                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 10-5136


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

         v.

AMY JOYELL HICKS,

                Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Abingdon.   James P. Jones, District
Judge. (1:08-cr-00002-jpj-pms-2)


Submitted:   July 21, 2011               Decided:    September 6, 2011


Before WILKINSON, NIEMEYER and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Larry W. Shelton, Federal Public Defender, Roanoke, Virginia,
Nancy C. Dickenson, Assistant Federal Public Defender, Brian J.
Beck, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Abingdon, Virginia, Christine Madeleine Lee,
Research and Writing Attorney, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Roanoke, Virginia, for Appellant. Timothy J. Heaphy,
United States Attorney, Roanoke, Virginia, A. Benjamin Spencer,
Special Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlottesville, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              This is a case about double jeopardy for a defendant

who was tried twice for health care fraud by falsely billing

ambulance     services      to    Medicare.           The     defendant,          Amy    Joyell

Hicks, was tried for violating                   18 U.S.C.          § 1347    (West 2000)

under    a    fourteen-count       indictment.               The    jury     acquitted         on

thirteen of the fourteen counts – including conspiracy – but

hung as to the first count, which was the underlying substantive

crime.       Hicks was subsequently retried on the first count and

convicted.       She      argued    her     conviction         violated       the        double

jeopardy     clause,      and,    more   specifically,             contravened          Ashe    v.

Swenson, 397 U.S. 436 (1970).               We disagree and therefore affirm

her conviction.



                                            I.

              Hicks worked from October 2004, until March 2006, at

an ambulance service company known as Angel Care that provided

transportation       to     individuals          in    Southwest       Virginia.               In

November     2006,   Hicks       returned    to       work    at    Angel    Care       in     the

capacity of an office manager, which included the responsibility

of writing “run sheets” or “trip sheets” documenting costs to

Medicare       and     private      insurance           companies           for     payment.

Medicare’s policy regarding reimbursement for transportation is

strict:      if a patient is “ambulatory” – meaning he or she is

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able to walk – then Medicare will not cover the costs of riding

in an ambulance.           In order to be covered the patient must be

“non-ambulatory”          or    “bedridden.”              In    the    latter      case,   the

patient must ride on a stretcher in the back of the ambulance,

and may not sit up front with the driver.

              The       government           alleges           that    Hicks        falsified

information with respect to four Angel Care patients who were

regularly transported to their dialysis appointments.                               Count One

of the indictment alleges that during the period of December

2004, and September 2007, Hicks knowingly and willfully, both as

a principal and as an aider and abettor, executed or attempted

to     execute      a    scheme        of        false    or     fraudulent        pretenses,

representations, and promises in connection with the delivery

and payment of health care benefits.                       Unlike other counts in the

indictment – for example Counts Three through Eight which deal

with wire fraud in violation of 18 U.S.C. § 1343 (West 2000 &

Supp.    2009)      –   Count     One       of    the    indictment     does       not   allege

specific transactions or dates.                       Nonetheless, it incorporates by

reference an introductory fact section that discusses the fact

that    the    four     patients        discussed         above       did    not    meet   the

requirements        for        being    “bedridden”            but    were      nevertheless

transported in an ambulance that was billed to Medicare.                                    The

fact section of the indictment does not allege particular dates,

but does contain a time period identical to the window alleged

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in Count One.       Count Two of the Indictment alleges that Hicks

entered into a conspiracy with Darrell Jack Kiser, who owned and

operated Angel Care, and others relating to the “trip sheets”

submitted to Medicare.          Counts Nine through Fourteen of the

Indictment   allege     that   she   made      or    used    a   false   material

document in violation of 18 U.S.C. § 1001(a) (West 2000 & Supp.

2009).

            After trial, a jury acquitted Hicks of thirteen of the

fourteen counts of the indictment, including conspiracy and the

substantive crime of wire fraud with respect to the specific

transactions referenced in Counts Three through Eight.                   The jury

hung on Count One.         The judge declared a mistrial with respect

to that count.       The government subsequently retried Hicks with

respect to Count One and obtained a conviction.                  Hicks moved to

dismiss on the grounds that the subsequent conviction violated

the double jeopardy clause because the same facts that underlay

the acquittal for Counts Two through Fourteen underlay Count One

and   therefore     were   collateral       estopped.        Specifically,    she

argued that health care fraud is inherently collaborative and

therefore     was     duplicative       with        the     conspiracy     count.

Furthermore, the count was premised solely – according to Hicks

– on the acts of faxing that underlay the wire fraud acquittal.

The basic thrust of her argument was that all counts involved



                                        4
the   same      nexus    of     facts         and       thus   the      jury’s    verdict        was

inexplicable.

             The      court        held       a     hearing        on   Hick’s        motion     and

subsequently issued an opinion denying the defendant’s motion.

This appeal followed.                On appeal, Hicks not only argues that her

conviction violates the double jeopardy clause, but also, that

the   district        court     erred         in    calculating         financial       loss    and

restitution and that the district court erred in imposing a

Guidelines Sentence.



                                                   II.

             The parties agree that this case is controlled by Ashe

– which holds that the government may not re-litigate any issue

necessarily decided by a jury’s acquittal in a prior trial – and

United States v. Fiel, 35 F.3d 997 (4th Cir. 1994), which lays

out a five-factor test governing the applicability of collateral

estoppel.        In     Fiel,      we     held      that     the    factors      included      “(1)

whether    the     issue      in     question           is   identical     to    the     previous

issue,    (2)    whether        it      was       actually     determined        in    the     prior

adjudication, (3) whether it was necessarily decided in that

proceeding,      (4)     whether          the      resulting        judgment     settling       the

issue was final and valid, and (5) whether the parties had a

full and fair opportunity to litigate the issue in the prior

proceeding.”          Id. at 1006.                 We further explained that “[i]n

                                                    5
order for the determination of an issue to be given preclusive

effect, it must have been necessary to a judgment.”                Id.

            It is axiomatic that conspiracy and the substantive

crime that underlie it are not identical and do not share the

same elements.        Thus, an acquittal on one does not necessarily

carry over to an acquittal on the other.                Hick’s argument that

health care fraud is inherently collaborative flies in the face

of myriad convictions – for example in drug cases – where a

defendant is exonerated of one but inculpated on another.                      It

seems possible that while there was never an “agreement” between

employees to cook the books concerning Medicare billing, the

employees might have independently arrived at the decision to

falsify applications so that the business would not go under.

Furthermore, the evidence submitted to the jury did not directly

link Hicks to the creation or submission of the fraudulent trip

sheets for the dates in question.

            Further, while Hicks was acquitted of the allegations

in Counts Three through Fourteen as to the specific dates and

transactions, the government still produced evidence that would

allow   a   reasonable    jury   to   conclude     that   during    the    entire

three-year period Hicks did in fact commit health care fraud.

For example, Angel Care employees Nutter and Tomes testified

that    Hicks   had    faxed   “rubber       stamped”   trip   sheet     Medicare

payments and that she had transported patients in her own car in

                                         6
the front seat, rather than in an ambulance on a stretcher.

Other patients testified that they were often transported in an

ambulance,    even    though      they    could       walk.     Count       One   of      the

indictment does not allege specific dates, contrary to Hick’s

argument that it is specific.               Rather, it alleges fraud over a

general period.       Thus, her conviction was not barred by double

jeopardy.



                                          III.

            Hicks next argues that the district court erred in

calculating    loss    restitution.              We    disagree       and    affirm       the

judgment of the district court.                Hicks argues that “the billings

were 50% accurate.”         (Appellants’ Br. at 24.).                 This was because

on certain occasions the patients were in fact non-ambulatory

due to renal failure and hemorrhaging.                    However, it was within

the   discretion      of    the    district       court       not     to    credit     this

testimony,    especially          given     evidence          that     patients        were

wheelchair    bound,       meaning    they       could    be        transported      in    a

wheelchair van, and did not necessarily require an ambulance.

The government has thus carried its burden of proof with respect

to this issue.




                                           7
                                   IV.

           Hick’s   final   argument     is   that    the   sentence     imposed

under the Guidelines was unreasonable under 18 U.S.C. § 3355.

We disagree and affirm because it was within the trial court’s

discretion to impose.



                                   V.

           We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials

before the court and argument would not aid the decisional

process.

           For   the   foregoing   reasons,          the    judgment    of   the

district court is



                                                                       AFFIRMED.




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