and Submitted February 5, 2019 Pasadena, California
from the United States District Court for the Central
District of California S. James Otero, District Judge,
Presiding D.C. No. 2:14-cr-00512-SJO-VAP-3
D. Bell (argued), Anya J. Goldstein, and Reuven L. Cohen,
Cohen Williams LLP, Los Angeles, California, for
M. Arkow (argued), Assistant United States Attorney; Lawrence
S. Middleton, Chief, Criminal Division; Nicola T. Hanna,
United States Attorney, Los Angeles, California; for
Before: Ronald M. Gould, Jacqueline H. Nguyen, and John B.
Owens, Circuit Judges.
panel affirmed a conviction for seven counts of health care
fraud, affirmed in part and vacated in part the sentence, and
remanded, in a case in which the defendant, a physician, and
others affiliated with California Hospice Care fraudulently
billed Medicare and Medi-Cal for hospice care given to
patients who had been falsely certified as terminally ill.
the conviction, the panel held that the district court did
not err in overruling the defendant's objection to the
prosecutor's statement during closing argument that
office staff who completed a patient intake form copied the
panel rejected the defendant's contention that the
district court, at sentencing, did not make Fed. R. Crim. P.
32's required factual findings on a disputed loss
panel held that sufficient evidence supports the district
court's finding that the defendant intended the loss
amounts underlying his sentencing enhancements.
panel held that the district court did not plainly err in
applying an enhancement pursuant to 18 U.S.C. § 3147 and
U.S.S.G. § 3C1.3 for committing a crime while on
supervised release, where the defendant - whose counts of
conviction concerned conduct before he went on pretrial
release - continued the same course of conduct after his
pretrial release began.
de novo, the panel held that because the government charged
the defendant with multiple counts rather than a single
continuing offense, the district court violated the ex post
facto clause by sentencing him under the 2016 Sentencing
Guidelines Manual on the six counts arising from conduct that
occurred before the Guidelines Manual revision.
Sri Wijegoonaratna appeals his jury conviction and sentence
for seven counts of health care fraud in violation of 18
U.S.C. § 1347. We affirm Wijegoonaratna's
conviction, and we affirm in part and vacate and remand in
part his sentence.
care is designed for patients with terminal illnesses who
choose to forgo active treatment of their terminal condition
and instead receive palliative care, including pain relief
and family bereavement services. Hospice care may be provided
in the patient's home or in a facility such as a nursing
eligible Medicare beneficiaries, Medicare pays around
$200-250 per day for hospice care. To be eligible, a patient
must be certified as terminally ill by two licensed
physicians. "Terminally ill" means that the
patient's prognosis is less than six months if the
disease runs its normal course. The two licensed physicians
are typically the hospice medical director or staff physician
and the patient's attending physician. Patients are
initially certified for ninety days of service. If a patient
requires hospice care beyond those ninety days, the patient
can be recertified for an additional period. Recertification
requires just one physician.
85% of hospice patients die in hospice care (the remaining
15% end hospice care alive). Patients receive hospice care
for an average of sixty-six days, but about half receive
hospice care for fewer than twenty days before dying.
Villabroza acquired California Hospice Care ("CHC")
in 2008. Sharon Patrow, her daughter, handled business
operations; Erwin Castillo, a registered nurse, handled
medical matters. Dr. Violeta Atiga worked as the medical
admission at CHC required three documents: (1) a nursing
assessment, completed by a nurse during a visit; (2) a
history and physical, completed by a physician during a
visit; and (3) a patient intake form, completed by CHC office
staff. At trial, the parties disputed the order in which
these documents were completed. Once a patient's file was
complete, the patient's attending physician and Dr. Atiga
would certify that the patient was terminally ill.
to trial testimony, CHC's practice was to fraudulently
bill Medicare and Medi-Cal for hospice care given to patients
who had been falsely certified as terminally ill. CHC
illegally paid recruiters to refer patients to CHC. CHC also
falsified records and even paid some patients to be on
hospice. Although CHC certified its patients as terminally
ill, the majority of CHC patients did not die within six
months of admission.
filled several roles at CHC from November 2009 to May 2013.
For most CHC patients, Wijegoonaratna was the attending
physician-the physician who completed the "history and
physical," certified the patient as hospice-eligible
(along with Dr. Atiga), and remained responsible for the
patient's care. Wijegoonaratna also recruited around half
of CHC's patients, participated in team meetings, and
served as its associate medical director. He continued in
these roles even after he was indicted and placed on pretrial
release in a different criminal case. All ...