from the United States District Court for the Southern
District of Texas
JONES, BARKSDALE, and COSTA, Circuit Judges.
COSTA, CIRCUIT JUDGE
Main's petition for panel rehearing is GRANTED IN PART
and DENIED IN PART. Main's petition for rehearing en banc
ORDERED that our prior panel decision, United States v.
Sanjar, 853 F.3d 190 (5th Cir. 2017), is
WITHDRAWN as to Adam Main, and the following is SUBSTITUTED
in its place. The only changes to the prior opinion are in
sections V(B), VII(A), and the conclusion.
reason Willie Sutton once gave for robbing banks is true of
Medicare today: that's where the money is. So it is not
surprising that we consider another case alleging a scheme to
defraud the multibillion dollar government program. A jury
convicted the six defendants of that fraud as well as paying
and receiving kickbacks for referrals. Their appeal alleges
defects throughout the investigation and prosecution of the
case, beginning with the search of the medical office,
running through the trial, and ending with the financial
obligations imposed as part of their sentence. The government
also appeals, objecting to the district court's decision
to offset the defendants' restitution liability with any
amounts recovered through forfeiture.
Mansour Sanjar and Cyrus Sajadi enrolled Spectrum Psychiatric
Services P.A., their recently formed community mental-health
center, as a Medicare provider in 2006. For the following six
years, Spectrum held itself out as providing partial
hospitalization program (PHP) care. During that time,
Spectrum billed Medicare over $90 million for PHP services.
offer intensive treatment to mentally-ill patients, serving
as an alternative to traditional hospitalization. To qualify,
a patient must be suffering a severe onset of his or her
illness; a situation the government's expert describes as
a "crisis." Qualifying patients are required to
undergo mental-health evaluations within twenty-four hours of
admission, see a doctor daily, and receive twenty hours of
treatment weekly. Given the intensive nature of PHP care,
Medicare reimburses it at a higher rate than alternative
financial incentive led Sanjar and Sajadi to submit what the
jury found to be fraudulent bills. The evidence, construed in
favor of the government as the jury's verdict requires,
showed that the bills were fraudulent in two respects.
Patients, although they had a history of mental illness, were
not suffering from the acute onsets PHP serves. One patient,
for example, testified that at the time she was admitted to
Spectrum, she was not experiencing a severe episode of her
chronic depression or any other mental-health issues.
Spectrum's pattern of PHP care was also at odds with the
acute onset that the program covers. Such episodes should be
random, but Spectrum cycled patients between PHP and the
intensive outpatient program (IOP)-a less intensive treatment
with lower reimbursement rates-according to set timelines:
ninety days in PHP, then four to six weeks in IOP, at which
time the cycle would restart.
from whether PHP treatment was medically necessary for the
patients, the clinic was not providing that level of care.
Patient after patient billed as PHP participants testified to
never interacting with doctors for more than ten minutes.
Instead, they often spent their time at Spectrum watching
movies, playing games, listening to music, and socializing.
So recreational and diversionary were the services Spectrum
provided that one patient described it as a "Mickey
scheme, of course, requires patients. This is where three
other defendants and the kickbacks come into play.
Spectrum's Office Administrator, Shokoufeh Hakimi,
oversaw this effort. Hakimi first used Charles Roberts to
recruit patients. Roberts, who pleaded guilty and testified
at trial, paid group-home operators to send their
Medicare-eligible residents to Spectrum. Among those to whom
Roberts gave kickbacks were group-home owners Chandra Nunn
and Shawn Manney. Roberts paid each $100 per patient every
two weeks, which was half of what he earned. Apparently
concerned about detection, Nunn required her payments in
long, Nunn's greed overcame her initial timidity. She cut
Roberts out of the scheme and began dealing directly with
Sanjar, Sajadi, and Hakimi. Her referrals alone spawned $28.5
million in PHP claims for Spectrum. Nunn maintained her
steady supply of Medicare beneficiaries by paying residents
of her group home to attend Spectrum. She gave payments the
way she took them: in cash. A group-home resident testified
that Nunn once gave her envelopes full of money, labeled with
residents' names, to hand out to other residents
final defendant, Physician Assistant Adam Main, helped cover
up the fraud. Sanjar and Sajadi had him falsify and backdate
medical charts to make it appear patients were suffering
severe onsets of mental illnesses. One patient's file,
for example, lists that he was suffering from major
depressive disorder, undergoing daily panic attacks, and
relapsing on cocaine. But at trial the patient testified that
he was not experiencing any such symptoms when he met with
Main, had never before been diagnosed with major depressive
disorder, and could not afford cocaine.
doctors similarly instructed Head Social Worker Terry Moore,
another Spectrum employee who pleaded guilty and testified,
to print and affix new dates to prior mental-health
evaluations for repeat patients. Sanjar and Sajadi further
signed medical charts even when they did not oversee patient
operation lasted half a decade. Although Medicare paid out
nowhere close to the more than $90 million Spectrum sought
for PHP reimbursements, it did pay just under $7 million.
agents began to focus on Spectrum after arresting Roberts for
his role as a recruiter in a separate health care fraud
scheme. Roberts cooperated and the information he provided
about Spectrum launched an investigation that resulted in an
• Sanjar, Sajadi, Hakimi, Main, and Nunn with conspiracy
to commit health care fraud, in violation of 18 U.S.C. §
1349 (Count One);
• Four counts of health care fraud under 18 U.S.C.
§ 1347 tied to some of the conspirators (Counts
• Sanjar, Sajadi, Hakimi, Nunn, and Manney with
conspiracy to defraud the United States and pay health care
kickbacks, in violation of 18 U.S.C. § 371 (Count Six);
• Five counts of health care kickbacks under 42 U.S.C.
§ 1320a-7b(b)(1), (b)(2) tied to some of the
conspirators (Counts Seven-Eleven).
found defendants guilty of all but the kickback charge in
Count Nine that applied to Sanjar and Manney. Based on
varying assessments of each defendant's role in the
offense, the district court sentenced them to terms of
imprisonment ranging from 24 to 148 months. Sanjar, Sajadi,
and Main were further ordered to pay restitution and forfeit
alleges error in the way the government investigated the
case, contending that the warrant authorizing the search of
Spectrum does not comply with the constitutional requirement
that it "particularly describ[e] the . . . things to be
seized." U.S. Const. amend. IV.
interpret that language to require enough detail in the
warrant to allow a reasonable agent to know what items she is
permitted to take. United States v. Aguirre, 664
F.3d 606, 614 (5th Cir. 2011). The concern is that the
magistrate authorizing the warrant, and not the agents
executing it, should be deciding which items may be seized.
United States v. Allen, 625 F.3d 830, 834- 35 (5th
Cir. 2010) (citing Marron v. United States, 275 U.S.
192, 196 (1927)). Generic language may satisfy this
"particularity" requirement if describing a more
specific item is not possible. Williams v. Kunze,
806 F.2d 594, 598 (5th Cir. 1986).
warrant must further not be overbroad, meaning "there
must be probable cause to seize the particular things named
in the warrant." United States v. SDI Future Health,
Inc., 568 F.3d 684, 702 (9th Cir. 2009). This related
but distinct concept flows from the probable cause
requirement. Together, the two aspects of the Fourth
Amendment require that (1) a warrant provide sufficient
notice of what the agents may seize and (2) probable cause
exist to justify listing those items as potential evidence
subject to seizure. Kunze, 806 F.2d at 598-99
(treating these as separate questions).
challenge, which mostly objects to the warrant allowing
seizure of all patient files, seems to be more about the
latter. In terms of the notice the former requires, the
warrant authorizes seizure of "documents constituting .
. . patient files" as well as those relating to Medicare
claims, the PHP program, and Spectrum's finances. That
list, even if somewhat generic, provided sufficient notice of
what items the agents could take. Aguirre, 664 F.3d
at 614 (rejecting a particularity challenge even when the
items seized were only the "functional equivalent"
of those listed in the warrant); Kunze, 806 F.2d at
598 (rejecting particularity challenge to a seizure of 50,
000 to 60, 000 documents, over 90% of which were client
files, because the warrant "specifically
authorized" the seizure of those documents). The agents
did not seize the patient files because of a judgment call
they made when executing the warrant; they seized the files
because the magistrate had expressly authorized them to do
so. Marron, 275 U.S. at 196.
principal question is thus whether the broad authorization to
seize all patient files (and other listed categories of
documents) was supported by probable cause. The scope of the
seizure depends on the scope of the suspected crime.
Kunze, 806 F.2d at 598 (explaining that a warrant
authorizing seizure of all of a company's records would
be lawful when "probable cause exists to believe that an
entire business was merely a scheme to defraud, or that all
records of a business are likely to constitute
evidence"). If the evidence presented to the magistrate
provided probable cause of fraud limited to a particular
patient or group of patients, the resulting warrant
authorizing seizure of all of Spectrum's patient files
would be problematic.
magistrate's authorization to seize all of Spectrum's
patient files was supported by evidence of pervasive fraud in
the PHP program, which was a major part of the clinic's
business. The affidavit summarized information from two
former Spectrum employees and two patients revealing that (1)
patients ended up in PHP because of fees paid to recruiters
and patients, not because of physician referrals, and (2) the
time the patients spent at Spectrum was spent watching
television, playing bingo, and coloring rather than receiving
the PHP treatment being billed to Medicare-billings that
exceeded $90 million. The information presented to the
magistrate thus provided probable cause to conclude that
fraud and kickbacks infected the entire PHP program. That
evidence of a wide-ranging conspiracy and scheme justified
the seizure of patient files, at a minimum those of PHP
patients used in the prosecution. Kunze, 806 F.2d at
599 (rejecting argument that authority to seize all client
files of tax consultant was overbroad because probable cause
supported widespread fraud involving offshore tax shelters
and even files relating to onshore transactions that may
provide relevant evidence). The district court did not err in
declining to suppress the evidence seized pursuant to the
next claim error in how the grand jury indicted the case. We
review these claims de novo. United States v. Jones,
733 F.3d 574, 584 (5th Cir. 2013); United States v.
Miller, 520 F.3d 504, 512-13 (5th Cir. 2008).
and Nunn contend the two conspiracies listed in the
indictment- the first for defrauding Medicare under the
specific health care fraud conspiracy statute (18 U.S.C.
§§ 1347, 1349); the second for defrauding the
government and violating the Anti-Kickback Statute under the
general conspiracy statute (18 U.S.C. § 371)-charge a
single crime. Such a problem, which courts label
"multiplicity, " exists when a defendant is
punished twice for the same conduct. United States v.
Ogba, 526 F.3d 214, 232-33 (5th Cir. 2008). As this
doctrine is derived from the Double Jeopardy Clause, it looks
to the Blockburger test asking "whether each
provision requires proof of a fact which the other does
not." Albernaz v. United States, 450 U.S. 333,
337 (1981). In making that determination, we look not just at
the elements of the statutes but also at how the offenses
were charged in the indictment and presented at trial.
Ogba, 526 F.3d at 234.
centerpiece of the health care fraud conspiracy alleged in
Count One was the "submitting [of] false and fraudulent
claims to Medicare." That can occur independent of any
kickbacks paid for referrals. The purpose of the section 371
conspiracy in Count Six, on the other hand, was the payment
and receipt of kickbacks. That can occur without the
submission of any fraudulent Medicare claims. Section 371 also
requires an overt act, which section 1349 does not. We have
before held that indictments charging these conspiracies do
not pose a multiplicity problem and the same is true of these
allegations. Jones, 733 F.3d at 584; see also
United States v. Njoku, 737 F.3d 55, 68 (5th Cir. 2013);
United States v. Moran, 778 F.3d 942, 964 (11th Cir.
also alleges the opposite problem, duplicity, for Counts Six,
Eight, and Eleven. Duplicity occurs when a single count
alleges multiple offenses. Miller, 520 F.3d at 512.
A duplicitous indictment is only cause for reversal if the
defendant was prejudiced by the duplicity. Id. The
most common way such a charge harms a defendant is when it
allows a nonunanimous verdict with all jurors finding the
defendant guilty but not necessarily of the same offense.
Id. at 512-13.
duplicity challenge to Count Six is based on a feature we
just mentioned: it charges defendants with conspiring to both
(1) defraud the government and (2) violate the Anti-Kickback
Statute. Although the alleged conspiracy has two objects, the
offense charged is a single conspiracy. As far back as 1949,
it was "well settled that the conspiracy may contemplate
several offenses." Burton v. United States, 175
F.2d 960, 963 (5th Cir. 1949); see also United States v.
Duvall, 846 F.2d 966, 975 n.8 (5th Cir. 1988) (labeling
the argument Sanjar makes "frivolous").
is, however, correct that Counts Eight and Eleven each charge
separate offenses: (1) paying kickbacks and (2) receiving
kickbacks. 42 U.S.C. § 1320a-7b(b)(1) (criminalizing
receipt of kickbacks); id. § 1320a-7b(b)(2)
(criminalizing payment of kickbacks). But the
government's theory, reflected in both the indictment and
the trial evidence, was that certain defendants paid
kickbacks (Sanjar, Sajadi, and Hakimi), whereas others
received them (Nunn and Manney). As there was no evidence
that Sanjar ever received kickbacks, there is no risk that
the jury convicted him of that crime. See United States
v. Vernon, 723 F.3d 1234, 1262 (11th Cir. 2013) (holding
that a count charging both paying and receiving kickbacks was
not cause for reversal when the indictment and trial evidence
left no possibility that the duplicity defects led the jury
to convict the defendant of the unfitting offense).
indictment does not present ...