MEMORANDUM AND ORDER
J. THOMAS MARTEN, District Judge.
Following an extensive trial, the jury found Caela M. White-Kinchion guilty of twelve counts of health care benefit fraud, in violation of 18 U.S.C. § 1347, as well conspiracy to commit health care fraud, in violation of 18 U.S.C. § 371. White-Kinchion served as the chief nurse for ProActive Health Services, an entity specializing in providing home nursing services to clients in the Wichita area.
The defendant has now moved for acquittal or, in the alternative, a new trial. (Dkt. 121). In addition, the defendant seeks leave under D.Kan.R. 47.1 to communicate with one of the dismissed alternate jurors. The court has reviewed the arguments of the parties, the evidence adduced at trial, and the relevant legal standards, and finds that the requested relief should be denied.
White-Kinchion does not discuss the relevant legal standards for motions for acquittal or new trial, and fails to demonstrate how the evidence was insufficient to support the verdict. She alleges, without any supporting analysis or elaboration, that the court erred in its conspiracy instructions and "[t]he evidence was insufficient to prove the government's case beyond a reasonable doubt." (Dkt. 121, at 5).
More specifically, White-Kinchion argues that the government did not prove a lack of medical necessity for services billed by ProActive, that the government failed to document its claim of "up coded charges" because "[t]he care plans certified by the physician provided for the appropriate codes as billed." ( Id. at 2). Because these plans were supported by documents (known as 485 Forms) which were doctor-approved, White-Kinchion argues, the government's case was fatally flawed.
White-Kinchion further alleges that she was not involved in Pro-Active's billing process, and that there was no evidence she was engaged in "any global conspiracy" involving Pro-Active's patients ( Id. at 3). She complains that nurse experts Lisa Landis, Tracey Wagner and Cheryl Scheol were allowed to testify, that the government was allowed to use a chart summarizing evidence while she was not, and that the court erred in allowing evidence relating to prior discipline against her by the Kansas Board of Nursing. Finally, she complains of the "frivolous and unprovable claims" advanced in the original Indictment, and that the court's restriction of argument to the issues framed by the Superseding Indictment "prejudiced her ability to proceed on her theory of the case; namely, that the government actually used the initial Indictment simply to pressure the defendant into making statements against the actual targets of the government's investigation. ( Id. at 1, 4-5).
In reviewing a motion for judgment of acquittal, the court views the evidence in the light most favorable to the government. United States v. Hughes, 191 F.3d 1317, 1321 (10th Cir.1999). The court must grant a motion for judgment of acquittal when the evidence is insufficient to sustain a conviction. Fed.R.Crim.P. 29(a). On the other hand, the court must uphold the jury's guilty verdict if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Haber, 251 F.3d 881, 887 (10th Cir.2001) (citation and quotation marks omitted) (emphasis in original). "The evidence necessary to support a verdict need not conclusively exclude every other reasonable hypothesis and need not negate all possibilities except guilt." United States v. Wood, 207 F.3d 1222, 1228 (10th Cir.2000) (citation and quotation marks omitted). Simply put, the court must "ask only whether, taking the evidence-both direct and circumstantial, together with the reasonable inferences to be drawn therefrom-in the light most favorable to the government, a reasonable jury could find [the defendant] guilty beyond a reasonable doubt.'" United States v. Vallejos, 421 F.3d 1119, 1122 (10th Cir.2005) (quoting United States v. Scull, 321 F.3d 1270, 1282 (10th Cir.2003)) (alterations added). If the government's proof meets this standard, the court must defer to the jury's verdict. Id.
Under Fed.R.Crim.Pr. 33, the court may grant a motion for new trail "if the interest of justice so requires." Such a motion is not regarded with favor and is granted with great caution. United States v. Herrera, 481 F.3d 1266, 1269-70 (10th Cir.2007); United States v. Trujillo, 136 F.3d 1388, 1394 (10th Cir.1998). The court may weigh the evidence and assess witness credibility. United States v. Quintanilla, 193 F.3d 1139, 1146 (10th Cir.1999) (citation omitted). The court should grant a motion for a new trial if, "after weighing the evidence and the credibility of the witnesses, the court determines that the verdict is contrary to the weight of the evidence such that a miscarriage of justice may have occurred.'" United States v. Gabaldon, 91 F.3d 91, 93-94 (10th Cir.1996) (quoting United States v. Evans, 42 F.3d 586, 593 (10th Cir.1994)).
The court accurately instructed the jury as to the elements of the conspiracy charge advanced in the Superseding Indictment. In addition, the jury's conspiracy verdict is supported by substantial and sufficient evidence. The jury heard evidence showing that Pro-Active's nurses or health aides frequently falsely billed Medicare for services which were not provided to clients. Several former Pro-Active nurses or aides testified that they falsified bills, and that White-Kinchion, the head nurse at Pro-Active, both knew of these false billings and indeed directed them. White-Kinchion directed these witnesses, if they could not locate the assigned Pro-Active patient, to avoid mentioning this in patient documents, as it might endanger the benefits flowing to Pro-Active. As one of the witnesses testified, when her medical notes indicated that one of her disturbed patients refused to answer the door, White-Kinchion told her to "write that damn note, " and thus to falsely to indicate that services were provided. Numerous witnesses, including Hobart Jordan, Michelle Levy, Tracy Queros, Rebecca Baca, and Trina Wilson testified that White-Kinchion, even if not technically a part of the Pro-Active billing process, nevertheless specifically directed and instructed the other nurses at Pro-Active in how to bill.
As the chief nurse at Pro-Active, White-Kinchion played an integral role in the conspiracy. She needed the subordinate nurses to carry out the scheme of false billings for missed visits, and the subordinate nurses depended on White-Kinchion to co-ordinate the visits and provide guidance. It was White-Kinchion who authorized the subordinate nurses to record falsely the "actual time" of their visits in sixteen-minute increments as a means of maximizing the compensation paid to Pro-Active. The evidence supported the jury's verdict on the conspiracy charge.
With respect to health care fraud charges (Counts 2-13), there was ample evidence to show that the defendant knowing and willfully participated in a scheme to defraud a health benefit program. The testimony of Jordan, Levy, Queros, Baca and Wilson supports the conclusion that White-Kinchion was in charge of Pro-Active's scheduling and gave instructions in the documentation and "mapping" of patient visits for billing purposes. The defendant played an essential and integral role in fraudulent billing. In addition to the testimony of the co-conspirator subordinate nurses, the jury heard evidence from specific clients, or their relatives, that Pro-Active's billings were false and fraudulent because the services were never provided. In some instances, the witnesses stated that they provided the services, such as insulin injections, claimed by Pro-Active. In other instances, the services simply could not have been provided because, at the "actual time" Pro-Active allegedly delivered its home nursing service, the client was in the hospital or incarcerated.
The defendant's request for new trial is also deficient. As noted earlier, the defendant argues that the government's case was defective. In advancing this argument, the defendant refers to her "earlier motion and memorandum on this issue filed prior to commencement of the trial, " and complains that "the government proceeded to present evidence on such matters without any justification to do so and contrary to the rights of the defendant." (Dkt. 121, at 2). That motion argued (a) that medicaid gave its prior authorization to these procedures, or the procedures were approved by doctors, (b) that all the actions were taken by ProActive employees other than her, (c) and that no expert has been presented who will testify that the services were not medically necessary.
The court will address below the substance of defendant's "medical necessity" argument, but notes here that the complaint of prejudice at the court's taking the motion under advisement is wholly without merit. The defendant's motion (Dkt. 108) was presented prior to trial only in the narrow sense that it was electronically submitted a few minutes before the first witness began to testify. It was submitted after the jury was empaneled and opening statements made. The motion sought either dismissal of "claims... based on the lack of medical necessity, " or alternatively an exclusion of evidence on the issue because of a supposed lack of expert testimony. To the extent defendant sought a dispositive resolution of the government's charges, the motion was premature and appropriately considered after the government had a chance to present its evidence. To the extent defendant sought exclusion of the government's evidence, it was essentially a motion in limine submitted over a week after the court-ordered deadline for such motions.
Finally, the defendant never sought any express ruling on the Motion to Dismiss or Exclude. To the contrary, when the defendant moved for acquittal at the conclusion of the government's evidence, counsel referenced the earlier Motion to Dismiss or Exclude, noting that "we are adopting that, that's part of our [current] motion." When the court indicated it would take the combined motion under ...