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United States v. Cauthon

United States District Court, M.D. Tennessee, Nashville Division

May 23, 2018

JOHN J. CAUTHON, Defendant.



         On 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.


         Cauthon 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)).

         In the 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).

         To 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 services”;
(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.)


         Cauthon 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.)

         With 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.)

         When 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 ...

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