     Case: 09-50054     Document: 00511144497          Page: 1    Date Filed: 06/16/2010




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

                                                  FILED
                                                                            June 16, 2010

                                       No. 09-50054                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff - Appellee
v.

GEORGIO RAPHAEL JOB; JAMES ANTHONY

                                                   Defendants - Appellants




                   Appeals from the United States District Court
                     for the Western District of Texas, Austin
                           USDC No. 1:07-cr-00123-LY-4


Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
        Georgio Raphael Job was convicted of conspiring to violate, and violating,
the Medicare Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b)(2)(A), as well as of
health-care fraud, under 18 U.S.C. § 1347.               Job’s co-defendant, Dr. James
Anthony, was convicted of violating the Medicare Anti-Kickback Statute, 42
U.S.C. § 1320a-7b(b)(2)(A).
        Job challenges his conviction and sentence, claiming:                     his Sixth
Amendment right to counsel under Cuyler v. Sullivan, 446 U.S. 335 (1980), was

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-50054

violated because his counsel labored under an actual conflict at trial; in the
alternative, his right to counsel was violated because his attorney’s closing
argument and other failures constituted a “complete denial of counsel” under
United States v. Cronic, 466 U.S. 648 (1984); in the alternative, at trial and at
sentencing, he had ineffective assistance of counsel under Strickland v.
Washington, 466 U.S. 668 (1984); a fatal variance existed between the conspiracy
charged in the indictment and the evidence at trial, resulting in his due-process
rights being violated; the district court plainly erred by failing sua sponte to give
a jury instruction on Medicare’s safe-harbor provision for the anti-kickback
statute; the evidence was insufficient to show he violated 18 U.S.C. § 1347
(health-care fraud); and, his sentence was erroneously calculated based on
conspiracy to commit health-care fraud, a crime for which he was not charged,
rather than conspiracy to give kickbacks. Dr. Anthony claims only that the
evidence was insufficient to sustain his conviction. AFFIRMED.
                                         I.
      Job owned and operated Richmond Medical Rehab Clinic, a Medicare-
licensed provider of durable medical equipment (principally power wheelchairs
and accessories) to Medicare beneficiaries.        In 2003, Job entered into an
agreement with Denzil Avery: if Avery could find a doctor willing to write
prescriptions for power wheelchairs, Job would split the profits, as well as the
costs of recruiting each beneficiary, with Avery. Job also introduced Avery to
Kenny Adebiyi, who operated two durable medical equipment companies of his
own, CBCI and Oak Medical. (Ownership of Oak Medical was in Adebiyi’s
girlfriend’s name, Angela Ernest.)       Avery entered into an agreement with
Adebiyi identical to the one Avery had with Job.
      Avery found Dr. Anthony, who agreed to write prescriptions for
wheelchairs for a fee of $250 per prescription written. In other words, if Dr.
Anthony did not write a prescription, he would not be paid.

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      Avery had a network of nursing home workers whom he paid to identify
patients entitled to Medicare benefits. The potential beneficiaries would then
gather in groups at various public places—in one instance, a hotel; in another,
a church. At these gatherings, which typically took place on a Saturday, Dr.
Anthony would perform perfunctory “assessments”. He would then take to his
home the Certificates of Medical Necessity (CMNs; forms required by Medicare).
The next week, he would give completed CMNs and prescriptions to Avery to
provide to Job. During the entire time Avery worked with Dr. Anthony, Avery
never saw a beneficiary for whom Dr. Anthony did not prescribe a power
wheelchair. Avery paid Dr. Anthony in cash for these prescriptions.
      Job filed these CMNs with Medicare, which paid Job, on behalf of the
beneficiaries, for the prescribed power wheelchairs. Job’s company, Richmond
Medical, however, would often deliver scooters instead of power wheelchairs to
the beneficiaries. The difference in cost to Job between a scooter and a power
wheelchair was around $3,500. Job and Avery split the difference.
      In June 2007, Job, Avery, Adebiyi, and Ernest were indicted for conspiracy
to violate the Health Care Anti-Kickback Statute, from March 2002 to August
2003, in violation of 18 U.S.C. § 371 and 42 U.S.C. § 1320a-7b(b)(2)(A). Job was
also charged with paying money to Avery, in the form of kickbacks, to locate,
solicit, and recruit Medicare beneficiaries on whose behalf Medicare could be
billed for power wheelchairs by Richmond Medical, in violation of 18 U.S.C. §
1320a-7b(b)(2)(A). Job was also charged with three counts of health-care fraud,
for fraudulently obtaining money from Medicare by billing for power wheelchairs
and related accessories but instead providing lesser-valued scooters, in violation
of 18 U.S.C. §§ 1347(1) and (2).
      Dr. Anthony was charged with soliciting and receiving cash payments, in
the form of a kickback, bribe, or rebate, from Avery for examining one or more
beneficiaries, prescribing a power wheelchair, and signing a CMN, in order for

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the beneficiary to receive a power wheelchair, in violation of 18 U.S.C.
§ 1320a-7b(b)(2)(A).
      Avery pleaded guilty and testified for the Government at the jury trial of
Job, Dr. Anthony, and Ernest. Ernest presented witnesses in her defense; Dr.
Anthony presented one; Job presented none. Ernest was acquitted, but Job and
Dr. Anthony were found guilty of all of the charges against them. Job was
sentenced, inter alia, to 63 months’ imprisonment and to make restitution of
$860,096.23.     Dr. Anthony was sentenced, inter alia, to 18                months’
imprisonment and to make restitution of $178,400.53.
                                         II.
                                         A.
      Job claims: he was denied effective assistance of counsel; he was denied
due process due to a fatal variance between the indictment and the evidence at
trial; the district court plainly erred by failing sua sponte to give a Medicare safe-
harbor jury instruction; the evidence was insufficient to show he committed
health-care fraud; and, his sentence was erroneously calculated. Primarily at
issue are his ineffective-assistance-of-counsel (IAC) claims.
                                          1.
      Job provides three different bases for IAC: his counsel suffered an actual
conflict of interest that adversely affected his performance, such that his counsel
was ineffective under Cuyler; his counsel’s closing argument and other failures
amounted to a complete denial of counsel, such that prejudice should be
presumed under Cronic; and, finally, his counsel’s performance at sentencing
was ineffective under Strickland. Our review is de novo. See Carty v. Thaler,
583 F.3d 244, 265 (5th Cir. 2009) (reviewing Strickland claim de novo), cert.
denied 2010 WL 321327 (3 May 2010); United States v. Infante, 404 F.3d 376,
391 (5th Cir. 2005) (reviewing Cuyler claim de novo); Childress v. Johnson, 103
F.3d 1221, 1224 (5th Cir. 1997) (“The ultimate question in this appeal—whether

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appellant’s right to counsel was constructively denied [under Cronic]—is a mixed
question of law and fact, subject to de novo review.”).
                                       a.
      In order to establish a Sixth Amendment violation under Cuyler, Job
“must demonstrate that an actual conflict of interest adversely affected his
lawyer’s performance”. Cuyler, 446 U.S. at 348; see also United States v. Burns,
526 F.3d 852, 856-57 (5th Cir. 2008). Further, he must show: either he did not
knowingly, voluntarily, and intelligently waive this conflict, United States v.
Greig, 967 F.2d 1018, 1021-22 (5th Cir. 1992); or the conflict was “so severe as
to render [his] trial inherently unfair”, regardless of waiver, United States v.
Vaquero, 997 F.2d 78, 90 (5th Cir. 1993). Holding that the requisite actual
conflict did not exist, we do not reach waiver vel non.
      Job was represented by Craig Washington at trial and sentencing. Prior
to trial, the Government moved for the court to inquire into a potential conflict
of interest: Washington had an impending trial for aggravated assault with a
deadly weapon; one of his attorneys of record was Vivian King; and, King also
represented Job’s co-defendant, Ernest.
      In considering pre-trial motions, the district court was unsure whether a
conflict was present.   On the day of jury selection, the district judge asked
Washington whether he had told Job of the charges against Washington and
King’s representation of him. Washington had not; therefore, the court gave
Washington an opportunity privately to explain the situation to Job.         After
Washington did so, the court held a brief Garcia hearing, asking Job whether he
understood the conflict and whether he waived it. Job replied that he did.
      Job contends an actual conflict existed for two reasons: first, Washington
failed timely to disclose the pending aggravated-assault charges against him;
and second, King’s representation of Washington gave him a motive to curry



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favor with her. Neither of these reasons is sufficient to show an actual conflict
under Cuyler.
      Beets v. Scott, 65 F.3d 1258, 1268-72 (5th Cir. 1995) (en banc), held that,
for Cuyler to apply (rather than Strickland), the actual conflict presented must
consist of a conflict of multiple representation, not simply a conflict involving the
attorney’s self-interest. As Beets explained:


             The position adopted by this court en banc may be
             easily summarized. Strickland offers a superior
             framework for addressing attorney conflicts outside the
             multiple or serial client context. First, Cuyler, like all
             the other Supreme Court cases that have discussed a
             lawyer’s conflict of interest, solely concerned the
             representation of multiple clients. . . . Second, the
             demands and reasoning of legal ethics militate against
             treating multiple representation cases like those in
             which the lawyer’s self-interest is pitted against the
             duty of loyalty to his client. Finally, applying Cuyler in
             cases arising from a lawyer’s conflict of interest
             between himself and his client ultimately undermines
             the uniformity and simplicity of Strickland.


65 F.3d at 1265-66 (footnotes omitted).
      Job does not contend Washington’s performance was conflicted due to his
representation of a former or current client; instead, the claimed conflict arises
from Washington’s self-interest in his representation by King in another case.
Therefore, there was no actual conflict within the meaning of Cuyler.
                                         b.
      Job’s second IAC contention is that, under Cronic, he was deprived of
effective assistance of counsel. Under Cronic, IAC may be presumed if defendant
“is denied the presence of counsel at a critical stage”, Bell v. Cone, 535 U.S. 685,
695 (2002); if    “counsel entirely fails to subject the prosecution’s case to
meaningful adversarial testing”, Cronic, 466 U.S. at 659; or, if “counsel is called

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upon to render assistance under circumstances where competent counsel very
likely could not”, Bell, 535 U.S. at 696. Job contends he was completely denied
counsel due to Washington’s closing argument and his failure, inter alia, to seek
discovery.
      Job misapprehends the type of actions by counsel that warrant the Cronic
presumption. As our court held in Johnson v. Cockrell,


             [a] constructive denial of counsel occurs . . . in only a
             very narrow spectrum of cases where the circumstances
             leading to counsel’s ineffectiveness are so egregious that
             the defendant was in effect denied any meaningful
             assistance at all. . . . [T]he attorney’s failure must be
             complete. . . . [A] case does not come under Cronic
             merely because counsel failed to oppose the prosecution
             . . . at specific points in the trial. It is not enough for
             the defendant to show mere shoddy representation or to
             prove the existence of errors, omissions, or strategic
             blunders by counsel. Bad lawyering, regardless of how
             bad, does not support the per se presumption of
             prejudice.


301 F.3d 234, 238-39 (5th Cir. 2002) (internal quotations, citations, and footnotes
omitted) (first emphasis added; second emphasis in original). At most, for the
reasons that follow, Job advances “bad lawyering”, not the requisite complete
failure of representation.
                                         i.
      Job claims Washington’s closing argument conceded Job’s guilt.
Admittedly, if this were true, it might raise a genuine issue on whether Cronic
should apply. See Haynes v. Cain, 298 F.3d 375, 380 n.6 (5th Cir. 2002) (en
banc) (citing Underwood v. Clark, 939 F.2d 473, 474 (7th Cir. 1991)). The
portion of the argument Job relies upon, however, simply does not constitute a
concession of guilt. Washington said:



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               I told you . . . I was going to try to ask questions . . . so
               that you can see whether . . . Job did what they said he
               did and whether you believe that beyond a reasonable
               doubt. And I’ll be the first to admit that I took a long
               time doing it sometimes and it seems like maybe I
               never got there. But I—and if I took too long in asking
               questions, I apologize.

Washington’s statement is hardly a forced guilty plea and does not constitute a
complete denial of counsel.
      Job further asserts that, in his closing argument, Washington’s defense of
Ernest, rather than his own client, Job, constituted a complete failure of
representation. Washington stated, inter alia:


               Now, all of you—you have children. And this young
               lady [Ernest] is a parent’s worst nightmare. You raise
               them as best you can, and some slick guy comes along
               talking something fast to them, whispering in their ear,
               and here they are. . . . And you can’t ever give her her
               life back. All you can do is find her not guilty. That’s
               the best you can do.


It is not clear why Washington devoted part of his closing argument to Ernest’s
defense.   But this fairly brief diversion from an otherwise ardent closing
argument at worst shows “shoddy representation or . . . the existence of errors,
omissions, or strategic blunders by counsel”, not the kind of complete denial of
counsel required for application of the Cronic presumption. See Johnson, 301
F.3d at 238.
      Finally,     Job    claims   Washington’s      closing   was    “rambling”   and
“discombobulated”. In particular, Job points to Washington’s discussion of the
Magna Carta (“793 years ago, almost to the day, on a field in a meadow, a man
named King John had to come to reckon with the people that he ruled over”), as



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well as his complimenting opposing counsel (“Brilliant young lawyer. I was
sitting here watching. I was smiling when she was going—I wish I had a
daughter like that”). Further, Job especially takes issue with Washington’s
attempt to discredit Avery, where Washington stated:


           And I pointed it out in your presence. I pointed it out
           that when he had the opportunity to embellish and
           make something up, when there was nobody to
           contradict him, he was the best in the world. He could
           go on and on about this and that and the other and just
           pepper it up and season it up like you would a nice
           piece of chicken or whatever because there’s nobody to
           contradict him. He could remember line, chapter and
           verse about that motel over there on Old Spanish Trail
           in Houston. But when I asked him a question about
           something coming to light where there were some
           documents to back it up, he didn’t have a clue.

           And I had to ask him, I said, “What was the difference
           between the questions I asked you and the
           questions”—I started out in the very beginning, if you
           remember, asking him, “Mr. Avery, if you don’t
           understand my question, make sure that I rephrase it
           or repeat it,” because I knew the questions I was
           asking, at least I thought they was going to be
           important, not to me, but to you. This ain’t important
           to me. I get to go home. Y’all have to make the
           decision. When I sit down, I never get to say another
           word on behalf of Georgio Job. I knew those questions
           were going to be important. And I got agreement with
           him, I thought, in the beginning. “Make sure you
           understand my questions before you answer them,” so
           that if he got caught, he couldn’t come back and say,
           “Mr. Washington, I didn’t understand.” That’s exactly
           what he did. I’m getting out of breath. I get a little
           carried away. I talked about who, what, when, where
           and how.




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      Again, this does not amount to complete denial of counsel. See United
States v. Griffin, 324 F.3d 330, 364 (5th Cir. 2003) (“When the defendant
complains of errors, omissions, or strategic blunders, prejudice is not presumed;
bad lawyering, regardless of how bad, does not support the per se presumption
of prejudice.” (quoting Gochicoa v. Johnson, 238 F.3d 278, 284-85 (5th Cir.
2000))).
                                         ii.
      Job also claims Washington did not conduct adequate discovery, interview
witnesses, explore a plea bargain, or keep him informed. For example, the
district court granted inspection and discovery to all defendants. The only
evidence Job relies on in support of this claim, however, is his affidavit that he
submitted in support of his unsuccessful new-trial motion, filed after this appeal.
That motion was filed by new counsel for Job, who represent him on appeal.
       Job has not appealed the denial of his new-trial motion, and this evidence
is not properly before us. See, e.g., F ED. R. C RIM. P. 33(b); 16A C HARLES A LAN
W RIGHT & A RTHUR P. M ILLER, F EDERAL P RACTICE AND P ROCEDURE § 3956.1 (4th
ed. 2008) (“[O]rdinarily, the court of appeals will not consider matter that was
filed with the district court, if at all, after the date of the judgment or order that
is challenged on appeal.”). Moreover, assuming arguendo Washington did fail
to act as counsel as claimed, such as failing to conduct discovery, these are the
types of errors that do not constitute the complete denial of counsel requisite for
relief under Cronic.
                                          c.
      Job’s last IAC claim is based on Strickland. He maintains: Washington
was ineffective at sentencing because he failed to present evidence in support of
applying the Medicare safe-harbor provision; and this caused Job to receive a 14-
point enhancement for the $860,000 gain he realized by hiring and directing
Avery to solicit and recruit beneficiaries.

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      “The general rule in this circuit is that [an IAC] claim . . . cannot be
resolved on direct appeal when the claim has not been before the district court
since no opportunity existed to develop the record on the merits of the
allegation.” United States v. Brewster, 137 F.3d 853, 859 (5th Cir. 1998) (quoting
United States v. Thomas, 12 F.3d 1350, 1368 (5th Cir. 1994)). Our court “will
undertake[ ] to resolve claims of inadequate representation on direct appeal only
in rare cases where the record allowed the court to evaluate fairly the merits of
the claim”. United States v. London, 568 F.3d 553, 562 (5th Cir. 2009) (quoting
United States v. Kizzee, 150 F.3d 497, 502 (5th Cir. 1998)) (alteration in London)
(internal quotation omitted).
      Obviously, the record is not sufficiently developed to consider this
contention.    To do so would require speculating about the reasons for
Washington’s actions and considering their reasonableness, all without the
benefit of evidence from Washington. Therefore, we decline to consider this
Strickland claim, without prejudice to Job’s raising it in a motion pursuant to
28 U.S.C. § 2255.
                                         2.
      For his claim that a fatal variance existed between the conspiracy charge
in the indictment and the evidence at trial, Job contends: the evidence showed,
at most, the existence of several distinct conspiracies; but, the indictment
charged a single criminal enterprise. See Kotteakos v. United States, 328 U.S.
750, 773 (1946). Because, as he concedes, Job failed to object on this basis at
trial, review is only for plain error. United States v. Ratner, 502 F.2d 1300,
1302-03 (5th Cir. 1974).
       To establish reversible plain error, Job must show:           an error was
committed; it was plain (clear or obvious); and, it affected his substantial rights.
E.g., United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008) (citing United
States v. Thompson, 454 F.3d 459, 464 (5th Cir. 2006), cert. denied, 129 S. Ct.

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962 (2009)). Even if reversible plain error is established, we retain discretion
whether to correct it and, generally, will do so only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.
      To establish that the Government failed to prove the charged conspiracy,
Job must show that “the evidence viewed in the light most favorable to the
government would preclude reasonable jurors from finding a single conspiracy
beyond a reasonable doubt”. United States v. Pena-Rodriguez, 110 F.3d 1120,
1126 (5th Cir. 1997). He has failed to do so.
      The indictment alleged that Job conspired with Adebiyi, Ernest, and Avery
to violate the Medicare Anti-Kickback Act, in violation of 42 U.S.C. § 1320a-
7b(b)(2)(A) and 18 U.S.C. § 371. The trial evidence showed: Adebiyi made
reservations at a hotel where potential beneficiaries were “assessed” for the
benefit of Job; Job introduced Avery to Adebiyi, telling him, “This is my man,
and I think you and he can work well together”; and Avery had the same
arrangement with Adebiyi that he had with Job. Viewing this evidence in the
light most favorable to the Government, we cannot say that a reasonable juror
could not find enough commonality to constitute a single conspiracy. Therefore,
there was no error.
      Furthermore, regardless of whether the Government proved a single
conspiracy, it doubtless proved that Job conspired with Avery to violate the
Medicare Anti-Kickback Act. Under United States v. Faulkner, 17 F.3d 745, 762
(5th Cir. 1994), “where the indictment alleges a single conspiracy and the
evidence establishes each defendant’s participation in at least one conspiracy a
defendant’s substantial rights are affected only if the defendant can establish
reversible error under general principles of joinder and severance”. See also
United States v. Morgan, 117 F.3d 849, 859 (5th Cir. 1997) (“Even were we to
conclude that there was a variance, appellants have failed to prove that it
affected their substantial rights.” (citing United States v. Guerra-Marez, 928

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F.2d 665, 672 (5th Cir. 1991)). Under joinder and severance principles, Job has
not shown “specific and compelling prejudice that resulted in an unfair trial”,
Pena-Rodriguez, 110 F.3d at 1128 (quoting Faulkner, 17 F.3d at 759); in fact, Job
has not claimed any prejudice. In sum, Job’s claim fails under plain error
review.
                                           3.
      Job’s claim that the district court erred by failing sua sponte to give a jury
instruction on Medicare’s safe-harbor provision, 42 C.F.R. § 1001.952(i), was not
raised at trial. Therefore, as Job concedes, this issue is also reviewed only for
plain error.
      As discussed supra, before an error can be plain (clear or obvious) or affect
defendant’s substantial rights, there must obviously be an error.            In this
instance, error exists if the district court failed to give “a charge on a defense
theory for which there is an evidentiary foundation and which, if believed by the
jury, would be legally sufficient to render the accused innocent”. United States
v. Branch, 91 F.3d 699, 712 (5th Cir. 1996) (quoting Mathews v. United States,
485 U.S. 58, 63 (1988)). In other words, error does not exist if, inter alia, the
instruction at issue “lack[ed] sufficient foundation in the evidence”. Id. (citing
United States v. Tannehill, 49 F.3d 1049, 1057 (5th Cir. 1995)).
      Job’s defense theory pursuant to the Medicare safe-harbor provision,
raised for the first time on appeal, warrants some explanation. First, Job was
convicted of violations of 42 U.S.C. § 1320a-7b(b)(2)(A). That section makes
illegal the knowing and willful payment, or offer of payment, of


               remuneration (including any kickback, bribe, or rebate)
               directly or indirectly, overtly or covertly, in cash or in
               kind to any person to induce such person—

               (A) to refer an individual to a person for the furnishing
               or arranging for the furnishing of any item or service

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            for which payment may be made in whole or in part
            under a Federal health care program . . . .

42 U.S.C. § 1320a-7b(b)(2)(A).
       The safe-harbor provision modifies the definition of “remuneration” to
exclude payments to bona fide employees. 42 C.F.R. § 1001.952(i). It relies on
26 U.S.C. § 3121(d)(2) for its definition of employee: “any individual who, under
the usual common law rules applicable in determining the employer-employee
relationship, has the status of an employee”. Therefore, whether it was error to
fail sua sponte to give the safe-harbor instruction depends upon whether there
was a sufficient evidentiary foundation for showing Avery and Job were in a
bona fide common-law employment relationship.
      The Supreme Court has explained: where a federal statute adopts a
common-law definition of “employee”, the term incorporates “the general
common law of agency, rather than . . . the law of any particular State”.
Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 n.3 (1992) (quoting Cmty.
for Creative Non-Violence v. Reid, 490 U.S. 730, 740 (1989)) (interpreting the
definition of “employee” under ERISA) (omission in Darden). The key factors
include


            the hiring party’s right to control the manner and
            means by which the product is accomplished. . . .
            [Those factors also include] the skill required; the
            source of the instrumentalities and tools; the location of
            the work; the duration of the relationship between the
            parties; whether the hiring party has the right to assign
            additional projects to the hired party; the extent of the
            hired party’s discretion over when and how long to
            work; the method of payment; the hired party’s role in
            hiring and paying assistants; whether the work is part
            of the regular business of the hiring party; whether the
            hiring party is in business; the provision of employee
            benefits; and the tax treatment of the hired party.


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Darden, 503 U.S. at 323-24 (quoting Reid, 490 U.S. at 751-752). “[A]ll of the
incidents of the relationship must be assessed and weighed with no one factor
being decisive”. Id. at 324 (quoting NLRB v. United Ins. Co. of America, 390 U.S.
254, 258 (1968)).
      A sufficient foundation for an affirmative defense (such as the safe-harbor
exception) consists of “evidence sufficient for a reasonable jury to find in [the
defendant’s] favor”. Branch, 91 F.3d at 712 (quoting Mathews, 485 U.S. at 63)
(alteration in original). In the light of the above-listed factors, it is obvious that
such evidence does not exist.
      Job points to scant evidence that would support an inference that Avery
was his employee, rather than his criminal conspirator. He contends that,
because he paid Avery as a part of his business’ normal business operations,
Avery was an employee. Additionally, he contends that Avery’s considering
himself an employee and being “angry at Job for giving him a 1099 [tax] form
[used for reporting income other than wages or salary]” provides sufficient
evidence to warrant the instruction.
      In contrast, the Government points to overwhelming evidence that Avery
was not Job’s employee. Job did not: control Avery’s marketing activities;
provide Avery with training; set Avery’s hours of work; or require him to work
full-time. The bulk of Avery’s work, recruiting patients, was not done on Job’s
business premises. Job did not pay all of the expenses; they were split between
Avery and Job. Finally, Job did not pay Avery by the hour, week, or month;
payment was made by commission, i.e., kickback. In short, there was not enough
evidence for a reasonable juror to find Avery was an employee. See United
States v. Norton, 17 F. App’x 98, 102 (4th Cir. 2001) (unpublished) (holding, in
the context of a different safe-harbor provision section of 42 C.F.R. § 1001.952,
that, where defendant “failed to present sufficient evidence of this affirmative



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                                   No. 09-50054

defense, the district court did not have to instruct the jury on that defense”
(citing United States v. Bailey, 444 U.S. 394, 414-15 (1980))).
      Therefore, there was no error. Accordingly, our plain-error review ends.
                                         4.
      Job next claims the evidence was insufficient to support his convictions on
three counts of health-care fraud under 18 U.S.C. § 1357. The health-care fraud
charges were based on Job’s providing lesser-value equipment (scooters) to
beneficiaries while billing Medicare for higher-value power wheelchairs and
wheelchair accessories.
      “When an insufficiency of the evidence claim of error is properly preserved
through a motion for judgment of acquittal at trial, review is de novo.” United
States v. McDowell, 498 F.3d 308, 312 (5th Cir. 2007) (citing United States v.
Ragsdale, 426 F.3d 765, 770 (5th Cir. 2005)). Here, Job preserved this claim by
moving for judgment of acquittal both at the close of the Government’s case and
at the close of defendants’ evidence. (Arguably, Job’s motion at the close of the
Government’s case was not a sufficient motion for judgment of acquittal because
the only basis presented, without providing any analysis or other discussion, was
whether “there [was] sufficient evidence to sustain a conviction”. See McDowell,
498 F.3d at 312-13 (discussing requisite specificity of basis of motion). Likewise,
his motion at the conclusion of defendants’ evidence was simply “for the same
reasons . . . stated” in his prior motion.)
      Review de novo of a sufficiency-of-the-evidence claim determines “whether,
after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt”. United States v. Bellew, 369 F.3d 450, 452 (5th Cir. 2004)
(quoting Jackson v. Virginia, 443 U.S. 301, 319 (1979)).          “In applying this
standard, we view the evidence in the light most favorable to the prosecution
and accept all reasonable inferences that tend to support the verdict.” United

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                                  No. 09-50054

States v. Broadnax, 601 F.3d 336, 343 (5th Cir. 2010) (quoting United States v.
Ekanem, 555 F.3d 172, 174 (5th Cir. 2009)). Along that line, credibility choices
are, of course, for the jury. E.g., United States v. Mata, 491 F.3d 237, 242 (5th
Cir. 2007).
      Job contends that the Government failed to prove he knowingly and
willfully provided lesser-value scooters instead of the power wheelchairs for
which he billed Medicare. He does not contest that his company did deliver
lesser-value equipment rather than the wheelchairs billed to Medicare; rather,
Job asserts there was insufficient proof he was aware of the fraudulent billing.
      This contention is without merit. Job was the sole proprietor of Richmond
Medical. In his enrollment agreement with Medicare, he established himself as
the sole person responsible for his company’s billings. All funds received from
Medicare were deposited directly into Job’s bank account, for which he was the
only signatory. Further, Richmond Medical retained the original CMNs
submitted to Medicare, which showed that Medicare was billed for the
wheelchairs. Therefore, the evidence was sufficient for a reasonable juror to find
that Job was aware that Medicare was billed for wheelchairs.
      The evidence was also sufficient for a rational trier of fact to find that Job
was aware that scooters, rather than wheelchairs, were delivered to the
beneficiaries. Again, because Job was the sole proprietor of Richmond Medical,
and as otherwise discussed supra, a reasonable juror could find Job was aware
scooters were delivered by his company.
                                        5.
      Finally, Job contends the court erred in calculating his sentence. He
asserts that the court calculated his sentence based on conspiracy to commit
health-care fraud, a crime for which he was not charged. (As discussed, the
conspiracy charged in the indictment concerned paying kickbacks in violation of
42 U.S.C. § 1320a-7b(b)(2)(A).)     He maintains that, to establish a loss to

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                                  No. 09-50054

Medicare based on fraud, the Government must establish: the beneficiaries who
received power wheelchairs were not entitled to them; and Job knew these
beneficiaries were not entitled to them when Medicare was billed.
      Job’s assertion is without merit. His sentence, inter alia, was based on
Guideline § 1B1.3(a) (relevant conduct), which allows being sentenced based on
“all reasonably foreseeable acts and omissions of others in furtherance of the
jointly undertaken criminal activity”. As a result of the application of this
Guideline, Job received a 14-level adjustment to his offense level for the
improper benefit derived from Medicare—$860,096.23. Therefore, at issue is
whether Job’s sentence, based on the application of § 1B1.3, was proper.
      Job states our review is only for plain error; but we, of course, determine
our standard of review. E.g., United States v. Rodriguez, 602 F.3d 346, 351 (5th
Cir. 2010). We need not determine whether this issue was forfeited. Because,
for the following reasons, we find no error, Job’s claim fails.
      Along that line, an amount-of-loss calculation is a factual decision
reviewed only for clear error. E.g., United States v. Reasor, 541 F.3d 366, 369
(5th Cir. 2008) (citing United States v. Humphrey, 104 F.3d 65, 71 (5th Cir.
1997)). The “amount of loss need not be determined with precision”. Id. (citing
United States v. Edwards, 303 F.3d 606, 645 (5th Cir. 2002)). “[A]ll that is
necessary is that the finding be plausible in light of the record as a whole”. Id.
(quoting Edwards, 303 F.3d at 645) (internal quotations omitted).
      As stated supra, contrary to Job’s assertion that the Government must
show he knew the beneficiaries were not entitled to the power wheelchairs,
under the applied Guideline, Job can be sentenced on the basis of any reasonably
foreseeable acts which are part of a common scheme or plan.              U.S.S.G.
§ 1B1.3(a). An offense constitutes part of a common scheme or plan if it is
“substantially connected to [other acts] by at least one common factor, such as



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                                  No. 09-50054

common victims, common accomplices, common purpose, or similar modus
operandi”. U.S.S.G. § 1B1.3, comment. (n.9).
      The presentence investigation report (PSR) contained statements that Job,
Avery and Adebiyi were involved in a conspiracy involving health-care fraud and
anti-kickback violations. The PSR also stated: Avery was paid by Job for
“marketing consulting”; and Job directed Avery to recruit patients for his
company and provided money to Avery, so that Avery could pay the recruiters
and the physician after the patients were examined; and Avery hired recruiters
to solicit patients for the purpose of providing a wheelchair, with the knowledge
that Job and Adebiyi’s companies were submitting fraudulent billings to
Medicare. According to the PSR, “[a]fter beneficiaries received a wheelchair, Job
paid Avery a commission of between $1,200 and $1,500 per patient”.
      Further, the PSR stated that most of the recipients “did not need the
wheelchairs or use them with regularity”. Consequently, the PSR established
that part of the common scheme of which Job was a participant was to recruit
individuals with valid Medicare numbers, who did not have the requisite medical
need for a power wheelchair. Because no testimony or other evidence was
submitted to rebut the information in the PSR, the district court was free to
adopt the PSR’s findings without further inquiry or explanation. United States
v. Mir, 919 F.2d 940, 943 (5th Cir. 1990) (citing United States v. Mueller, 902
F.2d 336, 346 (5th Cir. 1990)).
      Job’s involvement in the fraud falls within the ambit of a common scheme
or plan. His connection with Avery and Dr. Anthony was clearly laid out both
at trial and in the PSR. Accordingly, the Government was not required to prove
that Job had personal knowledge that the recipients were not entitled to the
wheelchairs.   Rather, the Government need only show it was reasonably
foreseeable to Job that recipients were fraudulently being prescribed
wheelchairs. Certainly, the statements in the PSR and the evidence introduced

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                                  No. 09-50054

at trial established, by a preponderance of the evidence, that the fraudulent
claims to Medicare were reasonably foreseeable to Job. Therefore, the court did
not err in calculating his sentence based on that relevant conduct.
                                        B.
      Dr. Anthony’s only challenge to his conviction for violation of the Medicare
Anti-Kickback Act is that there was insufficient evidence to support his
conviction. He contends the Government failed to prove he knowingly and
willfully violated the law by receiving payments intended to induce referrals.
      Because, in district court, Dr. Anthony also properly preserved this
claimed error, the standard of review is, as stated supra, “whether, after viewing
the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt”. Bellew, 369 F.3d at 452 (quoting Jackson, 443 U.S. at 319). As also
discussed supra, “we view the evidence in the light most favorable to the
prosecution and accept all reasonable inferences that tend to support the
verdict”. Broadnax, 601 F.3d at 343 (quoting Ekanem, 555 F.3d at 174). Again,
in that regard, credibility choices are for the jury. Mata, 491 F.3d at 242.
Pursuant to this standard of review, it is obvious there was sufficient evidence
from which a reasonable juror could find Dr. Anthony possessed specific intent.
      Dr. Anthony explained to Job that he was aware of Medicare’s procedures
and requirements, particularly the requirement of a CMN; therefore, the
evidence showed he was aware of the law’s requirements. Further, the evidence
showed Dr. Anthony “assessed” beneficiaries in a perfunctory fashion. Avery
testified that, at the Smithville hotel, Dr. Anthony would “ask [the beneficiaries]
a few questions, tap them in the back, hit them on their knee, take their blood
pressure, and [say] next”. He conducted no further tests.
      Moreover, the nature of his assessments showed his guilty knowledge. His
“assessments” of beneficiaries took place in group homes, hotels, and, in one

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                                  No. 09-50054

instance, a church.    Dr. Anthony told Avery he needed to hide where the
assessments took place, and he subsequently produced a prescription pad with
Job’s Richmond Medical name and address in the heading, despite not
conducting “assessments” there.
      Moreover, the beneficiaries’ lack of medical need supports the inference
that Dr. Anthony was motivated by the kickbacks and intended to violate the
law by writing prescriptions.     In order to legitimately qualify for a power
wheelchair, a person was required to have a muscular problem that would
prevent him from being able to operate a manual wheelchair. Avery testified
that, for the beneficiaries in Smithville: “Nobody came in wheelchairs. Nobody
came on crutches. They all walked in; they all got out of cars.” In fact, Avery
testified that, on one occasion, “Dr. Anthony got so angry because he was seeing
a lot of patients and they all [came] walking in there and he instructed me to tell
the marketers, ‘[L]ook, you need to tell these damn people they need to bend over
or walk slow or act like they are limping or something, they got to do their part’”.
      Finally, Dr. Anthony was paid only for patients for whom he wrote a
prescription for a power wheelchair; if they did not pass his “assessment”, he was
not paid his $250 fee. He prescribed a wheelchair for every beneficiary he
“assessed”. He was paid in cash for these assessments, and he did not bill
Medicare for them. He told Avery he did not mind taking long-distance trips to
see large groups of beneficiaries because the money he received was greater than
what he would receive from Medicare.
      Again, in the light of the foregoing, a reasonable juror could have found
beyond a reasonable doubt that Dr. Anthony possessed the requisite intent.
                                        III.
      For the foregoing reasons, the judgments are AFFIRMED.




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