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United States v. Moshiri

United States Court of Appeals, Seventh Circuit

June 5, 2017

United States of America, Plaintiff-Appellee,
Shanin Moshiri, also known as Shawni Moshiri, Defendant-Appellant.

          Argued December 7, 2016

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 13 CR 312 - Matthew F. Kennelly, Judge.

          Before Wood, Chief Judge, Bauer, Circuit Judge, and Shadid, [*] District Judge.

          Bauer, Circuit Judge.

          On July 2, 2015, after a bench trial, Doctor Shanin Moshiri was convicted on one count of receiving illegal remuneration in exchange for referring patients to Sacred Heart Hospital in Chicago, Illinois, in violation of 42 U.S.C. § 1320a-7b(b) (Anti-Kickback Statute). On this appeal, Moshiri challenges the sufficiency of the government's evidence and the district court's admission of certain expert testimony. For the following reasons, we affirm the conviction.

         I. BACKGROUND

         On March 18, 2014, Moshiri was charged, along with ten other physicians and Sacred Heart administrators, with participating in a scheme by which Sacred Heart paid physicians for referring patients to Sacred Heart under the guise of teaching and personal services contracts. Moshiri requested a severance, waived his right to a jury trial, and proceeded to a bench trial, during which the following facts were established.

         Doctor William Noorlag was the director of the podiatry residency program at Sacred Heart from 1999 to 2010. At trial, Noorlag testified that in 2001, Edward Novak, the Hospital's owner and Chief Operating Officer, approached him expressing a desire to bring more podiatry patients to the Hospital. To that end, Novak said that he wanted to begin paying podiatrists pursuant to teaching contracts. It was Noorlag's understanding that the teaching contracts would provide a vehicle to pay physicians for patient referrals. At Novak's direction, Noorlag drafted the language to be used in these contracts.

         Between 2001 and 2005, Sacred Heart entered into teaching contracts with podiatrists Richard Weiss, Arshad Khan, and Lewis Carrozza. Each of those contracts contained nearly identical terms, based on the language Noorlag drafted. They provided that Sacred Heart would pay the physician $2, 000 per month for performing duties within the residency program, including teaching, performing administrative tasks, and conducting residency workshops. Noorlag testified that at this time, there were at least six other attending podiatrists who performed teaching duties at the Hospital without receiving any additional pay. He testified that the teaching contracts were unnecessary because physicians had always taught residents without such contracts.

         Moshiri's relationship with Sacred Heart began in November 2006, when he signed a teaching contract. He was to receive $2, 000 per month for performing duties similar to those required by the contracts with Weiss, Khan, and Carrozza. The contract also provided that Moshiri would serve as the Director of External Podiatric Office Rotations for the residency program. At this time, Carrozza's contract, which was still in effect, provided that he would serve in the same position. According to Noorlag, however, neither Moshiri nor Carrozza were considered to hold that title, and neither performed any of the related duties. Instead, Doctor David Finkelstein held the title of Director of External Rotations, performed the corresponding duties, and did not receive additional compensation from Sacred Heart for that work.

         In April 2008, Moshiri signed a new contract with the Hospital, pursuant to which he would receive $4, 000 per month for performing the same duties as those set forth in his 2006 contract. After signing this contract, Moshiri was receiving an annual salary of $48, 000, while Noorlag, the Director of the Residency Program, was receiving $40, 000.

          At trial, the government called Doctor Oleg Petrov to offer an expert opinion on the standards for teaching contracts in podiatric residency programs. Petrov was the Chair of the Counsel on Podiatric Medical Education (CPME), which oversees and certifies residency programs throughout the country and publishes standards and requirements for those programs. Petrov testified that he had conducted approximately 60 on-site evaluations of podiatric residency programs during his time with CPME. He testified that teaching stipends are uncommon for attending physicians associated with the residency programs, and that he had never heard of such a physician being paid as much as $2, 000 per month. According to Petrov, when physicians received teaching stipends, they were typically between $200 and $4, 000 per year, though he acknowledged that payments fluctuated based on geographical area.

         According to multiple witnesses, Moshiri did not perform the majority of his duties under the teaching contracts. He had little involvement in the administration of the residency program, did not conduct residency workshops, did not work with residents in the Hospital's clinic, and did not coordinate or supervise the residents' external rotations.

         In addition, records showed that Moshiri spent less time teaching and working with residents than many of the other podiatrists associated with the program. The program kept a log of the "didactic activities" physicians performed with residents. Between 2006 and 2013, there were over 1, 000 such activities logged, and only nine of those were attributed to Moshiri. During that same time, Moshiri worked with residents on podiatry cases just over three times per month on average, while eleven other physicians in the program averaged over ten cases per month with ...

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