                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          NOV 5 2004
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
 v.                                                    No. 03-4288
                                               (D.C. No. 2:01-CR-828-PGC)
 SUSANNE MARIE ALLEN, also                               (D. Utah)
 known as Susanne Marie (nee) Austin,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before EBEL, MURPHY and McCONNELL, Circuit Judges.




      From 1994 to 2001, Defendant Susanne Allen, a nurse practitioner, owned

and operated a medical clinic in rural Grantsville, Utah. Based on the Medicare

billing practices at the clinic during 1999, Defendant was charged in a second

superceding indictment with five counts of knowingly aiding and abetting the


      *
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This Order and Judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
presentation of false claims to the federal government in violation of 18 U.S.C. §§

2 1 & 287 2 (2000). Specifically, Defendant was charged with directing the clinic’s

billing clerks to submit five Medicare claims representing that Defendant

performed medical services “incident to” a particular physician’s services, when

the physician in question had not yet started work at the clinic and had not

directly supervised or been involved with those medical services. After a jury

trial, Defendant was convicted on all counts, was sentenced to twelve months

probation, and was ordered to pay $2,675.64 in restitution. Defendant now

appeals her conviction.

      This appeal raises three principal issues:

      1.     Whether the district court abused its discretion when it admitted
             evidence pursuant to Rule 404(b) regarding other false medical
             claims prepared at Defendant’s direction.

      2.     Whether the district court erred in refusing to issue a jury instruction
             on the need for a false statement to be material to satisfy 18 U.S.C.
             § 287.


      1
        18 U.S.C. § 2 provides, in pertinent part, “Whoever commits an offense
against the United States or aids, abets, counsels, commands, induces or procures
its commission, is punishable as a principal.” The provision continues, “Whoever
willfully causes an act to be done which if directly performed by him or another
would be an offense against the United States, is punishable as a principal.”
      2
       18 U.S.C. § 287 (2000) provides, in pertinent part, “Whoever makes or
presents . . . to any department or agency [of the United States], any claim upon
or against the United States, or any department or agency thereof, knowing such
claim to be false, fictitious, or fraudulent, shall be imprisoned not more than five
years and shall be subject to a fine in the amount provided in this title.”

                                            -2-
      3.     Whether the government presented sufficient evidence to support the
             jury’s verdict that (a) the claims submitted by Defendant were false;
             and (b) Defendant submitted those claims knowingly.

We exercise jurisdiction over the appeal pursuant to 28 U.S.C. § 1291, and we

AFFIRM the judgment of the district court for the reasons stated herein.



I.    Factual Background

      From June 1999 until early December 1999, no physicians worked at the

clinic that Defendant owned and operated. During that time, Defendant, a nurse

practitioner, examined patients.

      In May or June 1999, Alexander Del Castillo, a doctor living in Florida,

signed an employment agreement to work at the clinic beginning in December

1999. According to his testimony at trial, Del Castillo ultimately arrived in Utah

on December 7, 1999 and began work at the clinic on December 9, 1999; he was

not involved in the treatment of patients in any capacity until that date. Although

Del Castillo was not to begin work until December, at Defendant’s direction his

employment agreement with the clinic contained an effective date of July 1, 1999.

Also at Defendant’s direction, the clinic administrator instructed Del Castillo to

list July 1, 1999 as the date that he began practicing at the clinic on an application

to obtain credentials with Medicare.




                                         -3-
      Beginning in September or October 1999, well before Del Castillo actually

started work at the clinic, Defendant instructed the clinic’s billing clerks to

submit claims under Del Castillo’s name and provider number for medical

services that Defendant, not Del Castillo, provided. Del Castillo never authorized

Defendant to submit Medicare claims using his name and provider number for

services performed prior to his arrival at the clinic, and Del Castillo was not

aware that Defendant had done so.

      At issue in this case are five claims submitted to Regence BlueCross

BlueShield, the Medicare administrative contractor who adjudicates Part B

Medicare claims 3 arising in the state of Utah. The claims were submitted under

Del Castillo’s name and provider number for services performed at the clinic on

November 6, 8, and 11, 1999 and December 3 and 4, 1999.



II.   Rule 404(b) Evidence

      Defendant argues that the court’s admission of evidence regarding other

false medical claims prepared at Defendant’s direction unduly prejudiced the jury

and violated Rule 404(b). We “review a district court’s decision to admit



      3
       According to evidence adduced at trial, Medicare Part B, also called
supplementary medical insurance, primarily covers health care provider
expenses—chiefly physician expenses. Medicare Part A, by contrast, primarily
covers hospital expenses.

                                         -4-
evidence under Fed. R. Evid. 404(b) for abuse of discretion.” United States v.

Kravchuk, 335 F.3d 1147, 1156 (10th Cir. 2003). To resolve Defendant’s claim,

we must first determine the contours of the ruling below, then analyze that ruling

in the light of established precedent.



      A.     Ruling Below

      Before and during trial, Defendant sought to exclude the testimony of a

billing clerk at the clinic, Sherri Summers, and a doctor who practiced at the

clinic from 1998 to 1999, Sheikh Saghir. The testimony that Defendant sought to

exclude related to Defendant’s efforts to alter the bills that the clinic would

submit to Medicare for the services that Saghir performed for patients.

      In response to Defendant’s objection before trial to this testimony, the

district court held that the testimony was offered for a proper purpose under Rule

404(b): absence of mistake. The court also found that the evidence was

admissible under Rule 403, and noted that it would issue a limiting instruction to

the jury. The court “reinforc[ed]” its ruling when Defendant renewed her

objection during the trial to the testimony, noting that the probative value of the

evidence was higher than originally estimated, as it had become clear during trial

that Defendant was arguing that she had submitted the false claims as a result of

mistake or accident. In accordance with its original ruling, the court issued a


                                         -5-
limiting instruction immediately following Saghir’s testimony. Each of these

rulings is discussed in more detail below.

      Ultimately, Summers testified that Defendant told her to increase the

charges on Saghir’s bills after he had signed them. Saghir testified that beginning

in February 1999 Defendant confronted him, told him that he was underbilling

Medicare for the services he provided, and demanded that he bill his services at a

higher level (and correspondingly greater cost). Saghir also testified that in May

1999, he saw Defendant changing his bills after he had signed them.



      B.     Analysis

      Evidence of other uncharged acts “is properly admitted under Rule 404(b)

if four requirements are met: (1) the evidence was offered for a proper purpose

under Fed. R. Evid. 404(b); (2) the evidence was relevant under Fed. R. Evid.

401; (3) the probative value of the evidence was not substantially outweighed by

its potential for unfair prejudice under Fed. R. Evid. 403; and (4) the district

court, upon request, instructed the jury pursuant to Fed. R. Evid. 105 to consider

the evidence only for the purpose for which it was admitted.” United States v.

Becker, 230 F.3d 1224, 1232 (10th Cir. 2000) (citing Huddleston v. United States,

485 U.S. 681, 691-92 (1988)).




                                         -6-
      In this case, the evidence of the other false claims meets each requirement.

First, the evidence was offered for a proper purpose under Rule 404(b). Rule

404(b) provides that evidence of “other crimes, wrongs, or acts is not admissible

to prove the character of a person in order to show action in conformity

therewith,” but may be admissible to show “proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed.

R. Evid. 404(b). While the district court was somewhat imprecise in defining the

exact purpose(s) for which it admitted this testimony, 4 it is clear that the


      4
        In addressing the issue before the start of trial, the court admitted Saghir’s
testimony for the purpose of showing motive and absence of mistake. Shortly
afterward, the court admitted Summers’ testimony to “show[] absence of mistake
and so forth.” In addressing the issue again, just before Saghir was to testify, the
court stated that the evidence was “coming in to show the knowledge, absence of
mistake, and . . . . accident.” After Saghir’s testimony, in a limiting instruction to
the jury, the court stated that Saghir’s testimony, and possibly that of other
witnesses, was admitted for the limited purpose of determining “whether the
defendant acted knowingly and intentionally and not because of some mistake or
accident or other innocent reason with respect to those five specific charges that
have been filed by the government.”
       Strictly speaking, the evidence seems most suggestive of an overarching
“plan” to defraud Medicare or “knowledge” of how one might defraud Medicare.
Fed. R. Evid. 404(b). The evidence is not as suggestive of an “absence of mistake
or accident,” since the overbilling fraud involving the level of services that Saghir
provided to his patients represents a very different sort of fraud from the
“incident to” misbilling at issue in this case. However, the distinction between
the concepts of “motive,” “plan,”“knowledge,” and “absence of mistake or
accident” is at times a fine one, and the court’s failure to define its ruling as
precisely as it might have certainly does not rise to the level of an abuse of
discretion. Cf. John W. Strong, McCormick on Evidence 659 (5th ed. 1999)
(noting that the permitted uses for evidence of other crimes, wrong, or acts
                                                                         (continued...)

                                          -7-
testimony was not admitted to prove Defendant’s character in order to show

action in conformity therewith. Thus, the testimony does not run afoul of Rule

404(b).

      Second, the evidence was relevant under Rule 401, which provides that

evidence is relevant whenever it has “any tendency to make the existence of any

fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence.” Fed. R. Evid. 401. That

Defendant had previously manipulated the Medicare billing system tended to

show that Defendant submitted the false claims in the case at bar knowingly.

Defendant’s knowing submission of the claims in the case at bar was an element

of the offense for which she was convicted—submitting false claims under 18

U.S.C. § 287. See United States v. Kline, 922 F.2d 610, 611 (10th Cir. 1990).

Thus, the 404(b) evidence clearly shed light on a “fact . . . of consequence to the

determination of the action.” Fed. R. Evid. 401.

      Third, the evidence was admissible under Rule 403, which allows the trial

court “to exclude relevant evidence if its probative value is substantially

outweighed by the danger of, among other things, unfair prejudice, confusion of

the issues, or misleading the jury.” United States v. Galloway, 937 F.2d 542, 548




      (...continued)
      4

enumerated in Rule 404(b) are not mutually exclusive).

                                         -8-
(10th Cir. 1991). In this case, the evidence of other false claims was highly

probative, as it suggested an overarching plan to defraud Medicare and/or

knowledge of how such fraud might be accomplished. While Saghir and Summers

testified to the same general sequence of events, their testimony related to

different aspects of the events, thus alleviating concerns that their testimony may

have been cumulative and therefore unfairly prejudicial.

       Moreover, to the extent that the evidence of false claims was unfairly

prejudicial to Defendant, the district court issued a limiting instruction to the

jury—thereby meeting the fourth of the Huddleston requirements. Because each

of the Huddleston requirements was met, we cannot say that the district court

abused its discretion in admitting the testimony of Summers and Saghir.



III.   Materiality

       Defendant argues that the district court erred when it refused to instruct the

jury that the false statements made in the Medicare claims must have been

material in order to convict Defendant of submitting false claims to the federal

government in violation of 18 U.S.C. § 287. We review the propriety of jury

instructions de novo. United States v. Fredette, 315 F.3d 1235, 1240 (10th Cir.),

cert denied, 538 U.S. 1045 (2003). To resolve Defendant’s claim, we must first

determine whether materiality is an element of the offense in this circuit; if it is


                                          -9-
not, we must then address whether the failure to instruct the jury on the issue

constitutes reversible error.

      We have held that materiality is not an essential element of § 287. United

States v. Irwin, 654 F.2d 671, 682 (10th Cir. 1981); see also United States v.

Parsons, 967 F.2d 452, 455 (10th Cir. 1992). We are not alone in this

determination: At minimum, materiality is not considered an element of the

offense, not only in our circuit, but also in the Second, Fifth, and Ninth Circuits.

See 2 Fed. Jury Prac. & Instr. § 30.03 (5th ed.) (2004) (citing Parsons, as well as

United States v. Upton, 91 F.3d 677, 685 (5th Cir. 1996), United States v. Taylor,

66 F.3d 254, 255 (9th Cir. 1995), and United States v. Elkin, 731 F.2d 1005,

1009-10 (2d Cir. 1984), overruled on other grounds by United States v. Ali, 68

F.3d 1468 (2d Cir. 1995)). 5

      Since our decisions in Irwin and Parsons, the Supreme Court has reiterated

that materiality is an element of an offense under 18 U.S.C. § 1001—a measure

that was originally part of the same statute as 18 U.S.C. § 287. United States v.


      5
        There seems to be some discrepancy of opinion on what to make of the
holdings of the various circuit courts on this issue. Compare 2 Fed. Jury Prac. &
Instr. § 30.03, with James B. Helmer, Jr. & Julie Webster Popham, Materiality
and the False Claims Act, 71 U. Cin. L. Rev. 839, 848 (2003) (“The circuit courts
that have ruled on the criminal False Claims Act, 18 U.S.C. § 287—with the
exception of one that has been vacated by the Supreme Court—have all found that
it has no materiality requirement.”) (footnotes omitted) (collecting cases).
Regardless, it is clear that at least some circuits—including our own—have held
that materiality is not an element of an offense under § 287.

                                         - 10 -
Gaudin, 515 U.S. 506, 509 (1995). The Court also has held that materiality is an

element of the federal mail fraud, wire fraud, and bank fraud statutes—18 U.S.C.

§§ 1341, 1343, and 1344, respectively. Neder v. United States, 527 U.S. 1, 25

(1999). However, the Court has not moved uniformly to read a materiality

requirement into all of the fifty-four sections of the U.S. Code criminalizing false

statements that, like § 287, expressly lack such a requirement. United States v.

Wells, 519 U.S. 482, 484, 493 n.14 (1997) (holding that the materiality of the

falsehood is not an element of the crime of knowingly making a false statement to

a federally insured bank pursuant to 18 U.S.C. § 1014). Thus, because the

Supreme Court has not spoken conclusively on the issue, and because one Tenth

Circuit panel cannot overturn the decision of a prior panel, we remain bound by

our prior Tenth Circuit authority. In re Smith, 10 F.3d 723, 724 (10th Cir.1993).

      Moreover, as the district court correctly noted, even if there had been any

error in failing to instruct the jury on the element of materiality, that error was

harmless, as in this case the false statements were clearly material. Cf. Neder,

527 U.S. at 19-20 (“[T]he omission of an element [in a jury instruction] is an

error that is subject to harmless-error analysis . . . .”); see also Chapman v.

California, 386 U.S. 18, 24 (1967) (defining the test for determining whether a

constitutional error is harmless as whether it appears “beyond a reasonable doubt

that the error complained of did not contribute to the verdict obtained”), overruled


                                         - 11 -
in part by Brecht v. Abrahamson, 507 U.S. 619 (1993) (holding that the Chapman

standard is not applicable in habeas cases). Defendant received more money by

billing under Del Castillo’s name and provider number than she would have

received if she had billed under her own name, so the false statements were

“material” in that they had “a natural tendency to influence, or were capable of

influencing, the decision of the decisionmaking body to which [they were]

addressed.” Kungys v. United States, 485 U.S. 759, 770 (1988). Because it

appears clear that Defendant’s statements were material, it appears beyond a

reasonable doubt that the district court’s failure to instruct the jury on the element

of materiality was harmless.



IV.   Sufficiency of the Evidence

      To support a conviction under 18 U.S.C. § 287, “there must be proof (1)

that the defendant knowingly made and presented to a department or agency of the

United States a false, fraudulent or fictitious claim against the United States, and

(2) that the defendant acted with knowledge that the claim was false, fraudulent,

or fictitious.” United States v. Kline, 922 F.2d 610, 611 (10th Cir. 1990)

(emphasis added). Defendant argues that there was insufficient evidence to

support either requirement.




                                         - 12 -
      We review challenges to the sufficiency of the evidence to support a

conviction de novo. United States v. Lazcano-Villalobos, 175 F.3d 838, 843

(10th Cir. 1999). In reviewing such challenges, we must determine whether any

reasonable jury could find the defendant guilty beyond a reasonable doubt,

viewing “all the direct and circumstantial evidence contained in the record and

the reasonable inferences drawn from such evidence” in the light most favorable

to the jury’s verdict. United States v. Lang, 81 F.3d 955, 962 (10th Cir. 1996). 6

In all instances in which a jury’s determination is called into question, we

remember that “the jury has the exclusive function of appraising credibility,

determining the weight to be given to the testimony, drawing inferences from the

facts established, resolving conflicts in the evidence, and reaching ultimate

conclusions of fact.” United Int’l Holdings v. Wharf (Holdings) Ltd., 210 F.3d

1207, 1227 (10th Cir. 2000), aff’d, 532 U.S. 588 (2001). With this in mind, we

address each of Defendant’s contentions in turn.




      6
       In connection with this issue, Defendant’s brief discusses our standards for
reviewing a district court’s denial in a civil case of a motion for judgment as a
matter of law under Fed.R.Civ.P. 50(a). Rule 50(a) and the standard of review
that depends on it are inapplicable in this criminal case.

                                        - 13 -
      A.     Falsity of the Claims

      A reasonable jury could have determined that the evidence at trial

established the falsity of the five Medicare claims submitted under Del Castillo’s

name and provider number. To bill under a physician’s billing number, either the

physician himself must perform the services, or a non-physician must perform

services “incident to” the physician’s services. To meet the “incident to”

requirement, the physician must, inter alia, initiate the care of the patient and

provide direct supervision of the non-physician’s services. “Direct supervision”

requires a physician to be on-site, able to assist immediately if necessary. (Id.)

      The Medicare claims at issue in this case were for services provided on or

before December 4, 1999. According to undisputed evidence adduced at trial, Del

Castillo did not arrive in Utah until December 7, 1999, and did not begin work at

the clinic until December 9, 1999. Del Castillo also testified that he was not

involved in patient care in any way prior to his arrival at the clinic. Thus the jury

reasonably could have determined that Del Castillo did not initiate the patients’

care and was not on-site to supervise directly Defendant’s services, and that the

services were not performed “incident to” a physician’s services as defined by

Medicare regulations.

      Even if the jury had credited Defendant’s claims that the services were

provided as part of a collaborative relationship with Del Castillo pursuant to a


                                        - 14 -
consultation and referral plan, such claims may not have been enough for the jury

to determine that the Medicare claims submitted under Del Castillo’s name were

anything but false. A Medicare claim may be submitted under a physician’s name

only when the physician provides the services personally or when the services are

provided “incident to” the physician’s services. When a nurse practitioner

provides services pursuant to a collaborative relationship with a physician, she

must bill under her own name and provider number, and cannot bill under a

physician’s name and number. Services billed under a nurse practitioner’s name

and number are reimbursed at a lower rate than “incident to” services. Thus, even

if the services had been performed pursuant to a collaborative relationship with

Del Castillo, the jury reasonably could have determined that the claims based on

those services were false because the claims represented that the medical care had

been performed “incident to” Del Castillo’s services, resulting in a higher

Medicare payment rate.



      B.     Knowing Submission of the Claims

      Sufficient evidence existed at trial from which a reasonable jury could have

found beyond a reasonable doubt that Defendant knew that the Medicare claims

were false. The evidence showed that Defendant had experience in billing for

medical services; that she supervised and directed the billing for the clinic; and


                                        - 15 -
that she had access to Medicare regulations and updates maintained in the clinic’s

billing office that set forth, inter alia, the requirements for “incident to” billing.

Moreover, in early 1999 the clinic administrator told Defendant that the billing

clerks had learned in Medicare training that a physician had to be physically

present at the clinic in order to bill under that physician’s name. Thus the jury

reasonably could have determined that Defendant knew that the claims her clinic

was submitting were false.

      Further, Allen had knowingly submitted false medical claims of another

type—the overbilling of Saghir’s services. That Defendant had knowingly

submitted the false claims related to Saghir’s billing support a reasonably jury

inference that she knew that the claims she submitted under Del Castillo’s name

were false.

      Defendant argues that the evidence shows that she merely confused the

requirements for billing “incident to” a doctor’s services with the requirements

for billing under a collaborative relationship, under which a physician need only

at minimum be available for contact by telephone. The jury reasonably could

have found that this claim was not credible in light of the evidence that Defendant

had many years of experience with Medicare billing, had access to Medicare

regulations and updates, was told by her staff that she could not bill incident to a




                                          - 16 -
doctor’s services when the doctor was not on-site, and had knowingly filed other

false medical claims in the past.

      Moreover, the jury reasonably could have concluded that even if Defendant

had confused the requirements for the two types of billing, her billing practices

were improper even under the billing for a collaborative arrangement. To bill

pursuant to a collaborative physician arrangement, the physician must be available

for consultation. Del Castillo testified that, prior to beginning work at the clinic,

he was not available to Defendant for consultations. Del Castillo testified that he

did sign a consultation and referral agreement, but that he most likely did so after

his arrival at the clinic. Further, even if a collaborative relationship did exist,

Medicare regulations require that such services be billed under the nurse

practitioner’s name and are paid at a lower rate. Thus, the jury reasonably could

have determined that Defendant’s arguments fail on their own terms.



V.    Conclusion

      For the foregoing reasons, we AFFIRM the judgment of the district court.



                                         ENTERED FOR THE COURT



                                         David M. Ebel
                                         Circuit Judge

                                          - 17 -
