United States Court of Appeals

for the Fifth Circuit ____________

No. 21-11225

____________

United States of America, 

Plaintiff—Appellee, 

versus

Tammie L. Little; Laila N. Hirjee, Medical Doctor, 

Defendants—Appellants, 

consolidated with

_____________

No. 21-11228

_____________

United States of America,

Plaintiff—Appellee, 

versus

Mark E. Gibbs, Medical Doctor, 

Defendant—Appellant. 

United States Court of Appeals

Fifth Circuit

FILED

November 3, 2023

Lyle W. Cayce

Clerk

Case: 21-11225 Document: 00516956725 Page: 1 Date Filed: 11/03/2023
2

______________________________

Appeals from the United States District Court 

for the Northern District of Texas

USDC Nos. 3:17-CR-103-12, 

3:17-CR-103-5 and 3:17-CR-103-6

______________________________

Before Richman, Chief Judge, and Stewart and Douglas, Circuit 

Judges.

Per Curiam:*

Three codefendants appeal their various convictions stemming from 

a multi-million-dollar healthcare conspiracy that involved fraudulent 

certification and recertification of patients as terminally ill and eligible for 

hospice care. Finding no reversible error, we affirm.

I

Defendants challenge the sufficiency of the evidence to support their 

convictions. Our sufficiency review is highly deferential to the jury’s verdict, 

and “[a]s a result, the recounting of the evidence that follows is in the light 

most favorable to the jury’s verdict.”1

Novus was a hospice provider located in Dallas, Texas, and cofounded by Bradley Harris (Harris) and Amy Harris (Amy Harris) in 2012. 

Harris oversaw Novus’s operations. Drs. Mark E. Gibbs and Laila N. Hirjee 

were medical directors for Novus. Tammie L. Little was a registered nurse 

(RN). Melanie Murphey was an administrator who had no medical training.

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

1 United States v. Mesquias, 29 F.4th 276, 279 (5th Cir.) (citing United States v. 

Moreno–Gonzalez, 662 F.3d 369, 372 (5th Cir. 2011)), cert. denied sub nom. McInnis v. United 

States, 143 S. Ct. 115 (2022), and cert. denied sub nom. Mesquias v. United States, 143 S. Ct. 

269 (2022).

Case: 21-11225 Document: 00516956725 Page: 2 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

3

Under applicable regulations, hospice is a service for the “terminally 

ill” that provides palliative care rather than curative care. “Terminally ill” 

means “that the individual has a medical prognosis that his or her life 

expectancy is 6 months or less if the illness runs its normal course.”2 

Hospice care is among the benefits covered by Medicare. Medicare pays 

hospice providers’ claims automatically in order to expedite reimbursement. 

A web of statutes and regulations governs whether Medicare will pay for 

hospice services. For a hospice claim to be eligible for Medicare 

reimbursement, a medical director must have enrolled the patient after 

“certify[ing] in writing . . . that the individual is terminally ill . . . based on 

the physician’s or medical director’s clinical judgment regarding the normal 

course of the individual’s illness.”3

 The medical director can rely on the 

records and recommendation of the patient’s attending physician to certify a 

patient as terminally ill and admit him or her to hospice. A patient can be 

recertified after their first 90 days on hospice without a face-to-face visit. If 

a patient is still alive after 180 days, Medicare requires that a face-to-face visit 

accompany the medical director’s recertification for hospice. A face-to-face 

visit is also required for every following recertification, which must occur no

more than 60 days after the previous one.

Novus exploited Medicare’s reimburse-first-verify-later system. 

Because Medicare pays a flat rate per day for patients who are receiving

hospice care regardless of the amount of care provided or the resulting costs 

to the hospice, it can be profitable to have low-acuity patients who are 

designated as hospice patients for long periods of time. Novus’s business 

model was to target patients who had a medical diagnosis that would qualify 

_____________________

2 42 C.F.R. § 418.3.

3 42 U.S.C. § 1395f(a)(7)(A)(i)(II).

Case: 21-11225 Document: 00516956725 Page: 3 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

4

them for hospice but who were not “imminently dying.” Staff at Novus 

would market to these desirable types of patients, and, if those patients 

agreed to receive hospice services from Novus, the staff would then use presigned physician’s orders to enroll patients.

As discussed above, Medicare has certain requirements for 

recertifying patients for hospice. Relevant here, the medical director’s 180-

day recertification must be accompanied by a form attesting to the medical 

director’s face-to-face visit with the patient and a physician’s narrative 

explaining “why the clinical findings of that face-to-face encounter support a 

life expectancy of six months or less.” At Novus, the medical directors used 

nurses’ notes to fill out the narrative section of the face-to-face forms, and 

Harris told them what dates to put on the forms. Face-to-face visits by the 

directors did not occur.

Ultimately, Novus’s business model had inherent limitations. 

Medicare imposes an aggregate cap on the amount of money it will pay a 

hospice in a year. When Medicare has paid a hospice provider more than its 

cap allows, it claws back the excess payments. Novus exceeded its cap in 

2012 and 2013, and, by its calculations, it had exceeded its cap by millions in 

mid-2014. To avoid liability for the excess payments, Novus needed to 

increase the number of patients who were hospice patients for a short time. 

Bluntly, Novus needed patients who would die quickly or who could be 

discharged before the end of their first 90-day benefits period.

To meet these needs, Harris entered into an agreement with Ali Rizvi, 

the owner of Express Medical. Rizvi provided Little with login credentials to 

Express Medical’s electronic records database. Little and Harris used 

Express Medical’s database to look for patients who had been diagnosed with 

a disease that would qualify them for hospice care. Little or Amy Harris 

would then contact those patients and try to enroll them with Novus.

Case: 21-11225 Document: 00516956725 Page: 4 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

5

In 2015, the Centers for Medicare and Medicaid Services (CMS) 

suspended payments to Novus because of “credible allegations of fraud.” 

Harris, Amy Harris, and Dr. Gibbs responded by transferring some of 

Novus’s patients to another hospice company, Dependable. Dr. Gibbs 

served as Dependable’s medical director until CMS suspended payments to 

Dependable.

A grand jury indicted Harris, Amy Harris, Rizvi, Murphey, Dr. Gibbs, 

Dr. Hirjee, Little, and others for conspiracy to commit healthcare fraud and 

other crimes. Little and Drs. Hirjee and Gibbs proceeded to trial. Harris and 

Murphey, among others who had been indicted, pled guilty and testified at 

trial.

The jury found each defendant guilty of the allegations in Count One,

conspiracy to commit healthcare fraud. The jury also found: (1) Dr. Gibbs 

guilty of Counts Five and Six,substantive healthcare fraud, but acquitted him 

on a third count, and guilty of Count Fifteen, conspiracy to obstruct an 

administrative proceeding; (2) Dr. Hirjee guilty of Counts Eight, Nine, and 

Ten, substantive healthcare fraud, and guilty of Count Fourteen, unlawful 

distribution of a controlled substance; and (3) Little guilty of Counts Two, 

Three, and Four, substantive healthcare fraud. The district court sentenced 

Dr. Gibbs to 156 months of imprisonment; Dr. Hirjee to 120 months; Little 

to 33 months. The district court ordered Dr. Gibbs to pay $27,978,903 in 

restitution jointly and severally with other coconspirators; and Little to pay 

$366,493.12 jointly and severally with other coconspirators. The defendants 

timely appealed.

We first address challenges to the sufficiency of the evidence—first to 

the conspiracy counts, then to the substantive healthcare fraud counts, and 

finally to the defendant-specific counts of distribution of a controlled 

substance and conspiracy to obstruct justice. We then address issues relating 

Case: 21-11225 Document: 00516956725 Page: 5 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

6

to the conduct of trial, including the jury instructions given on two counts, 

the denial of a motion for a new trial, and the admission of evidence. Finally, 

we address challenges to restitution and sentencing.

II

We review sufficiency of the evidence challenges de novo, but we 

remain “highly deferential to the verdict.”4 “[T]he relevant question is 

whether, after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements 

of the crime beyond a reasonable doubt.”5

 “The evidence is viewed in the 

light most favorable to the verdict, accepting all credibility choices and 

reasonable inferences made by the trier of fact which tend to support the 

verdict,”6 and we resolve any conflict in the evidence “in favor of the jury’s 

verdict.”7

 “We will not second guess the jury in its choice of which witnesses 

to believe.”8 We begin by addressing the sufficiency of the evidence as to the 

conspiracy to commit healthcare fraud counts; then the substantive 

healthcare fraud counts; then the distribution of a controlled substance count 

for Dr. Hirjee; and last the conspiracy to obstruct justice count for Dr. Gibbs.

_____________________

4 Moreno–Gonzalez, 662 F.3d at 372 (quoting United States v. Harris, 293 F.3d 863, 

869 (5th Cir. 2002)).

5 Jackson v. Virginia, 443 U.S. 307, 319 (1979).

6 Moreno–Gonzalez, 662 F.3d at 372 (quoting United States v. Asibor, 109 F.3d 1023, 

1030 (5th Cir. 1997)).

7 Id. (citing United States v. Duncan, 919 F.2d 981, 990 (5th Cir. 1990)).

8 United States v. Zuniga, 18 F.3d 1254, 1260 (5th Cir. 1994) (citing United States v. 

Jones, 839 F.2d 1041, 1047 (5th Cir. 1988)).

Case: 21-11225 Document: 00516956725 Page: 6 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

7

A

“A person commits health care fraud by ‘knowingly and willfully 

execut[ing] a scheme to defraud a government health care program like 

Medicare.’”9 “A person is guilty of conspiring to commit health care fraud 

when he knowingly agrees to execute the fraud scheme with the intent to 

further its unlawful purpose.”10 To prove a conspiracy to commit healthcare 

fraud, the Government must show that: (1) two or more people made an 

agreement to commit healthcare fraud; (2) the defendant knew of the 

unlawful purpose of the agreement; and (3) the defendant joined in the 

agreement with the intent to further the unlawful purpose.11 We first address 

Dr. Gibbs’s arguments, then Dr. Hirjee’s, and last, Little’s.

1

Dr. Gibbs argues that the Government failed to establish that he 

“agreed to commit healthcare fraud.” He provides two theories.

First, Dr. Gibbs contends that the Government did not present 

evidence proving he “knowingly participated in a scheme where he knew 

patients were certified for hospice when they were not hospice appropriate 

or that patients were kept in hospice when that was no longer appropriate.” 

This argument misconstrues the theory of fraud underlying these charges. 

The fraud is the false certification of patients as terminally ill to enroll them 

as hospice patients and the false recertification to keep them as receiving

_____________________

9 United States v. Mesquias, 29 F.4th 276, 280 (5th Cir.) (alteration in original) 

(quoting United States v. Sanjar, 876 F.3d 725, 745 (5th Cir. 2017)), cert. denied sub nom. 

McInnis v. United States, 143 S. Ct. 115 (2022), and cert. denied sub nom. Mesquias v. United 

States, 143 S. Ct. 269 (2022).

10 Id. (citing United States v. Njoku, 737 F.3d 55, 63 (5th Cir. 2013)).

11 United States v. Hamilton, 37 F.4th 246, 257-58 (5th Cir.), cert. denied, 143 S. Ct. 

450 (2022).

Case: 21-11225 Document: 00516956725 Page: 7 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

8

hospice care. Those certifications and recertifications are false because Dr. 

Gibbs did not know whether the patients were eligible for hospice care, but 

he lent his signature to attest to Medicare that they were.12 Another medical 

director following Medicare’s requirements might have placed or kept 

certain patients in a hospice program, but that is not the point. Falsely 

certifying a patient who happens to be eligible does not make the certification 

less false.

Second, Dr. Gibbs avers that the Government failed to put on proof of 

an agreement, and “[t]here is no way to distinguish lax medical practices with 

participation in the common scheme.” Contrary to this assertion, the 

Government did introduce evidence of an agreement between the 

coconspirators, as well as evidence supporting a conclusion that Dr. Gibbs’s 

actions amounted to willful participation, not just haphazard medical 

practices.

The jury heard a recording of Dr. Gibbs, Murphey, Harris, and Amy 

Harris after CMS suspended payments to Novus. Murphey recorded the 

conversation without the others knowing. Amy Harris described moving 

Novus hospice patients to another hospice company, Optim, and that “we 

don’t think that they’re going to come after Optim because they’re gonna 

_____________________

12 See United States v. Ramirez, 979 F.3d 276, 278 (5th Cir. 2020) (“Ramirez 

defrauded Medicare. He falsely certified that Medicare beneficiaries needed a specialized 

form of nursing care called ‘home health services.’ Medicare pays for such services only 

where a physician certifies that he evaluated the patient face-to-face and decided that home 

health services were medically necessary. Ramirez signed hundreds of those certifications. 

But he did so without meeting the patients, much less evaluating them.”); United States v. 

Sanjar, 876 F.3d 725, 746 (5th Cir. 2017) (“The circumstantial evidence of fraudulent 

intent in this case is similar to what courts have found sufficient in other health care fraud 

schemes. [Defendants] had employees falsify patient files to comport with [partial 

hospitalization program] requirements, feigned participation in patient evaluations, and, as 

the owners of [Provider], reaped substantial profits from the scheme.”).

Case: 21-11225 Document: 00516956725 Page: 8 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

9

have to be able to find . . . a reason to do that. If they did, by that time, like 

worst-case scenario, we could then move to this other hospice that our names 

are not associated with.” Dr. Gibbs then explained, “[T]he Optim thing is 

going to be tricky because, like we talked about earlier, they’re going to really 

notice 200.” Murphey clarified at trial that Dr. Gibbs was referring to 

Medicare noticing 200 Novus patients being moved to another company. 

The group then discussed “Plan C,” which was to move Novus patients to 

Dependable, a hospice company owned by an associate of Harris, and which 

had no patients. Dr. Gibbs posed, “So your next question is: Is this kind of 

shady? And the answer is: Yes, absolutely, but we’ve worked in the gray areas 

for years and everybody does.” Dr. Gibbs did assure Murphey that “we 

haven’t done anything illegal at all,” but Murphey testified that she believed 

he was trying to convince her to stay because, as Dr. Gibbs phrased it, she 

was “vital.” Dr. Gibbs’s involvement in planning the next steps after the 

CMS suspension, moving the Novus patients to Dependable, and 

acknowledgment of having “worked in the gray area for years” support a 

reasonable inference that Dr. Gibbs had been willfully participating in a 

scheme to defraud Medicare.

Aside from this recording, the jury also heard testimony about actions 

taken by Dr. Gibbs that indicate he was working in concert with the 

coconspirators to achieve the goals of the conspiracy. Murphey testified to 

receiving pre-signed documents from Dr. Gibbs, including physician’s orders 

and face-to-face forms. Murphey, who was not a medical professional, used 

those pre-signed physician’s orders to enroll new patients in hospice. Harris 

and Murphey testified to witnessing Dr. Gibbs complete face-to-face forms 

without visiting the patients in person. Harris explained at trial that he and 

Dr. Gibbs would go through patients’ medical records, and Dr. Gibbs would 

write a physician narrative based on the recent nurse’s notes. In order to 

make it difficult “to prove that he didn’t do the visits,” Harris instructed Dr. 

Case: 21-11225 Document: 00516956725 Page: 9 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

10

Gibbs to date the face-to-face certifications when Dr. Gibbs came to Novus’s 

clinic and his other office was closed.

“In the vast majority of concert of action cases, the Government 

presents an insider with direct evidence of the conspiratorial scheme who 

testifies to the individual actions she completed and the actions the defendant 

took to meet their common unlawful goal.”13 “Such testimony of a coconspirator, as long as it is not incredible, is alone sufficient to support a 

conviction.”14 Here, the jury heard the testimony of coconspirators 

Murphey and Harris, both of whom described the actions Dr. Gibbs took to 

further the conspiracy. Those actions evidence his agreement to join in the 

scheme to defraud Medicare. The jury also heard the recording of Dr. Gibbs 

describing how he and the others had been working in the “gray area.”

Viewing this evidence in the light most favorable to the verdict, a jury 

could reasonably infer that Dr. Gibbs willfully joined in the conspiracy to 

defraud Medicare.

2

Dr. Hirjee argues that the Government failed to prove that there was 

a conspiracy and, if there was, that Dr. Hirjee willfully participated in it.

Like Dr. Gibbs, Dr. Hirjee argues that “the Government failed to 

show that between 2012 and 2014, Novus doctors and employees willfully 

certified any ineligible patients for hospice care.” She concedes that “the 

Government presented evidence that Dr. Hirjee and other Novus doctors 

signed blank hospice admission forms and Murphey filled in the 

information,” but she asserts “there is no evidence that any blank form 

_____________________

13 United States v. Ganji, 880 F.3d 760, 771 (5th Cir. 2018).

14 Mesquias, 29 F.4th at 282.

Case: 21-11225 Document: 00516956725 Page: 10 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

11

signed by Dr. Hirjee resulted in the admission of an ineligible patient.” 

Again, this misconstrues the underlying theory of fraud. Under Dr. Hirjee’s 

interpretation, so long as Murphey happened to enroll only eligible patients, 

then no fraud occurred. That is not the fraud theory the Government 

presented to the jury. The fraud theory presented by the Government was 

supported by evidence—Harris testified about Novus’s overarching business 

model, and he and Murphey testified about how individuals, including Dr. 

Hirjee, fit into the mechanics of that model in order to defraud Medicare.

Dr. Hirjee continues on to argue that, if there was a conspiracy, the 

Government failed to prove that she willfully agreed to it. She makes three 

assertions: (1) she was not intimately involved in Novus; (2) the Government 

failed to prove she falsely certified that she visited patients; and (3) the 

Government proved at most lax practices. 

First, Dr. Hirjee likens her situation to that of the defendants in United 

States v. Ganji.

15 There, the Government’s concerted-action evidence fell 

short because the witnesses “admitted to their own fraud, [but] they did not 

implicate [the defendant].”16 Ganji is inapposite. Here, Harris and Murphey 

testified as to their own fraudulent actions and how they carried out those 

actions with Dr. Hirjee. The jury heard evidence of Dr. Hirjee pre-signing 

physician’s orders used to admit patients to hospice; receiving patient 

narratives for face-to-face forms along with requests to date the forms as 

Harris directed; and leaving pre-signed, blank prescriptions for Harris or 

Murphey to retrieve. Dr. Hirjee also points to evidence that she refused to 

certify ineligible patients for hospice, and claims that she “hardly earned the 

sort of money that might tempt a doctor of her stature into risking decades in 

_____________________

15 880 F.3d 760 (5th Cir. 2018).

16 Id. at 770.

Case: 21-11225 Document: 00516956725 Page: 11 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

12

federal prison.” But the jury did not credit this evidence or make these 

inferences, and we will not second-guess the jury.17 Ultimately, the 

Government needed to prove beyond a reasonable doubt that Dr. Hirjee 

willfully joined in a conspiracy to defraud Medicare, not that she was a key 

player or intimately involved.

Second, Dr. Hirjee argues that the Government failed to prove that 

she falsified face-to-face forms for recertification of hospice patients. Dr. 

Hirjee primarily re-presents evidence that the jury heard at trial. She points 

to witness testimony that she did complete face-to-face visits and visited her 

patients’ facilities weekly. She suggests that while “the Government no 

doubt showed that Dr. Hirjee was on vacation on two dates on which she 

supposedly saw [three patients]” for face-to-face visits, “the Government 

did not show that she had not seen the patients on or about those dates—in 

other words, that the precise dates on the forms were not simply mistakes.” 

She also suggests that “[i]t would make no sense to lie about something so 

simple and convenient.” These are possible inferences that the jury could 

have drawn, but they are not the inferences it drew.

The Government responds by pointing to the evidence cutting the 

other way. Harris testified that Dr. Hirjee fraudulently certified that she 

conducted face-to-face visits that never occurred. As with Dr. Gibbs, Harris 

would instruct Dr. Hirjee to date the face-to-face certifications on days when 

it would be more difficult to prove that she had not performed the visit. 

Harris would fax Dr. Hirjee batches of narratives, written by nurses, along 

with blank face-to-face forms so that Dr. Hirjee could fill them out and then 

_____________________

17 See United States v. Asibor, 109 F.3d 1023, 1030 (5th Cir. 1997) (“The evidence 

is viewed in the light most favorable to the verdict, accepting all credibility choices and 

reasonable inferences made by the trier of fact which tend to support the verdict.” (citing 

United States v. Jimenez, 77 F.3d 95, 97 (5th Cir. 1996))).

Case: 21-11225 Document: 00516956725 Page: 12 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

13

sign and date them as directed by Harris. Dr. Hirjee would sign the forms 

and put them under her doormat for Harris to retrieve. Further, as discussed 

in more detail below regarding the sufficiency of the evidence as to the

substantive healthcare fraud counts, the Government produced three faceto-face forms, signed by Dr. Hirjee, attesting that the visits with the patients 

occurred on a date when Dr. Hirjee was out of the country. It was reasonable 

for the jury to infer from this evidence that Dr. Hirjee used the information 

provided by Harris to complete face-to-face forms rather than perform the 

encounters as Medicare requires.

Third, Dr. Hirjee argues that the Government proved nothing more 

than her lax practices. She suggests that the evidence shows only that she 

“took it upon herself to defraud Medicare and Medicaid” because she was 

unaware that Harris did not care whether the face-to-face visits occurred. In 

other words, she was acting independently of the conspiracy. This argument 

ignores Harris’s testimony describing the process of faxing Dr. Hirjee patient 

narratives and blank face-to-face forms and retrieving them once they were 

completed. It also ignores the other evidence showing Dr. Hirjee worked in 

concert with the others, such as Murphey’s testimony explaining Dr. Hirjee 

provided pre-signed physician’s orders Murphey used to admit patients to 

hospice.

On the topic of lax practices, Dr. Hirjee contends that her practice of 

pre-signing blank prescriptions for controlled substances does not support 

the conclusion that she willfully joined in the conspiracy. As it pertains to 

Count One, conspiracy to commit healthcare fraud, Dr. Hirjee’s practice of 

pre-signing blank prescription pads supports an inference that she willfully 

joined in the conspiracy. Dr. Hirjee suggests the jury could infer she presigned triplicates for other reasons—for instance, “so that drugs could be 

distributed quickly in the middle of the night,” otherwise “[t]hey all would 

have issued [sic] had nurses awakened Dr. Hirjee.” But we draw inferences 

Case: 21-11225 Document: 00516956725 Page: 13 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

14

in favor of the verdict. Further, even excluding from consideration Dr. 

Hirjee’s practice of pre-signing blank prescription pads, the jury was 

presented ample evidence on which it could find Dr. Hirjee guilty of the 

conspiracy count.

Ultimately, the Government presented “insider[s] with direct 

evidence of the conspiratorial scheme who testifie[d] to the individual actions 

[they] completed and the actions the defendant took to meet their common 

unlawful goal.”18 This testimony was “alone sufficient to support a 

conviction.”19 Viewing the evidence and making inferences in the light most 

favorable to the verdict, a rational jury could have found that Dr. Hirjee 

knowingly participated in a scheme to defraud Medicare.

3

Little argues that the Government failed to “prove with any sufficient 

evidence that Little knowingly and willfully joined any agreement for any 

illegal purpose and with the intent to defraud Medicare.” The Government 

charged Little with “conspiring with Harris, Rizvi, and Amy Harris to 

commit healthcare fraud by unlawfully (a) finding, (b) recruiting, and 

(c) enrolling ineligible patients in hospice.” These were separate means that 

independently support her conspiracy conviction,20 and importantly, they 

_____________________

18 See Ganji, 880 F.3d at 771.

19 See Mesquias, 29 F.4th at 282.

20 See United States v. Moparty, 11 F.4th 280, 297 (5th Cir. 2021)(“The government 

presented two theories of fraud: one relating to the medical necessity and adequacy of the 

procedures performed, and another focused on how the procedures were billed. Moparty 

argues that Dr. Bungo’s testimony demonstrates that Moparty lacked the necessary 

training to determine whether any particular test was necessary. He misconstrues the 

inquiry, however, because the government could bear its burden against him with evidence 

on the fraudulent billing practices alone.”).

Case: 21-11225 Document: 00516956725 Page: 14 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

15

are distinct from the manner and means the Government alleged Drs. Gibbs 

and Hirjee employed in participating in the conspiracy.

Little contends that the Government failed to prove she unlawfully 

found patients by invading their privacy in violation of the Health Insurance 

Portability and Accountability Act (HIPAA). She attacks the Government’s 

witnesses and their expertise on HIPAA, arguing that the jury did not have 

the background to decide whether Little violated patients’ rights to privacy 

in their medical records. Even if there was insufficient evidence as to 

whether Little violated HIPAA, the Government can bear its burden for the 

conspiracy conviction by providing sufficient evidence on either of the other 

two theories: recruiting and enrolling ineligible patients.

As to those theories, the Government presented the following 

evidence. Harris testified that, after Novus realized the Medicare-cap issue 

in 2014, he and Little met with Rizvi to discuss generating new hospice 

referrals by using the Express Medical database. After Rizvi provided access 

to the database, Harris and Little searched for patients who could be enrolled 

and discharged after 90 days to offset Novus’s liability. Indeed, there was 

evidence that Harris directed Little to discharge patients from hospice before 

their initial 90-day period expired. Harris testified that Little received 

bonuses for patients located through Express Medical’s database, which was 

corroborated by text messages exchanged between Harris and Little.

The Government points to three patients in particular: R.C., B.B., and 

J.M. For each of these patients, the Government presented evidence that 

their information was obtained through the Express Medical database. 

Evidence corroborated Little admitting these patients to Novus hospice and 

then discharging them after 90 days. R.C. was alive at the time of trial, seven 

years after being admitted to hospice. J.M. passed away in 2022, likewise 

years after being put on hospice. These patients’ longevity post-hospice 

Case: 21-11225 Document: 00516956725 Page: 15 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

16

admission is circumstantial evidence that they were ineligible for hospice.21 

A rational juror could infer that Little was enrolling patients who were not 

terminally ill, thereby defrauding Medicare.

Other circumstantial evidence further supports the inference that 

Little was unlawfully recruiting patients for Novus hospice. Murphey 

testified that to attract desirable patients, Little and Amy Harris would 

contact prospective patients and Little “pretend[ed]” to work as a 

“representative” for another company, encouraging patients to go on 

hospice with Novus. The jury also saw evidence that Novus staff were 

instructed to avoid using the word “hospice” when delivering a cane to R.C., 

which further supports the claim that Little was deceptive in her recruitment 

methods. Little testified in her defense, and she presented testimony that 

conflicted with the Government’s evidence for the jury to consider. She 

claimed that she did not provide Harris with her login credentials for the 

Express Medical database, she did not look through Express Medical for 

potential patients, and she believed Harris was communicating the medical 

directors’ orders when he directed her to discharge patients. It is the 

province of the jury to weigh such conflicting evidence and evaluate the 

credibility of witnesses, and it did not credit Little’s testimony.

Viewing the evidence in the light most favorable to the verdict, there 

was sufficient evidence of Little’s willful and knowing participation in the 

scheme to sustain her conviction.

_____________________

21 See Mesquias, 29 F.4th at 282 (“[A]mple circumstantial evidence backed up the 

co-conspirators’ testimony. The named patients were in hospice for an average of three 

years, a far cry from Medicare’s six-months-to-live eligibility requirement.”).

Case: 21-11225 Document: 00516956725 Page: 16 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

17

B

A person commits healthcare fraud by knowingly and willfully 

executing a scheme to defraud a government healthcare program such as

Medicare.22 Under 18 U.S.C. § 1347(a), a person is guilty of healthcare fraud 

if he or she knowingly and willfully executes a scheme or artifice to 

(1) defraud any healthcare benefit program or (2) obtain, by means of false or 

fraudulent pretenses, representations, or promises, any healthcare benefit 

program’s money in connection with the delivery of or payment for 

healthcare services.23 We first address Little’s arguments, then Dr. Gibbs’s, 

and last, Dr. Hirjee’s.

1

The jury found Little guilty of three substantive counts of healthcare 

fraud for her role in illegally finding, recruiting, and enrolling the three 

patients discussed above, R.C., B.B., and J.M. Little argues that the 

Government failed to prove she unlawfully recruited and admitted patients, 

raising many of the same points discussed above in Section II.A.3 as to 

Little’s conviction on Count One. In addition to the analysis above, we

provide the following.

Little suggests that the Government put on no evidence establishing 

that the three patients were ineligible for hospice when Little enrolled them. 

This is not the case. For instance, the Government introduced physician’s 

notes from three weeks before B.B. was enrolled on hospice. Those notes 

indicated that B.B. was “[d]oing great; no active issue; vitally stable; not on 

any medicines; [and] walk[ing] with assistance.” B.B.’s doctor 

_____________________

22 Id. at 280.

23 Ganji, 880 F.3d at 777.

Case: 21-11225 Document: 00516956725 Page: 17 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

18

recommended that she “continue low salt diet” and follow up with home 

healthcare. Likewise, for J.M., the notes from the physician visit one week 

before J.M. was enrolled on hospice indicated that J.M. was “alert” and had 

“no complaints.” As mentioned above, J.M. was discharged after 90 days 

and lived until 2022. This evidence supports the claim that these patients 

were not terminally ill when enrolled on hospice. To the extent Little argues 

expert testimony was required, we have “decline[d] to impose such a 

requirement” in other healthcare fraud cases, and we decline to impose one 

here.24 Little’s arguments do not show that the jury lacked evidence to find 

her guilty.

2

The jury found Dr. Gibbs guilty on Counts Five and Six, which 

charged him with falsely certifying that he had conducted face-to-face visits 

with S.D. It found him not guilty on Count Seven, which charged him with 

the same conduct as to E.O. Dr. Gibbs argues that the Government failed to 

produce evidence establishing that the documents relating to S.D. were 

(1) authentic and (2) submitted to Medicare.

First, the Government did put on evidence establishing that the 

documents were authentic. Murphey testified that the signature on S.D.’s 

face-to-face certification belonged to Dr. Gibbs and that she watched him 

sign it. The jury was permitted to credit that testimony.25 Dr. Gibbs is 

correct that the evidence generally established that “non-physicians at 

Novus forged documents, altered documents, and fraudulently worked 

_____________________

24 See United States v. Sanjar, 876 F.3d 725, 745 (5th Cir. 2017).

25 See United States v. Zuniga, 18 F.3d 1254, 1260 (5th Cir. 1994) (“We will not 

second guess the jury in its choice of which witnesses to believe.” (citing United States v. 

Jones, 839 F.2d 1041, 1047 (5th Cir. 1988))).

Case: 21-11225 Document: 00516956725 Page: 18 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

19

around the physicians,” but, for this document in particular, the 

Government presented evidence that Dr. Gibbs signed it. The jury could 

have reasonably concluded from Murphey’s testimony that Dr. Gibbs signed 

S.D.’s face-to-face certification form, and we resolve conflicts in favor of the 

jury’s verdict.26

Second, Dr. Gibbs’s argument that “there was absolutely no evidence 

that the documents that the government used to tie Dr. Gibbs to S.D. were 

ever submitted to Medicare” also fails. The jury heard testimony that the 

face-to-face forms for S.D. were “uploaded into the [electronic medical 

record] and provided as part of the certification for continued eligibility for 

payment” from Medicare. The Government introduced an exhibit showing 

that Novus submitted claims and received payments from Medicare during 

the time periods when the face-to-face forms for S.D. bearing Dr. Gibbs’s 

signature were dated. The jury also heard that such face-to-face forms were 

a condition of payment without which Medicare would not have paid claims. 

As the Government puts it, the face-to-face forms bearing Dr. Gibbs’s 

signature were part of the “package” Novus used to bill Medicare for S.D. 

The Government did not need to prove that the document was submitted 

directly to Medicare to prove beyond a reasonable doubt that Dr. Gibbs 

committed healthcare fraud.27 There was sufficient evidence to convict Dr. 

Gibbs of healthcare fraud.

_____________________

26 See United States v. Moreno–Gonzalez, 662 F.3d 369, 372 (5th Cir. 2011) (“[A]ny 

conflict in the evidence must be resolved in favor of the jury’s verdict.” (citing United 

States v. Duncan, 919 F.2d 981, 990 (5th Cir. 1990))).

27 See United States v. Umawa Oke Imo, 739 F.3d 226, 235 (5th Cir. 2014) (“A 

defendant need not have actually submitted the fraudulent documentation to Medicaid in 

order to be guilty of health care fraud or conspiracy to commit health care fraud.” (citing 

United States v. Girod, 646 F.3d 304, 313 (5th Cir. 2011))).

Case: 21-11225 Document: 00516956725 Page: 19 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

20

3

The jury found Dr. Hirjee guilty on Counts Eight, Nine, and Ten, 

which charged her with fraudulently certifying face-to-face visits for D.P., 

J.M., and J.F. Dr. Hirjee reiterates several of the arguments she made in 

challenging the sufficiency of the evidence for Count One, which fail for the 

same reasons discussed above, as well as the additional reasons discussed 

below.

First, Dr. Hirjee argues that the Government failed to prove that she 

did not see the patients, “instead proving only that she did not see them on 

specific, immaterial dates.” The Government presented the following 

evidence. For J.M.: On October 29, 2013, Harris faxed Dr. Hirjee a narrative 

and blank face-to-face form for J.M. At the top of the narrative was written, 

“[J.M.] Date 10/24.” The completed face-to-face form for J.M. states that 

“I confirm that I had a face-to-face encounter with [J.M.] on 10/24/13” and 

is signed by Dr. Hirjee. Testimony at trial established that Dr. Hirjee was in 

Hawaii on October 24, 2013. For D.P. and J.F.: On April 29, 2014, Murphey 

faxed Dr. Hirjee narratives and blank face-to-face forms for D.P. and J.F. The 

fax includes the request, “[P]lease date all of these 4/19/14.” The 

completed face-to-face forms for D.P. and J.F. state the encounters occurred 

on “4/19/14.” Testimony at trial established that Dr. Hirjee was in Mexico 

on April 19, 2014. Dr. Hirjee’s argument presents another possible inference 

the jury could have drawn from the evidence, but it is not the inference the 

jury ultimately drew.

Second, Dr. Hirjee argues that the “Government failed to prove that 

[these patients] were not eligible for hospice care and that the face-to-face 

certifications were material.” As discussed with respect to Count One 

above, the Government’s fraud theory did not turn on whether the patients 

were ineligible. The fraud turned on Dr. Hirjee attesting to Medicare that 

Case: 21-11225 Document: 00516956725 Page: 20 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

21

she performed face-to-face encounters that she did not actually perform. 

Had Dr. Hirjee performed the encounters, she may have legitimately 

recertified the patients for hospice—the problem, according to the 

Government, is that she did not perform the encounters but filled out the 

face-to-face forms anyway. As to the materiality of the face-to-face forms, 

the Government introduced evidence showing that face-to-face forms were a 

condition of payment without which Medicare would not have paid claims.

Viewing the evidence and inferences in the light most favorable to the 

verdict, a rational jury could have concluded that Dr. Hirjee did not perform 

the face-to-face visits she attested to Medicare she performed, thereby 

defrauding Medicare.

C

Count Fourteen charged Dr. Hirjee with unlawfully distributing and 

dispensing hydromorphone to L.V. outside the usual course of professional 

practice and not for a legitimate medical purpose in violation of 21 U.S.C. 

§ 841(a). To convict Dr. Hirjee, the Government was required to prove that 

(1) she distributed or dispensed a controlled substance; (2) she acted 

knowingly and intentionally; and (3) she did so other than for a legitimate 

medical purpose and in the usual course of her professional practice.28 “[A] 

practitioner is unauthorized to dispense a controlled substance if the 

prescription either lacks a legitimate purpose or is outside the usual course of 

professional practice.”29 After Dr. Hirjee’s trial, the Supreme Court decided 

_____________________

28 United States v. Brown, 553 F.3d 768, 780-81 (5th Cir. 2008); see also United States 

v. Norris, 780 F.2d 1207, 1209 (5th Cir. 1986).

29 United States v. Bennett, 874 F.3d 236, 245 (5th Cir. 2017) (quoting United States 

v. Armstrong, 550 F.3d 382, 397 (5th Cir. 2008), overruled on other grounds by United States 

v. Balleza, 613 F.3d 432 (5th Cir. 2010) (per curiam)).

Case: 21-11225 Document: 00516956725 Page: 21 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

22

Ruan v. United States,30 holding that “[a]fter a defendant produces evidence 

that he or she was authorized to dispense controlled substances, the 

Government must prove beyond a reasonable doubt that the defendant knew 

that he or she was acting in an unauthorized manner, or intended to do so.”31

Generally, a preserved sufficiency challenge is reviewed de novo.32 

However, if a defendant “asserts specific grounds for a specific element of a 

specific count for a Rule 29 motion, [s]he waives all others for that specific 

count.”33 Dr. Hirjee’s counsel argued orally and in writing for acquittal 

because the Government failed to prove beyond a reasonable doubt that the 

L.V. prescription was outside the usual course of professional practice and 

not for a legitimate medical purpose. She did not challenge the sufficiency of 

the evidence as to the mens rea element, and we review this unpreserved 

challenge for plain error.34

The Government presented the following evidence: Dr. Hirjee presigned “triplicates,” the form that physicians use to prescribe schedule-II 

controlled substances like oxycontin, hydromorphone, morphine, and 

fentanyl. A triplicate is also known as a “C-II.” The jury heard testimony 

from Harris and Murphey that Dr. Hirjee supplied pre-signed C-IIs, which 

were used to medicate Novus’s hospice patients. Once Murphey had used 

all of Dr. Hirjee’s triplicates, Murphey would text Dr. Hirjee that she needed 

more. The jury also saw messages between Dr. Hirjee and Harris 

_____________________

30 142 S. Ct. 2370 (2022).

31 Id. at 2375.

32 See United States v. Harris, 740 F.3d 956, 962 (5th Cir. 2014).

33 United States v. Herrera, 313 F.3d 882, 884 (5th Cir. 2002) (en banc) (per 

curiam).

34 See id.

Case: 21-11225 Document: 00516956725 Page: 22 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

23

demonstrating how Dr. Hirjee pre-signed C-IIs and left them under her 

doormat for retrieval. As to L.V. in particular, Murphey testified to using a 

triplicate pre-signed by Dr. Hirjee to order hydromorphone, a painkiller, for 

L.V. Text messages corroborated Murphey’s testimony.

As to Dr. Hirjee’s preserved challenges, she first argues that “there is 

no evidence that [L.V.]’s [h]ydromorphone prescription was for an 

illegitimate purpose.” Dr. Hirjee points to testimony establishing that 

hydromorphone is dispensed to treat L.V.’s condition. The logic of this 

interpretation is flawed. As the Government points out, “[u]nder Hirjee’s 

theory, an office[] manager could write millions of prescriptions for hospice 

patients, and the doctor who pre-signed those prescriptions would be 

immune from prosecution unless the government could prove that the office 

manager chose a drug for which the patient had no need.” The Government 

cites the Sixth and Eleventh Circuits, which reject Dr. Hirjee’s 

interpretation.35 We agree with those circuits. The question is whether Dr. 

Hirjee herself prescribed hydromorphone to L.V. for an illegitimate purpose, 

and a rational jury could conclude from the evidence that she did.

Dr. Hirjee further argues that it was not outside the usual course of 

professional practice for a doctor to pre-sign prescription forms. She points 

to “multiple defense witnesses [who] testified that hospice agencies use pre-

_____________________

35 See United States v. Chaney, 921 F.3d 572, 590-91 (6th Cir. 2019)(“As the district 

court made abundantly clear, a doctor prescribing opioid painkillers to anyone walking 

through the door is not saved if a person happens to have an underlying condition that could 

justify the prescription; likewise, a doctor who acts in good faith and with all due care but 

nevertheless issues a prescription to a patient who was merely faking symptoms is 

nevertheless acting with a legitimate medical purpose. To say otherwise would be 

absurdity.”); United States v. Abovyan, 988 F.3d 1288, 1306 (11th Cir. 2021) (“The 

question is not whether a doctor could prescribe buprenorphine for legitimate medical 

addiction treatment actually being rendered, but whether Abovyan himself did prescribe 

buprenorphine for such actual addiction treatment.”).

Case: 21-11225 Document: 00516956725 Page: 23 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

24

signed prescription forms” although this violates Texas medical regulations. 

As the Government explains, those witnesses testified to leaving pre-signed 

triplicates with properly designated nurses, not with anyone working for the 

hospice provider. In addition, multiple witnesses testified that they would 

not pre-sign triplicates, full stop. It is the province of the jury to weigh 

conflicting evidence. Resolving inferences in favor of the verdict, the jury 

had sufficient evidence to conclude Dr. Hirjee acted outside the usual course 

of professional practice.

Last, as mentioned above, although Dr. Hirjee preserved her 

sufficiency of the evidence challenge to this count, she did not preserve her 

mens rea argument, meaning we review for plain error.36 Dr. Hirjee argues 

that “the Government failed to show that she knew she was acting in an 

unauthorized manner or intended to do so,” as Ruan requires. “[W]e have 

summarized the plain-error test’s application to unpreserved insufficiency 

claims by stating that the court will reverse only if there is a manifest

miscarriage of justice.”37 Dr. Hirjee has not shown that her conviction on 

this count was a manifest miscarriage of justice. She signed prescription pads 

for schedule II drugs—drugs like morphine, cocaine, and oxycodone—and 

left them under her doormat. Non-medical professionals then used presigned triplicates to order medication for hospice patients.

We conclude that the evidence was sufficient to convict Dr. Hirjee on 

Count Fourteen.

_____________________

36 See Herrera, 313 F.3d at 884 (“Where, as here, a defendant asserts specific grounds

for a specific element of a specific count for a Rule 29 motion, he waives all others for that 

specific count.”).

37 United States v. Huntsberry, 956 F.3d 270, 283 (5th Cir. 2020) (alteration and 

emphasis in original) (quoting United States v. Delgado, 672 F.3d 320, 331 (5th Cir. 2012) 

(en banc)).

Case: 21-11225 Document: 00516956725 Page: 24 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

25

D

The superseding indictment charged Dr. Gibbs with conspiring with 

Harris and others to violate 18 U.S.C. § 1505 by moving Novus’s operations 

and payments to a different hospice company to “circumvent the CMS 

suspension.” The Government was required to establish beyond a 

reasonable doubt (1) the existence of an agreement to violate § 1505; 

(2) knowledge and intent to join the conspiracy; and (3) an overt act 

constituting actual participation in the conspiracy.38 Section 1505 makes it a 

criminal offense to “corruptly . . . obstruct[], or impede[] or endeavor[] to 

influence, obstruct, or impede the due and proper administration of the law 

under which any pending proceeding is being had before any department or 

agency of the United States.”39 To prove a violation of § 1505, the 

Government must prove that (1) there was an agency proceeding; (2) the 

defendant was aware of that proceeding; and (3) the defendant intentionally 

endeavored corruptly to influence, obstruct, or impede the pending 

proceeding.40

Dr. Gibbs argues that there is “no testimony or evidence that [he] 

destroyed evidence, shredded paper, etc.” He also suggests that “[t]he 

transfer of money could be a qualifying event if the records showing the 

transfer were deliberately obscured or destroyed,” but “there was no effort 

to obliterate, alter, or amend” the bank records. This argument misconstrues 

the requirements of the offense. We have noted that § 1505 was “drafted 

with an eye to the variety of corrupt methods by which the proper 

_____________________

38 See 18 U.S.C. § 371.

39 Id. § 1505.

40 See United States v. Warshak, 631 F.3d 266, 325 (6th Cir. 2010); United States v. 

Quattrone, 441 F.3d 153, 174 (2d Cir. 2006); United States v. Bhagat, 436 F.3d 1140, 1147 

(9th Cir. 2006).

Case: 21-11225 Document: 00516956725 Page: 25 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

26

administration of justice may be impeded or thwarted.”41 Indeed, the 

Government points to two cases, one unpublished from our circuit42 and one 

published from the Sixth Circuit,43 involving similar facts and denying 

sufficiency challenges to § 1505 convictions.

As discussed with respect to Dr. Gibbs’s conviction on Count One, 

the jury heard a recording of Dr. Gibbs’s attempts to recruit Murphey in the 

plan to move Novus patients to Dependable, a different hospice company. 

Moving patients in order to continue billing Medicare would circumvent the 

CMS suspension of payments, which was an aspect of the CMS proceeding 

relating to the allegations of fraud leveled against Novus.44 Dr. Gibbs in 

particular raised concerns about Medicare “noticing” 200 patients being 

moved. The Government also presented evidence that Dr. Gibbs and Harris 

succeeded in moving some patients, before Medicare suspended payments to 

Dependable as well. The jury could conclude from this evidence that Dr. 

Gibbs and others agreed to circumvent the CMS proceedings in violation of 

§ 1505.

_____________________

41 United States v. Rainey, 757 F.3d 234, 245 (5th Cir. 2014) (quoting United States 

v. Griffin, 589 F.2d 200, 206 (5th Cir. 1979)).

42 United States v. Veasey, 843 F. App’x 555, 563-64 (5th Cir. 2021) (per curiam) 

(unpublished).

43 Warshak, 631 F.3d at 325-26.

44 See Rice v. United States, 356 F.2d 709, 712 (8th Cir. 1966) (explaining that, for 

§ 1505, “[p]roceedings before a governmental department or agency simply mean 

proceeding in the manner and form prescribed for conducting business before the 

department or agency, including all steps and stages in such an action from its inception to 

its conclusion”); see also Rainey, 757 F.3d at 245 (citing Rice approvingly in interpreting 

§ 1505 generally).

Case: 21-11225 Document: 00516956725 Page: 26 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

27

III

Drs. Gibbs and Hirjee allege various errors committed by the district 

court at trial. Dr. Gibbs argues that the jury charge on Count Fifteen, 

conspiracy to obstruct justice, constructively amended the superseding 

indictment. Dr. Hirjee challenges the denial of her motion for a new trial, the 

jury charge on Count Fourteen, and an evidentiary ruling. She also argues 

that, taken together, these errors deprived her of a fair trial.

A

Dr. Gibbs argues that the jury charge on Count Fifteen constructively 

amended the superseding indictment. We review a preserved claim of 

constructive amendment de novo, and an unpreserved claim for plain error.45 

Dr. Gibbs did not raise his constructive amendment arguments in the district 

court, so our review is for plain error.46 Because the district court properly 

instructed the jury to consider the crime as charged in the superseding 

indictment, Dr. Gibbs has not shown plain error.

A constructive amendment occurs “when the government changes its 

theory at trial, allowing the jury to convict on a broader basis than that alleged 

in the indictment, or when the government proves an essential element of the 

crime on an alternate basis authorized by the statute but not charged in the 

indictment.”47 “In this circuit, a constructive amendment occurs when the 

court ‘permits the defendant to be convicted upon a factual basis that 

_____________________

45 United States v. Chaker, 820 F.3d 204, 210, 213 (5th Cir. 2016).

46 See United States v. Dupre, 117 F.3d 810, 816 (5th Cir. 1997) (“[U]nder Rule 30 

of the Federal Rules of Criminal Procedure, these proposed instructions do not preserve 

error on appeal, absent an objection specific to the counts at issue.”); United States v. 

Rosenthal, 805 F.3d 523, 530 (5th Cir. 2015).

47 United States v. Stanford, 805 F.3d 557, 566 (5th Cir. 2015) (citing United States 

v. Girod, 646 F.3d 304, 316 (5th Cir. 2011)).

Case: 21-11225 Document: 00516956725 Page: 27 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

28

effectively modifies an essential element of the offense charged’ or upon ‘a 

materially different theory or set of facts than that which [the defendant] was 

charged.’”48 “In evaluating whether a constructive amendment has 

occurred, we consider ‘whether the jury instruction, taken as a whole, is a 

correct statement of the law and whether it clearly instructs jurors as to the 

principles of the law applicable to the factual issues confronting them.’”49

As discussed above with respect to the sufficiency of the evidence for 

this count, to prove a violation of § 1505 the Government must prove that 

(1) there was an agency proceeding; (2) the defendant was aware of that 

proceeding; and (3) the defendant intentionally endeavored corruptly to 

influence, obstruct, or impede the pending proceeding.50 The jury was 

charged with the following instruction:

First: That there was an agency proceeding;

Second: That the Defendant was aware of that

agency proceeding;

Third: That the Defendant intentionally 

endeavored to influence, obstruct or 

impede that proceeding; and

Fourth: That the Defendant’s act was done 

“corruptly,” that is, the Defendant acted 

knowingly and dishonestly, with the 

specific intent to subvert or undermine 

the due administration of justice.

_____________________

48 Chaker, 820 F.3d at 210 (alteration in original) (quoting United States v. 

McMillan, 600 F.3d 434, 451 (5th Cir. 2010)).

49 United States v. Jara–Favela, 686 F.3d 289, 299-300 (5th Cir. 2012) (quoting 

United States v. Guidry, 406 F.3d 314, 321 (5th Cir. 2005)).

50 See United States v. Warshak, 631 F.3d 266, 325 (6th Cir. 2010); United States v. 

Quattrone, 441 F.3d 153, 174 (2d Cir. 2006); United States v. Bhagat, 436 F.3d 1140, 1147 

(9th Cir. 2006).

Case: 21-11225 Document: 00516956725 Page: 28 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

29

Dr. Gibbs argues that the charge “impermissibly broadened the allegations 

from the indictment” by failing to specify (1) the ways in which Dr. Gibbs 

was alleged to have influenced, obstructed, or impeded that proceeding and 

(2) the CMS proceeding as the agency proceeding.

The district court instructed the jury to consider the jury instructions 

in light of the crimes charged in the superseding indictment. The 

superseding indictment was read to the jury at the beginning of trial, and a 

redacted copy was provided to the jury for use during deliberations. The jury 

instructions stated that “[n]o Defendant is on trial for any act, conduct, or 

offense not alleged in the Superseding Indictment.” As to Count Fifteen, the 

charge stated that the jury “must be convinced that the Government has 

proven . . . beyond a reasonable doubt” that Dr. Gibbs “and at least one other 

person made an agreement to commit the crime of obstruction of justice as 

charged in Count Fifteen of the Superseding Indictment.” The superseding 

indictment stated that Dr. Gibbs “caus[ed] Medicare to pay for hospice 

services through [Dependable’s] provider number, so that they and Novus 

could continue to receive Medicare funds despite being on notice that Novus 

was the subject of a pending proceeding and suspended from receiving 

Medicare monies by CMS.” The superseding indictment listed Dr. Gibbs’s 

acts as “discuss[ing] the best way to circumvent the CMS suspension and 

continue receiving payment for hospice services rendered by Novus” and 

“agree[ing] to and serv[ing] as the medical director of [Dependable].” 

Further, the only agency proceeding mentioned in the superseding 

indictment is the CMS proceeding. The charge also explained that “[a]n 

investigation by the Centers for Medicare and Medicaid Services constitutes 

an agency proceeding.”

Case: 21-11225 Document: 00516956725 Page: 29 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

30

Because jurors are presumed to follow the court’s instructions,51 and 

the district court properly instructed the jury to consider the crime as 

charged in the superseding indictment, we find no plain error here. As there 

is no error, we decline to address the Government’s argument that Dr. Gibbs 

invited the error.

B

Dr. Hirjee raises three claims of error relating to the conduct of her 

trial, and she further argues that these errors, taken cumulatively, deprived 

her of a fair trial. First, she argues that the district court erred by denying her 

motion for a new trial. Second, she argues that, based on Supreme Court 

precedent decided after her trial but before this appeal, her jury instruction 

was plainly erroneous. Third, she argues that the district court erred by 

admitting certain evidence over her objection. We find no error.

1

We review the district court’s decision to deny a motion for new trial 

“only for an abuse of discretion.”52 “A judge’s power to grant a new trial 

based on a different assessment of the evidence must be ‘exercised with 

caution’ and ‘invoked only in exceptional cases.’”53

Dr. Hirjee argues that the “evidence here preponderates heavily 

against the verdict, such that it would be a miscarriage of justice to let the 

verdict stand.” She points to much the same evidence she cited for her 

challenges to the sufficiency of the evidence. As discussed above, there was 

_____________________

51 See United States v. Bieganowski, 313 F.3d 264, 288 (5th Cir. 2002).

52 United States v. Crittenden, 46 F.4th 292, 297 (5th Cir. 2022) (en banc).

53 Id. (quoting United States v. Sinclair, 438 F.2d 50, 51 n.1 (5th Cir. 1971)).

Case: 21-11225 Document: 00516956725 Page: 30 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

31

sufficient evidence presented at trial to support the jury’s verdicts. The 

district court did not abuse its discretion in denying the motion for a new trial.

Aside from her evidentiary arguments, Dr. Hirjee also suggests that a 

new trial is warranted because “the Government may have tried and failed to 

find an expert to testify that Dr. Hirjee referred ineligible patients to hospice 

care, and the Government did not disclose as much to the defense.” Dr. 

Hirjee did not raise this argument in the district court, and we decline to 

consider it on appeal.54

2

Next, Dr. Hirjee argues that, based on the Supreme Court’s decision 

in Ruan v. United States, the jury charge on Count Fourteen was erroneous 

because it failed to require the correct mens rea. “[W]hen a defendant fails 

to object to jury instructions, we review for plain error.”55

As an initial matter, the Government argues that Dr. Hirjee waived 

this argument by inviting the error. Generally, the invited-error doctrine 

applies to jury instructions.56 The Government states that Dr. Hirjee 

“proposed nearly the exact instruction that she challenges now, including the 

instruction of good faith,” precluding our review of this claim. Dr. Hirjee 

responds that “the invited-error doctrine does not apply when a party relied 

[below] on settled law that changed while the case was on appeal.” For this 

_____________________

54 See Grogan v. Kumar, 873 F.3d 273, 277 (5th Cir. 2017).

55 United States v. Huntsberry, 956 F.3d 270, 282 (5th Cir. 2020) (quoting United 

States v. Vasquez, 677 F.3d 685, 692-93 (5th Cir. 2012) (per curiam)).

56 United States v. Baytank (Houston), Inc., 934 F.2d 599, 606-07 (5th Cir. 1991) 

(explaining that this court “has made clear that the invited error doctrine applies to jury 

instructions” and collecting cases).

Case: 21-11225 Document: 00516956725 Page: 31 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

32

proposition, she cites two published out-of-circuit cases57 and one 

unpublished out-of-circuit case,

58 and at least one other circuit appears to 

take Dr. Hirjee’s position.59 As explained below, Dr. Hirjee cannot show 

plain error. Accordingly, we decline to decide the applicability of invited

error here.

60

Because Dr. Hirjee did not object to the jury instructions on this basis 

in the district court, we review for plain error.61 “A jury charge is plain error 

if: (1) it was erroneous; (2) the error was plain; and (3) the plain error affected 

the substantial rights of the defendant.”62 If those conditions are met, “we 

have discretion to correct the error; discretion we will exercise if the error 

_____________________

57 United States v. Titties, 852 F.3d 1257, 1264 n.5 (10th Cir. 2017); United States v. 

Nasir, 982 F.3d 144, 173 n.35 (3d Cir. 2020) (en banc), cert. granted, judgment vacated, 142 

S. Ct. 56 (2021).

58 United States v. Coffelt, 529 F. App’x 636, 639 (6th Cir. 2013) (unpublished).

59 See, e.g., United States v. Andrews, 681 F.3d 509, 517 n.4 (3d Cir. 2012) (“[W]e 

have previously held that ‘[w]here a defendant submits proposed jury instructions in 

reliance on current law’ and while his case is on direct appeal, the law is found to be 

constitutionally problematic, we will not apply the ‘invited error’ doctrine. Instead, we 

review for plain error. This is consistent with the Supreme Court’s definition of waiver as 

the ‘intentional relinquishment or abandonment of a known right.’” (citations omitted)).

60 See United States v. Martinez–Vega, 471 F.3d 559, 563 n.4 (5th Cir. 2006) 

(“Additionally, because we conclude that Appellant has failed to satisfy the plain error test, 

we need not reach the question of whether Appellant’s admission constituted invited 

error.”).

61 See United States v. Percel, 553 F.3d 903, 908-09 (5th Cir. 2008) (“Generally, 

incorrect jury instructions are not considered structural errors, and because neither 

[defendant] objected to the jury instruction in the district court, we review the instruction 

for plain error.” (footnotes omitted)).

62 United States v. Daniels, 252 F.3d 411, 414 (5th Cir. 2001).

Case: 21-11225 Document: 00516956725 Page: 32 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

33

‘seriously affect[s] the fairness, integrity or public reputation of judicial 

proceedings.’”63

In Ruan, the Supreme Court held that “[a]fter a defendant produces 

evidence that he or she was authorized to dispense controlled substances, the 

Government must prove beyond a reasonable doubt that the defendant knew 

that he or she was acting in an unauthorized manner, or intended to do so.”64 

“In other words, the defendant must subjectively understand the illegitimate 

nature of the distribution they facilitate to commit an offense under [21 

U.S.C.] § 841(a).”65 The jury instructions on Count Fourteen instructed the 

jury that the culpable mental state attached only to whether Dr. Hirjee 

dispensed or distributed a controlled substance. Accordingly, the district 

court plainly erred with this jury charge.66 The Government concedes that 

Dr. Hirjee can show the first and second prongs of plain error. The following 

discussion focuses on the third and fourth prongs.

As to the third prong, “[Dr. Hirjee] has the burden of showing that, if 

the District Court had correctly instructed the jury on the mens rea element 

of a [distribution-of-a-controlled-substance] offense, there is a ‘reasonable 

probability’ that [s]he would have been acquitted.”67 Dr. Hirjee argues that 

the “Government here entirely failed to show that Dr. Hirjee knew she was 

_____________________

63 Id. (alteration in original) (quoting United States v. Olano, 507 U.S. 725, 736 

(1993)).

64 142 S. Ct. 2370, 2375 (2022).

65 United States v. Ajayi, 64 F.4th 243, 247 (5th Cir. 2023) (per curiam) (citing 

Ruan, 142 S. Ct. at 2381).

66 See United States v. Escalante–Reyes, 689 F.3d 415, 423 (5th Cir. 2012) (en banc) 

(“[W]here the law is unsettled at the time of trial but settled by the time of appeal, the 

‘plainness’ of the error should be judged by the law at the time of appeal.”).

67 See Greer v. United States, 141 S. Ct. 2090, 2097 (2021) (quoting United States v. 

Dominguez Benitez, 542 U.S. 74, 83 (2004)).

Case: 21-11225 Document: 00516956725 Page: 33 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

34

acting in an unauthorized manner or intended to do so.” She refers the court 

to the discussion of sufficiency of the evidence as to Count Fourteen. The 

Government responds that Dr. Hirjee “cannot show any chance—let alone 

a reasonable probability—that a properly instructed jury would have found 

that she believed that she was acting in [an] authorized manner when she presigned the blank prescription that Murphey used to order hydromorphone 

for L.V.” The Government goes on to argue that Dr. Hirjee “falls back on 

the argument that pre-signing prescriptions was a widespread practice among 

hospices,” which “conflates the practice of pre-signing prescriptions for use 

by designated nurses employed by the doctor with Hirjee’s practice of presigning prescriptions for use by Harris and Murphey.”

The Government makes the stronger argument. Both Harris and 

Murphey testified about Dr. Hirjee, a medical doctor, leaving pre-signed,

blank prescription pads for controlled substances under her doormat. In one 

exchange, Dr. Hirjee told Harris the pre-signed triplicates were “outside in 

[N]ordstrom bag,” and Harris responded, “[I] am going to have [N]ick pick 

it up. He’s my assistant since back to [previous company] we can trust him.” 

In another exchange with Harris, Dr. Hirjee texted, “Hope triplicates are still 

there lol.” Given the evidence presented on Count Fourteen, had the jury 

been properly instructed on mens rea, Dr. Hirjee has not shown a reasonable 

probability that she would have been acquitted.

Even if Dr. Hirjee satisfies the first three prongs, we will only exercise 

our discretion to correct the error if the error seriously affects the fairness, 

integrity, or public reputation of judicial proceedings. Dr. Hirjee contends 

that the fourth prong is “easily satisfied” because she “is or could be 

innocent.” According to the Government, it would be a miscarriage of 

justice to reverse Dr. Hirjee’s conviction. The Government again highlights 

Dr. Hirjee’s “own text messages,” which reveal she was “beyond cavalier 

with her prescription pad.” It also points to the conclusion in the PreCase: 21-11225 Document: 00516956725 Page: 34 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

35

Sentencing Report (PSR) that “[a] review of 485 triplicates pre-signed by 

Hirjee showed that 344 of them were filled in by a coconspirator.”68

Dr. Hirjee has not shown that her rights were substantially affected by 

the jury instruction on Count Fourteen, nor that allowing any error to stand 

would seriously affect the fairness, integrity, or public reputation of judicial 

proceedings.

3

At trial, the Government introduced Exhibit 32, a chart and graphs 

showing when Dr. Hirjee’s patients were admitted to hospice and how long 

they lived thereafter. Dr. Hirjee objected under Federal Rule of Evidence 

403, arguing that the evidence had little probative value. The district court 

overruled this objection and allowed Dr. Hirjee to cross-examine the 

Government’s witnesses on the evidence.

“A district court’s ruling as to Rule 403 is reviewed ‘with an 

especially high level of deference to the district court, with reversal called for 

only rarely and only when there has been a clear abuse of discretion.’”69 

“[T]he application of Rule 403 must be cautious and sparing. Its major 

function is limited to excluding matter of scant or cumulative probative force, 

dragged in by the heels for the sake of its prejudicial effect.”70 Further, 

“[a]ny error in admitting such evidence is subject to harmless error review, 

_____________________

68 See id. at 2098 (“This Court has repeatedly stated that an appellate court 

conducting plain-error review may consider the entire record—not just the record from the 

particular proceeding where the error occurred.”).

69 United States v. Sims, 11 F.4th 315, 323 (5th Cir. 2021) (quoting United States v. 

Dillon, 532 F.3d 379, 387 (5th Cir. 2008)), cert. denied, 142 S. Ct. 827 (2022).

70 United States v. Fields, 483 F.3d 313, 354 (5th Cir. 2007) (alteration in original) 

(quoting United States v. Pace, 10 F.3d 1106, 1116 (5th Cir. 1993)).

Case: 21-11225 Document: 00516956725 Page: 35 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

36

and reversal is not required unless there is a reasonable possibility that the 

improperly admitted evidence contributed to the conviction.”71

Dr. Hirjee argues that Exhibit 32 had minimal probative value because 

the “Government did not allege that any of Dr. Hirjee’s patients were 

ineligible for hospice care.” This argument assumes that Exhibit 32 was 

introduced to show that Dr. Hirjee admitted and recertified patients who 

were ineligible for hospice. Rather, as the Government explains, Exhibit 32 

was probative because it tended to establish that Dr. Hirjee “enabled Harris 

to enroll the patients he chose by pre-signing physician’s orders for 

admittance.” In other words, Exhibit 32 tended to prove that the scheme 

operated as the Government described—“profitable” patients were 

admitted to Novus. Further, we have recognized that hospice patients 

outliving the “six-months-to-live eligibility requirement” can be 

circumstantial evidence which corroborates coconspirators’ testimony that 

certifications were fabricated.72

Dr. Hirjee also argues that Exhibit 32 misled the jury by suggesting 

that Dr. Hirjee placed patients on hospice who were not eligible. As 

discussed for the sufficiency of the evidence challenges in Section II.A.2, the 

theory of fraud was not that Dr. Hirjee enrolled ineligible patients, but that 

she lent her signature so that non-medical staff could admit patients to 

_____________________

71 Sims, 11 F.4th at 323 (quoting United States v. Williams, 620 F.3d 483, 492 (5th 

Cir. 2010)).

72 See United States v. Mesquias, 29 F.4th 276, 282 (5th Cir.), cert. denied sub nom. 

McInnis v. United States, 143 S. Ct. 115 (2022), and cert. denied sub nom. Mesquias v. United 

States, 143 S. Ct. 269 (2022).

Case: 21-11225 Document: 00516956725 Page: 36 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

37

hospice. While Exhibit 32 may have risked misleading the jury, that risk did 

not substantially outweigh the probative value of the evidence.73

Even if the district court erred in admitting Exhibit 32, we will not 

reverse unless there is a reasonable possibility that Exhibit 32 contributed to 

the conviction.74 Dr. Hirjee argues that “[i]t’s at least reasonably possible 

that the Government’s suggestion tipped the scales and that the jury 

concluded that improper hospice admissions rendered Dr. Hirjee guilty 

despite the Government’s failure to prove that she cut any corners.” She 

also points out that the Government mentioned Exhibit 32 in closing. Given 

the substantial evidence supporting the verdict, we cannot say that Exhibit 

32 contributed to Dr. Hirjee’s conviction.

The district court did not abuse its discretion in admitting Exhibit 32 

over Dr. Hirjee’s Rule 403 objection. Further, even if the district court did 

err, any error was harmless given the other evidence presented at trial.

4

Last, Dr. Hirjee argues that the district court’s combined errors—

“erroneously instructing the jury in the charge, admitting a chart and graphs 

showing how long many of Dr. Hirjee’s patients lived, and providing the jury 

with a transcript of a portion of a witness’s testimony”—denied her a fair 

trial.

“‘Cumulative error’ justifies reversal only when errors ‘so fatally 

infect the trial that they violated the trial’s fundamental fairness.’”75 

_____________________

73 See Fields, 483 F.3d at 354 (“[T]o warrant exclusion, the danger of unfair

prejudice . . . must substantially outweigh the probative value of the evidence.”).

74 See Sims, 11 F.4th at 323.

75 United States v. Delgado, 672 F.3d 320, 344 (5th Cir. 2012) (en banc) (quoting 

United States v. Fields, 483 F.3d 313, 362 (5th Cir. 2007)).

Case: 21-11225 Document: 00516956725 Page: 37 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

38

“Though this is possible in theory, arguments for cumulative error are 

‘practically never found persuasive.’”76 “Because we have found that the 

district court did not commit reversible error in any of the issues presented 

in this case, ‘there are no errors that we could aggregate to find cumulative 

error.’”77

IV

Dr. Gibbs and Little raise challenges to their sentences. Dr. Gibbs 

argues that the restitution ordered against him is improper. Little likewise 

challenges her restitution order, as well as various other adjustments applied 

by the district court.

A

Dr. Gibbs challenges his restitution amount by “incorporat[ing] his 

arguments for the sufficiency of the evidence and appl[ying] them to the 

nearly twenty-eight million dollars in restitution that the trial court ordered.” 

Because his sufficiency challenges fail as explained above in Sections II.A.1,

II.B.2, and II.D, we do not further address the propriety of Dr. Gibbs’s 

restitution order.

B

Little argues that the district court miscalculated the applicable 

restitution and sentencing range under the 2021 U.S. Sentencing Guidelines 

_____________________

76 United States v. Nicholson, 961 F.3d 328, 339 (5th Cir. 2020) (quoting United 

States v. De Nieto, 922 F.3d 669, 681 (5th Cir. 2019)).

77 United States v. Herman, 997 F.3d 251, 275 (5th Cir. 2021) (quoting United States 

v. Eghobor, 812 F.3d 352, 361 (5th Cir. 2015)), cert. denied, 142 S. Ct. 787 (2022); see also

Delgado, 672 F.3d at 344 (“Because we have rejected [defendant’s] other allegations of 

error, and non-errors have no weight in a cumulative error analysis, there is nothing to 

accumulate.”).

Case: 21-11225 Document: 00516956725 Page: 38 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

39

Manual by determining an incorrect loss amount and erroneously applying 

multiple adjustments. The specific adjustments she challenges are 

(1) obstruction of justice enhancement under § 3C1.1; (2) vulnerable victim 

enhancement under § 3A1.1(b)(1); and (3) minor/minimal role reduction 

under § 3B1.2.

The district court determined that Little’s Guidelines range was 41 to 

51 months of imprisonment, and it sentenced her to 33 months, a belowGuidelines sentence. The PSR initially recommended $1,382,899 be ordered 

in restitution, but the district court ultimately ordered Little to pay 

$366,493.12 in restitution jointly and severally with several codefendants. 

Although Little’s term of imprisonment has ended, her challenges to her 

sentence are not moot because she remains subject to a term of supervised 

release, an element of the overall sentence.78

We first address the restitution order and then the Guidelines 

adjustments. We review the district court’s application of the Guidelines de 

novo and its factual findings for clear error.79

_____________________

78 See United States v. Lares–Meraz, 452 F.3d 352, 355 (5th Cir. 2006) (per curiam) 

(citing United States v. Clark, 193 F.3d 845, 847 (5th Cir. 1999)); see also United States v. 

Vega, 960 F.3d 669, 674 (5th Cir. 2020) (describing Lares–Meraz as holding that “a 

defendant may challenge his term of imprisonment as long as he remains under an active term 

of supervised release”); Greene v. Underwood, 939 F.3d 628, 628 (5th Cir. 2019) (“On July 

19, 2019, during the pendency of this appeal, Greene was released from BOP custody. 

Nevertheless, because ‘a district court may exercise its discretion to modify an individual’s 

term of supervised release, taking into account that an individual has been incarcerated 

beyond the proper expiration of his prison term,’ this appeal is not moot.” (quoting Johnson 

v. Pettiford, 442 F.3d 917, 918 (5th Cir. 2006) (per curiam))).

79 United States v. Mahmood, 820 F.3d 177, 192 (5th Cir. 2016).

Case: 21-11225 Document: 00516956725 Page: 39 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

40

1

Little argues that the district court determined an incorrect loss 

amount, resulting in an incorrect restitution order and an incorrect offense 

level for calculating the sentencing range. Section 2B1.1(b)(1) of the 

Guidelines provides that the amount of loss resulting from a crime involving 

fraud is a specific offense characteristic that increases a defendant’s base 

offense level. A sentencing “court need only make a reasonable estimate of

the loss,”80 but the amount of loss must account for “the fair market value 

of the . . . services rendered, by the defendant or other persons acting jointly 

with the defendant, to the victim before the offense was detected.”81 “The 

district court’s loss calculation is generally a factual finding [reviewed] for 

clear error.”82 “There is no clear error if the district court’s finding is 

plausible in light of the record as a whole.”83 “[W]e review ‘de novo how the 

court calculated the loss, because that is an application of the guidelines, 

which is a question of law.’”84

The district court adopted the PSR’s findings as to the total loss 

amount. The PSR determined the total loss to be $366,493.12, which was 

based on the amount Medicare paid for seventeen patients who were found 

via the Express Medical database. Little argues that the district court erred 

in failing to (1) exclude eight claims for patients who died within four years 

of being enrolled as hospice patients, and (2) offset the remaining nine 

_____________________

80 U.S.S.G. § 2B1.1 cmt. n.3(C).

81 Id. § 2B1.1 cmt. n.3(E)(i).

82 Mahmood, 820 F.3d at 192.

83 United States v. Mathew, 916 F.3d 510, 516 (5th Cir. 2019) (quoting United States 

v. Harris, 597 F.3d 242, 250 (5th Cir. 2010)).

84 Mahmood, 820 F.3d at 192 (quoting United States v. Klein, 543 F.3d 206, 214 (5th 

Cir. 2008)).

Case: 21-11225 Document: 00516956725 Page: 40 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

41

patients’ claims by the amount Medicare would have paid for home health 

services.

First, Little argues that the loss amount should not include the 

patients who lived fewer than four years after being admitted to hospice. As 

she puts it, the eight patients she identified should be excluded from the loss 

calculation because “[a]ll eight passed well within the expected timeframe of 

four years stated by the government’s expert witness in her testimony of 

possible life expectancy after hospice admission.” Little does not cite 

authority for this proposition, and the Government argues that Little waived 

her arguments on this point due to inadequate briefing. The district court 

did not err in including all of the patients for the loss-amount calculation.

Second, Little argues that the loss amount should be offset by the 

value of the services provided. In healthcare fraud cases, a defendant is 

entitled to have Medicare’s actual loss amount offset by the value of 

legitimate services provided to the patients.85 To be entitled to such an offset 

for purposes of restitution, the defendant must establish that (1) the services 

she provided to Medicare beneficiaries were legitimate, and (2) Medicare 

would have paid for those services but for her fraud.86 “The defendant has 

the burden of proof to establish each of these factors.”87

_____________________

85 United States v. Ricard, 922 F.3d 639, 658-59 (5th Cir. 2019); see also Mahmood, 

820 F.3d at 193-94.

86 Mathew, 916 F.3d at 521.

87 Id. (citing Mahmood, 820 F.3d at 194).

Case: 21-11225 Document: 00516956725 Page: 41 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

42

In United States v. Mahmood,88 we compared two cases to guide the 

analysis: United States v. Klein89 and United States v. Jones.

90 Those two 

examples are relevant here. In Klein, “even though the defendant 

fraudulently billed services related to the medications, neither party disputed 

that the patients needed those medications or that the insurance companies 

would have had to pay for the medications had the defendant not fraudulently 

billed them.”91 In Jones, “we concluded that ‘Medicare pays for treatments 

that meet it[s] standards’ and that the defendants’ treatments using 

unlicensed personnel did not meet those standards.”92 Little’s case is more 

like Jones. The seventeen patients identified for calculating Medicare’s 

losses were “categorically ineligible for the hospice benefit because they were 

not terminally ill, and/or . . . were enrolled in hospice using falsified 

admittance orders.” The Government met its burden of showing that 

Medicare would not have paid for these claims because they do not meet 

Medicare’s standards, and so Little is not entitled to any offset for the 

services provided.

In light of the record, the district court made a reasonable estimate of 

the loss amount. We find no error.

2

Little next argues that that district court erred by applying the 

obstruction-of-justice enhancement. The Supreme Court has instructed 

sentencing courts to address each element of the alleged perjury in a separate 

_____________________

88 820 F.3d 177 (5th Cir. 2016).

89 543 F.3d 206 (5th Cir. 2008).

90 664 F.3d 966 (5th Cir. 2011).

91 Mahmood, 820 F.3d at 193 (citing Klein, 543 F.3d at 214-15).

92 Id. (citing Jones, 664 F.3d at 984).

Case: 21-11225 Document: 00516956725 Page: 42 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

43

and clear finding when applying this enhancement.93 Here, the PSR adopted 

the Government’s objection, and the district court adopted the PSR. This 

satisfies the requirement of separate and clear findings. Further, based on 

our review of the record, it is plausible that Little committed perjury; the 

district court did not clearly err in applying the enhancement.

Little preserved her objection to the obstruction-of-justice 

enhancement. Section 3C1.1 of the Guidelines imposes a two-level 

enhancement if 

(1) the defendant willfully obstructed or impeded, or 

attempted to obstruct or impede, the administration of justice 

with respect to the investigation, prosecution, or sentencing of 

the instant offense of conviction, and (2) the obstructive 

conduct related to (A) the defendant’s offense of conviction 

and any relevant conduct; or (B) a closely related offense.94

“Generally, we review the district court’s interpretation and application of 

the guidelines de novo and its ‘factual findings, such as a finding of 

obstruction of justice, for clear error.’”95 A factual finding is not clearly 

erroneous so long as it is plausible in light of the record as a whole.96

Initially, the PSR did not recommend a sentencing enhancement for 

obstruction of justice. The Government objected, contending that Little 

provided false and perjurious testimony at trial. The PSR was amended to 

reflect a two-level enhancement for obstruction of justice. Little objected, 

_____________________

93 United States v. Dunnigan, 507 U.S. 87, 95 (1993).

94 U.S.S.G. § 3C1.1.

95 United States v. Perryman, 965 F.3d 424, 426-27 (5th Cir. 2020) (quoting United 

States v. Huerta, 182 F.3d 361, 364 (5th Cir. 1999)).

96 See Huerta, 182 F.3d at 364.

Case: 21-11225 Document: 00516956725 Page: 43 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

44

and the second addendum to the PSR retained the enhancement over her 

objection. This issue was not addressed at sentencing.

First, Little argues that the district court failed to comply with the 

Supreme Court’s instruction in United States v. Dunnigan97 that trial courts 

applying § 3C1.1 enhancements make clear findings of perjury. In Dunnigan, 

the Court explained that “it is preferable for a district court to address each 

element of the alleged perjury in a separate and clear finding.”98 A § 3C1.1 

enhancement survives review when a trial court makes a single finding that 

“encompasses all of the factual predicates for a finding of perjury.”99 “The 

trial court may make such a finding by adopting a PSR that contains adequate 

findings.”100

Here, the Government submitted “lengthy, detailed objections to the 

PSR,” several of which were included in the PSR addendum. The district 

court adopted the PSR. This amounted to the district court making a finding 

of an obstruction that encompasses all of the factual predicates for a finding 

of perjury. The district court did not violate Dunnigan.

Second, Little argues that the Government did not “prove 

prosecutable perjury.” “In determining what constitutes perjury, we rely 

upon the definition that has gained general acceptance and common 

understanding under the federal criminal perjury statute.”101 “A witness 

testifying under oath or affirmation violates this statute if she gives false 

_____________________

97 507 U.S. 87 (1993).

98 Id. at 95.

99 Id.

100 United States v. Ajayi, 64 F.4th 243, 251 (5th Cir. 2023) (per curiam) (citing 

United States v. Perez–Solis, 709 F.3d 453, 470 (5th Cir. 2013)).

101 Dunnigan, 507 U.S. at 94.

Case: 21-11225 Document: 00516956725 Page: 44 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

45

testimony concerning a material matter with the willful intent to provide false 

testimony, rather than as a result of confusion, mistake, or faulty 

memory.”102 Little contends that “[a]ny alleged inconsistencies in [her] 

testimony were certainly the result of a clouded memory after years from the 

initial events and trial, her confusion over an exceedingly complex series of 

legal and factual issues, and the high-stress environment that accompanies 

testifying in one’s own defense when facing felony charges at a federal level.”

The Government provides at least five instances of Little perjuring 

herself at trial. Having reviewed Little’s testimony at trial and the relevant 

exhibits, we conclude that the district court did not clearly err in imposing 

the enhancement. Little’s testimony was on matters central to her 

substantive healthcare fraud counts, and the Government provided examples 

of evidence directly refuting the claims Little made at trial.

Last, Little gestures to constitutional issues. She did not raise these 

constitutional arguments when she objected to the obstruction-of-justice 

enhancement. Because Little raises these objections for the first time on 

appeal, we decline to reach them.103

3

Next, Little argues that the district court erred in applying the 

vulnerable-victim enhancement. The district court did not err. Little’s fraud 

potentially harmed patients by exposing them to palliative care rather than 

curative care, making them victims for purposes of this enhancement. 

Further, it is plausible that other victims—individuals who could reasonably 

qualify for hospice care—were vulnerable to Little’s fraud.

_____________________

102 Id.

103 See Grogan v. Kumar, 873 F.3d 273, 277 (5th Cir. 2017).

Case: 21-11225 Document: 00516956725 Page: 45 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

46

Little preserved this argument. Section 3A1.1(b)(1) of the Guidelines 

imposes a two-level increase when “the defendant knew or should have 

known that a victim of the offense was a vulnerable victim.”104 We have 

“drawn a distinction between fraud schemes that ‘benefitted’ patients” 

versus those in which patients were potentially harmed by the fraud 

scheme.105 In a fraud scheme that exposes the patients to needless or 

unnecessary medical treatments, the patients are victims.106 “The 

determination that a victim is vulnerable is a factual finding which the district 

court is best suited to make,”107 and we review that determination for clear 

error.

In applying this enhancement, the PSR cited the use of pre-signed 

triplicates by those without medical licenses to prescribe medication to 

Novus patients. It concluded that a “preponderance of the evidence 

indicates that the hospice care patients were exposed to medication that was 

potentially unnecessary and/or physically harmful to their health.” Little 

argues that she was unaware of the practice of using pre-signed triplicates to 

provide patients with prescription medication, and in any event, “all of [her] 

_____________________

104 U.S.S.G. § 3A1.1(b)(1).

105 United States v. Valdez, 726 F.3d 684, 693 (5th Cir. 2013).

106 See id. at 693-94; United States v. Burgos, 137 F.3d 841, 844 (5th Cir. 1998) (per 

curiam) (“[A] reasonable fact finder could conclude that the patients were the victims of 

Burgos’s fraudulent scheme. They were often admitted to the hospital needlessly or their 

stays in the hospital were extended beyond what was necessary . . . .”); United States v. 

Sidhu, 130 F.3d 644, 655 (5th Cir. 1997) (“Gifford’s patients were often debilitated by pain 

or depression, and easily became addicted to the treatment proffered by Gifford to support 

his fraud. The record supports the conclusion that Gifford preyed upon vulnerable patients 

by addicting them to morphine in order to support his fraudulent billing scheme.”); see also 

United States v. Mazkouri, 945 F.3d 293, 306 n.4 (5th Cir. 2019).

107 Burgos, 137 F.3d at 843 (citing United States v. Rocha, 916 F.2d 219, 244-45 (5th 

Cir. 1990)).

Case: 21-11225 Document: 00516956725 Page: 46 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

47

patients were benefit[t]ed by the services they received . . . and none were 

harmed or victimized in any way.”

The district court did not clearly err in imposing the vulnerable-victim 

enhancement. As explained at trial, hospices provide palliative care, not 

curative care. By recruiting patients for Novus hospice and then admitting 

them without the requisite involvement of a medical director, Little risked 

exposing patients to the wrong type of medical treatments. This is

distinguishable from other cases involving healthcare fraud and the 

vulnerable-victim enhancement in which we pointed to “needless or 

unnecessary” medical treatments as the potential harm to patients. Here, 

the potential harm stems from the lack of needed or necessary treatments 

because hospice provides a fundamentally different type of care. Placing 

ineligible patients on hospice potentially exposes them to harm, making them 

victims for purposes of § 3A1.1(b)(1). It is plausible in light of the record as 

a whole that these victims were vulnerable—Little and Harris were by design 

targeting patients who had common hospice diagnoses. In other words, these 

patients suffered from serious medical conditions, and it is plausible that this 

made them susceptible to Little’s conduct.

Little acknowledges that the following issues are foreclosed under this 

circuit’s precedents, but she preserves them for further review:

(1) “whether, if there are vulnerable victims in this case, the enhancement 

would be proper, since there is no nexus in this case between the vulnerability 

of the victims and the success of the criminal activity,” and (2) “that there 

were actually no vulnerable victims at all.”

4

Last, Little argues that the district court erred in granting only a twolevel reduction, rather than a four-level reduction, for Little’s role in the 

offense. Little preserved this argument. Whether a defendant was a minor 

Case: 21-11225 Document: 00516956725 Page: 47 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

48

or minimal participant for purposes of § 3B1.2 is a “factual determination 

reviewed for clear error.”108 “A factual finding is not clearly erroneous if it 

is plausible in light of the record read as a whole.”109 “As a preliminary 

matter, § 3B1.2 ‘does not provide an affirmative right to a [mitigating role] 

reduction to every actor but the criminal mastermind.’”110 Little “bore ‘the 

burden of proving by a preponderance of the evidence that the adjustment 

[was] warranted.’”111

Originally, the PSR did not recommend a reduction for Little’s 

minor/minimal role in the offense. Little objected, arguing she (i) had a 

“paltry understanding of the scope and structure” of the conspiracy; (ii) had 

minimally participated in the planning, organization, or implementation of 

the conspiracy; (iii) possessed no decision-making authority and held no 

influence over Harris or Rizvi; (iv) minimally participated in the acts 

constituting the offense conduct; and (v) received only approximately $1,750 

for her role. The Government responded that “Little illegally recruited 

patients for hospice service; recruited other individuals to work for Novus; 

worked as both a marketer and a nurse; worked as a case manager; opened a 

branch office in Greenville; and was involved in the criminal conduct from 

April 2014 until October 2015.” The PSR addendum declined to apply the 

reduction. Little again objected, reiterating her previous arguments. At 

_____________________

108 United States v. McElwee, 646 F.3d 328, 346 (5th Cir. 2011) (citing United States 

v. Villanueva, 408 F.3d 193, 204 (5th Cir. 2005)).

109 United States v. Castro, 843 F.3d 608, 612 (5th Cir. 2016) (quoting Villanueva, 

408 F.3d at 203).

110 United States v. Bello–Sanchez, 872 F.3d 260, 264 (5th Cir. 2017) (alteration and 

emphasis in original) (quoting United States v. Gomez–Valle, 828 F.3d 324, 331 (5th Cir. 

2016)).

111 Castro, 843 F.3d at 612 (alteration in original) (quoting United States v. Miranda, 

248 F.3d 434, 446 (5th Cir. 2001)).

Case: 21-11225 Document: 00516956725 Page: 48 Date Filed: 11/03/2023
No. 21-11225

c/w No. 21-11228

49

sentencing, the Government and Little presented argument. The district 

court granted a two-level reduction.

The district court did not err in granting only a two-level reduction for 

Little’s minor role in the offense. It is plausible in light of the record as a 

whole that, while Little was “less culpable than most other participants in the 

criminal activity,” she was not “plainly among the least culpable of those 

involved in the conduct of a group.”112 Little did not bear her burden of 

showing otherwise.

* * *

For the foregoing reasons, we AFFIRM the judgment of the district 

court.

_____________________

112 U.S.S.G. § 3B1.2 cmt. nn.4, 5.

Case: 21-11225 Document: 00516956725 Page: 49 Date Filed: 11/03/2023