     Case: 17-30627      Document: 00514601965         Page: 1    Date Filed: 08/15/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                      No. 17-30627                         August 15, 2018
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk



              Plaintiff - Appellee

v.

RODNEY HESSON, also known as Psy.D.; GERTRUDE PARKER,

              Defendants - Appellants



                  Appeals from the United States District Court
                      for the Eastern District of Louisiana
                            USDC No. 2:15-CR-152-1


Before CLEMENT, HIGGINSON, and HO, Circuit Judges.
PER CURIAM:*
       Defendants Rodney Hesson and Gertrude Parker were charged with
conspiracy to perpetrate a Medicare fraud scheme as CEOs of two companies—
Nursing Home Psychological Services (“NHPS”) and Psychological Care
Services (“PCS”). Under their leadership, the companies implemented policies
directing psychologists to overbill Medicare for the services they provided.
After a six-day jury trial, they were each found guilty of conspiracy to commit


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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health care fraud in violation of 18 U.S.C. § 1349 and conspiracy to make false
statements related to health care claims in violation of 18 U.S.C. § 371.
      Hesson and Parker raise numerous issues on appeal, but none
persuades. Accordingly, we affirm.
                                        I
      Hesson was the owner and CEO of NHPS, which he purchased in 2008.
The company partnered with nursing homes and sent psychologists to
administer psychological exams and consultations to their residents. NHPS
employees known as “clinical coordinators” worked with nursing homes to
identify the residents in need of the company’s services. NHPS maximized the
number of residents using its services by, for example, setting a low bar to
qualify a resident for testing, paying coordinators per referral, and proactively
scheduling subsequent evaluations at the earliest date allowed by Medicare.
      NHPS’s service was streamlined. Clinical coordinators, who had no
psychological degrees, would put together a small file on each patient and then
administer the same three basic tests, which required no specialized training
and lasted no more than 10–15 minutes each. After the test was administered,
the patient would briefly speak with a psychologist, who would review the test
results and ask additional questions. The conversation would culminate in a
treatment recommendation and short-form write-up. An assistant would then
convert the psychologist’s notes into a longer report, a process which usually
took 30–35 minutes. The psychologist would review the report, editing as
necessary, and then fill out a billing form to be submitted to Medicare.
      There is significant evidence in the record that the company’s policies
and culture were focused on its financial interests, not quality of care. Patients
with Medicaid coverage would not receive the tests and could expect only a
brief consultation because NHPS did not receive reimbursement. By contrast,

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Medicare recipients—for whose service NHPS would receive reimbursement—
were seen as often as permitted, regardless of the helpfulness of the repeated
visits. Many patients, for example, had mental disabilities so severe they could
not complete the exams, yet were seen on a quarterly basis. Indeed, the tests
themselves were not particularly probing for those who could complete them.
        NHPS’s billing statements to Medicare did not reflect its economized
system. The billing forms used the Medicare code 96101, reimbursing
“[p]sychological testing per hour of the psychologist’s or physician’s time, both
face-to-face time administering tests to the patient and time interpreting these
test results and preparing the report.” Despite the fact that psychologists spent
little time with patients (one estimated as little as 30 minutes) or preparing
their reports, they consistently reported five to eight hours per patient. As a
result, the doctors would report “impossible hours”—i.e., more hours of work
than physically possible in a given day. NHPS also included the work done only
by assistants. Medicare paid NHPS $6.49 million on claims between 2009 and
2012.
        Hesson, himself a practicing psychologist at the time, was at the center
of NHPS’s policy. Hesson’s company-wide target was for physicians to complete
10 to 15 patient evaluations during a single workday. He also discouraged
psychologists from spending time engaging in substantial edits to the
assistants’ reports. Under his leadership, psychologists were paid flat fees per
patient seen, incentivizing them to spend as little time as possible with
patients.    He   also    encouraged   psychologists   to    provide    treatment
recommendations that were the least burdensome to the homes.
        Hesson also enforced the company-wide billing policy. He emphasized
the importance of billing at least four hours of work per patient to maintain
the company’s financial health. Internal reviews on this issue were

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undertaken, and Hesson would reach out to doctors charging less to
“encourage” them to charge more time. Those who continued to report lower
hours risked having pay withheld or contracts terminated. And he practiced
what he preached. Indeed, at one point, Hesson was seeking reimbursement
for 78–90 hours of work per day.
      In June 2011, Hesson was charged with 11 counts of Medicaid fraud in
connection with his private practice (not NHPS). This precipitated certain
policy changes at NHPS. For example, psychologists were required to complete
the tests, and he capped the number of evaluations a doctor could give per day
(albeit still at a high number). The indictment also led to his decision to sell
the company to Parker, his mother, who purchased NHPS for $500,000. Hesson
pleaded guilty twelve days later [and lost his license.
      NHPS’s name changed to PCS, but Parker ran the company exactly as
Hesson had. She kept the same model and practices in effect, and improved on
the system’s profitability—by, for example, seeking to expand the business,
imposing a ten-referral-per-visit minimum on nursing homes, and researching
the residents with Medicare in advance. PCS received $7.3 million in Medicare
reimbursements between 2012 and 2015.
      Parker made financial and management decisions for PCS and ran the
day-to-day operations. She also maintained pressure on the psychologists to
bill the appropriate number of hours, and confronted those who did not.
Despite his fraud conviction, Hesson was an active figure in the new company.
Upper management meetings were held at his house during the transition, at
which he would voice opinions on administrative matters. And he remained a
constant advisor on PCS billing policies and other important decisions.
      On October 22, 2015, a grand jury returned a superseding indictment
charging Hesson, Parker, and two high-ranking employees in NHPS/PCS—

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Beverly Stubblefield and John Teal—with conspiracy to commit health care
fraud (18 U.S.C. § 1349) and conspiracy to make false statements related to
health care matters (18 U.S.C. § 371). Stubblefield and Teal pleaded guilty to
the first charge, while Hesson and Parker proceeded to trial.
      The trial lasted six days and included testimony from Stubblefield, Teal,
Hesson himself, as well as several other employees and expert witnesses.
Hesson and Parker were found guilty as charged. The jury also returned a
special verdict for the forfeiture of certain property, and the court then issued
a preliminary order of forfeiture on May 11, 2017. In July 2017, Hesson and
Parker were sentenced to 180 months and 84 months imprisonment,
respectively, and three years of supervised release. The court also ordered that
they pay $13,800,533.57 and $7,313,379.75 in restitution. In response to the
Government’s motions, the court entered amended judgments the next month,
incorporating the forfeiture order and clarifying that all four conspirators were
jointly and severally liable for the restitution.
                                        II
      Hesson and Parker appeal various issues, both jointly and individually,
from all stages of the proceedings below. We consider each in turn.
      A. Voir Dire Challenge
      Hesson and Parker first argue that the district court abused its
discretion when it did not permit defense counsel the opportunity to ask certain
follow-up questions during voir dire.
      During questioning, Hesson’s attorney notified the prospective jurors of
Hesson’s prior Medicaid fraud conviction and informed them that it would
come out during the trial. He asked whether any members might “be more
likely to vote guilty” after learning of this prior conviction. Ten answered in
the affirmative. The court then educated the jury on the use of the evidence. It

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emphasized that the prior crime was “a totally different offense, a different
time, a different place,” and that its use would be “very limited.” The court
warned that the prior conviction “is not a basis on which the jury is to find that
the defendant committed the offense charged.” It then asked the ten jurors,
“Anybody not understand that?” None responded, and defense counsel moved
on.
       The court later “want[ed] to make sure” that the ten jurors would be able
to remain impartial, so it again asked whether they still might not be capable
of avoiding improper inferences. Three of the original ten jurors raised their
hands. Those three were then questioned individually by the court and struck.
The court concluded that there was no need to talk to the remaining seven.
Defense counsel objected to this decision, but the court explained that it was
“satisfied from their response to” its questions.
       None of the seven jurors was chosen for the jury. One was excused for
hardship, while the remaining were peremptorily struck by the defense, which
was given eleven strikes total. When the defense then raised the issue again
on a motion for new trial, the court again affirmed its conclusion, and noted
that, regardless, “[d]efendants were not deprived of a fair trial because none of
the rehabilitated jurors ultimately served on the jury.”
       Trial courts have discretion to define the shape and scope of voir dire, see
Fed. R. Crim. P. 24(a), “subject to the essential demands of fairness.” United
States v. Delval, 600 F.2d 1098, 1102 (5th Cir. 1979). That discretion includes
resolving “who will question potential jurors and what questions will be asked.”
United States v. Harper, 527 F.3d 396, 409 (5th Cir. 2008) (internal quotation
omitted). It also “extends both to the decision whether or not to submit
suggested questions to the jury and to the decision whether to question
prospective jurors collectively or individually.” Delval, 600 F.2d at 1102

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(internal citations omitted). We review only for clear abuses of that discretion.
United States v. Rasco, 123 F.3d 222, 231 (5th Cir. 1997).
      An adequate voir dire protects a defendant’s constitutional right to an
impartial jury. Morgan v. Illinois, 504 U.S. 719, 729–30 (1992). Accordingly, it
must allow attorneys an adequate opportunity to identify and remove
impartial jurors for cause or through use of peremptory strikes. Delval, 600
F.2d at 1102 (“Full and complete voir dire is . . . necessary for the adequate
development of any facts requiring the removal of a juror for cause as well as
for the intelligent exercise of peremptory challenges.”). The requirement is not
onerous, however: the voir dire must simply “produce some basis for defense
counsel to exercise a reasonably knowledgeable right of challenge,” United
States v. Rodriguez, 993 F.2d 1170, 1176 (5th Cir. 1993), or “a reasonable
assurance that prejudice would be discovered if present,” United States v. Nell,
526 F.2d 1223, 1229 (5th Cir. 1976) (internal quotation omitted). We have held
that this assurance is not provided where the court has so intimidated panel
members that their answers could not be trusted as authentic, see United
States v. Rowe, 106 F.3d 1226, 1228–30 (5th Cir. 1997), or when the court fails
to permit any inquiry into crucial topics, see, e.g., Morgan, 504 U.S. at 733–35
(inquiry whether potential jurors would “be unalterably in favor of” imposing
the death penalty required in capital cases).
      As our account of the voir dire makes clear, such are not the
circumstances here. The district court not only permitted defense counsel to
inquire into the effect of Hesson’s prior conviction, it proactively assisted that
inquiry. The court educated the panel members about the legal standards
governing the use of such evidence and repeated the question. And, even after
all of the members that initially expressed concerns communicated that they
had been assuaged, the court, on its own initiative, again asked those members

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to ensure their promise to remain impartial was authentic. The court’s second
inquiry unearthed lingering doubts in three potential jurors, who were
immediately struck.
      We are satisfied that the district court oversaw a full and robust inquiry
regarding a potential source of bias, eliciting answers from panel members who
clearly felt free to speak candidly. Cf. United States v. Huerra, 884 F.3d 511,
518 (5th Cir. 2018) (no intimidation where “panel was not hesitant to disclose
its potential biases”); Delval, 600 F.2d at 1103 (no intimidation when at least
some panel members admit bias). Defense counsel were left with seven jurors
who had twice affirmed that they could remain impartial. No further inquiry
was needed. The court’s scrupulous conduct afforded defense counsel a more-
than-adequate basis for discerning potential bias. We see no reason to overturn
the district court’s management of the voir dire.
      B. Admissibility of Hesson’s Prior Medicaid Conviction
      Defendants objected to the use of Hesson’s 2011 Medicaid fraud
conviction before trial, arguing it was inadmissible evidence of other wrongs
under Federal Rule of Evidence 404(b). The district court was not persuaded.
At trial, the Government introduced both the charge and Hesson’s guilty plea
and questioned several witnesses about the incident—including Hesson
himself.
      Defendants now appeal the district court’s decision to admit the
conviction. Evidentiary decisions are reviewed for abuse of discretion, United
States v. Lucas, 849 F.3d 638, 642 (5th Cir. 2017), “although [the court]
employ[s] a heightened review in criminal cases,” United States v. Jimenez-




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Elvirez, 862 F.3d 527, 535 (5th Cir. 2017). We again see no abuse; the evidence
meets the requirements of Rule 404(b). 1
       In order to be admissible, prior conviction evidence must survive a two-
step inquiry. First, the evidence must be “relevant to an issue other than the
defendant’s character.” Id. at 536 (quoting United States v. Beechum, 582 F.2d
898, 911 (5th Cir. 1978) (en banc)). As Rule 404(b) clarifies, other issues include
“proving motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). “Second, the
evidence must possess probative value that is not substantially outweighed by
its undue prejudice and must meet the other requirements of Federal Rule of
Evidence 403.” Jimenez-Elvirez, 862 F.3d at 536 (quoting Beechum, 582 F.2d
at 911) (cleaned up).
       At step one, Hesson’s 2011 state conviction for Medicaid fraud is clearly
relevant to an issue unrelated to his character. Hesson pleaded guilty to
knowingly      submitting      “false,     fictitious,   and   fraudulent”     claims    for
reimbursement from Medicaid. See MISS. CODE ANN. § 43-13-213. In other
words, the charges relate to a distinct, yet substantially similar scheme
involving a similar fraudulent practice and the same intent to defraud a
government health care program. See United States v. Cockrell, 587 F.3d 674,
678 (5th Cir. 2009) (“The relevance of extrinsic act evidence is a function of its
similarity to the offense charged.” (internal quotation omitted)). Accordingly,
his guilty plea is relevant to establish a culpable state of mind in the fraud
alleged here. See United States v. Smith, 804 F.3d 724, 736 (5th Cir. 2015) (“[A]
[prior] offense is relevant to intent . . . if it requires the same intent as the
charged offense, because evidence of the [prior] offense then lessens the


       In so holding, we express no opinion on the district court’s ruling that this evidence
       1

was admissible because it was intrinsic to the defendants’ crimes.
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likelihood that the defendant committed the charged offense with innocent
intent.” (internal quotation omitted)); see also Jimenez-Elvirez, 862 F.3d at
536; Beechum, 582 F.2d at 911.
      We next examine whether the probative value of the evidence is
substantially outweighed by the dangers of unfair prejudice. See Fed. R. Evid.
403. We look to four factors when conducting this balancing: “(1) the
[G]overnment’s need for the extrinsic evidence, (2) the similarity between the
extrinsic and charged offenses, (3) the amount of time separating the two
offenses, and (4) the court’s limiting instructions.” United States v. Kinchen,
729 F.3d 466, 473 (5th Cir. 2013).
      We acknowledge that the admission of 2011 Medicaid fraud prejudiced
Hesson to some degree. The frauds were similar and occurred simultaneously.
See Cockrell, 587 F.3d at 679 (“[T]he more closely the extrinsic offense
resembles the charged offense, the greater the prejudice to the defendant . . . .”
(internal quotation omitted)). Nevertheless, its prejudice did not substantially
outweigh its probative value.
      For one, the 2011 fraud provided evidence not only of Hesson’s criminal
intent, but also that of Parker. After all, despite her awareness of the prior
conviction, Parker relied on him as an important advisor to the company and
continued his reporting scheme after she bought his company. Notably, both
defendants contested criminal intent at trial. See Kinchen, 729 F.3d at 473
(prejudice weighs more heavily when the applicable 404(b) exception is
uncontested). Moreover, the similarity between the 2011 fraud and the present
crime increases the prior crime’s probative value. Jimenez-Elvirez, 862 F.3d at
536. Conversely, the prejudice Hesson suffered is substantially mitigated by
the court’s thorough mitigating instructions during voir dire and in its jury
instructions. See id. at 537. The crime was “not of a heinous nature,” Smith,

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804 F.3d at 736 (internal quotation omitted), and it was not “greater in
magnitude than the crimes for which [the defendants were] on trial, nor did
[it] occupy more of the jury’s time than the evidence of the charged offense[]”—
“hallmarks of highly prejudicial evidence.” United States v. Juarez, 866 F.3d
622, 629 (5th Cir. 2017) (internal quotation omitted).
       Accordingly, the district court did not abuse its discretion when it
admitted evidence of Hesson’s 2011 fraud.
       C. Admissibility of Expert Testimony
       Defendants next contest the admission of expert testimony from Daniel
Marson, a clinical neuropsychologist, because he was permitted to opine on the
ultimate issue of the defendants’ state of mind in violation of Rule 704(b). Here
again, we discern no abuse of discretion. 2
       Marson is a clinical neuropsychologist and professor of neurology with
extensive clinical practice “in the cognitive and emotional assessment of older
adults with all forms of dementia.” He is well-acquainted in the administration
of the sort of psychological assessments that NHPS/PCS provided as well as
related Medicare reporting requirements. [Id.]
       In its pre-trial submission, the Government noted that Marson had
evaluated the medical files of eleven NHPS/PCS patients and other related
records. The submission also reported Marson’s resulting conclusions, which
strongly criticized NHPS and PCS both for imposing “clinically inappropriate”
evaluations and overbilling Medicare for such services. His trial testimony



       2 We note that the Government contends on appeal that plain error review should
apply. It argues that, although the defendants timely objected to Marson’s testimony during
the proceedings below, it was not on the specific basis raised on appeal. The defendants
disagree with this interpretation of its objections, contending we should review for abuse of
discretion. Because we affirm under the less deferential standard of review, we need not
resolve this dispute.
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focused on this material. When asked to summarize his overall opinion of
NHPS’s/PCS’s practices based on his total evaluation of the record, Marson
stated, “it’s the most egregious case of inappropriate psychological care and
billing of older adults that I’ve seen in 27 years of practice.”
      Marson also discussed certain emails written by Teal and Stubblefield
directing psychologists to bill hours according to the company’s policy. Marson
opined that the statements in these emails offered medically unethical
guidance and evinced a desire for profits instead of proper diagnoses. He also
believed the authors intended to apply “subtl[e] pressur[e]” on the
psychologists to comply.
      Rule 704(b)’s limitation is quite narrow. As this court has explained, it
only “prohibits experts from testifying as to . . . whether the defendant did or
did not have the requisite state of mind” to be convicted of the crime, United
States v. Dotson, 817 F.2d 1127, 1132 (5th Cir.), aff’d in pertinent part on reh’g,
821 F.2d 1034 (1987), or “the functional equivalent,” United States v. Gutierrez-
Farias, 294 F.3d 657, 663 (5th Cir. 2002). Experts are still, however, permitted
to analyze evidence and offer conclusions that would have a bearing on that
issue. United States v. Speer, 30 F.3d 605, 610 (5th Cir. 1994).
      Marson’s testimony does not run afoul of this requirement. Indeed, the
majority was entirely unrelated to mental states. For example, he largely
discussed and evaluated the propriety of the psychological reports and
Medicare reporting he reviewed. Even those parts of his testimony relating to
intent—e.g., his interpretation of emails—never broached the ultimate mens
rea issue here: that either Parker or Hesson “knowingly and willfully”
defrauded Medicare or so conspired. He never, for example, opined or
attempted to infer whether the two were aware of Medicare standards. Instead,
he merely observed that the emails did not evince a proper concern for the

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welfare of patients and imposed an internal pressure on psychologists to
comply with company policy. To the extent mental state is implicated by such
statements, it is not the intent required for conviction. More fundamentally,
the emails were not written by the defendants, so his opinions do not directly
concern their mental state.
      And, even if the admission of any part of this testimony was error, it was
harmless. The evidence of guilt here was overwhelming; this was “only a small
portion of an otherwise strong case.” Gutierrez-Farias, 294 F.3d at 663.
Marson’s testimony was brief; it took up a small portion of the six-day trial.
Moreover, there was significant evidence of guilt—including the Medicare
reports that were plainly fraudulent, emails authored by the defendants
themselves, and testimony from co-conspirators, who had pleaded guilty to the
charges and testified against the defendants. There is, accordingly, “no
reasonable probability that the conviction hinged on” Marson’s testimony.
United States v. Gonzalez-Rodriguez, 621 F.3d 354, 368 (5th Cir. 2010).
      D. Motion to Sever
      Parker claims that the denial of her motion to sever her trial from
Hesson’s was in error. Her argument fails to meet the “exceedingly deferential
abuse of discretion standard” the denial of a motion to sever receives. United
States v. Whitfield, 590 F.3d 325, 355 (5th Cir. 2009) (internal quotation
omitted). It requires “a showing of specific and compelling prejudice,” which
includes the “harmful spill-over of evidence against other defendants.” United
States v. Erwin, 793 F.2d 656, 665 (5th Cir. 1986) (internal quotation omitted).
Notably, limiting instructions are usually “sufficient to prevent the threat of
prejudice resulting from unsevered trials.” United States v. Massey, 827 F.2d
995, 1005 (5th Cir. 1987).


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      The only prejudice Parker mentions is the introduction of a single piece
of evidence: Hesson’s Medicaid conviction. As already noted, the conviction was
relevant to Parker’s participation in the conspiracy, so it was likely admissible
as to both defendants. Even if not, such spill-over evidence alone is an
insufficient basis for severance. United States v. Snarr, 704 F.3d 368, 397 (5th
Cir. 2013). And, more pointedly, this court has held that past convictions of co-
defendants usually do not justify severance even if inadmissible against other
defendants. United States v. Rocha, 916 F.2d 219, 228 (5th Cir. 1990); compare
Erwin, 793 F.2d at 665–66 (severance required for individual who was only
peripherally involved in complex conspiracy and for whom “very little of the
mountainous evidence was usable”). Moreover, whatever prejudice it might
have caused was cured by the court’s limiting instructions.
      This is, in short, not one of the exceptional circumstances justifying
divergence from the general rule “that persons indicted together should be
tried together, especially in conspiracy cases.” United States v. McRae, 702
F.3d 806, 821 (5th Cir. 2012) (internal quotation omitted).
      E. Sufficiency of the Evidence against Parker
      Parker also appeals the denial of her motions for judgment of acquittal
based on the sufficiency of the evidence, which were raised at the end of the
Government’s case and after trial. The court reviews the sufficiency of evidence
de novo, United States v. McElwee, 646 F.3d 328, 340 (5th Cir. 2011), but this
review is limited, United States v. Moreno, 185 F.3d 465, 471 (5th Cir. 1999).
The court must review all of the evidence, “whether circumstantial or direct,
in the light most favorable to the [G]overnment, with all reasonable inferences
and credibility choices to be made in support of the jury’s verdict, to determine
whether a rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” United States v. Grant, 683 F.3d 639, 642

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(5th Cir. 2012) (internal quotation omitted). Notably, “[t]he evidence need not
exclude every reasonable hypothesis of innocence or be wholly inconsistent
with every conclusion except that of guilt, and the jury is free to choose among
reasonable constructions of the evidence.” Moreno, 185 F.3d at 471. Each
element of a charge may be inferred by circumstantial evidence. United States
v. Willett, 751 F.3d 335, 339 (5th Cir. 2014).
      Conspiracy for health-care fraud requires that “(1) two or more persons
made an agreement to commit health care fraud; (2) the defendant knew the
unlawful purpose of the agreement; and (3) the defendant joined in the
agreement willfully, that is, with the intent to further the unlawful purpose.”
United States v. Gibson, 875 F.3d 179, 185–86 (5th Cir. 2017). Conspiracy to
make false statements relating to health care matters requires proof of “(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. Mauskar, 557 F.3d 219, 229 (5th Cir. 2009).
      The main thrust of Parker’s argument is the absence of testimony or
other direct evidence that she was aware that PCS was perpetrating a fraud.
She notes, for example, that none of the Government’s witnesses testified that
Parker instructed them to engage in fraud. Accordingly, she argues that the
Government’s case was flawed insofar as it relied solely on Parker’s familial
relationship with Hesson and her proximity to the scheme. See United States
v. Maltos, 985 F.2d 743, 746–47 (5th Cir. 1992); United States v. White, 569
F.2d 263, 268 (5th Cir. 1978).
      But, “conspirators may have a silent and informal agreement. Indeed,
the voluntary participation may be inferred from a collection of circumstances,

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and knowledge may be inferred from surrounding circumstances.” Willett, 751
F.3d at 339 (internal quotation omitted). And when “inferences drawn from the
existence of a family relationship or mere knowing presence are combined with
other circumstantial evidence, there may be sufficient evidence to support a
conspiracy conviction.” United States v. Soape, 169 F.3d 257, 264 (5th Cir.
1999) (internal quotation omitted). Moreover, when an individual holds a
position of authority within a company and remains within “proximity to the
fraudulent activities,” it is evidence that the defendant was aware of
malfeasance within that company. Willett, 751 F.3d at 340. A similar inference
is permissible when the individual fails to take remedial action in response to
an employee’s concerns about company practices. Id. at 342. But the
Government must still provide “testimonial or documentary evidence” to
support an inference of awareness. United States v. Ganji, 880 F.3d 760, 777
(5th Cir. 2018).
      The evidence here is sufficient. We begin with the most damning
evidence, which shows Parker knew that PCS’s practice led to reports that
were dishonest. Stubblefield, a co-conspirator who served as a director
overseeing the billing practice, testified that she had conversations with
Parker discussing the fact that the company would make less money if the
doctors “charged [Medicare for] what they actually did.” Additionally, the
record shows that Parker was a repeated advocate of the four-hour-per-patient
minimum, yet, within weeks of one such statement of company policy, she
received a note from a psychologist who informed her that she had performed
seven such “four-hour” interviews in a single day. Finally, she was made privy
to multiple complaints from psychologists claiming the company’s practice was
unethical—including one who resigned over the issue.


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                                No. 17-30627

      As the Government points out, Parker was not only the CEO and founder
of PCS, she was an active leader in its operations, including the company’s
billing practices. And her participation in its operation was frequently in
concert with co-conspirators. For example, she conducted trainings with co-
conspirators on the policy herself and demonstrated an extensive knowledge of
Medicare practices. There is also evidence that she took a particularly active
role with co-conspirators in enforcing the company’s billing practices.
Sometimes she confronted doctors herself, but she was often at least copied
(again, with co-conspirators) on emails discussing decisions to fire
psychologists for low billing practices or attempting to pressure psychologists
to bill more hours.
      In addition, Parker’s relationship with Hesson, her son and co-
conspirator, during the transition from NHPS to PCS is damning. Notably,
Parker kept Hesson on as an advisor and sought his advice on management
decisions—including those relating to billing—despite his fraud conviction.
Moreover, there was clear evidence that Parker and PCS sought to merely pick
up where Hesson and NHPS left off. Transition emails from Parker praised
Hesson as the “man who invented this wheel” without any mention of his
disgraced standing. She was copied on (and replied to) emails that strongly
suggested PCS intended to “weed out” psychologists who were not bringing in
enough Medicare reimbursements. And, under her leadership, PCS not only
maintained NHPS’s practices, it implemented new questionable policy choices,
such as the ten patient referral minimum.
      Construing all inferences in the Government’s favor, there was a
sufficient evidentiary basis for the jury to convict Parker for her role. There
was ample evidence indicating her awareness of, authority over, proximity to,


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                                     No. 17-30627

and complicity with a fraudulent scheme, which she perpetrated in concert
with co-conspirators. The conviction, in short, had a rational basis. 3
      F. Deliberate Ignorance Instruction
      Parker next challenges the court’s use of a deliberate ignorance
instruction. Defense counsel timely objected, so we review the decision for
abuse of discretion. United States v. Kuhrt, 788 F.3d 403, 416–17 (5th Cir.
2015). We again discern no such abuse.
      The deliberate ignorance instruction allows juries to “consider evidence
of the defendant’s charade of ignorance as circumstantial proof of guilty
knowledge.” Gibson, 875 F.3d at 196 (internal quotation omitted). But it comes
with a risk prejudicial to the defendant: the application of a less strict mens
rea requirement. United States v. Mendoza-Medina, 346 F.3d 121, 132 (5th Cir.
2003) (“Because the instruction permits a jury to convict a defendant without
a finding that the defendant was actually aware of the existence of illegal
conduct, . . . a jury might convict [him] on a lesser negligence standard . . . .”
(internal quotation omitted)).
      Accordingly, the instruction is only permissible when the defendant
claims she was ignorant of wrongdoing and there is sufficient evidence for the
instruction. Gibson, 875 F.3d at 196–98. Regarding the latter requirement,
“[t]he evidence at trial must raise two inferences: (1) the defendant was
subjectively aware of a high probability of the existence of the illegal conduct;
and (2) the defendant purposely contrived to avoid learning of the illegal


      3  The foregoing demonstrates that defendants’ reliance on Ganji—a case in which we
overturned a conviction for conspiracy to commit health care fraud as to a specific
defendant—is misplaced. In Ganji, we noted that there was no evidence from co-conspirators
testifying as to “the actions the defendant took to meet their common unlawful goal.” 880
F.3d at 771. Further, there was no “testimonial or documentary” evidence to support the
inference that the defendant had knowingly engaged in fraud. Id. at 777–78. The
Government’s case here does not suffer from the same infirmities.
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                                 No. 17-30627

conduct.” United States v. Lara–Velasquez, 919 F.2d 946, 951 (5th Cir. 1990)
(internal quotation omitted). Notwithstanding this court’s reluctance to apply
the instruction, it “view[s] the evidence and all reasonable inferences that may
be drawn from the evidence in            the light most favorable to the
Government.” United States v. Brooks, 681 F.3d 678, 701 (5th Cir. 2012)
(internal quotation omitted and alteration omitted). And, as we recently
observed, this court has “repeated[ly] endorse[d]” deliberate ignorance
instructions in health care fraud and conspiracy cases. Gibson, 875 F.3d at 197
(citing United States v. Brown, 871 F.3d 352, 355–56 (5th Cir. 2017)); see also
United States v. Sanjar, 876 F.3d 725, 742 (5th Cir. 2017); United States v.
Barson, 845 F.3d 159, 165–66 (5th Cir. 2016).
      The present case presents the proper context for the instruction. Parker’s
supposed ignorance of the fraudulent scheme was a major theme in her
defense. And there is evidence that she aware of a high probability of PCS’s
fraudulent billing while actively avoiding the truth.
      Her awareness of a high probability of malfeasance is well-supported by
the record. As noted, Parker not only owned PCS, she was thoroughly involved
in the implementation and administration of the company’s fraudulent billing
practices. She received multiple complaints by psychologists that the
company’s billing policy was unethical, including at least one from a
psychologist who resigned from PCS over the practice. She was also privy to
emails in which Hesson—who she knew had pleaded guilty to Medicaid fraud
for his reporting practices—communicated his intention to fire the objecting
psychologist who resigned. Moreover, the co-conspirators who already had
pleaded guilty to conspiracy to committing fraud, Teal and Stubblefield, were
two of Parker’s high-ranking employees overseeing and enforcing PCS’s billing
policy. One can infer from their confessions that Parker was at least aware

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                                 No. 17-30627

that the billing practices were likely illegal. See United States v. St. Junius,
739 F.3d 193, 205 (5th Cir. 2013).
      Despite the evidence of malfeasance before her, Parker neither
investigated nor questioned the company’s billing practices. She did not
attempt to intervene when Hesson communicated his intention to fire one of
the objecting psychologists. When confronted with email complaints, she either
did not respond or simply reinforced the company policy. Indeed, in one such
email, Parker attempted to dissuade the individual from even raising such
concerns. This inaction raises the prospect of willful blindness. See United
States v. Demmitt, 706 F.3d 665, 676 (5th Cir. 2013) (noting that “failure to
conduct further inspection or inquiry” to overwhelmingly suspicious
information is evidence of “a conscious effort to avoid incriminating
knowledge”); Juarez, 866 F.3d at 631 (“Not asking questions can be considered
a purposeful contrivance to avoid guilty knowledge.” (internal quotation
omitted)).
      In short, these are the precise circumstances for which deliberate
ignorance instructions are appropriate: where the defendant “knew it was
highly likely that something illegal was afoot, but tried looking the other way
while reaping the benefits of the likely criminal activity.” Brown, 871 F.3d at
356. Even if it were not, however, we would find this error harmless because
we have concluded that there was substantial evidence that Parker had actual
knowledge of malfeasance. See Kuhrt, 788 F.3d at 417.
      G. Restitution Order
      The initial judgment requiring restitution was issued on July 13, 2017.
Parker filed her notice of appeal on July 26, 2017. The Government then filed
a motion to amend the judgment to make Parker, Hesson, Stubblefield, and
Teal jointly and severally liable for the restitution. The motion was granted on

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                                  No. 17-30627

August 3, 2017, and a new judgment was issued reflecting the change. Parker
did not respond to the Government’s motion; she did not object to the judgment;
and she never filed a new notice of appeal.
          Parker now argues that the amended judgment’s addition of joint and
several liability was improper in light of the Supreme Court’s decision in
Honeycutt v. United States, 137 S. Ct. 1626 (2017), which was handed down on
June 5, 2017. But “[t]o secure appellate review of a judgment or order, a party
must file a notice of appeal from that judgment or order.” Manrique v. United
States, 137 S. Ct. 1266, 1271 (2017); see Fed. R. App. P. 3(a)(1). Accordingly,
because Parker failed to file a timely notice of appeal after the amendment was
issued, the argument is waived. Cf. United States v. McNeil, 707 F. App’x 764,
765 (4th Cir. 2017) (dismissing sua sponte the appeal of an amended
sentencing order under Manrique because no subsequent notice of appeal was
filed).
          H. Cumulative Error
          Finally, we note in passing that the defendants have raised a
“cumulative error” argument, arguing that they were subject to “an
aggregation of non-reversible errors, i.e., plain and harmless errors that do not
individually warrant reversal,” which, operating “cumulatively[,] den[ied] a [ ]
constitutional right to a fair trial.” United States v. Isgar, 739 F.3d 829, 841
(5th Cir. 2014) (internal quotation omitted). As the foregoing demonstrates,
however, “there is nothing to accumulate.” United States v. Delgado, 672 F.3d
320, 344 (5th Cir. 2012) (en banc).
                                       III
          AFFIRMED.




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