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

                                                                            FILED
                                                                           April 10, 2008

                                     No. 07-30292                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


UNITED STATES OF AMERICA

                                                  Plaintiff - Appellee
v.

MICHAEL PRINCE

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                  for the Western District of Louisiana, Lafayette
                                 6:03-CR-60032-1


Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Michael Prince was convicted for healthcare fraud and sentenced to forty-
one months of imprisonment. On appeal, he argues that the evidence was
insufficient and that a jury instruction on deliberate ignorance was given in
error. We disagree with these arguments and affirm.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                    FACTS
      Prince, through his corporation Prince Consulting Services, Inc., engaged
in the business of establishing and assisting in the operation of home health and
physical rehabilitation centers. Although Prince attended medical school, he
was ineligible to graduate and was dismissed from the program due to repeated
failures of the national medical exam. He never received his medical degree and
was never licensed as a doctor. There was evidence that Prince presented
himself as a doctor and even signed his name as a doctor. Prince was involved
in at least eleven clinics with locations in Louisiana, Texas, Tennessee, and
Illinois. The operation of Alpha Healthcare clinic in Opelousas, Louisiana, led
to Prince’s indictment.
      In 2000, Prince partnered with Pamela Sampson and psychiatrist Dr.
Sharon Inglehart, to open the Alpha clinic. As equal partners, Sampson was
responsible for running Alpha while Prince and Dr. Inglehart provided the
startup funding and organizational support. Sampson had never before operated
a physical medicine clinic and had no experience with Medicare billing.
      Prince instructed Sampson to use a company owned by Prince’s wife for all
of the billing, and to use Prince’s brother for financial bookkeeping. Sampson
acquired forms from and observed the operation of a clinic in which Prince was
involved, located in Baton Rouge, Louisiana. Alpha was established by August
2000, and began taking patients in October 2000. In November 2000, Dr.
Inglehart left the partnership.
      There was evidence that clinic employees would complete patient
paperwork and then send a facsimile copy to Prince in Houston, Texas, where
he maintained his office. A partially completed physician’s order form was also
forwarded to Prince by a facsimile copy. Prince would then return a completed
prescription form with a diagnosis and treatment plan. Physical therapy
technicians employed by Alpha would administer prescribed treatments to


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patients, often in the homes of patients. Physical therapy technicians are not
licensed or otherwise certified.    Because of the absence of certification,
treatments must be given under the supervision of a physician. The technicians
here were not supervised by a state-licensed physician while administering
treatments. There was testimony that one technician never received adequate
instruction on administering electrical stimulation treatment and was afraid she
would shock a patient.
      There was evidence that Prince instructed technicians to fill out billing
sheets by recording the number of areas of the body that received treatment.
For example, treatment to both shoulders and both knees would be recorded as
four billing units with no reference to how much time it took to accomplish the
treatments. This method of billing Medicare was improper. Medicare required
time-based as opposed to treatment-based billable units. Technicians would
typically spend between twenty to sixty minutes with a patient in a single day;
they would not spend several hours per patient as the Medicare billing indicated.
The billing sheets were forwarded to the company operated by Prince’s wife and
then submitted to Medicare for payment.
      Another component of the purported fraud arose from the requirement
that the bills needed to be submitted under a physician’s Medicare provider
number. The evidence at trial was that Prince hired some physicians, that often
the provider number was not of a physician then-working at the company, and
that no physician was employed by Alpha during certain periods.
      The practices at Alpha resulted in Medicare’s suspending all payments in
April 2001. Sampson notified Prince of the suspension of Medicare benefits and
the clinic ceased doing business. A subsequent investigation revealed that many
of the claims and services provided by Alpha were medically unnecessary, that
charts lacked physician’s signatures, and the billing was grossly inflated. The



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investigation concluded that Alpha was overpaid $584,710.41 for the short time
it was in business.
      Both Sampson and Prince were charged with healthcare fraud. Sampson
pled guilty and agreed to testify against Prince. After a trial, a jury convicted
Prince of one count of healthcare fraud under 18 U.S.C. § 1347. The district
court sentenced Prince to forty-one months’ imprisonment, three years post
release supervision, and restitution to Medicare in the amount of $584,710.41.
Prince timely appealed his conviction.
                                 DISCUSSION
I. Sufficiency of Evidence
      At trial, counsel for Prince moved for acquittal at the close of the
Government’s case in chief, and his motion was denied. The motion for acquittal
was not renewed after Prince presented his defense. Under these circumstances,
whether there was legally sufficient evidence to convict Prince is reviewed only
for “manifest miscarriage of justice.” United States v. Avants, 367 F.3d 433, 449
(5th Cir. 2004). To merit reversal, “the record must be devoid of evidence of guilt
or the evidence must be so tenuous that a conviction is shocking.” Id.
      Prince argues that the plain error standard is too forgiving of evidentiary
default, and that review by the Court of this trial’s evidence should be to
determine whether it was sufficient to allow a rational jury to find guilt beyond
a reasonable doubt. See United States v. Mitchell, 484 F.3d 762, 768 (5th Cir.
2007) (stating the usual standard of review). Prince’s objection to the review
standard is academic, because we conclude that the evidence presented at trial,
when viewed in a light most favorable to the verdict, is clearly sufficient for a
rational jury to have found Prince guilty beyond a reasonable doubt.
      As to the evidence, Prince’s defense was essentially that he misunderstood
the complicated Medicare billing rules. He asserts that he never had an intent
to defraud but simply made honest mistakes due to the complexity of it all. One

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example concerns “billing units.”      The billing units that appear on bills
submitted to Medicare for reimbursement are supposed to refer to fifteen minute
units of time, while Prince alleges that he thought that a unit referred to a
treatment given to a particular part of the body. Louisiana’s Medicare director
testified that, outside of the physical medicine field in which Prince’s clinics
operated, Medicare is to be billed on a per procedure basis, not in time units.
Whether Prince’s pleas of honest confusion were plausible depends on the
totality of the evidence. We will examine the key evidence.
      The statute under which Prince was convicted provides that the offense is
committed by any person who:
      knowingly and willfully executes, or attempts to execute, a scheme
      or artifice–
      (1) to defraud any health care benefit program; or
      (2) to obtain, by means of false or fraudulent pretenses,
      representations, or promises, any of the money or property owned
      by, or under the custody or control of, any health care benefit
      program. . . .

18 U.S.C. § 1347.     Evidence of aiding and abetting in the commission of
healthcare fraud also allows conviction. To convict Prince under Section 2 of this
statute, Prince must have “associated with a criminal venture, purposefully
participated in the criminal activity, and sought by his actions to make the
venture successful.” United States v. Akpan, 407 F.3d 360, 371 (5th Cir. 2005)
(internal quotation marks and citation omitted).
      The evidence at trial established that Prince was the only Alpha partner
who was experienced in physical medicine clinics and billing Medicare for these
services. There was evidence that prescription forms were sent by facsimile copy
to Prince; they were returned to the clinic with a prescribed treatment plan.
There was evidence that Prince instructed Alpha employees in improper billing
practices, billing for treatments to areas of the body and not in units of time.
This practice grossly inflated the bills submitted to Medicare. Although the

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treatment forms sent in to Alpha by Prince were billed under physician provider
numbers, the treatments were not rendered by physicians or under the
supervision of physicians. Testimony established that of the numerous clinics
in which Prince was involved, Prince had expressed that he did not expect the
clinics to stay in operation longer than twelve months.
      Evidence was also presented that Prince possessed Medicare informational
materials, including materials that revealed the codes for billing physical
medicine services, that explained the proper billing methods. Sampson asked
a Medicare representative whether Alpha was in compliance with Medicare
regulations because there was no direct supervision of technicians by a licensed
physician. After Sampson’s discussion, there was no doubt that Alpha was not
complying with Medicare regulations. After Prince was informed of this, the
problems at Alpha were not corrected. Prince blames Sampson, but jurors were
entitled to conclude from this evidence that the improper billing practices were
implemented and always controlled by Prince.
      Other evidence of guilt comes from the testimony of one of the first
physicians affiliated with Alpha, Dr. James Hines. Dr. Hines believed Prince
was a medical doctor. Prince hired him in early 2000 to work at a clinic in Baton
Rogue, Louisiana. Dr. Hines became concerned with the Baton Rogue clinic’s
practices, including the unsupervised treatments rendered by technicians to
patients at home and numerous claims Medicare denied that were submitted
under his individual provider number. Dr. Hines discovered that treatments
needed to be supervised by a physician. He discussed these concerns with Prince
and also expressed concerns about the billing practices.        Dr. Hines was
particularly concerned that he could not review the billing paperwork prior to
its submission to Medicare. Prince responded that he had consulted with an
attorney on the issue of physician supervision regarding the operations at one



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of the Texas clinics and was satisfied. Prince told Dr. Hines not to be concerned
with the billing practices because he had been hired to be a physician.
      Dr. Hines was affiliated with Alpha for no longer than six weeks, and was
only involved with Alpha for an insignificant amount of time each week. He
completely disaffiliated from Alpha in October 2000.
      Two other physicians testifying at trial included Dr. Joseph Diggs and his
brother, Dr. George Diggs. Dr. Joseph Diggs testified that he initially planned
to work at Alpha but changed his mind. Though Dr. Joseph Diggs was neither
employed at Alpha nor involved with any Alpha patients, his provider number
was listed as the treating physician for numerous Alpha patients.
      Dr. George Diggs testified that Prince assured him that Alpha was
competent to operate the clinic because Prince was involved with other clinics
that were successful. George Diggs believed that Prince was a doctor and that
Prince was issuing prescriptions for patients being treated at Alpha. Dr. Diggs
did not maintain normal working hours at Alpha. He held other regular
employment and would primarily visit Alpha patients on Thursday evenings
after work and on Saturdays. Dr. George Diggs testified that his signature
appeared on patient documents he never signed, inappropriately appeared on
other patient files, and that his provider number was used for treatments given
to patients he never treated. Of the $1,192,212 which Alpha billed to Medicare,
$1,096,687 was billed under the individual provider number of Dr. George Diggs.
Some of the billings were for dates when Dr. Diggs was not employed at Alpha.
      There were several weeks between the time Dr. Hines departed in October
and when Dr. George Diggs arrived in November that there was no physician
affiliated with Alpha. The evidence was clear that even when Alpha employed
physicians, the physicians were never employed in a full-time capacity, and
worked as little as one day each week.



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      There was also evidence that Kevin Beasley, the administrator of the
Illinois clinic in which Prince was involved, was informed by Medicare that
improper billing for services was occurring. Beasley contacted Medicare after
claims were denied due to improper billing. When Beasley informed Prince
about this discovery, Prince instructed him not to contact Medicare because
calling them too much would “raise red flags.”
      This summary of the evidence reveals that Prince had access to resources
fully explaining the proper methods of billing, including manuals, monthly
newsletters, workshops, and individual meetings with local area representatives.
Dr. Hines, Beasley, and Sampson all inquired about proper billing practices and
were informed of the regulations, but Prince refused to change billing practices.
The jury was entitled to conclude that Prince was no amateur Medicare provider.
The evidence established that he was involved in numerous clinic operations,
having an ownership or significant consulting role in multiple clinics, and had
been in business since 1999. The evidence was sufficient for a jury to conclude
that Prince committed healthcare fraud.
II. Deliberate Ignorance Jury Instruction
      Prince argues that the district court erred in giving a jury instruction on
deliberate ignorance. When a defendant alleges error in the giving of an
instruction, we review the issue by determining whether the entire set of
instructions collectively made a correct statement of the law, and whether those
instructions explained the law that applied to the factual issues that the jurors
had to resolve. United States v. Cartwright, 6 F.3d 294, 300 (5th Cir. 1993).
      An instruction concerning a defendant’s deliberate ignorance allows jurors
to find willfulness even if they are not convinced that the defendant knew of the
charged illegal conduct. Id. at 301. The instruction is proper where a defendant
“claims a lack of guilty knowledge and the proof at trial supports an inference
of deliberate indifference.” Id.

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      Prince alleged that the identified errors were honest mistakes. His defense
included that he lacked the knowledge required to participate knowingly or
willfully in the fraudulent billing of Medicare. There was evidence that Prince
was made aware of the problems with the lack of physician supervision of
technicians and improper billing methods at Alpha and other clinics. The jury
properly could have concluded either that Prince knew of and consciously
ignored the proper billing procedures, or alternatively that Prince chose not to
inquire about and correct the erroneous practices of his clinics even after he was
notified of the errors by multiple parties.
      In light of Prince’s defense to the charges and the evidence in the record,
the district court did not err in giving the deliberate ignorance instruction.
      The conviction is AFFIRMED.




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