     Case: 11-10956       Document: 00512093698         Page: 1     Date Filed: 12/21/2012




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

                                                                            FILED
                                                                        December 21, 2012

                                       No. 11-10956                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee
v.

JAMES CROW,

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 6:10-CR-45-C


Before DeMOSS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       A jury convicted Dr. James Crow of two counts of making a false statement
concerning a health care matter and fifteen counts of health care fraud. Crow
appeals his convictions on grounds of vagueness in the criminal statutes and
insufficiency of the evidence. We AFFIRM.
       Crow is a licensed dentist who has practiced in Texas since 1973. In 2003,
when his partner retired, Crow took sole ownership of the dental practice. By
then, the practice was largely comprised of Medicaid patients. The Medicaid

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-10956

program relies on two separate provider manuals: the Medicaid Provider Manual
which sets forth the terms of enrollment, including a section devoted to fraud
and abuse, and the Current Dental Terminology handbook (“CDT”) which
identifies billing codes for various dental procedures and is used by dentists
nationwide when billing third-party payers (i.e. private insurance carriers and
Medicaid).    A single billing code incorporates information on the type of
procedure performed, the number of sides of a tooth, the number of teeth, and
the depth of drilling involved in that procedure.
      The Government indicted Crow for fraudulent billing “for services never
rendered and for services rendered using inappropriate billing codes.”
Specifically alleged was that Crow billed sealant or “preventive resin
restoration” (“PRR”) procedures as fillings, which provided a higher rate of
reimbursement. After an eight-day trial, a jury convicted Crow of two of the four
charged counts of making a false statement concerning a health care matter and
fifteen of sixteen counts of health care fraud, in violation of 18 U.S.C. §
1035(a)(2) and 18 U.S.C. § 1347 respectively. Crow timely appealed.
                                 DISCUSSION
I.    Vagueness
      In a pretrial motion to dismiss the indictment and later in a motion at trial
for a judgment of acquittal, Crow presented his argument that the charges
against him were based on an overly vague statute. The motions preserved the
issue, and we review it de novo. United States v. Ollison, 555 F.3d 152, 160 (5th
Cir. 2009).
      The allegation of ambiguity or vagueness focuses on four billing codes that
are relevant in this prosecution. D-1351 is the code for a “sealant,” which is a
“preventative” coating placed on the surface or enamel layer of a tooth. Billing
codes D-2391, D-2392, and D-2393 refer to “restorative” work including fillings.
Those are appropriate when a cavity penetrates the deeper, dentin layer of one,

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                                  No. 11-10956

two, or three sides of a tooth respectively. In 2004, the first year covered by the
indictment, Medicaid reimbursed a maximum of $24.38 for any number of
sealants placed during a single patient visit and $67.45 for each tooth on which
a three-surface filling was placed.
      Crow asserts that 18 U.S.C. § 1035(a)(2) and 18 U.S.C. § 1347 fail to
provide fair warning of criminal conduct because the statutes can be violated by
misuse of ambiguous billing codes from the CDT handbook. The false statement
statute provides for criminal liability when, “in any matter involving a health
care benefit program, [a defendant] knowingly and willfully . . . makes any
materially false, fictitious, or fraudulent statements or representations.” 18
U.S.C. § 1035(a)(2). The health care fraud statute is violated when a defendant
“knowingly and willfully executes, or attempts to execute, a scheme or artifice
. . . to defraud any health care benefit program.” 18 U.S.C. § 1347(a)(1).
      One factor that courts have considered in evaluating statutes for potential
vagueness is the mens rea requirement. Colautti v. Franklin, 439 U.S. 379, 395
(1979). The requirement that a defendant act willfully or purposefully largely
vitiates the objection that a statute criminalizes conduct a defendant did not
know was wrongful. Id. at 395 n.13 (citation omitted).
      Both statutes under which Crow was convicted, Section 1035(a)(2) and
Section 1347, require that a defendant act “knowingly and willfully.” This intent
was also specified in the indictment. Jurors were properly instructed on the
meaning of “knowingly and willfully.” The judge further instructed, “That a
defendant may have violated certain Medicaid policies does not necessarily mean
that the defendant is guilty of the crimes charged in the indictment.” Jurors
necessarily found that Crow acted with knowledge that his actions were
unlawful. By the language of the statutes, mere mistake or negligence with
respect to selecting Medicaid billing codes could not give rise to liability. Based
on these instructions, negligence would not have justified a verdict of guilt.

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                                  No. 11-10956

       We conclude that as applied to Crow, the statutes at issue present fair
warning of the conduct that is proscribed.
II.    Sufficiency of the Evidence
       When, as here, a defendant preserves a challenge to the sufficiency of
evidence, this court reviews the denial of a motion for a judgment of acquittal de
novo. United States v. Curtis, 635 F.3d 704, 717 (5th Cir. 2011), cert denied, 132
S. Ct. 191 (2011). We review evidence in the light most favorable to the jury
verdict and will affirm if a rational jury could have found guilt beyond a
reasonable doubt. United States v. Mudd, 685 F.3d 473, 477 (5th Cir. 2012).
Crow specifically asserts there was insufficient evidence to find he possessed the
requisite intent to violate the relevant statutes.
       The evidence included proof that from 2004 to 2007, Crow submitted
51,614 claims for fillings alone and no claims for sealants. This averaged to 64
fillings per day and 15.6 fillings per client over the four-year period, including
a day on which 199 fillings were billed. On 1,290 occasions, Crow billed for 16
fillings on individual patients in one day, as compared with 96 times he billed
one filling and 34 times he billed two fillings. Crow billed three sets of fillings
in a single patient’s teeth three times and two sets of fillings 34 times. In each
of the years from 2004 to 2007, for the three-surface restoration code (D-2393),
which allowed the highest reimbursement, Crow was Medicaid’s highest biller,
submitting at least twice as many claims as the next highest billing dentist.
Crow did not dispute the foregoing evidence.
       Upon enrolling as a Medicaid provider, Crow signed an agreement to
become familiar with the contents of the Medicaid Provider Manual and comply
with its requirements, including a section on fraud and abuse that mentions the
possibility of criminal prosecution. The Manual also clarifies that a provider is
responsible for all billings from his office, including by employees and agents.



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Crow was aware of the requirement to, and indeed on some occasions did,
consult the CDT to identify the appropriate code with which to bill Medicaid.
      The Government presented extensive circumstantial evidence that Crow
did not perform the procedures for which he billed. For example, one expert
testified it would take 15-16 minutes to perform a three-surface filling, though
additional fillings would take considerably less time. Given the high number of
fillings for which Crow billed Medicaid, including up to 199 fillings in one day,
this evidence casts significant doubt on Crow’s physical capacity to perform all
the work he billed. Further, Crow consistently billed high numbers of fillings for
single patients (i.e., 15 or 16) and frequently found a need to replace many of
those fillings within a time period testimony suggested was far sooner than the
typical lifespan for fillings.
      Also presented was direct evidence of instances in which Crow submitted
claims to Medicaid but had not drilled deeply enough or on enough tooth sides
to justify the billing code he used. In other cases, Crow performed no work at all.
An expert witness for the Government reviewed post-treatment x-rays and
performed clinical examinations of Crow’s patients, including those patients
named in the indictment, and testified to work wholly unperformed and work
only partially performed (e.g., where Crow billed for a three-surface procedure
but worked on only one surface). Further, almost all of the patients listed in the
indictment testified they did not remember receiving, and were not told about,
the number of fillings for which Crow billed, including second and third re-
fillings of the same teeth. Of the five parents of patients who testified, all
testified they were not told their children would be receiving fillings.
      Crow’s primary defense is that he was performing PRRs, a procedure in
between sealants and fillings, for which the proper billing code was ambiguous.
The Government presented the testimony of the State Dental Director that
between 2004 and 2007, PRRs should have been billed as sealants, rather than

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                                 No. 11-10956

the more expensive fillings, and Crow admitted he was not even familiar with
the term PRR prior to his indictment in this case. Crow’s defense is also flawed
at a more fundamental level. The Government presented evidence, and Crow
acknowledged, that a PRR is a “pinpoint” procedure, or in other words there is
no such thing as a two-surface or three-surface PRR. Fourteen of the seventeen
counts on which Crow was convicted dealt with billing two- and three-surface
procedures. Thus, even if the jury entirely credited Crow’s defense of honest
confusion over the billing of the PRR procedure, which the evidence permitted
but by no means required, the jury still could have convicted Crow on the
fourteen counts covering two- and three-surface procedures.
      The Government presented sufficient evidence for a rational jury to find
that Crow acted knowingly and willfully on all counts of conviction.
      AFFIRMED.




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