     Case: 11-20645       Document: 00512101738         Page: 1     Date Filed: 01/04/2013




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

                                                                            FILED
                                                                          January 4, 2013
                                     No. 11-20645
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

SUNNY ROBINSON,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:09-CR-422-1


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Sunny Robinson was convicted by a jury of conspiracy to commit health
care fraud, aiding and abetting health care fraud, conspiracy to violate the
Anti-Kickback Statute, and paying kickbacks in violation of the Anti-Kickback
Statute, all in violation of 18 U.S.C. §§ 371, 1347, 1349 and 42 U.S.C. § 1320a-
7b(b)(2). He was sentenced to a total of 97 months of imprisonment and to
concurrent three-year terms of supervised release.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-20645

      On appeal, Robinson argues that the district court erred in denying his
motion for a judgment of acquittal on the anti-kickback counts on the grounds
that the Anti-Kickback Statute and the statute’s safe-harbor provision are
unconstitutionally vague. He also argues, alternatively, that the statute’s safe-
harbor provision should have applied to exempt his conduct.
      According to the indictment, Robinson owned and operated Memorial
Medical Supply (“MMS”), a company that provided durable medical equipment
to Medicare beneficiaries. The indictment alleged Robinson paid kickbacks to
Lisa Jones and Shirley Chavis in exchange for Medicare beneficiary information.
We review de novo the district court’s denial of a motion for a judgment of
acquittal. United States v. Girod, 646 F.3d 304, 313 (5th Cir. 2011). Challenges
to the constitutionality of a federal statute are also reviewed de novo. United
States v. Portillo-Munoz, 643 F.3d 437, 439 (5th Cir. 2011), cert. denied, 132 S.
Ct. 1969 (2012).
      “A conviction fails to comport with due process if the statute under which
it is obtained fails to provide a person of ordinary intelligence fair notice of what
is prohibited, or is so standardless that it authorizes or encourages seriously
discriminatory enforcement.” Holder v. Humanitarian Law Project, 130 S.Ct.
2705, 2718 (2010). We consider whether a statute is unconstitutionally vague
“as applied to the particular facts at issue.” Id. at 2718-19.
      The Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b)(2), “criminalizes the
payment of any funds or benefits designed to encourage an individual to refer
another party to a Medicare provider for services to be paid for by the Medicare
program.” United States v. Miles, 360 F.3d 472, 479 (5th Cir. 2004). Under the
safe-harbor provision, the statute’s criminal prohibition does not apply to “any
amount paid by an employer to an employee (who has a bona fide employment
relationship with such employer) for employment in the provision of covered
items or services.” § 1320a-7b(b)(3)(B). Although Robinson contends that the
provision’s definition of “employee” is vague, the safe-harbor provision relies on

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                                     No. 11-20645

26 U.S.C. § 3121(d)(2) for the definition that an employee is “any individual who,
under the usual common law rules applicable in determining the employer-
employee relationship, has the status of an employee.” 42 C.F.R. § 1001.952(I).
      When a federal statute such as this one refers to the common law
definition of employee, the statute incorporates the “general common law of
agency.” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992). The
hiring party’s “right to control the manner and means” of the work performed is
important to determining whether there is employee status. Id. Relevant
factors include the method of payment, “whether the work is part of the regular
business of the hiring party,” and the hiring party’s control over work hours. Id.
at 323-24. No one factor is determinative; “all of the incidents of the relationship
must be assessed and weighed.” Id. at 324.1
      The Anti-Kickback Statute provided Robinson with fair notice that the
paying of fees and commissions to Jones and Chavis for Medicare referrals was
prohibited conduct and, thus, the statute was not unconstitutionally vague as
applied in this case. The evidence presented does not support Robinson’s
affirmative defense that Jones and Chavis were bona fide employees such that
the safe-harbor provision applied to exempt his conduct.
      The evidence reflects that both Jones and Chavis were paid either a fee or
a commission for each referral of a Medicare beneficiary that they provided to
MMS.      They did not receive regular paychecks; payments were made for
referrals only. There was no evidence that Robinson provided any training or
direction to either Jones or Chavis about marketing, nor was there any evidence
that either Jones or Chavis ever received any payments from MMS to advertise
or market MMS’s products. Moreover, the Medicare referrals were obtained
from leads and sources that were not provided by MMS: Jones used her



      1
        Another panel of this court interpreted the statutory language in the same manner.
See United States v. Job, 387 F. App’x 445, 455 (5th Cir. 2010) (unpublished).

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employer’s database to obtain referrals, and Chavis relied on her own personal
and professional contacts to obtain referrals. There is no evidence that Robinson
required Jones or Chavis to keep regular office hours. Indeed, they did not have
offices at MMS. Thus, Robinson did not have sufficient control over the manner
and means of the work performed by Jones and Chavis to characterize this as a
bona fide employment relationship.
      In light of this and the other evidence presented at trial, we cannot
conclude that the district court’s denial of Robinson’s motion was erroneous or
that the evidence provided a sufficient foundation for Robinson’s affirmative
defense that the safe-harbor exception applies in his case.
      Accordingly, the district court’s judgment is AFFIRMED.




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