 18 U.S.C. § 3355.
We disagree and affirm because it was within the trial court’s
discretion to impose.
V.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
For the foregoing reasons, the judgment of the
district court is
AFFIRMED.
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