IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 06-20596 January 30, 2009
Charles R. Fulbruge III
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee,
v.
ANANT MAUSKAR,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Before PRADO, ELROD, and HAYNES, Circuit Judges.
JENNIFER W. ELROD, Circuit Judge:
Defendant-Appellant Anant Mauskar was convicted of twenty-one counts
of defrauding Medicare and Medicaid, sentenced to 135 months in prison, and
ordered to make restitution of $14,427,242. He appeals his conviction and
sentence on numerous grounds. For the reasons set forth below, we affirm the
judgment of the district court.
FACTS AND PROCEEDINGS
Viewed in the light most favorable to the jury’s verdict, the record
establishes that Anant Mauskar, a licensed physician, engaged in a conspiracy
to defraud Medicare by falsely certifying that he had personally provided or
supervised physical therapy services to patients of the Mirage Medical Group
No. 06-20596
operated by Tonya Williams and Kimberly Selders. To effectuate this fraud,
Williams paid Mauskar during the fall of 1999 to sign patient charts certifying
that he had provided or supervised physical therapy services despite the fact
that he had not done so. When asked by a Medicare fraud investigator whether
he had actually performed or personally supervised physical therapy services for
patients of the Mirage Medical Group, Mauskar stated that he had even though
he had not.
Applying the same standard, the record also establishes that Mauskar
conspired to defraud Medicare and Medicaid by falsely certifying that patients
needed motorized wheelchairs and by performing unnecessary medical
procedures and tests on those patients. “Recruiters” compensated for their
efforts brought an enormous number of patients to Mauskar’s office to facilitate
this fraud; in 2002, for example, Mauskar prescribed 1,766 wheelchairs.
Durable medical equipment (“DME”) companies used Mauskar’s certificates of
medical necessity to obtain payment for medically unnecessary wheelchairs. The
companies compounded the fraud by delivering less expensive scooters to the
patients, rather than the motorized wheelchairs for which the government was
charged.
Mauskar was indicted on numerous charges relating to this conduct. His
first trial ended in a hung jury, and the district court declared a mistrial sua
sponte on April 4, 2005. Approximately two weeks before his second trial,
Mauskar filed a motion to dismiss count 1 of the indictment on grounds of
duplicity,1 which the district court denied. During his second trial, testimony
from Tonya Williams revealed that she had forged some progress notes, charges
sheets, and other documents by photocopying Mauskar’s signature, and that the
government knew of these forgeries well before Mauskar’s first trial. Mauskar
1
In this context, “‘[d]uplicity’ occurs when a single count in an indictment contains two
or more distinct offenses.” United States v. Miller, 520 F.3d 504, 512 (5th Cir. 2008).
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No. 06-20596
filed a motion to dismiss the indictment due to outrageous government conduct
and/or due to violation of the Double Jeopardy Clause, alleging that the
government had committed an egregious Brady violation by failing to disclose
the forgeries during Mauskar’s first trial. The district court denied the motion,
and the jury convicted Mauskar on twenty-one counts of health care fraud and
acquitted him on four counts. The district court sentenced Mauskar to 135
months in prison and ordered him to make restitution of $14,427,242. Mauskar
appeals his conviction and sentence.
DISCUSSION
I. Jurisdiction
We first consider the government’s suggestion in a footnote of its brief that
we lack jurisdiction to consider Mauskar’s challenges to his conviction because
his notice of appeal indicates an intent to appeal only his sentence. United
States v. Pineda, No. 92-2518, 1993 WL 209937 (5th Cir. June 3, 1993),
forecloses this argument. See 5th Cir. R. 47.5.3 (providing that unpublished
opinions issued before January 1, 1996, are precedent). Like Mauskar, the
defendant in Pineda “designate[d] his sentence, but not his conviction” in his
notice of appeal, but his “intent to appeal his conviction [was] readily apparent
in his brief” and “the Government . . . fully responded to [his] arguments.” Id.
at *3. Noting that precedent mandates broad construction of the second clause
of Federal Rule of Appellate Procedure 3(c), which requires a notice of appeal to
“designate the judgment or order from which an appeal is taken,” the court
“liberally construe[d] Pineda’s notice of appeal to include a challenge to his
conviction as well as his sentence.” Id. (quoting United States v. Ramirez, 932
F.2d 374, 375 (5th Cir. 1991)). Following this precedent, we hold that we have
jurisdiction to consider Mauskar’s challenges to his conviction.
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No. 06-20596
II. Duplicity
A. Mauskar’s motion to dismiss count 1 of the indictment on grounds of
duplicity was timely.
Before reaching the substance of Mauskar’s motion to dismiss count 1 of
the indictment on grounds of duplicity, we address a procedural issue. Mauskar
filed his motion approximately two weeks before his second trial. The district
court denied the motion on the grounds that it was untimely and that a
unanimity instruction would be given to protect Mauskar’s rights. The
government, reasoning that Federal Rule of Criminal Procedure 12 required
Mauskar to file the motion before his first trial, argues that the district court
was correct in holding the motion untimely.
Rule 12 requires that a motion to dismiss an indictment on the ground of
duplicity be filed “before trial.” See United States v. Payne, 341 F.3d 393, 402
(5th Cir. 2003). It does not, however, address the question raised by the
government here, which is whether a defendant who fails to challenge a
duplicitous indictment before a trial ending in a mistrial is barred from raising
the challenge before a subsequent trial on the same indictment. No controlling
authority exists, but the long-established principle that “[t]he declaration of a
mistrial renders nugatory all trial proceedings with the same result as if there
had been no trial at all” militates strongly against the government’s position.
See United States v. Pappas, 445 F.2d 1194, 1201 (3d Cir. 1971) (internal
quotation marks and citations omitted); see also United States v. Groth, 682 F.2d
578, 580 (6th Cir. 1982) (“We agree with the trial judge . . . that the prosecution
is not bound by its first waiver. The waiver referred to the earlier trial . . . .
Once a mistrial was declared each party was free to assert or waive his rights.”).
We apply this principle and hold that Mauskar’s motion to dismiss the
indictment was timely filed.
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No. 06-20596
B. Count 1 of the indictment is not duplicitous.
“We review de novo a claim than an indictment is duplicitous.” Miller, 520
F.3d at 512. “The allegation in a single count of a conspiracy to commit several
crimes is not duplicitous, for ‘[t]he conspiracy is the crime, and that is one,
however diverse its objects.’” United States v. Cooper, 966 F.2d 936, 939 (5th
Cir. 1992) (quoting Braverman v. United States, 317 U.S. 49, 54 (1942)). An
indictment’s allegations, and not the evidence adduced at trial, control whether
the indictment is duplicitous:
In reviewing an indictment for duplicity, our task is not to review
the evidence presented at trial to determine whether it would
support charging several crimes rather than just one, but rather
solely to assess whether the indictment itself can be read to charge
only one violation in each count.
United States v. McDermot, No. 93-3603, 1995 WL 371036, at *4 (5th Cir. June
5, 1995) (emphasis added) (quoting United States v. Mastelotto, 717 F.2d 1238,
1244 (9th Cir. 1983), overruled on other grounds by United States v. Miller, 471
U.S. 130 (1985)); see also United States v. Sharpe, 193 F.3d 852, 866 (5th Cir.
1999) (rejecting duplicity allegation where count “[could] be read to allege only
one violation”). That an indictment alleges more than one means by which
conspirators “sought to accomplish [a] scheme does not render it duplicitous.”
McDermot, 1995 WL 371036, at *4 (citing Owens v. United States, 221 F.2d 351,
354 (5th Cir. 1955)).
The government correctly argues that Mauskar’s indictment in the present
case is not duplicitous, as it can be read to charge a single conspiracy involving
Mauskar and others with three objects. The indictment sets forth those objects
as follows:
a. To violate the Health Care Fraud Statute, that is, to
knowingly and willfully execute and attempt to execute a
scheme and artifice: (1) to defraud a health care benefit
program, namely the Medicare and Medicaid programs; and
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No. 06-20596
(2) to obtain, by means of material false and fraudulent
pretenses, representations, and promises, money and property
owned by, or under the custody and control of, health care
benefit programs, namely Medicare and Medicaid; in
connection with the delivery of or payment for health care
benefits, items and services, namely physical therapy
services, in violation of Title 18, United States Code Section
1347;
b. To violate the Health Care Fraud statute, that is, to
knowingly and willfully execute and attempt to execute a
scheme and artifice: (1) to defraud a health care benefit
program, namely the Medicare and Medicaid programs; and
(2) to obtain, by means of material false and fraudulent
pretenses, representations, and promises, money and property
owned by, or under the custody and control of, health care
benefits programs, namely, Medicare and Medicaid; in
connection with the delivery of and payment for health care
benefits, items and services, namely power wheelchairs, in
violation of Title 18, United States Code Section 1347; [and]
c. To violate the Anti-Kickback statute by knowingly and
willfully soliciting and receiving any remuneration (including
any kickback) directly or indirectly, overtly or covertly, in
cash or in kind to induce the referral of Medicare and
Medicaid beneficiaries for the furnishing and arranging for
the furnishing of any item or service for which payment may
be made in whole or in part under the Medicare and Medicaid
programs, in violations of Title 42 U.S.C. § 1320a-7b(b)(2)(A).
The fact that the evidence at trial may have established two distinct
conspiracies—one between Mauskar and persons associated with the Mirage
Medical Group and another between Mauskar and persons associated with the
DME companies—is irrelevant to the duplicity analysis.
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No. 06-20596
C. Assuming arguendo that count 1 is duplicitous, no prejudice
resulted.
1. The district court’s unanimity instruction to the jury was
sufficient to guard against a non-unanimous verdict.
The district court gave the jury the following unanimity instruction:
Your verdict, whether it is guilty or not guilty, must be
unanimous. The following instruction applies to the unanimity
requirement as to count one.
As I have explained, count one of the second superseding
indictment accuses the defendant of committing the crime of
conspiracy in up to three different ways. We went over this. The
first is the defendant conspired to commit health care fraud in
connection with the delivery of or payment for physical therapy
services. The second is the defendant conspired to commit health
care fraud in connection with the delivery of or payment for durable
medical equipment, namely power wheelchairs. And the third is
that the defendant conspired to solicit or receive remuneration in
return for referring Medicare and Medicaid patients.
The government does not have to prove all three of these
objects of conspiracy for you to return a verdict of guilty on this
charge. Proof beyond a reasonable doubt on one object of the
conspiracy is enough. But in order to return a guilty verdict, all
twelve of you must agree that the same one has been proved. All of
you must agree that the government proved beyond a reasonable
doubt that the defendant conspired to commit health care fraud in
connection with the delivery of or payment for physical therapy
services, or all of you must agree that the government proved
beyond a reasonable doubt that the defendant . . . conspired to
commit health care fraud in connection with the delivery of or
payment for durable medical equipment, or all of you must agree
that the government proved beyond a reasonable doubt that the
defendant conspired to solicit or receive remuneration in return for
referring Medicare and Medicaid patients. In other words, if four of
you believe A was proved and four of you believe B was proved and
four of you believe C was proved, you’re not unanimous. Everybody
has to agree on the same one for you to find a guilty verdict.
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No. 06-20596
Now, of course all of you may also agree that the conspiracy,
if you have so found, has had as its object the commission of more
than one of the alleged federal offenses, so long as you are
unanimous on each of the federal offenses.
This instruction was sufficient to guard against a non-unanimous verdict. See
United States v. Fisher, 106 F.3d 622, 633 (5th Cir. 1997) (holding a specific
unanimity instruction “sufficient to cure any alleged defect in the indictment”),
abrogated on other grounds by Ohler v. United States, 529 U.S. 753 (2000).
Notwithstanding Mauskar’s suggestion to the contrary, the ambiguity of the
verdict as to which object or objects of the conspiracy the jury unanimously
agreed upon does not change this result.
2. Count 1 did not violate Mauskar’s rights under the Double
Jeopardy Clause.
Mauskar argues without citation to authority that “Count One . . .
diminished [his] right to be free from Double Jeopardy” because (1) “[a]ssuming
. . . that the jury unanimously agreed that one means submitted to them was
proven and the other two were not, then a third trial would place Mauskar in
jeopardy of conviction on a theory that was unanimously rejected”; and (2) “it’s
possible that the jury in the first trial . . . unanimously agreed that Mauskar was
not guilty of one of the conspiracies entailed in Count One but could not decide
the issue as to any one of the other theories, thereby contributing to the
mistrial.” We review the district court’s denial of Mauksar’s “motion to dismiss
[the] indictment on double jeopardy grounds de novo and accept the underlying
factual findings of the district court unless clearly erroneous.” United States v.
Gonzales, 76 F.3d 1339, 1342 (5th Cir. 1996).
Mauskar’s first argument is irrelevant, as the possibility that the Double
Jeopardy Clause would bar a third trial has no bearing on the disposition of
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No. 06-20596
Mauskar’s present appeal.2 His second argument does not account for the fact
that Mauskar’s first trial ended as a result of the jury’s failure to reach a verdict.
“It has been established . . . since the opinion of Justice Story in United States
v. Perez, 9 Wheat. 579, 6 L. Ed. 165 (1824), that a failure of the jury to agree on
a verdict was an instance of ‘manifest necessity’ which permitted a trial judge
to terminate the first trial and retry the defendant . . . .” Richardson v. United
States, 468 U.S. 317, 323–24 (1984). In Richardson, the petitioner argued that
the Double Jeopardy Clause barred his retrial on federal drug charges after the
jury in his first trial convicted him on one count but was unable to reach a
verdict on two others. Id. at 318, 322–23. The Court rejected this argument,
holding that the “Double Jeopardy Clause by its terms applies only where there
has been some event . . . which terminates the original jeopardy” and that “the
failure of the jury to reach a verdict is not an event which terminates jeopardy.”
Id. at 325; see also United States v. Miller, 952 F.2d 866, 874 (5th Cir. 1992)
(“Following Richardson, we hold that double jeopardy does not bar this retrial,
and because under Richardson jeopardy has not terminated, double jeopardy will
not be available as a ground for challenging any subsequent conviction that may
result.”). In support of its holding, the Court observed that despite Oregon v.
Kennedy, 456 U.S. 667 (1982), and other cases “examin[ing] the application of
double jeopardy principles to mistrials granted for reasons other than the
inability of the jury to agree,” it had “constantly adhered to the rule that a retrial
following a ‘hung jury’ does not violate the Double Jeopardy Clause.”
Richardson, 468 U.S. at 324. This authority forecloses Mauskar’s argument that
the Double Jeopardy Clause barred his second trial. See United States v. Achobe,
No. 06-20229, 2008 WL 5255896, at *6 (5th Cir. Dec. 18, 2008).
2
Nevertheless, we note that the government conceded during oral argument that the
Double Jeopardy Clause would preclude any future trial of Mauskar for conduct described in
count 1.
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No. 06-20596
3. The ambiguity of the jury’s general verdict as to count 1 of the
indictment did not adversely affect Mauskar’s sentence.
Mauskar correctly argues that the jury’s general verdict as to count 1 does
not reveal which of the conspiracy’s objects the jury found Mauskar to have
committed. This ambiguity, however, did not adversely affect Mauskar’s
sentence. Under U.S.S.G. § 1B1.2(d), “[a] conviction on a count charging a
conspiracy to commit more than one offense shall be treated as if the defendant
had been convicted on a separate count of conspiracy for each offense that the
defendant conspired to commit.” This provision applies “with respect to an
object offense if the court, were it sitting as a trier of fact, would convict the
defendant of conspiring to commit the object offense.” Id. § 1B1.2 cmt. n.4. As
discussed below in section III, “[m]ore than sufficient evidence exists from which
the district court, sitting as a trier of fact, could have found that” Mauskar
conspired to defraud the government both by submitting false claims for physical
therapy services and by unnecessarily prescribing motorized wheelchairs.
Moreover, the district court expressly declined to consider the third object
offense of the conspiracy—soliciting or receiving kickbacks—in determining
Mauskar’s sentence:
The ninth objection is to Paragraph 27, objecting to the
defendant’s statement that Nadine Norman received financial
kickbacks from the DME suppliers and that defendant received
those as well through Nadine Norman.
There is some evidence that the Court is able to consider with
respect to that possibility. However, after having sat through two
trials on this general subject and having heard all that I’ve heard,
I find that the government has not presented sufficient proof . . .
that there were kickbacks being paid for me to . . . deny that
objection; and, therefore, that objection will be sustained.
Mauskar thus cannot establish that the verdict’s ambiguity as to count 1 caused
any error in his sentencing.
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No. 06-20596
III. Sufficiency of the Evidence
Mauskar raises numerous challenges to the sufficiency of the evidence to
support his conviction. Our inquiry in assessing such challenges in a criminal
case is whether a “reasonable trier of fact could have found that the evidence
established guilt beyond a reasonable doubt.” United States v. Mergerson, 4 F.3d
337, 341 (5th Cir. 1993) (quoting United States v. Bell, 678 F.2d 547, 549 (5th
Cir. 1982) (en banc)). We view “all evidence and all reasonable inferences drawn
from it in the light most favorable to the government.” Id.
A. Count 1
Count 1 of the indictment alleges a single conspiracy with three objects:
(1) defrauding Medicare by a scheme relating to physical therapy services; (2)
defrauding Medicare and Medicaid by a scheme relating to motorized
wheelchairs; and (3) violating the anti-kickback statute by soliciting and
receiving remuneration to induce referral of Medicare and Medicaid
beneficiaries. To convict Mauskar of conspiracy, the government had to show:
(1) an agreement between two or more persons to pursue an
unlawful objective; (2) the defendant’s knowledge of the unlawful
objective and voluntary agreement to join the conspiracy; and (3) an
overt act by one or more of the members of the conspiracy in
furtherance of the objective of the conspiracy.
United States v. Williams, 507 F.3d 905, 910 n.4 (5th Cir. 2007), cert. denied, 128
S. Ct. 2074 (2008) (quoting United States v. Peterson, 244 F.3d 385, 389 (5th Cir.
2001)). “[E]ach element may be proven by circumstantial evidence,” United
States v. Mulderig, 120 F.3d 534, 547 (5th Cir. 1997), and proof of a tacit
conspiratorial agreement is sufficient, United States v. Freeman, 434 F.3d 369,
376 (5th Cir. 2005). Notwithstanding Mauskar’s argument to the contrary, the
government need have proved only one object of the conspiracy for us to sustain
his conviction on count 1: “[A] general guilty verdict on a multiple-object
conspiracy may stand even if the evidence is insufficient to sustain a conviction
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No. 06-20596
on one of the charged objects.” United States v. Mann, 493 F.3d 484, 492 (5th
Cir. 2007) (quoting United States v. Calle, 120 F.3d 43, 45 (5th Cir. 1997)).
Applying this framework, the record contains ample evidence, some of which is
discussed below, to support Mauskar’s conviction on count 1.
B. Counts 2, 4, 6, and 9
Counts 2, 4, 6, and 9 relate to Mauskar’s false certification that he
provided physical therapy services to Mirage patients. Mauskar’s only challenge
to the sufficiency of the evidence supporting these counts is that he did not
understand that by signing a patient’s chart, he certified that he had performed
physical therapy services for that patient. The record reflects, however, that
Mauskar signed a Medicare form on September 9, 1999, certifying that he
directly supervised physical therapy services in a patient’s home. The record
also reflects that Mauskar told a Medicare investigator that Mirage patients
came to his office for treatment, when in fact they did not. This evidence, as well
as other evidence in the record, is sufficient to establish Mauskar’s culpability
in falsely certifying his treatment of Mirage patients.
C. Counts 10, 12, 14, 16, 18, 20, 22, 24, 26, 28, 30, 32, 34, 36, 38, and
40
Counts 10, 12, 14, 16, 18, 20, 22, 24, 26, 28, 30, 32, 34, 36, 38, and 40 relate
to Mauskar’s prescription of motorized wheelchairs to Medicare and Medicaid
patients who did not need them. Mauskar first argues that “[t]here was no
evidence [he] willingly and knowingly assisted [the DME companies] in their
scheme to defraud.” To the contrary, the record is replete with such evidence.
It is undisputed, for example, that Mauskar prescribed a motorized wheelchair
to Herman Conway despite the fact Conway was jogging a mile twice a day at
the time Mauskar examined him. Conway testified that he used the scooter for
“recreational purposes.”
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No. 06-20596
Mauskar next argues that the DME companies’ alteration of the
certificates of medical necessity he signed forecloses his conviction on all of the
above-referenced counts but one. This argument fails for at least two reasons.
First, the DME companies’ alteration of the certificates does not affect the
evidence that Mauskar himself fraudently billed medically unnecessary tests
and evaluations irrelevant to the procurement of a motorized wheelchair.
Second, the alteration of the certificates for the purpose of ensuring the
government would accept them does not diminish Mauskar’s responsibility for
signing the certificates. If he had not signed them, the government would not
have suffered the losses it did.
Finally, Mauskar argues that “[t]here was no evidence presented that . . .
Mauskar knew that [the DME companies] were delivering less expensive
scooters while billing Medicare for motorized wheelchairs.” The record belies
this assertion. One of the patients to whom Mauskar prescribed a motorized
wheelchair testified that Mauskar asked her if she wanted a scooter:
Q. Now, let me show you what’s marked with Bates 1217. Did
Dr. Mauskar ask you if you needed a motorized wheelchair
because you needed help moving in around your home, your
house?
A. Yes, he asked me did I want a wheel -- a motor -- a scooter. A
scooter.
Q. He asked if you wanted a scooter?
A. Uh-huh.
Q. He said specifically “a scooter”?
A. A scooter, uh-huh.
Another patient testified she told Mauskar’s receptionist that she had come to
“see the physician about a motor scooter.” This, along with other evidence in the
record, is sufficient to support an inference that Mauskar knew the DME
companies were providing his patients with scooters rather than motorized
wheelchairs. Moreover, even assuming Mauskar had been ignorant of the fact
the DME companies charged the government for motorized wheelchairs and
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No. 06-20596
delivered less expensive scooters, the evidence would be sufficient to support his
conviction on the counts at issue—the DME companies’ compounding the fraud
by delivering scooters did not relieve Mauskar of his responsibility for falsely
certifying patients’ eligibility for motorized wheelchairs.
IV. Brady and Outrageous Government Conduct
The record establishes that before Mauskar’s first trial, the government
knew Tonya Williams had forged Mauskar’s signature on treatment charge
sheets, progress notes, and other documents. Williams testified on cross
examination during Mauskar’s second trial that the government had been aware
of the forgery for more than two years:
Q: Who did you tell that you had been photocopying Dr.
Mauskar’s signature?
A: Mr. Louis, Mr. McGregor.
Q: And was this at a meeting you had at the U.S. Attorney’s
Office?
A: Yes.
Q: And it was before the trial began?
A: Yes.
Q: Is it while you were in prison or before you went to prison?
A: Before I went to prison.
Q: So, the government has known for at least for the last two
years that you photocopied these signatures.
A: (Nods head.)
Q: Yes or no?
A: Yes.
The government concedes that at least some of these documents were relevant
to some of the charges against Mauskar, and that it failed to disclose the
forgeries until after Mauskar’s second trial was underway. Following Williams’s
testimony, Mauskar moved for dismissal of the indictment due to outrageous
government conduct and/or violation of the Double Jeopardy Clause, alleging
that the government committed an egregious Brady violation by failing to
disclose the forgery.
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No. 06-20596
“To make out a Brady violation, a defendant must show that (1) evidence
was suppressed; (2) the suppressed evidence was favorable to the defense; and
(3) the suppressed evidence was material to either guilt or punishment.” Miller,
520 F.3d at 514 (internal quotation marks and citations omitted). “Evidence is
material under Brady when there is a ‘reasonable probability’ that the outcome
of the trial would have been different if the suppressed evidence had been
disclosed to the defendant.” United States v. Runyan, 290 F.3d 223, 245 (5th Cir.
2002). Mauskar, however, fails on appeal to identify the forged documents with
any specificity, or to explain to which charges the documents were relevant. In
fact, Mauskar acknowledges that he was acquitted on some of those charges.
Without this information, we cannot conduct the analysis necessary to determine
whether the documents were “material” within the meaning of Brady. See Kyles
v. Whitley, 514 U.S. 419, 437 (1995) (“[S]howing that the prosecution knew of an
item of favorable evidence unknown to the defense does not amount to a Brady
violation, without more.”); see also Smith v. Black, 904 F.2d 950, 967 (5th Cir.
1990) (observing that “[t]he materiality of Brady material depends almost
entirely on the value of the evidence relative to the other evidence mustered by
the [government]”), vacated, 503 U.S. 930 (1992), abrogated on other grounds by
Stringer v. Black, 503 U.S. 222 (1992).
Nor has Mauskar established the existence of outrageous government
conduct that required dismissal of his indictment, a question we review de novo.
United States v. Asibor, 109 F.3d 1023, 1039 (5th Cir. 1997). “Government
misconduct does not mandate dismissal of an indictment unless it is ‘so
outrageous’ that it violates the principle of ‘fundamental fairness’ under the due
process clause of the Fifth Amendment.” United States v. Johnson, 68 F.3d 899,
902 (5th Cir. 1995) (citing United States v. Russell, 411 U.S. 423, 431–32 (1973)).
“Such a violation will only be found in the rarest circumstances.” Id. (citing
United States v. Yater, 756 F.2d 1058, 1066 (5th Cir. 1985)); see also United
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No. 06-20596
States v. Childs, 447 F.3d 541, 545 (7th Cir. 2006) (observing that “dismissing
criminal charges against a defendant because of government misconduct” is an
“extreme step”). We are deeply concerned by the government’s failure to disclose
Williams’s forgery of Mauskar’s signature on documents relating to the charges
against him.3 “The duty of a prosecutor, as the representative of the sovereign
in a criminal case, is not that it shall win a case but that justice shall be done.”
Dickson v. Quarterman, 462 F.3d 470, 479 (5th Cir. 2006) (internal quotation
marks and citations omitted). Nonetheless, we cannot say on the record before
us that the nondisclosure in the present case is so “shocking to the universal
sense of justice,” Russell, 411 U.S. at 432 (quoting Kinsella v. United States ex
rel. Singleton, 361 U.S. 234, 246 (U.S. 1960)), that the government should have
been deprived for all time of the opportunity to prosecute Mauskar.
In so concluding, we note that contrary to Mauskar’s assertion, the
government did not suborn perjured testimony from Tonya Williams regarding
the authenticity of signatures on the forged documents. Williams testified
during Mauskar’s first trial that she had never written “Dr. Mauskar’s name on
any Medicare application form that was submitted to Medicare.” This testimony
is not inconsistent with her subsequent testimony during Mauskar’s second trial
that she forged treatment sheets, progress notes, and other documents. Had the
government suborned perjury regarding the authenticity of signatures on the
forged documents relating to the charges against Mauskar, the outcome of this
appeal may have been different.
V. Sentencing Errors
Mauskar objects to numerous alleged sentencing errors in the district
court. In considering these objections, we review the district court’s factual
3
We are also disappointed with the government’s suggestion that Williams did not
“forge” Mauskar’s signature because she photocopied, rather than wrote, his signature onto the
forged forms. Such an argument is beneath a member of the Bar representing the United
States before this court.
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No. 06-20596
findings for clear error and its interpretation of the Guidelines de novo. United
States v. Angeles-Mendoza, 407 F.3d 742, 747 (5th Cir. 2005). “A factual finding
is not clearly erroneous so long as it is plausible in light of the record as a
whole.” United States v. Holmes, 406 F.3d 337, 363 (5th Cir. 2005) (quoting
United States v. Powers, 168 F.3d 741, 752 (5th Cir. 1999)).
A. Mass-Marketing Enhancement
U.S.S.G. § 2B1.1(b)(2)(A) provides for a two-level enhancement if “the
offense . . . was committed through mass-marketing.” The commentary to
section 2B1.1 defines “mass-marketing” as “a plan, program, promotion, or
campaign that is conducted through 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). “Mass-marketing” is not limited to the
mass-communication methods listed in the commentary, as the definition
“explicitly contemplates ‘other means’ of mass-marketing.” United States v.
Magnuson, 307 F.3d 333, 335 (5th Cir. 2002). As we have recognized, “[f]ace-to-
face marketing [] intended to reach a large number of persons” for the purpose
of facilitating health care fraud can constitute “mass-marketing.” United States
v. Jackson, 220 F. App’x 317, 332 (5th Cir. Mar. 2, 2007).
The district court, on the recommendation of the presentence investigation
report, found section 2B1.1(b)(2)(A)(ii) applicable over Mauskar’s objection that
while “he may have known about” the mass-marketing, the record contained no
“evidence he actually participated in that or encouraged it or developed it or
planned it.” Mauskar renewed his objection to the mass-marketing
enhancement in a motion filed shortly after sentencing, arguing that precedent
did not support the enhancement absent evidence that Mauskar was “personally
involved in the mass-marketing.” The district court again rejected Mauskar’s
argument, finding that he was “inextricably involved in the mass marketing
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No. 06-20596
aspect of the offense.” In support of this finding, the district court noted that
“well over a thousand elderly, ambulatory Medicare beneficiaries were escorted
to Defendant Mauskar’s medical clinic to acquire free motorized wheelchairs”
and that “Mauskar’s staff used a separate sign-in sheet for the Medicare
wheelchair applicants . . . [to] reduce the number of arguments . . . about who
was entitled to be paid the recruiting fee for having brought in the wheelchair
applicants.”
The plain language of the Guidelines forecloses Mauskar’s argument that
the mass-marketing enhancement does not apply to his conduct. The
mass-marketing enhancement is applicable if an “offense . . . was committed
through mass-marketing.” U.S.S.G. § 2B1.1(b)(2)(A)(ii). “‘Offense’ means the
offense of conviction and all relevant conduct under § 1B1.3 (Relevant Conduct)
unless a different meaning is specified or is otherwise clear from the context.”
U.S.S.G. § 1B1.1 cmt. n.1(H). And “in the case of a jointly undertaken criminal
activity,” relevant conduct includes “all reasonably foreseeable acts and
omissions of others in furtherance of the jointly undertaken criminal activity.”
U.S.S.G. § 1B1.3(a)(1)(B). Given this standard, the district court did not err in
finding Mauskar eligible for the mass-marketing enhancement.
B. Calculation of Loss
U.S.S.G. § 2B1.1(b)(1) provides for a twenty-level enhancement if a
defendant’s offense, including “all reasonably foreseeable acts and omissions of
others in furtherance of the jointly undertaken criminal activity,” id.
§ 1B1.3(a)(1)(B), resulted in a loss between $7,000,000 and $20,000,000. “Loss
is the greater of actual loss or intended loss.” Id. § 2B1.1 cmt. n.3(A). “‘Intended
loss’ (I) means the pecuniary harm that was intended to result from the offense;
and (II) includes intended pecuniary harm that would have been impossible or
unlikely to occur.” Id. § 2B1.1 cmt. n.3(A)(ii). “The [district] court need make
only a reasonable estimate of the loss” based on available information. Id.
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No. 06-20596
§ 2B1.1 cmt. n.3(C). Here, the district court estimated $15,311,867 as the total
loss attributable to Mauskar and accordingly applied a twenty-level
enhancement.
In his opening brief, Mauskar raises three objections to the district court’s
loss estimate, all of which relate to his responsibility for $13,480,000 the DME
companies billed Medicare for medically unnecessary motorized wheelchairs.
First, Mauskar argues that he is not responsible for an unspecified portion of
that amount because the DME companies altered some certificates of medical
necessity, after Mauskar signed them, to ensure that the government would
accept the certificates and pay for the wheelchairs. This argument fails because
the district court did not include the allegedly altered certificates in its loss
calculation: “[I]n view of the questionable CMNs, which the defendant has
estimated at 600 off of 2400, I’m going to be somewhat even more conservative
and base my loss finding here upon the 1685 CMNs that the government was
able to document out of Dr. Mauskar’s own files.” Even had the district court
decided to include the allegedly altered certificates in its loss calculation, it
would not have clearly erred. By signing the certificates of medical necessity,
Mauskar verified ineligible patients’ eligibility for power wheelchairs; it was
entirely foreseeable from his perspective that the DME companies would use
those CMNs to defraud Medicare and Medicaid.
Second, Mauskar suggests that he should not be held responsible for the
$13,480,000 because he was unaware that the DME companies billed Medicare
and Medicaid for power wheelchairs and delivered less expensive scooters. This
argument, which Mauskar did not make before the district court, is without
merit. The fact that the DME companies billed the government for power
wheelchairs and delivered scooters does not absolve Mauskar from responsibility
for issuing certificates of eligibility for power wheelchairs to ineligible patients,
regardless of whether he knew of this additional dimension of the conspiracy.
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No. 06-20596
In any event, Mauskar’s failure to make this argument before the district court
forecloses our review. See United States v. Guerrero, 5 F.3d 868, 871 (5th Cir.
1993) (holding that fact questions that could have been resolved by the district
court upon proper objection can never constitute plain error).
Third, Mauskar asserts without explanation that “if [he] is responsible for
any of the loss in this regard it should be limited to the amount paid [to] the
DMEs for the specific patients whose information was presented at trial, an
amount totaling $86,226[,] . . . with a reduction for the amount secured through
alterations to Mauskar’s prescriptions without his knowledge.” To the extent
Mauskar means to argue that the district court could consider only evidence
presented at trial in sentencing Mauskar, his argument is without merit, as
“[t]he sentencing judge is entitled to find by a preponderance of the evidence all
the facts relevant to the determination of a Guideline sentencing range.” United
States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). Further, as discussed above,
the record reflects that the district court did not consider the altered CMNs in
calculating the loss that resulted from Mauskar’s conduct. Mauskar’s argument
on this point thus fails.
In his reply brief, Mauskar asserts that because the DME companies billed
approximately $10,000 per patient but the government paid approximately
$5,000 per patient, the district court erred in finding Mauskar responsible for
eighty percent of the amount billed, rather than fifty percent. As above,
Mauskar’s failure to raise this argument before the district court forecloses
appellate review. See Guerrero, 5 F.3d at 871. Moreover, even assuming
arguendo that the district court did err on this point, the error would be
harmless, as even the application of Mauskar’s proposed fifty percent discount
rate would not reduce the loss estimate below $7,000,000, the threshold for a
twenty-level enhancement under section 2B1.1(b)(1). See United States v.
Watson, 966 F.2d 161, 164 (5th Cir. 1992) (“Watson has not demonstrated that
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No. 06-20596
the evidence is sufficient to reduce the value of the stolen property by . . . the
amount necessary to decrease his offense level . . . . Accordingly, any error by
the district court would be harmless.” (citations omitted)).
C. Aggravating Role Enhancement
U.S.S.G. § 3B1.1(b) provides for a three-level enhancement “[i]f the
defendant was a manager or supervisor (but not an organizer or leader) and the
criminal activity involved five or more participants or was otherwise extensive.”
“To qualify for an adjustment under this section, the defendant must have been
the organizer, leader, manager, or supervisor of one or more other participants.”
Id. § 3B1.1 n.2. “A ‘participant’ is a person who is criminally responsible for the
commission of the offense, but need not have been convicted.” Id. § 3B1.1 n.1.
The district court applied the enhancement to Mauskar, finding by a
preponderance of the evidence that he had supervised at least one criminally
responsible participant, Nadine Norman, and that the criminal activity at issue
was “otherwise extensive.”
Mauskar raises three objections to the district court’s analysis. First, he
criticizes the district court’s finding that Nadine Norman, Mauskar’s former
office manager, was a criminally responsible participant, noting that she was
acquitted of all charges. To the extent this criticism constitutes an argument
that Norman’s acquittal precluded the district court’s finding that she was a
criminally responsible participant, the argument fails. See United States v.
Davis, 19 F.3d 166, 172 (5th Cir. 1994) (“The district court could have enhanced
Davis’ sentence based on his leadership of Facey and Coulton despite their
acquittals.”).
Second, Mauskar asserts that “[t]he employees used to support this
enhancement were not ‘criminal participants’ as required for application of this
enhancement.” This argument also fails. The court reviews the district court’s
preponderance-of-the-evidence factual determination that Nadine Norman was
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No. 06-20596
a criminally responsible participant for clear error, and that determination is
“plausible in light of the record as a whole.” See United States v. Holmes, 406
F.3d 337, 363 (5th Cir. 2005). During Mauskar’s first trial, for example, one
witness testified that Norman (1) paid recruiters for referring patients to
Mauskar’s practice; (2) requested kickbacks from the medical equipment
companies; and (3) controlled which recruiters could bring patients to Mauskar’s
office. Another witness testified that Norman received a cash payment of
between seven and eight thousand dollars from a medical equipment company
representative in the parking lot of Mauskar’s office. Supported by this
evidence, the district court’s determination easily withstands clear error review.
Third, Mauskar asserts that “any supervision provided by [him] over
[criminally responsible participants] was during the course and scope of their
employment” and implies that this fact precludes an aggravating role
enhancement. Neither the text of section 3B1.1(b) nor case law supports
Mauskar’s argument on this point; to the contrary, numerous courts have upheld
aggravating role enhancements based on supervision of employees. See, e.g.,
United States v. Chau, 293 F.3d 96, 103 (3d Cir. 2002) (“Chau argues that this
enhancement is improper because he merely directed his handyman, Fantom,
to clean up the building . . . . However, this is sufficient for a district court to
impose this enhancement.”); United States v. Austin, 103 F.3d 606, 611 (7th Cir.
1997) (holding that district court’s finding that a defendant’s employee was a
criminally responsible participant within the meaning of section 3B1.1 was not
clearly erroneous).
D. Abuse of Trust Enhancement
U.S.S.G. § 3B1.3 provides for a two-level enhancement if “the defendant
abused a position of public or private trust . . . in a manner that significantly
facilitated the commission or concealment of the offense.” The district court
found section 3B1.3 applicable to Mauskar, noting that Medicare and Medicaid
22
No. 06-20596
relied on him to give “honest and accurate assessments” of his patients’ need for
power wheelchairs and physical therapy services. Mauskar argues before this
court that “Medicare placed its trust in the physical therapy clinics and the DME
companies, not in Mauskar.” As the district court recognized, however, Medicare
and Medicaid do rely on physicians such as Mauskar to provide honest
assessments of their patients’ needs for the medical services and products the
government provides. Consistent with this fact, we have previously held that
medical providers maintain a position of trust with the insurers they bill and
have approved sentence enhancements for violations of that trust. See, e.g.,
United States v. Gieger, 190 F.3d 661, 665 (5th Cir. 1999); United States v.
Iloani, 143 F.3d 921, 922–23 (5th Cir. 1998). The district court’s application of
section 3B1.3 is thus consistent with our precedent.
E. Booker
After United States v. Booker, 543 U.S. 220 (2005), a criminal defendant’s
argument for a sentence below that prescribed by the Sentencing Guidelines can
take one of two forms:
First, [a defendant] might argue within the Guidelines’ framework,
for a departure from the applicable Guidelines range on the ground
that his circumstances present an “atypical case” that falls outside
the “heartland” to which the United States Sentencing Commission
intends each individual Guideline to apply. Second, [a defendant]
might argue that, independent of the Guidelines, application of the
sentencing factors set forth in 18 U.S.C. § 3553(a) (2000 ed. and
Supp IV) warrants a lower sentence.
Rita v. United States, 127 S. Ct. 2456, 2461 (2007) (citing Booker, 543 U.S. at
259–60). Mauskar argues that we should vacate his sentence because the
district court “erroneously believed that [it] was confined to a ‘heartland’
analysis”—in other words, that the district court failed to recognize that
application of the sentencing factors set forth in section 3553(a) might warrant
a lower sentence independent of the Guidelines. To the contrary, the district
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No. 06-20596
court recognized the advisory nature of the Guidelines and explicitly declined to
impose a below-Guidelines sentence in reliance on the factors set forth in section
3553(a): “The Court has considered the advisory guidelines and finds that a
sentence within the recommended range suggested by the advisory guidelines
is appropriate to the circumstances of this case and serves the purpose of
fulfilling the function of [Title] 18, United States Code, Section 3553(a).”
Mauskar’s argument on this point is thus without merit.
CONCLUSION
For the reasons set forth above, the judgment of the district court is
AFFIRMED.
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