     Case: 14-31262      Document: 00513244909         Page: 1    Date Filed: 10/23/2015




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

                                                                                  FILED
                                                                              October 23, 2015
                                    No. 14-31262
                                  Summary Calendar                             Lyle W. Cayce
                                                                                    Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JAMES R. HUNTER,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                      for the Middle District of Louisiana
                            USDC No. 3:12-CR-73-11


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant James R. Hunter appeals his conviction and
sentence for conspiracy to commit health care fraud in violation of 18 U.S.C.
§§ 1347 and 1349 and conspiracy to pay and receive kickbacks in violation of
18 U.S.C. § 371 and 42 U.S.C. § 1320a-7b(b)(1) and (2). Hunter contends that
(1) the evidence was insufficient to prove that he had the requisite knowledge
to be convicted under either statute, (2) the district court abused its discretion


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                     No. 14-31262

when it instructed the jury on willful blindness, and (3) his lawyer rendered
ineffective assistance of counsel.
      The indictment alleged that Hunter and his co-defendant, Roslyn Dogan,
recruited Medicare beneficiaries for placement at Shifa Texas for services that
were not medically necessary or were never provided but were billed to
Medicare. It further alleged that in return, Hoor Naz Jafri (Naz Jafri) and
other co-conspirators paid Hunter kickbacks and that he in turn paid
kickbacks to Medicare beneficiaries.
      To convict Hunter of conspiring to commit health care fraud, the
government had to prove that (1) Hunter and one or more other persons agreed
to commit health care fraud; (2) Hunter knew the unlawful purpose of the
agreement; and (3) Hunter joined in the agreement willfully, i.e., with the
intent to further the unlawful purpose. See United States v. Njoku, 737 F.3d
55, 63 (5th Cir. 2013), cert. denied, 134 S. Ct. 2319 (2014); United States v.
Grant, 683 F.3d 639, 643 (5th Cir. 2012). To prove that Hunter conspired to
pay and receive kickbacks, the government had to prove (1) Hunter and one or
more other persons agreed to pursue an unlawful objective; (2) Hunter had
knowledge of the unlawful objective and voluntarily agreed to join the
conspiracy; and (3) an overt act by one or more of the members of the conspiracy
in furtherance of the its objective. See Njoku, 737 F.3d at 63-64.
      Hunter has challenged only the knowledge elements of the statutes
under which he was convicted, so we will not consider whether the evidence
supported the other elements. See FED. R. APP. P. 28(a)(8); United States v.
Scroggins, 599 F.3d 433, 446 (5th Cir. 2010). Hunter’s knowledge of Shifa
Texas’s unlawful objective to engage in health care fraud and the unlawful
nature of the agreement that he had with Shifa Texas to further that objective




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could be proved by inference and circumstantial evidence. See Njoku, 737 F.3d
at 63-66; United States v. Umawa Oke Imo, 739 F.3d 226, 235 (5th Cir. 2014).
        We conclude that the following evidence presented at trial was sufficient
to prove that Hunter had the requisite knowledge for conspiracy to commit
health care fraud and conspiracy to pay and receive kickbacks. The facilities
at issue, Shifa Community Mental Health Center (Shifa Baton Rouge),
Serenity Community Mental Health Center (Serenity), and Shifa Community
Mental Health Center of Texas (Shifa Texas), were owned by, among others,
Naz Jafri and Dogan and offered “Partial Hospitalization Programs” (PHPs).
PHPs are intense treatment programs that provide patients less than 24-hour
outpatient psychiatric care at a hospital or at a community mental health
center and are covered by Medicare Part B. To be eligible to participate in a
PHP, a patient must be under the care of a physician, have an acute onset of
his mental disorder or be decompensated, and must be cognitively able to
participate.    Medicare guidelines specify that PHP patients must receive
therapeutic service for at least 20 hours per week and at least four days per
week.
        At trial, Hunter’s co-conspirators testified that (1) Shifa Texas
fraudulently billed Medicare for psychiatric services that were never provided;
(2) Hunter’s co-defendant, Julian Kimble, employed Hunter to deliver patients
to Shifa Texas by van who did not have a mental illness; (3) Kimble and Hunter
then paid patients for being transported to Shifa Texas, with Hunter telling
patients what to say to ensure their admission; and (4) when he was hired by
Kimble, Hunter knew that he was to be paid based on the number of patients
he brought to Shifa Texas. Although Medicare allows facilities to advertise
their services, they may not pay patients to attend a PHP program.




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      After Kimble was investigated for health care fraud, Hunter met with
Naz Jafri and agreed to continue the work that he and Kimble had been doing.
He also negotiated to be paid in cash based on the number of patients that he
transported to Shifa Texas. Although he was not employed by Shifa Texas,
Naz Jafri paid Hunter $5000 a week to bring patients to Shifa Texas and paid
him additional sums, depending on how many patients he brought.
Documentary and testimonial evidence showed that Hunter paid the patients
he brought to Shifa Texas with cash supplied by Shifa Texas.
      Hunter was a visible presence at Shifa Texas, appearing weekly, looking
in on chaotic group sessions, and speaking daily by phone to Erika Williams,
the facility’s office manager. Following a federal investigation into Shifa Baton
Rouge, Hunter met with Naz Jafri and other co-conspirators in Baton Rouge,
telling them that he would lie if questioned and that he had instructed patients
to do likewise.
      This testimony, viewed in the light most favorable to the government,
permitted the jury to infer that Hunter had the requisite knowledge that the
agreement he had with Shifa Texas stemmed from an underlying scheme to
obtain money from Medicare by false pretenses. See Njoku, 737 F.3d at 63; see
also United States v. Willett, 751 F.3d 335, 341 (5th Cir. 2014).        It also
permitted the jury to infer that Hunter had the requisite knowledge to convict
him of the kickback offenses with which he was charged. See Njoku, 737 F.3d
at 64-65.
      Hunter also argues that the district court misstated the law when it
issued a willful blindness instruction that tracked the Fifth Circuit Pattern
Instruction on willful blindness because it informed the jury that it could use
a lesser standard of proof to find that he knew of the illegal nature of his
conduct. He further argues that the instruction was an abuse of discretion



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because there was no evidence that he knew that being paid cash for bringing
patients to Shifa Texas was an illegal kickback, so that there was no evidence
to support a finding that he turned a blind eye to the illegality of the weekly
payments in cash.
      We have held that the Fifth Circuit Pattern Instruction on willful
blindness is a correct statement of the law as enunciated by the Supreme Court
in Global-Tech Appliances v. SEB S.A., 563 U.S. 754, 131 S. Ct. 2060, 2071
(2011). United States v. Brooks, 681 F.3d 678, 702 (5th Cir. 2012). This
forecloses Hunter’s contention that the court’s jury instruction was a
misstatement of the law. See United States v. Kuhrt, 788 F.3d 403, 416 n.4
(5th Cir. 2015).
      We review preserved error in jury instructions under an abuse of
discretion standard, viewing the evidence and all reasonable inferences that
may be drawn from it in the light most favorable to the government. Kuhrt,
788 F.3d at 413. For a willful blindness jury instruction to be warranted, the
defendant must (1) subjectively believe that there is a high probability that a
fact exists, and (2) take deliberate actions to avoid learning of that fact. Global-
Tech, 131 S. Ct. at 2070. We have held that giving that instruction is proper
when a defendant denies guilty knowledge, but the proof at trial supports a
reasonable inference of deliberate ignorance. See, e.g., United States v. St.
Junius, 739 F.3d 193, 205 (5th Cir. 2013). Moreover, even if the district court
errs when it gives a deliberate ignorance instruction, any such error is
harmless when there is substantial evidence of actual knowledge. Kuhrt, 788
F.3d at 417.
      We conclude that the trial testimony, viewed in favor of the government,
permits the inference that Hunter had subjective knowledge that he was
involved in a fraudulent health care scheme and that he acted deliberately to



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avoid knowing of the precise nature of the Medicare violations, such that the
instruction was warranted. Furthermore, even assuming arguendo that the
district court erred in giving that instruction, trial testimony established that
Hunter had actual knowledge making any such error harmless. See St. Junius,
739 F.3d at 205-06 & n.15; see also Kuhrt, 788 F. 3d at 417-18. Testimony
showed that Hunter was a willing participant in the health care fraud
conspiracy at Shifa Texas and was associated with others at the facility who
knew that bringing able patients to the facility was wrong. Hunter also knew
that Kimble quit transporting patients after he was investigated by federal
officers for health care fraud, yet Hunter took over that activity and agreed to
lie to federal officials after Shifa Baton Rouge was investigated for health care
fraud and instructed patients to do likewise.
      Hunter’s final contention is that his trial counsel rendered ineffective
assistance on various grounds. We decline to review his claim on direct appeal
because the record is insufficiently developed and that claim was not raised
before the district court. See United States v. Gulley, 526 F.3d 809, 821 (5th
Cir. 2008); United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006).
      AFFIRMED.




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