     Case: 11-20847       Document: 00512187281         Page: 1     Date Filed: 03/26/2013




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

                                                                            FILED
                                                                          March 26, 2013
                                     No. 11-20847
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MARION BEVERLY METOYER,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CR-480-4


Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Marion Beverly Metoyer appeals her convictions for conspiracy to commit
health care fraud, committing health care fraud, and conspiracy to violate the
anti-kickback statute in violation of 18 U.S.C. §§ 2, 371, 1347, and 1349. She
was sentenced to 21 months of imprisonment and three years of supervised
release on each count to run concurrently. She contends there was insufficient
evidence that she knew the Durable Medical Equipment (DME) supplier was



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
    Case: 11-20847     Document: 00512187281      Page: 2   Date Filed: 03/26/2013

                                  No. 11-20847

using the information she provided to commit Medicare fraud and that it was
illegal for her to be paid for recruiting Medicare beneficiaries.
      Metoyer preserved de novo review of the sufficiency of the evidence by
moving for a judgment of acquittal at the close of the Government’s case and at
the end of the trial. See United States v. Ferguson, 211 F.3d 878, 882 (5th Cir.
2000). In reviewing the sufficiency of the evidence, we examine “whether,
viewing the evidence in the light most favorable to the verdict and drawing all
reasonable inferences from the evidence in support of the verdict, a rational trier
of fact could have found that the evidence established the essential elements of
the offense beyond a reasonable doubt.” Id. (citation omitted).
      Metoyer approached the Medicare beneficiaries uninvited and offered
them scooters or power wheelchairs. She approached at least one beneficiary
under false pretenses. Some of these beneficiaries were ambulatory, and there
was no evidence that they had prescriptions from their doctors for this
equipment. The form that Metoyer completed for the beneficiaries referred to
“disaster claim replacements.” There was no evidence that these beneficiaries
had previously owned scooters or power wheelchairs that had been destroyed in
hurricanes, and two forms falsely represented that the beneficiaries had
previously owned scooters.      Based on the foregoing, the jury could have
rationally inferred that Metoyer knew that these beneficiaries were not eligible
for reimbursement for the requested DME and that any claims filed with
Medicare for reimbursement for this equipment would be fraudulent.
      Her employment history and experience in the health care industry
further support the jury’s implicit rejection of her claim of ignorance of the
fraudulent scheme. Metoyer had previously worked as a licensed insurance
agent, sold Medicare supplemental insurance policies, and referred Medicare
beneficiaries to another DME supplier. She knew that a doctor’s prescription
was required for reimbursement for DME. Thus, the jury could have inferred



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                                   No. 11-20847

that     Metoyer   was   knowledgeable       of   basic   Medicare   reimbursement
requirements.
        Based on the foregoing, a rational trier of fact could have found that the
evidence established beyond a reasonable doubt that Metoyer knew that the
DME supplier was using the information she provided to defraud Medicare. See
Ferguson, 211 F.3d at 882. Thus, there was sufficient evidence to sustain her
convictions for conspiracy to commit health care fraud and health care fraud.
Her arguments on appeal amount to a disagreement with the jury’s implicit
rejection of her testimony that she did not know that the DME supplier was
using the information she provided to defraud Medicare. “The jury is solely
responsible for determining the weight and credibility of the evidence; this court
will not substitute its own determination of credibility for that of the jury.”
United States v. Casilla, 20 F.3d 600, 602 (5th Cir. 1994).                From the
aforementioned evidence, the jury was entitled to disbelieve Metoyer’s claim of
ignorance of the fraudulent scheme.
        An investigator testified that she and another agent had warned Metoyer
that it was illegal to receive any payment for referring a Medicare beneficiary.
Although Metoyer testified that she understood this warning differently, the jury
was entitled to credit the investigator’s testimony over Metoyer’s. See id. A
rational trier of fact could have found that the evidence established beyond a
reasonable doubt that Metoyer knew that it was illegal to receive payments or
kickbacks for referring Medicare beneficiaries. See Ferguson, 211 F.3d at 882.
Thus, there was sufficient evidence to sustain her conviction for conspiracy to
violate the anti-kickback statute.
        The judgment of the district court is AFFIRMED.




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