Judge Melinda Harmon of the U.S. District Court for the Southern District of Texas in Houston (Courtesy photo)
A federal judge in Texas sentenced a terminally ill woman to 75 years in prison last month for bilking Medicare — an apparent record sentence for the U.S. Department of Justice for health care fraud.
Marie Neba, 53, of Sugar Land, Texas, was sentenced by U.S. District Judge Melinda Harmon of the Southern District of Texas on eight counts stemming from her role in a $13 million Medicare fraud scheme. Neba, the owner and director of nursing at a Houston home health agency, was convicted after a two-week jury trial last November. At the sentencing on Aug. 11, the government recommended a 35-year imprisonment, said Michael Khouri, who started representing Neba as her private attorney shortly after the trial. (A different attorney represented her during the trial. That attorney did not return a phone call seeking comment for this article.)
The unusually lengthy sentence for what health care fraud legal experts call a relatively routine case has them scratching their heads, even in this recent era of the federal government’s crackdown on health care fraud.
Neba, the mother of 7-year-old twin sons, was diagnosed in May with stage IV metastatic breast cancer that has spread to her lungs and bones, according to Khouri, who has filed an appeal of the conviction and the sentence. She currently is receiving chemotherapy treatments and is in custody in a federal detention center. “Marie Neba is a mother, a wife and a human being who is dying. If there is any defendant that stands before the court that deserves a below-guideline sentence … it’s this woman that stands before you,” Khouri argued before Harmon at the sentencing hearing, according to a transcript recently obtained by ALM. “The court can impose any sentence the court believes is appropriate,” he said.
‘Not a Heartless Person’
Patrick Cotter, a former federal prosecutor who heads the government interaction and white-collar practice group at Greensfelder, Hemker & Gale in Chicago, said given the circumstances, he would have expected Neba to receive a sentence of several years in prison.
“Nothing is surprising in that she went to jail and not for six months,” he said. “But how you get anything close to 75 years is beyond me and makes no sense at all. In 35 years, I have never heard of the government’s [prison term] recommendation being doubled by the judge, particularly when the government is asking for a tough sentence anyway.”
Gejaa Gobena, a litigation partner at Hogan Lovells and former chief of the DOJ Criminal Division’s Health Care Fraud Unit, concurred. “We prosecuted hundreds of cases and never had a sentence approaching anywhere near this,” Gobena said.
Legally, the answer to how the long sentence came about is not that difficult: Harmon, applying several enhancements under the federal sentencing guidelines, imposed the statutory maximum prison term on each charge, and then ran them consecutively.
“I am not a heartless person. I think I am not. I hope I am not,” Harmon told Neba before announcing the sentence. “It must be a terrible experience that you are going through, Ms. Neba, and I don’t want you to think that by sentencing you to what I am going to sentence you to that I’m trying to heap more difficulties on you because I am not. … It’s just the way the system works, the way the law works. You have been found guilty of a number of counts by a jury, and this is what happens.”
Even so, historically, the case is highly unusual, breaking the previous record by 25 years. Since a pair of U.S. Supreme Court decisions in December 2007 that reaffirmed that the federal sentencing guidelines are merely advisory, federal trial judges have much greater latitude to impose what they think are appropriate sentences, even if the guidelines call for higher or lower sentences. The longest health care fraud sentence prior to Neba’s came in 2011, when Lawrence Duran, the owner of a Miami-area mental health care company, was sentenced to 50 years for orchestrating a $205 million Medicare scheme that defrauded vulnerable patients with dementia and substance abuse. The next longest? Forty-five years in 2015 for a Detroit doctor who gave chemotherapy to healthy patients, whom federal prosecutors then called the “most egregious fraudster in the history of this country.”
‘Run-of-the-Mill’ Health Care Fraud Case
According to court documents, Neba, from 2006 to 2015, conspired with others to defraud Medicare by submitting more than $10 million in false claims for home health services provided through Fiango Home Healthcare Inc., owned by Neba and her husband and co-defendant, Ebong Tilong. Using that money, Neba paid illegal kickbacks to patient recruiters for referrals and to Medicare beneficiaries who allowed Fiango to use their Medicare information to bill for home health services that were not medically necessary nor provided, and, all told, received $13 million in ill-gotten Medicare payments, the documents said.
Neba was convicted of one count of conspiracy to commit health care fraud, three counts of health care fraud, one count of conspiracy to pay and receive health care kickbacks, one count of payment and receipt of health care kickbacks, one count of conspiracy to launder monetary instruments and one count of making health care false statements.
Four co-defendants, including Tilong, have pleaded guilty in the case. He is scheduled to be sentenced on Oct. 13.
“This would be considered a run-of-the-mill health care fraud case,” Hogan Lovells’ Gobena said.
Harmon, through her case manager, declined to comment on the case. The transcript, however, reveals several factors that influenced her decision to impose the lengthy prison term, including:
• “Most importantly,” Neba’s sentencing guideline range of life imprisonment (though Harmon was proscribed by statutory maximums from imposing a life sentence).
• Neba’s use of “sophisticated means” — going to great lengths to conceal her fraudulent activity, money laundering and kickback schemes, and falsifying medical records, sometimes while Medicare-trained auditors were in the office, to make patients appear sicker on paper than they actually were.
• Neba’s role as “an organizer, leader of a criminal activity” that involved five or more participants: “Ms. Neba intentionally engaged in or caused the conduct that constitutes sophisticated means,” the judge said.
• Neba’s attempt to obstruct justice by telling a co-defendant, before arraignment in the federal courthouse, “to keep to her story,” specifically “not to tell anybody that she, [the co-defendant], was paying the patients.”
“With all of the enhancements [under the federal sentencing guidelines], it quickly accelerates,” Gobena said.
Neba’s decision to go to trial on the charges, rather than plead guilty and provide some sort of government assistance, also played a role in her sentence. Had she pleaded guilty to one or more of the charges “at the very beginning without obstruction of justice,” and received the highest credit for cooperation for doing so, Neba’s sentencing guideline range would have been 14.5 years, federal prosecutor William Chang told Harmon during the hearing.
“Had the same thing happened and she received no [credit] whatsoever, it would be 21.8 years,” he added. “If she had gone to trial and been convicted, but no obstruction of justice, the sentence would have been 30 years on the calculation of the guidelines. So, we want the court to understand the United States’ principal position for what it seeks.”
Looking Forward, ‘More and More’?
Khouri, Neba’s attorney, said he plans to challenge on appeal the manner in which the sentencing guideline range was calculated and argue, among other matters, that the sentence is excessive.
“She believed the law required it, and she thought that was an appropriate sentence,” Khouri said of his perception of the judge’s rationale.
Patrick Souter, of counsel at Gray Reed & McGraw in Dallas and a professor who teaches health care fraud and abuse at Baylor Law School, said the prison term is unusually high even for Texas and its reputation for handing out tough sentences. But such an anomaly may not be one for long, at least in his state, he added.
“We’re seeing more health care fraud enforcement out there now than we’ve seen in the past,” Souter said. “With these types of prosecutions and verdicts, we may start seeing more and more sentences closer to the [statutory] maximum, or at least significant sentences, because of the serious nature of the crime.”