                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 06-3304
UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,
                                v.

BRUNO CHOINIERE,
                                             Defendant-Appellant.
                         ____________
        Appeal from the United States District Court for the
        Northern District of Indiana, South Bend Division.
                No. 05 CR 56—Allen Sharp, Judge.
                         ____________
     ARGUED MAY 31, 2007—DECIDED FEBRUARY 28, 2008
                         ____________


 Before POSNER, KANNE, and WILLIAMS, Circuit Judges.
   WILLIAMS, Circuit Judge. Chiropractor Bruno Choiniere
developed what he terms a back “brace” and the govern-
ment deems a back “belt,” and he billed Medicare,
Medicaid, and private insurance companies over $1000
each time he prescribed it. The government maintained
it was worth about $50, and a jury convicted Choiniere
of health care fraud, fraudulent concealment of health
care benefits, and money laundering. On appeal, Choiniere
argues that the district court committed reversible error
when it refused to give two of the proposed intent to
defraud jury instructions that he tendered. Because the
2                                                 No. 06-3304

instructions the jury received already conveyed the theo-
ries in Choiniere’s proposed instructions, and the failure to
give the instructions did not deny him a fair trial, we find
no error in the decision not to give the jury the two instruc-
tions. We also affirm the sentencing enhancement
Choiniere received for using minors in furtherance of his
scheme, as the district court was entitled to credit the
testimony of the minors’ mother and grandmother that
Choiniere had solicited the minors’ assistance. Therefore,
as we discuss in more detail below, we affirm the judgment
of the district court.


                    I. BACKGROUND
  Choiniere, a native of Quebec, worked as a chiropractor
in Canada for seven years. In 1999, he moved to South
Bend, Indiana, obtained his Indiana chiropractor’s li-
cense, and began working at his brother’s chiropractic
clinic. Choiniere left his brother’s clinic in late 2002
and started practicing at an alternative health clinic in
South Bend.
  After hearing patients’ complaints of back braces that
were too rigid, Choiniere developed his own back belt, one
primarily made of leather, a few strips of thin plastic,
and velcro. Choiniere also developed a neck pillow and a
back pillow made of fabric and batting. Choiniere began
dispensing the belt and pillows to patients at the clinic who
complained of back pain. In early 2003, Choiniere submit-
ted a $49.95 bill to Medicare for the neck pillow, but
Medicare refused to pay it. Choiniere soon began to bill
Medicare and Indiana Medicaid $1040 for his back belt,
submitting it under the code for a “custom-fitted lumbral
sacral orthosis.” Later that year, he started billing $1370 for
No. 06-3304                                                  3

the same belt. To do so, he submitted the bills under
a different code, now representing that his belt was a
“custom-fabricated molded-to-patient lumbar-sacral
support.”
  A Medicare coding expert, a neurosurgeon, a certified
orthotist, and two chiropractors, however, all testified at
trial that the belt did not fall within either category.
The belt was neither custom fabricated nor molded to
patients; instead, it was manufactured in mass quantities
and standardized sizes. In addition, the belt did not
immobilize the lumbar-sacral region of the spine. The
witnesses said that at best, the belt was a prefabricated
lumbar support, similar to a weightlifting belt, that
should have been billed for less than $50 if actually dis-
pensed.
  Choiniere eventually left the health clinic and went
out on his own. From 2003 through 2005, he traveled
throughout Indiana and Michigan and held what he
termed “back pain relief clinics.” Choiniere targeted
persons who were elderly, low-income, or had disabilities
to attend his “clinics,” where the preferred method of
treatment was Choiniere’s back belt. He performed only
very cursory physical examinations, or sometimes none
at all, and little or no health history was taken. In less than
two years, Choiniere billed Medicare, Indiana Medicaid,
and private insurance companies approximately $2 million
for the back belt he had developed. He was paid more than
$1.5 million.
  Choiniere offered patients free food at many of the clinics
and sometimes a free short massage from a massage
therapist. Some clinic attendees also testified that they had
received free neck and back pillows. Paul Pasman and
Sandra Simmons-Bauman assisted Choiniere at the clinics.
4                                               No. 06-3304

They worked on commission and received between $75
and $140 per belt sold.
  A jury convicted Choiniere of health care billing fraud,
money laundering, and fraudulent concealment of over-
payment of health care benefits. At sentencing, the dis-
trict court imposed a two-level enhancement for using
minors to further his scheme. Two witnesses had testified
that Choiniere offered free movie tickets to two children,
aged seven and eleven, in exchange for their help in
passing out fliers advertising a clinic. The district court
credited this testimony when it imposed the enhancement.
Choiniere received a sentence of 151 months’ imprison-
ment, followed by two years of supervised release. The
district court also ordered him to pay $1,580,582 in restitu-
tion. He now appeals.


                      II. ANALYSIS
    A. Proposed Jury Instructions
  Choiniere maintains that he should receive a new trial
because the district court refused to give the jury two
instructions he proposed. We review a district court’s
refusal to give a requested jury instruction de novo. United
States v. Prude, 489 F.3d 873, 882 (7th Cir. 2007). Although
a defendant may have the jury consider any theory of
defense that is supported by law and fact, a defendant is
not automatically entitled to a particular jury instruction.
United States v. James, 464 F.3d 699, 707 (7th Cir. 2006).
Rather, to warrant a specific theory of defense instruction,
the defendant must demonstrate: (1) the instruction is a
correct statement of the law; (2) the evidence in the case
supports the theory of defense; (3) the theory is not already
part of the charge; and (4) the failure to provide the
No. 06-3304                                                 5

instruction would deny the defendant a fair trial. Id. (citing
United States v. Fiedeke, 384 F.3d 407, 410 (7th Cir. 2004)).


    1. Choiniere’s Proposed Instruction No. 9
  Paragraph 21 of the indictment charged in part that
Choiniere “advertised and held meetings at which patients
could receive free food, free back massages, and free neck
and back pillows, which is a violation of the applicable
rules and regulations to solicit patients in this way.” In
light of this charge, Choiniere argues that the district court
erred when it refused to give an instruction he proposed
that said:
    Federal regulations controlling payments made
    [by] federal medicare or state medicaid health care
    programs do not prohibit the giving of incentives
    by health care providers that are of “nominal
    value.” The Office of Inspector General defines
    “nominal value” as no more than $10.00 per item or
    $50.00 in the aggregate to any one beneficiary on an
    annual basis.
  Choiniere testified at trial that he had read an August
2002 special advisory bulletin published by the Office of
Inspector General (OIG) of the Department of Health and
Human Services, and that he took it to mean he could
give gifts in the amounts specified in his proposed instruc-
tion. See 67 Fed. Reg. 55855-56, Office of Inspector General,
“Special Advisory Bulletin: Offering Gifts and Other
Inducements to Beneficiaries,” August 2002. The bul-
letin, introduced into evidence, states that the OIG inter-
preted the Health Insurance Portability and Accountability
Act (HIPAA) to permit Medicare or Medicaid providers to
offer beneficiaries inexpensive gifts or services without
6                                                No. 06-3304

violating the statute. In addition, the bulletin defines
“inexpensive gifts or services” as those that have a retail
value of no more than $10 individually, and no more than
$50 in the aggregate annually per patient—the same
amounts in Choiniere’s proposed instruction. And al-
though the bulletin deals with civil penalties under
HIPAA, not the criminal statutes with which Choiniere had
been charged, the government states that the instruction,
standing alone, may have been a correct statement of law.
  Nonetheless, the government maintains that the evidence
in this case does not support the theory reflected in the
instruction. Cf. United States v. Al-Shahin, 474 F.3d 941, 948
(7th Cir. 2007) (finding no error in refusal to give instruc-
tion when evidence did not support it); United States v.
Hendricks, 319 F.3d 993, 1006 (7th Cir. 2003) (same). We
agree, as Choiniere provided items of value above the $10
per item and $50 per patient cut-offs that his proposed
instruction deemed acceptable. Multiple witnesses testified
that they had been offered or received a free neck pillow,
and Choiniere himself had valued the neck pillow at $49.95
in February 2003—well above the $10 per item threshold.
Choiniere also provided free Subway sandwiches, chips,
drinks, doughnuts, and a short massage to patients.
Choiniere did not provide items of merely nominal value
to the patients at his clinics.
  In addition, a defendant seeking a proposed instruction
must demonstrate that the charge to the jury did not
already encompass the theory contained in the proposed
instruction. Prude, 489 F.3d at 882. In analyzing whether the
defendant has made this showing, we look at the instruc-
tions as a whole to determine whether they adequately
informed the jury of the theory of defense. Id. The rationale
behind Choiniere’s proposed jury instruction no. 9 is that
No. 06-3304                                                7

he had read regulations leading him to believe that he
could give items that did not exceed thresholds of $10 per
item or $50 per person per year; as a result, he maintains
that he did not intentionally violate the law.
  We conclude that the instructions the jury received
contained Choiniere’s theory that he did not have the
intent to defraud. In particular, the jury received an
instruction (instruction no. 25) that stated:
   During this trial there has been extensive evid-
   ence as to government regulations concerning
   health care claims with the government. If you find
   from the evidence that there was a failure of the
   defendant to comply with the various administra-
   tive regulations, this is not automatically an act of
   health care fraud. The defendant must act with
   intent to defraud.
Another instruction informed the jury that to convict
Choiniere, the government needed to prove both that
there was a scheme to defraud and that Choiniere partici-
pated in the scheme knowingly and with intent to de-
fraud. The instruction further defined “intent to defraud”
to mean “that the acts charged were done knowingly
with the intent to deceive or cheat the victims in order to
cause a gain of money or property to the defendant.” These
two instructions conveyed to the jury Choiniere’s theory
that he acted without the intent to defraud. If the jury
had believed Choiniere’s testimony that he had consulted
applicable regulations and materials and attempted in
good faith to comply with them, the instructions the
jury received informed it that acquittal was proper. See
James, 464 F.3d at 707 (“[T]his theory of defense was
intrinsically part of the charge and the failure to provide
these instructions did not deny [the defendant] a fair
8                                                 No. 06-3304

trial.”); United States v. Schwartz, 787 F.2d 257, 265 (7th Cir.
1986) (finding district court did not err in refusing to give
instruction that stated a theory of defense already embod-
ied in different language in other jury instructions).
  Finally, the failure to give this instruction to the jury
did not deny Choiniere a fair trial. The district court
properly instructed the jury on each of the elements
necessary to convict Choiniere of the charges presented to
the jury. The district court also allowed Choiniere to
introduce the OIG bulletin as an exhibit at trial. In addition,
when the district court rejected Choiniere’s proposed
instruction no. 9 at the jury instruction conference, it also
explicitly told the defense that arguments could be made
concerning the inexpensive gift regulations during closing
argument. And the defense did so. Soon after pointing to
instruction no. 25, Choiniere’s counsel argued that provid-
ing food and pillows did not violate Medicare regulations.
He also referenced the bulletin exhibit and argued that
Choiniere had not acted with the intent to defraud because
he had read that gifts of no more than $10 individually or
$50 in the aggregate were exempted. See United States v.
White, 472 F.3d 458, 462 (7th Cir. 2006) (finding the defen-
dant was not denied a fair trial in part because the district
court allowed the defendant to argue his theory of defense
to the jury). We also note that whether Choiniere offered
patients things of value was a minor issue, at best, during
the trial. Instead, the trial focused on the government’s
allegation that Choiniere fraudulently billed for hundreds
of back belts, and the government’s evidence of coding
fraud was overwhelming. The district court committed no
error when it declined to give proposed instruction no. 9.
No. 06-3304                                                9

    2. Choiniere’s Proposed Instruction No. 10
  Choiniere also maintains the district court incorrectly
refused to give his proposed instruction no. 10. This
instruction read:
    Although it is a violation of law for any person to
    offer or to knowingly and willfully offer or pay any
    remuneration to induce a person to refer a person
    for the furnishing of any item for which payment
    may be made under a federal health care program,
    this prohibition does not apply to any amount
    paid by an employer to an employee.
Choiniere maintains that the jury should have received this
instruction because it heard testimony that he paid com-
missions, based on the number of belts sold, to persons
who helped him sell the belt. In addition, he points out that
the government asserted in its opening statement that it
was wrong to solicit patients “[b]ecause you want people
to get the healthcare they need . . . not on the basis of
whether or not they feel obligated because they took a free
Subway sandwich or got a massage from a therapist who
was paid on commission if they got a brace. That, too, was
unethical and a fraud.” Neither party mentioned the
commission payments in its closing argument.
  As with proposed instruction no. 9, we conclude that
the district court did not err when it declined to give
proposed instruction no. 10. First, although the instruction
is a correct statement of law, it is not a statement of law
that is relevant in this case. The United States Code pro-
vides that it is generally a felony to
    knowingly and willfully solicit[ ] or receive[ ] any
    remuneration (including any kickback, bribe, or
10                                                 No. 06-3304

     rebate) directly or indirectly, overtly or covertly, in
     cash or in kind—
         (A) in return for referring an individual to
         a person for the furnishing or arranging for
         the furnishing of any item or service for
         which payment may be made in whole or
         in part under a Federal health care pro-
         gram.
42 U.S.C. § 1320a-7b(b)(1)(A). As the proposed instruction
conveys, no crime occurs, however, when “any amount
[is] 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.” 42 U.S.C. § 1320a-7b(b)(3)(B).
  The indictment in this case, however, did not charge
Choiniere with making improper payments to persons
who helped him sell the belt, nor did it make any men-
tion of these payments. As in White, 472 F.3d at 462,
then, the jury instruction, “even if it were construed as a
theory, does not reflect a theory that has any evidentiary
support because it is entirely non-responsive to the conduct
that was alleged in the indictment.”
  Furthermore, as was the case with proposed instruc-
tion no. 9, the instructions the jury received embodied the
theory of defense Choiniere sought to have the jury con-
sider through his proposed instruction no. 10. Simply
paying remuneration to employees for referrals was
insufficient to convict him of health care billing fraud,
money laundering, and fraudulent concealment of over-
payment of health care benefits. But the instructions the
jury received, and in particular, instruction no. 25, dis-
cussed above, made clear that convictions required the
No. 06-3304                                                11

jury to find that Choiniere had acted with the intent
to defraud. The district court’s decision not to give
Choiniere’s proposed instruction no. 10 was also not
erroneous.


  B. Sentencing Enhancement for Using Minors
  Finally, Choiniere argues that the district court erred
when it enhanced his sentence for using minors to fur-
ther his fraud scheme. We review findings of fact and
applications of the United States Sentencing Guidelines for
clear error. United States v. Stitman, 472 F.3d 983, 986 (7th
Cir. 2007).
  Section 3B1.4 of the Guidelines provides that “[i]f the
defendant used or attempted to use a person less than
eighteen years of age to commit the offense or assist
in avoiding detection of, or apprehension for, the offense,
increase by 2 levels.” Application Note 1 to this provision
states that “ ‘[u]sed or attempted to use’ includes directing,
commanding, encouraging, intimidating, counseling,
training, procuring, recruiting, or soliciting.” To warrant
this enhancement, the defendant must have personally
committed some affirmative act. United States v. Acosta, 474
F.3d 999, 1003 (7th Cir. 2007).
  The district court enhanced Choiniere’s sentence after
finding that he asked two minors to pass out fliers advertis-
ing his clinic. As an initial matter, a minor need not know
that an activity is illegal for the enhancement to apply.
United States v. Shearer, 479 F.3d 478, 483 (7th Cir. 2007).
Rather, the enhancement “focuses on whether the defen-
dant used a minor in the commission of the crime, not
whether the minor knew that he was being used to commit
12                                                No. 06-3304

a crime.” United States v. Ramsey, 237 F.3d 853, 861 (7th Cir.
2001).
  At trial, there was conflicting testimony as to whether
minors passed out fliers advertising one of Choiniere’s
clinics under his direction. Amy Mellott, the mother of
the two minors in question, testified that Choiniere of-
fered her children movie tickets in exchange for their
agreement to pass out fliers advertising his clinic. Sandra
Marshall, the minors’ grandmother, also said that the
minors had been offered movie tickets in return for hand-
ing out the fliers. Choiniere and Pasman, however, testified
they had not offered any movie tickets to the children in
return for passing out the fliers. This conflict in testimony
was a classic credibility determination for the district court
to resolve, and it was entitled to credit the testimony from
Mellott and Marshall as it did. See United States v. Ortiz, 431
F.3d 1035, 1039 (7th Cir. 2005).
   Finally, Choiniere argues that there was no evidence that
criminal acts took place at the Waterfalls Apartment clinic
for which the children had distributed fliers. Multiple
witnesses, however, testified that they lived at the complex,
attended one of Choiniere’s “back pain relief” clinics there,
and gave their insurance information after Choiniere
dispensed a back belt to them. Documents submitted at
trial also showed that Choiniere fraudulently billed for the
belts dispensed at Waterfalls Apartments. As a result, the
district court’s decision to enhance Choiniere’s sentence
two levels for the use of minors to promote his scheme
was not clearly erroneous.
No. 06-3304                                           13

                  III. CONCLUSION
  For the foregoing reasons, the judgment of the district
court is AFFIRMED.




                  USCA-02-C-0072—2-28-08
