IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-31119

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

DOCTOR PRAMELA GANJI; ELAINE DAVIS, 

 Defendants - Appellants

Appeals from the United States District Court

for the Eastern District of Louisiana

Before STEWART, Chief Judge, and KING and JONES, Circuit Judges.

CARL E. STEWART, Chief Judge:

After an eight-day jury trial, Defendants, Dr. Pramela Ganji and Elaine 

Davis, were convicted of conspiracy to commit health care fraud, in violation of 

18 U.S.C. § 1349, and health care fraud, in violation of 18 U.S.C. § 1347. 

Defendants now appeal their convictions and sentences. For the reasons that 

follow, we REVERSE and VACATE.

I. BACKGROUND

Christian Home Health Care (“Christian”) was a home health agency 

owned by Elaine Davis and her husband, Walter Davis, Sr. since 1989. 

Christian provided home health care services to patients in Southern 

United States Court of Appeals

Fifth Circuit

FILED

January 30, 2018

Lyle W. Cayce

Clerk

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Louisiana. Home health care services are those skilled nursing or therapy 

services provided to individuals who have difficulty leaving the home without 

assistance. These services are commonly provided to senior citizens. 

The process for receiving home health care services begins when a 

physician identifies a patient as an eligible candidate. Usually, although not a 

legal requirement, a patient’s primary care physician (“PCP”) refers her for 

home health services. Then a nurse goes to the patient’s home to assess if she 

is homebound, completing an Outcome and Assessment Information Set 

(“OASIS”). The nurse then develops a plan of care based on the OASIS and 

forwards that document to a physician for approval. This is typically the same 

physician who initiated the process. In 2011, Medicare implemented a face-toface requirement to further ensure that medical professionals would not order 

home health care without ever seeing the patient. This required medical 

professionals to actually see the patient for the initial meeting, but “[t]he faceto-face patient encounter may occur through telehealth in person.”1

Regulations allow for medical professionals who are not physicians to complete 

the face-to-face encounter, but the professionals have to be under the 

supervision of a physician. A medical professional certifies that they completed 

this encounter by completing a face-to-face addendum. The agency then sends 

the addendum with the Form 485 certification forms, which were used to 

certify patients for home health care to Medicare for reimbursement. If the 

professional determines the patient is homebound, the agency staff 

 

1 42 C.F.R. 424.22(a)(v)(B).

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immediately provides that care.2 The staff member keeps the certifying doctor 

updated and notifies her if the patient’s needs change.3

In order to provide these services, Christian employed an administrative 

team and medical professionals, including clinical supervisors, registered 

nurses, licensed practical nurses, home health aides, medical consultants, and 

medical directors. Medical directors were practicing physicians who contracted 

with Christian to provide services including nurse training, medical advice, 

and patient care. The directors also certified patients for home health care.

Christian paid medical directors $1,000 per month in exchange for their 

services and throughout the years, it contracted with many physicians. In 

2010, Christian hired Dr. Ganji as a medical director in the New Orleans area. 

Dr. Ganji was a physician who owned a private practice and had previously 

worked in nursing homes and with other home health care agencies. To assist 

her with her new and continuing duties, Dr. Ganji entered into a collaborative 

agreement with Nurses Per Diem, an organization of nurse practitioners, to 

provide home visits to homebound patients. Cynthia Kudji, the nurse 

practitioner with whom Dr. Ganji closely worked, performed many of the initial 

face-to-face encounters. In 2012, Christian opened an office fifty miles north, 

in Ponchatoula to better serve the Hammond area. It later hired Dr. Winston 

Murray, Louella Hendricks, Kim Robinson, Kimberley Celestine, and Betty 

Walls. Although Christian had fewer than twenty-five patients when the 

 

2 Although federal and state governments audit agencies, the regulations do not 

require a government representative to verify that a patient is homebound before services 

are reimbursed. 

3 If after sixty days the nurse believes the patient still needs home health care, the 

process begins again at the OASIS stage, but no face-to-face form is required. See 42 C.F.R.

424.22(a)(v) (“A face-to-face patient encounter, which is related to the primary reason the 

patient requires home health services, [must occur] no more than 90 days prior to the home 

health start of care date or within 30 days of the start of the home health care and [must be]

performed by a physician or allowed non-physician practitioner as defined in paragraph 

(a)(1)(v)(A) of this section.”).

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Davises bought the company out of bankruptcy, between 2007 and 2015, the 

years the conspiracy to commit health care fraud allegedly took place, 

Christian cared for 350–400 patients at any given time.

In 2007 the United States Justice Department established a Medicare 

fraud task force.4 Since then, more than 400 individuals have been prosecuted 

for defrauding the health care program of $1.3 billion. Notably, an individual 

who is a shadow in the current cast of characters was swept up in this 

crackdown: Mark Morad.5 Morad owned and operated a home health empire

in Southern Louisiana that toppled when he was indicted and pled guilty to 

defrauding Medicare of millions of dollars. When that regime fell, other 

agencies scrambled to scavenge Morad’s patients and provide work for those 

former Morad employees who the Government had not publicly implicated in 

the conspiracy. Christian was one of these agencies.

The Government’s discovery of the alleged Christian scheme was rather 

peculiar. The FBI initiated an investigation after one of Christian’s patients, 

Simone Joseph, filed a complaint. Joseph was the plaintiff in an unrelated

personal injury lawsuit, and that suit revealed that her medical history

included false statements. She complained that co-defendant, Dr. Godwin 

 

4 Press Release, Dep’t of Justice, National Health Care Fraud Takedown Results in 

Charges Against Over 412 Individuals Responsible for $1.3 Billion in Fraud Losses, (July 13, 

2017), https://www.justice.gov/opa/pr/national-health-care-fraud-takedown-results-chargesagainst-over-412-individuals-responsible; see also Rebecca Ruiz, U.S. Charges 412, Including 

Doctors, in $1.3 Billion Health Fraud, N.Y. TIMES (July 13, 2017),

https://www.nytimes.com/2017/07/13/us/politics/health-care-fraud.html. 5 Mark Morad was the owner of three corporations “purportedly engaged in the 

business of providing home health services to Medicare beneficiaries.” United States v. 

Morad, No. CRIM.A. 13-101, 2014 WL 68704, at *1 (E.D. La. Jan. 8, 2014). In 2013, he and 

four other individuals were charged with conspiracy to commit health care fraud and 

conspiracy to pay and receive health care kickbacks in violation of 18 U.S.C. § 371. Id. Mark 

Morad pled guilty to conspiracy to commit health care fraud and conspiracy to falsify records 

in a federal investigation on December 17, 2014.

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Ogbuokiri, billed Medicare multiple times although she had only seen him 

once.

The subsequent investigation into Joseph’s claims uncovered a scheme 

where, according to the Government, Christian employees recruited Medicare 

beneficiaries in exchange for incentives, which ranged from $100 bonuses to 

trips to Las Vegas, Nevada. To receive the incentives, Christian employees had 

to recruit prospective patients who were both eligible for Medicare and 

immediately ready for Christian hospice or home health care services. If the 

PCP did not certify the patient or the patient did not have a PCP, Christian’s

medical directors would do so. From January 2007 through January 2015, 

Christian submitted 14,891 claims for home health care and related services 

to Medicare. These claims were worth approximately $33,232,134, and 

Medicare paid around $28,265,071 on those claims.

 The investigation resulted in an indictment charging:

• Davis, Dr. Ganji, and Dr. Ogbuokiri with conspiracy to commit 

health care fraud, in violation of 18 U.S.C. § 1349 (Count One);

• Davis and Dr. Ogbuokiri with health care fraud, in violation of 18 

U.S.C. § 1347 for submitting fraudulent Medicare claims with 

regard to Simone Joseph (Count Two);

• Davis and Dr. Ogbuokiri with health care fraud, in violation of 18 

U.S.C. § 1347 for submitting fraudulent Medicare claims with 

regard to Leon Pate (Count Three);

• Davis and Dr. Ganji with health care fraud, in violation of 18 

U.S.C. § 1347 for submitting fraudulent Medicare claims with 

regard to Carolyn Stewart (Count Four); and

• Davis and Dr. Ganji with health care fraud, in violation of 18 

U.S.C. § 1347 for submitting fraudulent Medicare claims with 

regard to Jean Wright (Count Five).

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During the trial, the Government presented testimony from case 

investigators, former Christian nurses and doctors, Dr. Ogbuokiri’s patients, 

and Dr. Jan Cooper, Carolyn Stewart’s PCP. Much of the Government’s case 

hinged on the testimony of its cooperating witnesses, Dr. Murray, Louella 

Hendricks, and Kimberley Celestine, who admitted to fraudulently certifying 

patients for home health care. In the scheme, Hendricks and Celestine referred

patients to Christian, taking the certification form to Dr. Murray for 

certification. Without extensive review of the patient’s record or thorough 

inquiry into their homebound status, Dr. Murray signed the documents.

Christian nurses, usually those who certified the patient, would then perform

services for individuals who were ineligible and Christian would receive 

Medicare payments.

The Government’s dependence on these witnesses is almost as peculiar 

as the scheme’s discovery. Notably, these individuals worked in the Hammond 

area, while Dr. Ganji and Davis worked sixty miles away in the New Orleans 

area. Additionally, Celestine and Hendricks worked together for Morad’s

agencies before coming to Christian. Furthermore, Celestine and Hendricks’s 

working relationship with Dr. Murray predated their move to Christian. When 

the nurses left their former employer for Christian, they immediately took the 

patients they brought with them to Dr. Murray for certification. Unlike other 

salient cases involving conspiracy to commit health care fraud, here the 

Government presented eighteen witnesses, none of whom could provide direct 

evidence of their alleged co-conspirator’s actions because the witnesses never 

acted with the defendants to commit the specific charged conduct.

At the close of the Government’s case-in-chief, the parties all filed Rule 

29 motions for judgment of acquittal and renewed the motions before 

deliberations. The district court denied these motions. Following the trial, the 

jury convicted Dr. Ganji and Davis of Count 1 (conspiracy to commit health 

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care fraud) and Count 4 (health care fraud with regard to Stewart) and 

returned not-guilty verdicts on all of the remaining counts. Dr. Ogbuokiri, 

whose patient interaction initiated the investigation, was acquitted of all 

charges against him. 

The district court sentenced Dr. Ganji to seventy-two months’ 

imprisonment, to be followed by two years of supervised release, and ordered 

that she pay Medicare $5,048,518 in restitution. The court sentenced Davis to 

ninety-six months’ imprisonment, to be followed by two years of supervised 

release, and ordered that she pay Medicare $9,305,647.26 in restitution. On 

appeal, Dr. Ganji and Davis argue that the district court erred in denying their 

motions for acquittal because the evidence presented at trial was insufficient 

to support their convictions. They additionally challenge the district court’s 

intended loss and restitution calculations. Davis further contends that the 

district court erred in allowing evidence of referral fees and crossover 

beneficiaries.6

II. DISCUSSION

When a defendant moves for acquittal in the district court, challenging 

the sufficiency of the evidence, this Court reviews the district court’s denial de 

novo. United States v. Danhach, 815 F.3d 228, 235 (5th Cir. 2016). Appellate 

review is highly deferential to the jury’s verdict, and a verdict is affirmed 

unless, viewing the evidence and reasonable inferences in light most favorable 

to the verdict, no rational jury “could have found the essential elements of the 

offense to be satisfied beyond a reasonable doubt.” See United States v. Bowen, 

818 F.3d 179, 186 (5th Cir. 2016) (quoting United States v. Roetcisoender, 792 

 

6 Because the Panel reverses the conviction, we do not address the sentencing issues 

and those evidentiary issues challenging the admission of referral fees and crossover 

beneficiaries.

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F.3d 547, 550 (5th Cir. 2015)); see also United States v. Miles, 360 F.3d 472, 

478 (5th Cir. 2004) (vacating a jury conviction when “a rational jury could not 

find” an essential element of the crime). Nevertheless, “a verdict may not rest 

on mere suspicion, speculation, or conjecture, or on an overly attenuated piling 

of inference on inference.” United States v. Pettigrew, 77 F.3d 1500, 1521 (5th 

Cir. 1996). Although the jury may make factually based inferences, “a 

conviction cannot rest on an unwarranted inference, the determination of

which is a matter of law.” United States v. Fitzharris, 633 F.2d 416, 422 (5th 

Cir. 1980). 

A. Conspiracy

To support a conviction under 18 U.S.C. § 1349, the Government must 

prove beyond a reasonable doubt that: “(1) two or more persons made an 

agreement to commit health care fraud; (2) that the defendant knew the 

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

agreement . . . with the intent to further the unlawful purpose.” United States

v. Eghobor, 812 F.3d 352, 362 (5th Cir. 2015) (quoting United States v. Grant, 

683 F.3d 639, 643 (5th Cir. 2012)). 

Agreements need not be spoken or formal, and the Government can use 

evidence of the conspirators’ concerted actions to prove an agreement existed. 

See Grant, 683 F.3d at 643. However, an agreement is a necessary element of 

conspiracy, and as such, “the Government must prove [its existence] beyond a 

reasonable doubt.” United States v. Arredondo-Morales, 624 F.2d 681, 683 (5th 

Cir. 1980) (citing Patterson v. New York, 432 U.S. 197, 210 (1977) (“[T]he Due 

Process Clause requires the prosecution to prove beyond a reasonable doubt all 

of the elements included in the definition of the offense of which the defendant 

is charged.”). The Government may establish any element through 

circumstantial evidence. See United States v. Willett, 751 F.3d 335, 339 (5th 

Cir. 2014). However, “[p]roof of an agreement to enter a conspiracy is not to be 

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lightly inferred.” United States v. Johnson, 439 F.2d 885, 888 (5th Cir. 1971).

“Mere similarity of conduct among various persons and the fact that they have 

associated with or are related to each other” is insufficient to prove an 

agreement. United States v. White, 569 F.2d 263, 268 (5th Cir. 1978). 

1. Dr. Ganji 

Dr. Ganji argues that the evidence was insufficient to sustain a 

conviction of conspiracy to commit health care fraud because there was no 

evidence of an agreement to defraud Medicare. The Government acknowledges 

its lack of direct evidence and instead argues that the circumstantial evidence 

sufficiently proved a concert of action, which illustrated a conspiratorial 

agreement. The actions the Government based its argument on were: (1) Dr. 

Murray’s fraudulent behavior as medical director; (2) Dr. Ganji’s $1,000 

monthly check; and (3) her increase in patient referrals. From this, the 

Government argues the jury could have inferred an agreement.

Conspiracy is the agreement to join a common scheme to commit an 

unlawful goal. See Monsanto Co., v. Spray-Rite Serv. Corp., 465 U.S. 752, 754 

(1984). “[T]he crime of conspiracy condemns the agreement itself. . . . [T]he 

agreement itself is the criminal act.” United States v. Alvarez, 610 F.2d 1250, 

1253–54 (5th Cir. 1980). Without an agreement, there is no conspiracy. See id.

Conspirators do not enter into an agreement by happenstance, and because an 

agreement is the essential element of conspiracy, an agreement to commit a 

crime cannot be lightly inferred. See Johnson, 439 F.2d at 888. “[E]ach party 

must have intended to enter into the agreement and the schemers must have 

had a common intent to commit an unlawful act.” Alvarez, 610 F.2d at 1255. 

“What people do is logical, albeit, circumstantial, evidence of what lies in 

their mind.” Id. at 1256. As such, the law has evolved to accept concerted 

action when a formal agreement cannot be found. Nevertheless, this concert of 

action must illustrate a “conscious commitment to a common scheme designed 

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to achieve an unlawful objective.” Monsanto, 465 U.S. at 754. The actions and 

the surrounding circumstances must be incriminating enough to warrant a 

finding that the Government proved the existence of an agreement beyond a 

reasonable doubt. See id. The actions surrounding the defendant and the coconspirators’ conduct, taken together, must show they intentionally entered 

into an agreement. See id. Concerted action between the conspirators 

illustrates that an agreement had to exist because the individuals would not 

have otherwise acted in that particular manner. See, e.g., United States v. 

Cessa, 785 F.3d 165, 179–80 (5th Cir. 2015) (holding that a defendant would 

not have otherwise expected front money for more than 500 pounds of drugs or 

believed that the supplier would accept the drugs back after the deal failed if 

there was no agreement to participate in a conspiracy to distribute drugs); 

Arredondo-Morales, 624 F.2d at 684 (holding that there must have been an 

agreement to transport undocumented immigrants into the United States

because the defendant would not have otherwise taken the keys and loaded the 

undocumented individuals into the car without further instruction).

Concert of action can be proven through indirect, circumstantial 

evidence. See Tunica Web Advert. v. Tunica Casino Operators Ass’n, 496 F.3d 

403, 409 (5th Cir. 2007). However, when proving an agreement exists by using 

the concert of action theory, the Government must present evidence of the 

conspirators’ individual actions that, taken together, evidence an agreement 

to commit an unlawful objective beyond a reasonable doubt. See Monsanto, 465 

U.S. at 754; Grant, 683 F.3d at 643–44; Arredondo-Morales, 624 F.2d at 684.

Although this Court has not frequently decided health care fraud cases 

on the basis of concerted action, it has addressed the theory in other criminal 

contexts. In Arredondo-Morales, a jury convicted Arredondo-Morales and 

twenty-three others of conspiring to encourage and induce the entry of 

undocumented individuals into the United States. Arredondo-Morales, 624 

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F.2d at 682. The scheme involved undocumented individuals gathering in 

Juarez, Mexico to await the next crossing. Id. When a sufficient amount of 

people accumulated, they would meet at a co-conspirator’s house. Id. After 

paying the co-conspirator, she would lead the individuals across the river to 

the El Paso headgates. Id. Co-conspirators, like Arredondo-Morales, waiting 

on the Texas side of the river, would then drive the undocumented individuals 

to Denver or Albuquerque. Id. On appeal, Arredondo-Morales conceded that an 

agreement existed but contended that there was not sufficient evidence that 

she joined that agreement. Id. at 683. We disagreed, holding that the concert 

of Arredondo-Morales and her co-conspirators’ actions illustrated her 

intentional agreement to join the crime. Id. at 684. The Government had in its 

arsenal a participant of the scheme, Valle-Borrelli, who legally drove the car 

used in the scheme into the United States. See id. He testified that he saw 

Arredondo-Morales at the El Paso headgates where a co-conspirator had led 

the undocumented individuals to the Rio Grande. Without speaking he gave 

her the keys on the banks of the Rio Grande; he then observed the 

undocumented individuals get into the car and Arredondo-Morales drive away. 

This Court held that although there was no direct evidence of ArredondoMorales joining the agreement, the evidence revealed actions that she would 

not have otherwise taken in the absence of knowingly and intentionally 

entering the agreement. Id. 

In Grant, a medical fraud case, the Government sought to sustain on 

appeal a conviction found on indirect evidence of concerted action. 683 F.3d at 

641, 643–44. A jury convicted Dr. Grant and two others of conspiracy to commit 

health care fraud, and this Court held that the conduct was sufficiently

incriminating to establish an agreement. Id. In that scheme, Onward Medical 

Supply fraudulently billed Medicare for unnecessary durable medical 

equipment (“DME”). Id. at 641. To complete the fraud and submit 

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reimbursement claims, a physician had to sign a certificate of medical 

necessity. Id. To accomplish this, a co-conspirator paid hundreds of dollars for 

DME prescriptions with Dr. Grant’s forged signature. Id. An Onward 

employee, who knew Dr. Grant’s signature, told a mutual friend of the 

forgeries. Id. at 642. Dr. Grant visited Onward to review the prescriptions and 

agreed “to redo the prescription and sign it with his signature.” Id. at 642. On 

appeal, Dr. Grant contended that the evidence was insufficient to show that he 

joined a conspiratorial agreement. Id. at 643. We disagreed, holding that there 

was sufficient evidence of Dr. Grant and the Onward employees’ concerted 

effort to defraud the Government. Id. at 644. The record revealed testimony 

that a co-conspirator told Dr. Grant that he received prescriptions with Dr. 

Grant’s forged signature; the co-conspirator admitted to Dr. Grant that he paid

the doctors at Dr. Grant’s facility $100 per prescription. Instead of reporting 

this fraud, two witnesses testified that Dr. Grant demanded payment to resign the fraudulent prescriptions. Id. at 643. Doris Vinitski, who ran Onward,

testified that Dr. Grant demanded $10,000 to re-sign the prescriptions, which 

she paid. Id. at 644. We held that even if the jury did not believe the testimony 

regarding the actual agreement, the co-conspirator’s concerted actions 

sufficiently supported an inference of an agreement. See id.

The quality and probative strength of the Government’s “concerted 

action” evidence in this case falls well short of the threshold met in ArredondoMorales and Grant. Doctors and nurses who were previously associated with 

Christian spoke of their own fraudulent actions, but they never testified that 

they agreed with Dr. Ganji or Davis to carry out these activities. Louella 

Hendricks testified that she recruited patients and took them to Dr. Murray’s 

private practice for certification. She testified to visiting patients every week, 

knowing that they were not homebound. However, Hendricks was directly 

asked, “[D]id you ever put in anywhere in your notes, ‘I was in that patient’s 

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home and I have determined that that patient was not homebound,’ ever?”

Hendricks answered, “No.” Hendricks’s supervisor and friend of more than ten 

years, Kimberley Celestine, testified that she also recruited Medicare patients 

and set up their appointments with Dr. Murray in order for them to receive a 

home health care referral. Counsel for Davis asked, “In anywhere in your notes 

that you recall right now, did you ever write in your notes: This patient is not 

homebound?” Like Hendricks, Celestine answered, “No.” 

Dr. Murray corroborated Hendricks’s and Celestine’s testimonies. He 

testified that he believed he was supposed to refer patients to home health care 

at Christian because unlike his other patients, “a hundred percent of the

patients that came to see [him] . . . asked to be referred for home health.” Of 

the many aides at Christian, Dr. Murray testified that only Celestine, 

Hendricks, and Kim Robinson, all located in the Hammond area, brought him 

patients to certify. When asked if he ever consulted the PCP or talked to 

anyone about the patients’ past medical history, Dr. Murray answered, “No.” 

Dr. Murray testified that he referred one hundred percent of those patients 

who requested home health care even though, in hindsight, he believed only 

ten percent were eligible. Dr. Ganji’s counsel asked, “At the time you were in 

your office doing your evaluation of those patients, you believed that they were 

homebound . . . And you put in your notes and in your orders what you believed 

in good faith those patient[s’] medical condition to be, correct?” Dr. Murray 

answered, “Correct.” He stated that although he believed those patients were 

homebound when he certified them, he later saw some of them around town,

making him question his earlier diagnosis.

Although these witnesses admitted to their own fraud, they did not 

implicate Dr. Ganji. They repeatedly testified to their own monetary 

motivations for acting fraudulently. Dr. Murray, Hendricks and Celestine

testified about their scheme to defraud Medicare. They all previously worked 

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together for another home health agency. Even after that agency closed, they 

continued their fraudulent practices. The Government’s witnesses did not 

testify that they worked in conjunction with Dr. Ganji. In fact, both Dr. Murray 

and Hendricks testified that they did not know Dr. Ganji. Dr. Murray was 

directly asked, “Now, you’ve never worked with Dr. Ganji, have you? . . . Do 

you know her?” Dr. Murray replied, “No.” When Dr. Ganji’s counsel asked if 

Hendricks knew Dr. Ganji, Hendricks answered, “I don’t remember her. I 

really don’t.”7

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. Usually, the Government presents a coconspirator who was involved in the specific conspiracy charged. Here, no such 

person exists. To sustain a conspiracy conviction, the record must show 

evidence that Dr. Ganji agreed to join in the unlawful plan. The evidence 

proved that (1) Dr. Murray, who previously held a similar position, defrauded 

Medicare, and when Dr. Ganji accepted the job, she (2) received a monthly 

check of $1,000 and (3) began referring more patients to Christian than before. 

These actions, whether viewed individually or in concert, are insufficient to 

prove that Dr. Ganji agreed with anyone to defraud Medicare. While there was 

ample evidence that nurses referred patients to Christian who they knew were 

not homebound and secured signatures from Dr. Murray, there was no 

evidence that Dr. Ganji followed this same practice. 

 

7 Of the Government’s eighteen witnesses, Samantha McGee who worked for 

Christian for less than two months after leaving Mark Morad’s employ, was the only one to 

testify about Dr. Ganji. However, she testified that Dr. Ganji worked for MD2U, a company 

to which McGee sent referral forms for doctors to sign. Dr. Ganji was never affiliated with

MD2U. And on cross-examination, McGee stated that she knew nothing about Dr. Ganji’s 

patient care or medical practice.

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Furthermore, Dr. Ganji provided testimony of her innocence that went 

unanswered by the Government. Dr. Ganji’s extensive, undisputed testimony 

differentiated her forty-year practice from Dr. Murray’s. The Government 

presented evidence that Dr. Ganji rarely personally visited the patients she 

certified. In response, Dr. Ganji, who cared for patients in her private practice, 

at nursing homes, and at other home health care agencies, testified that nurse 

practitioners conducted the visits when she could not.8 When asked if she 

“believed[d] that this face-to-face encounter with the nurse practitioner was 

permissible, Dr. Ganji answered, “Yes.” This statement was not rebutted by 

the Government and this practice is allowed by the regulations. 42 C.F.R. 

424.22.9

 

8 She specifically testified that:

The nurse practitioner goes and does the initial assessment . . . takes a history 

and she performs a physical examination and notes all her medications . . . the 

activities the patient does and then what kind of services she’s going to need. 

She brings that to my office. And then, meanwhile, I also obtain records of that 

patient from different hospitals if they were ever admitted. And then, you 

know, we get paperwork from the home health agency . . . So once I get that, I 

look at her notes and then I review . . . all the records that are available to me 

and compare those notes with the hospital records, with the subspecialist’s 

records, and the records that the Christian Home Health or any other agencies 

has provided to me. And then based upon the review of the diagnosis, I come 

up with the treatment plan.

9 (A) The face-to-face encounter must be performed by one of the following: 

(1) The certifying physician himself or herself.

(2) A physician, with privileges, who cared for the patient in an acute or postacute care facility from which the patient was directly admitted to home 

health.

(3) A nurse practitioner or a clinical nurse specialist (as those terms are defined 

in section 1861(aa)(5) of the Act) who is working in accordance with State law 

and in collaboration with the certifying physician or in collaboration with an 

acute or post-acute care physician with privileges who cared for the patient in 

the acute or post-acute care facility from which the patient was directly 

admitted to home health.

(4) A certified nurse midwife (as defined in section 1861(gg) of the Act) as 

authorized by State law, under the supervision of the certifying physician or 

under the supervision of an acute or post-acute care physician with privileges 

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The Government also presented evidence that Dr. Ganji signed blank 

certification forms and posited that she did so in order to assist Christian in 

carrying out its fraudulent practice. When confronted with the signed blank 

forms, Dr. Ganji testified,

Usually [there] is a sheet preceding this sheet that is the face-to-face 

encounter. And then preceding these sheets, I have notes from the nurse 

practitioners. And I also have paper charts from different hospitals or 

the primary care physicians and also Christian Home Health Services. 

So preceding these sheets, there are several documents that I would have

reviewed. 

In an additional effort to compare Dr. Ganji’s practice to Dr. Murray’s, the 

Government asked Dr. Ganji about her failure to keep and maintain personal 

records for each patient. To this, Dr. Ganji responded, “Christian Home Health 

kept all the records of OASIS and the nurses’ documentation. It was brought 

to me whenever they brought the 485s, paper charts were brought to me.” Dr. 

Ganji indicated that she kept records for patients for which she was the PCP, 

but Christian kept records of those patients for whom she was the attending 

physician. The Government did not rebut this testimony which aligns with a 

reasonable interpretation of the regulations which requires “[t]he provider 

must obtain the required certification and recertification statements [and] 

keep them on file for verification by the intermediary, if necessary.” 42 C.F.R. 

424.11(a). From this evidence a reasonable juror could not infer beyond a 

reasonable doubt that Dr. Ganji agreed to commit health care fraud.

 

who cared for the patient in the acute or post-acute care facility from which the 

patient was directly admitted to home health.

(5) A physician assistant (as defined in section 1861(aa)(5) of the Act) under 

the supervision of the certifying physician or under the supervision of an acute 

or post-acute care physician with privileges who cared for the patient in the 

acute or post-acute care facility from which the patient was directly admitted 

to home health.

42 C.F.R. 424.22(a)(v)(A).

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Here, the Government relied solely on inferences to support the fraud

charge and attempted to use those same inferences to support a larger 

agreement. The Government’s theory, void of testimonial support, was that 

because Dr. Murray held the same position as Dr. Ganji, they must have 

conducted their practices similarly. The trial record rebuts the Government’s 

theory and amply shows that these two physicians, who carried out private 

practices in two different locations, conducted those practices differently. The 

Government only presented evidence of Dr. Murray’s illegal activity. On these 

facts alone, the Government cannot sustain its burden against Dr. Ganji. These 

inferences and the remainder of the record are insufficient to support Dr. 

Ganji’s conviction beyond a reasonable doubt. 

Exhibit 133, created by statistician Michael Tabor, illustrated the 

percentage of Christian patients Dr. Ganji referred to home health care. The 

Government emphatically points out that before Dr. Ganji became a medical 

director, she was only responsible for 0.25% Christian’s referrals, but that

number jumped to 26% after she became a medical director. Dr. Ganji referred 

one patient in 2008, and 123 patients in 2010, her first year as a medical 

director. 

Although the Government depended on the jury inferring guilt from the 

numbers, a look at the record, including the expert’s charts and his testimony 

explaining how the charts were developed, reveals the meaning behind these 

numbers. Before Dr. Ganji was involved with Christian, she did very little 

business with the agency. Although she testified that she referred many 

patients to home health care, not many selected Christian as their agency of 

choice. The Government did not dispute her testimony of her past practices 

and did not present evidence that the total number of patients that she referred 

for home health care increased. The most a jury could infer from this evidence 

was that instead of having no preference for where her patients received care, 

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now that she was affiliated with Christian, she suggested her patients choose 

its services. One may question this practice because Dr. Ganji went from only 

receiving Medicare reimbursements from these beneficiaries for being their 

primary care physicians, to receiving multiple reimbursements coinciding with 

any work she did with Christian regarding the patients (e.g., certifying them 

for home health care, recertifying them, overseeing the medical professionals 

administering direct care, etc.). But this is not illegal, and it is insufficient to 

sustain an inference that she agreed to defraud Medicare.10

Though not as nefarious as the Government’s preferred inference, the 

record substantiates that once Dr. Ganji became affiliated with a specific home 

health care agency, her patients followed her instead of having to establish a 

new doctor-patient relationship with a medical professional at a different home 

health care agency. Dr. Ganji spent the majority of her life practicing medicine 

and building her own private practice. She testified that she had extensive 

experience in nursing homes as well as with other home health care agencies. 

Here, the Government failed to present evidence that allowed any rational 

juror to infer the existence of a conspiratorial agreement beyond a reasonable 

doubt. See Miles, 360 F.3d at 478 (holding that the Government failed to 

present evidence allowing a rational jury to find that the defendant was a 

wholly illegitimate enterprise as required by the money laundering statute).

2. Davis

The evidence against Davis suffers from the same inadequacy: the 

Government falls short of proving an agreement. Importantly, the direct 

evidence favors Davis. The Government’s witness, Dr. Murray, specifically 

 

10 Furthermore, we note that, although Dr. Ganji took the stand, the Government did 

not ask her about her increase in referrals or question her about Exhibit 133. Instead, the 

Government brought the exhibit up only when asking its own expert how he created the 

exhibit and in the Government’s closing statements when it told the jury to review the exhibit 

in the jury room.

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testified that he never agreed with Davis to defraud Medicare. When asked of 

his initial interaction with Christian, Dr. Murray stated, “[Davis’s] son and a 

DME company came to my office and . . . they said, ‘I would like to send you a 

contract to be our medical director.’” He further testified that a week later, the 

director of nursing, Samara Davis, came to his office to discuss the specifics of 

the position. Furthermore, when eliciting facts surrounding Dr. Murray’s 

firing, the Government asked Dr. Murray, “What did you do when you arrived 

at Elaine Davis[’s] office in Ponchatoula?” Dr. Murray stated, “Well, she 

introduced herself to me because I had never met her before that.” Although 

his testimony indicated that Dr. Murray and Davis had no prior interactions 

that would allow for the insidious agreement, the Government did not address 

it. Moreover, when Dr. Murray, Celestine, and Hendricks were specifically 

asked if they told Davis or Christian that their patients were not homebound, 

they all answered, “No.”

Again acknowledging the lack of direct evidence, in response to Davis’s 

claim that the evidence was insufficient to prove she agreed to defraud 

Medicare, the Government argues that her knowledge, participation, and

agreement could have been inferred. The Government’s theory on appeal is

that: (1) Davis paid bonuses and held contests to encourage her employees to 

increase Christian’s patient size; (2) she hired staff who previously worked for 

Morad; and (3) after discontinuing Christian’s professional relationship with 

Dr. Murray because he had been indicted, Davis asked him to come to 

Christian’s office to sign documents, including certification forms. Davis was 

the owner and director of Christian. The Government contends that the illicit 

scheme began and ended with her. It began when Davis offered incentives to 

employees who recruited the most new patients. It ended when she signed 

payroll checks that included the bonuses to employees and payments to 

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Christian medical directors. The Government alleges that her actions 

purposefully encouraged fraudulent behavior. 

The Government showed that for a period, Davis paid her employees 

$100 referral fees for each patient they recruited and in 2013 she implemented 

a contest for her employees to recruit more patients. When asked, “Did you 

think you were doing anything wrong when you paid these fees?” Davis 

answered, “Absolutely not.” Davis further testified that the spirit contest 

served as “a morale booster for staff” and both the contest and the bonuses 

were conducted openly, as evidenced by the 1099s and the contest flyer. The 

Government did not rebut this good faith defense, and notably charged no one 

in this case with violating the Kickback Statute.

Depending, again, on the testimony of former Morad employees, the 

Government presented evidence that it argues warrants an inference that 

Davis agreed to participate in a conspiracy to defraud Medicare because she 

hired individuals from Mark Morad’s agencies. Without more, the Government 

argues that from this information the jury could infer that Davis hired these 

individuals to commit a crime for Christian. These individuals were not 

indicted or charged when Christian began its professional relationship with 

them. Arguably, neither Davis nor the Government knew they conspired with

Morad. Although the Government argues that this was the convicting 

evidence, it is axiomatic that argument is not evidence. This argument is 

weakened in the face of direct testimony from Dr. Murray, Hendricks, and 

Celestine that Davis never agreed with them to commit health care fraud and 

they avoided telling Davis or anyone at Christian of their activities. The 

Government forcefully argues that Davis was enough of a mastermind to will 

the employees in the Hammond area to commit health care fraud without ever 

telling them to or even ratifying their actions, yet she was careless enough to 

not only hire individuals who were likely under Government surveillance, but 

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to also get Dr. Murray to fraudulently sign documents while he was currently 

under federal indictment.

Finally, the Government points to the nefarious Ponchatoula meeting. It 

argues that Davis would not have otherwise asked Dr. Murray to meet her to 

sign documents that included certification forms had she not agreed to 

participate in a conspiracy to defraud Medicare. Again, here the direct evidence 

is not on the Government’s side. Only Dr. Murray and Davis were at this 

meeting. Although Dr. Murray provided testimony that after being fired, Davis 

asked him to meet her at the Ponchatoula office to sign paperwork, he also 

specifically testified that he did not agree with Davis, formally or otherwise, to 

defraud Medicare. Nevertheless, the Government argues that from this 

meeting, the jury could have inferred that Davis and Dr. Murray had an 

agreement that, as the medical director, he would sign certification forms 

without reviewing any patient records.

Here, again, the record illustrates a different, reasonable explanation for 

the meeting. Christian severed its relationship with Dr. Murray. At that time, 

Dr. Murray was indicted for health care fraud. Samara Davis testified that 

before the working relationship ended, Dr. Murray was backlogged on 

completing paperwork, and Christian continuously attempted to get his 

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signature.11 Dr. Murray attested to this.12 Davis and Dr. Murray testified that 

Davis called Dr. Murray into the Christian offices outside of Hammond, where

 

11 Q. Did there come a time when Dr. Murray was terminated from his duties 

at Christian Home Health Care?

A. Yes.

...

Q. Had it been a problem in the past with getting Dr. Murray to sign 

documents?

A. Yes.

Q. Do you recall specifically, at about the time that he was terminated, sending 

him documents to get him to sign them?

A. We consistently sent him documents up until that point, yes.

Q. Do you recall whether all of those documents were 485s?

A. I don't think all of them were 485s.

Q. What else would have been included in those documents if they weren't all 

485s?

A. Any verbal orders that were obtained while the nurses were in the field, like 

if a patient had a change in status or medication or -- some of those problems 

were included.

Q. Why did you need for Dr. Murray to sign those documents?

A. Well, if -- because he was the physician at the time seeing the patients.

Q. How many times -- do you recall how many times you actually had to call 

him or contact him before he actually came in to sign the documents?

A. Well, documents were sent out every day. And if the person that was 

tracking orders didn't receive them back timely, they had steps to follow. After 

seven days, they would call. After 14, they would maybe fax. After 21, they 

would -- we would send them out with the marketers, the orders. Then after 

30, they would call letting me know and I would call the physician. So I called 

them a lot.

12 Q. And this was a fax from Christian Home Health?

A. Correct.

Q. And if we could go ahead and zoom in to the fax -- actually, just go to the next page.

Okay. And this is dated September 25, 2014; is it not?

A. Yes.

Q. And that was before you were terminated from Christian Home Health?

A. Yes.

Q. And this fax is being sent to you and it's requesting that -- for you to sign certain 

orders?

A. Yes.

Q. Is there anywhere on this document, on this note here to you that says: I want you 

to sign these orders even if these patients are not homebound?

A. No.

Q. And if we could go to the next page. Do you see how this says "second request"?

A. Yes.

Q. And the next page, "second request"?

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she gave Dr. Murray all of the backlogged paperwork she received from the 

administrative team. Without discussion, Dr. Murray signed the paperwork 

Christian repeatedly asked him to sign.

Again, to prove conspiracy, the Government must prove beyond a 

reasonable doubt the defendant knew of and participated in an agreement to 

commit a crime. It is not enough that the Government proves that the 

defendant knew something criminal was afoot. Alvarez, 610 F.2d at 1257. The 

Government presented evidence that Davis was an accountant and Christian’s 

owner, and her duties included signing checks and filling staffing positions. It 

argued that, as such, Davis had significant oversight at Christian and the jury 

rightfully rejected her argument that she was unaware of any fraudulent 

certifications. In essence, the Government argued that the jury could infer that 

Davis had knowledge of the fraudulent activity and agreed to participate 

because one in that position should have known that some of Christian’s nurses 

recruited and some of its medical directors certified patients who were not 

eligible for home health care services. Notably, the Government offers no case 

support for its argument. 

The Government’s attempt to ascribe Davis with knowledge and 

agreement because of her position in the company falls far short of the 

necessary requirement for guilt beyond a reasonable doubt. One cannot 

 

A. Yes.

Q. Can you go to page 7, please? "Second request"?

A. Uh-huh (affirmative response).

Q. Next page, please. "Second request"?

A. Uh-huh (affirmative response). 

Q. And so this had not been the first time that Christian Home Health had to contact 

you to ask you to sign the orders?

A. Correct. Correct.

Q. Did you ever take a look at these orders and say: No, I disagree with what's 

contained in those orders?

A. No.

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negligently enter into a conspiracy. See Snow Ingredients, Inc. v. SnoWizard, 

Inc., 833 F.3d 512, 526 (5th Cir. 2016) (“Civil-RICO conspiracy, however, 

cannot be premised on negligence. It requires an actual agreement between 

conspirators—they must specifically intend the illegal conduct.”); see also

Model Penal Code § 5.03 cmt. 2(c)(i) (1985) (“[W]hen recklessness or negligence 

suffices for the actor’s culpability with respect to a result element of a 

substantive crime . . . there could not be a conspiracy to commit that crime.”). 

Furthermore, Davis testified that she did not have any medical training, 

was not qualified to make diagnoses, and depended on Christian’s medical 

professionals “[o]ne hundred percent” in medical matters. She further testified 

that “the administrative office . . . confirmed [] the patients Ms. Hendricks and 

Ms. Celestine had brought in.” The Government did not provide evidence 

refuting the testimony that Davis had little involvement in Christian’s 

administrative matters and no involvement in its medical matters. It instead 

continuously pointed to Davis’s payroll participation to illustrate her oversight 

at Christian and prove her participation in the conspiracy. This activity is 

insufficient to support an inference that she agreed to join Dr. Murray and the 

nurses’ fraudulent activity. The Government had to prove that she knowingly 

agreed to participate in a common scheme to meet an unlawful goal. See 

Monsanto, 465 U.S. at 754. The evidence did not prove that Davis committed 

actions sufficient to show an agreement to defraud Medicare beyond a 

reasonable doubt. 

We note that Davis’s actions were nothing like most directors involved 

in other health care fraud cases. She testified that she did not participate in 

the day-to-day activity of processing the certification forms, which was 

completed by the administrative office. But see, e.g., United States v. Fuchs, 

467 F.3d 889, 897 (5th Cir. 2006) (owner filled prescriptions for hydrocodone 

after his company generated the prescriptions online and paid a doctor, who 

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never examined the patients, to approve them). The contract between 

Christian and the medical directors provided for a flat rate, and, in accordance 

with health care regulations, that rate did not fluctuate based on the amount 

of patients the director referred. But see, e.g., United States v. Dailey, 868 F.3d 

322, 326 (5th Cir. 2017) (owner admitted to paying the doctor in exchange for 

signing certification forms without supervising the physician’s assistant and 

testified that the doctor withheld forms if not paid). The record does not 

indicate that Christian paid doctors to sign documents. But see, e.g., Grant, 683 

F.3d at 643–44 (5th Cir. 2012) (director paid doctor to re-sign forged 

prescriptions for medical supplies). Furthermore, according to testimony, 

Davis’s salary was, at most, $120,000. The Government provided no evidence 

that she received funds beyond her salary. So while the Government alleges 

that Medicare paid Christian an average of $3.5 million a year during the 

scheme, Davis only amassed 3.4% of those alleged ill-gotten gains. 

Although the Government presented a plausible scheme of fraudulence, 

it did not implicate Davis in the scheme with proof beyond a reasonable doubt. 

The Government did not present sufficient evidence to allow any rational juror 

to infer that Davis agreed to participate in a conspiracy to commit health care 

fraud. As such, we must reverse.

B. Fraud

To prove health care fraud, in violation of 18 U.S.C. § 1347, the 

Government must show that the defendant knowingly and willfully executed “a 

scheme or artifice—(1) to defraud any health care benefit program; or (2) to 

obtain, by means of false or fraudulent pretenses, representations, or promises,” 

any health care benefit program’s money in connection with the delivery of or 

payment for health care services. See 18 U.S.C. § 1347(a); United States v. Imo, 

739 F.3d 226, 235–36 (5th Cir. 2014). 

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1. Dr. Ganji

Only patients who were “homebound,” under a certifying doctor’s care, 

and in need of skilled services were eligible for the services Christian provided.

The Government asserts that Dr. Ganji certified patients who were not under her 

care knowing they were not homebound. A person who is “homebound” has a 

serious medical condition that restricts her ability to leave the home. Eghobor, 

812 F.3d at 356. Dr. Ganji asserted that there was insufficient evidence to 

prove that she certified Carolyn Stewart knowing that she was not homebound. 

The Government contends that Stewart was not homebound. Stewart’s 

primary care physician testified that Stewart’s mobility was not restricted.

Nevertheless, the Government must provide evidence that the accused doctor 

executed a fraudulent scheme with knowledge that the patient was not 

homebound. See 18 U.S.C. § 1347(a); United States v. Jackson, 220 F. App’x

317, 323–24 (5th Cir. Mar. 2, 2007).

We acknowledge that the Government presented evidence of Dr. Ganji’s 

participation in lax practices. However, Dr. Ganji was not convicted of patient 

negligence, keeping subpar files, or haphazardly conducting her business. She 

was convicted of defrauding the Government by certifying Stewart for home 

health care, knowing that she was not homebound and not under her care. 

Beyond proving that Stewart did not need home aid, the Government was to 

prove, beyond a reasonable doubt, that Dr. Ganji was aware of that reality. 

Unlike other health care fraud cases presented to this Court, the Government 

did not provide testimonial or documentary evidence proving that Dr. Ganji

knew Stewart was not homebound. But see, e.g., Grant, 683 F.3d at 645

(holding that the defendant knew wheelchairs were not medically necessary 

because the patients would not accept or actively and physically rejected

delivery); United States v. Murthill, 679 F. App’x 343, 350 (5th Cir. Feb. 13, 

2017) (co-conspirator testified that he and Murthill discussed that the patient 

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was not homebound). It presented evidence of Stewart’s primary care 

physician’s knowledge but it failed to present any evidence imputing that 

knowledge to Dr. Ganji. The evidence allowed the jury to infer that Stewart 

was not homebound, but it cannot stretch that into a second inference that Dr. 

Ganji knew Stewart was not homebound.

The Government further contended that Dr. Ganji committed fraud 

because she certified Stewart even though Stewart was not under Dr. Ganji’s

care. “A beneficiary is ‘under the care of a physician’ when the treating 

physician has determined that home health care is necessary.” See Eghobor, 

812 F.3d at 356. The Government contends that a doctor must be a patient’s 

primary care physician in order for the patient to be under their care. This is 

not a requirement established by the regulations. See 42 C.F.R. § 

424.22(a)(v)(A). In fact, the regulations provide that face-to-face patient 

encounters may be performed by physician assistants, nurse practitioners, or 

clinical nurse specialists. See id. Dr. Ganji averred that attending physicians 

and primary care physicians are both treating physicians when responsible for 

the care of a patient. She testified that when working in hospitals, nursing 

homes, or other home health care agencies, she served as the attending 

physician and patients were under her care even though she was not their 

primary care physician. If she cared for them at the facility, they were under 

her care. Although the process usually begins with a primary care physician, 

this cannot be the case when a patient does not have a primary care physician. 

The Medicare guidelines do not prohibit treating physicians who are not 

primary care physicians from beginning the home health care process. See id; 

Eghobor, 812 F.3d at 356. Therefore, Dr. Ganji cannot be held liable for 

fraudulence as a result of activity that is legal.

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2. Davis

The Government based Davis’s fraud completely on the actions of Dr. 

Ganji. It provided no evidence of Davis’s own fraudulent activity as it pertains 

to Stewart. There was not sufficient evidence to show an agreement to commit 

health care fraud, and the Government did not otherwise attempt to show that 

Davis individually committed the fraud alleged in Count 4. The Government

presented no evidence that Davis was made aware that Stewart was not 

homebound, but see, e.g., Murthill, 679 F. App’x at 350, or that she discovered 

that information herself, but see, e.g., Grant, 683 F.3d at 645. Furthermore, 

when directly asked if she ever met Carolyn Stewart, Davis answered, “No.” 

The Government left this testimony unanswered. Thus, there is insufficient 

evidence to show that she knowingly executed a scheme to defraud Medicare. 

III. CONCLUSION

For the forgoing reasons, we REVERSE and VACATE the defendants’

convictions of conspiracy to commit health care fraud in violation of 18 U.S.C. 

§ 1349 and health care fraud in violation of 18 U.S.C. § 1347.

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