United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-2015
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United States of America, *
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Plaintiff - Appellee, *
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v. *
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Robert J. Dupont, Jr., *
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Defendant - Appellant. *
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Appeal from the United States
No. 11-2017 District Court for the
___________ Western District of Missouri.
United States of America, * [PUBLISHED]
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Plaintiff - Appellee, *
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v. *
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Laverne D. Dupont, *
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Defendant - Appellant. *
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Submitted: February 17, 2012
Filed: March 5, 2012
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Before LOKEN, BYE, and MELLOY, Circuit Judges.
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PER CURIAM.
Following a bench trial, the district court1 found Robert Dupont and his wife,
Laverne Dupont, guilty of health care fraud and conspiracy to commit health care
fraud in violation of 18 U.S.C. §§ 2, 371, and 1347. The court sentenced Robert
Dupont to sixty months in prison and Laverne Dupont to five years of probation. The
Duponts appeal, claiming the court erred in denying their motion for acquittal because
there was insufficient evidence to sustain the convictions. We affirm.
"We review the denial of a judgment of acquittal de novo." United States v.
Thompson, 533 F.3d 964, 970 (8th Cir. 2008). "In considering whether a motion for
judgment of acquittal was properly denied, we view the evidence in the light most
favorable to the guilty verdict, granting all reasonable inferences that are supported
by that evidence." United States v. Milk, 447 F.3d 593, 598 (8th Cir. 2006). Further,
the trier of fact must be presumed to have "resolv[ed] evidentiary conflicts in favor of
the government[.]" United States v. Water, 413 F.3d 812, 816 (8th Cir. 2005)
(internal quotation marks and citation omitted). "A motion for judgment of acquittal
should be granted only if there is no interpretation of the evidence that would allow
a reasonable jury to find the defendant guilty beyond a reasonable doubt." United
States v. Boesen, 491 F.3d 852, 855 (8th Cir. 2007) (internal quotation marks and
citation omitted).
In 2000, prior to this case, Robert Dupont pleaded guilty to a charge of
conspiracy to defraud the United States when he concealed ownership in a company
that submitted billings to Medicare and Medicaid. He served twenty-one months in
prison and, as part of his sentence, was forbidden from receiving funds from any
federal health care program, including Medicaid and Medicare, for twenty years.
1
The Honorable Greg Kays, United States District Judge for the Western
District of Missouri.
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Although the Duponts do not dispute the elements of health care fraud,2 they
argue the government failed to prove they willfully intended to defraud the
government. The Duponts claim their activities did not amount to fraud because
Missouri Medicaid did not lose money and the residents received the care and services
to which they were entitled. However, in this case, the fraud had nothing to do with
the residents' care. Rather, as found by the district court, the Duponts committed
health care fraud by conspiring to allow Robert Dupont to act as director of Joplin
River of Life Ministries, Inc. ("JROL"), an organization which received federal health
care funds—in violation of the terms of his prior sentence—and then covering up his
role as director.
The record supports the district court's finding that although Robert Dupont had
directed the board to install Laverne Dupont into his former position as executive
director of JROL, Robert Dupont willfully continued to function as, at the very least,
"sharing the operating and principal responsibilities with his wife during and after his
prison term." Mem. Order and Verdict at 5, Sept. 30, 2010. In reaching this
conclusion, the court relied on the testimony of Walter Taylor and Susan Green.
Those witnesses testified that the JROL board always followed the suggestions of
2
In relevant part, 18 U.S.C. § 1347 makes the following a crime:
(a) Whoever 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,
in connection with the delivery of or payment for health care benefits,
items, or services . . . .
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Robert Dupont, that Dupont regularly questioned Taylor on how Taylor billed
Medicaid, and that Dupont exercised authority over personnel. Taylor further testified
Laverne Dupont was only there "for show." The court explained it found the
testimony of Lionel Smiles, who supported the Dupont's story Robert was merely an
employee (which would have been permitted under his conviction conditions),
"largely incredible due to . . . inconsistencies and his general manner while testifying."
Id. at 4. Moreover, the court found Robert Dupont's own testimony irrelevant to the
question of whether he was acting as a principal or operator.
In addition, the government presented sufficient evidence for the court to find
the Duponts willfully concealed Robert Dupont's role as de facto principal. The
record shows Laverne Dupont signed re-licensing applications in which she attested
that no operator or principal in the operation of the facility was under exclusion from
participation in the Title XIX (Medicaid) program, a statement she knew to be false.
Further, Robert Dupont attempted to conceal his true role by asking the board to
install his wife as acting director, while still personally overseeing JROL operations.
"To convict [the defendants] of conspiracy, the government was required to
show that there was a conspiracy with an illegal purpose, [both defendants] were
aware of the conspiracy, and they both knowingly became part of it." Boesen, 491
F.3d at 856. "A formal agreement is not required to create a conspiracy, and the
existence of a conspiracy can be proved by direct or circumstantial evidence." United
States v. Williams, 534 F.3d 980, 985 (8th Cir. 2008). The record supports the district
court's conclusion that while both Duponts were aware of Robert Dupont's exclusion
from federal health care programs, they both nevertheless acted affirmatively to
support and conceal his role as a de facto director by, among other things, falsifying
licensure applications.
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Viewing the evidence most favorably to the government, the district court could
have inferred both Robert and Laverne Dupont knowingly and willfully executed a
scheme to defraud a health care program, and did so in a joint conspiracy. See
Boesen, 491 F.3d at 858 (finding evidence sufficient to infer the defendant
"knowingly and willfully executed a scheme to defraud a health care program, acting
in a conspiracy" when the defendant, acting as the office manager for his physician
brother, submitted medical billing codes to insurance companies they both knew were
unjustified); see also United States v. Dearing, 504 F.3d 897, 901-02 (9th Cir. 2007)
(finding evidence sufficient to prove a violation of 18 U.S.C. § 1347 where the
defendant willfully participated in a billing scheme he knew to be fraudulent, and then
willfully misrepresented and concealed his activity).
The judgment of the district court is affirmed.
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