IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-30933

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

TRACY RICHARDSON BROWN, 

 Defendant - Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

Before DAVIS, GRAVES, and COSTA, Circuit Judges.

GREGG COSTA, Circuit Judge:

Tracy Brown was convicted of multiple health care fraud and kickback 

offenses perpetrated through her medical equipment company. We must 

decide whether the evidence introduced at trial was sufficient to sustain her 

conviction; whether the jury was properly given a deliberate ignorance

instruction; whether an expert was properly allowed to testify; and whether a

leadership enhancement was properly included in her Guidelines calculation. 

Because we find that the trial court did not err on any of these points, we 

AFFIRM. 

United States Court of Appeals

Fifth Circuit

FILED

September 13, 2017

Lyle W. Cayce

Clerk

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I.

Brown was the co-owner of the medical equipment company Psalms 23. 

Psalms 23 provided equipment for Medicare beneficiaries. In 2005, Brown 

hired marketers to assist in finding patients for whom Psalms could provide 

medical equipment. For legitimate equipment companies, patient referrals

often come directly from doctors who prescribe the equipment to patients. For 

her marketers, Brown emphasized that they should refer patients who needed 

motorized wheelchairs and scooters, as these were the most profitable pieces 

of equipment. Instead of paying the marketers a set salary, Brown proposed a 

commission system; marketers would be paid on a per-piece-of-equipment 

basis. Federal law forbids commission payments for referrals, as they greatly 

increase the incentive for fraud (that is, for recruiting patients who do not need 

the equipment). See 42 U.S.C. § 1320a-7b(b)(1)(A). As a result of this setup—

and Brown’s encouragement to refer the most profitable equipment—many

patients were billed for the same equipment, which is highly unusual for a 

legitimate supplier. Indeed, expensive power wheelchairs, wheelchair 

accessories, and orthotics represented more than 95% of Psalms’ Medicare 

billings. And sometimes Psalms billed Medicare for expensive versions of the 

orthotics while purchasing much cheaper counterparts to give to the patients. 

To detail just one example of this upcoding, Psalms routinely billed Medicare 

$830 for a sophisticated back brace (HCPCS code L0631), but provided 

beneficiaries with a different brace (HCPCS code L0625) that cost about $11. 

By upcoding this one brace 334 times, Psalms billed Medicare more than a 

quarter million dollars above what the brace given to beneficiaries cost. 

For just about all the equipment that was ordered, only two doctors were 

used to certify that the equipment was needed. Both doctors testified that they 

never met with Brown, working instead through the marketers to refer 

patients to Psalms. Many of these patients did not actually need the 

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equipment the doctors prescribed. And that was if the doctors even wrote out 

the prescription; one marketer stated that she filled out prescriptions and 

progress reports for patients herself and only used the doctor as a rubber 

stamp. Another doctor who evaluated patients and referred them to Brown, 

asked that payments be made out to her mother to avoid “the appearance of 

impropriety.” 

In fall of 2007, Brown hired a consultant to show her the “right way” to 

bill Medicare. The consultant identified a number of the fraud indicators 

identified above and then some:

• Psalms did not have a physical therapist, which Medicare requires to 

ensure that the orthotics fit the beneficiary.

• Psalms did not collect copays from beneficiaries, something Medicare 

requires and that helps ensure that the equipment is needed.

• Psalms repeatedly ordered bilateral braces—one for each side of the 

body—meaning the patient was immobilized, which did not “make 

any sense” to the consultant.

• Medicare did not pay for full series of orthotics (knee brace, arm brace, 

back brace, and heating pad) that Psalms was billing as “arthritis 

kits.”

• Psalms never billed for manual wheelchairs, instead selling only the 

more expensive power wheelchairs.

• At least one marketer (that the consultant was aware of) was being 

paid on commission instead of a set salary.

• That using two doctors as the same source for just two types of 

equipment was “a flag,” and it was also unusual for the referral from

the doctor to be on the Psalms letterhead instead of the doctor’s 

prescription pad.

Although the consultant told Brown about these problems, Brown did not do 

anything different going forward.

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The scheme collapsed in fall 2008 when Psalms was audited by a fraud 

contractor that investigates companies for Medicare. After discovering that 

Psalms was missing documentation for a number of its patients, the 

investigator informed Brown that she needed to submit additional records to 

Medicare. Brown failed to do so. The contractor ultimately made a criminal 

referral and caused the suspension of Psalms’s Medicare payments. Around 

that time, Brown’s attorney sent a letter to the investigator informing her that 

a “self-audit” had determined that one of the marketers had forged patient 

information on a prescription. The letter stated that Brown had discovered the 

fraud in 2008, well before the investigation had started, but did not explain 

why this had not been reported earlier.

Brown was ultimately charged with health care fraud, paying kickbacks 

for Medicare referrals, and conspiring to commit those two offenses. At trial 

she essentially conceded the kickback charges. In defending the fraud claims, 

she claimed to have no knowledge that the claims being submitted were false. 

Brown was convicted on all counts and now appeals. 

II.

 A.

We begin with the challenge to the deliberate ignorance instruction, 

because the propriety of that instruction affects the level of knowledge needed 

to sustain the fraud convictions. A deliberate ignorance instruction informs 

the jury that “it may consider evidence of the defendant’s charade of ignorance 

as circumstantial proof of guilty knowledge.” United States v. Nguyen, 493 

F.3d 613, 618 (5th Cir. 2007). Such an instruction may be given even for 

conspiracy charges. See id.; United States v. Barrera, 444 Fed. App’x 16, 22 

(5th Cir. 2011); see also United States v. Alston-Graves, 435 F.3d 331, 337–42 

(D.C. Cir. 2006) (reviewing and questioning the application of the deliberate 

ignorance instruction to conspiracy cases). The instruction is proper “when the 

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evidence shows that: (1) the defendant was subjectively aware of high 

probability of the existence of illegal conduct, and (2) the defendant purposely 

contrived to avoid learning of the illegal conduct.” United States v. Miller, 588 

F.3d 897, 906 (5th Cir. 2009).

We have repeatedly cautioned that the instruction “should rarely be 

given,” United States v. Kuhrt, 788 F.3d 403, 417 (5th Cir. 2015), but this is the 

paradigmatic case. The thrust, if not the entirety of Brown’s defense, was that 

even if Psalms was engaged in a massive scheme to defraud Medicare, she was 

not aware of her underlings’ crime. But ample evidence showed that as an 

owner and involved operator of the company, Brown was subjectively aware of 

a high probability of fraudulent billing. She was paying commissions to the 

marketers, which is not just a separate crime but probative that she knew 

about the fraudulent claims. She was not asking beneficiaries for copays. She 

pushed marketers to only find patients who needed expensive equipment.

Brown also knew her marketers were filling out prescriptions and progress 

reports, even though they should have been completed by a physician. And the 

company she owned was also making exorbitant profits due to the upcoding we 

have discussed. See United States v. Willett, 751 F.3d 335, 341–42 (5th Cir. 

2014) (noting that high profit margins can be circumstantial evidence of fraud

(citing United States v. Davis, 490 F.3d 541, 549 (6th Cir. 2007))).

But what really sinks Brown’s objection to the instruction is the 

consultant’s visit in 2007. At that meeting, the consultant pointed out a 

number of these problems with the business: Psalms repeatedly waived copays, billed the same pieces of equipment for many of its patients; billed 

multiple pieces of equipment to a single patient that could not use all the 

equipment; and failed to follow the requirement that a therapist fit certain 

equipment for its patients. Brown was further told that she would be held 

responsible for Psalms’s practices if Medicare came calling. Despite these 

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warnings, she allowed the recruiters, doctors, and employees who handled

billing—the people she is now saying are responsible for the fraud rather than 

her—to continue operating as usual while she tried to remain above the details 

of the criminal conduct. 

A deliberate ignorance instruction is intended for this situation in which 

Brown knew it was highly likely that something illegal was afoot, but tried 

looking the other way while reaping the benefits of the likely criminal activity.

See United States v. Barson, 845 F.3d 159, 166 (5th Cir. 2016) (affirming 

deliberate ignorance instruction when, in part, the defendant relied on his own 

lack of knowledge of Medicare forms to argue that he suspected no 

wrongdoing); see also United States v. Delgado, 668 F.3d 219, 227–28 (5th Cir. 

2012). The trial court thus did not abuse its discretion in giving the 

instruction.

 B. 

This conclusion also impacts our review of whether the evidence was 

sufficient to support the verdict. Brown essentially challenges only the 

knowledge element of the fraud conviction, and what we have just said means 

the evidence need only support a jury finding that she was deliberately 

ignorant of the ongoing fraud. Based on the evidence detailed above, the jury 

was entitled to draw that conclusion. And our deference to the jury’s view of 

the evidence is even stronger than it usually is because Brown failed to renew 

her motion for a directed verdict after the close of the evidence. We thus can 

overturn the jury’s verdict only for a “manifest miscarriage of justice.” United 

States v. Davis, 690 F.3d 330, 336 (5th Cir. 2012). That occurs only if there is 

no evidence pointing to guilt or because the evidence is so tenuous that a 

conviction would be shocking. United States v. McDowell, 498 F.3d 308, 312 

(5th Cir. 2007). Brown makes a number of arguments that might have 

convinced a jury to rule the other way. She emphasizes that none of the 

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marketers who testified said they discussed with her that the claims were 

fraudulent, views her hiring of the consultant as an attempt to comply with 

the law, and argues she was not directly involved in the billing. There need 

not be direct evidence of guilt, however, and the jury’s decision to reach a 

different conclusion based on the substantial circumstantial evidence the 

government highlights does not come close to being a miscarriage of justice.

 C.

As for the final alleged trial error, the district court did not abuse its 

discretion in admitting Jonathon Bergey’s expert testimony. Rule 702 lists

criteria a trial court can use to determine whether a witness may give expert 

testimony, but as the Supreme Court explained in Kumho Tire these factors 

are neither exclusive nor dispositive. Kumho Tire Co. v. Carmichael, 526 U.S. 

137, 152 (1999); see also Fed. R. Evid. 702. The ultimate inquiry is “relevance 

and reliability.” Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 507 (5th Cir. 

1999) (“As long as some reasonable indication of qualifications is adduced, the 

court may admit the evidence without abdication of its gate-keeping 

function.”). And trial judges have leeway in determining whether an expert’s 

testimony is reliable. Kumho Tire, 526 U.S. at 152.

Bergey was offered as an expert in Medicare and the practices of medical 

equipment providers. This is not the type of cutting-edge scientific evidence 

for which the Daubert factors are often most vigorously contested. Bergey has 

worked for a Medicare claims-processing contractor since 2003. In his many 

roles with the company, he has had to learn—and teach others—the general 

practices and policies of both Medicare and payments to medical equipment

companies. He also has written and edited manuals instructing suppliers on

how to properly bill Medicare and comply with its guidelines. The trial court 

held that this experience qualified Bergey as an expert. 

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That was not error. We have routinely affirmed district courts that 

admit the testimony of experts based on the kind of experience Bergey has. See 

Mike Hooks Dredging Co. v Marquette Transp. Gulf-Inland, LLC, 716 F.3d 886, 

894 (5th Cir. 2014) (affirming expert based on his experience in maritime 

navigation); United States v. West, 58 F.3d 133, 140 (5th Cir. 1995) (admitting 

IRS agent as expert witness on tax evasion based on her work experience and 

accounting education); Huval v. Offshore Pipelines, Inc., 86 F.3d 454, 458 (5th 

Cir. 1996) (“Given [expert’]s broad, general experience in the insurance 

industry, we cannot say that the district court abused its discretion in 

qualifying him as an expert witness.”). 

III.

Brown’s only challenge to her sentence (80 months on the fraud counts; 

60 months on the kickback counts) is to dispute the application of an 

enhancement that found she was “an organizer or leader of a criminal activity 

that involved five or more participants.” U.S.S.G. § 3B1.1(a). Of course, as the 

owner and operator of Psalms, she was a leader of the company. And she 

brought into the company a number of the marketers who engaged in the 

fraudulent activity. See United States v. Brown, 727 F.3d 329, 341 (5th Cir. 

2013); United States v. Liu, 960 F.2d 449, 456 (5th Cir. 1992) (both applying 

the enhancement when the defendant recruited others into the conspiracy).

Brown’s argument against the enhancement is just recycling the 

argument she made to challenge her fraud convictions: that she did not know 

about the fraud. But given that the jury found she was a knowing participant 

in the conspiracy to defraud Medicare, it readily follows that she was a leader 

of that criminal enterprise. The district court did not clearly err in applying 

the enhancement. 

The judgment and sentence are AFFIRMED.

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