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United States v. Williams

United States District Court, N.D. Illinois, Eastern Division

October 31, 2016




         Sundae Williams was convicted, following a weeklong jury trial, of one count of conspiracy and seven counts of receiving payments for patient referrals in violation of the Anti-Kickback Statute, 42 U.S.C. § 1320a-7b. She was acquitted by the jury on one count of violating the Anti-Kickback Statute. Following the trial, Ms. Williams moved for a judgment of acquittal or a new trial on at least eleven different grounds. See Mot., ECF No. 59. Her challenges range from insufficiency of the evidence, to the Anti-Kickback Statute being void for vagueness, to various evidentiary objections and jury instructions that she contends were wrongly decided. None of these challenges are meritorious. For the reasons stated below, Ms. Williams' motion for acquittal or a new trial [59] is denied.


         Williams' trial began on August 22, 2016 and ended on August 30, 2016. During the trial, the government presented a large volume of records and documents found at Serenity Marketing, the home healthcare marketing company Williams owned and operated. These records included a number of checks from home healthcare agencies with memo lines referencing specific referred patients or numbers of patients, lists of patients marked as “done” or “paid, ” and various contracts with home healthcare agencies purporting to set fixed or hourly rates. The government also called several Serenity employees, federal agents who had conducted the investigation of Serenity's operations or interviewed Williams, Medicare contractor employees, and home healthcare executives who had been business partners of Williams. It also introduced a recording of a phone conversation Williams had with her nephew, a former employee. The evidence generally showed that Williams had relationships with a number of home healthcare agencies in which her firm would call individuals to inquire as to whether they were on Medicare and met certain other criteria. If so, they might qualify for home health services, and Williams would forward the patient's information to one of the home healthcare agencies that had hired her; those companies would then proceed to sign up those individuals for home healthcare services covered by Medicare. In exchange, the home healthcare agencies would send Williams a check, usually around $600 per patient, once each referred patient began receiving services covered by Medicare. Soliciting or receiving payments in exchange for referrals of Medicare patients is illegal under the Anti-Kickback Statute, 42 U.S.C. § 1320a-7(b)(1)(A). James Ademiju, who ran two of the home healthcare agencies to which Serenity referred patients, testified that he and Williams were aware of the requirements of the Anti-Kickback Statute during their relationship and conspired to avoid it. The evidence showed that Williams covered up the per-patient referral payments Serenity received by entering into contracts that included sham payment obligations tied to fixed monthly payments or hourly rates. Records revealed the simple code employed to conceal the scheme: Williams simply substituted 10 “marketing hours” for every patient referred.

         Williams testified in her own defense; she also called two former employees and a lawyer with whom she had spoken in March 2013 after her nephew and a client raised concerns regarding per patient payments. Williams maintained that she stopped charging on a per patient basis in 2013 when she learned doing so was illegal and that her invoices for marketing hours genuinely reflected an hourly compensation. One of the employees, Sherry Williams (Sundae Williams' sister), testified that in 2013 Williams held a meeting of all the Serenity managers and informed them that they would begin billing based on marketing hours. The other employee called by Williams, Rhonda Morris, did not remember any 2013 meeting about changes to billing. Neither Sherry Williams nor Morris knew how marketing hours were calculated despite being senior members of the management team. Sherry Williams also testified before the grand jury that she had been told by Sundae Williams that clients were billed based on marketing hours before the 2013 managers' meeting. The jury deliberated for less than a day before convicting Williams of the conspiracy count and seven of the eight Anti-Kickback statute violations charged. The jury acquitted Williams on Count Two, the one Anti-Kickback charge premised on conduct before 2013. As Williams challenges nearly every facet of the government's case, the facts presented at trial are described in more detail below.


         Williams moves for a judgment of acquittal under Federal Rule of Criminal Procedure 29 and a new trial under Rule 33 for almost every one of her challenges. She also claims to bring challenges under Federal Rule of Criminal Procedure 34, which dictates that the Court “must arrest judgment if the court does not have jurisdiction of the charged offense.” Fed. R. Crim. P. 34(a). However, Williams' submissions make no arguments that this Court lacks jurisdiction over the charged offense or that the indictment does not charge an offense. See United States v. Martel, 792 F.2d 630, 638 (7th Cir. 1986) (Rule 34 motion appropriate when the indictment did not charge an offense under the statute of conviction); United States v. Boender, 719 F.Supp.2d 951, 953 (N.D. Ill. 2010) (“the rule raises a pure question of law distinct from the evidence adduced at trial”). In fact, Williams' submissions do not even cite to Rule 34 after her initial introduction section, so the Court is unclear which arguments Williams intended this rule to apply to. Similarly, Williams contends that her motion is also pursuant to “the due process and indictment by grand jury clauses of the Fifth Amendment to the United States Constitution as well as the right to confront witnesses guaranteed by the 6th Amendment.” Mot. at 1. Neither of these clauses is mentioned again after her introductory paragraph. A court is “not obligated to guess at a party's meaning, ” so the Court does not entertain the Rule 34 or constitutional questions further beyond how they may relate to the substantive issues genuinely raised in Williams' briefing. Holman v. Indiana, 211 F.3d 399, 405 (7th Cir. 2000).

         Under Rule 29, the Court must “enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a). When a Rule 29 motion is entertained after the jury has convicted, “a defendant making a sufficiency of the evidence challenge bears a heavy burden and faces a nearly insurmountable hurdle.” United States v. Seawood, 172 F.3d 986, 988 (7th Cir. 1999). The question presented by such a motion is whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). Only if no rational trier of fact could have found the crime committed beyond a reasonable doubt can the motion be granted.

         Under Rule 33, a court “may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). Insufficient evidence to support a conviction is a circumstance in which justice would require granting a new trial. See United States v. Christ, 513 F.3d 762, 775 (7th Cir. 2008). Because the inquiries for a Rule 29 motion and a Rule 33 motion primarily overlap, at least where sufficiency of the evidence is concerned, Williams' challenges can be grouped into three rough categories: insufficiency of the evidence, void for vagueness, and trial procedural objections. Each of these categories of objections is addressed below.

         I. The Government's Evidence Was Sufficient on All Charges

         Williams makes three arguments regarding the sufficiency of the evidence presented against her at trial. First, she argues there was insufficient evidence that she violated the statute “willfully” as required by § 1320a-7(b)(1). Mot. at 2-3. Second, she argues she did not refer patients within the meaning of the statute. Id. at 3-5. Finally, she alleges the government failed to prove the existence of the conspiracy charged in the first count. Id. at 5-6. However, the evidence presented by the government was sufficient for a reasonable jury to find, beyond a reasonable doubt, that Williams conspired to, and did, refer patients to home healthcare agencies in exchange for per-patient payments and knew that in doing so she was violating the law.

         A. Evidence Sufficiently Supported Williams' Willfulness

         Under the Anti-Kickback Statute, a person must “knowingly and willfully solicit or receive” the kickback in order to violate the statute. 42 U.S.C. § 1320a-7(b)(1). The use of the term “willfully” in conjunction with the term “knowingly” means that “willfully” must mean “more than acting intentionally.” United States v. Wheeler, 540 F.3d 683, 690 (7th Cir. 2008). The statute clarifies that “a person need not have actual knowledge of this section or specific intent to commit a violation of this section.” 42 U.S.C. § 1320a-7(h). The Seventh Circuit has suggested that one way to give content to “willfully” is to require that “a defendant know that his conduct was in some way unlawful.” Wheeler, 540 F.3d at 690. The Supreme Court has indicated that in criminal contexts generally, the term “willfully” usually means that the act is done with a “bad purpose” or some knowledge that the conduct is unlawful. Bryan v. United States, 524 U.S. 184, 191 (1998).

         On a Rule 29 motion, a defendant “must show that after viewing the evidence in the light most favorable to the prosecution, no rational trier of fact could have found [her] guilty beyond a reasonable doubt.” United States v. Woods, 556 F.3d 616, 621 (7th Cir. 2009). Here, a plethora of evidence was presented from which a reasonable jury could infer that Williams was aware her conduct was in some way unlawful. Williams had signed contracts agreeing to comply with the Anti-Kickback Statute, which also set out a statute-compliant flat-fee or per-hour payment structures, years before the conduct for which she was convicted. FBI Special Agent Aaron Woodhill testified that Williams told him in an interview that she had been aware for five years that it was illegal to charge home healthcare providers on a per-patient basis. On an audio recording made shortly before her interview with Woodhill, Williams initially refused to discuss her payment structure on the phone with the caller, a former employee and her nephew. Williams stated that she couldn't talk about that over the ...

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