                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 16a0579n.06

                                       Case Nos. 15-1527, 15-1528, 15-1529                          FILED
                                                                                              Oct 25, 2016
                                                                                         DEBORAH S. HUNT, Clerk
                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                  )
                                                           )
        Plaintiff-Appellee,                                )
                                                           )       ON APPEAL FROM THE UNITED
v.                                                         )       STATES DISTRICT COURT FOR
                                                           )       THE EASTERN DISTRICT OF
FELICAR WILLIAMS (15-1527); JAMELLA                        )       MICHIGAN
Al-JUMAIL (15-1528); ABDUL MALIK AL-                       )
JUMAIL (15-1529),                                          )
                                                           )
        Defendants-Appellants.                             )

____________________________________/


Before: MERRITT, ROGERS, and KETHLEDGE, Circuit Judges

        MERRITT, Circuit Judge. Felicar Williams, Jamella Al-Jumail (“Ms. Al-Jumail”), and

Abdul Malik Al-Jumail (“Mr. Al-Jumail”) each appeal from their jury convictions for offenses

related to a complicated scheme to defraud Medicare.

        The defendants on appeal (“Defendants”)1 were each found to have been involved with

the management and operation of businesses that existed primarily—and in some cases,

exclusively—as tools to defraud Medicare. Following a lengthy joint trial, a jury convicted each

of the Defendants of conspiracy to commit health care fraud in violation of 18 U.S.C. § 1349.

1
  A fourth defendant, Dr. Carey Vigor, was tried alongside Ms. Williams, Ms. Al-Jumail, and Mr. Al-Jumail in the
district court. Dr. Vigor was found not guilty on all counts and, as such, does not seek this Court’s review on
appeal.
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United States v. Williams et al.

Ms. Williams and Mr. Al-Jumail were also convicted of conspiracy to pay and receive health

care kickbacks in violation of 18 U.S.C. § 371. Ms. Al-Jumail was also convicted of destroying

records in a federal investigation in violation of 18 U.S.C. § 1519.

         Ms. Williams now raises several arguments on appeal that she claims require either

reversal of her conviction or resentencing. First, she argues that the United States failed to

produce sufficient evidence to support her conviction and that the district court’s denial of her

Rule 29 and Rule 33 motions for judgment of acquittal amounts to reversible error. She also

argues that the trial court erroneously admitted certain evidence in violation of the Federal Rules

and her rights under the Sixth Amendment. Finally, she contends that the district court erred by

failing to grant her a downward variance under the Sentencing Guidelines’ “aberrant behavior”

provision.

         Ms. Al-Jumail also raises several issues on appeal. Like Ms. Williams, Ms. Al-Jumail

seeks reversal on the basis of the sufficiency of the evidence produced against her at trial. Next,

she argues that certain statements within the prosecution’s closing arguments amounted to

unconstitutional “burden-shifting” entitling her to a new trial. Ms. Al-Jumail also attacks her

sentence because she contends that it was based upon an insufficiently individualized

determination of the loss attributable to her actions. Finally, she contends that the district court’s

criminal restitution order violates her rights under the Sixth Amendment because it was not

based upon a jury’s determination of the amount of loss attributable to her specifically.

         Mr. Al-Jumail’s only argument on appeal is that the prejudice from being tried alongside

his daughter caused by the district court’s denial of his motion to sever entitles him to a new

trial.




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         Because we find no merit in any of the Defendants’ arguments on appeal, we AFFIRM

the judgments of the district court in their entirety.

                                                     I. Facts

         This case involves a number of health care businesses which operated largely

independently of one another, except for the involvement of Sachin Sharma.2 Mr. Sharma was

the architect of a scheme through which he was able to bill Medicare for services that were either

worthless in quality or never provided at all. The success of Mr. Sharma’s scheme depended

upon fraud of the most egregious kind: He hired individuals to pose as patients. He issued staff

members badges falsely indicating that they had professional credentials. He acquired Medicare

patient referrals by paying illegal kickbacks and then billed Medicare for services that were

never provided by using falsified patient documentation. In order to avoid detection, Sharma

replicated this fraud at several independently operated business entities that are the subject of this

litigation.

                                  A. Abdul Malik & Jamella Al-Jumail

         Abdul Malik Al-Jumail and his partner, Firas Alky, purchased one of Mr. Sharma’s

fraudulent enterprises—ABC Home Care—in 2009. Mr. Sharma testified that he and Mr. Al-

Jumail discussed the fraudulent nature of ABC’s business activities at the time of purchase. Mr.

Sharma further testified that he and Mr. Al-Jumail discussed various strategies to prevent

Medicare from discovering ABC’s fraud, that Mr. Al-Jumail followed that advice after assuming

control of the company, and that Mr. Al-Jumail shared a portion the profits of the fraud with Mr.

Sharma. Upon being informed of an upcoming Medicare audit, Mr. Sharma connected Mr. Al-



2
  Sharma entered into a plea agreement with the United States conditioned upon his agreement to testify truthfully at
the Defendants’ trial.

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Jumail with an individual who—with the help of Mr. Al-Jumail’s daughter and co-defendant,

Jamella—proceeded to fabricate patient documents in order to pass the inspection.

          In addition to ABC, Mr. Al-Jumail owned several more home health agencies, one of

which was called Accessible Home Health. Mr. Al-Jumail placed his daughter, Ms. Al-Jumail,

in charge of the day-to-day operations at Accessible. Upon Mr. Al-Jumail’s request, Mr. Sharma

provided Ms. Al-Jumail with a flash drive filled with template documents in order to allow

Accessible to execute the same fraud upon Medicare as he had at ABC. After Accessible was

approved to bill Medicare, Ms. Al-Jumail directed and oversaw an elaborate records falsification

process in order to produce the documents that would form the basis of Accessible’s Medicare

claims.     When certain Accessible staff members began discussing the appropriateness of

Accessible’s billing practices among themselves, Ms. Al-Jumail instructed them that they were

not to discuss their concerns with anyone but herself or her father.

          Mr. Al-Jumail was eventually arrested for his involvement with ABC and Accessible,

among other businesses. Upon learning of her father’s arrest, Ms. Al-Jumail coordinated the

incineration of several binders full of patient documentation.

                                       B. Felicar Williams

          Felicar Williams and Mr. Sharma were co-owners of Haven Adult Daycare. The Haven

partnership between Ms. Williams and Mr. Sharma was the product of an introduction arranged

by Mr. Al-Jumail in response to Mr. Sharma’s desire to expand his portfolio of health care

companies beyond home health agencies. Haven’s origin story is tied inextricably with the

dissolution of TGW, another adult day care facility in which Ms. Williams held an ownership

interest. Indeed, TGW shut down on a Friday, and Haven opened for business on the following




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Monday. Many of Haven’s initial clients were passed on from TGW.3 Haven’s staff was also

peppered with individuals who formerly worked for TGW. Finally, Haven’s clinical and billing

practices were substantially the same as those employed at TGW.

         Haven provided various services to adults who required supervision or care during the

day. Specifically, Haven conducted individual and group “therapy” sessions with its clients.

Haven staff conducted group sessions with all of their clients on a daily basis. These sessions

included anywhere from twelve to twenty individuals and were essentially freeform discussions

about general interest topics—health, hygiene, current events—guided only by cursory Internet

searches by the staff member assigned to lead the sessions. Haven’s staff also conducted

individual therapy sessions with clients on a less predictable basis.

         The overwhelming majority of “psychotherapy” services provided to Haven’s clients fell

far short of the relevant Medicare requirements. Haven’s staff often led group therapy sessions

with as many as twenty participants despite the fact that Medicare reimbursement for such

services is limited to groups of less than twelve patients. Patients with profound intellectual

disabilities were made to sit in group sessions despite their inability to meaningfully participate.4

Therapy sessions were almost always conducted by unsupervised, unlicensed staff members

without any formal training in providing psychotherapy.

         In addition to overseeing the provision of these worthless services, Ms. Williams also

orchestrated and oversaw an intentionally fraudulent system of documentation and billing. Ms.

Williams directed her staff to document “progress notes” for two sessions of individual therapy

per client per week, even if no individual services were actually provided to a patient in a given

3
 In addition to the patients brought from TGW, Haven obtained Medicare-eligible clients by paying money to the
owners of adult foster homes in exchange for sending their charges to Haven for the day.
4
 Out of its recognition that group therapy is not effective for beneficiaries with profound intellectual disabilities,
Medicare will not reimburse providers for group therapy provided to such beneficiaries.

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week. In order to conceal this fraud from Medicare, she instructed Haven staff not to date their

sometimes-fabricated progress notes so that another Haven employee could ensure that the

services were billed on nonconsecutive days in order to comply with the relevant Medicare

regulations.

                                  II. Procedural Background

       Following nearly two years of volleying indictments and plea negotiations, a grand jury

returned a Third Superseding Indictment charging Ms. Williams, Ms. Al-Jumail, and Mr. Al-

Jumail—among others—as follows: Ms. Williams and Mr. Al-Jumail were both charged with

conspiracy to commit health care fraud in violation of 18 U.S.C. § 1349 and conspiracy to pay

and receive health care kickbacks in violation of 18 U.S.C. § 371. Ms. Al-Jumail was charged

with conspiracy to commit health care fraud in violation of 18 U.S.C. § 1349 and destroying

records in a federal investigation in violation of 18 U.S.C. §§ 1519 and 2.

       After a twelve-week trial, a jury found the Defendants guilty on all counts. The district

court sentenced Ms. Williams to five years’ confinement on both counts against her to run

concurrently, two additional years of supervised release, and approximately $2 million in

restitution payments. Ms. Al-Jumail received a sentence of four years’ imprisonment on both

counts against her to run concurrently, three years of supervised release, and approximately

$500,000 in restitution payments. The district court sentenced Mr. Al-Jumail to ten years’

imprisonment on the conspiracy to commit health care fraud count and three years’

imprisonment on the conspiracy to pay and receive health care kickbacks count to run

concurrently, one year of supervised release, and over $8 million in restitution payments.

       These appeals followed.




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                                          III. Discussion

                                       A. Felicar Williams

       Ms. Williams raises four questions for this Court’s review on appeal. For the reasons

articulated below, we affirm the district court’s judgment against Ms. Williams in its entirety.

                              1. Sufficiency of the Evidence Claim

       First, Ms. Williams claims that the evidence presented at trial was insufficient to support

the jury’s guilty verdict.     The defendant bears a “heavy burden” when challenging the

sufficiency of the evidence supporting a jury verdict on appeal. United States v. Maliszewski,

161 F.3d 992, 1005 (6th Cir. 1998). This Court reviews properly preserved sufficiency

challenges de novo, asking 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. Bankston, 820 F.3d 215, 235 (6th Cir. 2016)

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). To that end, this Court draws “all

available inferences and resolve[s] all issues of credibility in favor of the jury’s verdict.” United

States v. Smith, 749 F.3d 465, 477 (6th Cir. 2014).

       Ms. Williams was convicted of conspiracy to commit health care fraud and conspiracy to

pay or receive health care kickbacks and claims that both convictions were based on insufficient

evidence. See 18 U.S.C. §§ 1347, 1349 (2012) (conspiracy to commit health care fraud); id.

§ 371 (conspiracy to pay or receive health care kickbacks). Conviction for conspiracy to commit

health care fraud requires that the jury find that the defendant voluntarily made an agreement,

“tacit or explicit,” to knowingly defraud a health care benefit program.           United States v.

Medlock, 792 F.3d 700, 711 (6th Cir. 2015); see 18 U.S.C. § 1347 (defining health care fraud).

Evidence of actual fraud against Medicare and a defendant’s knowledge thereof and benefit


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United States v. Williams et al.

therefrom is sufficient proof to uphold a conviction under § 1349. Medlock, 792 F.3d at 711.

Conviction for conspiracy to pay or receive health care kickbacks requires an agreement to offer,

pay, solicit, or receive remuneration in exchange for a patient referral for services payable by a

federal health care benefit program. See 18 U.S.C. § 371; 42 U.S.C. § 1320a-7b(b)(1)(A)

& (2)(A).

       Ms. Williams fails to carry her “heavy burden” with respect to both convictions.

See Maliszewski, 161 F.3d at 1005.      The evidence at trial readily supports a finding that

Ms. Williams committed conspiracy to commit health care fraud. Sharma testified that he and

Ms. Williams founded Haven together and that they both were aware that many of the services

being provided to their clients were worthless. Several of the employees under Ms. Williams’s

supervision at Haven testified that she routinely directed them to fabricate records for services

that were never actually provided.     And if there was any question as to Ms. Williams’s

motivation for doing so, it is answered by the testimony indicating that Williams ensured that the

records were left undated so that they could be strategically dated in order to avoid raising

suspicion when Haven submitted its claims to Medicare for reimbursement. The United States

also presented evidence at trial that Haven actually submitted claims for reimbursement for the

fabricated services. In light of the Government’s proof of a voluntary agreement between

Sharma and Williams to defraud Medicare, of actual fraudulent claims submitted to Medicare,

and of Ms. Williams’s knowledge of and benefit therefrom, a reasonable trier of fact could have

found Ms. Williams guilty of conspiracy to commit health care fraud beyond a reasonable doubt.

See Medlock, 792 F.3d at 711 (upholding a guilty verdict under highly similar facts).

       The evidence at trial also supported a finding that Ms. Williams conspired to receive

health care kickbacks.     Several witnesses testified that they played various roles in an


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arrangement between Ms. Williams and Mr. Al-Jumail whereby Mr. Al-Jumail paid Ms.

Williams for Haven’s patients’ billing information so that he could use those patients in his own

scheme to defraud Medicare. Documentary evidence of checks issued by one of Mr. Al-Jumail’s

businesses to Williams and certain Haven staff members corroborated that testimony.

The contemporaneous nature of the payments in question and the exchange of patient billing

information would permit a rational trier of fact to conclude beyond a reasonable doubt that Ms.

Williams had entered into an agreement to provide patient referrals to Mr. Al-Jumail’s home

health agency in exchange for cash payments.

       Ms. Williams takes issue with the Government’s failure to produce the individual who

actually submitted claims to Medicare, but that testimony was not necessary to her conviction for

conspiracy to commit health care fraud. Evidence at trial showed that Williams directed the

production of billing sheets for services that were never provided, that Williams gave those

sheets to Haven’s biller, and that the biller returned the sheets after she submitted them to

Medicare. While this evidence is not perfect proof that the fraudulent claims were actually

submitted to Medicare, it is certainly sufficient to permit a reasonable jury to conclude that they

were. Additionally, the fact that the offense in question is conspiracy to commit health care

fraud—as opposed to the substantive offense of health care fraud—suggests that proof of the

actual submission of false claims might not have been necessary to prove the underlying offense

so long as there was sufficient proof of an agreement to defraud the government and of some

overt act in furtherance that agreement. See United States v. Edmond, 815 F.3d 1032, 1040 (6th

Cir. 2016) (outlining the basic elements of the federal conspiracy offense). Accordingly, the

Government was not required to produce the biller at trial in order to convict Ms. Williams of

conspiracy to commit health care fraud.


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        Ms. Williams also argues that her convictions were based on insufficient evidence

because many of the Government’s best witnesses testified as conditions of their plea

agreements. To the extent that this attack is based on the witnesses’ possible motivations to

testify favorably to the Government, it is a dispute about their credibility. Aware of our own

institutional limitations, this Court has long adhered to the rule foreclosing “arguments regarding

a government witness’s lack of credibility” on appeal. United States v. Howard, 621 F.3d 433,

460 (6th Cir. 2010) (quoting United States v. Talley, 164 F.3d 989, 996 (6th Cir. 1999)) (internal

quotation marks omitted). While it is true that the Government’s case relied heavily upon the

testimony of individuals whose plea agreements required them to testify, the fact of those

agreements was presented to the jury and the jury chose to believe the witnesses. Accordingly,

we refuse to overturn the jury’s verdict under the theory that it was unduly influenced by

witnesses whose plea agreements required them to testify.

       For the reasons stated above, the jury’s verdict was supported by sufficient evidence and

we affirm the district court’s denial of Ms. Williams’s Rule 29 and Rule 33 motions for

judgment of acquittal.

                           2. Impermissible Character Evidence Claim

       In addition to her generalized attack on the sufficiency of the evidence, Ms. Williams also

contends that the trial court erroneously admitted testimony that she directed the creation of false

patient notes at TGW—another adult day care business that Ms. Williams co-owned until it was

shut down after some of her partners were indicted for fraud. Williams moved to exclude the

evidence on the grounds that there was not a sufficient factual basis for its admission and that it

was offered for the purpose of proving action in accordance with character. The district court




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denied her motion and admitted the evidence, reasoning that it was relevant to show “absence of

mistake, intent, or . . . knowledge,” and that it was “more probative than prejudicial.”

         Rule 404(b) requires exclusion of evidence of past bad acts when those acts are offered

“to prove a person’s character in order to show that on a particular occasion the person acted in

accordance with the character.” Fed. R. Evid. 404(b)(1). However, Rule 404(b)(2) permits

admission of the evidence so long as it is offered for “another purpose,” including to establish

“knowledge,” “intent,” or “absence of accident.” Fed. R. Evid. 404(b)(2). The standard of

review that we apply to a district court’s Rule 404(b) ruling is the subject of some debate in this

Circuit. Some panels have held that, when reviewing the trial court’s decision to admit evidence

of past bad acts, this court applies a “tripartite” standard of review.5 See United States v. Barnes,

822 F.3d 914, 920–21 (6th Cir. 2016). Other panels have held that the Supreme Court’s decision

in General Electric Co. v. Joiner, 522 U.S. 136, 141 (1997), requires that all evidentiary rulings

by the district court be reviewed only for abuse of discretion. United States v. Allen, 619 F.3d

518, 524 n.2 (6th Cir. 2010); see also United States v. Clay, 667 F.3d 689, 703 (6th Cir. 2012)

(Kethledge, J., dissenting). Regardless of the applicable standard, this much is clear: the district

court’s threshold finding that the past bad act actually occurred is subject to reversal if it is

clearly erroneous. See Allen, 619 F.3d at 523 (applying the abuse of discretion standard and

noting that “[a] district court abuses its discretion when it relies on clearly erroneous findings of

fact”). A finding of fact is “clearly erroneous” if it leaves the reviewing court with “the definite

and firm conviction that a mistake has been committed.” Max Trucking, LLC v. Liberty Mut. Ins.




5
  “We review for clear error the district court’s factual determination that the other act occurred; we examine de
novo the court’s legal determination that evidence of the other act is admissible for a proper purpose; and we review
for abuse of discretion the court’s determination that the probative value of the evidence is not substantially
outweighed by a risk of unfair prejudice.” United States v. Barnes, 822 F.3d 914, 920–21 (6th Cir. 2016).

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United States v. Williams et al.

Corp., 802 F.3d 793, 808 (6th Cir. 2015) (citing Anderson v. City of Bessemer City, 470 U.S.

564, 573 (1985)).

       On appeal, Ms. Williams’s primary argument is that the district court’s finding that she

was involved in the fraud at TGW was not based on sufficient evidence because she was not

indicted in the criminal proceedings that followed the dissolution of TGW. However, plenty of

evidence indicated that Williams both knew about and participated in the earlier fraud at TGW.

Specifically, one of Williams’s employees at TGW testified that Williams directed her to

fabricate patient records for services that were never provided in order to ensure that Medicare

did not take back any funds from TGW. This evidence supports the district court’s finding that

Ms. Williams was involved with the fraud at TGW. We affirm the trial court’s preliminary

finding that Ms. Williams was involved in the fraud at TGW because it was not clearly

erroneous.

       Ms. Williams also suggests that the evidence of her actions at TGW was admitted for the

improper purpose of showing action in accordance with bad character. However, our precedents

interpreting the text of Rule 404(b) make clear that evidence of past bad acts is admissible so

long as it is probative of “material issue[s] other than character,” including intent, knowledge,

and absence of accident. Barnes, 822 F.3d at 921; see also Fed. R. Evid. 404(b)(2). Because

one of Ms. Williams’s primary defenses to liability in this action is that she was simply

following orders and that she did not intend to defraud Medicare through her actions, she placed

the question of her intent in issue. “To determine if evidence of other acts is probative of intent,

we look to whether the evidence relates to conduct that is substantially similar and reasonably

near in time to the specific intent offense at issue.” United States v. Bell, 516 F.3d 432, 443 (6th

Cir. 2008) (internal quotation omitted). Since Ms. Williams’s conduct at TGW was practically


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identical and extremely close in time to her conduct at Haven, the district court properly admitted

the evidence of that conduct for the permissible purpose of proving that Ms. Williams intended

to defraud Medicare. Since the result of our analysis is the same under both abuse of discretion

and de novo review, we need not resolve the intra-circuit split on the appropriate standard of

review for the district court’s Rule 404(b) ruling.

                                  3. Confrontation Clause Claim

       Ms. Williams next argues that the district court’s decision to admit a chart summarizing

Medicare claims relevant to Haven’s operations violated her rights under the Confrontation

Clause of the Sixth Amendment. Specifically, she claims that the Government’s failure to

produce the biller who submitted the claims in question for cross-examination renders the chart

inadmissible.   In response to Ms. Williams’s objection, the district court found that the

Confrontation Clause did not apply to the claims underlying the charts because they were not

“testimonial” statements within the Supreme Court’s understanding of that term.

       The Confrontation Clause of the Sixth Amendment protects the criminal defendant’s

right “to be confronted with the witnesses against him.” U.S. Const. amend. VI. It has been

interpreted by the Supreme Court to prohibit the “admission of testimonial statements of a

witness who did not appear at trial unless he was unavailable to testify, and the defendant had

had a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 53–54

(2004). This Court assesses whether a statement was “testimonial” within the meaning of the

Confrontation Clause by asking if the declarant “intended to bear testimony against the accused.”

United States v. Collins, 799 F.3d 554, 576 (6th Cir. 2015) (quoting United States v. Cromer,

389 F.3d 662, 675 (6th Cir. 2004)). The inquiry is objective and asks if “a reasonable person in

the declarant’s position would anticipate his statement being used against the accused in


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investigating and prosecuting [a] crime.” Id. (quoting United States v. Johnson, 581 F.3d 320,

325 (6th Cir. 2009)). Statements that are not “testimonial” are not subject to the strictures of the

Confrontation Clause; they are admissible so long as admission is appropriate under the Federal

Rules of Evidence. United States v. Arnold, 486 F.3d 177, 192–93 (6th Cir. 2007) (citing Davis

v. Washington, 547 U.S. 813, 823 (2006)).

        Ms. Williams suggests that the admission of charts summarizing several of Haven’s

disputed Medicare claims violated her right to confront the witnesses against her because the

Government did not present the individual who actually submitted the claims for cross-

examination. While the precise contours of Ms. Williams’s Confrontation Clause argument are

not clear from her brief, any viable Confrontation Clause violation centers on the Medicare

claims underlying the chart—as opposed to the chart itself6—because the agent who prepared the

chart was actually available for cross-examination at trial.

        The viability of Ms. Williams’s Confrontation Clause challenge thus depends upon

whether the underlying Medicare claims constitute “testimonial” statements. The Medicare

claims at issue on appeal were admitted into evidence under the “business records” exception to

the hearsay rule. See Fed. R. Evid. 803(6). The Supreme Court has made clear that records kept

in the ordinary course of business or government are generally not “testimonial” for purposes of

the Confrontation Clause because they are “by their nature, made for a purpose other than use in

a prosecution.” Michigan v. Bryant, 562 U.S. 344, 362 n.9 (2011); see also Melendez-Diaz v.

Massachusetts, 557 U.S. 305, 324 (2009) (“Business and public records are generally admissible

absent confrontation . . . because—having been created for the administration of an entity’s


6
  While illustrative charts and diagrams are often not actually admitted into evidence, the chart disputed here was
admitted as substantive proof under Federal Rule of Evidence 1006. As such, it could theoretically be the subject of
a Confrontation Clause challenge in a case where the individual who prepared the chart was not available for cross-
examination.

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affairs and not for the purpose of establishing or proving some fact at trial—they are not

testimonial.”). Elaborating on that observation, this Court has also suggested that the mere fact

that a business record might foreseeably be relevant to a subsequent prosecution does not

automatically transform the record into a “testimonial” statement. See Collins, 799 F.3d at 586

(“Although law enforcement officers may use [identification verification] records to track

pseudoephedrine purchases, the [identification] system is designed to prevent customers from

purchasing illegal quantities of pseudoephedrine by indicating to the pharmacy employee

whether the customer has exceeded federal or state purchasing restrictions.”)

       Here, the Medicare claims in question were clearly submitted and prepared not for the

purpose of litigation, but rather for the routine and ordinary business purpose of obtaining

payment from Medicare. As the district court rightly noted, there is no indication that the claims

documents in question were made “in anticipation of being presented in a Court relative to a

case.” While the possibility of an audit or prosecution for fraud is present whenever a claim for

payment is submitted to the government, a reasonable person in the biller’s situation does not

intend to bear testimony against the billing entity each time they submit a claim. Much like the

pharmacist who entered information into the identification verification system in Collins, the

biller here cannot be reasonably said to have anticipated that the specific claims at issue would

be relevant to a subsequent prosecution. At most, the reasonable biller anticipates that the claims

she submits will be reviewed by the Government and subsequently approved or denied.

Therefore, the Medicare claims at issue here are not “testimonial” for purposes of the

Confrontation Clause, and we affirm the district court’s admission of the summary chart.




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                                            4. Sentencing Claims

        Ms. Williams’s final claim on appeal is that the district court abused its discretion when it

denied her requests for an “aberrant behavior” downward variance in her already below-

Guidelines sentence. She also claims that the district court did not adequately account for her

advanced age, her low risk of recidivism, and her lack of criminal history when imposing her

sentence pursuant to the factors enumerated at 18 U.S.C. § 3553.

        Our review of the district court’s sentencing order is limited to reasonableness review

under a deferential abuse-of-discretion standard. United States v. Bazazpour, 690 F.3d 796, 803

(6th Cir. 2012). We assess the reasonableness of sentences both procedurally and substantively.

See United States v. Erpenbeck, 532 F.3d 423, 430 (6th Cir. 2008). A sentence is procedurally

unreasonable if the district court “fail[s] to calculate (or improperly calculate[es]) the Guidelines

range, treat[s] the Guidelines as mandatory, fail[s] to consider the [18 U.S.C.] § 3553(a) factors,

select[s] a sentence based on clearly erroneous facts, or fail[s] to adequately explain the chosen

sentence—including an explanation for any deviation from the Guidelines range.”                          Gall v.

United States, 552 U.S. 38, 51 (2007). Substantive reasonableness requires the sentence imposed

by the district court to be reasonable based upon the totality of the circumstances. Id.

        With respect to Ms. Williams’s argument that she should have received a downward

variance under the “aberrant behavior” provision of the Sentencing Guidelines,7 we normally do

not review that question “unless the record shows that the district court was unaware of, or did

not understand, its discretion to make such a departure.” Bazazpour, 690 F.3d at 804. A review

of the transcript of Ms. Williams’s sentencing reveals that the trial court was well-aware of its


7
   This provision of the Sentencing Guidelines provides: “The court may depart downward under this policy
statement only if the defendant committed a single criminal occurrence or single criminal transaction that (1) was
committed without significant planning; (2) was of limited duration; and (3) represents a marked deviation by the
defendant from an otherwise law-abiding life.” U.S.S.G. § 5K2.20(b).

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discretion to make a downward departure. We therefore reject Ms. Williams’s appeal on that

ground.

       Finally, we reach Ms. Williams’s claim that the trial court did not adequately consider the

sentencing factors enumerated at 18 U.S.C. § 3553(a) when fashioning her sentence.

Ms. Williams received a sentence that was substantially below the lowest end of the range

recommended by the Sentencing Guidelines. While the trial court calculated the Guidelines

range to be between 121 and 151 months, it sentenced Ms. Williams to only 60 months in jail. In

explaining its sentence, the district court emphasized that its decision to issue a below-Guidelines

sentence—despite the severity of Ms. Williams’s offense—was motivated primarily by

Ms. Williams’s lack of criminal history and her low risk of recidivism. Instead of unthinkingly

imposing a sentence tethered only to the Guidelines’ recommendations, the district court

engaged in a thoughtful and independent assessment of each of the § 3553(a) factors.

That assessment ultimately convinced the court that a below-Guidelines sentence was warranted.

This is precisely the type of reflective judgment that judges should exercise when sentencing

criminal defendants under the Guidelines.        Under these circumstances, we find that Ms.

Williams’ sentence is both procedurally and substantively reasonable and we affirm the trial

court’s sentencing order.

                                      B. Jamella Al-Jumail

       Ms. Al-Jumail raises four questions for this Court’s review on appeal. For the reasons

articulated below, we affirm the district court’s judgment against Ms. Al-Jumail in its entirety.

                              1. Sufficiency of the Evidence Claim

       Like Ms. Williams, Ms. Al-Jumail claims that the evidence presented at trial was

insufficient to support the jury’s guilty verdict against her with respect to the conspiracy to


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commit health care fraud count. We analyze this claim according to the same standard applied to

Ms. Williams’s sufficiency claim.

       Ms. Al-Jumail’s only contention with respect to the sufficiency of the evidence is that the

Government failed to produce sufficient evidence to permit a reasonable trier of fact to find that

she ever entered into a voluntary agreement with another conspirator with intent to defraud

Medicare. See Medlock, 792 F.3d at 711 (requiring proof of voluntary agreement to defraud a

health care benefit program). While Ms. Al-Jumail does not dispute that she was in charge of

Accessible’s day-to-day operations or that Accessible did in fact defraud Medicare, she does

allege that she was merely following her father’s orders and that she lacked the requisite intent to

defraud Medicare through her actions. The testimony of Mr. Sharma and several Accessible

employees told a different story at trial. Mr. Sharma testified that he and Ms. Al-Jumail worked

together to falsify documents to obtain permission to bill Medicare for home health services.

Additionally, two Accessible employees testified that Jamella orchestrated and oversaw an

elaborate system of document fabrication in order to ensure that Medicare would not catch wind

of the ongoing fraud at Accessible. The Government’s evidence at trial also indicated that Ms.

Al-Jumail forbade Accessible’s billing staff from discussing their concerns about Accessible’s

billing practices with anyone but herself or her father. Taken together, this evidence was

sufficient to permit a reasonable juror to infer that Ms. Al-Jumail knew of the fraudulent nature

of Accessible’s business model and that she had at least tacitly agreed to participate in Mr. Al-

Jumail’s scheme to defraud Medicare.

       Like Ms. Williams, Ms. Al-Jumail also argues that the Government’s failure to produce

the biller who actually submitted the fraudulent claims to Medicare means that the jury’s verdict




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was based on insufficient evidence. For the same reasons discussed above with regard to Ms.

Williams, this argument is unavailing.

       Thus, the jury’s verdict against Ms. Al-Jumail was supported by sufficient evidence and

we affirm the district court’s denial of Ms. Al-Jumail’s Rule 29 and Rule 33 motions for

judgment of acquittal.

                                2. Prosecutorial Misconduct Claim

       Ms. Al-Jumail also asserts that certain statements made by the Government’s lawyers

during closing arguments amounted to unconstitutional burden-shifting entitling her to a new

trial. In an attempt to convince the jury to find their clients not guilty, Mr. Al-Jumail’s, Ms.

Williams’s, and Dr. Vigor’s attorneys all made reference to the fact that the Government failed

to produce the biller who actually submitted the disputed claims to Medicare as part of their

closing arguments. After obtaining leave of the district court, the Government’s lawyer said the

following to the jury in rebuttal:

               Now, Mr. Johnson, Mr. Louissell, they complain that the
               Government didn’t call Cassandra Cochran[, the biller]. Do we
               have the burden of proof in this case? Yes. Absolutely.
               Absolutely. Do they have to call one single witness? Nope. I have
               the entire burden of proof. But they could have called her. They
               could have.

On appeal, Ms. Al-Jumail argues that these statements impermissibly shifted the Government’s

burden of proof by suggesting that the Defendants were obliged to produce witnesses to establish

their innocence.

       This Court has long held that a criminal defendant’s Fifth Amendment privilege against

compelled self-incrimination entitles him to a new trial when a prosecutor’s improper comments

at trial flagrantly shift the burden of proof from the government to the defendant. See United

States v. Wimbley, 553 F.3d 455, 461 (2009) (citing United States v. Robinson, 651 F.2d 1188,

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1197 (6th Cir. 1981)). We apply a two-step analysis when we assess claims of prosecutorial

misconduct: “First, we must determine whether the statements were improper. If we conclude

the statements were improper, then we must determine whether the remarks were flagrant and

thus warrant reversal [and a new trial].” United States v. Carson, 560 F.3d 566, 574 (6th Cir.

2009) (internal citations omitted). Claims of prosecutorial misconduct are mixed questions of

law and fact and we review them de novo. Id.

       Our precedents hold that a prosecutor’s suggestion that the defendant could have called a

given witness is not improper when made in rebuttal to an implication by the defendant during

closing argument that “the government failed to call a witness because the evidence would be

favorable to the defendant.” United States v. Newton, 389 F.3d 631, 638 (6th Cir. 2004)

(describing United States v. Clark, 982 F.2d 965, 968 (6th Cir. 1993)), vacated on other grounds,

546 U.S. 803 (2005). Clark involved a set of facts highly similar to the facts here: Clark was

questioned by two federal agents after being charged with several federal drug offenses. Clark,

982 F.2d at 966–67. The government opted to offer the testimony of only one of the federal

agents, Agent Milhills, at Clark’s subsequent trial. Id. at 967. At closing, Clark’s attorney

suggested that the government might have kept the second agent from the jury because he would

not have corroborated Milhills’s testimony. Id. In rebuttal, the government noted that Clark had

the “opportunity,” but “not the responsibility” to call the second agent if he believed that the first

agent was lying. Id. This Court held that the prosecutor’s remarks did not amount to misconduct

because they “were made in response to defense counsel’s argument that implied that the

government had not called the other agent to testify because Milhills lied on the stand,” and

because they “did not imply in any way that the burden of proof was on the defendant to prove

his innocence.” Id. at 969.


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       A similar analysis guides our decision here. As in Clark, the Government’s statement

that the defendants “could have” called the biller was made directly in response to the suggestion

of several defendants’ closing arguments that the Government kept the witness from the jury

because the evidence would not corroborate the testimony of the federal agent who testified

about the claims that ABC, Accessible, and Haven submitted to Medicare. The Government in

this case was even more unequivocal about who bore the burden of proof in this case than the

prosecutor in Clark: the Assistant United States Attorney giving the rebuttal stated squarely that

he had “the entire burden of proof” in the case and that the defendants did not “have to call one

single witness.” Because these statements were made in response to the defendants’ claims that

the Government was keeping unfavorable evidence from the jury and because the prosecutor

clearly stated that the Government retained the burden of proof, the statements do not rise to the

level of unconstitutional prosecutorial misconduct.

                           3. Erroneous Sentencing Calculation Claim

       Ms. Al-Jumail claims that the trial court erroneously calculated her sentence because it

did not make a sufficiently “individualized finding” as to the amount of loss attributable to her

after she joined the conspiracy because the court never made a specific finding as to the date she

joined the conspiracy. Because she did not raise this specific issue when the district court asked

if Ms. Al-Jumail had any additional objections after receiving her sentence, we review this claim

for plain error. See United States v. Bostic, 371 F.3d 865, 872–73 (6th Cir. 2004). To rise to the

level of plain error, the defendant must show that the alleged error was “obvious or clear” and

that it affected both the “defendant’s substantial rights,” and “the fairness, integrity, or public

reputation of the judicial proceedings.” United States v. Vonner, 516 F.3d 382, 386 (6th Cir.




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2008) (quoting United States v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006)) (internal quotation

marks omitted). A finding of such error is “exceptional.” Id.

       The district court calculated Ms. Al-Jumail’s offense level in part by applying a 14-level

increase on the basis of the judge’s determination of the intended losses at Accessible. Notably,

the district court did not attribute the intended losses of any of the other relevant entities to

Ms. Al-Jumail, as it could have. Since the evidence at trial suggested that, at a bare minimum,

Ms. Al-Jumail was involved with the fraud at Accessible from its very inception, the district

court’s determination that Ms. Al-Jumail’s conduct was responsible for all of the intended losses

at Accessible was reasonable and well within the trial judge’s broad discretion when calculating

the offense level. See United States v. Johnson, 732 F.3d 577, 584 (6th Cir. 2013). Any error by

the district court in calculating Ms. Al-Jumail’s offense level cannot be said to be “obvious or

clear.” Vonner, 516 F.3d at 386. We therefore affirm the trial court’s calculation of Ms. Al-

Jumail’s offense level.

                                       4. Apprendi Claim

       Ms. Al-Jumail’s final claim on appeal is that the district court’s order directing her to pay

$589,516.69 in restitution under the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A, was

unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000), because the jury never

determined the loss attributable to her participation in the conspiracy. Ms. Al-Jumail did not

raise this claim at the sentencing hearing, so we review it only for plain error. Bostic, 371 F.3d

at 872–73.

       In Apprendi, the Supreme Court held that “any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt.” 530 U.S. at 490. This Court subsequently held that restitution awards are not


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subject to the Apprendi rule because “restitution statutes do not specify a statutory maximum.”

United States v. Sosebee, 419 F.3d 451, 461 (6th Cir. 2005). Despite the Supreme Court’s

expansion of the Apprendi rule to cover the facts used to assess criminal fines, see S. Union Co.

v. United States, 132 S. Ct. 2344, 2357 (2012), this Court very recently held that Southern Union

did not disturb Sosebee’s holding that restitution awards are not subject to Apprendi. United

States v. Churn, 800 F.3d 768, 782 (6th Cir. 2015) (“Apprendi does not apply to the MVRA.”);

United States v. Sawyer, 825 F.3d 287, 297 (6th Cir. 2016) (“Southern Union did nothing to call

into question the key reasoning at the heart of Sosebee, namely that the restitution statutes do not

specify maximum awards.”).

        In light of the clear import of our precedents on this question, Ms. Al-Jumail’s reliance

upon Southern Union as support for her claim is misplaced. Because Apprendi review does not

apply to restitution awards, the trial court did not plainly err by failing to submit the issue to the

jury.

                                       C. Abdul Al-Jumail

        Mr. Al-Jumail’s only claim on appeal centers on the district court’s denial of his motion

to sever his trial from the trial of his daughter and co-conspirator, Ms. Al-Jumail. For the

reasons articulated below, we affirm the district court’s denial of Mr. Al-Jumail’s motion.

        Mr. Al-Jumail contends that the trial court should have granted his Rule 14 motion to

sever his trial because a joint trial with his daughter would involve a substantial likelihood that

the jury would infer that he was guilty if it found Ms. Al-Jumail guilty by virtue of their familial

relationship. See Fed. R. Crim. P. 14. Because Mr. Al-Jumail did not renew his motion to sever

at the close of all evidence, we review the district court’s ruling only for plain error. United

States v. Walls, 293 F.3d 959, 966 (6th Cir. 2002).


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       Because joint trial of defendants who were indicted together “promote[s] efficiency” and

“serve[s] the interests of justice,” Federal Rule of Criminal Procedure 14 has been interpreted to

require severance “only if there is a serious risk that a joint trial would compromise a specific

trial right of one of the defendants, or [would] prevent the jury from making a reliable judgment

about guilt or innocence.” Zafiro v. United States, 506 U.S. 534, 537–39 (1993). “[D]efendants

are not entitled to severance merely because they may have a better chance of acquittal in

separate trials.” Id. at 540. Instead, defendants should point to discrete sources of “specific and

compelling prejudice” to their trial rights or the jury’s ability to reliably decide the case before

severance will be granted. Walls, 293 F.3d at 966.           Generalized allegations of prejudice

associated with the “spillover of evidence” are almost never sufficient to require severance

without more. United States v. Fields, 763 F.3d 443, 457 (6th Cir. 2014). Many of our sister

Circuits hold that the mere fact that two defendants are closely related is not sufficient to require

severance of a joint criminal trial. See, e.g., United States v. Nguyen, 493 F.3d 613, 625–26 (5th

Cir. 2007) (severance not required in joint trial of twin brothers).

       Mr. Al-Jumail does not argue that any specific trial right of his has been prejudiced

because of his joint trial with his daughter. Rather, he claims that the jury would infer that he

was guilty if it found his daughter guilty. While it is probably true that a jury that convicted Ms.

Al-Jumail would also be likely to convict Mr. Al-Jumail, that is because they were both co-

owners and operators at Accessible, not because Mr. Al-Jumail was Ms. Al-Jumail’s father or

because the jury could not separately consider the evidence against each of them. In light of the

generalized nature of Mr. Al-Jumail’s allegations of prejudice and the weight of persuasive

authority in favor of the proposition that familial relationships alone are not sufficient to require




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severance under Rule 14, the district court did not plainly err in denying Mr. Al-Jumail’s motion

for severance.

       The judgments of the district court are AFFIRMED.




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