United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM OPINION AND ORDER
WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE
September 27, 2017, a jury found Cauthon guilty on four
counts of health care fraud, in violation of 18 U.S.C.
§§ 1347 and 2, and not guilty on three counts of
health care fraud. (Doc. No. 147.) Cauthon was found guilty
of falsely submitting claims to his billing company, which
then submitted those false claims to the insurance companies,
for performing two nail avulsions on Larry Short, one on
Delores Via, and one on Cleo Merriwether, when in fact he did
not perform those nail avulsions. Before the Court is
Defendant's Motion for Judgment of Acquittal and for New
Trial. (Doc. No. 152.) After the Court granted Cauthon's
request to proceed pro se, the Court allowed Cauthon to file
any supplement to this motion on or before May 21, 2018.
(Doc. No. 206.) No. supplement has been filed. For the
following reasons, Cauthon's Motion is denied.
moves for judgment of acquittal, pursuant to Federal Rule of
Criminal Procedure 29. If a jury found a defendant guilty,
the “court may set aside the verdict and enter an
acquittal.” Fed. R. Crim. P. 29(c)(2). The Court should
direct acquittal if “the evidence is insufficient to
sustain a conviction.” Fed. R. Crim. P. 29(a). The
“verdict in a criminal case is sustained only when
there is ‘relevant evidence from which the jury could
properly find or infer, beyond a reasonable doubt, ' that
the accused is guilty.” C. Wright & A. Miller, 7
Federal Practice and Procedure § 467, at 362
(2009) (citing Am. Tobacco Co. v. United States, 328
U.S. 4 (1946)).
alternative, Cauthon moves for a new trial under Federal Rule
of Criminal Procedure 33. Under Rule 33, the Court “may
vacate any judgment and grant a new trial if the interest of
justice so requires.” Fed. R. Crim. P. 33(a).
Generally, courts should refrain from granting new trials
unless “the substantial rights of the defendant were [
] affected.” C. Wright & A. Miller, Federal
Practice and Procedure § 581, at 436 (2009) (citing
United States v. Wall, 389 F.3d 457, 474 (5th Cir.
2004)). In the Sixth Circuit, when reviewing the sufficiency
of the evidence, the Court sits as a thirteenth juror and may
weigh evidence and consider credibility. United States v.
Munoz, 605 F.3d 359, 373 (6th Cir. 2010).
support a conviction of health care fraud, the Government
must prove that the defendant:
(1) “knowingly devised a scheme or artifice to defraud
a health care benefit program in connection with the delivery
of or payment for health care benefits, items, or
(2) the defendant “executed or attempted to execute
this scheme or artifice to defraud”; and
(3) “acted with intent to defraud.”
United States v. Martinez, 588 F.3d 301, 314 (6th
Cir. 2009) (quoting United States v. Hunt, 521 F.3d
636, 645 (6th Cir. 2008)); 18 U.S.C. § 1347; (see
also Jury Instructions at 36-37.)
first argues that the facts do not support the convictions
because the Government did not prove that Cauthon failed to
perform nail avulsions on Larry Short, Delores Via, or Cleo
Merriweather. (Doc. No. 153 at 4-31.) He cites Dr. Paul
Kinberg's testimony, in which he discussed how there is
“confusion” and “debate” in the
podiatric community on what qualifies as a toenail avulsion
for billing purposes. (Doc. No. 153 at 7-8.) He argues that
Dr. Kinberg did not explain the nondebatable elements of a
toenail avulsion, and there was no other evidence in the
record from which the jury could determine what constitutes a
toenail avulsion. (Doc. No. 153 at 34-37.) As further
evidence of this “confusion, ” Cauthon cites Dr.
Phillip Giafortune's testimony, who discussed what
Cauthon would have learned in podiatry school about what is a
toenail avulsion and, Cauthon argues, differs from Dr.
Kinberg's testimony. (Doc. No. 153 at 11-14.)
regards to the lay testimony, Cauthon argues that Vanessa
Massey and Sara McCurry testified that Cauthon actually
performed many toenail avulsions. (Doc. No. 153 at 14-19.)
Larry Short could not remember anything relevant to the first
two counts of the Indictment, and Delores Via could not
identify Cauthon at all. (Doc. No. 153 at 27-32.) The
remaining witnesses, Cauthon argues, could not identify
Cauthon or were not aware that Cauthon was performing nail
avulsions. (Doc. No. 153 at 19-274.)
viewing the evidence in the light most favorable to the
Government, a jury could find Cauthon guilty of four counts
of healthcare fraud beyond a reasonable doubt. Regarding
Larry Short, he testified that he would remember having his
toenail removed at a clinic, and he specifically recalled one
time when a podiatrist did remove his toenail. (Doc. No.
110-1 at 10.) However, he did not remember Cauthon ever
removing Short's toenail. (Id.) In fact, Short
testified he did not have any podiatry care at his facility.
(Id. at 8.) Short's patient records for June 3
and October 27, 2014, showed no procedures or wounds on his
toes. (Doc. No. 194 at 15-16 (citing Ex. 33)). The patient
records after the days of the alleged-toenail avulsions also
did not show any wound care for Short's toes. (Doc. No.
194 at 14-15.) John Zaccaro testified that such care would be