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United States v. Choiniere

February 28, 2008

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
BRUNO CHOINIERE, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 05 CR 56-Allen Sharp, Judge.

The opinion of the court was delivered by: Williams, Circuit Judge.

ARGUED MAY 31, 2007

Before POSNER, KANNE, and WILLIAMS, Circuit Judges.

Chiropractor Bruno Choiniere developed what he terms a back "brace" and the government deems a back "belt," and he billed Medicare, Medicaid, and private insurance companies over $1000 each time he prescribed it. The government maintained it was worth about $50, and a jury convicted Choiniere of health care fraud, fraudulent concealment of health care benefits, and money laundering. On appeal, Choiniere argues that the district court committed reversible error when it refused to give two of the proposed intent to defraud jury instructions that he tendered. Because the instructions the jury received already conveyed the theories in Choiniere's proposed instructions, and the failure to give the instructions did not deny him a fair trial, we find no error in the decision not to give the jury the two instructions. We also affirm the sentencing enhancement Choiniere received for using minors in furtherance of his scheme, as the district court was entitled to credit the testimony of the minors' mother and grandmother that Choiniere had solicited the minors' assistance. Therefore, as we discuss in more detail below, we affirm the judgment of the district court.

I. BACKGROUND

Choiniere, a native of Quebec, worked as a chiropractor in Canada for seven years. In 1999, he moved to South Bend, Indiana, obtained his Indiana chiropractor's license, and began working at his brother's chiropractic clinic. Choiniere left his brother's clinic in late 2002 and started practicing at an alternative health clinic in South Bend.

After hearing patients' complaints of back braces that were too rigid, Choiniere developed his own back belt, one primarily made of leather, a few strips of thin plastic, and velcro. Choiniere also developed a neck pillow and a back pillow made of fabric and batting. Choiniere began dispensing the belt and pillows to patients at the clinic who complained of back pain. In early 2003, Choiniere submitted a $49.95 bill to Medicare for the neck pillow, but Medicare refused to pay it. Choiniere soon began to bill Medicare and Indiana Medicaid $1040 for his back belt, submitting it under the code for a "custom-fitted lumbral sacral orthosis." Later that year, he started billing $1370 for the same belt. To do so, he submitted the bills under a different code, now representing that his belt was a "custom-fabricated molded-to-patient lumbar-sacral support."

A Medicare coding expert, a neurosurgeon, a certified orthotist, and two chiropractors, however, all testified at trial that the belt did not fall within either category. The belt was neither custom fabricated nor molded to patients; instead, it was manufactured in mass quantities and standardized sizes. In addition, the belt did not immobilize the lumbar-sacral region of the spine. The witnesses said that at best, the belt was a prefabricated lumbar support, similar to a weightlifting belt, that should have been billed for less than $50 if actually dispensed.

Choiniere eventually left the health clinic and went out on his own. From 2003 through 2005, he traveled throughout Indiana and Michigan and held what he termed "back pain relief clinics." Choiniere targeted persons who were elderly, low-income, or had disabilities to attend his "clinics," where the preferred method of treatment was Choiniere's back belt. He performed only very cursory physical examinations, or sometimes none at all, and little or no health history was taken. In less than two years, Choiniere billed Medicare, Indiana Medicaid, and private insurance companies approximately $2 million for the back belt he had developed. He was paid more than $1.5 million.

Choiniere offered patients free food at many of the clinics and sometimes a free short massage from a massage therapist. Some clinic attendees also testified that they had received free neck and back pillows. Paul Pasman and Sandra Simmons-Bauman assisted Choiniere at the clinics.

They worked on commission and received between $75 and $140 per belt sold.

A jury convicted Choiniere of health care billing fraud, money laundering, and fraudulent concealment of over-payment of health care benefits. At sentencing, the district court imposed a two-level enhancement for using minors to further his scheme. Two witnesses had testified that Choiniere offered free movie tickets to two children, aged seven and eleven, in exchange for their help in passing out fliers advertising a clinic. The district court credited this testimony when it imposed the enhancement. Choiniere received a sentence of 151 months' imprisonment, followed by two years of supervised release. The district court also ordered him to pay $1,580,582 in restitution. He now appeals.

II. ANALYSIS

A. Proposed Jury ...


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