                    United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT

      ___________

      No. 03-1584
      ___________

United States of America,         *
                                  *
            Plaintiff/Appellee,   *
                                  *
      v.                          *
                                  *
Kelley Anne Liveoak,              *
                                  *
           Defendant/Appellant.   *
      ___________
                                      Appeals from the United States
      No. 03-1694                     District Court for the Western
      ___________                     District of Missouri.

United States of America,         *
                                  *
            Plaintiff/Appellee,   *
                                  *
      v.                          *
                                  *
Robert Joseph Dupont, Jr.         *
                                  *
           Defendant/Appellant.   *
      ___________

       03-2029
      ___________

United States of America,         *
                                  *
            Plaintiff/Appellee,   *
                                           *
      v.                                   *
                                           *
Julia Elaine Bazazzadegan,                 *
                                           *
             Defendant/Appellant.          *

                                    __________

                           Submitted: November 19, 2003
                               Filed: July 27, 2004
                                   ___________

Before MELLOY, RICHARD S. ARNOLD, and SMITH, Circuit Judges.
                           ___________

MELLOY, Circuit Judge.

      Robert Dupont, Jr., Kelley Liveoak, and Julia Bazazzadegan were charged with
various counts involving a home health care fraud scheme. Dupont pled guilty and
seeks to have his plea set aside for failure of consideration. Liveoak appeals her
conviction, claiming improper joinder and that her motion for acquittal should have
been granted. Bazazzadegan appeals the amount of loss assessed against her at
sentencing. We affirm in part and reverse in part.

                                I. BACKGROUND

       On June 15, 2000, the government filed a twenty-two count indictment against
eleven individuals and four corporations. In the indictment, the government alleged
a health care fraud scheme that involved several residential care facilities, thousands
of claims, and over 200 patients. The government alleged that over at least five years
fifteen defendants, in various conspiracies, defrauded the government by falsely



                                         -2-
certifying patients as homebound and submitting false claims to Medicare and
Medicaid.

      In order to receive home health services under Medicare, physicians are
required to certify that certain individuals are considered homebound and require
home health care. In this case, the various defendant home health agencies that
provided these home health services, as well as their owners, were alleged to have
conspired with the doctors to fraudulently certify patients as requiring home health
care.

      The Personal Care Program of Medicaid provides services to individuals who
need assistance with everyday activities, such as bathing and taking medication. To
qualify for this program, patients are assessed by case managers who visit residential
care facilities. In this case, the government alleged defendants submitted false
applications for payment for services on dates when the patients were in the hospital
and therefore not receiving the personal care services.

A.    Robert Dupont, Jr.

       Appellant Robert Dupont, Jr. was charged with ten counts, including
conspiracy to defraud the United States, failure to file a cost report with the Medicare
Program, submitting false applications for Medicaid Benefits, and paying illegal
renumeration under the Medicare Program. Three days into his trial, Dupont agreed
to plead guilty to Count One, conspiracy to defraud the United States, in violation of
Title 18 U.S.C. § 371. The government dismissed the remainder of the charges
against him.

      Though the written plea agreement made no mention of the condition, Dupont
believed that the government would dismiss all charges against his stepdaughter,
Kelley Liveoak, in exchange for his plea. Dupont’s counsel also believed dismissal

                                          -3-
of all charges against Liveoak was a term of the agreement, and he stated this
understanding at the plea hearing. The government moved to dismiss only one of the
two counts against Liveoak.

B.    Kelley Liveoak

      Appellant Kelley Liveoak was charged in Counts One and Nine. In Count One,
the government alleged that Liveoak participated in a conspiracy to defraud the
United States government under the Medicare Part A program in violation of 18
U.S.C. § 371. In Count Nine, the government alleged that Liveoak submitted false
applications for Medicaid benefits in violation of 42 U.S.C. § 1320a-7b(a)(1). The
government dismissed Count One against Liveoak after Dupont’s guilty plea.

      On March 8, 2002, the magistrate judge ordered that all remaining defendants
and counts be set for joint trial. Liveoak filed a Motion for Reconsideration of the
magistrate judge’s order, asking that her trial be severed from the trial of her co-
defendant. The magistrate judge denied the motion on June 16, 2002. Trial began
the next day against Dr. David Ray Trobaugh, Dr. Rafael Calabria, and Liveoak.

       Dr. Trobaugh was charged in Counts Two, Six, and Eighteen. Count Two
alleged that Dr. Trobaugh, along with three other individual defendants and three
corporate defendants, conspired to certify patients as being homebound, when they
were allegedly not homebound, in violation of 18 U.S.C.§ 371. Count Six alleged
that Dr. Trobaugh conspired with certain defendants to obtain benefit payments based
on the false certification of patients as being homebound, in violation of 18
U.S.C.§ 286. Count Eighteen alleged that Dr. Trobaugh was illegally receiving
kickbacks related to home health care.

     Dr. Calabria was charged in Counts Four and Eight. Count Four alleged that
Dr. Calabria conspired with two other individual defendants and two corporate

                                        -4-
defendants to certify patients as being homebound, when they were allegedly not
homebound, in violation of 18 U.S.C.§ 371. Count Eight alleged that Dr. Calabria
conspired with certain defendants to obtain benefit payments based on the false
certification of patients as being homebound, when they were allegedly not
homebound, in violation of 18 U.S.C.§ 286.

       Liveoak was named only in Count Nine. Count Nine alleged that Liveoak,
along with Lou Ann Dinkmeier and Dupont, submitted false claims for
reimbursement under the Missouri Medicaid Program for personal care services in
violation of 42 U.S.C. § 1320a-7b(a)(1) and 18 U.S.C. § 2.

       Liveoak moved for a judgment of acquittal at the end of the government’s case
in chief, and it was denied. The jury found Liveoak guilty of Count Nine and
acquitted Dr. Trobaugh and Dr. Calabria on all counts. On February 27, 2003, the
district court sentenced Liveoak to six months imprisonment, with a recommendation
she be placed in a halfway house.

C.    Julia Bazazzadegan

       Appellant Bazazzadegan was accused of conspiring to certify certain patients
as homebound to make them eligible to receive home health services. After the court
granted her motion for severance, she proceeded to trial on February 8, 2002.
Bazazzadegan presented evidence that the total loss to the government, as it relates
to her, was $12,478.36. The government did not present any other evidence at trial
regarding the amount of loss as it relates to Bazazzadegan.

       Bazazzadegan pled guilty to Count Two, conspiring with Co-Defendant Dr.
Trobaugh, and Count Four, conspiring with Co-Defendant Dr. Calabria, to certify
patients as homebound. She was convicted of Counts One and Five at trial. The
district court sentenced her to 30 months imprisonment, followed by three years of

                                        -5-
supervised release. The district court ordered restitution of $122,386.81 to be paid
within the first 30 months of release, and a mandatory assessment of $400.

                                 II. DISCUSSION

A.    Robert Dupont, Jr.

       Dupont states in his appeal that he and his attorney believed that, in exchange
for Dupont’s guilty plea, all charges against his stepdaughter, Kelley Liveoak, would
be dropped. Because only one of two counts against Liveoak was dropped after his
plea, Dupont argues that the district court should have set aside his guilty plea due to
the failure of consideration for the plea. The government responds that there was no
such element in the plea agreement and that Dupont failed to object or move for relief
in the district court.

      We review the denial of a motion to withdraw a plea for abuse of discretion.
United States v. Gamble, 327 F.3d 662, 663 (8th Cir. 2003). We find the district
court did not err in failing to set aside the guilty plea.

       Even assuming Dupont satisfied procedural requirements below, his contention
that his plea agreement included dismissal of all charges against Liveoak is without
support in the record. There is no mention in the plea agreement of either of the
charges against Liveoak being dropped. Further, the plea agreement states:

      The defendant has read the Plea Agreement, understands it, and by his
      signature, states that it is true and accurate and not the result of any
      threats or coercion. Both parties agree that no promises or agreements
      have been made other than those set forth in the Plea Agreement, nor has
      the United States promised the defendant any additional consideration
      to induce him to sign this Plea Agreement.



                                          -6-
Dupont Plea Agreement at page 8. Dupont signed the agreement on February 13,
2002. The statements therein directly contradict the argument he brings on appeal.
Therefore, we find that the district court did not err in failing to set aside his guilty
plea for lack of consideration.

B.    Kelley Liveoak

      Kelley Liveoak argues on appeal that the district court erred in: (1) failing to
sever Liveoak’s case for trial and (2) failing to grant Liveoak’s motion for judgment
of acquittal at the end of the government’s case.

      1.     Improper Joinder

       Liveoak claims that the charge against her at trial was unrelated to the charges
against the two doctors with whom she was tried. She argues that while the doctors
were charged with home health violations under Medicare (falsely certifying patients
as homebound and illegally receiving benefits), she was not implicated in the
Medicare fraud, but charged with falsely submitting claims to Medicaid. The
government alleges that all the activities were related and, citing a statement by
Dupont, the scheme was “to hit Medicaid and Medicare hard before they knew what
hit them.”

       This court reviews claims of misjoinder de novo. United States v. Rimell, 21
F.3d 281, 288 (8th Cir. 1994). However, “misjoinder requires reversal only if it
resulted in actual prejudice because it had substantial and injurious effect or influence
in determining the jury’s verdict.” United States v. Sazenski, 833 F.2d 741, 745 (8th
Cir. 1987) (internal quotations omitted). This court reviews a denial of a motion to
sever for an abuse of discretion and will reverse only upon a showing of severe
prejudice. United States v. Rock, 282 F.3d 548, 552 (8th Cir. 2002).



                                          -7-
       To properly join defendants for trial, the indictment must allege that the
defendants “participated in the same act or transaction, or in the same series of acts
or transactions, constituting an offense or offenses.” Fed. R. Crim. P. 8(b). It is not
necessary that all defendants be charged in each count. Id. “The prerequisites for
joinder are liberally construed in favor of joinder.” Rimell, 21 F.3d at 288. In
Rimell, joinder was proper when “the indictment reflect[ed] a sequence of connected
events with the defendants being involved at various points in the continuum.” Id.
at 289.

        If joinder of defendants in the indictment “appears to prejudice a defendant or
the government, the court may order separate trials of counts, sever the defendants’
trials, or provide any other relief that justice requires.” Fed. R. Crim. P. 14(a). “To
grant a motion for severance, the necessary prejudice must be ‘severe or
compelling.’” United States v. Pherigo, 327 F.3d 690, 693 (8th Cir. 2003) (quoting
United States v. Warfield, 97 F.3d 1014, 1018 (8th Cir. 1996)). “In our consideration
of the jury’s ability to compartmentalize the evidence against the joint defendants, we
consider 1) the complexity of the case; 2) if one or more of the defendants were
acquitted; and 3) the adequacy of admonitions and instructions by the trial judge.”
Pherigo, 327 F.3d at 693.

      Liveoak argues that her case was improperly joined with the cases of Drs.
Trobaugh and Calabria, because there was no common scheme alleged linking the
charges of the three defendants. She asserts that the doctors are alleged to have
schemed to defraud Medicare by falsely certifying patients as homebound. Liveoak
argues that the claim against her—that she submitted false claims to Missouri
Medicaid for actual patients, but for dates during which they were in the hospital and
not receiving care—is not part of a common scheme with the two doctors. The
government, on the other hand, sees the activities as part of the same health care fraud
scheme or related schemes.



                                          -8-
       We find that joinder was proper in this case. Though charges linked merely by
common conspiracy members may not be joined, United States v. Nicely, 922 F.2d
850 (D.C. Cir. 1991), the charges here are linked not only by common conspiracy
members, but also by an overall scheme in which each conspiracy member
participated to fraudulently charge the government for health care costs. Further,
even assuming Liveoak’s case was improperly joined, she suffered no actual
prejudice. Sazenski, 833 F.2d at 745 (in case of misjoinder, reversal required only
upon showing of actual prejudice). Given that there was ample evidence supporting
her conviction and the fact that her co-defendants were acquitted, Liveoak cannot
show that misjoinder had a “substantial and injurious effect or influence in
determining the jury’s verdict.” Id.

       We also find unpersuasive Liveoak’s related arguments that the district court
abused its discretion in failing to grant her motion for severance because the jury was
not able to compartmentalize the evidence. As stated above, there are three factors
given in Pherigo that the court can use to assess the risk that the jury will not be able
to compartmentalize the evidence: “1) the complexity of the case; 2) if one or more
of the defendants were acquitted; and 3) the adequacy of admonitions and instructions
by the trial judge.” Pherigo, 327 F.3d at 693. The first factor is present to some
extent, because the overarching conspiracy was complicated. However, what this jury
had before it was not the whole conspiracy, but three defendants with six counts
between them. The case was therefore not overly complex. The second factor clearly
weighs in favor of the government, because both the doctors were acquitted on all
counts. The third factor also weighs in favor of the government, because the court
provided adequate admonitions to the jury. In light of these factors, Liveoak has
failed to show that the district court abused its discretion in failing to grant severance.




                                           -9-
      2.     Motion for Acquittal

       Liveoak argues that the district court erred in denying her motion for judgment
of acquittal at the end of the government’s case. When reviewing the sufficiency of
the evidence, we view the evidence in the light most favorable to the verdict, giving
the verdict “the benefit of all reasonable inferences that might have been drawn from
the evidence presented.” United States v. Jenkins, 78 F.3d 1283, 1287 (8th Cir.
1996).1 In this case, the district court considered all the evidence and found it
sufficient to support a conviction. Having reviewed the record, we find that the
district court properly denied Liveoak’s motion for judgment of acquittal.

C.    Julia Bazazzadegan

      On appeal, Bazazzadegan claims that the district court erred in calculating the
amount of loss in her case. First, she agues that the evidence did not reasonably
support the loss estimate used by the district court, as required by U.S.S.G. § 2B1.1
n.3(C)(i). Second, she argues that the district court failed to give credit for the fair
market value of the services rendered, as required under U.S.S.G. § 2B1.1 n.3(E)(i).
The government responds, first, that activities involving a common purpose were
properly considered when assessing the loss; and, second, that no offset was
appropriate because the Part B (physicians services) payments would never net
against Part A (home health benefit) losses.




      1
         The government’s first argument in response is that Liveoak is appealing her
motion for acquittal she made at the close of the government’s evidence, and that this
motion was waived when she subsequently put on evidence in her defense. While it
is true that her first motion for acquittal was waived, Zacher v. United States, 227
F.2d 219, 222 (8th Cir. 1955), Liveoak made a second motion for acquittal after the
close of all evidence. We treat her appeal as one of this latter motion.

                                         -10-
       Generally, we review the district court’s application of the Federal Sentencing
Guidelines de novo. United States v. Gonzales, 220 F.3d 922, 926 (8th Cir. 2000).
However, “[l]oss calculations also involve factual findings, which we review for clear
error and reverse only if ‘we are left with a definite and firm conviction that the
district court erred.’” United States v. Piggie, 303 F.3d 923, 926-27 (8th Cir. 2002)
(quoting United States v. Whatley, 133 F.3d 601, 606 (8th Cir. 1998)); see also 18
U.S.C. § 3742(e).

      1.     Evidentiary Claim

       When calculating a sentence, the sentencing court must “make a reasonable
estimate of the loss.” U.S.S.G. § 2B1.1 n.3(C). “The estimate of the loss shall be
based on available information, taking into account, as appropriate and practicable
under the circumstances, factors such as the following: (i) The fair market value of
the property unlawfully taken. . . .” Id. “The government bears the burden of proving
the amount of loss by a preponderance of the evidence.” United States v. Sample,
213 F.3d 1029, 1034 (8th Cir. 2000).

       The only evidence in the record regarding the amount of loss in
Bazazzadegan’s case is the testimony of two nurses at trial. The government
presented evidence regarding three patients of Bazazzadegan’s home health agency,
Paul E., John H., and Timothy S. Nurse Michelle Bahansen testified that the
overpayment for Paul E. for home health benefits was $3,742.38 and that the
overpayment for John H. was $1,369.54. Nurse David Newman testified that the loss
to the government for overpayment for Timothy S. was $7,366.44. The government
presented no other evidence as to the amount of loss for which Bazazzadegan was
responsible. The total loss shown by the government was therefore $12,478.36.
However, the government recommended the loss figure of $122,386.81, based on
other defendants’ plea agreements. Bazazzadegan disputed the figure in her plea



                                        -11-
agreement. The court adopted the government’s figure and ordered Bazazzadegan
to pay restitution in the amount of $122,386.81.

       The presentence report in this case recommended a loss amount in excess of
$1 million. The government responded by indicating it was recommending a loss
figure of $122,336.81. The defendant also disputes the loss computation but does not
indicate a specific dollar amount. Both the government and the defendant referenced
the plea agreement which provides that the government will assert that the loss to the
defendant will result in no more than a ten level enhancement pursuant to U.S.S.G.
§ 2B1.1(b)(1). This stipulation means that the government was recommending a loss
between $120,000 and $200,000. The plea agreement goes on to recite that the
defendant disputes this loss amount. The net effect is that the loss amount is in
dispute and the amount set forth in the plea agreement was objected to. We have
repeatedly held that the presentence report is not evidence when a timely objection
is made. United States v. DeWitt, 366 F.3d 667, 671 (8th Cir. 2004); United States
v. Stapleton, 268 F.3d 597, 598 (8th Cir. 2001); United States v. Hammer, 3 F.3d 266,
272 (8th Cir. 1993).

      We are unable to determine from the record the basis of the court's finding that
the loss amount was $122,386.81. The court did state at the beginning of the
sentencing hearing "I am going to use the same amount. $122,386. Do you have any
dispute with that?" Ms. Bazazzadegan's attorney then went on to indicate that she did
dispute that amount and set forth the reasons for the dispute. However, the
government presented no evidence to support the $122,386 figure. It appears that the
$122,386 loss figure may have come from a stipulation involving a co-defendant.
However, that is unclear from the record, and there is nothing to indicate that a co-
defendant stipulation would be in any way binding upon Ms. Bazazzadegan.2

      2
       Our review of the record is further complicated by the fact that apparently a
number of exhibits were introduced into evidence at the sentencing hearing. None
of those exhibits have been made part of the appellate record.

                                        -12-
      We must conclude the government failed to prove the amount of loss was
$122,386.81 as to defendant Bazazzadegan. We therefore remand this claim to the
sentencing court for further development of the record as to the amount of loss.3

      2.     Offset Claim

       Once the sentencing court estimates the amount of loss, it must credit the fair
market value of the services rendered against this figure. U.S.S.G. § 2B1.1 n.3(E)(i).
(“Loss shall be reduced by the following: The money returned, and the fair market
value of the property returned and the services rendered, by the defendant or other
persons acting jointly with the defendant, to the victim before the offense was
detected.”) Bazazzadegan argues that, if there had been no fraudulent billing, some
of the home health care her patients received would have been received in a different
form (a visit to a physician’s office, instead of a physician’s visit to the home), which
would have been reimbursed by the government. In other words, Medicare would
have paid for the office visit, so the amount of loss for the home health care should
be offset by the cost of this legitimate service.

       The district court heard evidence on this issue at Ms. Bazazzadegan's
sentencing. It made a finding that it was mere speculation as to whether the patients
would have gone to the doctor if they weren't homebound, or if they would have
received all the services provided by the doctors in this case. The judge went on to
find that there was no doubt that all the conspirators were working together to make
as much money in a fraudulent manner as possible. Consequently, he did not feel that
any offset was appropriate. We cannot conclude that factual finding was clearly
erroneous and will not overturn it on appeal.



      3
       Bazazzadegan is the only defendant who appeals her sentence in this case. We
are expressing no opinion whether Blakely v. Washington, No. 02-16322004 WL
1402697 (U.S. June 24, 2004), has any applicability at the time of resentencing.

                                          -13-
                               III. CONCLUSION

     The judgment of the district court is affirmed with regard to Robert Dupont, Jr.
and Kelley Liveoak. As to the judgment against Julia Bazazzadegan, we reverse and
remand for resentencing.




                                        -14-
