US v. Wijegoonaratna, No. 17-50255 (4-26-19)(Gould w/Nguyen & Owens).  The 9th affirms convictions on health care fraud.  The defendant—a doctor—referred patients to hospice when they were not terminal.**  The defense was that the doctor was lazy in negligently relying on nurse assessments but did not intentionally defraud Medicare.  The jury convicted on seven separate counts (significance will be discussed below).

On appeal, the 9th found no error in the prosecutor’s closing.  The prosecutor argued that the defendant’s history and notes were copied by the intake staff.  This was a reasonable inference.

In sentencing, the 9th found no merit in procedural and loss objections.  However, the 9th vacated the sentence in part because of an ex post facto error.  The prosecutor charged seven separate counts of healthcare fraud.  Each count is treated separately.  The prosecutor could have charged it as a continuing offense; they did not.  As such, most counts were under the 2010 guidelines and one count under the 2016.  The court used the 2016 guidelines for all the counts, which was an ex post facto violation, even under plain error review. As the 9th observed, there are consequences for separately charging counts.

**

Cf. Monty Python and the Holy Grail (1975)(Bring Out Your Dead):

Dead Collector: Bring out yer dead!

[A large man appears with a (seemingly) dead man over his shoulder]

Large Man: Here's one.

Dead Collector: Nine pence.

"Dead" Man: I'm not dead.

Dead Collector: What?

Large Man: Nothing. [hands the collector his money] Here's your nine pence.

"Dead" Man: I'm not dead!

Dead Collector: 'Ere, he says he's not dead.

Large Man: Yes he is.

"Dead" Man: I'm not.

Dead Collector: He isn't.

Large Man: Well, he will be soon, he's very ill.

"Dead" Man: I'm getting better.

Large Man: No you're not, you'll be stone dead in a moment.

Dead Collector: Well, I can't take him like that. It's against regulations.

"Dead" Man: I don't want to go on the cart.

Large Man:' Oh, don't be such a baby.

Dead Collector: I can't take him.

"Dead" Man: I feel fine.

Large Man: Oh, do me a favor.

Dead Collector: I can't.

Large Man: Well, can you hang around for a couple of minutes? He won't be long.

Dead Collector: I promised I'd be at the Robinsons'. They've lost nine today.

Large Man: Well, when's your next round?

Dead Collector: Thursday.

"Dead" Man: I think I'll go for a walk.

Large Man: You're not fooling anyone, you know. Isn't there anything you could do?

"Dead" Man: I feel happy. I feel happy.

[The collector paces for an idea, then whacks the body with his club, solving the problem]

Large Man: Ah, thank you very much.

Dead Collector: Not at all. See you on Thursday.

Large Man: Right

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/04/26/17-50255.pdf