09-4088 U.S. v. Borrasi

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Medicare Fraud
Sufficiency of the evidence

Where a doctor received compensation in part for referring patients to the facility, the evidence was sufficient to support his conviction for Medicare fraud.

“We find the reasoning of the Third, Fifth, Ninth, and Tenth Circuits convincing, and we decline Borrasi’s invitation to create a circuit split. Nothing in the Medicare fraud statute implies that only the primary motivation of remuneration is to be considered in assessing Borrasi’s conduct. We join our sister circuits in holding that if part of the payment compensated past referrals or induced future referrals, that portion of the payment violates 42 U.S.C. § 1320a-7b(b)(1).”

“The district court’s instructions comported with this common-sense holding. The instruction tracked the language of § 1320a-7b(b)(1), combining it with a definition of remuneration. To convict Borrasi, the instruction required the jury to find—beyond a reasonable doubt—that some amount was paid not pursuant to a bona fide employment relationship. The trial court did not err in instructing the jury, and the government’s comments during its closing arguments did not entitle Borrasi to a curative instruction.

Because at least part of the payments to Borrasi was ‘intended to induce’ him to refer patients to Rock Creek, ‘the statute was violated, even if the payments were also intended to compensate for professional services.’ Greber, 760 F.2d at 72.”

Affirmed.

09-4088 U.S. v. Borrasi

Appeal from the United States District Court for the Northern District of Illinois, Hibbler, J., Kanne, J.

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