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

                                    No. 16-31119
                                                                        Fifth Circuit

                                                                      FILED
                                                               January 30, 2018

UNITED STATES OF AMERICA,                                        Lyle W. Cayce
                                                                      Clerk
             Plaintiff - Appellee

v.

DOCTOR PRAMELA GANJI; ELAINE DAVIS,

             Defendants - Appellants




                Appeals from the United States District Court
                    for the Eastern District of Louisiana


Before STEWART, Chief Judge, and KING and JONES, Circuit Judges.
CARL E. STEWART, Chief Judge:
      After an eight-day jury trial, Defendants, Dr. Pramela Ganji and Elaine
Davis, were convicted of conspiracy to commit health care fraud, in violation of
18 U.S.C. § 1349, and health care fraud, in violation of 18 U.S.C. § 1347.
Defendants now appeal their convictions and sentences. For the reasons that
follow, we REVERSE and VACATE.


                              I.      BACKGROUND
      Christian Home Health Care (“Christian”) was a home health agency
owned by Elaine Davis and her husband, Walter Davis, Sr. since 1989.
Christian provided home health care services to patients in Southern
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                                       No. 16-31119
Louisiana. Home health care services are those skilled nursing or therapy
services provided to individuals who have difficulty leaving the home without
assistance. These services are commonly provided to senior citizens.
      The process for receiving home health care services begins when a
physician identifies a patient as an eligible candidate. Usually, although not a
legal requirement, a patient’s primary care physician (“PCP”) refers her for
home health services. Then a nurse goes to the patient’s home to assess if she
is homebound, completing an Outcome and Assessment Information Set
(“OASIS”). The nurse then develops a plan of care based on the OASIS and
forwards that document to a physician for approval. This is typically the same
physician who initiated the process. In 2011, Medicare implemented a face-to-
face requirement to further ensure that medical professionals would not order
home health care without ever seeing the patient. This required medical
professionals to actually see the patient for the initial meeting, but “[t]he face-
to-face patient encounter may occur through telehealth in person.” 1
Regulations allow for medical professionals who are not physicians to complete
the face-to-face encounter, but the professionals have to be under the
supervision of a physician. A medical professional certifies that they completed
this encounter by completing a face-to-face addendum. The agency then sends
the addendum with the Form 485 certification forms, which were used to
certify patients for home health care to Medicare for reimbursement. If the
professional determines the patient is homebound, the agency staff




      1   42 C.F.R. 424.22(a)(v)(B).
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                                       No. 16-31119
immediately provides that care. 2 The staff member keeps the certifying doctor
updated and notifies her if the patient’s needs change. 3
       In order to provide these services, Christian employed an administrative
team and medical professionals, including clinical supervisors, registered
nurses, licensed practical nurses, home health aides, medical consultants, and
medical directors. Medical directors were practicing physicians who contracted
with Christian to provide services including nurse training, medical advice,
and patient care. The directors also certified patients for home health care.
Christian paid medical directors $1,000 per month in exchange for their
services and throughout the years, it contracted with many physicians. In
2010, Christian hired Dr. Ganji as a medical director in the New Orleans area.
Dr. Ganji was a physician who owned a private practice and had previously
worked in nursing homes and with other home health care agencies. To assist
her with her new and continuing duties, Dr. Ganji entered into a collaborative
agreement with Nurses Per Diem, an organization of nurse practitioners, to
provide home visits to homebound patients. Cynthia Kudji, the nurse
practitioner with whom Dr. Ganji closely worked, performed many of the initial
face-to-face encounters. In 2012, Christian opened an office fifty miles north,
in Ponchatoula to better serve the Hammond area. It later hired Dr. Winston
Murray, Louella Hendricks, Kim Robinson, Kimberley Celestine, and Betty
Walls. Although Christian had fewer than twenty-five patients when the


       2  Although federal and state governments audit agencies, the regulations do not
require a government representative to verify that a patient is homebound before services
are reimbursed.
        3 If after sixty days the nurse believes the patient still needs home health care, the

process begins again at the OASIS stage, but no face-to-face form is required. See 42 C.F.R.
424.22(a)(v) (“A face-to-face patient encounter, which is related to the primary reason the
patient requires home health services, [must occur] no more than 90 days prior to the home
health start of care date or within 30 days of the start of the home health care and [must be]
performed by a physician or allowed non-physician practitioner as defined in paragraph
(a)(1)(v)(A) of this section.”).
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Davises bought the company out of bankruptcy, between 2007 and 2015, the
years the conspiracy to commit health care fraud allegedly took place,
Christian cared for 350–400 patients at any given time.
       In 2007 the United States Justice Department established a Medicare
fraud task force. 4 Since then, more than 400 individuals have been prosecuted
for defrauding the health care program of $1.3 billion. Notably, an individual
who is a shadow in the current cast of characters was swept up in this
crackdown: Mark Morad. 5 Morad owned and operated a home health empire
in Southern Louisiana that toppled when he was indicted and pled guilty to
defrauding Medicare of millions of dollars. When that regime fell, other
agencies scrambled to scavenge Morad’s patients and provide work for those
former Morad employees who the Government had not publicly implicated in
the conspiracy. Christian was one of these agencies.
       The Government’s discovery of the alleged Christian scheme was rather
peculiar. The FBI initiated an investigation after one of Christian’s patients,
Simone Joseph, filed a complaint. Joseph was the plaintiff in an unrelated
personal injury lawsuit, and that suit revealed that her medical history
included false statements. She complained that co-defendant, Dr. Godwin




       4  Press Release, Dep’t of Justice, National Health Care Fraud Takedown Results in
Charges Against Over 412 Individuals Responsible for $1.3 Billion in Fraud Losses, (July 13,
2017), https://www.justice.gov/opa/pr/national-health-care-fraud-takedown-results-charges-
against-over-412-individuals-responsible; see also Rebecca Ruiz, U.S. Charges 412, Including
Doctors, in $1.3 Billion Health Fraud, N.Y. TIMES (July 13, 2017),
https://www.nytimes.com/2017/07/13/us/politics/health-care-fraud.html.
        5 Mark Morad was the owner of three corporations “purportedly engaged in the

business of providing home health services to Medicare beneficiaries.” United States v.
Morad, No. CRIM.A. 13-101, 2014 WL 68704, at *1 (E.D. La. Jan. 8, 2014). In 2013, he and
four other individuals were charged with conspiracy to commit health care fraud and
conspiracy to pay and receive health care kickbacks in violation of 18 U.S.C. § 371. Id. Mark
Morad pled guilty to conspiracy to commit health care fraud and conspiracy to falsify records
in a federal investigation on December 17, 2014.
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                                 No. 16-31119
Ogbuokiri, billed Medicare multiple times although she had only seen him
once.
        The subsequent investigation into Joseph’s claims uncovered a scheme
where, according to the Government, Christian employees recruited Medicare
beneficiaries in exchange for incentives, which ranged from $100 bonuses to
trips to Las Vegas, Nevada. To receive the incentives, Christian employees had
to recruit prospective patients who were both eligible for Medicare and
immediately ready for Christian hospice or home health care services. If the
PCP did not certify the patient or the patient did not have a PCP, Christian’s
medical directors would do so. From January 2007 through January 2015,
Christian submitted 14,891 claims for home health care and related services
to Medicare. These claims were worth approximately $33,232,134, and
Medicare paid around $28,265,071 on those claims.
         The investigation resulted in an indictment charging:
          • Davis, Dr. Ganji, and Dr. Ogbuokiri with conspiracy to commit
             health care fraud, in violation of 18 U.S.C. § 1349 (Count One);
          • Davis and Dr. Ogbuokiri with health care fraud, in violation of 18
             U.S.C. § 1347 for submitting fraudulent Medicare claims with
             regard to Simone Joseph (Count Two);
          • Davis and Dr. Ogbuokiri with health care fraud, in violation of 18
             U.S.C. § 1347 for submitting fraudulent Medicare claims with
             regard to Leon Pate (Count Three);
          • Davis and Dr. Ganji with health care fraud, in violation of 18
             U.S.C. § 1347 for submitting fraudulent Medicare claims with
             regard to Carolyn Stewart (Count Four); and
          • Davis and Dr. Ganji with health care fraud, in violation of 18
             U.S.C. § 1347 for submitting fraudulent Medicare claims with
             regard to Jean Wright (Count Five).
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      During the trial, the Government presented testimony from case
investigators, former Christian nurses and doctors, Dr. Ogbuokiri’s patients,
and Dr. Jan Cooper, Carolyn Stewart’s PCP. Much of the Government’s case
hinged on the testimony of its cooperating witnesses, Dr. Murray, Louella
Hendricks, and Kimberley Celestine, who admitted to fraudulently certifying
patients for home health care. In the scheme, Hendricks and Celestine referred
patients to Christian, taking the certification form to Dr. Murray for
certification. Without extensive review of the patient’s record or thorough
inquiry into their homebound status, Dr. Murray signed the documents.
Christian nurses, usually those who certified the patient, would then perform
services for individuals who were ineligible and Christian would receive
Medicare payments.
      The Government’s dependence on these witnesses is almost as peculiar
as the scheme’s discovery. Notably, these individuals worked in the Hammond
area, while Dr. Ganji and Davis worked sixty miles away in the New Orleans
area. Additionally, Celestine and Hendricks worked together for Morad’s
agencies before coming to Christian. Furthermore, Celestine and Hendricks’s
working relationship with Dr. Murray predated their move to Christian. When
the nurses left their former employer for Christian, they immediately took the
patients they brought with them to Dr. Murray for certification. Unlike other
salient cases involving conspiracy to commit health care fraud, here the
Government presented eighteen witnesses, none of whom could provide direct
evidence of their alleged co-conspirator’s actions because the witnesses never
acted with the defendants to commit the specific charged conduct.
      At the close of the Government’s case-in-chief, the parties all filed Rule
29 motions for judgment of acquittal and renewed the motions before
deliberations. The district court denied these motions. Following the trial, the
jury convicted Dr. Ganji and Davis of Count 1 (conspiracy to commit health
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                                     No. 16-31119
care fraud) and Count 4 (health care fraud with regard to Stewart) and
returned not-guilty verdicts on all of the remaining counts. Dr. Ogbuokiri,
whose patient interaction initiated the investigation, was acquitted of all
charges against him.
       The district court sentenced Dr. Ganji to seventy-two months’
imprisonment, to be followed by two years of supervised release, and ordered
that she pay Medicare $5,048,518 in restitution. The court sentenced Davis to
ninety-six months’ imprisonment, to be followed by two years of supervised
release, and ordered that she pay Medicare $9,305,647.26 in restitution. On
appeal, Dr. Ganji and Davis argue that the district court erred in denying their
motions for acquittal because the evidence presented at trial was insufficient
to support their convictions. They additionally challenge the district court’s
intended loss and restitution calculations. Davis further contends that the
district court erred in allowing evidence of referral fees and crossover
beneficiaries. 6


                                   II.    DISCUSSION
       When a defendant moves for acquittal in the district court, challenging
the sufficiency of the evidence, this Court reviews the district court’s denial de
novo. United States v. Danhach, 815 F.3d 228, 235 (5th Cir. 2016). Appellate
review is highly deferential to the jury’s verdict, and a verdict is affirmed
unless, viewing the evidence and reasonable inferences in light most favorable
to the verdict, no rational jury “could have found the essential elements of the
offense to be satisfied beyond a reasonable doubt.” See United States v. Bowen,
818 F.3d 179, 186 (5th Cir. 2016) (quoting United States v. Roetcisoender, 792


      6  Because the Panel reverses the conviction, we do not address the sentencing issues
and those evidentiary issues challenging the admission of referral fees and crossover
beneficiaries.
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                                 No. 16-31119
F.3d 547, 550 (5th Cir. 2015)); see also United States v. Miles, 360 F.3d 472,
478 (5th Cir. 2004) (vacating a jury conviction when “a rational jury could not
find” an essential element of the crime). Nevertheless, “a verdict may not rest
on mere suspicion, speculation, or conjecture, or on an overly attenuated piling
of inference on inference.” United States v. Pettigrew, 77 F.3d 1500, 1521 (5th
Cir. 1996). Although the jury may make factually based inferences, “a
conviction cannot rest on an unwarranted inference, the determination of
which is a matter of law.” United States v. Fitzharris, 633 F.2d 416, 422 (5th
Cir. 1980).
   A. Conspiracy
      To support a conviction under 18 U.S.C. § 1349, the Government must
prove beyond a reasonable doubt that: “(1) two or more persons made an
agreement to commit health care fraud; (2) that the defendant knew the
unlawful purpose of the agreement; and (3) that the defendant joined in the
agreement . . . with the intent to further the unlawful purpose.” United States
v. Eghobor, 812 F.3d 352, 362 (5th Cir. 2015) (quoting United States v. Grant,
683 F.3d 639, 643 (5th Cir. 2012)).
      Agreements need not be spoken or formal, and the Government can use
evidence of the conspirators’ concerted actions to prove an agreement existed.
See Grant, 683 F.3d at 643. However, an agreement is a necessary element of
conspiracy, and as such, “the Government must prove [its existence] beyond a
reasonable doubt.” United States v. Arredondo-Morales, 624 F.2d 681, 683 (5th
Cir. 1980) (citing Patterson v. New York, 432 U.S. 197, 210 (1977) (“[T]he Due
Process Clause requires the prosecution to prove beyond a reasonable doubt all
of the elements included in the definition of the offense of which the defendant
is charged.”). The Government may establish any element through
circumstantial evidence. See United States v. Willett, 751 F.3d 335, 339 (5th
Cir. 2014). However, “[p]roof of an agreement to enter a conspiracy is not to be
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lightly inferred.” United States v. Johnson, 439 F.2d 885, 888 (5th Cir. 1971).
“Mere similarity of conduct among various persons and the fact that they have
associated with or are related to each other” is insufficient to prove an
agreement. United States v. White, 569 F.2d 263, 268 (5th Cir. 1978).
   1. Dr. Ganji
      Dr. Ganji argues that the evidence was insufficient to sustain a
conviction of conspiracy to commit health care fraud because there was no
evidence of an agreement to defraud Medicare. The Government acknowledges
its lack of direct evidence and instead argues that the circumstantial evidence
sufficiently proved a concert of action, which illustrated a conspiratorial
agreement. The actions the Government based its argument on were: (1) Dr.
Murray’s fraudulent behavior as medical director; (2) Dr. Ganji’s $1,000
monthly check; and (3) her increase in patient referrals.        From this, the
Government argues the jury could have inferred an agreement.
      Conspiracy is the agreement to join a common scheme to commit an
unlawful goal. See Monsanto Co., v. Spray-Rite Serv. Corp., 465 U.S. 752, 754
(1984). “[T]he crime of conspiracy condemns the agreement itself. . . . [T]he
agreement itself is the criminal act.” United States v. Alvarez, 610 F.2d 1250,
1253–54 (5th Cir. 1980). Without an agreement, there is no conspiracy. See id.
Conspirators do not enter into an agreement by happenstance, and because an
agreement is the essential element of conspiracy, an agreement to commit a
crime cannot be lightly inferred. See Johnson, 439 F.2d at 888. “[E]ach party
must have intended to enter into the agreement and the schemers must have
had a common intent to commit an unlawful act.” Alvarez, 610 F.2d at 1255.
      “What people do is logical, albeit, circumstantial, evidence of what lies in
their mind.” Id. at 1256. As such, the law has evolved to accept concerted
action when a formal agreement cannot be found. Nevertheless, this concert of
action must illustrate a “conscious commitment to a common scheme designed
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                                No. 16-31119
to achieve an unlawful objective.” Monsanto, 465 U.S. at 754. The actions and
the surrounding circumstances must be incriminating enough to warrant a
finding that the Government proved the existence of an agreement beyond a
reasonable doubt. See id. The actions surrounding the defendant and the co-
conspirators’ conduct, taken together, must show they intentionally entered
into an agreement. See id.      Concerted action between the conspirators
illustrates that an agreement had to exist because the individuals would not
have otherwise acted in that particular manner. See, e.g., United States v.
Cessa, 785 F.3d 165, 179–80 (5th Cir. 2015) (holding that a defendant would
not have otherwise expected front money for more than 500 pounds of drugs or
believed that the supplier would accept the drugs back after the deal failed if
there was no agreement to participate in a conspiracy to distribute drugs);
Arredondo-Morales, 624 F.2d at 684 (holding that there must have been an
agreement to transport undocumented immigrants into the United States
because the defendant would not have otherwise taken the keys and loaded the
undocumented individuals into the car without further instruction).
      Concert of action can be proven through indirect, circumstantial
evidence. See Tunica Web Advert. v. Tunica Casino Operators Ass’n, 496 F.3d
403, 409 (5th Cir. 2007). However, when proving an agreement exists by using
the concert of action theory, the Government must present evidence of the
conspirators’ individual actions that, taken together, evidence an agreement
to commit an unlawful objective beyond a reasonable doubt. See Monsanto, 465
U.S. at 754; Grant, 683 F.3d at 643–44; Arredondo-Morales, 624 F.2d at 684.
      Although this Court has not frequently decided health care fraud cases
on the basis of concerted action, it has addressed the theory in other criminal
contexts. In Arredondo-Morales, a jury convicted Arredondo-Morales and
twenty-three others of conspiring to encourage and induce the entry of
undocumented individuals into the United States. Arredondo-Morales, 624
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                                No. 16-31119
F.2d at 682. The scheme involved undocumented individuals gathering in
Juarez, Mexico to await the next crossing. Id. When a sufficient amount of
people accumulated, they would meet at a co-conspirator’s house. Id. After
paying the co-conspirator, she would lead the individuals across the river to
the El Paso headgates. Id. Co-conspirators, like Arredondo-Morales, waiting
on the Texas side of the river, would then drive the undocumented individuals
to Denver or Albuquerque. Id. On appeal, Arredondo-Morales conceded that an
agreement existed but contended that there was not sufficient evidence that
she joined that agreement. Id. at 683. We disagreed, holding that the concert
of Arredondo-Morales and her co-conspirators’ actions illustrated her
intentional agreement to join the crime. Id. at 684. The Government had in its
arsenal a participant of the scheme, Valle-Borrelli, who legally drove the car
used in the scheme into the United States. See id. He testified that he saw
Arredondo-Morales at the El Paso headgates where a co-conspirator had led
the undocumented individuals to the Rio Grande. Without speaking he gave
her the keys on the banks of the Rio Grande; he then observed the
undocumented individuals get into the car and Arredondo-Morales drive away.
This Court held that although there was no direct evidence of Arredondo-
Morales joining the agreement, the evidence revealed actions that she would
not have otherwise taken in the absence of knowingly and intentionally
entering the agreement. Id.
      In Grant, a medical fraud case, the Government sought to sustain on
appeal a conviction found on indirect evidence of concerted action. 683 F.3d at
641, 643–44. A jury convicted Dr. Grant and two others of conspiracy to commit
health care fraud, and this Court held that the conduct was sufficiently
incriminating to establish an agreement. Id. In that scheme, Onward Medical
Supply fraudulently billed Medicare for unnecessary durable medical
equipment (“DME”). Id. at 641. To complete the fraud and submit
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                                  No. 16-31119
reimbursement claims, a physician had to sign a certificate of medical
necessity. Id. To accomplish this, a co-conspirator paid hundreds of dollars for
DME prescriptions with Dr. Grant’s forged signature. Id. An Onward
employee, who knew Dr. Grant’s signature, told a mutual friend of the
forgeries. Id. at 642. Dr. Grant visited Onward to review the prescriptions and
agreed “to redo the prescription and sign it with his signature.” Id. at 642. On
appeal, Dr. Grant contended that the evidence was insufficient to show that he
joined a conspiratorial agreement. Id. at 643. We disagreed, holding that there
was sufficient evidence of Dr. Grant and the Onward employees’ concerted
effort to defraud the Government. Id. at 644. The record revealed testimony
that a co-conspirator told Dr. Grant that he received prescriptions with Dr.
Grant’s forged signature; the co-conspirator admitted to Dr. Grant that he paid
the doctors at Dr. Grant’s facility $100 per prescription. Instead of reporting
this fraud, two witnesses testified that Dr. Grant demanded payment to re-
sign the fraudulent prescriptions. Id. at 643. Doris Vinitski, who ran Onward,
testified that Dr. Grant demanded $10,000 to re-sign the prescriptions, which
she paid. Id. at 644. We held that even if the jury did not believe the testimony
regarding the actual agreement, the co-conspirator’s concerted actions
sufficiently supported an inference of an agreement. See id.
      The quality and probative strength of the Government’s “concerted
action” evidence in this case falls well short of the threshold met in Arredondo-
Morales and Grant. Doctors and nurses who were previously associated with
Christian spoke of their own fraudulent actions, but they never testified that
they agreed with Dr. Ganji or Davis to carry out these activities. Louella
Hendricks testified that she recruited patients and took them to Dr. Murray’s
private practice for certification. She testified to visiting patients every week,
knowing that they were not homebound. However, Hendricks was directly
asked, “[D]id you ever put in anywhere in your notes, ‘I was in that patient’s
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                                 No. 16-31119
home and I have determined that that patient was not homebound,’ ever?”
Hendricks answered, “No.” Hendricks’s supervisor and friend of more than ten
years, Kimberley Celestine, testified that she also recruited Medicare patients
and set up their appointments with Dr. Murray in order for them to receive a
home health care referral. Counsel for Davis asked, “In anywhere in your notes
that you recall right now, did you ever write in your notes: This patient is not
homebound?” Like Hendricks, Celestine answered, “No.”
      Dr. Murray corroborated Hendricks’s and Celestine’s testimonies. He
testified that he believed he was supposed to refer patients to home health care
at Christian because unlike his other patients, “a hundred percent of the
patients that came to see [him] . . . asked to be referred for home health.” Of
the many aides at Christian, Dr. Murray testified that only Celestine,
Hendricks, and Kim Robinson, all located in the Hammond area, brought him
patients to certify. When asked if he ever consulted the PCP or talked to
anyone about the patients’ past medical history, Dr. Murray answered, “No.”
Dr. Murray testified that he referred one hundred percent of those patients
who requested home health care even though, in hindsight, he believed only
ten percent were eligible. Dr. Ganji’s counsel asked, “At the time you were in
your office doing your evaluation of those patients, you believed that they were
homebound . . . And you put in your notes and in your orders what you believed
in good faith those patient[s’] medical condition to be, correct?” Dr. Murray
answered, “Correct.” He stated that although he believed those patients were
homebound when he certified them, he later saw some of them around town,
making him question his earlier diagnosis.
      Although these witnesses admitted to their own fraud, they did not
implicate Dr. Ganji. They repeatedly testified to their own monetary
motivations for acting fraudulently. Dr. Murray, Hendricks and Celestine
testified about their scheme to defraud Medicare. They all previously worked
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                                     No. 16-31119
together for another home health agency. Even after that agency closed, they
continued their fraudulent practices. The Government’s witnesses did not
testify that they worked in conjunction with Dr. Ganji. In fact, both Dr. Murray
and Hendricks testified that they did not know Dr. Ganji. Dr. Murray was
directly asked, “Now, you’ve never worked with Dr. Ganji, have you? . . . Do
you know her?” Dr. Murray replied, “No.” When Dr. Ganji’s counsel asked if
Hendricks knew Dr. Ganji, Hendricks answered, “I don’t remember her. I
really don’t.” 7
       In the vast majority of concert of action cases, the Government presents
an insider with direct evidence of the conspiratorial scheme who testifies to the
individual actions she completed and the actions the defendant took to meet
their common unlawful goal. Usually, the Government presents a co-
conspirator who was involved in the specific conspiracy charged. Here, no such
person exists. To sustain a conspiracy conviction, the record must show
evidence that Dr. Ganji agreed to join in the unlawful plan. The evidence
proved that (1) Dr. Murray, who previously held a similar position, defrauded
Medicare, and when Dr. Ganji accepted the job, she (2) received a monthly
check of $1,000 and (3) began referring more patients to Christian than before.
These actions, whether viewed individually or in concert, are insufficient to
prove that Dr. Ganji agreed with anyone to defraud Medicare. While there was
ample evidence that nurses referred patients to Christian who they knew were
not homebound and secured signatures from Dr. Murray, there was no
evidence that Dr. Ganji followed this same practice.



       7  Of the Government’s eighteen witnesses, Samantha McGee who worked for
Christian for less than two months after leaving Mark Morad’s employ, was the only one to
testify about Dr. Ganji. However, she testified that Dr. Ganji worked for MD2U, a company
to which McGee sent referral forms for doctors to sign. Dr. Ganji was never affiliated with
MD2U. And on cross-examination, McGee stated that she knew nothing about Dr. Ganji’s
patient care or medical practice.
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                                             No. 16-31119
      Furthermore, Dr. Ganji provided testimony of her innocence that went
unanswered by the Government. Dr. Ganji’s extensive, undisputed testimony
differentiated her forty-year practice from Dr. Murray’s. The Government
presented evidence that Dr. Ganji rarely personally visited the patients she
certified. In response, Dr. Ganji, who cared for patients in her private practice,
at nursing homes, and at other home health care agencies, testified that nurse
practitioners conducted the visits when she could not. 8 When asked if she
“believed[d] that this face-to-face encounter with the nurse practitioner was
permissible, Dr. Ganji answered, “Yes.” This statement was not rebutted by
the Government and this practice is allowed by the regulations. 42 C.F.R.
424.22. 9



      8   She specifically testified that:
      The nurse practitioner goes and does the initial assessment . . . takes a history
      and she performs a physical examination and notes all her medications . . . the
      activities the patient does and then what kind of services she’s going to need.
      She brings that to my office. And then, meanwhile, I also obtain records of that
      patient from different hospitals if they were ever admitted. And then, you
      know, we get paperwork from the home health agency . . . So once I get that, I
      look at her notes and then I review . . . all the records that are available to me
      and compare those notes with the hospital records, with the subspecialist’s
      records, and the records that the Christian Home Health or any other agencies
      has provided to me. And then based upon the review of the diagnosis, I come
      up with the treatment plan.
      9   (A) The face-to-face encounter must be performed by one of the following:
      (1) The certifying physician himself or herself.
      (2) A physician, with privileges, who cared for the patient in an acute or post-
      acute care facility from which the patient was directly admitted to home
      health.
      (3) A nurse practitioner or a clinical nurse specialist (as those terms are defined
      in section 1861(aa)(5) of the Act) who is working in accordance with State law
      and in collaboration with the certifying physician or in collaboration with an
      acute or post-acute care physician with privileges who cared for the patient in
      the acute or post-acute care facility from which the patient was directly
      admitted to home health.
      (4) A certified nurse midwife (as defined in section 1861(gg) of the Act) as
      authorized by State law, under the supervision of the certifying physician or
      under the supervision of an acute or post-acute care physician with privileges
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                                       No. 16-31119
       The Government also presented evidence that Dr. Ganji signed blank
certification forms and posited that she did so in order to assist Christian in
carrying out its fraudulent practice. When confronted with the signed blank
forms, Dr. Ganji testified,
       Usually [there] is a sheet preceding this sheet that is the face-to-face
       encounter. And then preceding these sheets, I have notes from the nurse
       practitioners. And I also have paper charts from different hospitals or
       the primary care physicians and also Christian Home Health Services.
       So preceding these sheets, there are several documents that I would have
       reviewed.
In an additional effort to compare Dr. Ganji’s practice to Dr. Murray’s, the
Government asked Dr. Ganji about her failure to keep and maintain personal
records for each patient. To this, Dr. Ganji responded, “Christian Home Health
kept all the records of OASIS and the nurses’ documentation. It was brought
to me whenever they brought the 485s, paper charts were brought to me.” Dr.
Ganji indicated that she kept records for patients for which she was the PCP,
but Christian kept records of those patients for whom she was the attending
physician. The Government did not rebut this testimony which aligns with a
reasonable interpretation of the regulations which requires “[t]he provider
must obtain the required certification and recertification statements [and]
keep them on file for verification by the intermediary, if necessary.” 42 C.F.R.
424.11(a). From this evidence a reasonable juror could not infer beyond a
reasonable doubt that Dr. Ganji agreed to commit health care fraud.




       who cared for the patient in the acute or post-acute care facility from which the
       patient was directly admitted to home health.
       (5) A physician assistant (as defined in section 1861(aa)(5) of the Act) under
       the supervision of the certifying physician or under the supervision of an acute
       or post-acute care physician with privileges who cared for the patient in the
       acute or post-acute care facility from which the patient was directly admitted
       to home health.
42 C.F.R. 424.22(a)(v)(A).
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                                 No. 16-31119
      Here, the Government relied solely on inferences to support the fraud
charge and attempted to use those same inferences to support a larger
agreement. The Government’s theory, void of testimonial support, was that
because Dr. Murray held the same position as Dr. Ganji, they must have
conducted their practices similarly. The trial record rebuts the Government’s
theory and amply shows that these two physicians, who carried out private
practices in two different locations, conducted those practices differently. The
Government only presented evidence of Dr. Murray’s illegal activity. On these
facts alone, the Government cannot sustain its burden against Dr. Ganji. These
inferences and the remainder of the record are insufficient to support Dr.
Ganji’s conviction beyond a reasonable doubt.
      Exhibit 133, created by statistician Michael Tabor, illustrated the
percentage of Christian patients Dr. Ganji referred to home health care. The
Government emphatically points out that before Dr. Ganji became a medical
director, she was only responsible for 0.25% Christian’s referrals, but that
number jumped to 26% after she became a medical director. Dr. Ganji referred
one patient in 2008, and 123 patients in 2010, her first year as a medical
director.
      Although the Government depended on the jury inferring guilt from the
numbers, a look at the record, including the expert’s charts and his testimony
explaining how the charts were developed, reveals the meaning behind these
numbers. Before Dr. Ganji was involved with Christian, she did very little
business with the agency. Although she testified that she referred many
patients to home health care, not many selected Christian as their agency of
choice. The Government did not dispute her testimony of her past practices
and did not present evidence that the total number of patients that she referred
for home health care increased. The most a jury could infer from this evidence
was that instead of having no preference for where her patients received care,
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                                       No. 16-31119
now that she was affiliated with Christian, she suggested her patients choose
its services. One may question this practice because Dr. Ganji went from only
receiving Medicare reimbursements from these beneficiaries for being their
primary care physicians, to receiving multiple reimbursements coinciding with
any work she did with Christian regarding the patients (e.g., certifying them
for home health care, recertifying them, overseeing the medical professionals
administering direct care, etc.). But this is not illegal, and it is insufficient to
sustain an inference that she agreed to defraud Medicare. 10
       Though not as nefarious as the Government’s preferred inference, the
record substantiates that once Dr. Ganji became affiliated with a specific home
health care agency, her patients followed her instead of having to establish a
new doctor-patient relationship with a medical professional at a different home
health care agency. Dr. Ganji spent the majority of her life practicing medicine
and building her own private practice. She testified that she had extensive
experience in nursing homes as well as with other home health care agencies.
Here, the Government failed to present evidence that allowed any rational
juror to infer the existence of a conspiratorial agreement beyond a reasonable
doubt. See Miles, 360 F.3d at 478 (holding that the Government failed to
present evidence allowing a rational jury to find that the defendant was a
wholly illegitimate enterprise as required by the money laundering statute).
   2. Davis
       The evidence against Davis suffers from the same inadequacy: the
Government falls short of proving an agreement. Importantly, the direct
evidence favors Davis. The Government’s witness, Dr. Murray, specifically


       10 Furthermore, we note that, although Dr. Ganji took the stand, the Government did
not ask her about her increase in referrals or question her about Exhibit 133. Instead, the
Government brought the exhibit up only when asking its own expert how he created the
exhibit and in the Government’s closing statements when it told the jury to review the exhibit
in the jury room.
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                                  No. 16-31119
testified that he never agreed with Davis to defraud Medicare. When asked of
his initial interaction with Christian, Dr. Murray stated, “[Davis’s] son and a
DME company came to my office and . . . they said, ‘I would like to send you a
contract to be our medical director.’” He further testified that a week later, the
director of nursing, Samara Davis, came to his office to discuss the specifics of
the position. Furthermore, when eliciting facts surrounding Dr. Murray’s
firing, the Government asked Dr. Murray, “What did you do when you arrived
at Elaine Davis[’s] office in Ponchatoula?” Dr. Murray stated, “Well, she
introduced herself to me because I had never met her before that.” Although
his testimony indicated that Dr. Murray and Davis had no prior interactions
that would allow for the insidious agreement, the Government did not address
it. Moreover, when Dr. Murray, Celestine, and Hendricks were specifically
asked if they told Davis or Christian that their patients were not homebound,
they all answered, “No.”
      Again acknowledging the lack of direct evidence, in response to Davis’s
claim that the evidence was insufficient to prove she agreed to defraud
Medicare, the Government argues that her knowledge, participation, and
agreement could have been inferred. The Government’s theory on appeal is
that: (1) Davis paid bonuses and held contests to encourage her employees to
increase Christian’s patient size; (2) she hired staff who previously worked for
Morad; and (3) after discontinuing Christian’s professional relationship with
Dr. Murray because he had been indicted, Davis asked him to come to
Christian’s office to sign documents, including certification forms. Davis was
the owner and director of Christian. The Government contends that the illicit
scheme began and ended with her. It began when Davis offered incentives to
employees who recruited the most new patients. It ended when she signed
payroll checks that included the bonuses to employees and payments to


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                                No. 16-31119
Christian medical directors. The Government alleges that her actions
purposefully encouraged fraudulent behavior.
      The Government showed that for a period, Davis paid her employees
$100 referral fees for each patient they recruited and in 2013 she implemented
a contest for her employees to recruit more patients. When asked, “Did you
think you were doing anything wrong when you paid these fees?” Davis
answered, “Absolutely not.” Davis further testified that the spirit contest
served as “a morale booster for staff” and both the contest and the bonuses
were conducted openly, as evidenced by the 1099s and the contest flyer. The
Government did not rebut this good faith defense, and notably charged no one
in this case with violating the Kickback Statute.
      Depending, again, on the testimony of former Morad employees, the
Government presented evidence that it argues warrants an inference that
Davis agreed to participate in a conspiracy to defraud Medicare because she
hired individuals from Mark Morad’s agencies. Without more, the Government
argues that from this information the jury could infer that Davis hired these
individuals to commit a crime for Christian. These individuals were not
indicted or charged when Christian began its professional relationship with
them. Arguably, neither Davis nor the Government knew they conspired with
Morad. Although the Government argues that this was the convicting
evidence, it is axiomatic that argument is not evidence. This argument is
weakened in the face of direct testimony from Dr. Murray, Hendricks, and
Celestine that Davis never agreed with them to commit health care fraud and
they avoided telling Davis or anyone at Christian of their activities. The
Government forcefully argues that Davis was enough of a mastermind to will
the employees in the Hammond area to commit health care fraud without ever
telling them to or even ratifying their actions, yet she was careless enough to
not only hire individuals who were likely under Government surveillance, but
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                                  No. 16-31119
to also get Dr. Murray to fraudulently sign documents while he was currently
under federal indictment.
      Finally, the Government points to the nefarious Ponchatoula meeting. It
argues that Davis would not have otherwise asked Dr. Murray to meet her to
sign documents that included certification forms had she not agreed to
participate in a conspiracy to defraud Medicare. Again, here the direct evidence
is not on the Government’s side. Only Dr. Murray and Davis were at this
meeting. Although Dr. Murray provided testimony that after being fired, Davis
asked him to meet her at the Ponchatoula office to sign paperwork, he also
specifically testified that he did not agree with Davis, formally or otherwise, to
defraud Medicare. Nevertheless, the Government argues that from this
meeting, the jury could have inferred that Davis and Dr. Murray had an
agreement that, as the medical director, he would sign certification forms
without reviewing any patient records.
      Here, again, the record illustrates a different, reasonable explanation for
the meeting. Christian severed its relationship with Dr. Murray. At that time,
Dr. Murray was indicted for health care fraud. Samara Davis testified that
before the working relationship ended, Dr. Murray was backlogged on
completing paperwork, and Christian continuously attempted to get his




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                                      No. 16-31119
signature. 11 Dr. Murray attested to this. 12 Davis and Dr. Murray testified that
Davis called Dr. Murray into the Christian offices outside of Hammond, where



      11 Q. Did there come a time when Dr. Murray was terminated from his duties
      at Christian Home Health Care?
      A. Yes.
      …
      Q. Had it been a problem in the past with getting Dr. Murray to sign
      documents?
      A. Yes.
      Q. Do you recall specifically, at about the time that he was terminated, sending
      him documents to get him to sign them?
      A. We consistently sent him documents up until that point, yes.
      Q. Do you recall whether all of those documents were 485s?
      A. I don't think all of them were 485s.
      Q. What else would have been included in those documents if they weren't all
      485s?
      A. Any verbal orders that were obtained while the nurses were in the field, like
      if a patient had a change in status or medication or -- some of those problems
      were included.
      Q. Why did you need for Dr. Murray to sign those documents?
      A. Well, if -- because he was the physician at the time seeing the patients.
      Q. How many times -- do you recall how many times you actually had to call
      him or contact him before he actually came in to sign the documents?
      A. Well, documents were sent out every day. And if the person that was
      tracking orders didn't receive them back timely, they had steps to follow. After
      seven days, they would call. After 14, they would maybe fax. After 21, they
      would -- we would send them out with the marketers, the orders. Then after
      30, they would call letting me know and I would call the physician. So I called
      them a lot.
      12Q. And this was a fax from Christian Home Health?
      A. Correct.
      Q. And if we could go ahead and zoom in to the fax -- actually, just go to the next page.
      Okay. And this is dated September 25, 2014; is it not?
      A. Yes.
      Q. And that was before you were terminated from Christian Home Health?
      A. Yes.
      Q. And this fax is being sent to you and it's requesting that -- for you to sign certain
      orders?
      A. Yes.
      Q. Is there anywhere on this document, on this note here to you that says: I want you
      to sign these orders even if these patients are not homebound?
      A. No.
      Q. And if we could go to the next page. Do you see how this says "second request"?
      A. Yes.
      Q. And the next page, "second request"?
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                                    No. 16-31119
she gave Dr. Murray all of the backlogged paperwork she received from the
administrative team. Without discussion, Dr. Murray signed the paperwork
Christian repeatedly asked him to sign.
      Again, to prove conspiracy, the Government must prove beyond a
reasonable doubt the defendant knew of and participated in an agreement to
commit a crime. It is not enough that the Government proves that the
defendant knew something criminal was afoot. Alvarez, 610 F.2d at 1257. The
Government presented evidence that Davis was an accountant and Christian’s
owner, and her duties included signing checks and filling staffing positions. It
argued that, as such, Davis had significant oversight at Christian and the jury
rightfully rejected her argument that she was unaware of any fraudulent
certifications. In essence, the Government argued that the jury could infer that
Davis had knowledge of the fraudulent activity and agreed to participate
because one in that position should have known that some of Christian’s nurses
recruited and some of its medical directors certified patients who were not
eligible for home health care services. Notably, the Government offers no case
support for its argument.
      The Government’s attempt to ascribe Davis with knowledge and
agreement because of her position in the company falls far short of the
necessary requirement for guilt beyond a reasonable doubt. One cannot


      A. Yes.
      Q. Can you go to page 7, please? "Second request"?
      A. Uh-huh (affirmative response).
      Q. Next page, please. "Second request"?
      A. Uh-huh (affirmative response).
      Q. And so this had not been the first time that Christian Home Health had to contact
      you to ask you to sign the orders?
      A. Correct. Correct.
      Q. Did you ever take a look at these orders and say: No, I disagree with what's
      contained in those orders?
      A. No.

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                                 No. 16-31119
negligently enter into a conspiracy. See Snow Ingredients, Inc. v. SnoWizard,
Inc., 833 F.3d 512, 526 (5th Cir. 2016) (“Civil-RICO conspiracy, however,
cannot be premised on negligence. It requires an actual agreement between
conspirators—they must specifically intend the illegal conduct.”); see also
Model Penal Code § 5.03 cmt. 2(c)(i) (1985) (“[W]hen recklessness or negligence
suffices for the actor’s culpability with respect to a result element of a
substantive crime . . . there could not be a conspiracy to commit that crime.”).
      Furthermore, Davis testified that she did not have any medical training,
was not qualified to make diagnoses, and depended on Christian’s medical
professionals “[o]ne hundred percent” in medical matters. She further testified
that “the administrative office . . . confirmed [] the patients Ms. Hendricks and
Ms. Celestine had brought in.” The Government did not provide evidence
refuting the testimony that Davis had little involvement in Christian’s
administrative matters and no involvement in its medical matters. It instead
continuously pointed to Davis’s payroll participation to illustrate her oversight
at Christian and prove her participation in the conspiracy. This activity is
insufficient to support an inference that she agreed to join Dr. Murray and the
nurses’ fraudulent activity. The Government had to prove that she knowingly
agreed to participate in a common scheme to meet an unlawful goal. See
Monsanto, 465 U.S. at 754. The evidence did not prove that Davis committed
actions sufficient to show an agreement to defraud Medicare beyond a
reasonable doubt.
      We note that Davis’s actions were nothing like most directors involved
in other health care fraud cases. She testified that she did not participate in
the day-to-day activity of processing the certification forms, which was
completed by the administrative office. But see, e.g., United States v. Fuchs,
467 F.3d 889, 897 (5th Cir. 2006) (owner filled prescriptions for hydrocodone
after his company generated the prescriptions online and paid a doctor, who
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                                  No. 16-31119
never examined the patients, to approve them). The contract between
Christian and the medical directors provided for a flat rate, and, in accordance
with health care regulations, that rate did not fluctuate based on the amount
of patients the director referred. But see, e.g., United States v. Dailey, 868 F.3d
322, 326 (5th Cir. 2017) (owner admitted to paying the doctor in exchange for
signing certification forms without supervising the physician’s assistant and
testified that the doctor withheld forms if not paid). The record does not
indicate that Christian paid doctors to sign documents. But see, e.g., Grant, 683
F.3d at 643–44 (5th Cir. 2012) (director paid doctor to re-sign forged
prescriptions for medical supplies). Furthermore, according to testimony,
Davis’s salary was, at most, $120,000. The Government provided no evidence
that she received funds beyond her salary. So while the Government alleges
that Medicare paid Christian an average of $3.5 million a year during the
scheme, Davis only amassed 3.4% of those alleged ill-gotten gains.
      Although the Government presented a plausible scheme of fraudulence,
it did not implicate Davis in the scheme with proof beyond a reasonable doubt.
The Government did not present sufficient evidence to allow any rational juror
to infer that Davis agreed to participate in a conspiracy to commit health care
fraud. As such, we must reverse.
   B. Fraud
      To prove health care fraud, in violation of 18 U.S.C. § 1347, the
Government must show that the defendant knowingly and willfully executed “a
scheme or artifice—(1) to defraud any health care benefit program; or (2) to
obtain, by means of false or fraudulent pretenses, representations, or promises,”
any health care benefit program’s money in connection with the delivery of or
payment for health care services. See 18 U.S.C. § 1347(a); United States v. Imo,
739 F.3d 226, 235–36 (5th Cir. 2014).


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                                  No. 16-31119
      1. Dr. Ganji
      Only patients who were “homebound,” under a certifying doctor’s care,
and in need of skilled services were eligible for the services Christian provided.
The Government asserts that Dr. Ganji certified patients who were not under her
care knowing they were not homebound. A person who is “homebound” has a
serious medical condition that restricts her ability to leave the home. Eghobor,
812 F.3d at 356. Dr. Ganji asserted that there was insufficient evidence to
prove that she certified Carolyn Stewart knowing that she was not homebound.
The Government contends that Stewart was not homebound. Stewart’s
primary care physician testified that Stewart’s mobility was not restricted.
Nevertheless, the Government must provide evidence that the accused doctor
executed a fraudulent scheme with knowledge that the patient was not
homebound. See 18 U.S.C. § 1347(a); United States v. Jackson, 220 F. App’x
317, 323–24 (5th Cir. Mar. 2, 2007).
      We acknowledge that the Government presented evidence of Dr. Ganji’s
participation in lax practices. However, Dr. Ganji was not convicted of patient
negligence, keeping subpar files, or haphazardly conducting her business. She
was convicted of defrauding the Government by certifying Stewart for home
health care, knowing that she was not homebound and not under her care.
Beyond proving that Stewart did not need home aid, the Government was to
prove, beyond a reasonable doubt, that Dr. Ganji was aware of that reality.
Unlike other health care fraud cases presented to this Court, the Government
did not provide testimonial or documentary evidence proving that Dr. Ganji
knew Stewart was not homebound. But see, e.g., Grant, 683 F.3d at 645
(holding that the defendant knew wheelchairs were not medically necessary
because the patients would not accept or actively and physically rejected
delivery); United States v. Murthill, 679 F. App’x 343, 350 (5th Cir. Feb. 13,
2017) (co-conspirator testified that he and Murthill discussed that the patient
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                                  No. 16-31119
was not homebound). It presented evidence of Stewart’s primary care
physician’s knowledge but it failed to present any evidence imputing that
knowledge to Dr. Ganji. The evidence allowed the jury to infer that Stewart
was not homebound, but it cannot stretch that into a second inference that Dr.
Ganji knew Stewart was not homebound.
      The Government further contended that Dr. Ganji committed fraud
because she certified Stewart even though Stewart was not under Dr. Ganji’s
care. “A beneficiary is ‘under the care of a physician’ when the treating
physician has determined that home health care is necessary.” See Eghobor,
812 F.3d at 356. The Government contends that a doctor must be a patient’s
primary care physician in order for the patient to be under their care. This is
not a requirement established by the regulations. See 42 C.F.R. §
424.22(a)(v)(A). In fact, the regulations provide that face-to-face patient
encounters may be performed by physician assistants, nurse practitioners, or
clinical nurse specialists. See id. Dr. Ganji averred that attending physicians
and primary care physicians are both treating physicians when responsible for
the care of a patient. She testified that when working in hospitals, nursing
homes, or other home health care agencies, she served as the attending
physician and patients were under her care even though she was not their
primary care physician. If she cared for them at the facility, they were under
her care. Although the process usually begins with a primary care physician,
this cannot be the case when a patient does not have a primary care physician.
The Medicare guidelines do not prohibit treating physicians who are not
primary care physicians from beginning the home health care process. See id;
Eghobor, 812 F.3d at 356. Therefore, Dr. Ganji cannot be held liable for
fraudulence as a result of activity that is legal.




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                                 No. 16-31119
      2. Davis
      The Government based Davis’s fraud completely on the actions of Dr.
Ganji. It provided no evidence of Davis’s own fraudulent activity as it pertains
to Stewart. There was not sufficient evidence to show an agreement to commit
health care fraud, and the Government did not otherwise attempt to show that
Davis individually committed the fraud alleged in Count 4. The Government
presented no evidence that Davis was made aware that Stewart was not
homebound, but see, e.g., Murthill, 679 F. App’x at 350, or that she discovered
that information herself, but see, e.g., Grant, 683 F.3d at 645. Furthermore,
when directly asked if she ever met Carolyn Stewart, Davis answered, “No.”
The Government left this testimony unanswered. Thus, there is insufficient
evidence to show that she knowingly executed a scheme to defraud Medicare.


                              III.   CONCLUSION
      For the forgoing reasons, we REVERSE and VACATE the defendants’
convictions of conspiracy to commit health care fraud in violation of 18 U.S.C.
§ 1349 and health care fraud in violation of 18 U.S.C. § 1347.




                                      28
