     Case: 16-20822      Document: 00514273399        Page: 1     Date Filed: 12/14/2017


          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT

                                                                             United States Court of Appeals

                                   No. 16-20822
                                                                                      Fifth Circuit


                                 Summary Calendar
                                                                                    FILED
                                                                            December 14, 2017
                                                                               Lyle W. Cayce
                                                                                    Clerk

UNITED STATES OF AMERICA,

                                                Plaintiff−Appellee,

versus

JOCELYN PYLES-ELO,

                                                Defendant−Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                 No. 4:15-CR-85-2




Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *

      Jocelyn Pyles-Elo was indicted for conspiracy to commit health-care
fraud and 14 counts of health-care fraud. She was acquitted of conspiracy and
convicted on the 14 substantive counts and sentenced to 12 months and one
day of imprisonment on each count, to be served concurrently; three years of


      * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in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.
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                                  No. 16-20822

supervised release on each count, to be served concurrently; and restitution of
$560,718.62 and a special assessment of $1,400.

      Pyles-Elo contends that because the jury acquitted her of conspiracy, it
could not convict her of substantive health-care fraud as a matter of law, and
the verdict was a logical impossibility. The verdict is not a bar to conviction on
the substantive counts, however, because there is sufficient evidence to sup-
port the verdict on those counts. See United States v. Thomas, 690 F.3d 358,
374 (5th Cir. 2012).

      Pyles-Elo posits that the evidence was insufficient to establish that she
acted knowingly and willfully with the intent to defraud, because the jury ac-
quitted her of conspiracy. She maintains that although she was the medical
director of the Elite Clinic, she was not involved in the billing to Medicare and
Medicaid (“M&M”) and that she was acting in accordance with state law re-
garding physician supervision and delegation. Further, she contends that her
case is identical to United States v. Rufai, 732 F.3d 1175 (10th Cir. 2013), in
which she theorizes that the court overturned the convictions on sufficiency
grounds because the conspiracy offense and the substantive health-care-fraud
offenses were based on the same scheme.

      The reliance on Rufai is misplaced. This case is distinguishable, given
that the Tenth Circuit found that the government had not presented sufficient
evidence to establish one of the essential elements. Id. at 1195. Further, the
Tenth Circuit’s decision is not binding precedent in this circuit. See Orellana-
Monson v. Holder, 685 F.3d 511, 520 (5th Cir. 2012).

      Viewing the evidence and all reasonable inferences in the light most
favorable to the government, any rational trier of fact could have found Pyles-
Elo guilty of the 14 health-care-fraud offenses beyond a reasonable doubt. See
United States v. Vargas-Ocampo, 747 F.3d 299, 303 (5th Cir. 2014).           The
prosecution presented evidence that Pyles-Elo obtained a provider number
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                                  No. 16-20822

from M&M and submitted a reassignment-of-benefits form that allowed Elite
Clinic to submit and receive payment for claims submitted under her provider
number. Pyles-Elo did not see patients at the clinic and did not supervise an
unlicensed foreign medical graduate, Efe Akpoigbe (“Efe”). Pyles-Elo signed
off on patient-progress notes concerning examinations performed by Efe, Law-
rence Palmer, a licensed physician assistant, and an unlicensed physical
therapist.

      Efe and Veronica Spicer, the owner of the clinic, testified that Pyles-Elo
signed all of Efe’s patient notes and that Efe was prohibited from signing them
because he was an unlicensed foreign medical graduate. Efe also testified that
Pyles-Elo signed patient notes concerning physical therapy, but he never saw
Pyles-Elo provide physical therapy. Pyles-Elo knew that Elite would submit
claims to M&M, under her provider number, for the examinations of the speci-
fic patients listed in the 14 counts; that she did not perform any of the services
that were the subject of the 14 counts; and that she also knew that her actions
would cause M&M to pay the fraudulent claims to Elite.

      Representatives of M&M testified that Pyles-Elo’s conduct was prohib-
ited, that Medicare would not have paid claims for services performed by an
unlicensed foreign medical graduate, and that M&M would not have paid the
claims if they had known that the services were not performed by Pyles-Elo.
The government was not required to establish that Pyles-Elo actually submit-
ted the fraudulent documentation to Medicare or Medicaid. See United States
v. Umawa Oke Imo, 739 F.3d 226, 235 (5th Cir. 2014).

      Viewing this evidence in the light most favorable to the government, a
rational jury could have found beyond a reasonable doubt that Pyles-Elo know-
ingly and willfully executed a scheme to defraud M&M or that she knowingly
and willfully executed a scheme to obtain, by means of fraudulent pretenses,
money under the control of M&M. See id. at 235−36. Viewing this evidence in
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                                 No. 16-20822

the light most favorable to the government, a rational jury also could have
found that Pyles-Elo aided and abetted the 14 health-care-fraud offenses be-
cause she associated with Spicer and the Elite Clinic, she purposefully partici-
pated in the health-care fraud by obtaining M&M provider numbers and
allowing Elite to submit claims using her provider numbers, and she sought by
her actions for Elite to succeed in submitting the fraudulent health-care claims
to M&M. See United States v. Pando Franco, 503 F.3d 389, 394 (5th Cir. 2007).

      AFFIRMED.




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