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Click here for the full text of this decision FACTS:On Sept. 6, 2005, Linda Morgan was indicted on 12 counts of health care fraud, in violation of 18 U.S.C. �1347, and one count of conspiracy, in violation of 18 U.S.C. �371. Before trial, the government filed a notice of impeachment evidence, including evidence of Morgan’s activity at Compass Bank. The government also filed a notice of intent to offer affidavits for certain records under Federal Rule of Evidence 902(11), including the use of Victor Davies’ grand jury testimony transcript for the admission of patient beneficiary records. Morgan made motions in limine to exclude extrinsic bad act evidence under Rule 404(b) and the use of Davies’ grand jury testimony, and she objected to the authenticity of the documents obtained from Davies in the grand jury. The district court denied the motion to exclude the business records obtained from Davies in the grand jury. At trial, the government established that Medicare required that a patient be seen face-to-face by a treating physician before any durable medical equipment was prescribed. Also, a certificate of medical necessity (CMN) needs to be completed in such circumstances. CMNs are Department of Health and Human Services forms that contained patient information, a physician attestation and information about the equipment provided. The CMNs associated with counts one through 12 of the indictment listed Morgan as the treating physician. Her signature appeared on the CMNs. Seven of the Medicare beneficiaries named in the CMNs testified at trial. While residing in Louisiana or Texas, they or their spouses were approached by marketers � none of whom were Linda Morgan � about obtaining a wheelchair or scooter. All seven witnesses testified that they had never seen, met or been treated by Morgan. All five witnesses testified that they did not need a wheelchair to move around their residences and spent no time in wheelchairs. The CMNs associated with those five witnesses, however, indicated that they needed a wheelchair to move around their residences and that they spent eight hours in a wheelchair each day. Peggy Miller of Palmetto GBA testified that Palmetto processed claims for durable medical equipment for Medicare. Miller testified that Morgan wrote Medicare in Oklahoma City a letter dated Feb. 26, 2002, to advise them that she was moving to Texas and giving up her unique physician identification number that state medical associations used to track medical services. Authorities deactivated Morgan’s number effective May 31, 2002, making her ineligible to be paid through Medicare in Oklahoma. Miller testified that based on the testimony of the previous witnesses approached for durable medical equipment, Morgan would not be considered a treating physician under Medicare. Miller, however, explained that during 2003 and 2004, Medicare did not check to see if physicians were licensed in the state of residence of the patient whose treatment or equipment was being billed. Prince Yellowe was in detention pending resolution of health care fraud and other federal criminal charges when he testified at Morgan’s trial. Yellowe first became involved in durable medical equipment through the owner of a company billing for motorized wheelchairs, which paid a substantial profit. Yellowe began selling durable medical equipment and used marketers to recruit Medicare recipients who wanted motorized wheelchairs. The marketers would obtain the recipient’s information to submit for billing. Yellowe first met Morgan in 2003. He offered to pay her $250 per prescription that she filled out for Medicare recipients and for filling out other paperwork required for claims. Yellowe paid Morgan in cash once or twice a week. Yellowe brought her patient information on ten to forty patients each time he saw her, but he never took a patient to see her. He handled between 800 and 1,000 of Morgan’s prescriptions during his relationship with her and paid her between $150,000 and $200,000. Yellowe was familiar with Morgan’s signature and identified it on the exhibits associated with counts one through 12 of the indictment. After he met Morgan, Yellowe became involved with Davies. Yellowe agreed to provide Davies with prescriptions that he obtained, mostly from Morgan. He charged Davies between $900 and $1,200 for prescriptions and paid Morgan $250. Yellowe contracted with Davies to do the billing for his company, Rovic Medical Supply. Denise Scott, a special agent with the Department of Health and Human Services, Office of Inspector General, testified that she interviewed Morgan three times. Morgan told Scott that she was not a licensed physician in the state of Texas because she failed to pass the exam. She admitted that she prepared and sold claim forms to Yellowe for Medicare beneficiaries, and she admitted that she had never seen the beneficiaries for whom she had been preparing forms. Scott identified Morgan’s signature on claim forms associated with counts seven, eight, nine and 11 of the indictment. Morgan told Scott that she had received $40,000 from Yellowe. When Scott told Morgan that Medicare had paid millions of dollars in claims on prescriptions with her physician number, Morgan responded, “I should have been paid more.” Government exhibits indicated that from January 2003 through December 2004, $24,076,103.93 in claims were submitted using Morgan’s physician identification number. Medicare paid $7,961,885.27 of those claims. Morgan testified that she did not sign the documents associated with counts one through 12 of the indictment, although she admitted that she did write some prescriptions without seeing patients. The district court convicted Morgan on all 13 counts and sentenced her to 120 months of imprisonment. On appeal, she claimed that the use of Davies’ grand jury testimony to authenticate business records and the admission of the business records at trial violated her rights under the confrontation clause. She also claimed that the district court erred in admitting evidence of an extrinsic offense and challenged her conviction on the grounds of insufficiency of evidence. HOLDING:Affirmed. First, Morgan claimed that the use of Davies’ grand jury testimony to authenticate the business records used against her at trial violated the confrontation clause of the Sixth Amendment. The confrontation clause, the court stated, gives the accused in a criminal prosecution the right to be confronted by the witnesses against him. The U.S. Supreme Court’s 2004 opinion Crawford v. Washington holds that “[w]here testimonial evidence is at issue . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” The court framed the issue as whether the confrontation clause provides the same protections to defendants at preliminary proceedings as it does at trial under Crawford. Based upon pre-Crawford precedent, the 5th Circuit’s decision that Crawford does not apply to sentencing, and persuasive authority from the Seventh and Ninth Circuits, the court held that Crawford did not apply to the foundational evidence authenticating business records in preliminary determinations of the admissibility of evidence. Second, Morgan claimed that the admission of the business records provided by Davies to the grand jury violated her rights under the confrontation clause. Citing “clear precedent,” the court held that after Crawford, business records are not testimonial in nature and their admission at trial is not a violation of the confrontation clause. Third, Morgan claimed that the district court erred in admitting over objection Wu’s testimony and Compass Bank records on rebuttal. The district court did not abuse its discretion in admitting Daniel Wu’s testimony and Compass Bank records under Rule 404(b). Wu testified that Morgan and her daughter came into his bank and transferred Morgan’s funds into the daughters account. The court then determined whether the trial court erred in denying the judgment of acquittal sought by Morgan. Viewing the evidence in the light most favorable to the verdict, the court found that a reasonable jury could have concluded beyond a reasonable doubt that Morgan had taken part in a scheme or artifice to defraud a health care benefit program. Based upon the testimony and documentary evidence, the court stated that a reasonable jury could have concluded that Morgan had sold prescriptions for the purposes of billing Medicare without seeing patients and without being licensed in the state. Additionally, the court stated, a reasonable jury could have concluded that Morgan conspired with Yellowe to defraud a health care benefit program. OPINION:Per curiam; Dennis, Clement and Prado, JJ.

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