* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

April 11, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-11030

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSEPH R. KIRKHAM; JAMES MARK MURPHY,

Defendants-Appellants.

-------------------- Appeal from the United States District Court

for the Northern District of Texas

(4:02-CR-011-Y(03))

--------------------

Before REAVLEY, WIENER, and BENAVIDES, Circuit Judges.

WIENER, Circuit Judge: *

Defendant-appellants James Murphy, M.D., and Joseph Kirkham

(collectively, “defendants”) appeal their respective criminal

convictions for heal th care fraud under 18 U.S.C. §§ 1347 and 2.

They raised numerous challenges to their convictions and sentences,

several of which are grounded on their argument that the government

improperly indicted them by including only one count in its

indict m ent while listing several other discrete executions of

defendants’ alleged scheme to commit health care fraud as examples

rather than as separate counts. Although we conclude that the2 125 S.Ct. 738 (2005).

3 Whoever knowingly and willfully executes, or attempts to

execute, a scheme or artifice--

(1) to defraud any health care benefit program . . .

in connection with the delivery of or payment for health care

benefits, items, or services, shall be fined under this title or

imprisoned not more than 10 years, or both. . .

4 (a) Whoever commits an offense against the United States

or aids, abets, counsels, commands, induces or procures its

commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if

directly performed by him or another would be an offense against

the United States, is punishable as a principal.

2 government’s indictment was flawed

—— specifically, duplicitous

——

we hold that, because defendants experienced no prejudice as a

result of the duplicitous indictment or of any trial errors that

they asserted, their convictions should be affirmed. As for their

sentences, however, the Supreme Court’s recent decision in United

States v. Booker 2 requires us to hold that defendants’ Sixth

Amendment rights were violated by the district court’s calculation

of loss and concomitant sentencing un der the then-binding United

States Sentencing Guidelines. We therefore vacate defendants’

sentences and remand for re-sentencing.

I. FACTS AND PROCEEDINGS

In May 2003, a jury convicted Kirkham and Murphy of health

care fraud, in violation of 18 U.S.C. §§ 1347 3 and 2. 4 The threepage indict ment charged each defendant with only one count,

alleging that they had executed and attempted to execute a scheme

to defraud various health care be nefit plans from August 19965 Although he was indicted with Kirkham and Murphy,

Lostetter did not go to trial with them.

3 through the year 2000. In October 2003, the district court

sentenced Kirkham to 120 months of imprisonment and ordered him to

pay restitution of $2,751,270. Murphy was sentenced to 87 months

of imprisonment and ordered to pay restitution of $732,061.

A. The Indictment

The government indicted Kirkham, Murphy, and Alvin Lostetter,

M.D., on one count of executing or attempting to execute a scheme

to commit fraud on health care benefit programs. 5 P art A of the

indictment states the duration of the scheme, August 1996 - 2000,

its location, the defendants’ names, and the identities of several

heal th care benefit providers that defendants were charged with

defrauding. It goes on to describe the scheme as an effort to

“obtain by means of false and fraudulent pretenses,

representations, and promises, money owned by and under the custody

and control of health care benefit programs in connection with the

delivery of and payment for health care benefits, items, and

services.”

Part B of the indictment describes defendants’ scheme in

greater detail. It lists seven components of the scheme, including

creating phony medical business entities and names, billing under

the names of doctors who did not provide or supervise medical

services, recruiting patients with false representations, providing

false medical di agnoses, and using chiropractors and unlicensed4

personnel to recruit “patients” and render medical diagnoses and

treatment con sistent with the scheme and the amount of health

insurance carried by the patient, rather than according to the true

medical needs of the patient. Part B also states that the health

care benefit programs provided payments to defendants based on the

submission of false claims and diagnoses, and that defendants

received and shared these proceeds pursuant to their scheme.

Part C of the indictment lists 13 particular transactions

executed or attempted to be executed in perpetrating the scheme to

defraud. Each transaction listed included the date of the billing,

the name of the medical insurance provider, the doctor’s name under

which services were billed, and the name(s) of the patient(s).

Four of these transacti ons named Lostetter as the physician

providing services, one transaction named Kirkham and Lostetter as

physician providers, and eight transactions named Murphy. All 13

listed transactions took place after August 1996. The indictment

does not specify which of the individuall y listed transactions

would be used at trial to illustrate defendants’ execution of the

scheme.

B. Health Care Clinic and Gym Scheme

The government asserted at tr ial that, beginning in 1993,

Kirkham, along with several other individuals, conducted a

continuing scheme to defraud health care benefit programs through

their operation of health care clinics associated with gyms and5

health clubs; Murphy joined Kirkham in operating the scheme in

1997. Kirkham and Mark Darner, a chiropractor, operated the scheme

along with Murphy a nd other medical doctors, including Lostetter

and Victor McCall. Darner pleaded guilty to conspiracy to commit

mail fraud and testified about the health care fraud scheme at

Kirkham and Murphy’s trial.

Darner tes tified that he and Kirkham set up health care

clinics inside a number of health clubs of which they were majority

owners, and that they used the club sites to solicit and direct new

patients to the clinics. Murphy’s, Lostetter’s, and McCall’s names

were often used in billing insurers, said Darner, explaining that

insurers are more likely to reimburse and to pay a higher rate for

invoices submitted by doctors than those from chiro practors.

According to Darner, Kirkham was the CEO and principal operator of

the health clubs. He directed Darner regarding implementation of

the scheme.

Defendants implemented a standing procedure that required

each new fitness club member to be examined in the clinic. While

Murphy was associated with the clinics in 1997 and 1998, they

employed a written treatment protocol authored by Kirkham, Murphy,

and Darner. This protocol specified listed treatments to be given

to each new “ patient” or gym member at the five or six clinics

being operated at the time, with explicit i nstructions not to

modify treatment unless it was contraindicated. Clients were

assigned treatment classifications based on their insurance6

coverage. For the first visit of a member/client who had

insurance, th e protocol required a new patient exam, range of

motion analysis, scanning EMG, thermography, and radiographs

regardless w hether tests and these treatments were indicated as

required by the patient. The second automatic visit protocol

called for more e xtensive tests and treatment, including billing

for a number of other diagnostic tests.

Testifying at Kirkham and Murphy’s trial were (1) Darner, (2)

Victor McCall, another physician who participated in the scheme,

and (3) Charles Stafford, a staff chiropractor, as well as several

clinic “patients,” a medical transc riber, and an expert witness.

The witnesses who had participated in the scheme with defendants

described the nature of the scheme in detail, including the process

used for submitting the fraudulen t claims. The clinic’s clients

testified that, after joining the health club for fitness reasons,

they were told to go to the clinic for unwanted and unnecessary

medical exams. Several clients identified false listings of

symptoms and diagnoses in their files and confi rmed that claims

sent to their insurance companies were false.

The government also p r esented an expert witness, Charles

Crane, M.D., who testified that defendants’ billin g and testing

procedures were inappropriate and fraudulent. Eeletha Williams, a

medical transcriber who worked for Murphy from 1995 to 1999

testi fied that most of Murphy’s patient reports contained a note

stating that the billing had been dictated but not read by Murphy,7

even though Murphy had not dictated, reviewed, or provided any

information for the reports. She also stated that Murphy told her

on several occasions that the reports were too short and asked her

to generate more lengthy patient reports cont aining false

information.

C. Oxylab

Oxylab was another company of whi ch Murphy was medical

director. Karen Musch, an employee of Oxylab, pleaded guilty to

mail fraud and testified against Murphy. Musch testified that she

served as medical director of a f raudulent sleep apnea study

conducted by Oxy-Lab, and that Murphy participated in the study

during the time that he was active in the health club scheme with

Kirkham. Musch stated that Murphy never performed or read any

sleep apnea tests, yet he submitted insurance claims purporting to

bill providers for his services related to the study. Several

insurance billings listed in Part C of the indictment were claims

processed and paid by health care benefit programs for this sleep

apnea study.

II. ANALYSIS

A. Sufficiency of the Evidence

1. Standard of Review

We review challenges to sufficiency of the evidence by

examining whether, in the light most favorable to the government,

a rational jury could have found the essential elements of an6 United States v. Solis , 299 F.3d 420, 445 (5th Cir. 2002).

7 See 331 F.3d 439, 446 (5th Cir. 2003), on remand at 282

F. Supp. 2d 528 (S.D. Tex. 2003), affirmed by 374 F.3d 275 (5th

Cir. 2004), vacated and remanded for re-sentencing in accordance

with United States v. Booker , 125 S.Ct. 738 (2005), 125 S.Ct.

1043 (2005).

8 offense to be established beyond a reasonable doubt. 6

2. The Evidence

Defendants’ challenge to the sufficiency of the evidence

rests, in large part, on their assertion that the government’s onecount indictment against t hem was flawed. They contend that,

according to our decision in United States v. Hickman

, when

charging defend ants with violations of the health care fraud

statute, 18 U.S.C. § 1347 (“§ 1347"), the government is required to

charge each execution of their fraudulent scheme in a separate

count. 7 In this case, the government included a list of

“executions” in the one-count indictment but did not single out any

specific acts on which the jury must have agreed to convict.

Defendants contend that this is contrary to Hickman and, because of

t his defect in the indictment, the evidence was insufficient to

support their convictions. They insist that the government was

required to (1) list each execution of the scheme separately and

(2) prove the commission of each execution listed in the

indictment.

In addition to their Hickman argument, defendants assert that

their indictment was duplicitous, i.e., that it charged in a single8 See United States v. Baytank , 934 F.2d 599, 609 (5th Cir.

1991).

9 The defendants do not directly challenge the indictment

itself on appeal but argue only that, because the indictment was

duplicitous, this error contributed to other trial errors.

10 18 U.S.C. § 1344.

11 331 F.3d at 446 (citing United States v. Lemons , 941 F.2d

309 (5th Cir. 1991) for this interpretation of the bank fraud

statute).

9 count that which could have b een charged in separate counts. 8

Finally, defendants argue that, because several of the transactions

enumerated in Part C list Victor Lostetter as the physician who

provided the treatment, and the government did not produce evidence

to prove that these transactions were f raudulent, the government

did not meet its burden of proof with respect to these

transactions. W e address defendants’ challenge to their indictment

in some detail, as it reappears several times, underlying many of

the other challenges to their convictions and to their sentences. 9

First, defendants are mistaken in their assertion that Hickman

requires the government to charge health care fraud defendants for

each separate execution of their scheme to defraud health care

benefit providers. In H ickman

, we held that the health care fraud

statute, like the bank fraud statute, 10 criminalized executions of

schemes to defraud, in contrast to the mail and wire fraud

statutes, which permit t he government to charge a defendant for

each act in furtherance of a scheme to defraud. 11 We did n ot hold

that the government must charge defendants with each separate12 331 F.3d at 446 (“Of course, although the crime of health

care fraud is complete upon the execution of a scheme, any scheme

can be executed a number of times, and each execution may be

charged as a separate count.”)(emphasis added).

13 United States v. King , 200 F.3d 1207, 1212-13 (9th Cir.

1999)(rejecting a defendant’s due process and double jeopardy

challenges to a one-count indictment); United States v. Bruce , 89

F.3d 886, 889-90 (D.C. Cir. 1996)(holding that the government

need not indict a defendant on every execution of a bank fraud

scheme); United States v. Hammen , 977 F.2d 379, 383-84 (7th Cir.

1992)(upholding a one-count indictment despite allegations in the

indictment that could, if worded and structured differently, be

chargeable as individual counts).

10 execution of § 1347, stating instead that, as a health care fraud

may be executed several times, the government could charge each

execution in a separate count. 12 In essence, we sought to clarify

that the government may not indict defendants for violations of §

1347 without charging that they fully executed a scheme, as

distinguished from only committing overt acts in furtherance of its

execution.

Other circuits have encountered similar challenges to singlecount indictments brought under the ba nk fraud statute and have

agreed that, although the government may charge defendants for each

execution of the scheme, it is not required to do so. 13 The Seventh

Circuit’s reasoning, endorsed by the Ninth and D.C. Circuits,

explained that:

[F]or each count of conviction, there must be an

execution. However, the law does not require the

converse: each ex ecution need not give rise to a

charge in the indictment. The indictment in this case

sets forth the existence of the scheme and alleges the

scheme was executed on at least one occasion. The

allegations tending to demonstrate th e existence of14 Hammen , 977 F.2d at 383; see also King , 200 F.3d at 1213;

Bruce , 89 F.3d at 889-90.

15 See King , 200 F.3d at 1213; Bruce , 89 F.3d at 890;

Hammen , 977 F.2d at 384.

16 Id. , citing United States v. De La Mata , 266 F.3d 1275,

1287 (11th Cir. 2001).

11 the scheme do appear to be allegations that, if worded

and st ructured differently, might constitute

additional executions. This is hardly surprising; the

actions that tend to prove the existence of the scheme

will often be the actions actual ly taken to execute

the scheme. 14

Each court also emphasized, however, that to avoid duplicity, the

government must carefully craft its indictment to include only one

execution of a scheme in a count. 15

As the government was not required to ch arge Kirkham and

Murphy with each execution of the scheme, but instead could indict

them for the scheme by charging only one execution, we must

determine whether the government carefully crafted its indictment

to charge only one execution, and thereby av oid a duplicitous

indictment. We begin by defining “executions” of a scheme to

determine whether more than one is charged in a single-count.

In Hickman

, we described an “execution” under § 1347 in the

same m anner as an execution of § 1344, the bank fraud statute,

viz., that transactions with a common pu rpose but involving

separate and independent obligations to be truthful may constitute

separate executions. 16 The process of defining “execution of a

scheme” is a fact-intensive one in which we consider such factors17 Id. , citing De La Mata , 266 F.3d at 1288 (citations

omitted).

18 Id. at 441.

19 Id. We concluded that the other four factors were

unhelpful: The nature of the scheme was to submit false claims to

health insurers; the benefit was the money rendered by the

insurer to the defendant; financial gain was the ultimate goal;

and the defendant defrauded several parties, although she

primarily targeted Medicare and Medicaid. Id. at 446-47. These

factors are identical in the instant case, except that Kirkham

and Murphy targeted a wider variety of health care benefit

providers than had Hickman.

20 Id.

21 Id.

12 as (1) the ultimate goal of the scheme, (2) the nature of the

scheme, (3) the benefits intended, (4) the interdependence of the

acts, and (5) the number of parties involved. 17

In Hickman

, the defendant was accused of billing Medicare,

Medicaid, and a variety of private insurance companies in a series

of fraudulent transactions. 18 Applying the foregoing factors and

other prior interpretations of § 1344 (the bank fraud statute) to

§ 1347, we he ld the fourth factor, interdependence, to be

dispositive. 19 The defendant submitted each claim separately and,

with each submission, owed a new and independent obligation to be

truthful to the insurer. 20 Therefore, each claim submission was a

separate execution of the scheme. 21

The government indicted Kirkham and Murphy for virtually the

same conduct

—— submitting false claims to a variety of health

insurers

—— as that for which it had prosecuted the Hickman22 Ordinarily, the process of defining a scheme under the

health care fraud, or the bank fraud, statute, would be more

laborious. In this case, the facts are so similar to the facts

set forth in Hickman that we see no need to re-hash an

explanation of why the defendants’ conduct constituted executions

of the scheme in greater detail. See 331 F.3d at 446-47.

23 See Hammen , 977 F.2d at 383.

13 defendant. As in Hickman , these defendants submitted numerous

false claims to a variety of health insurers which were not

interdependent, with financial gain as defendants’ ultimate goal.

We conclude that, as in Hickman , each false claim submitted to an

insurer constituted an execution of Kirkham and Murphy’s scheme. 22

The indictment itself appears so to define the listed claims, as it

states that “[i]n execution and attempting to execute the scheme.

. . medical claims were submitted and caused to be submitted by the

defendants.

. .” before listing in Part C the separate claims

submitt ed by defendants. We are satisfied that Part C of the

indictment did ch arge defendants in one count with several

executions of their scheme when it listed 13 false claims submitted

without specifying which of these claims would be used at trial to

demonstrate that defendants executed their scheme.

Section 1347 does not criminalize the scheme alone

—— the

government must prove at least one execution of the scheme, and the

indi ctment should specify which execution of the scheme will be

used. 23 The indictment brought against Kirkham and Murphy lists 13

allegedly fraudulent claims without singling out one particular24 See Bruce , 89 F.3d at 890 (holding valid a one-count bank

fraud indictment listing acts taken in furtherance of the scheme

but that could have been charged separately as executions,

because the indictment specified one fraudulent transaction taken

“for the purpose of executing. . .”).

25 See id. ; Hammen , 977 F.2d at 383 (upholding one-count

indictment and noting that “the government has carefully crafted

the indictment to allege only one execution of an ongoing scheme

that was executed numerous times.”).

14 claim as the one for which liability will be imposed. 2 4 Had the

indictment listed several transactions as examples of executions of

the schemes but had also been “carefully crafted” to identify one

specific transaction that constituted execution of the scheme and

on which the jury must agree before convicting defendants, the

indictment would not have been duplicitous; however, it did not do

so. 25

Despite this flaw in the indictment, though, the government

adduced trial evidence sufficient to sustain defendants’

convictions. With respect to Murphy, in addition to evidence of

the broader fraudulent scheme, two of the patients listed in Part

C as “treated” by Murphy, Joyner and Hancock, testified at trial as

did Stafford, the chiropractor involved with their treatment. All

three confirmed that Murphy’s bil lings for services ostensibly

provided by him to these patients were fraudulent. As for the six

patients listed in Part C as receiving sleep apnea services billed

by Murphy as part of the OxyLab study, the government also produced

ample evidence of fraud. The patients’ testing and Medicare claim

records were introduced into evidence, and the director of OxyLab15

testing, Kar en Musch, testified as to Murphy’s negligible

involvement i n the study and in services for which fraudulent

claims were submitted to insurers. The government produced

sufficient evidence to support the jury’s verdict on every one of

the executions listed in Part C of the indictment as being

submitted by Murphy.

Substantial evidence also supported Kirkham’s conviction for

his role in this health care clinic scheme. Darner testified that

he and Kirkham originally set up the scheme and handled all billing

themselves. Darner also testified that he, Kirkham, and Murphy

conspired to commit health care fraud by fraudulently billing

insurance companies, and that Kirkham was the “main boss” of the

operation. And, McCall, a medical doctor, testified that he

participated in the scam with Kirkham and Darner after Murphy had

left the clinic. Even though the government included only one

execution of the scheme in which Kirkham was listed as the medical

provider and did not produce the named pa tient as a witness at

trial, the overwhelming evidence of Kirkham’s involvement with the

schem e and significant participation in the billing procedures

support a finding that he worked with Murphy to execute the scheme

on the other listed occasions.

The government need not prove all facts alleged in the

indictment as long as it proves the essential elements of the26 United States v. Robinson , 974 F.2d 575, 578 (5th Cir.

1992).

27 18 U.S.C. § 1347(1).

28 18 U.S.C. § 2.

29 See Griffin v. United States , 502 U.S. 46, 49, 58-59

(1991)(holding that, although petitioner was convicted of

conspiracy despite the government’s failure to present any

evidence linking the petitioner to one of the two illegal objects

of the conspiracy as stated in the indictment, this did not

require reversal of the jury’s verdict as there was evidentiary

support for the other object. Although reversal is appropriate

where a jury’s verdict may have rested on a legally inadequate

basis, such is not the case when one possible basis of conviction

was unsupported by sufficient evidence, as juries are perfectly

well equipped to evaluate the evidence).

16 crime. 26 In this case, the government was required to show that the

defendants: (1) knowingly and willfully (2) executed or attempted

to execute (3) a scheme or artifice (4) to defraud any health care

benefit program (5) in connection with the delivery of or payment

for health care benefits, items, or ser vices 2 7 ; or that they (a)

aided, abetted, counseled, commanded, induced or procured such an

offense or (b) willfully caused an act to be done which, if it had

been directly performed by the defend ant, would have constituted

such an offense. 28 Even if we assume that the government did not

adduce adequate evidence to support conviction for the claims

listing Lostetter as the physician provider, it presented ample

evidence to prove each element of the offense with respect to each

defendant. 29 For this reason we also reject defendants’ argument

that the government failed to meet its burden of proof with respect

to fraudulent transactions listed in the indictment that identified30 As we noted above, Lostetter was indicted with the

defendants but was not tried with them.

31 United States v. Monroe , 178 F.3d 304, 308 (5th Cir.

1999).

17 Lostetter as the treating physician. 30

In sum, even thou gh the indictment was flawed, making it

somewhat more diffi cult to ascertain for which of the executions

the jury convicted defendants, the government produced sufficient

evidence to support the jury’s finding that Murphy and Kirkham were

each responsible for at least one listed execution of the scheme.

We hold that the indictment’s flaw did not affect defen dants’

substantial rights and that the evidence was sufficient to support

the jury’s verdict beyond a reasonable doubt.

B. “Void for Vagueness” Statutory Challenge

1. Standard of Review

We review challenges to the constitutionality of a statute de

novo

. 31

2. Vagueness

Defendants charge that, under the circumstances of this case,

§ 1347 is “void for vagueness.” Their argument rests largely on

claimed deficiencies in the jury instru ctions and in the

indictment, which we discuss elsewhere in this opinion. Otherwise,

defendants contend that, be cause the statute does not define

“execution or attempt to execute” a health care fraud scheme, it

did not adequately put them on notice that their conduct could be32 Kolender v. Lawson , 461 U.S. 352, 357 (1983).

33 United States v. Gray , 96 F.3d 769, 776 (5th Cir. 1996).

34 United States v. Waymer , 55 F.3d 564, 568 (11th Cir.

1995)(holding that, as the bank fraud statute incorporates

specific intent as an element, the defendant’s vagueness

challenge to the statute must fail).

35 Screws v. United States , 325 U.S. 91, 102 (1945) (“But

where the punishment imposed is only for an act knowingly done

with the purpose of doing that which the statute prohibits, the

accused cannot be said to suffer from lack of warning or

knowledge that the act which he does is a violation of law. The

requirement that the act must be willful or purposeful may not

render certain, for all purposes, a statutory definition of the

crime which is in some respects uncertain. But it does relieve

the statute of the objection that it punishes without warning an

offense of which the accused was unaware.”).

18 illegal.

The Supreme Court requires that Congress define criminal

offenses with “sufficient defini teness that ordinary people can

understand what conduct is prohibited and in a manner that does not

encourage arbitrary and discriminatory enforcement.” 32 Each

vagueness challenge that does not involve First Amendment freedoms

must be examined in light of its individual facts and

circumstances. 33 A challenge that a statute is unconstitutional for

vagueness is closely related to an objection that a statute does

not require a showing of specific intent. 34 If a statute does

include “willfulness” or specific intent as an element, it will

normally not be so vague as to deprive a defendant of reasonable

notice that his conduct is proscribed. 35 Accordingly, we have

upheld the constitutionality, against vagueness challenges, of both36 Id.

, United States v. Daniels , 247 F.3d 598, 600 (5th

Cir. 2001). In Daniels , we concluded that there is nothing

“inherently vague in the notion of a general anti-fraud statute.”

Id.

19 the bankruptcy fraud statute and former 18 U.S.C. § 1346, the

general anti-fraud statute, because each requires the government to

prove specific intent to defraud —— as does § 1347. 36

Defendants do not contest that the jury was required to find

that they acted with specific intent to defraud a health care

benefit provider, or that the indictment adequately described the

overall scheme to defraud health care benefit providers. Although

the indictment it self may have been flawed, leaving defendants

somewhat unsure which of the 13 listed executions of the scheme the

government would attempt to prove at trial, neither the statute nor

the indictment left defendants guessing at what conduct the

government al leged was fraudulent, whom they defrauded, or how.

D efendants’ real objection appears to be the fact that the

indictment did not separately charge each execution of their scheme

to defraud health care benefit programs, which, as we observed

above, it was not required to do. Defendants do not advance that

they did not understand what it meant to execute the scheme to

defraud and therefore could not have intentiona lly violated the

statute. We hold that defendants’ vagueness challenge to the

constitutionality of the health care fraud statute fails.

C. Motion for Bill of Particulars

1. Standard of Review37 United States v. Lavergne , 805 F.2d 517, 520 (5th Cir.

1986).

38 United States v. Montemayor , 703 F.2d 109, 117 (5th Cir.

1983).

39 Lavergne , 805 F.2d at 521 (“The fact that the indictments

are only thus decipherable falls short of the precision desirable

in an indictment. But a finding that no bill of particulars was

needed also rests on the fact appellants have not made the

requisite showing of surprise. . .”).

20 W e review denial of a motion for a bill of particulars for

abuse of discretion. 37 Only defendant Murphy moved for a bill of

particulars, however, so our review as to defendant Kirkham is for

plain error.

2. Bill of Particulars

The purpose of a bill of particulars is to apprise a defendant

of the charges against him with enough detail to allow him to

prepare his defense. 38 A criminal defendant must demonstrate that

he was actually surprised at trial, and thereby prejudiced in his

substantial rights, before we will reverse a conviction based on a

district court’s denial of a motion for a bill of particulars. 39

As we concluded above, the indictment returned against Kirkham

and Murphy was duplicitous; nevertheless, it gave d efendants

adequate notice of the charges against them. The language of the

indictment clearly describes the essential elements of the crime

and charges that defendants “knowingly and willfully executed, and

attempted to execute, a scheme and artifice to defraud health care

benefit programs.

. .” This tracks the language of § 1347, which40 18 U.S.C. § 1347(1).

41 Five of these claims listed Lostetter as the doctor who

allegedly provided services to the patient; as noted infra

, Lostetter was originally indicted along with Kirkham and Murphy

but did not go to trial with them. Therefore, the government did

not present evidence as to these transactions.

21 states “whoever knowingly and willfully executes, or attempts to

execute, a scheme or artifice to defraud any health care benefit

program,” 40 and makes cle ar which subsection of the statute

defendants were being charged with violating. The indictment goes

on to name six insurance companies that def endants allegedly

defrauded, and, in seven paragraphs under Part B, the specific

scheme or artifice by which defendants allegedly defrauded them.

T he time frame of the scheme, August 1996 through 2000, is also

included. Part C of the indictment lists 13 allegedly fraudulent

medical claims, including d ates and the names of insurance

providers, doctors, and patients, submitted by defendants in their

execution of the scheme. 41 The government obviously provided enough

information to the defendants to give them notice of the charges

against them.

In any event, Murphy (and, for that matter, Kirkham ) was

neither surprised nor prejudiced at trial by the court’s failure to

grant his motion for a bill of particulars. The government

provided both defendants with voluminous discovery, including the

testimony and exhibits even tually introduced against them at42 See Lavergne , 805 F.2d at 521 (holding that defendants

had not been surprised or prejudiced by facts used to support the

government’s case because the government had made the evidence

used at trial available for inspection and copying by the

defendants’ attorneys or investigators).

43 United States v. Vasquez , 867 F.2d 872, 874 (5th Cir.

1989).

44 See United States v. Montemayor , 703 F.2d 109, 117 (5th

Cir. 1983).

45 United States v. Stouffer , 986 F.2d 916, 924 (5th Cir.

1993)(citing United States v. Liu , 960 F.2d 449, 452 (5th Cir.

1992). Defendants made a 404(b) challenge only to the admission

of the testimony of Lydia Roberts, a patient/client of the

clinic; the trial court also admitted testimony of other patients

and patient files not listed in the indictment, to which the

defendants did not object. Although review of this other

evidence should rightfully be for plain error, as we hold that

the court did not abuse its discretion with respect to admission

of any of the evidence at issue here, it obviously did not commit

plain error either.

22 trial. 42 Moreover, even if the indictment had not furnished

adequate information about the charges brought against defendants,

the government’s providing them with the necessary information in

another satisfactory form obviated the need f or a bill of

particulars. 43 We are convinced that defendants were not actually

taken by surprise at trial, so the trial court’s denial of the bill

of particulars did not prejudice them. 44

D. 404(b) Challenge

1. Standard of Review

We review challenges to the admission of evidence for abuse of

discretion. 45

2. Extrinsic Evidence of Bad Acts46 See United States v. Dula , 989 F.2d 772, 777 (5th Cir.

1993).

47 See id. at 777-78.

48 Id. See also Stouffer , 986 F.2d at 926 (“[E]vidence

relevant to establish the existence of a criminal enterprise is

not extrinsic to the crime charged.”); United States v. Lokey

, 945 F.2d 825, 834 (5th Cir. 1991)(holding evidence of similar

crimes committed outside the temporal scope and substantive

counts of the indictment admissible “because it was relevant to

establish how the conspiracy came about, how it was structured,

and how each appellant became a member”); United States v.

Nichols , 750 F.2d 1260, 1264-64 (5th Cir. 1985)(holding evidence

of defendant’s involvement in uncharged crimes admissible as it

was intrinsic to the government’s case in proving the existence

23 Defendants challenge the trial court’s admission of evidence

of fraudulent transactions that were not specified in the

indictment. They contend that these transactions constitute

evidence of extrinsic bad acts, requiring the trial court to weigh

the probative value of the evidence against unfair prejudice to the

defendants as a result of its admission. 46 Defendants argue further

that, as the government did not disclose its intention to introduce

this evidence at trial pursuant to defendants’ 404(b) motion to

disclose, they did not receive fair notice that such evidence would

be introduced against them at trial.

If the existence of a scheme to defraud is an element of the

offense, then acts and transactions const ituting a part of that

continuing offense are admissible as proof of the crimi nal

enterprise. 47 Evidence of an uncharged offense arising out of a

scheme or artifice to defraud is not “extrinsic” within the meaning

of 404(b) and thus not excludable on this ground. 48 The prosecutionof a conspiracy).

49 Id.

50 United States v. Hickman , 331 F.3d 439, 443 (5th Cir.

2003), on remand at 282 F. Supp. 2d 528 (S.D. Tex. 2003),

affirmed by 374 F.3d 275 (5th Cir. 2004), vacated and remanded

for re-sentencing in accordance with United States v. Booker , 125

S.Ct. 738 (2005), 125 S.Ct. 1043 (2005). Defendants charge that

to challenge the instructions would have been futile and refer us

to United States v. Velarde-Gomez , 224 F.3d 1062, 1074 (9th Cir.

2000), in which the Ninth Circuit allowed a “pointless formality”

exception to the requirement for formal objections to jury

instructions. This decision was vacated by an en banc re24 may offer evidence of any surrounding c ircumstances that are

relevant to prove intent or motive with respect to the fraudulent

scheme. 49

All the evide nce challenged by Murphy and Kirkham concerned

other transactions that tended to show the existence of the

continuing scheme to defraud insurers. The evidence introduced by

the government was undeniably relevant to proving defen d ants’

intent or motive with respect to the fraudulent scheme. Most

telling is the fact that defendants did receive fair notice of this

evidence, as the government either produced or allowed defendants

access to all of it well in advance of trial. The district court

did not abuse its discretion in admitting this evidence.

E. Jury Instructions

1. Standard of Review

Appellants did not challenge the jury instructions at trial or

proffer any alternative instructions of their own. We therefore

review their complaints about the instruction for plain error. 50hearing, 269 F.3d 1023 (9th Cir. 2001). The Ninth Circuit’s

rule, established by other cases, requires that a defendant offer

an alternative instruction, which the defendants in this case do

not claim to have done. See United States v. Kessi , 868 F.2d

1097, 1102 (9th Cir. 1989).

51 See United States v. Baytank , 934 F.2d 599, 609 (5th

Cir. 1991) (“[T]he complaint comes down to whether the jury

instructions were sufficient, as it is clear that this aspect of

a duplicity problem can be cured by appropriate special

25 2. Contested Jury Instructions

Defendants contest the trial court’s instruction to the jury

that it was not necessary for the government to prove “all the

details alleged in the indictment concerning the precise nature and

purpose of the alleged scheme.” They take issue as well with the

court’s instruction that “it must b e proven beyond a reasonable

doubt that the defendants knowingly devised or intended to devise

a scheme substantially similar to tha t charged in the indictment

and that they e xecuted or attempted to execute the same.” These

instructions, defendants argue, may have caused them to b e found

guilty of uncharged conduct or may have resulted in a non-unanimous

verdict.

The government respon ds first by pointing out that the

instructions at issue required the jury to convict only for conduct

charged in the indictment. It acknowledges, however, that the

indictment charged multiple executions of a scheme in but a single

count, and that this potentially posed a danger of a non-unanimous

verdict. Conceding that a special unanimity instruction would have

avoided this claimed problem with the indictment, 51 the governmentinstructions which . . . inform the jury that it must unanimously

agree on the specific basis . . . on which it finds the defendant

guilty”)(emphasis in original).

52 345 F.3d 320, 336 (5th Cir. 2003).

26 nevertheless contends that the court’s general unanimity

instruction (“Your verdict must be unanimous as to each defendant

named in the indictment.”) was sufficient. Citing our decision in

United States v. Tucker

, the government goes on to argue that,

absent evidence to the contrary, a cour t has no reason to assume

that a verdict is not unanimous. 52

The government argues further that defendants have produced no

e vidence that they were prejudiced. The key issue at trial was

whether defendants’ business was a fraudulent scheme under § 1347.

As there is no question that, if the business was fraudulent,

defendants executed the fraud numerous times, argues the

governm ent, there is little danger that the jury convicted

defendants non-unanimously.

Although the indictment was duplicitous and d id create the

potential risk of a non-unanimous verdict, the district court

instructed the jury that it must find that defendants had executed

or attempted to execute the fraudulent scheme. As we noted above

in our di scussion of defendants’ challenge to the sufficiency of

the evidence, there was ample evidence supporting the government’s

charges as to several of the executions of the scheme listed in the

indictment, and there is no real danger that the jury did not agree53 See

, e.g.

, Baytank , 934 F.2d at 610 (holding no plain

error where court did not give special unanimity instruction on

single count, duplicitous indictment); United States v. RazoLeora , 961 F.2d 1140, 1146-47 (5th Cir. 1992) (finding no plain

error despite trial court’s failure to give special unanimity

instruction on duplicitous indictment).

54 United States v. Richards , 204 F.3d 177, 197 n.6 (5th

Cir. 2000).

27 that defendants had executed the scheme. Even if the district

court might have erred in not giving a special unanimity

instruction to cure the defect in the indictment, such omission did

not prejudice defendants. 53

F. Ex Post Facto Conduct

1. Standard of Review

Defendants did not raise this argument before the district

court. We therefore review it for plain error. 54

2. Conduct Predating the Statute of Conviction

Defendants argue that, by presenting evidence of their conduct

that took place prior to the August 1996 effective date of § 1347,

the governmen t violated the Constitution’s E x Post Facto clause.

In response the government emphasizes that (1) the indictment

specified that the criminal scheme extended from August 1996 until

2000, (2) the only executions listed in the indictment took place

after August 1996, and (3) the district court instructed the jury

that it must find a scheme or p lan to defraud “substantially the

same as the one alleged in the indictment.” Although the

government did adduce evidence relating to pre-enactment conduct,55 Hickman , 331 F.3d at 445.

56 331 F.3d at 447.

57 Id. at 447.

58 United States v. Duncan , 42 F.3d 97, 104 (2d Cir. 1994);

United States v. Garfinkel , 29 F.3d 1253, 1259-60 (8th Cir.

1994). See also Hammen , 977 F.3d at 385.

28 this evidence demonstrated the existence of a continuing offense

and, as it was not listed in the indictme nt, could not have been

the conduct for which the jury convicted defendants.

A law violate s the Ex Post Facto clause if it punishes acts

that, when committed, were not criminal. 55 In H ickman

, we held

invalid the defendant’s conviction on three specific counts under

§ 1347 for viol ation of the E x Post Facto clause. 56 Although we

n oted that a scheme to commit health care fraud is a conti nuing

offense, we found that these three counts charged behavior that had

been fully execute d before the effective date of the statute. 5 7

With respect to con tinuing offenses in general, however, the

Ex Post Facto clause is not violated by application of a statute to

a continuing scheme that began before the effective date of a

statute but continued thereafter. 58

Unlike the Hickman indictment, the one-count indictment

against Kirkham and Murphy did no t charge them on or list any

indi vidual counts or executions of transactions that were fully

executed before the effective date of the statute. In fact, all of

the executions listed in the indictment involved transactions that59 See United States v. Todd , 735 F.2d 146, 150 (5th Cir.

1984)(holding that evidence of conduct occurring prior to

enactment of criminal statute did not violate ex post facto

clause because the indictment for conspiracy included only two

overt acts that occurred prior to the effective date of the

statute and most —— but not all —— of the evidence presented at

trial focused on events that took place after the effective

date.) In Todd we also relied on the fact that, as in the

instant case, the record clearly established violations of the

relevant statute after its effective date. Id.

29 took place well after August 1996, and each “patient” who testified

at trial was billed after 1998. There is no danger that defendants

were convicted on the basis of their pre-enactment behavior. 59 We

hold that, as no Ex Post Facto violation occurred, the trial court

did not err by admitting the evidence in question.

G. Calculating the Amount of Loss

Defendants also challenge the district court’s sentencing

c alculation of the amount of loss caused by their fraudulent

activity. To avoid an E x Post Facto violation at sentencing, both

defendants were sentenced under the 2000 edition of the United

States Sentencing Guidelines (“U.S.S.G.”). The court calculated a

base offense level of six for a violation of § 1347 under former

U.S.S.G. § 2F1.1(a) and adopted the intended-loss figures reported

in defendants’ Presentence Investigation Reports (PSR) in applying

offense level enhancements under § 2F1.1.

Kirkham’s PSR r eported an intended loss of $6,654,634,

resulting in a 14-level enhancemen t under § 2F1.1(b)(1)(O);

Murphy’s PSR reported an intended loss of $ 1,709,826, resulting in

a 12-level enhancement under § 2F1.1(b)(1)(M). For its calculation60 125 S.Ct. 738, 750-51 (2005).

61 See 125 S.Ct. at 751, 769 (upholding circuit court’s

holding that, as the district court had applied the Guidelines as

written and imposed a sentence higher than the maximum authorized

solely by the jury’s verdict, based on its finding that the

defendant had possessed 566 grams of cocaine in addition to the

50 grams found by the jury, the defendant’s Sixth Amendment

rights had been violated).

30 of restitution, the district court adopted the actual loss amounts

stated in defendants’ respective PSRs, resulting in a restitution

order of $2,751,270 for Kirkham and $732,061 for Murphy. Although

the district court computed defendants’ sentences by including

various other enhancements and adjustments, on appeal they

challenge only the calculation of loss, intended and actual.

The Suprem e Court’s recent decision in U nited States v.

Booker makes clear that imposition of a sentence based on facts

found by the sentencing judge rather than by a jury or a confessing

defendant, under a mandatory sentencing guidelines regime, violates

a defendant’s Sixth Amendment rights. 60 Under B ooker

, defendants

clearly experienced such a violation of their constitutional rights

when the trial court included in its loss calculations amounts not

admitted by defendants or proved to the jury beyond a reasonable

doubt. 61 We recently held, in U nited States v. Mares , that when a

defendant has preserved his Sixth Amendment/ Booker objection in the

district court by an objection to his sentencing, we will

ordinarily vacate and remand, unless we can say that the error is

harmless under Rule 52(a) of the Federal Rules of Cri minal62 No. 03-21035, 2005 U.S. App. LEXIS 3653, at *24 n.9 (5th

Cir. Mar. 4, 2005).

63 124 S.Ct. 2531 (2004).

31 Procedure. 62 Although neither B ooker n or its earlier stateGuidelines analog, Blakely v. Washington

, 63 had been decided at the

time of defendants’ sentencing hearings, we hold

—— and the

government concedes

——that objections made by defendants at their

sentencing hearings were sufficient to invoke their Sixth Amendment

rights to the extent necessary to preserve their Booker objections.

We hold further that defendants have preserved this argument on

appeal, as they briefed their challenge to the district court’s

calculation of loss using amounts not found by a jury, specifically

citing Blakely in their reply briefs that were filed with us after

Blakely was decided but before Booker

.

Defendant Kirkham objected to the cour t’s calculations by

arguing that “[t]he loss, if any, must be proved in Court. The

government never attempted to prove any dollar loss in this case.

Therefore, any loss attributable to Kirkham must be restricted to

that alleged in the indictment.” Murphy made a similar objection

to the court’s ca lculations, stating that he objected “to the

method of computing [his] punishment and fine or restitution

without determining which scheme or attempted schemes were actually

found by the jury to be execu ted.” He went on to insist that he

“may be punished only f or conduct found by the jury to be

fraudulent on the allegations in paragraph C in the indictment. .64 See, e.g., United States v. Dowling , No. 04-10464, 2005

U.S. App. LEXIS 4725 at *7 - 13 (11th Cir. Mar. 23, 2005)(holding

that, in order to preserve a Booker objection, a defendant must

make a “constitutional” objection at sentencing, which may

include citing Apprendi , the Sixth Amendment, or the defendant’s

right to have facts found by a jury instead of a judge); United

States v. Selwyn , 398 F.3d 1064, 1066-67 (8th Cir. 2005)(holding

that defendant had preserved his Sixth Amendment challenge to his

sentence by objecting to drug quantity findings at his sentencing

hearing); United States v. Fox , 396 F.3d 1018, 1027 (8th Cir.

2005)(finding that defendant had preserved his Sixth Amendment

Booker objection to drug quantity finding by objecting to PSR’s

recommendation that he be found responsible for a greater

quantity of methamphetamine than that for which the jury had

convicted him). We requested supplemental briefing from both

parties after publication of the Court’s Booker decision and we

note that the government also concedes that the defendants have

preserved their Booker objections.

65 2005 U.S. App. LEXIS 3653 at *24 n.9. We note, however,

that the Court’s Booker opinion appears to suggest that we engage

in a harmless error analysis only in cases not involving a Sixth

Amendment violation. See 125 S.Ct. at 769 (“[I]n cases not

involving a Sixth Amendment violation , whether resentencing is

32 . .” Even though neither defendant expressly cited A pprendi

,

Blakely

, or the Sixth Amendment in his objections at his sentencing

hearing, we hold that the above-quoted language, challenging the

district court’s sentencing based on facts

—— the quantum of actual

or intended loss

—— not found by a jury was sufficient to inform

the district court that defendants objected to their sentences

under the Sixth Amendment. They thereby preserved their B ooker

objections to the district court’s calculation of loss. 64

As we stated in Mares

, we will ordinarily vacate a defendant’s

sentence when he has preserved an objection to a Booker Sixth

Amendment violation and we find the violation not to be harmless

error. 65 Rule 52(a) of the Federal Rules of Criminal Procedurewarranted or whether it will instead be sufficient to review a

sentence for reasonableness may depend upon application of the

harmless-error doctrine.”)(emphasis added). In cases involving

particular constitutional violations, the Court has held that

these defects “infect the entire trial process” and by their

nature “necessarily render a trial fundamentally unfair,”

therefore obviating the need, once such a constitutional

violation has been identified, for further analysis before

reversing a defendant’s sentence. Neder v. United States , 527

U.S. 1, 8 (1999)(listing such errors as complete denial of

counsel, trial before a biased judge, racial discrimination in

selection of grand jury, denial of public trial, and defective

reasonable-doubt instruction as errors requiring reversal of a

defendant’s conviction because of their inherent harmfulness).

As the government does not argue that the trial court’s error was

harmless in this case, however, we decline to speculate whether

such an analysis would be necessary under these circumstances.

66 Neder , 527 U.S. at 15; United States v. Olano , 507 U.S.

725, 734 (1993)(noting that, unlike harmless error analysis, in

which the government bears the burden of showing no prejudice to

the defendant’s rights, plain error analysis places this burden

on the defendant); United States v. Wheeler , 322 F.3d 823, 828

(5th Cir. 2003)(“Unlike the harmless error analysis, it is the

defendant rather than the Government who bears the burden of

persuasion with respect to prejudice.”)(citing Olano , 507 U.S. at

734); United States v. Tello , 9 F.3d 1119, 1131 (5th Cir.

1993)(stating that, as the party seeking to preserve the

defendant’s sentence under harmless error analysis, the

government bears the burden of persuading the court that the

district court would have imposed an identical sentence absent an

33 provides that a harmless error is “any error, defect, irregularity

or variance that does not affect substantial rights” and such error

“must be disregarded.” W hen harm is in question, we must determine

whether such an error is harmless beyond a reasonable doubt before

we will vacate a defendant’s sentence; unlike plain error analysis,

the government, not the defendant, bears the burden of persuading

us that an error did not affect the defendant’s substantial

rights. 66erroneous application of the guidelines).

67 See United States v. Rogers , 126 F.3d 655, 661 (5th Cir.

1997)(“The misapplication of a guideline is harmless error if the

district court would have imposed the same sentence even in the

absence of the error. . . The question is not whether the

district court could have chosen the same sentence, but whether

it would have chosen that sentence.”)(emphasis in original).

34 The government does not argue in this case that the district

court’s employment of the Sentencing Guid elines as mandatory did

not affect defendants’ substantial rights; rather, the government

agrees that we must vacate defendants’ sentences and remand for resentencing. We glean no indication from the record on appeal that

the mandatory nature of the Guidelines and the facts found by the

court rather than by the jury did not affect the length o f

defendants’ sentences. 67 We therefore vacate their sentences and

remand for re-sentencing.

III. CONCLUSION

Although the defendants’ indictment was technically

duplicitous, they waived this argument by not raising it before

trial, and they have not suffered substantial prejudice to their

rights as a result of the flawed indictment. Defendants have not

shown that the district court erred or, if it did, that the error

affected their substantial rights with respect to any of their

other challenge s to their conviction. We therefore affirm

defendants’ convictions.

Not so for their sentences. As defendants preserved their

objections to the district court’s calculation of loss under the35

sentencing guidelines, and the dist r ict court’s use of facts that

were neither admitted by the defendants nor found by the jury in

d etermining defendants’ sentences under the mandatory sentencing

guidelines violated def e ndants’ Sixth Amendment rights, their

substantial rights were affected as a matter of law. We therefore

vacate defendants’ sentences and remand this case to the district

court for re-sentencing.

C ONVICTIONS AFFIRMED; SENTENCES VACATED AND CASE REMANDED FOR RESENTENCING.