USA v. Allan Hearne


UNPUBLISHED OPINION FILED. [09-60613 Affirmed 09-60750 Affirmed ] Judge: TMR , Judge: JLD , Judge: EBC Mandate pull date is 11/10/2010 for Appellant Allan K. Hearne [09-60750, 09-60613]

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USA v. Allan Hearne Doc. 0 Case: 09-60750 Document: 00511268434 Page: 1 Date Filed: 10/20/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-60750 c/w N o . 09-60613 S u m m a r y Calendar October 20, 2010 Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. A L L A N K. HEARNE, D e fe n d a n t -A p p e lla n t A p p e a ls from the United States District Court fo r the Southern District of Mississippi U S D C No. 3:08-CR-164-1 B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* F o llo w in g a jury trial, Allan K. Hearne was convicted of one count of c o n s p ir a c y to defraud Medicare by obtaining the payment of false claims; four c o u n t s of health care fraud; one count of falsifying documents with the intent of im p e d in g or obstructing an investigation by the Federal Bureau of Investigation; a n d one count of making a fraudulent statement to the Social Security A d m in is tr a t io n . He was sentenced to 73 months of imprisonment and a three- 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-60750 Document: 00511268434 Page: 2 No. 09-60750 c/w 09-60613 Date Filed: 10/20/2010 y e a r term of supervised release. We are now presented with Hearne's appeal fr o m his convictions and sentence. H e a r n e argues that the district court erred by denying his motion for a n e w trial. He asserts that the Government violated the Jencks Act by failing to t im e ly produce a transcript of grand jury testimony given by a Government w it n e s s in support of the superseding indictment in this case. Hearne contends t h a t the Government's belated production of the transcript prejudiced his d e fe n s e , which he contends was premised upon the allegations in the original in d ic t m e n t; Hearne maintains that he discovered only after reviewing the t r a n s c r ip t that the superseding indictment alleged new claims. He argues that h e consequently was denied the opportunity to prepare an adequate defense. T h e Jencks Act requires the Government to disclose prior recorded witness s t a t e m e n t s in its possession relating to the subject matter of that witness's t e s t im o n y . 18 U.S.C. 3500. The failure to produce Jencks Act material is s u b je c t to harmless error analysis. United States v. Montgomery, 210 F.3d 446, 4 5 1 (5th Cir. 2000). "We strictly apply harmless error analysis and determine w h e t h e r the error itself had a substantial influence on the judgment in addition t o determining whether there was sufficient evidence to support the conviction." Id. We must decide "whether there is or is not a reasonable possibility that the a b s e n c e of [the] grand jury testimony affected the outcome of the case or h a n d ic a p p e d [the defendant] or his counsel in their presentation or defense." United States v. Keller, 14 F.3d 1051, 1054 (5th Cir. 1994) (alterations in o r ig in a l) (quoting United States v. Rivero, 532 F.2d 450, 461 (5th Cir. 1976)) (in t e r n a l quotation marks omitted). Here, while the Government admittedly did not turn over the grand jury t r a n s c r ip t , the error was harmless. The record shows that there was no s ig n ific a n t difference between the witness's grand jury testimony and his trial t e s t im o n y . See Montgomery, 210 F.3d at 451-52. Moreover, the record shows t h a t Hearne had available to him the information that he needed to develop a 2 Case: 09-60750 Document: 00511268434 Page: 3 No. 09-60750 c/w 09-60613 Date Filed: 10/20/2010 d e fe n s e to the charged offenses and to cross-examine the witness with respect t o those charges. Thus, Hearne has not shown that the district court erred by d e n y in g his motion for a new trial. Hearne also argues that the district court erred in calculating the intended lo s s for his offenses for purposes of sentencing. He contends that the district c o u r t improperly determined that the intended loss was the total amount of the c la im s that he falsely filed with Medicare rather than the amount that he was a c t u a lly reimbursed for those claims. Hearne maintains that there was no e v id e n c e that he intended to recover from Medicare the total amount that he b ille d . He argues that he is a highly educated health care provider with an u n d e r s t a n d in g of Medicare reimbursement procedures, and that he therefore k n e w that Medicare would reimburse him only a fixed rate. U n d e r U.S.S.G. 2B1.1, the offense level for defendants convicted of fraud is increased commensurate with the amount of loss involved in the fraud. The c o m m e n ta r y to 2B1.1 indicates that "loss" for purposes of the guideline is "the g r e a t e r of the actual loss or intended loss." U.S.S.G. 2B1.1 cmt. n.3(A). "Actual loss" is the reasonably foreseeable pecuniary harm resulting from the o ffe n s e , and "intended loss" is the pecuniary harm that was intended to result fr o m the offense. Id. 2B1.1 cmt. n.3(A)(i), (ii). "Intended loss" includes " in te n d e d pecuniary harm that would have been impossible or unlikely to occur (e .g ., as in a government sting operation, or an insurance fraud in which the c la im exceeded the insured value)." Id. 2B1.1 cmt. n.3(A)(ii). The district court's calculation of the amount of intended loss is reviewed fo r clear error; its method of determining the amount of intended loss is r e v ie w e d de novo. See United States v. Harris, 597 F.3d 242, 251 n.9 (5th Cir. 2 0 1 0 ). "[O]ur case law requires the government prove by a preponderance of the e v id e n c e that the defendant had the subjective intent to cause the loss that is u s e d to calculate his offense level." United States v. Conroy, 567 F.3d 174, 179 (5 t h Cir. 2009) (alteration in original) (quoting United States v. Sanders, 343 3 Case: 09-60750 Document: 00511268434 Page: 4 No. 09-60750 c/w 09-60613 Date Filed: 10/20/2010 F .3 d 511, 527 (5th Cir. 2003) (internal quotation marks omitted). The amount fr a u d u le n t ly billed to Medicare is "prima facie evidence of the amount of loss [the d e fe n d a n t ] intended to cause," but "the parties may introduce additional e v id e n c e to suggest that the amount billed either exaggerates or understates the b illin g party's intent." United States v. Miller, 316 F.3d 495, 504 (4th Cir. 2003). T h e r e was evidence that Hearne lacked knowledge of the billing p r o c e d u r e s for Medicare and therefore did not understand the amounts that M e d ic a r e likely would pay. Hearne's trial testimony indicated that he left r e s p o n s ib ilit y for Medicare claims to his staff, and his testimony at sentencing s h o w e d that he generally was uninformed about how Medicare reimbursements w o r k . While Hearne at sentencing showed some knowledge of the difference b e tw e e n the amounts he would bill to Medicare and the amounts that Medicare w o u ld pay, the district court found this self-serving testimony not to be credible. "[W]e exercise great deference to a district court's credibility findings." United S ta te s v. Alaniz-Alaniz, 38 F.3d 788, 791 (5th Cir. 1994). The district court c o n c lu d e d , "[I]t appears that he indiscriminately submitted false and fictitious b ills in an effort to maximize reimbursements. It does not appear that he was fo c u s e d on the mechanics of the program and, instead, was focused on [the] n u m b e r of claims. Thus, even if he has some notion about caps and understood t h a t full reimbursement was unlikely or impossible, the defendant still s u b m it t e d claims with the intent that they would be paid." This factual finding w a s supported by the evidence. Therefore, the district court did not clearly err in determining that the amount of intended loss was the amount Hearne falsely b ille d to Medicare rather than the amount he was reimbursed. A c c o r d in g ly , the judgment of the district court is AFFIRMED. 4

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