### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 17

- 20492

UNITED STATES OF AMERICA , Plaintiff

–

Appellee ,

versus FRANKIE LEE SANDERS; PAMELA ANNETTE ROSE, also known as Pamela Annette Archbald , Defendants

– Appellants

.

Appeal from the United States District Court for the Southern District of Texas

Before DAVIS , SMITH , and STEWART , Circuit Judges

. JERRY E. SMITH, Circuit Judge : Pamela Rose (“Rose” or “Mrs. Rose”) and Frankie Sanders (“Sanders”) were executives at a company that provided rehabilitative services to injured federal employees. A jury convicted Rose and Sanders of conspiracy and fraud for participati ng in a plot to d efraud the federal workers’ compensation fund

. Both challenge the sufficiency of the evidence and the district court’s handling United States Court of Appeals Fifth Circuit 

### FILED Marc h 2, 2020 Lyle W. Cayce Clerk Case: 17-20492 Document: 00515327502 Page: 1 Date Filed: 03/02/2020No. 17

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2 of a recalcitrant witness. Rose also protests the criminal forfeiture of several properties. We affirm

. I. I NTRODUCTION A. Federal Work Ready (“FWR” 1 ) was a health care business based in Hous

ton . FWR marketed itself to federal patients whose physical therapy (“PT”) was reimbursable under the Federal Employees’ Compensation Act (“FECA”), 5 U.S.C. § 8101 et seq . FWR served hu ndreds of federal workers and received millions of dollars in reimbursements from the federal government

. It had PT clinics in several states, including Texas and Louisiana. Mrs. Rose and Sanders co - owned FWR along with Jeffrey Rose (“Mr. Rose”), the defendant Rose’s husband. Mrs. Rose served as chief financial offi

c er (“CFO”). Sanders was Vice President of Clinical Operations. Mr. Rose was the chief executive officer (“CEO”). Other key personnel included John C ruise, the former chief operating officer (“COO”) , and Dr. Hugo Jaime, a licensed chiropractor who oversaw PT and the medical professionals at FWR.
B. Health care providers such as FWR can receive payments for treating federal employees. See id. § § 10.800

– 10.826. The overwhelming majority of FWR’s revenues came from reimburse ment s under FECA’s workers’ compen

sa tion program. FECA benefits for injured workers in clude pay for up to forty

five days and, relevant to this case , certain medical expenses and rehabilitation services. See 5 U.S.C. § § 8103

– 04, 8118(b)(2); 20 C.F.R. § 10.0(b). Those

1 T he company originally went as “Team Work Ready” (“TWR”) but then became known as Federal Work Ready. We’ll refer to the overall company , and the main clinic in south Houston, as “FWR.” Case: 17-20492 Document: 00515327502 Page: 2 Date Filed: 03/02/2020No. 17

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3 benefits are administered by the Department of Labor’s (“DOL’s”) Office of Workers’ Compensation Programs (“OWCP” ) . 20 C.F.R. § 10.1. An intricate web of rules governs the submission of FECA claims. Pro

viders such as FWR must itemize the claims using , inter alia , the Physi cian’s Current Procedural Terminology codes, see id. § 10.801(b), a sys tem created to provide a uniform and accurate description of health care services

. Medical evidence must support every claim

. Id. § 10.801(a)

. A nd when a pro vider sub

mits one, it certifies “that the service

. . . was performed as described, nec es sary, appropriate and properly billed in accordance with accepted industry standards

. ” I d. § 10.801(d).
Prohibitions abound . Providers understandably cannot “upcod[e] billed services fo r extended medical appointments when the employee actually had a brief routine appointment.” Id. Nor can they “charg[e] for the services of a professional when a paraprofessional or aide performed the service.” Id. And, since FECA claims must be submitted “in accordance with accepted industry standards,” id. , claims filed under codes for one - on - one tre atment must have been performed one - on - one.
C. By 2013, FWR’s business was cooking

. But t he government smelled something foul. It started an investigation of impressive scope, involving under cover agents, confidential informants , audio and video surveilla nce, sub

poenaed bank and business records, and more than two hundred interviews. What investigators uncovered was a scheme to defraud DOL of FECA funds

. Evidence at trial suggested that the following practices regularly occurred at FWR’s various clinics . Sanders and Rose largely do not contest that these prac

tices existed

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4 First, despite regulations restricting aides from providing the reim

bursed care , see 20 C.F.R. § § 10.5(o), 10.801(d), unlicensed and untrained tech

nicians supervised PT. Several employees testified that they never saw a licensed professional provid e treatment

. Second, activities were regularly billed using one

- on - one codes, but employees never saw patients receiv e individual attention

. Indeed, FWR did not employ enough staff to provide the billed PT , even if the staff had possessed the required medical credentials.
Third , patients often did no therapy at all, even though FWR was billing their time. Instead, patients sat around, text messaged , playe d video games , watched TV, and self

- performed unnecessary exercises.
Fourth , treatment plans were based not on individual patient needs, but instead on a “cheat sheet” that management created . The sheet categorized what would maximize OWCP billings by exe rcise type and time allotted. Patients were thus alternated among different codes based on what was most profitable. Often, medical documents were mere copies of old ones reused on new patients. One doctor testified that , as a result , patients’ health rou tinely deteriorated

. Finally , technicians were ordered to falsify treatment rec ords so as to increase revenue. Sometimes, records were changed to reflect that a patient received therapy for longer than actually occurred. Other times, forms we re altered to make it appear that FWR was complying with federal regulations.
D. The re was extensive trial testimony about Sanders and Rose’s alleged involvement in the fraudulent scheme

. We explain in detail. Case: 17-20492 Document: 00515327502 Page: 4 Date Filed: 03/02/2020No. 17

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5 1. Mrs. Rose Mrs. Rose , as CFO, was number th ree in rank and oversaw FWR’s finan

cial affairs. Mr. Rose was the CEO and main protagonist 2 of the deceitful busi

ness practices

. Mrs. Rose “ was very involved” in discussions about how much money was being collected at FWR clinics. She attended the weekly executive

- team meeting along with Mr. Rose, Sanders, and others

. The participants regularly discussed how to inflate billing s on existing clients, and Mr. Ros e would often become very upset when he learned that a clinic wasn’t hitting its numbers

. Despite Mrs. Rose’s steep involvement with the finances, she didn’t inter act much with FWR’s clinical side , and she didn’t submit the OWCP bills for reimbursement

. When Mrs. Rose gave one of FWR’s doctors, Andrea Smith, an oral evaluation, Rose told Smith that one of “ her objectives must be tied to profit” and that, going forward, she would be evaluated on how much billing revenue she brought in. Mrs. Rose informed Smith that Smith would still get a raise, but that, in the future, her salary would be tied to her clinic’s numbers. Rose acknowledged that Sanders had already spoken with Smith about in

creas ing billing s . Rose also signed the written evaluation that a dmonished Smith for “not maximiz[ing] patient treatments.” On July 11, 2013, the government served search warrants at some of the clinics. Immediately, Rose called Cruise (the COO at the time ) at his home and ordered him to go to the office . Once he arrived, investigators questioned him. Cruise called Mrs. Rose after leaving the office and filled her in. Wasting

2 Trial witnesses suggested that Mr. Rose ring

- led the fraudulent scheme at FWR. Among many other things, h e pressured employees to maximize billing and browbeat them into falsifying documents. And he fed the company’s culture of excessive focus on billing and of falsifying OWCP claims. Case: 17-20492 Document: 00515327502 Page: 5 Date Filed: 03/02/2020No. 17

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6 no time, Mrs. Rose told Cruise to meet her and Mr. Rose at the bank where they s tashed FWR’s money in various accounts. Mrs. Rose wanted the team

“ to pull all the money out

. . . and put those funds in another account” so as “to hide the money from the federal government so it wouldn’t be seized.” Twelve transfers later, and the Ros es had moved $700,000 from the FWR accounts into

a brand new Chase account, held in the name of Pure Vanity Boutique, Inc. (“Pure Vanity”) , a corporation newly created by the Roses. 3 That same night, t he Roses, Sanders, and others met at a restaurant to d iscuss the warrants. The Roses didn’t mention the money transfers

. A formal executive meeting was also called following the warrants, and Mrs. Rose attended. The meeting was secretly recorded. Mr. Rose had in

structed Cruise to find a company to sweep the executive office for listening devices, and, at the meeting, Cruise reported that no bugs had been found. In unison, Mrs. Rose and her husband exclaimed , “praise the Lord.”

2. Sanders Sanders , as the VP of Clinical Operations , was intimately involved with FWR’s clinical matters. H e worked closely with the staff and doctors , helped
open OWCP claims, and was the company’s expert on compliance with the fed

eral rules governing FECA

. Sanders was also occupied with OWCP billings

. H e went to the billing department with Mr. Rose several times a day, and billing information was daily sent to him. He also attended the weekly meetings where the executives discussed how to maximize billing s . Sanders had a sharp focus on boos ting revenue per patient. He repeat

edly told doctors at FWR that maximizing billing was of paramount

3 A few days later, some of the money was transferred back. Case: 17-20492 Document: 00515327502 Page: 6 Date Filed: 03/02/2020No. 17

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7 importance. When one doctor , Melissa Hoffman , objected to the quantity of PT ordered for some patients, Sanders told her to order it anyway. He gave a doc tor a flowchart describing how to perform intake of a new patient, and the form stressed the importance of focusing on “compensable area[s]” of treat

ment. Sanders submitted agenda items for meetings about “maximizing treat

ment for patients.” He fir ed one employee because she refused to “follow directions” by lying about patients’ exam results. Sanders’s comments during Dr. Smith’s oral evaluation were partic u larly revealing. He told her that “[w]e literally have to maximize whatever is available to the patient” and admonished that Smith needed to do better on that front. Apparently aware that his comments pushed boundaries, Sanders clarified that he didn’t want Smith to do something “unethical or immoral.” When Smith replied by suggesting that F WR was providing unnecessary therapy, Sanders argued with her, asking why the patients couldn’t do more exercise s . Smith responded, “why are you pushing it?”, and Sanders replied, “because we get paid for it if we push i t. ” He continued, “if it’s not goi ng to be negatively detrimental to them, why wouldn’t I give them eight more minutes and

. . . bill for the eight more minutes?” If doing extra time “would yield an increase to ” the clinic’s finances “and not yield a negative impact to the patient, then I don’t understand why that would be problematic.” He then repeatedly asked Smith whether it would be unethical to order more. Sanders also signed Smith’s written evaluation, which , as seen above, criticized her for “not maxi

miz[ing] patient treatments.” On the day of the search warrants, Sanders was present at the restau

rant where the team, including the Roses, debriefed. He also attended the later executive meeting. There, he and Mr. Rose spoke about issues with a local clinic. They disc ussed how one of FWR’s doctors, Dr. Key, needed to visit the Case: 17-20492 Document: 00515327502 Page: 7 Date Filed: 03/02/2020No. 17

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8 clinic more often so that Key could provide the necessary signature s for OWCP billings, since no government

- licensed doctor was currently onsite. Sanders stressed that Key needed to visit so tha t DOL couldn’t “say that he wasn’t there.”

E. The government charged Mrs. Rose, Sanders, Mr. Rose, and Dr. Jaime with a n array of federal crimes. In Count 1 of a second superseding indictment , all four defendants were charged with conspiracy to commit heal th care fraud and wire fraud. In Counts 2

– 18, the same crew was accused of committing health care fraud and aiding and abetting. Counts 19

– 23 charged the same defendants with wire fraud and aiding and abetting. And Counts 24

– 25 ac cused the Roses only o f conspir ing to engage in a monetary transaction in criminally derived property (“money laundering”) and aiding and abetting. A lengthy trial ensued with o ver three dozen witnesses. They include d patients, former employees and doctors, experts, undercove r agents, Cruise, and Dr. Jaime, who was the only defendant to take the stand during the guilt phase. After the government rested, Sanders and the Roses moved for a judgment of acquittal, see F ED

. R. C RIM

. P. 29, which the court reserved for later resolution

. Dr. Jaime was acquitted , but Mrs. Rose, Sanders , and Mr. Rose were convicted as charged

. All three moved again for acquittal, and, this time, the court denied relief. The same jury was then retained for a forfeiture tria l and rendered a special verdict finding six of the Roses’ properties to be criminally forfeitable. 4 Only Mrs. Rose and Sanders appeal

.

4 Sanders was eventually sentenced, among other things, to 300 months. Mrs. Rose got 120 months. Case: 17-20492 Document: 00515327502 Page: 8 Date Filed: 03/02/2020No. 17

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9 II. S UFFICIENCY OF THE E VIDENCE Defendants contend that there wasn’t enough evidence to convict them on any count

. When a defendant timely move s for a judgment of acquittal , as Rose and Sanders did, “we review challenges to the sufficiency of evidence de

novo , but view the evidence in the light most favorable to the verdict.” United States v. Gonzalez , 907 F.3d 869, 873 (5th Cir. 2018) (per curiam) (cleaned up). “[A] defendant seeking reversal on the basis of insufficient evidence swims upstream.” United States v. Mulderig , 120 F.3d 534, 546 (5th Cir. 1997). We must affirm if a “ rational jury, viewing the evidence i n the light most favorable to the prosecution, could have found the essential elements of the offense to be satisfied beyond a reasonable doubt.” United States v. Bowen , 818 F.3d 179, 186 (5th Cir. 2016) (per curiam) (emphasis added). One definition of

“ rational” is that which is “not absurd, preposterous, foolish, or fanciful.” Rational , B LACK ’ S L AW D ICTIONARY (11th ed. 2019). In so doing , we ask whether the verdict was reasonable, not whether it was correct. United States v. Alaniz , 726 F.3d 586, 601 (5th Cir. 2013). We

ac cept any reasonable inferences that support the verdict and resolve any con

flict in the evidence in favor of it

. 5 T he jury can “choose among reasonable

con structions of the evidence.” United States v. Lugo

- Lopez , 833 F.3d 453, 4 57 (5th Cir. 2016) (per curiam). Nonetheless, “a verdict may not rest on mere

sus picion, speculation, or conjecture, or on an overly attenuated piling of infer

ence on inference.” United States v. Pettigrew , 77 F.3d 1500, 1521 (5th Cir. 1996).

5 United States v. Velasquez , 881 F.3d 314, 328

– 29 (5th Cir.) (pe r curiam), cert. denied , 139 S. Ct. 138 (2018). Case: 17-20492 Document: 00515327502 Page: 9 Date Filed: 03/02/2020No. 17

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10 A. Defendants first challenge their Count 1 conviction of conspiracy to com

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

.
1. To prove a conspiracy to commit health care fraud , the government must show “ beyond a reasonable doubt that: (1) tw o or more persons made an agreement to commit health care fraud [ 6 ]; (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. Ga nji , 880 F.3d 760, 767 (5th Cir. 2018) ( cleaned up ); see 18 U.S.C. § 1349. The same elements apply to a conspiracy to commit wire fraud , except that the participants must agree to execute wire fraud

. See United States v. Kuhrt , 788 F.3d 403, 414 (5th Cir . 2015). Criminal conspiracies can be established on circumstantial evidence alone. United States v. Sutherland , 656 F.2d 1181, 1188 (5th Cir. Unit A Sept. 1981). Indeed, a jury can infer from the surrounding circumstances whether a defendant participate d in and knew of the conspiracy. See United States v. Eghobor , 812 F.3d 352, 362 (5th Cir. 2015). “ W hat people do is

. . . evidence of what lies in their mind. ” Ganji , 880 F.3d at 768.
T he central feature of a conspiracy is the agreement , 7 but it doesn’t need to be formal or even spoken. See id. at 767. It can “ be inferred from concert of action. ” United States v. Frydenlund , 990 F.2d 822, 825 (5th Cir. 1993). Even
so, the agreement “ cannot be lightly inferred. ” Ganj i , 880 F.3d at 76 8

. “ Mere

6 The crime of health care fraud generally applies to a defendant who schemes to defraud a health care benefit program. See 18 U.S.C. § 1347.

7 See United States v. Alvarez , 610 F.2d 1250, 1255 (5th Cir.) , on reh ’ g , 625 F.2d 1196 (5th Cir. 1980) (en banc)

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11 similarity of conduct among various persons and the fact that they have asso

ciated with or are related to each other is insufficient ,” standing alone, “ to prove an agreement

. ” Id. at 767

– 68 (quotation marks removed).

2. Enough evidence support ed Rose’s and Sanders’s Count 1 conviction s . i. Sanders Start with Sanders. The government was permitted to establish the conspiracy on circumstantial evidence alone

. S ee Suth erland , 656 F.2d at 1188

. It did. First, there’s en ough evidence that Sanders was party to an agreement to commit health care and wire fraud

. An agreement can “be inferred from concert of action,” Fryde n lund , 990 F.2d at 825, and repeatedly Sanders was shown teaming up with others as he participated in the company’s culture of fraudulent billing , see United States v. Anderson , 558 F. App’x 454, 459 (5th Cir. 2014) (per curiam) (noting that the conspirators “worked in tandem”). Take several examples

. Sanders attended both of the anguished post

search

- warrant meeting s with his fellow executives , in which the team de

briefed the startling events and rejoiced upon learning that listening devices hadn’t been found in the executive office . At the later mee ting, he strategized with Mr. Rose about how to get the clinic that wasn’t following federal regu la

tions into compliance

. He went with Mr. Rose several times a day to the billing department , and h e participated in the weekly meetings that saw frequent d is

cussion of how to increase billings. And his evaluation of Dr. Smith, which emphasized that she needed to order more therapy for patients , was done with Mr. and Mrs. Rose in tow. A rational juror could have inferred that Sanders acted in concert with others only because he’d agreed to do so. Cf. Frydenlund , Case: 17-20492 Document: 00515327502 Page: 11 Date Filed: 03/02/2020No. 17

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12 990 F.2d at 82 5.
T here’s also enough evidence that Sanders knew the unlawful purpose of the agreement and wanted to further it. The fraudulent scheme at FWR involved , among other things, overbilling and misrepresenting what services were performed, charging for unnecessary care, and delegating PT to un

trained technicians. And “the government produced evidence that [Sanders was] not only aware of the fraud, but actually helped perpetrate [it].” Kuhrt , 788 F.3d at 416

. Indeed, Sanders was excessively focused on maximizin g billings. He fired one employee for refusing to lie on documents. He admonished Dr. Smith for failing to bill extra time for patients who Smith said didn’t need it. He overruled another doctor’s objection to how much therapy was being ordered. At the post

- warrant executive meeting, he spearheaded the effort to get Dr. Key to the noncomplying clinic so that DOL couldn’t “say that he wasn’t there.” He was very involved in the clinical side of the business, and he was the com

pany’s expert on DOL and th e FECA rules. And, of course, he was in executive leadership. All of that evidence s how s his knowledge and intent

. ii. Rose There’s also enough evidence that Rose was part of a conspiracy to com

mit health care and wire fraud. She too participated in the company’s culture of questionable billing practices. “ She was very involved ” in discussions about billings

. During Dr. Smith’s evaluation, she told Smith that Smith needed to bring in more money and that her salary would be tied to profits. She signed the written evaluation that criticized Smith for failing to pad billings. 8 And

8 Rose points out that focusing on profit isn’t illegal. But the fraud ulent scheme at FWR was predicated on overbilling and billing for services that weren’t compliant or neces sary. So , the jury could have interpreted Rose’s focus on maximiz ing billing as evidence she Case: 17-20492 Document: 00515327502 Page: 12 Date Filed: 03/02/2020No. 17

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13 she attended the weekly meetings where maximizing billings was regularly discusse d and where her husband frequently became upset about their paucit y . Then, of course, there is her revealing behavior after the search warrants were served. Instead of asking why agents were snooping around, Rose ran to the bank and shifted money between accounts , all in the name of “ hid[ing it ] from the federal governm ent. ” At the executive meeting that followed, she thanked the powers above when Cruise reported that no listening devices had been found in the office

. That is not behavior we ’d expect of an executive who

was unaware of and didn ’ t participate in the fraud. Rose’s “ efforts to assist in the concealment of a conspiracy may help support an inference that [she] had joined [it]

. ” 9 The same evidence also supports that Mrs. Rose was a party to an agree

ment. She acted with others in hid ing funds from the government , at tend ing the post

- warrant meetings , and admonishing employees for failing to maxi

mize billings , among other events

. See Frydenlund , 990 F.2d at 825 ( rec og nizing that agreements can be inferred from concerted action )

. All of that evi

dence, combined with her marriage to Mr. Rose , the ringleader, and her num ber three position in a company permeated with fraud , 10 is enough to sus tain the conviction.

participated in the scheme

. See Lugo

- Lopez , 833 F.3d at 457 ( stat ing that the jury can pick among reasonable constructions of the evidence ).

9 United States v. Robertson , 659 F. 2d 652, 657 (5th Cir. Unit A Oct. 1981); see also United States v. Martinez , 921 F.3d 452, 470 (5th Cir.) ( “ [Defendant] also closed the bank account he had opened two days after a search warrant was executed

. . . . [T]he jury could have viewed this as ev idence of knowledge. ” ) , cert. denied , 140 S. Ct. 571 (2019 )

. 10 See United States v. Willett , 751 F.3d 335, 340 (5th Cir. 2014) (characterizing as circumstantial evidence the existence of a family relationship and the defendant’s position of authority withi n the organization). Case: 17-20492 Document: 00515327502 Page: 13 Date Filed: 03/02/2020No. 17

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14 3. To the extent any objections remain to Sanders’s and Rose’s Count 1 conviction s , they lack merit. Defendants posit that we should set aside their convictions because no witness directly implicate d them in the conspiracy. Yet the government was permitted to (and did) establish the conspiracy on circum

stantial evi dence alone. See Sutherland , 656 F.2d at 1188

. “[T]he defendants cannot obtain an acquittal simply by ignoring inferences that can logically be drawn from the totality of the evidence.” Martinez , 921 F.3d at 466.
Rose and Sanders proffer some indicia of innocence and conclude that reversal should follow. 11 But we must “ view the evidence in the light most favorable to the verdict , ” 12 and “[t]he evidence need not exclude every reasona

ble hypothesis of innocence , ” Lugo

- Lopez , 833 F.3d at 457

. In light of the evi

dence reviewed above, d efendants’ apparent exculpating evidence could have failed to create doubt in the mind of a rational juror. Defendants suggest that Ganji , 880 F.3d at 773, requires reversal

. It does not. In that case, we vacated t he convictions of two defendants for con

spir acy to commit health care fraud. Id. at 778. For one defendant, Davis, all the government could muster was evidence that Davis “ should have known ” that her employees were executing a fraudulent scheme

— not that she did know

. Id. at 776 (emphasis removed) . And , for the other defendant, Ganji, there was no evidence whatsoever that she had participated in any unlawful agreement. Id. at 773. The con fessed ringleaders of the scheme testified that

11 Sanders notes testimony that he told employees not to do anything unlawful. He points out that Dr. Jaime testified that Sanders never ordered him to falsify medical records, billing hours, or DTNs. Rose urges that she wasn’t involv ed with clinical matters and fre

quently was at work for only a few hours and that Jaime testified he didn’t see her do any

thing fraudulent.

12 Gonzalez , 907 F.3d at 873 (quotation marks removed)

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15 they didn’t know Ganji and hadn’t worked with her. Id. at 770. Ganji involved quite a different story. There ’ s ev i dence of Rose ’s and Sanders’s participation that goes far beyond a theory that they should ’v e known what was going on. They knew. Key players, such as Cruise, provided testimony showing both of them working in concert with others to accomplish the illicit goals. Ganji is inapt

. Sanders contends that Dr. Jaime ’ s acquittal was inconsistent with San

ders’s conviction . But even if that questionable premise w e re true, it wouldn ’ t require reversal

. “ [I] nconsistent verdicts are not a bar to conviction so long as there is sufficient evidence to support the jury ’ s determination of guilt , ” United States v. Gieger , 190 F.3d 661, 664 (5th Cir. 1999) , 13 a nd there was “ample” evidence of Sanders’s guilt, as the district court correctly observed.
R elying on United States v. White , 569 F.2d 263, 268 (5th Cir. 1978) , Rose conte4nds that her conviction cann ot stand merely because she was married to the chief miscreant

. But the evidence of Mrs. Rose’s conspiratorial activity
goes much further than the fact of her marriage to Mr. Rose. And regardless, the jury was permitted to consider the marriage as circum stantial evidence of knowledge. See Willett , 751 F.3d at 340. The convictions of conspiracy to com

mit health care and wire fraud were adequately supported.
B. Mrs. Rose and Sanders maintain that there was insufficient evidence supporting their convictions for health care fraud and aiding and abetting (Counts 2

– 18 ) in violation of 18 U.S.C. § § 1347 and 2 , and wire fraud and aiding and abetting (Counts 19

– 23) in v iolation of 18 U.S.C. § § 1343 and 2

. The health care fraud counts referenced individual OWCP billings that were

13 To his credit, Sanders conceded this point

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16 allegedly inaccurate

. 14 The wire fraud counts were tied to payments from DOL Treasury to a bank account held in FWR’s name. As above, there wa s sufficient evidence.

1. To prove health care fraud, the government had to show that the defendants either (1) “ knowingly and willfully execute [ d ] , or attempt [ ed ] to execute, a scheme or artifice

. . . to defraud any health care benefit program; ” or (2) “ knowingly and willfully execute [ d ] , or attempt [ ed ] to execute, a scheme or artifice

. . . to obtain, by means of false or fraudulent pretenses, represen ta

tions, or promises, any of the money or property owned by, or under the custody or control of, any health care benefit program

. . . .” 18 U.S.C. § 1347(a) ; see also United States v. Mahmood , 820 F.3d 177, 185

– 86 (5th Cir. 2016). “[T]he government must show [ that the defendant] participated in the scheme to defraud, not that he took part in every aspect of that scheme.” United States v. Tencer , 107 F.3d 1120, 1127 (5th Cir. 1997) (mail fraud case). Next, “[i]n a wire fraud prosecution, the government must prove that (1) a scheme to defraud exists , (2) the defendant used wire communications in inte rstate or foreign commerce to further that scheme, and (3) the defendant had specific intent to defraud.” 15 “ [O] nce membership in a scheme to defraud is established, a knowing participant is liable for any wire communication which subsequently takes place or which previously took place in connection with the scheme.” United States v. Stalnaker , 571 F.3d 428, 436 (5th Cir. 2009) (brackets removed).

14 As one example, Count 2 charged that a bill had been submitted for services ren

dered to patient “Bryan B.” that were “not provided as billed.”

15 United States v. del Carpio Frescas , 932 F.3d 324, 329 (5th Cir .) (per curiam), cert. denied , 140 S. Ct. 620 ( 2019). Case: 17-20492 Document: 00515327502 Page: 16 Date Filed: 03/02/2020No. 17

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17 Finally, consider aiding and abetting

. It “is not a separate offense, but it is an alternative charge in eve ry indictment, whether explicit or implicit.” United States v. Neal , 951 F.2d 630, 633 (5th Cir. 1992). To prove it, the gov ernment needed to show , in the context of this case, that (1) health care and wire fraud were “ committed by someone,” 16 and “(2) the defendant associated with the criminal activity, participated in it, and acted to help it succeed.” 17 “It is not necessary

. . . that one charged as an aider or abettor commit the overt acts that

. . . accomplish the offense or that he have knowledge of the particular means his principals

. . . employ to carry out the criminal activity.” United States v. Austin , 585 F.2d 1271, 1277 (5th Cir. 1978). Similarly, there needn’t be proof “that the defendant was present when the crime was com

mitt ed or that he actively participated therein.” United States v. James , 528 F.2d 999, 1015 (5th Cir. 1976). Instead, liability under 18 U.S.C. § 2 “results from the existence of a community of unlawful intent between the aider or abettor and the principal. ” Austin , 585 F.2d at 1277 (cleaned up)

. Neither Sanders nor Rose contests the first element of aiding and abetting

— namely, that, someone committed health care or wire fraud with respect to each count

. 18 Instead, they plead that they didn’t know about or help the fraud. We follow their lead and evaluate whether the evidence was sufficient to show that they associated with, participated in, and acted to help

16 United States v. Collins , 774 F.3d 256, 263 (5th Cir. 2014)

. 17 United States v. Barnes , 803 F.3d 209, 216 (5th Cir. 2015)

. 18 See Collins , 774 F.3d at 263. Rose concedes that “the evidence in this case might allow a juror to infer that there were some violations of FECA rules.” Sanders spends one page in his seventy

- page brief contending that FWR’s practices were generally lawful. But he fails to cite any authority or even the record, and he neglects to examine the evidence underlying each individual count. His contention is therefore waived as inadequately briefed. E.g. , United States v. Ballard , 779 F.2d 287, 295 (5th Cir. 1986). Case: 17-20492 Document: 00515327502 Page: 17 Date Filed: 03/02/2020No. 17

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18 the health care and wire fraud succeed. 19

2. “T ypically, the same evidence will support both a cons piracy and an aiding and abetting conviction

. This is such a case. ” United States v. Scott , 892 F.3d 791, 799 (5th Cir. 2018) (footnote and quotation marks removed)

. Reviewing what is now familiar, Sanders, among other acts, pressured employ

ees to maximize billings even when treatment was unnecessary. He fired an employee for refusing to lie on documents. He schemed with Mr. Rose to put Dr. Key at a noncomplying c linic to ensure that DOL would send payments. Those actions, among many others, show that there was “ a community of unlawful intent between [Sanders] and the principal [s] ” of the fraud. Austin , 585 F.2d at 1277 ( brackets removed )

. Sanders’s main respons e is to point to evidence that he told employees not to do anything illegal. But that doesn’t prove that the jury acted irration

ally in convicting. Cf. Bowen , 818 F.3d at 186

. For one, the evidence needn’t

“ exclude every reasonable hypothesis of innoce nce. ” Lugo

- Lopez , 833 F.3d at 457 . And a jury could have inferred that Sanders knew he was crossing lines , because he felt a need to tell employees not to break the law. Sanders also contends that the wire

- fraud convictions should be set aside because t here was “no evidence indicating Sanders played any role whatsoever in the actual process of submitting bills for payment.” But , as an aider and abettor, there was no requirement that Sanders himself submit the fraudulent claims sent by wire. See United States v. Rivera , 295 F.3d 461, 466 (5th Cir.

19 See Barnes , 803 F.3d at 216 ; see, e .g. , United States v. Ismoila , 100 F.3d 380, 387 (5th Cir. 1996) (assuming substantive prong of fraud count was satisfied because defendant conceded as much). Defendants in other health care fraud cases have proven capable of exam ining the evidence of substantive fraud underlying each count. See, e.g. , Martinez , 921 F.3d at 472

– 73. Case: 17-20492 Document: 00515327502 Page: 18 Date Filed: 03/02/2020No. 17

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19 2002) . Instead, the government needed only to show that he “ assisted the actual pe rpetrator of the wire fraud crimes while sharing the requisite criminal intent .” Id . For reasons already described, the government met that burden. The evidence is also sufficient as to Mrs. Rose . As seen above, she was very involved in company discuss ions about maximizing billings. And she played a role in that company culture : S he informed Dr. Smith that Smith needed to do more to increase revenues and informed her that her pay would be tied to her clinic’s numbers. Mrs. Rose also helped to conceal the fraud by transferring FWR’s money around various bank accounts once she’d learned that search warrants had been served. She was relieved to hear that listening devices hadn’t been discovered in the executive office. All of that evidence sup

ports tha t she knew about, participated in, and wanted to see the health care and wire fraud succeed. Accordingly, there is sufficient evidence supporting Rose’s and Sanders’s Counts 2

– 23 convictions for health care and wire fraud and aiding and abetting.
C. Mrs. R ose challenges the sufficiency of the evidence for her Count 24 conviction of conspiracy to launder money in violation of 18 U.S.C. § 1956(h)

. We affirm.
1

. Mrs. Rose’s efforts to hide money from the government not only proved unsuccessful. They also put her in further legal trouble: namely, a charge of conspiracy to launder money. Count 24 accused Rose, along with her husband, of conspiring to “ con duct financial transactions

. . . with the proceeds of specified unlawful activ ity ”

— namely, the health care and wire fraud discussed above. The Roses’ alleged objective was to conceal and disguise the nature, Case: 17-20492 Document: 00515327502 Page: 19 Date Filed: 03/02/2020No. 17

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20 location, and ownership of the criminal proceeds. The indictment alleged tha t , soon after the search warrants were exe

cuted, the Roses transferred at least $190,000 in DOL payments out of various FWR bank accounts. The same day (July 11, 2013), they deposited that sum into a bank account held by “ Reaching Out 2 Youth Corporation ” ( “ RO2Y ” ) , an account the Roses controlled. T he Roses then met at a b ank in Houston and withdrew the $190,000 from the RO2Y account via a cashier ’ s check for $700,000. Mrs. Rose signed the withdrawal slip. The payee was Pure Vanity, and the remitter wa s “ Glamor by Design, Inc. ” Mrs. Rose owned both of those corporations

. The next day, July 12, the Roses allegedly opened a new bank account in Pure Vanity’s name and deposited the $700,000 check into it

. Finally, three days later, the Roses transferred a t least $130,000 out of the Pure Vanity account back into various FWR accounts. John Cruise testified that Mrs. Rose told him that she moved the funds around to hide them from the government

.
2

. To prove an 18 U.S.C. § 1956(h) conspiracy to launder money , the gov

ern ment must show that (1) “ there was an agreement between two or more persons to commit money laundering [ , ] ” 20 and (2) “ that the defendant joined the agreement knowing its purpose and with the intent to further the illegal purpose.” Alaniz , 726 F.3d at 601. Rose stresses that there was no evidence that she had the intent to further the unlawful purpose of any agreement . But she does not contest the evidence that the money transfers described above occurred. Nor does she contest t hat the money was proceeds of unlawful

20 Money laundering generally requires that the defendant have engaged in a trans

action with property he knew was derived from illegal proceeds. See 18 U.S.C. § 1957(a)

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21 activity. And she acknowledges Cruise’s testimony that her goal was to hide the money from the government. Yet that testimony is powerful indication that she knew about , and intended to further, an agreement to laun der crim

in ally derived property

. Rose also urges that there was no evidence that she was party to an illicit agreement with her husband to launder money

. But again, plenty of evidence suggests otherwise. The grand jury alleged that Mrs. and Mr. Rose ac ted together in transferring the funds around, and John Cruise testified to the same. “[Mrs. Rose] told me to meet them, her and [ Mr. ] Rose, at the

. . . bank where we did our business,” he stated, and “I was told that they were going to pull the money out of the business banking accounts

. ” That testimony was more than enough to establish that Mr. and Mrs. Rose had agreed with each other to launder money. See Frydenlund , 990 F.2d at 825 (noting that agreements may be inferred from concert of actio n).
D. Mrs. Rose’s final sufficiency challenge is to her Count 25 conviction of substantive money laundering and aiding and abetting in violation of 18 U.S.C. § § 1957(a) and 2. We affirm. Mrs. Rose’s money

- laundering troubles followed her even after the i nitial bank transfers. The grand jury alleged that almost a year later , the Roses withdrew about $27,000 from the Pure Vanity account to buy a cashier’s check payable to Fort Bend Title. The Pure Vanity account, of course, had been opened around the time of the Roses’ post

- warrant flurry of money transfers. The cashier’s check was then used to purchase a plot of land in Texas. The check’s acquisition was the basis for the Count 25 money

- laundering charge. To convict of money laundering under 18 U.S.C. § 1957(a) , the Case: 17-20492 Document: 00515327502 Page: 21 Date Filed: 03/02/2020No. 17

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22 government must prove that “(1) property valued at more than $10,000 that was derived from a specified unlawful activity, (2) the defendant’s engagement in a financial transaction with the property, and (3) the defendant’s knowledge that the property was derived from unlawful activity.” Martinez , 921 F.3d at 476. Rose challenges only the third element, maintaining that she didn’t know the funds used to buy the cashier’s check were criminally derived. S he relies

on United States v. French , 748 F.3d 922 (9th Cir. 2014). The conviction was sound. There is more than enough evidence that Mrs. Rose knew the funds were derived from unlawful activity . She opened the Pure Vanity account around the time of the search warrants and deposited the $70 0,000 in laundered funds into it, all as part of her scheme to “hide” the money from the government. T he withdrawal described in this count came from that tainted Pure Vanity account. French is unavailing

. There, the Ninth Circuit reversed the defendant’s two

- count conviction of money laundering. See French , 748 F.3d at 936

– 37. The first count was reversed because there was no evidence that the defendant had purchased the relevant vehicle

— instead, the defe ndant’s husband had done so without her knowledge. Id. at 936. The second count met a similar fate , because the illicit money had been transferred into a bank account over which the defendant had no control, and there was no evidence that the defen

dant knew of the transfer. Id. at 93 6

– 3 7. Unlike the situation in French , how

ever, there is plenty of evidence that Mrs. Rose knew the money used to purchase the check was derived from unlawful activity, and she controlled all the accounts involved in this s cheme.
III. M OTION FOR M ISTRIAL Defendants urge that the district court should’ve declared a mistrial. They take issue with a n unusual string of events that led Judge Werlein to Case: 17-20492 Document: 00515327502 Page: 22 Date Filed: 03/02/2020No. 17

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23 invite a recalcitrant witness to his chambers for a meeting

. We affirm.
A.

’ Twas the middle of trial testimony on Thursday, September 22, 2016. The government wanted to call Blanca Ramirez, a former FWR technician. But before Ramirez testified, Judge Werlein had the attorneys approach the bench. The judge informed the defense t hat “[l]ast evening after recess, the govern

ment” had notified the court’s case manager that it had a witness

— Ramirez

— who “sounded like becoming defiant.” Ramirez had complained that “she had been here all day yesterday to testify” and had threatened not “ to come back on her subpoena

. ” “Rather than come into court to make a big deal over it,” Judge Werlein invited Ramirez to his chambers. The prosecutors were present at the meeting but did not say anything. The judge discussed Ramirez’s obliga

tion to testify, given that she was under subpoena. “She was tearful at first” and “was frustrated,” Judge Wer lein explained. He reminded her that “[i]t would be ugly if” she didn’t testify and was instead subjected to a bench war

rant. Finally, Ramirez quit h er resistance

. After being notified, defense coun

sel did not object. Ramirez proceeded to testify for the rest of the day. Trial resumed the following Monday, four days later. But before Ramirez retook the stand, Mr. Rose’ s counsel approached the bench and objected “ to improper ex parte communication ” under Federal Rule of Criminal Procedure 43

. On that basis, he moved for a mistrial or to strike Ramirez’s testimony. Multiple times h e clarified that he had no quarrel with how Judge Werlein had handled the situation

. Instead, he contested the government ’ s failure to loop in defense counsel when the bench warrant was requested

. The prosecutor explained in response that the government had sought an after

- hours bench warrant when it learned that Ramirez w anted to go on vacation to Florida instead of testifying. Judge Werlein confirmed the Case: 17-20492 Document: 00515327502 Page: 23 Date Filed: 03/02/2020No. 17

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24 prosecutor’s account, explaining that Ramirez was only tired of waiting to testify. Judge Werlein thought that, before initiating the messy process of issuing and enforcing a bench warrant , it would’ve been easier to speak with Ramirez in hopes she’d have a change of heart

. Judge Werlein carried the mistrial motion , and Ramirez resumed her testimony . Later in the day, all four defendants moved in writing for a mis

trial

. They contended only that the government’s ex parte communications “rela tive to [its] witness” violated Rule 43. Without citation, they asserted that the district court’s local rules had been violated because the government hadn’t first consulted defense counsel before requesting a warrant. Judge Werlein denied the motion. He noted that he had spoken ex parte with a witness, not the jury , which would’ve been a more serious situation. Fur ther, the government’s ex parte request for a warrant didn’ t concern the case’s merits. Instead, it was an emergency measure necessary to secure tes

timony from a witness under subpoena. Finally, the judge noted that when he had first brought the matter up, “[n]o one objected at the time. And then there

was a w hole three days[’] waiting period before three of the defendants did

cross - examination, and still no one asked her anything about it. It was a nonevent.” Rose and Sanders now contend that Judge Werlein erred in refus

ing to declare a mistrial.
B. We usually review a denial of a motion for a mistrial for abuse of dis

cretion. See Velasquez , 881 F.3d at 343. But w he re counsel does not object contem pora neously to the actions that form the basis for the mistrial motion, plain error review follows. 21 Such a requirement gives the district court the

21 See United States v. Harms , 442 F.3d 367, 378 (5th Cir. 2006) (applying plain error Case: 17-20492 Document: 00515327502 Page: 24 Date Filed: 03/02/2020No. 17

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25 chance to fix the mistake or take measures to reduce any prejudicial effect. See Puckett v. United States , 556 U.S. 129, 134 (2009). Rose and Sanders failed to comply with that requirement, so w e review only for plain error

. 22 No one objected when Judge Werlein first informed defense counsel that he’d spoken with Ramirez. Ramirez testified for the rest of the day, and counsel never cross

- examined her about the encounter. It wasn’t until four d ays later that counsel for Mrs. Rose and Sanders moved for a mistrial. By waiting so long to raise their objection, the lawyers robbed Judge Werlein of any opportunity to reduce the prejudice. 23 Moreover, plain error applies when “the basis for [the defen dant’s] objec

tion during trial is different from the theory [s ] he

. . . raises on appeal.” United States v. Green , 324 F.3d 375, 381 (5th Cir. 2003). Repeatedly, Mr. Rose’s counsel told Judge Werlein that he had no issue with how the judge had han

dled the situation. And the later

- submitted written motion sang the same tune, complain ing only of the prosecution’s actions. Now, Rose and Sanders assert

— rather darkly

— that Judge Werlein implicitly coerced Ramirez into

review to denial of mistrial because “ Harms objected to the remark after the conclusion of closing argument and out of the jury ’ s presence ” ); United States v. Caucci , 635 F.2d 441, 448 (5th Cir. Unit B Jan. 1981) ( applying plain error “[b] ecause Caucci ’ s motion for a mistrial was not made until after the conclusion of the summation and because he failed to object to the prosecutor ’ s comments when made ” ); see also United States v. Pena , 71 F. App ’ x 367, 368 (5th Cir. 2003) (per curiam) ( “ Because Pena failed to timely object to the admission of the evidence upon which his motion for mistrial is based, we review this issue only for plain error. ” )

. 22 See U nited States v. Roberts , 913 F.2d 211, 216 (5th Cir. 1990) (establishing that plain error review can apply when a party fails to object to ex parte communications).

23 Of course, neither Rose nor Sanders had a chance to object when Judge Werlein invited Ram irez into chambers, because they didn’t know it was happening. Perhaps for that reason, Rose contends that she raised the objection at a practicable time. But defendants’ silence when Judge Werlein first brought the matter up still requires plain error r eview. See Pena , 71 F. App ’ x at 368 . If defense counsel had objected at that time, Judge Werlein could have considered various mechanisms to reduce the prejudicial effect. But because defendants failed timely to object, the error was sown into the recor d when Ramirez started testifying. See Puckett , 556 U.S. at 134

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26 testifying favorably for the government. Plain error review applies. Naturally, the first prong of plain

- error analysis is the requirement of an erro r. United States v. Daniel , 933 F.3d 370, 382 (5th Cir. 2019) . There is none.
C. At the district court, the defendants relied only on Federal Rule of Criminal Procedure 43 in requesting a mistrial

. 24 That rule provides that “ the defendant must be present at

. . . every trial stage. ” F ED

. R. C RIM

. P. 43 (a) (2). The rule does not, however, require the defendant’s presence when “ [t]he pro

ceeding involves only a conference or hearing on a question of law. ” F ED

. R. C RIM

. P. 43(b)(3). Citing that latter prov ision, t he government contends that neither its request for a bench warrant nor Judge Werlein ’s and the prosecu

tion’s subsequent meeting with Ramirez were subject to Rule 43 because they involved only a conference on a legal question.
We agree with the go vernment . In United States v. Cornett , 195 F.3d 776, 781 (5th Cir. 1999), we concluded that a hearing about possible juror misconduct involved a question of law and hence didn’t trigger Rule 43

. 25 If a hearing about a juror’s misconduct presents a question of law, see Cornett , 195 F.3d at 781, then so too does a conference about a witness’s misconduct. There is no reason to treat the two situations differently in this regard

. The government’s last

- minute motion, and the judge and government’s meeting with Ramirez, were “ an efficient way to assess the extent of any [witness]

24 They’ve also maintained that the government violated a district court rule in failing to keep them in the loop. At no point, however, have they identified the rule. Nor have they explained why it could serve as a basis for a mis trial. Their contention is therefore waived as inadequately briefed. E.g. , United States v. Davis , 603 F.3d 303, 307 n.5 (5th Cir. 2010).

25 See also United States v. Peterson , 385 F.3d 127, 138 (2d Cir. 2004) (holding that the question

- of

- law exception applied to a judge’s private conversation with a juror about jury misconduct). Case: 17-20492 Document: 00515327502 Page: 26 Date Filed: 03/02/2020No. 17

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27 misconduct and formulate an appropriate response. ” Peterson , 385 F.3d at 138. Thus, at the first step of the plain error analysis, the district court did n’t err. See Daniel , 933 F.3d at 382

. D. Rose and Sanders rely on United States v. U.S. Gypsum Co ., 438 U.S. 422 (1978) , and United States v. Stratton , 649 F.2d 1066 (5th Cir. Unit A July 1981) , in contending that the court erred in inviting Ramirez to chambers. 26 D efendants seem to think that Gypsum and Stratton prove a violation of their due process right of presence

. Plain error review applies , because defendants never told the court that they objected to how it had handled the odd situation. Regar dless, neither case is apropos . Both involved more serious and more prejudicial ex parte communications. Gypsum , 438 U.S. at 462 , dealt with what was effectively an ex parte supplemental instruction to the jury. And Stratton , 649 F.2d at 1081 , concerned a novel severance procedure that basi

cally prevented the defendant from being present at the guilt phase of his own trial. This case, by stark contrast, involve s a sensible attempt by a longtime dis trict judge to reason with a witness who threatened to hike off early to vacation. Gypsum and Stratton are seated in a different ballpark. Moreover, a criminal defendant has a due

- process right to be present at

26 Indeed, Rose and Sanders accuse Judge Werlein of coerc ing Ramirez into testifying favorably for the government . That is a serious accusation seriously lacking in evidentiary support. Judge Werlein explained that Ramirez wasn’t gen er ally unwilling to testify

. She did not, for example, fear retribution for her testimony. Instead, she wanted to head off for vacation. There is no support for the charge that the judge somehow dictated the contents of Ramirez’s testimony or encouraged her to testify in a way that pleased the prosecution. In response, Rose complains that she can’t verify wh at Ramirez’s reason for hesitating was , because counsel wasn’t a part of the meeting and a transcript wasn’t created. Yet despite ample opportunity, Rose’s lawyer failed to cros s - examine Ramirez about the encoun

ter. Rose cannot complain that she had no way of knowing. Case: 17-20492 Document: 00515327502 Page: 27 Date Filed: 03/02/2020No. 17

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28 a proceeding only where his presence might affect “ his opportunity to defend against the charge” or “thwart[]” the possibility of “a fair and just hearing.” 27 Here, neither defendant’s presence would have made any difference. Ramirez was going to testify one way or another

— either voluntarily on her subpoena or involuntarily under a bench warr ant. Defendants had no right or ability to prevent Ramirez from taking the stand, so they “could have done nothing had they been at the conference, nor would they have gained anything by attend

ing.” Gagnon , 470 U.S. at 527. “ There is nothing [defendant s] could [have] do [ne] if [they] were there, and almost nothing [they] could [have] gain [ed]

. ” Snyder , 291 U.S. at 108.
IV. C RIMINAL F ORFEITURE Mrs. Rose was ordered to forfeit six properties after a forfeiture jury trial. She contends that the government failed to prove the required statutory nexus for the forfeitures. We affirm

. A. The s econd s uperseding i ndictment notified the Roses that the govern

ment sought forfeiture of (a) At least $8,925,388.00. (b) A 1.02 6 acre lot in Fort Bend County, Texas, owned by the Roses. (c) $63,309.61 seized from a BWR bank account. (d) $90,392.46 seized from a FWR bank account. (e) $41,397.37 seized from a FWRN bank account. (f) $25,707.93 seized from a TWR bank account. (g) An annuity contract held by the Roses.

27 United States v. Gagnon , 470 U.S. 522, 526 (1985) (per curiam) ; see also Snyder v. Massachusetts , 291 U.S. 97, 108 (1934) (holding that defendant had no right of presence at jury’s viewing of the crime scene because he couldn’t have gained anything from being there) , overruled in unrelated part by Malloy v. Hogan , 378 U.S. 1 (1964)

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29 The Roses asked to retain the same jury to decide the forfeiture, so the district court presided over a forfeiture jury trial. See F ED

. R. C RIM

. P. 32.2(b)(5)(A) (per mitting guilt

- phase jury to decide criminal forfeitu re). At that trial, Spe

cial Agent Lucy Tan testified about her review of the bank accounts , annuity, and plot of land. She stated that the overwhelming majority of the funds

— at least ninety percent , usually more

— in each of the accounts came from DOL
pay ments

. Using the first

- in

- first

- out (“FIFO”) accounting method, Tan also traced the real property back to federal money. Despite not taking the stand during the guilt phase, Mrs. Rose testified. She contended that some of the money in the accounts , and t he money used to purchase the land , came from non

- DOL sources, such as personal

- injury patients or other lines of business. She also claimed that her tax records sug

gested the government had incorrectly estimated the amount of DOL revenue. The jury determined that the bank accounts, annuity, and real property were forfeitable. 28 The first two were traceable to the conspiracy to commit health care fraud charged in Cou nt 1. 29 And the real property was both trace

able to the Count 1 conspiracy and involved in the Count 25 money laundering offense. The forfeitures w ere finalized at sentencing

. B. We review the jury’s verdict regarding criminal forfeiture for sufficiency of the evidence. 30 C riminal forfeiture “ is an aspect of punishment ” and hence

28 The jury did n’ t determine, and Rose does n’t contest , item (a) . T he district court later ordered a money judgment of $14,537,548.54.

29 For the accounts, the jury found that the entire listed amounts were forfeitable. But for the annuity, the jury found that $98,601.47 of the $100,000 used to pu rchase it was criminal proceeds.

30 See United States v. Vogel , 459 F. App’x 439, 442 (5th Cir. 2012) (“[A] rational jury could have concluded there was a preponderance of evidence that all prescriptions issued by Case: 17-20492 Document: 00515327502 Page: 29 Date Filed: 03/02/2020No. 17

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30 “ an aspect of sentencing. ” Id. (quotation marks removed)

. District courts must order the forfeiture of property connected to health care fraud and money laun

der ing. See 18 U.S.C. § 982. “[S]tatutorily

- prescribed forfeiture is warranted upon a showing of a preponderance of the evidence.” United States v. Gasa

nova , 332 F.3d 297, 301 (5th Cir. 2003). Where the government wants to forfeit “ specific property, the court must de termine whether the government has established the requisite nexus be

tween the property and the offense. ” F ED

. R. C RIM

. P. 32.2(b)(1)(A). The gov

ernment seeks forfeiture of Mrs. Rose’s properties under two nexus theor ies. The first is 18 U.S.C. § 982 (a)(7), which states that “ [t]he court, in impos ing sentence on a person convicted of a F ederal health care offense, shall order the person to forfeit property, real or personal, that constitutes or is derived, dir

ectly or indirectly, from gross proceeds traceable to the commission of the offense. ” The second is § 982(a)(1) , which mandates that “[t] he court, in imposing sentence on a person convicted of [money laundering]

. . . , shall order that the person forfeit

. . . any property, real or personal, i nvolved in such offense, or any property traceable to such property .”
In United States v. Ayika , 837 F.3d 460, 468 (5th Cir. 2016) , we con fronted criminal forfeiture in the health care fraud context. The defendant ran a pharmacy and was convicted of health care fraud in connection with false claims for benefits. Id. at 463

– 64. The district court ordered for feiture of several assets, incl uding funds in the pharmacy’s main bank account. Id. at 468

– 69. The defendant contended , as Rose does , t hat some of the funds deposited into that account over its life came from legitimate sources such as lawful billings, thus precluding for feiture

. Id

. at 470.

MPC were invalid, so all of its $26.3 milli on in revenue was subject to forfeiture.”) ; see also United States v. Betancourt , 422 F.3d 240, 252 (5th Cir. 2005)

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31 Applying § 982(a)(7)

— one of the provisions at issue here

— we held that the government hadn’t shown that the funds in the account were directly or indirectly derived from the health care fraud. Id. at 474. We noted that it’s difficult “ to determi ne the exact source of any specific dollar or dollars” where “legitimate money and illegitimate money are placed in the same account, and various withdrawals and other deposits occur over time.” Id. at 472. In light of that difficulty, we interpreted the “requirements of tracing under § 982(a)(7)

. . . to be demanding for establishing forfeiture.” Id. at 474. And because the government conceded that only about thirty

- four percent of the funds deposited into the account were proceeds of the health care f raud, id. at 471 n.17, the seized funds were not traceable to th at offense , i d. at 474. Rose suggests that her case is similar, inasmuch as some of the accounts had non

- federal money at the time of the seizures.
C. First, we analyze the forfeitures of the a nnuity and the amounts in the bank accounts. Rose maintains that this case is like Ayika , but there are s ali

ent differences. Most importantly, in Ayika the government conceded that only about a third of the money placed in the account over its lifetime was proceeds of the health care fraud

. Ayika , 837 F.3d at 471 n.17, 474. By con trast, here the government persuasively contends that there was a “mountain of evidence that every claim filed by FWR wa s fraudulent in multiple ways”

— in that billed services often weren’t necessary or provided one

- on - one by a licensed profes

sional, among other things. Sister circuits applying other provisions have upheld forfeiture where there’s evidence of pervasive il legality at the institution, such that the “fraud Case: 17-20492 Document: 00515327502 Page: 31 Date Filed: 03/02/2020No. 17

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32 touched everything

. ” 31 FWR is one such institution, because there is no evi

dence that any OWCP billing it ever made was legitimate. 32 Instead, the evidence suggested that each claim was fraudulent in at le ast one and often multiple ways. Rose’s strongest response is her point that some of FWR’s earnings

— and hence the money in the bank accounts

— came from non - DOL sources, such as personal

- injury patients. Hence, she continues, some of the seized funds may

no t have been tainted. But t hose other funds do not invalidate the forfeiture. Tan testified , without rebuttal , that at least ninety percent of the clinics’

revenues came from DOL, which leav es only de minimis non - DOL revenue in the accounts

. 33 And even that de minimis non - federal money is traceable to the fraud. That is because, in a company with such widespread deceit as FWR, a jury could have believed that FWR couldn’t have existed absent the fraud. The government’s burde n was only to show that the seized money “consti

tute[d]

. . . gross proceeds trace able to the commission of the offense.” 18 U.S.C. § 982(a)(7) (emphasis added). If the business couldn’t have existed absent the fraud, then even the non

- DOL revenue trac es to it. 34

31 United States v. Smith , 749 F.3d 465, 488 (6th Cir. 2014) ( affirming criminal forfeit

ture of two checks drawn from a company’s accounts, because the company “was used as a vehicle to commit fraud” and the “fraud touched everything”); see United States v. Warshak , 631 F.3d 266, 332

– 33 (6th Cir. 2010) ( affirming criminal forfeiture of compan y’s revenues, because “the entire operation was permeated with fraud,” and any “legitimate” sales also indirectly derived from the conspiracy, since the company “would have been unable to con

duct” those sales if the scheme “had never been implemented”)

. 32 See United States v. Bogdanov , 863 F.3d 630, 634 (7th Cir. 2017) (“[Defendant] mar

shaled no evidence showing that any of the alleged goods in question were obtained legiti

mately

. . . .”).

33 See United States v. $448,342.85 , 969 F.2d 474, 477 (7th Cir. 1 992) (“Even if the fraud stopped at the end of 1988, the criminal proceeds vastly exceed the sums on deposit at the time of the seizure.”).

34 See United States v. Juluke , 426 F.3d 323, 327 (5th Cir. 2005) (per curiam) ( drug case ) (agreeing with the distric t court’s reasoning, in affirming forfeiture, that even if “some Case: 17-20492 Document: 00515327502 Page: 32 Date Filed: 03/02/2020No. 17

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33 Rose misfires in suggesting that it was problematic that Tan couldn’t say exactly how each individual dollar in the accounts was fraudulently derived. The government’s burden was to show a nexus to the conspiracy , not the speci

fic form that t he fraud took with respect to every billing FWR ever submitted. See 18 U.S.C. § 982(a)(7) . In sum, the government proved the requisite nexus between the bank account and annuity forfeitures and the Count 1 conspiracy conviction.
D. Rose maintains that there was no link between the forfeited real prop

erty and her offenses. The jury found that the real property was forfeitable on two theories: (1) T he check used to purchase it was connected to the Count 1 conspiracy , and (2) the land was involved in the Count 25 money laundering. We need not review the parties’ extensive briefing on the first theory, because the second one is easily met. Mrs. Rose’s purchase of a cashier’s check, which was used to buy the real property, was the basis for her Count 25 m oney laundering conviction. The land is therefore “involved in” that offense. 18 U.S.C. § 982(a)(1). AFFIRMED.

of the money in the account could have come from legitimate sources,

. . . any legitimate income in the account served to facilitate Juluke’s illegal activity”) ; United States v. Hoffman

Vail e , 568 F.3d 1335, 1344 (11th Cir. 2009) (“The amounts that [defendant] received from private insurance companies and patients are gross proceeds traceable to the commission of her fraud because, but for her Medicare fraud, she would not have been entitled to collect these sums from the companies and patients.” (quotation marks removed)) ; Warshak , 631 F.3d at 332

– 33 (“[A]ny sales post

- dating the bank

- fraud counts were proceeds resulting indirectly from fraud, as [the company] would have been unable to conduct credit

- card trans

actions if the [fraud] scheme had never been implemented.”). Case: 17-20492 Document: 00515327502 Page: 33 Date Filed: 03/02/2020