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Full Opinion
Case: 12-60754 Document: 00512572663 Page: 1 Date Filed: 03/25/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 12-60754 March 25, 2014
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellant
v.
RAYMOND LAMONT SHOEMAKER, also known as Ray Shoemaker;
EARNEST LEVI GARNER, JR., also known as Lee Garner,
Defendants - Appellees
Consolidated with
No. 12-60791
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
RAYMOND LAMONT SHOEMAKER, also known as Ray Shoemaker,
Defendant - Appellant
Appeals from the United States District Court
for the Northern District of Mississippi
Case: 12-60754 Document: 00512572663 Page: 2 Date Filed: 03/25/2014
No. 12-60754
Consolidated with
No. 12-60791
Before STEWART, Chief Judge, and GARZA and SOUTHWICK, Circuit
Judges.
EMILIO M. GARZA, Circuit Judge:
Earnest Levi Garner (âGarnerâ) and Raymond Lamont Shoemaker
(âShoemakerâ) stood trial for various federal crimes arising from a bribe and
kickback scheme involving a community hospital. The crimes included
conspiracy, federal program bribery, paying and receiving healthcare
kickbacks, embezzlement, and making false statements to federal agents.
After the jury returned guilty verdicts on all counts, the district court entered
judgments of acquittal and, in the alternative, granted new trials as to several
of the counts. We resolve two appeals in this opinion: In No. 12-60754, the
Government appeals the district courtâs judgments of acquittal and grants of
new trials for Garner and Shoemaker, and in No. 12-60791, Shoemaker
appeals the district courtâs denial of his motion for judgment of acquittal or
new trial on the remaining counts, of which he alone was convicted. We vacate
the district courtâs judgments of acquittal and grants of new trials, affirm
Shoemakerâs other convictions, and remand for reinstatement of the jury
verdict and for sentencing.
I
This case concerns a bribe and kickback scheme involving Tri-Lakes
Medical Center (âTLMCâ), a community hospital in Panola County,
Mississippi. 1 In 2004, when the County owned 60% of TLMC, the Countyâs
Board of Supervisors appointed David Chandler (âChandlerâ) to serve as the
1 Because both appeals concern judgments of acquittal, we present the facts in the
light most favorable to the Government. See United States v. Hanson, 161 F.3d 896, 900 (5th
Cir. 1998).
2
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Chairman of TLMCâs Board of Trustees. Chandler had been the County
Administrator for almost twenty years, and he was appointed to oversee the
sale of the hospital on behalf of the Board of Supervisors. As Chairman,
Chandler scheduled and set the agenda for hospital board meetings, contacted
department heads for reports, and regularly dealt with Shoemaker, then
TLMCâs Chief Operating Officer (âCOOâ).
Garner owned and operated a nurse staffing business known as
Guardian Angel Nursing and, later, as On-Call Staffing, which provided
temporary nurses to area hospitals. In early 2005, TLMC entered into a
contract with Guardian Angel Nursing after Chandler had arranged two
meetings between company representatives and Shoemaker. Soon thereafter,
Chandler requested that Garner pay him $5 for every nursing hour his
company billed at TLMC. According to Chandler, the $5 per hour was in return
for Chandlerâs ensuring that TLMC used Garnerâs company for contract nurses
and paid Garnerâs bills in a timely manner. About once a month, Garner would
push Chandler to increase hours for his nurse staffing business at TLMC, and
Chandler would lobby Shoemaker accordingly. A few months after this
arrangement commenced, Chandler signed a board authorization giving
Shoemaker a $50,000 raise. Upon Garnerâs request, Chandler created invoices
that did not directly correlate to billed hours but rather looked as if they were
for consulting or tax services; the memo âAccounting Feesâ or âAccounting
Servicesâ appeared on checks from Garner.
In total, Garner paid Chandler $268,000 as a result of the agreement,
and TLMC paid Garnerâs company approximately $2.3 million for nursing
services. Shoemakerâs executive assistant testified that Chandler, on behalf of
Garnerâs company, regularly delivered invoices to and picked up checks
3
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No. 12-60791
directly from Shoemakerâs office, while other vendors had no such billing
practices. Moreover, Garnerâs nursing company was typically the first vendor
paid by TLMC. Over the course of one year, when TLMC engaged a total of
seven nursing companies, Garnerâs company received 40% of the hospitalâs
business.
Meanwhile, in mid-2005, Robert Corkern (âCorkernâ) contracted to
purchase TLMC. However, in order to secure financing, he needed a non-profit
entity that would qualify for a loan backed by the United States Department
of Agriculture (âUSDAâ). Shoemaker offered Corkern the use of a non-profit
under his control called Kaizen, and Corkern transferred to Kaizen his right to
purchase TLMC. Subsequently, Kaizenâs name was changed to Physicians and
Surgeons Hospital Group (âPSHGâ).
In the fall of 2005, Chandler signed on behalf of TLMC a contract
providing PSHG with rights to purchase the hospital from Panola County and
the City of Batesville. Thereafter, PSHG purchased TLMC for approximately
$27 million. Once the sale was finalized, Chandler left the Board, and
Shoemaker was promoted from COO to Chief Executive Officer (âCEOâ).
Soon thereafter, Shoemaker began claiming that Garner and Corkern
owed him money. Just prior to the sale of the hospital, Chandler had arranged
a meeting between Shoemaker and Garner at the Como Steakhouse. During
the meeting, Garner excused Chandler from the table, whereupon Garner and
Shoemaker conversed privately for approximately thirty minutes. After the
sale of the hospital, Shoemaker demanded $25,000 from Chandler, claiming
that Garner had âpromisedâ that sum in return for Shoemakerâs maintaining
the flow of nursing hours and payments to Garnerâs business. Chandler
recounted this conversation to Garner, who initially did not respond. Chandler
4
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No. 12-60754
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No. 12-60791
then proposed that he would begin paying Shoemaker $2,000 per month, and
Garner replied that he did not care what Chandler did as long as the money
came out of Chandlerâs $5-per-hour fee. Chandler testified that he ultimately
paid Shoemaker a total of $12,000 over six months.
Later, Shoemaker demanded that Corkern pay him $250,000 for
providing use of the non-profit to acquire TLMC. Corkern refused, explaining
that it was illegal to sell a non-profit entity. There was no mention in any sale
or loan documents of any debt owed by Corkern to Shoemaker regarding the
sale of the non-profit, and Corkern testified that Shoemaker had not demanded
such payment initially.
Shoemaker ultimately secured $250,000, though not from Corkern.
While the hospital was applying to GE Capital for a line of credit that had to
be approved by the USDA, Shoemaker signed a letter to the USDA stating that
the hospital desperately needed working capital for its day-to-day operations.
The letter did not indicate that Shoemaker would also pay himself using the
funds. That same month, Shoemaker signed a statement certifying that the
loan would be used only for the hospital and would not be applied toward the
obligations of any third parties or affiliates. On the day the line of credit was
issued, Shoemaker went to TLMCâs business office and had a check for
$250,000 issued to Kaizen. No one in the business office knew that Shoemaker
had previously owned Kaizen. When TLMC received its first draw under the
GE line of credit, the $250,000 was replenished. Shoemaker later presented
an invoice to the business office indicating that the payment to Kaizen was for
âorganizational costs.â Shoemaker subsequently deposited the check into a
bank account that he controlled.
5
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In October 2009, Federal Bureau of Investigation (âFBIâ) Special Agent
Shannon Wright interviewed Shoemaker. At first, Shoemaker denied
receiving $10,000 in checks from Chandler. Then he said he was â99% sureâ
he had not received any checks but that if he had, he would like to see them.
Afterward, Shoemaker and Chandler agreed that they would call the payments
a loan. Accordingly, the next time Agent Wright interviewed Shoemaker, he
explained that Chandler had loaned him $10,000.
Chandler later began cooperating with the government and recording his
consensual conversations with Garner. In one such conversation, Garner
wondered if Chandlerâs payments to Shoemaker were âgonna be called
bribery.â They agreed to characterize the $5-per-hour arrangement as
payments for âaccountingâ and âprofessionalâ services, and Garner insisted
that the bill not disclose the arrangement or otherwise correspond with
nursing hours. Later in that conversation, Garner said, âYou know I told you
. . . I . . . I didnât need to know who you paid . . . what you did.â Although
Chandlerâs testimony was inconsistent as to the meaning of Garnerâs
statement, he ultimately explained that it referred to his payments to
Shoemaker, and to Garnerâs earlier remark that he did not care what Chandler
did with his $5-per-hour fee.
Shortly thereafter, Agent Wright and USDA Special Agent Keith Luke
interviewed Garner. They asked Garner about the payments to Chandler, and
Garner explained that certain larger payments constituted a âfinderâs feeâ for
securing business at TLMC. He also confirmed that he paid $5 for every hour
that his company billed and collected at TLMC.
Garner and Shoemaker were subsequently charged in twelve counts of
the Superseding Indictment. Both Garner and Shoemaker were charged with
6
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No. 12-60754
Consolidated with
No. 12-60791
two counts of conspiracy in violation of 18 U.S.C. § 371: Count One charged
conspiracy to violate 18 U.S.C. § 666 by bribing Chandler and Shoemaker, and
Count Four charged conspiracy to violate 42 U.S.C. § 1320aâ7b, based on the
same facts alleged in Count One. Garner alone was charged in Count Two for
violating 18 U.S.C. § 666 by bribing Chandler, and in Count Five for violating
42 U.S.C. § 1320aâ7b, based on the same bribes. Shoemaker alone was charged
in Count Three for receiving bribes, in violation of 18 U.S.C. § 666; in Count
Six for soliciting and receiving healthcare kickbacks, in violation of 42 U.S.C.
§ 1320aâ7b; in Count Seven for making false statements to the FBI, in violation
of 18 U.S.C. § 1001; in Count Eight for conspiring to violate 18 U.S.C. § 1014
by making false statements to the USDA, in violation of 18 U.S.C. § 371; in
Counts Nine through Eleven for making various false statements to the USDA,
in violation of 18 U.S.C. §1014; and in Count Twelve for embezzlement of
$250,000, in violation of 18 U.S.C. § 666.
After a nine-day trial, the jury found both Garner and Shoemaker guilty
on all counts. Both defendants filed motions for judgment of acquittal on all
counts or, in the alternative, a new trial. The district court then granted
judgments of acquittal and, in the alternative, new trials to Garner as to
Counts One, Two, Four, and Five, and to Shoemaker on Counts One and Four.
As for Count Three, the district court denied Shoemakerâs motion for judgment
of acquittal but granted him a new trial. The district court denied Shoemakerâs
motions as to Counts Six through Twelve. Thus, no convictions stood against
Garner. Shoemaker remained convicted of Counts Three and Six through
Twelve.
The Government now appeals all judgments of acquittal and grants of
new trials. Shoemaker appeals from his remaining convictions.
7
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No. 12-60754
Consolidated with
No. 12-60791
II
The Government contends that the district court erred in granting
judgments of acquittal to Garner on Counts One, Two, Four, and Five, and to
Shoemaker on Counts One and Four. The district court determined that
insufficient evidence supported each conviction, and on appeal, the
Government challenges these determinations.
We give no deference to a district courtâs post-verdict judgment of
acquittal. United States v. Hanson, 161 F.3d 896, 900 (5th Cir. 1998). Rather,
we âdecide de novo whether the relevant evidence, viewed in a light most
favorable to the government, could be accepted by a jury as adequate and
sufficient to support the conclusion of the defendantâs guilt beyond a
reasonable doubt.â Id. (internal quotation marks and citation omitted). In
considering the sufficiency of the evidence, we must bear in mind that the âjury
is free to choose among reasonable constructions of the evidence,â even when
certain evidence conflicts or suggests innocence. Id. Although a district court
may re-weigh evidence and assess witness credibility in considering a motion
for new trial, it has â[n]o such discretionâ when deciding a motion for judgment
of acquittal. United States v. Robertson, 110 F.3d 1113, 1117 (5th Cir. 1997).
A
Count One charged Garner and Shoemaker with conspiring to violate 18
U.S.C. § 666 by committing federal program bribery, in violation of 18 U.S.C.
§ 371. The district court read Count One to allege two distinct conspiraciesâ
a conspiracy between Garner, Shoemaker, and Chandler to bribe Chandler in
violation of 18 U.S.C. § 666, and a conspiracy between the same individuals to
8
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No. 12-60791
bribe Shoemaker, also in violation of § 666. 2 The district court granted
judgments of acquittal on Count One to Garner and Shoemaker because it
found the Governmentâs evidence insufficient for both conspiracies.
1
As to the first conspiracy in Count One, the district court reasoned that
in order for the convictions to stand, the Government had to present evidence
establishing that Chandler was an âagentâ under 18 U.S.C. § 666 whom the
conspiracy aimed to bribe. According to the district court, the Governmentâs
evidence that Chandler was a TLMC board member and Panola County
employee could not suffice. Rather, the evidence at a minimum had to
establish that Chandler possessed âcontrol over the legal transactions of
[TLMC] in ordering nursing services.â
Section 666 criminalizes offering, giving, or agreeing to give anything of
value to any person with intent to influence or reward an âagentâ of an
organization in connection with a transaction exceeding $5,000 in value, where
the organization receives over $10,000 in federal funds over any one-year
period. 18 U.S.C. § 666(a)(2). The statute also prohibits an âagentâ from
soliciting, accepting, or agreeing to accept anything of value with the intent to
be influenced or rewarded in connection with such transactions. Id.
§ 666(a)(1)(B). 3 âAgentâ is defined as âa person authorized to act on behalf of
2 Although the district court and Shoemaker interpret Count One to allege two
conspiracies, the Government submits that Count One alleged only one conspiracy that âlater
expanded to include Shoemaker.â We decline to decide this issue, the significance of which
was not adequately briefed on appeal. To facilitate our analysis, we adopt the district courtâs
bifurcation.
3 The Superseding Indictmentâs language in Count One is broad and inclusive of both
§ 666(a)(2) and (a)(1)(B), alleging that the conspirators sought to âsolicit, accept, offer and
give anything of value . . . .â Count Two uses the language of § 666(a)(2) in alleging that
Garner âdid . . . corruptly give, offer, and agree to giveâ a bribe. Count Three uses the
9
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another person or a government and, in the case of an organization or
government, includes a servant or employee, and a partner, director, officer,
manager, and representative.â Id. § 666(d)(1).
In United States v. Phillips, 219 F.3d 404 (5th Cir. 2000), we considered
the scope of the term âagentâ in 18 U.S.C. § 666. Phillips was a Louisiana
parish tax assessor who allegedly hired his political ally and the allyâs wife in
order to provide them with health insurance benefits. In return, the couple
paid their salaries to Phillips as a kickback. The jury was instructed that
Phillips was an âagentâ of the parish if he had authority to act on its behalf and
that tax assessors are âparish officersâ under Louisiana law. The jury then
convicted Phillips and his ally for theft involving a federal program in violation
of § 666. Id. at 407â10. On appeal, we considered whether the evidence
sufficiently established that Phillips was an âagentâ of the parish within the
meaning of § 666.
We held that ââagentâ . . . should be construed . . . to tie the agency
relationship to the authority that a defendant has with respect to control and
expenditure of the funds of an entity that receives federal monies.â Id. at 415
(emphasis added). Put simply, an agent is someone authorized to act on behalf
of the organization or government not only in a general manner, but âwith
respect to its fundsâ in particular. Id. at 413. 4 Applying this test, we observed
language of § 666(a)(1)(B) in charging that Shoemaker, as an agent of TLMC, âdid . . .
corruptly solicit, demand, accept, and agree to acceptâ a bribe.
4 See also United States v. Brown, 727 F.3d 329, 338 (5th Cir. 2013) (applying Phillips
to theft offense under 18 U.S.C. § 666(a)(1)(A) and holding that sufficient evidence supported
jury verdict given that Governmentâs evidence showed that co-conspirator was âagentâ who
âwas authorized to act on behalf of the [covered entity] with respect to its fundsâ); United
States v. Whitfield, 590 F.3d 325, 344â47 (5th Cir. 2009) (applying Phillips and reversing
convictions where alleged agents had no authority over covered organizationâs funds when
acting in the transaction at issue).
10
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first that under Louisiana law, assessment districts were âindependent of
parish governmentâ; tax assessors were not parish officers; and the parish had
no power to control or determine salaries of tax assessors. Id. at 412. We
further reasoned that nothing in the record showed that Phillips had any âlegal
authority to bind the parish.â Id. at 413. We explained that âbecause Phillips,
as a matter of law, was not an employee or officer of the parish and because he
was not authorized to act on behalf of the parish with respect to its funds,
Phillipsâs actions did not and could not have threatened the integrity of federal
funds or programs.â Id. Thus, we concluded that Phillips was not an agent of
the parish for the purposes of § 666.
Here, we conclude that Chandler is an âagentâ within the meaning of §
666 as interpreted in Phillips. 5 As a textual matter, § 666 lists âdirectorâ and
âofficerâ as examples of agents, and Chandler, as the Chairman of TLMCâs
Board of Trustees, fell within this statutory definition. 18 U.S.C. § 666(d)(1).
Moreover, Chandler âwas authorized to act on behalf of [the hospital] with
respect to its funds.â Phillips, 219 F.3d at 411. Chandler scheduled and set
the agenda for hospital board meetings, contacted department heads for
5 We observe that Chandlerâs âagentâ status is not a necessary element of the offense
charged in either Count One or Count Two of the Superseding Indictment. 18 U.S.C. §
666(a)(2) criminalizes giving or offering anything of value to âany person, with intent to
influence or reward an agent of [a covered] organization . . . .â Thus, by the plain text of the
statute, it suffices for Count One that the conspirators agreed to have Garner give money to
Chandler, who is âany person,â with intent to influence Shoemaker, whoâthe parties do not
disputeâis an agent of TLMC as its COO and CEO. Likewise, for Count Two, evidence that
Garner paid Chandler with intent to influence Shoemaker would be sufficient. For both
counts, evidence of the intent to influence Shoemaker was sufficient, as explained below in
our discussion of Count Four. Therefore, proving Chandlerâs status as âagentâ is superfluous.
But because the jury instructions for Count Two (the substantive counterpart to the first
conspiracy in Count One) required a finding that Chandler is an agent, and because the
partiesâ briefing on Count One explores this question at length, we proceed to explain why
Chandler is an agent under § 666.
11
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reports at board meetings, and worked closely with Shoemaker, the COO and,
later, CEO. Most significantly, Chandler signed a board authorization giving
Shoemaker a $50,000 raise and signed a contract on behalf of the hospital
providing PSHG with the rights to purchase the hospital. 6 While Phillips was
âorganizationally removedâ from the parishâs funds because he was not an
officer of the parish, Chandler, as Chairman of TLMCâs board, was at the top
of the relevant organization and had full authority over its funds. Id.
The district court erred by pronouncing a new requirement that the
âagentâ have direct authority over the ultimate decision targeted by the bribeâ
here, the âauthority to order temporary nurses from providers, such as
Guardian Angel, on a day-to-day as-needed basis.â This requirement is absent
from both the statute and Phillips, which collectively require only that an
agent have general authority to act for the organization and to control its
funds. Id. at 411. 7 Because lines of authority are often blurred, to criminalize
6 Because Chandlerâs status as an âagentâ of TLMC suffices to sustain the convictions,
we do not decide whether Chandler was also an âagentâ of Panola County.
7 Since Phillips, we have suggested that a broader definition of âagentâ is more faithful
to the statutory text and purpose and to our earlier decisions addressing § 666. In United
States v. Lipscomb, 299 F.3d 303 (5th Cir. 2002), we held that because a city council member
qualified as an âagentâ of his city under § 666, the district court had jurisdiction to convict
him. Id. at 315â16. We explained that Phillips added âextra-textual teethâ to the âagentâ
definition by requiring the agent to have power over the organizationâs funds, and that this
additional requirement was potentially in tension with earlier cases. Lipscomb, 299 F.3d at
313; see also id. at 314 (âWe acknowledge that it is at least arguable . . . that this
âorganizationally removedâ language [of Phillips] conflicts with Westmoreland and Moeller,
even though . . . the Phillips panel may be perceived as having favored the âfunds focusâ for
§ 666. To the extent that there is a conflict, however, the older case controls . . . .â); id.
(explaining that âcorruption focusâ of Westmoreland âhas never been overruled either by this
court en banc or by the Supreme Courtâ). Likewise, the First, Third, Sixth, Seventh, and
Eleventh Circuits have rejected the narrower approach of Phillips. See United States v.
Fernandez, 722 F.3d 1, 11 (1st Cir. 2013); United States v. Vitillo, 490 F.3d 314, 323 (3d Cir.
2007); United States v. Hudson, 491 F.3d 590, 595 (6th Cir. 2007); United States v. Spano,
401 F.3d 837, 839â41 (7th Cir. 2005); United States v. Keen, 676 F.3d 981, 990 (11th Cir.
2012).
12
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only bribes paid to individuals with direct, formal authority to effect a desired
outcome would render § 666 virtually meaningless. 8
Alternatively, the district courtâs opinion might be read to mean that 18
U.S.C. § 666 prohibits successful bribes, regardless of the recipientâs official
authority. 9 By this logic, despite Chandlerâs lack of formal authority over
nurse staffing, if the Government had introduced evidence that he disregarded
protocols and actually channeled business to Garnerâs company, then his
conviction might have been saved. Citing testimony that nurse staffing
decisions were based solely on demand and vendor availability, the district
court concluded that no evidence established that Chandler actually influenced
decisions to give business to TLMC.
To the extent that the district court concluded that proof of an actual
quid pro quo was necessary to sustain the convictions, it erred as a matter of
Moreover, the Phillips majorityâs concern about avoiding constitutional doubts now
itself rests on doubtful foundations. See Phillips, 219 F.3d at 414â15 (discussing limits of
Spending Clause powers). In United States v. Sabri, 541 U.S. 600 (2004), the Supreme Court
held that § 666 is not facially unconstitutional for failing to require âany connectionâ between
the bribe and federal funds. Id. at 604. The Court reasoned that the Spending Clause gives
Congress authority to appropriate federal funds for the general welfare, and that the
Necessary and Proper Clause embraces power to protect the integrity of those funds using
§ 666, even when the bribe does not result in a direct misuse of federal resources. Id. at 605â
606.
Nonetheless, Phillipsâs narrower approach remains good law, see Brown, 727 F.3d at
338, and it does not require federal funds to be directly linked either to the bribe or to the
agent. See Phillips, 219 F.3d at 411 (â[T]he funds in question need not be purely federal, nor
must the conduct in question have a direct effect on federal funds.â). Neither, under Phillips,
must the agent have direct authority over the outcome that is the object of the bribe, contrary
to the district courtâs interpretation. We are thus satisfied that under Phillips, and on the
evidence in the record, Chandler was an âagentâ under § 666.
8 See Fischer v. United States, 529 U.S. 667, 678 (2000) (â[T]he language of [§ 666]
reveals Congressâ[s] expansive, unambiguous intent to ensure the integrity of organizations
participating in federal assistance programs.â).
9 On appeal, Shoemaker seems to defend both interpretations of the district courtâs
opinion: âChandler testified that he could not affect a single nursing hour and did not
influence anyone to enter the nursing contract with Garnerâs company.â
13
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law. Nothing in Phillips or the relevant statutes requires that the bribe at
issue be successful. A conspiracy under 18 U.S.C. § 371 requires only a
knowing agreement to commit an unlawful act against the United States and
an overt act by one of the co-conspirators in furtherance of the conspiracy. See
United States v. Coleman, 609 F.3d 699, 704 (5th Cir. 2010). In Count One,
the unlawful act is that proscribed by § 666, which requires only that the bribe-
giver âcorruptlyâ offer or give a bribe âwith intent to influence or rewardâ the
agent. 18 U.S.C. § 666(a)(2) (emphasis added). Here, the Government
introduced ample evidence of the corrupt intent behind the payments in
questionâChandlerâs testimony that he requested Garner pay him $5 per
nursing hour in return for his securing business, and that Garner would
periodically push Chandler to increase nursing hours. Neither the
Superseding Indictment nor the jury instruction includes any requirement
that Garner actually benefited from his bribe, and this absence accords with
the requirements of both § 371 and § 666. 10
2
Regarding the second conspiracy in Count One, in which Garner,
Shoemaker, and Chandler allegedly conspired to bribe Shoemaker, the district
10 Of course, evidence of a successful scheme is not wholly irrelevant, as it is probative
of the intent behind the alleged bribe payments. But here, other evidence of intent was
sufficient. Moreover, whether the bribe actually succeeded is a basic question of fact for the
jury: The âjury is free to choose among reasonable constructions of the evidence,â Hanson,
161 F.3d at 900, as well as make credibility determinations, Robertson, 110 F.3d at 1117.
Here, the jury might have disbelieved the TLMC nurse stafferâs testimony that others never
interfered with her decisions or, alternatively, understood Chandler to wield influence more
indirectly or surreptitiously, without exercising direct authority to choose nursing companies,
which he testified that he did not have. Additionally, the jury might have been persuaded by
the fact that Garnerâs company captured 40% of TLMCâs business during one year.
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court found that the Government failed to introduce any evidence of the
underlying agreement.
To obtain convictions under 18 U.S.C. § 371, the Government must prove
âan agreement between two or more persons to pursue an unlawful objective,â
among other elements. Coleman, 609 F.3d at 704. âTo be a conspiracy, an
express, explicit agreement is not required; a tacit agreement is enough.â
United States v. Westbrook, 119 F.3d 1176, 1189 (5th Cir. 1997). A conspiracy
may be proven with only circumstantial evidence or âinferred from a concert of
action.â United States v. Virgen-Moreno, 265 F.3d 276, 284â85 (5th Cir. 2001)
(internal quotation marks and citation omitted). Furthermore, âa conviction
may be based even on uncorroborated testimony of an accomplice or of someone
making a plea bargain with the government, provided that the testimony is
not incredible or otherwise insubstantial on its face.â United States v. Osum,
943 F.2d 1394, 1405 (5th Cir. 1991). Additionally, âthe jury is the ultimate
arbiter of the credibility of a witness,â and âtestimony generally should not be
declared incredible as a matter of lawâ unless it pertains to matters âthat the
witness physically could not have observed or events that could not have
occurred under the laws of nature.â Id.
Viewing the evidence in the light most favorable to the juryâs verdict, we
conclude that evidence of the agreement between Garner, Shoemaker, and
Chandler to bribe Shoemaker was sufficient to support the convictions.
Chandler testified that Shoemaker demanded $25,000 from him, claiming that
Garner had âpromisedâ that amount in return for Shoemakerâs maintaining
nursing hours for Garnerâs business. Chandler further testified that he
recounted this conversation to Garner, who did not respond immediately, and
that when Chandler then proposed that he would begin paying Shoemaker
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$2,000 per month, Garner said that he did not care what Chandler did as long
as the money came out of Chandlerâs $5-per-hour fee. Although Garner did not
agree to give his own money directly to Shoemaker, he acquiesced in
Chandlerâs proposal to pay Shoemaker. Garner thereby agreed to the plan to
compensate Shoemaker for his cooperation, to which plan both Chandler and
Shoemaker agreed as well. While the above âuncorroborated testimonyâ would
suffice, Osum, 943 F.2d at 1405, Chandlerâs testimony was corroborated by
other evidence. First, in tape-recorded exchange, Garner told Chandler, âYou
know I told you . . . I . . . I didnât need to know who you paid . . . what you did.â
Chandler testified that Garnerâs comment referred to Chandlerâs payments to
Shoemaker, and to Garnerâs earlier remark that he did not care what Chandler
did with his $5-per-hour fee. Additionally, the Government introduced
evidence of Chandlerâs monthly payments to Shoemaker, which totaled
$12,000.
Notwithstanding this evidence, the district court found that there was
âno substantive testimonyâ bearing on the agreement between Garner and
Shoemaker. The district court based this finding solely on the fact that at the
Como Steakhouse, Chandler had been excused from the table and therefore
could not testify about that specific conversation. The district court further
observed that â[t]he only persons present at the time in question [at the Como
Steakhouse] were Garner and Shoemaker, and no evidence was presented by
them of any such agreement.â
The district courtâs reasoning misunderstands its limited task in ruling
on a motion for a judgment of acquittal. In effect, the district court concluded
that the Government was required to prove the agreement between the three
individuals with direct evidence of a specific exchange between Garner and
16
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Shoemaker. But there was ample circumstantial evidenceâeven a âconcert of
actionââin the form of Chandlerâs testimony about Shoemakerâs demand for
$25,000 and reference to Garnerâs promise, 11 Garnerâs acquiescence, and
Chandlerâs payments. Virgen-Moreno, 265 F.3d at 284â85. The district courtâs
11 Furthermore, the district courtâs Bourjaily concerns are misplaced. In Bourjaily v.
United States, 483 U.S. 171 (1987), the Supreme Court held that a trial court may admit co-
conspirator statements under Federal Rule of Evidence 801(d)(2)(E) upon finding that the
requirements of that rule are satisfied based on a preponderance of the evidence, where such
evidence is not subject to evidentiary rules, except those on privilege, and may include the
statements in question. Id. at 175â78 (discussing treatment of preliminary questions under
Fed. R. Evid. 104(a)). Here, the district court noted in passing that âno Bourjaily findings
were made or asked to be made prior to the prosecution eliciting this testimony from
Chandler [regarding Shoemakerâs claim that Garner had âpromisedâ him $25,000].â On
appeal, Shoemaker, also citing Bourjaily in passing, claims that the district court âproperly
rejected this hearsay testimony . . . .â
First, we note that neither Garner nor Shoemaker objected to the testimony at trial,
and their motions for judgment of acquittal or new trial did not mention any hearsay problem,
let alone Bourjaily. While the district court âmay on its own consider whether the evidence
is insufficient to sustain a conviction,â Fed. R. Crim. P. 29(a), we know of no authority
establishing a district courtâs power to base a judgment of acquittal on its sua sponte exclusion
of evidence admitted at trial without objection. But cf. Webster v. Duckworth, 767 F.2d 1206,
1215 (7th Cir. 1985) (discussing Ninth Circuit cases that permit district court to grant new
trial if some admitted evidence should have been excluded, and remaining evidence would
have been insufficient).
Second, even if Shoemakerâs statement about Garnerâs promise would have been
barred following a Bourjaily hearing, there was no plain error because Garner and
Shoemakerâs âsubstantial rightsâ were not affected, United States v. Montes-Salas, 669 F.3d
240, 247 (5th Cir. 2012), since other admissible testimony would have been sufficient to
support the conspiracy convictions. First, Chandler stated that Shoemaker said, âI donât
know whatâs going on, but Iâve held up the end of my deal, but I am not getting â that Lee
hadnât held up the end of his deal.â This statement is a party-opponent admission, admissible
against Shoemaker, and supports his conspiracy conviction on Count One because it
establishes his agreement with the other individuals that he should be receiving bribes. Fed.
R. Evid. 801(d)(2)(A). Later, when Chandler offered to pay Shoemaker $2,000 a month,
Garner said that âhe didnât care who or what [Chandler] paid as long as it came out of
[Chandlerâs] $5 an hour.â Garnerâs response is a party-opponent admission as well and
supports Garnerâs conspiracy conviction on Count One because it establishes his agreement
with the others to provide Shoemaker with bribes (via Chandler). Thus, even without
Shoemakerâs reference to Garnerâs promise, a rational jury could have found beyond a
reasonable doubt that Garner, Shoemaker, and Chandler conspired to violate 18 U.S.C. §
666.
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faulting the Government for not presenting to the jury the precise words
spoken during the Como Steakhouse conversation upends the principle that
âtacit agreement is enoughâ to establish a conspiracy. Westbrook, 119 F.3d at
1189. Moreover, even assuming that Garner and Shoemaker never agreed
directly with each other to enter into the conspiracy, we conclude that the
convictions are adequately supported by evidence of Garnerâs verbally agreeing
to let Chandler pay Shoemaker, and Chandlerâs tacitly agreeing with
Shoemaker by making the requested payments. 12 Alternatively, the district
courtâs summary rejection of Chandlerâs testimony amounts to an
impermissible credibility judgment. Because Chandler did not speak about
matters that he âphysically could not have observed or events that could not
have occurred under the laws of nature,â his credibility was an issue for the
jury. Osum, 943 F.2d at 1405.
Accordingly, because sufficient evidence supported all requisite elements
of the conspiracies to bribe Chandler and Shoemaker, we hold that the district
court erred in granting Garnerâs and Shoemakerâs motions for judgment of
acquittal on Count One.
B
Count Two charged Garner with federal program bribery in violation of
18 U.S.C. § 666. The facts alleged in Count Two were the substantive
counterpart to the first conspiracy charged in Count One: That is, Garner
allegedly carried out the conspiracy by actually bribing Chandler.
The district court granted Garnerâs motion for judgment of acquittal on
Count Two on the grounds that no evidence demonstrated that Chandler was
12See United States v. Payne, 99 F.3d 1273, 1279 n.6 (5th Cir. 1996) (explaining chain
conspiracy, in which âeach link may not know the entire chainâ).
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an âagentâ under § 666. For the reasons discussed above, see supra Part II.A.1,
the district court erred. Additionally, we reject Garnerâs contention that
evidence of the requisite mens rea was insufficient. See 18 U.S.C. § 666(a)(2)
(criminalizing bribes offered âcorruptlyâ). The jury heard Chandlerâs testimony
that Garner sought to conceal the link between the bribes and nursing hours,
and pursuant to this plan, the memo âAccounting Feesâ or âAccounting
Servicesâ appeared on the checks that Garner gave to Chandler. The jury acted
well within its power to âchoose among reasonable constructions of the
evidenceâ by crediting Chandlerâs testimony, especially in light of the checks.
Hanson, 161 F.3d at 900.
The district court thus erred in granting a judgment of acquittal to
Garner on Count Two.
C
Premised on the same facts as Count One, Count Four charged Garner
and Shoemaker with conspiracy to violate 42 U.S.C. § 1320aâ7b by providing
healthcare kickbacks, in violation of 18 U.S.C. § 371. The district court read
Count Four, like Count One, as alleging two distinct conspiraciesâa
conspiracy between Garner, Shoemaker, and Chandler to pay kickbacks to
Chandler in violation of 42 U.S.C. § 1320aâ7b(b)(2)(B), and a conspiracy
between the same individuals to pay kickbacks to Shoemaker also in violation
of § 1320aâ7b(b)(2)(B). 13 The district court granted judgments of acquittal on
Count Four to Garner and Shoemaker because it found fatal omissions in the
Governmentâs proof of both conspiracies. With respect to the first conspiracy,
13The factual allegations of Counts One and Two are identical to those of Counts Four
and Five; the two pairs of counts differ only in the statutory basis of the charges: 18 U.S.C. §
666 underlies Counts One and Two, while 42 U.S.C. § 1320aâ7b(b)(2)(B) underlies Counts
Four and Five.
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the district court reasoned that no evidence established that Chandler was a
ârelevant decisionmakerâ under § 1320aâ7b(b)(2)(B). With respect to the
second, the district court found that there was no evidence of any agreement
underlying the conspiracy. 14
1
Regarding the first conspiracy in Count Four, the district court reasoned
that in order for the convictions under 42 U.S.C. § 1320aâ7b(b)(2) to stand, the
Government had to present evidence establishing that Chandler was a
ârelevant decisionmaker.â The district court concluded that because â[i]t is
undisputed that Chandler had no decision-making authority in regard to the
actual procurement of nursing staff,â he could not be a ârelevant
decisionmaker.â
Enacted as part of the Medicare-Medicaid Anti-Fraud and Abuse
Amendments, 42 U.S.C. § 1320aâ7b(b)(2) criminalizes the payment of
remuneration under two related circumstances:
(2) whoever knowingly and willfully offers or pays any
remuneration (including any kickback, bribe, or
rebate) directly or indirectly, overtly or covertly, in
cash or in kind to any person to induce such personâ
(A) to refer an individual to a person for the
furnishing or arranging for the furnishing of
any item or service for which payment may
be made in whole or in part under a Federal
health care program, or
(B) to purchase, lease, order, or arrange for or
recommend purchasing, leasing, or ordering
14Again, as with Count One, in order to facilitate our review of the district courtâs
opinion, we assume without deciding that two separate conspiracies were alleged.
20
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any good, facility, service, or item for which
payment may be made in whole or in part
under a Federal health care program,
shall be guilty of a felony and upon conviction thereof,
shall be fined not more than $25,000 or imprisoned for
not more than five years, or both.
42 U.S.C. § 1320aâ7b(b)(2)(A), (B). Thus, the statute prohibits payments to
âany person,â so long as the payment is made with the requisite intent: The
payer must âknowingly and willfullyâ offer or make a payment to induce the
recipient either âto refer an individual to a personâ for the provision of a
covered healthcare good or service under subsection (A), or âto purchase, lease,
order, or arrange for or recommendâ procuring a covered healthcare good or
service under subsection (B).
Here, applying the statute and viewing the evidence in the light most
favorable to the juryâs verdict, we hold that sufficient evidence supported
Garnerâs and Shoemakerâs convictions for conspiring to pay Chandler with the
intent âto induce [Chandler to] arrange for or recommendâ procuring nursing
services from Garner. 42 U.S.C. § 1320aâ7b(b)(2)(B). The Government
introduced evidence that Chandler requested that Garner pay him $5 per hour
for every nursing hour billed and collected at TLMCâpayments that,
according to Chandler, were in return for his ensuring that TLMC used
Garnerâs company for contract nurses. About once a month, Garner would
push Chandler to increase his companyâs nursing hours at TLMC, and
Chandler would lobby Shoemaker accordingly. Moreover, Chandler testified
that he ultimately paid Shoemaker a total of $12,000 over six months in order
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to maintain influence over Shoemaker. 15 In short, the evidence sufficiently
established that a conspiracy existed to violate 42 U.S.C. § 1320aâ7b(b)(2)(B)
by paying Chandlerâa recipient who was âany personââto induce him to
recommend that Shoemaker direct business to Garnerâs company. 16
The district court, however, read United States v. Miles, 360 F.3d 472
(5th Cir. 2004), to limit drastically the meaning of âany person,â such that
liability cannot attach unless the âpersonâ who receives remuneration is a
ârelevant decisionmakerâ with formal authority to effect the desired referral or
recommendation. 17 The Government, Shoemaker, and Garner all agree that
the district courtâs reading of Miles is correct; the Government submits only
that Chandler was in fact a ârelevant decisionmakerâ by virtue of his role in
TLMCâs senior administration. But as explained below, Miles imposed no such
limitation on the meaning of âany personâ and is wholly inapplicable to this
case.
In Miles, we considered whether sufficient evidence supported
convictions under § 1320aâ7b(b)(2)(A) for alleged healthcare kickbacks paid in
return for advertising services. Id. at 480. The Miles defendants were owners
of APRO, a home healthcare company. Premier, a public relations firm,
distributed promotional materials about APRO to local doctorsâ offices. After
15 When asked why he made the payments to Shoemaker, Chandler explained: âIt was
requested or I â it was requested â I felt like I needed to do that to â for an obligation that
was due.â In explaining why he stopped the payments before paying the full $25,000
requested by Shoemaker, Chandler testified: âI just felt like it was double dipping. . . . [I]n
my mind, he had already had the 25 and was getting some more off of me, and I just quit.â
16 As with violations of 18 U.S.C. § 666, whether the kickbacks actually generated
incrementally more business for Garner is immaterial under 42 U.S.C. § 1320aâ7b(b)(2). See
supra Part II.A.1.
17 The district court opinion states: âThe Fifth Circuit has held that under a reading
of section 1320aâ7b, the payment for services must be made to a ârelevant decision makerâ
with respect to the services for which an alleged kickback is paid.â
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a physician decided to use APROâs services for a patient, the physician would
contact Premier, which then furnished APRO with billing information. Id. at
479. For every patient who used APROâs services because of Premierâs
advertising, the defendants paid Premier $300. Id. We prefaced our analysis
by explaining that â[t]he only issue in dispute is whether Premierâs activities
constituted referrals within the meaning of the statute,â as the statute only
criminalizes payments with the intent to induce such referrals. Miles, 360 F.3d
at 480 (emphasis added). 18 We reasoned that â[t]here was no evidence that
Premier had any authority to act on behalf of a physician in selecting the
particular home health care provider.â Id. at 480. We explained that â[t]he
payments from APRO to Premier were not made to the relevant decisionmaker
as an inducement or kickback for sending patients to APRO.â Id. Accordingly,
we concluded that âAPROâs payments to Premier were not illegal kickbacksâ
prohibited by 42 U.S.C. § 1320aâ7b(b)(2)(A), and vacated the relevant
convictions. 19
18 Under subsection (A), the requisite culpable intent is determined in part by the
meaning of âreferralsâ: Payments must be made âto any person to induce such person . . . to
refer an individual to a personâ for the provision of healthcare goods or services. 42 U.S.C. §
1320aâ7b(b)(2)(A) (emphasis added).
19 Miles concerned subsection (A), whereas here, Count Four charged Garner and
Shoemaker under subsection (B). Unlike subsection (A)âs requirement that the payer intend
to have the payee ârefer an individual to a person,â subsection (B) criminalizes payment with
intent to have the payee ârecommendâ healthcare goods or services. In Miles, the appellants
contended that because the term ârecommendâ in subsection (B) reaches a wider range of
activity (including their passive advertising) than does the act of âreferralâ in subsection (A),
âtheir payments to third parties such as Premier may only be prosecuted under subsection
(B),â and their convictions under subsection (A) were accordingly invalid. Miles, 360 F.3d at
480 n.3. We had no occasion in Miles to consider the distinction between âreferralâ and
ârecommendationâ and similarly decline to do so today, but we note that the Seventh Circuit
has roundly rejected this distinction. See United States v. Polin, 194 F.3d 863, 866 (7th Cir.
1999).
23
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Thus, Miles drew a distinction not between types of payeesâârelevant
decisionmakersâ and othersâbut between a payerâs intent to induce
âreferrals,â which is illegal, and the intent to compensate advertisers, which is
permissible. Moreover, the factual and procedural context of that case
constrained our holding. Miles accordingly stands for a narrow legal
proposition: Where advertising facilitates an independent decision to purchase
a healthcare good or service, and where there is no evidence that the advertiser
âunduly influence[s]â or âact[s] on behalf ofâ the purchaser, the mere fact that
the good or service provider compensates the advertiser following each
purchase is insufficient to support the providerâs conviction for making a
payment âto refer an individual to a personâ under 42 U.S.C. § 1320aâ
7b(b)(2)(A). Miles, 360 F.3d at 480. 20
Miles is inapplicable to the facts before us. Here, advertising services
are not at issue. Moreover, sufficient evidence established that the payments
to Chandler aimed to induce him to ârecommendâ Garnerâs company. 42 U.S.C.
§ 1320aâ7b(b)(2)(B). That is, in paying Chandler, Garner was not asking for a
brochure bearing his companyâs name to be distributed to TLMC staff; rather,
enough evidence showed that he wanted Chandler to exploit his personal
20 This distinction in Miles between undue influence and mere advertising finds a
helpful analogue in the Supreme Courtâs jurisprudence on lawyersâ commercial speech. In
Shapero v. Kentucky Bar Association, 486 U.S. 466 (1988), the Court distinguished between
lawyersâ in-person solicitation on the one hand, and direct-mail solicitation on the other. The
Court explained that the latter, like print advertising, âposes much less risk of overreaching
or undue influence,â and accordingly held that a state may not subject lawyersâ direct-mail
solicitation to a blanket prohibition without offending the First and Fourteenth
Amendments. Id. at 475â76 (quoting Zauderer v. Office of Disciplinary Counsel of Supreme
Court of Ohio, 471 U.S. 626, 642 (1985)). By contrast, states may constitutionally ban in-
person solicitation by attorneys given that preventing âfraud, undue influence, . . . and other
forms of vexatious conductâ is a compelling interest, and because such a prophylactic rule is
necessary to further this interest. Ohralik v. Ohio State Bar Assân, 436 U.S. 447, 462â68
(1978) (internal quotations omitted).
24
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access to TLMC executives, including Shoemaker, and to ensure that TLMC
favored Garnerâs company when it chose nursing services. This conduct is an
archetypal example of the undue influence prohibited by the statute.
Contrary to the district courtâs opinion and the partiesâ submissions, we
did not hold in Miles that a payee with ârelevant decisionmakerâ status is an
independent, substantive requirement of the statute. Such a novel move would
be tantamount to re-writing the statutory text, which, as noted above,
criminalizes payments to âany person[s],â so long as they are made with the
requisite intent. See United States v. Polin, 194 F.3d 863, 866 (7th Cir. 1999)
(âThe different subsections [(A) and (B)] do not distinguish between physicians
and lay-persons.â). Rather, we merely used the term ârelevant decisionmakerâ
as shorthandâto characterize remuneration recipients who were paid with the
culpable intent to induce âreferrals.â Miles, 360 F.3d at 480. Premier, as a
public relations firm that did not unduly influence doctors through its
advertising services, could not have been paid with the requisite corrupt intent
to induce such âreferralsâ; therefore, it was not a ârelevant decisionmaker.â Id.
In short, this label merely represents the statuteâs requirement that
remuneration must be paid with certain illegal ends in mind.
The consequences of the district courtâs reading of the statute and Miles
would be untenable. By its logic, if a bribe-giver wanted to avoid liability, he
could simply identify the individual with direct operational authority over the
desired decision, and bribe a manager who is at least one level removed in the
chain of command, since the manager would have no direct, formal, day-to-day
authority over the targeted decision. Alternatively, he could also avoid liability
by paying a third party external to the organization to, in turn, bribe the
decisionmaker within the organization. Such a view of the law ignores the
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statutory text, which limits liability not by narrowing the field of âany person,â
but by defining culpable intent. Indeed, intent was the focus of our inquiry in
Milesâspecifically the question of whether the evidence could establish intent
to induce âreferrals.â Id. at 480. 21 The focus on intent, not titles or formal
authority, also accords with Congressâs concerns in enacting the statuteâto
broaden liability to reach operatives who leverage fluid, informal power and
influence. Cf. Polin, 194 F.3d at 866 (concluding that reading § 1320aâ7b(b)(2)
to criminalize only payments to physicians who select pacemaker monitoring
service providers, and not payments to a pacemaker salesperson who
influences physiciansâ choices, is âclearly a perversion of the Actâ). 22
21 At least two other courts have explicitly rejected the district courtâs reading of Miles,
which reading requires that payments be made to a ârelevant decisionmakerâ as a
prerequisite for any liability under the statute. In United States v. Krikheli, 2009 WL
4110306 (E.D.N.Y. 2009) (unpublished), the U.S. District Court for the Eastern District of
New York rejected the argument that § 1320aâ7b(b)(2)(A) criminalizes only payments to
âdecision-makersâ and explained that Miles concerned a sufficiency-of-evidence challenge and
the meaning of âreferralâ and did not establish a broad legal holding limiting the scope of
âany personâ in the statute. See id. at *4â6. Following their conviction, the defendants in
Krikheli raised the same Miles claim on appeal in challenging the sufficiency of evidence, but
the Second Circuit affirmed the convictions even â[a]ssuming, without decidingâ that Miles
was correctly decided. United States v. Krikheli, 461 F. Appâx 7, 9 (2d Cir. 2012)
(unpublished). But in making this assumption, the Second Circuit correctly interpreted our
narrow holding in Miles. Id. (explaining Miles as holding âthat medical provider could not be
convicted under 42 U.S.C. § 1320aâ7b(b)(2)(A) merely for hiring agency to send
advertisements and promotional materials to physicians, and then paying agency for each
patient referredâ). But see United States v. Vernon, 723 F.3d 1234, 1254â56 (11th Cir. 2013)
(accepting that Miles stands for proposition that kickback must be paid to a ârelevant
decisionmakerâ in order for liability to attach, but distinguishing Miles on factual grounds).
22 The penalties originally provided in the Social Security Act for Medicare fraud were
much more limited and covered only the solicitation, offer, or receipt of kickbacks, bribes, or
rebates by â[w]hoever furnishes [Medicare] items or services.â See Social Security
Amendments of 1972, Pub. L. 92-603, § 242(b), 86 Stat. 1419. In 1977, Congress passed
amendments aiming to âclarify and restructureâ the penalty provisions. H.R. Rep. 95-393,
pt. 2, at 53 (1977). The statutory language devised by Congress no longer required that bribes
be paid or received by the direct âfurnish[er]â of the healthcare goods or services, or that the
payment be termed a âkickback,â âbribe,â or ârebate.â Rather, the amendments âmake subject
to the penalty provisions any person who solicits or receives any remunerationâ in return for
26
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2
We need not dwell at length on the district courtâs grant of a judgment of
acquittal as to the second conspiracy alleged in Count Fourâthe conspiracy to
pay kickbacks to Shoemaker. The district courtâs reasoning hinged on the
finding that the Government introduced no evidence of the content of the Como
Steakhouse conversation. As discussed above with respect to the parallel
conspiracy charge in Count One, evidence of the overall agreement was
sufficient. See supra Part II.A.2. 23
prohibited referrals or recommendations and âany person who offers or pays any
remunerationâ in order to induce the payee to make such referrals or recommendations. Id.;
see Medicare-Medicaid Anti-Fraud and Abuse Amendments, Pub. L. 95-142, § 4(a), 91 Stat.
1179; Hanlester Network v. Shalala, 51 F.3d 1390, 1398 (9th Cir. 1995) (âThe phrase âany
remunerationâ was intended to broaden the reach of the law which previously referred only
to kickbacks, bribes, and rebates.â). Here, the district courtâs incorrect application of Miles
defeats Congressâs objective of broadening the reach of the Medicare anti-fraud provisions.
23 The Government further points to an apparent inconsistency in the district courtâs
final judgment: The district court granted Shoemaker a judgment of acquittal on Count Four,
but not Count Six. The Government submits that this decision necessarily meant that the
district court determined that, for the purposes of Count Six, Shoemaker was a ârelevant
decisionmakerâ under Miles and 42 U.S.C. § 1320aâ7b(b)(1). See Vernon, 723 F.3d at 1252
(âThe two subsections are effectively the two sides of the same illegal kickback coin:
subsection (b)(1) criminalizes the soliciting or receiving of the kickback and subsection (b)(2)
criminalizes the offering or paying of the kickback.â). Thus, by the Governmentâs logic,
Shoemaker was also a ârelevant decisionmakerâ for the purposes of the second conspiracy
alleged in Count Four, and acquittal was improper.
On this issue, the Government is doubly mistaken. First, the district court opinion is
not internally inconsistent. Count Four alleges a conspiracy, which requires agreement,
while Count Six charges Shoemaker only for the solicitation or receipt of a bribe. Thus, the
district court could logically determine that sufficient evidence supported Shoemakerâs
conviction on Count Six, while also determining that evidence of his agreement with others
was not sufficient under Count Four.
Second, for purposes of Count Six, the district court never held that Shoemaker was
a ârelevant decisionmakerâ under Section (b)(1)âand rightly so. As discussed above, because
this case does not implicate advertising services, and given the ample evidence in this case
that Shoemaker received the kickbacks with the requisite criminal intent, Miles is
inapplicable to the analysis of Shoemakerâs criminal liability under either Count Four or Six.
See supra Part II.C.1.
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Accordingly, because sufficient evidence supported all requisite elements
of the conspiracies to provide kickbacks to Chandler and to Shoemaker, we
hold that the district court erred in granting Garnerâs and Shoemakerâs
motions for judgment of acquittal on Count Four.
D
Count Five charged Garner with healthcare fraud in violation of 42
U.S.C. § 1320aâ7b(b)(2)(B). Count Five is the substantive counterpart to the
first conspiracy charged in Count Four: That is, Garner allegedly realized the
conspiracy by actually paying a kickback to Chandler.
The district court granted Garnerâs motion for judgment of acquittal on
Count Five on the grounds that no evidence demonstrated that Chandler was
a ârelevant decisionmakerâ under Miles. Miles, 360 F.3d at 480. For the
reasons already discussed, the district court misinterpreted Miles. See supra
Part II.C.1. Here, sufficient evidence established that Garner made payments
with culpable intent to induce a ârecommend[ation].â 42 U.S.C. § 1320aâ
7b(b)(2)(B). For other reasons previously discussed, see supra Part II.B, the
evidence of Garnerâs mens reaâthat he acted âknowingly and willfullyââwas
sufficient to sustain his conviction. Id.
Thus, the district court erred in granting a judgment of acquittal to
Garner on Count Five.
III
The Government further contends that the district court erred in
granting a new trial to Garner on Counts One, Two, Four, and Five, and to
Shoemaker on Counts One, Three, and Four. Except for Shoemakerâs motion
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on Count Three, 24 these motions were granted in the alternative, such that
even if the judgments of acquittal were vacated on appeal, Garner and
Shoemaker would receive new trials.
We review a district courtâs grant of a new trial for abuse of discretion.
Sibley v. Lemaire, 184 F.3d 481, 487 (5th Cir. 1999). A district court may
âvacate any judgment and grant a new trial if the interest of justice so
requires.â Fed. R. Crim. P. 33(a). The âinterest of justiceâ may take into
account âthe trial judgeâs evaluation of witnesses and weighing of the
evidence.â United States v. Wall, 389 F.3d 457, 465â66 (5th Cir. 2004).
However, the trial judge âmay not reweigh the evidence and set aside the
verdict simply because it feels some other result would be more reasonable.â
United States v. Arnold, 416 F.3d 349, 360 (5th Cir. 2005) (citation omitted).
Rather, â[t]he evidence must preponderate heavily against the verdict, such
that it would be a miscarriage of justice to let the verdict stand.â Id. A district
court is âpowerless to order a new trial except on the motion of the defendant.â
United States v. Brown, 587 F.2d 187, 189 (5th Cir. 1979). Moreover, âa district
court does not have the authority to grant a motion for a new trial under Rule
33 on a basis not raised by the defendant.â United States v. Nguyen, 507 F.3d
836, 839 (5th Cir. 2007) (holding that district court abused discretion in
granting new trial on basis of prosecutorâs improper argument, where issue
was mentioned only in passing in defendantâs motion).
The district court granted Garnerâs and Shoemakerâs motions for new
trial on Counts One, Two, and Three for the reason that the juryâs lack of
24 Shoemaker was not granted a judgment of acquittal on Count Three because the
district court found that as CEO, he was an âagentâ of TLMC under 18 U.S.C. § 666.
Nonetheless, the district court granted his motion for a new trial on Count Three due to
insufficient jury instructions, as discussed below.
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sufficient instruction on the meaning of âagentâ under 18 U.S.C. § 666 and
Phillips was prejudicial. 25 However, the âagentâ issue was not raised by either
Garner or Shoemaker in their Rule 33 motions for new trial. Because the
district court has no power to grant a new trial under Rule 33 âon a basis not
raised by the defendant,â the district court abused its discretion in granting a
new trial on these grounds. Nguyen, 507 F.3d at 839.
As for Counts Four and Five, the district court granted Garnerâs and
Shoemakerâs motions for new trial on the basis that Miles required a jury
instruction that Chandler âhad authority as a relevant decision makerâ to give
business to Garnerâs company. But as explained above, this proposed
instruction derives from an incorrect understanding of Miles. See supra Part
II.C.1. Because the jury instructions adequately explained all requisite
elements for liability under 42 U.S.C. § 1320aâ7b(b)(2)(B), 26 and because the
evidence did not âpreponderate heavily against the verdict,â Arnold, 416 F.3d
at 360, the âinterest of justiceâ does not require a new trial, Fed. R. Crim. P.
25 The relevant portions of Jury Instruction No. D-16 on Count Two explained that the
Government had to prove beyond a reasonable doubt â[t]hat the recipient or intended
recipient of something of value that is, Mr. David Chandler, was an agent of a state or local
government, as chargedâ and that âLee Garner acted corruptly in offering a payment to David
Chandler in exchange for David Chandler using his influence as an agent of a subdivision of
the State government and Tri-Lakes to direct Tri-Lakesâ business to Guardian Angel and On-
Call Staffing . . . .â
26 Jury Instruction No. D-19 on Count Five explained that the Government had to
prove beyond a reasonable doubt â1) that Lee Garner knowingly and willfully made payments
or offered to make payments to David Chandler; 2) for the purpose of inducing David
Chandler; 3) to recommend to Ray Shoemaker that Tri-Lakes purchase services from
Guardian Angel and On-Call Staffing; 4) that could be paid for by a Federal healthcare
program.â
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33(a). Thus, the district court abused its discretion in granting Garnerâs and
Shoemakerâs motions for new trial on Counts Four and Five. 27
We therefore vacate all of the district courtâs grants of new trials to
Garner and Shoemaker.
IV
Shoemaker appeals his remaining convictions on various grounds.
As to his conviction on Count Twelve for embezzlement in violation of 18
U.S.C. § 666, Shoemaker contends that the supporting evidence is insufficient,
that the admission of testimony about civil violations and jury instructions
equating deliberate ignorance with knowledge warrant a new trial, that the
same jury instructions impermissibly amended the indictment, and that
cumulative error requires a new trial. He submits that his convictions on
Counts Eight through Eleven for conspiring to make and for making false
statements to the USDA in violation of 18 U.S.C. §§ 371 and 1014, respectively,
were supported by insufficient evidence and that the admission of evidence of
civil violations requires a new trial. Likewise, he challenges the sufficiency of
evidence supporting his conviction on Count Seven for making false statements
to the FBI in violation of 18 U.S.C. § 1001, and his convictions on Counts Three
and Six for soliciting and receiving bribes and kickbacks in violation of 18
U.S.C. § 666 and 42 U.S.C. § 1320aâ7b, respectively. He further contends that
the district courtâs denying his motion for judgment of acquittal on Count Six
while granting his co-defendantâs motion on a separate count constituted a
27Moreover, Garner did not raise the Miles issue in his motion for new trial (which
incorporated additional arguments made in his motion for acquittal). Thus, for the
independent reason that the district court had no power to grant a new trial âon a basis not
raised by the defendant,â granting a new trial to Garner on Counts Four and Five was error.
Nguyen, 507 F.3d at 839.
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retroactive misjoinder because the evidence underlying both convictions was
identical. Lastly, Shoemaker submits that the Government prejudiced his
defense by failing to comply with Brady v. Maryland, 373 U.S. 83 (1963), and
that the district court erred in determining his total offense level.
We have considered the partiesâ submissions and reviewed the record.
Because we conclude that sufficient evidence supported Shoemakerâs
remaining convictions, and otherwise find no errors warranting reversal or a
new trial, we affirm Shoemakerâs convictions on Counts Three and Counts Six
through Twelve.
V
For the foregoing reasons, we VACATE the district courtâs grants of
Garnerâs and Shoemakerâs motions for judgment of acquittal and new trial,
AFFIRM Shoemakerâs other convictions, and REMAND for reinstatement of
the jury verdict and for sentencing.
32