Court filing — D. Md. No. 1:22-cr-00146 (Dkt. 59, D. Md.)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

UNITED STATES OF AMERICA x

v. * CRIM. NO. JKB-22-0146
RON K. ELFENBEIN, 7

Defendant. ®

* * * * * * * * * * * *

PROPOSED FINAL JURY INSTRUCTIONS

Having reviewed the parties’ joint Proposed Jury Instructions (ECF No. 34), the COURT
NOW NOTIFIES Counsel and the parties that it intends to use the final jury instructions attached
hereto. The instructions attached hereto are based on the evidence presented in the case thus far.
The Court will reserve issuing a final ruling on the jury instructions until a later conference with
the parties pursuant to Federal Rule of Criminal Procedure Rule 30, and subject to any further

modifications based on evidence presented after that point.

Dated ninZO day of July, 2023.

BY THE COURT:

James K. Bredar
Chief Judge
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JURY INSTRUCTION 1 (Roles of Judge and Jury)

MEMBERS OF THE JURY:

Thank you for your patience and attention throughout this case. I shall now instruct
you as to the law applicable to the case before you.

Let me explain our respective roles, which are quite different. It is my duty as Judge
to instruct you as to the law that applies to this case. It is your duty to decide the facts and,
in deciding these facts, to comply with the rules of law and apply them as I state them to
you without regard to what you think the law is or should be.

On these legal matters, you are required to follow the law exactly as J give it to you.
If any attorney has stated a legal principle different from any that J state to you in my
instructions, it is my instructions that you must follow.

You should not single out any instruction as alone stating the law, but you should
consider my instructions as a whole when you retire to deliberate in the jury room.

None of you should be concerned about the wisdom of any rule that I state.
Regardless of any opinion that you may have as to what the law may be—or ought to be—
it would violate your sworn duty to base a verdict upon any other view of the law than that

which I give you.
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JURY INSTRUCTION 2 (Jury’s duty to decide facts)

Your duty is to pass upon and decide the factual issues that are in the case. You,
the members of the jury, are the sole and exclusive judges of the facts. You pass upon the
weight of the evidence; you determine the credibility of the witnesses; you resolve such
conflicts as there may be in the testimony; and you draw whatever reasonable inferences
you decide to draw from the facts as you have determined them. If any expression of mine
or anything I may or may not have done or said would seem to indicate any opinion relating

to any factual matters, I instruct you to disregard it.
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JURY INSTRUCTION 3 (NTENTIONALLY BLANK)
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JURY INSTRUCTION 4 (Bias, prejudice; Gov’t as party)

You are to perform the duty of finding the facts without bias or prejudice as to any
party. You are to perform your final duty in an attitude of complete fairness and
impartiality. This case is important to the government, for the enforcement of criminal
laws is a matter of prime concern to the community. Equally, it is.important to the
defendant, who is charged with serious crimes. The fact that the prosecution is brought in
the name of the United States of America entitles the government to no greater
consideration than that accorded to any other party to a case in litigation. By the same
token, the government is entitled to no less consideration. All parties, whether government

or individuals, stand as equals at the bar of justice.
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JURY INSTRUCTION 5 (Improper considerations)

It would be improper for you to consider, in reaching your decision as to whether
the government sustained its burden of proof, any personal feelings you may have about
the defendant’s race, religion, national or ethnic origin, sex, or age. All persons are entitled
to the presumption of innocence and the government has the burden of proof, as I will
discuss in a moment.

It would be equally improper for you to allow any feelings you might have about

the nature of the crimes charged to interfere with your decision-making process.
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JURY INSTRUCTION 6 (Sympathy)

Under your oath as jurors, it would be improper for you to be swayed by sympathy.
You are to be guided solely by the evidence in this case, and the crucial question you must
ask yourselves as you sift through the evidence is: Has the government proven the guilt of
’ the defendant beyond a reasonable doubt?

It is for you alone to decide whether the government has proven that the defendant
is guilty of the crimes charged solely on the basis of the evidence and subject to the law as
I instruct you. Ifyou let fear or prejudice or bias or sympathy interfere with your thinking,
there is a risk that you will not arrive at a true and just verdict.

If you have a reasonable doubt as to the defendant’s guilt, you should not hesitate
for any reason to find a verdict of not guilty. But on the other hand, if you should find that
the government has met its burden of proving the defendant’s guilt beyond a reasonable
doubt, you should not hesitate because of sympathy or any other reason to render a verdict

of guilty.
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JURY INSTRUCTION 7 (Conduct of counsel; exhibits not received; stricken testimony;
stipulation; outside sources; incorporation of assumed facts on cross-examination)

The statements, objections, and arguments of counsel are not evidence and should
not be considered by you as evidence. The evidence in this case consists of the sworn
testimony of the witnesses, the exhibits received in evidence, and any stipulations.

Exhibits that were marked for identification but not received may not be considered
by you as evidence. Only those exhibits received into evidence may be considered as
evidence. Admitted exhibits will be available for your review.

You are to disregard any testimony when I have ordered it to be stricken.

Only the witnesses’ answers are evidence and you are not to consider a question as
evidence.

Anything you may have seen or heard outside the courtroom, including any
newspaper or media publicity of any kind, is not evidence and must be entirely disregarded.
You must limit the information you get about the case to what came to you in the courtroom

through the rules of evidence.

I remind you, members of the jury, that questions are not evidence, but answers are.
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JURY INSTRUCTION 8 (Duty of counsel to object; rulings on legal questions by judge;
bench conferences)

It is the duty of the attorney for each side of a case to object when the other side
offers testimony or other evidence that the attorney believes is not properly admissible.
The attorneys also have the right and duty to ask me to make rulings of law and to request
conferences out of the hearing of the jury. All those questions of law must be decided by
me. You should not hold any prejudice against an attorney or the client because the
attorney objected to the admissibility of evidence, or asked for a conference out of the

hearing of the jury, or asked the court for a ruling on the law.

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JURY INSTRUCTION 9 INTENTIONALLY BLANK)

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JURY INSTRUCTION 10 (Charts, schedules, summaries admitted as evidence) [IF
APPLICABLE]

The government and the defense have presented exhibits in the form of charts and
summaries, I decided to admit or let you see these charts and summaries in place of or in
addition to the underlying documents that they represent in order to save time and avoid
unnecessary inconvenience. The charts and summaries are no better than the testimony or
the documents upon which they are based, and are not themselves independent evidence.
So, while you are entitled to consider them, you are to give no greater consideration to
these charts or summaries than you would give to the evidence upon which they are based.

It is for you to decide whether the charts, schedules, or summaries correctly present
the information contained in the testimony and in the exhibits on which they were based.
You are entitled to consider the charts, schedules, and summaries if you find that they are

of assistance to you in analyzing the evidence and understanding the evidence.

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JURY INSTRUCTION 11 (INTENTIONALLY BLANK)

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JURY INSTRUCTION 12 (Nature of indictment; burden of proof; presumption of
innocence)

The defendant is charged in a charging instrument, a superseding indictment, with
five crimes about which I will instruct you shortly. Each charge is called a “count.” I will
refer to each count by the number assigned to it in the superseding indictment, which I will
refer to simply as “the indictment” in these instructions. You will not be furnished with the
indictment itself, because an indictment is merely an accusation and is not to be used by
you as any proof of the conduct charged. While you will not have a copy of the indictment
with you in the jury room, I will read relevant portions of the charging document to you
later in these instructions and, of course, you will have a copy of the jury instructions,
including that relevant portion of the indictment, with you in the jury room.

Although the defendant has been indicted, you must remember that an indictment is
only an accusation to which the defendant has pleaded not guilty. The indictment itself is
not evidence.

As a result of the defendant’s plea of not guilty, the burden is on the prosecution to
prove the defendant’s guilt of each element of the charge beyond a reasonable doubt. This
burden never shifts to the defendant for the simple reason that the law never imposes upon
a defendant in a criminal case the burden or duty of calling any witness or producing any
evidence.

The law presumes the defendant to be innocent of the charges against him. |

therefore instruct you that the defendant is presumed by you to be innocent throughout your

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deliberations until such time, if ever, you as a jury are satisfied that the government has
proven him guilty beyond a reasonable doubt.

The defendant begins the trial here with a clean slate. This presumption of
innocence alone is sufficient to acquit a defendant unless you as jurors are unanimously
convinced beyond a reasonable doubt of his guilt, after a careful and impartial
consideration of all of the evidence in this case. If the government fails to sustain its
burden, you must find the defendant not guilty.

This presumption was with the defendant when the trial began and remains with him
even now as | speak to you and will continue with him into your deliberations unless and
until you are convinced that the government has proven the defendant’s guilt beyond a

reasonable doubt.

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JURY INSTRUCTION 13 (Number of witnesses and uncontradicted testimony)

The fact that one party called more witnesses and introduced more evidence than
the other does not mean that you should necessarily find the facts in favor of the side
offering the most witnesses. By the same token, you do not have to accept the testimony
of any witness who has not been contradicted or impeached, if you find the witness not to
be credible. You may believe all, part, or none of the testimony of any witness.

In a moment, I will discuss the criteria for evaluating credibility; for the moment,
however, you should keep in mind that the burden of proof is always on the government
and the defendant is not required to call any witnesses or offer any evidence, since he is

presumed to be innocent.

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JURY INSTRUCTION 14 (Direct and circumstantial evidence)

There are two types of evidence that you may properly use in deciding whether a
defendant is guilty or not guilty.

One type of evidence is called direct evidence. Direct evidence is where a witness
testifies to what he saw, heard, or observed. In other words, when a witness testifies about
what is known to him of his own knowledge by virtue of his own senses—what he sees,
feels, touches, or hears—that is called direct evidence.

Circumstantial evidence is evidence that tends to prove a disputed fact by proof of
other facts. Let me give you a simple example of circumstantial evidence.

Assume that when you came into the courthouse this morning the sun was shining
and it was a nice day. Assume that the courtroom blinds were drawn and you could not
look outside.

As you were sitting here, someone walked in with an umbrella that was dripping
wet. Somebody else then walked in with a raincoat that also was dripping wet.

Now, you cannot look outside of the courtroom and you cannot see whether or not
it is raining. So you have no direct evidence of that fact. But, on the combination of facts
that I have asked you to assume, it would be reasonable and logical for you to conclude
that it had been raining.

That is all there is to circumstantial evidence. You infer on the basis of reason and
experience and common sense from an established fact the existence or the nonexistence

of some other fact.

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Circumstantial evidence is of no less value than direct evidence; for, it is a general
rule that the law makes no distinction between direct and circumstantial evidence, but
simply requires that before convicting a defendant, the jury must be satisfied of the

defendant’s guilt beyond a reasonable doubt from all of the evidence in the case.

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JURY INSTRUCTION 15 (Inference)

During the trial, you have heard the attorneys use the term “inference,” and in their
arguments they may ask you to infer, on the basis of your reason, experience, and common
sense, from one or more established facts, the existence of some other fact. An inference
is not a suspicion or a guess. It is a reasoned, logical decision to conclude that a disputed

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fact exists on the basis of another fact that you know exists.

There are times when different inferences may be drawn from facts, whether proved
by direct or circumstantial evidence. The government asks you to draw one set of
inferences, while the defense asks you to draw another. It is for you, and you alone, to
decide what inferences you will draw. The process of drawing inferences from facts in
evidence is not a matter of guesswork or speculation. An inference is a deduction or
conclusion that you, the jury, are permitted to draw—but are not required to draw—from
the facts that have been established by either direct or circumstantial evidence. In drawing
inferences, you should exercise your common sense.

So, while you are considering the evidence presented to you, you are permitted to
draw, from the facts that you find to be proven, such reasonable inferences as would be
justified in light of your experience.

Here, again, let me remind you that, whether based upon direct or circumstantial
evidence, or upon the logical, reasonable inferences drawn from such evidence, you must

be satisfied of the guilt of the defendant beyond a reasonable doubt before you may convict

him.

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JURY INSTRUCTION 16 (Credibility of witnesses; interest in outcome; law enforcement
or federal employee witnesses)

Because you, the jurors, are the sole judges of the facts, you are also the sole judges
of the credibility of the witnesses, and it is up to you to decide what weight, if any, should
be given to a witness’s testimony. You are not required to believe any witness even though
his or her testimony is uncontradicted.

In deciding whether or not to believe a witness, you should carefully scrutinize all
of the testimony of each witness, the circumstances under which each witness testified, and
any other matter in evidence that may help you to decide the truth and the importance of
each witness’s testimony.

You should consider a witness’s demeanor and manner of testifying on the stand.
Was the witness candid, frank, and forthright? Or, did the witness seem as ifhe or she was
hiding something, being evasive or suspect in some way? How did the way the witness
testified on direct examination compare with the way the witness testified on cross-
examination? Was the witness consistent in his or her testimony or did he or she contradict
himself or herself? Did the witness appear to know what he or she was talking about and
did the witness strike you as someone who was trying to report his or her knowledge
accurately?

You should also consider whether a witness may have been biased. Does the
witness have a relationship with the government or the defendant that may affect how he
or she testified? Does the witness have some incentive, loyalty, or motive that might cause

him or her to shade the truth; or does the witness have some bias, prejudice, or hostility

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that may have caused the witness—consciously or not—to give you something other than
a completely accurate account of the facts he or she testified to?

Another consideration is the witness’s opportunity to observe the matters about
which he or she testified, as well as the witness’s ability to express himself or herself.

Inconsistencies or discrepancies in the testimony of a witness, or between the
testimonies of different witnesses, may or may not cause you to discredit such testimony.
Two or more persons witnessing an incident or a transaction may see or hear it differently;
an innocent misrecollection, like a failure of recollection, is not an uncommon experience.
In weighing the effect of a discrepancy, always ask yourself whether it pertains to a matter
of importance or an unimportant detail, and whether the discrepancy results from innocent
error or intentional falsehood.

You have heard the testimony of a law enforcement official. The fact that a witness
may be employed by the federal government as a law enforcement official does not mean
that his testimony is necessarily deserving of more or less consideration or greater or lesser
weight than that of an ordinary witness.

It is your decision, after reviewing all the evidence, whether to accept the testimony
of the law enforcement witness and to give to that testimony whatever weight, if any, you
find it deserves.

After you have considered all of the factors bearing upon the credibility of a witness
that I have mentioned to you, you may decide to accept all of the testimony of a particular

witness, none of the testimony of a particular witness, or part of the testimony of a

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particular witness. In other words, you may give the testimony of any witness such

credibility and weight, if any, as you may think it deserves.

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JURY INSTRUCTION 17 INTENTIONALLY BLANK)

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JURY INSTRUCTION 18 (Expert witness — generally)

In this case, I have permitted certain witnesses to express their opinions about
matters that are in issue. A witness may be permitted to testify to an opinion on those
matters about which he or she has special knowledge, skill, experience and training. Such
testimony is presented to you on the theory that someone who is experienced and
knowledgeable in the field can assist you in understanding the evidence or in reaching an
independent decision on the facts. Sometimes such witnesses are called “expert witnesses.”

In weighing this opinion testimony, you may consider the supposed expert witness’
qualifications, his or her opinions, the reasons for testifying, as well as all of the other
considerations that ordinarily apply when you are deciding whether or not to believe a
witness’ testimony. You may give the opinion testimony whatever weight, if any, you find
it deserves in light of all the evidence in this case. You should not, however, accept opinion
testimony merely because J allowed the witness to testify concerning his or her opinion.
Nor should you substitute it for your own reason, judgment and common sense. The

determination of the facts in this case rests solely with you.

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JURY INSTRUCTION 19 INTENTIONALLY BLANK)

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JURY INSTRUCTION 20(a) (Defendant’s interest if Defendant testifies) [IF
APPLICABLE]

In a criminal case, the defendant cannot be required to testify, but, if he chooses to
testify, he is, of course, permitted to take the witness stand on his own behalf. In this
case, the defendant decided to testify. You should examine and evaluate his testimony
just as you would the testimony of any witness with an interest in the outcome of this

case.

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JURY INSTRUCTION 20(b) (Defendant’s decision not to testify) [IF APPLICABLE]

The defendant did not testify in this case. Under our Constitution, a defendant has
no obligation to testify or to present any other evidence, because it is the prosecution’s
burden to prove a defendant guilty beyond a reasonable doubt. That burden remains with
the prosecution throughout the entire trial and never shifts to the defendant. A defendant
is never required to prove that he is innocent.

You may not attach any significance to the fact that the defendant did not testify.
No adverse inference against the defendant may be drawn by you because he did not take
the witness stand. You may not consider this against the defendant in any way in your

deliberations in the jury room.

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JURY INSTRUCTION 21 (INTENTIONALLY BLANK)

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JURY INSTRUCTION 22 (INTENTIONALLY BLANK)

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JURY INSTRUCTION 23 (NTENTIONALLY BLANK)

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JURY INSTRUCTION 24 (INTENTIONALLY BLANK)

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JURY INSTRUCTION 25 (INTENTIONALLY BLANK)

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JURY INSTRUCTION 26 (Intro to specific crimes instructions; multiple counts)

We shall next consider the crimes with which the defendant is charged in the
indictment, and I shall discuss with you the rules of law that govern whether the crimes
charged have been proven. Each alleged crime is charged in what is called a count.

The jury must consider each count against the defendant separately, and the burden

is always upon the government to prove each count beyond a reasonable doubt.

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JURY INSTRUCTION 27 (The charges)

The Indictment contains 5 counts. Counts 1 through 5 charge the defendant with
health care fraud.
I will now read you part of the indictment, as appropriately amended:

25. In 2020, evaluation and management services (sometimes
referred to as “E/M Services” or “office visits”) were billed using CPT codes
99201 through 99205 for new patients, and 99211 through 99215 for existing
patients. In 2021, CPT code 99201 was deleted, and E/M Services were billed
using CPT codes 99202 through 99205 for new patients, and 99211 through
99215 for existing patients. The code that providers were required to bill for
E/M Services were organized into various categories and levels. In general,
the more complex the visit, the higher the level of code a provider could bill
within the appropriate category. To bill any code, the services furnished must
have met the definition of the code, been medically necessary, and occurred.
as represented.

26. The 2020 code description for CPT code 99204 was: “[o]ffice or other
outpatient visit for the evaluation and management of a new patient, which
requires these 3 key components: A comprehensive history; A
comprehensive examination; Medical decision making of moderate
complexity. Counseling and/or coordination of care with other physicians,
other qualified health care professionals, or agencies are provided consistent
with the nature of the problem(s) and the patient’s and/or family’s needs.
Usually, the presenting problem(s) are of moderate to high severity.
Typically, 45 minutes are spent face-to-face with the patient and/or family.”
The 2021 code description for CPT code 99204 was: “Office or other
outpatient visit for the evaluation and management of a new patient, which
requires a medically appropriate history and/or examination and moderate
level of medical decision making. When using time for code selection, 45-
59 minutes of total time is spent on the date of the encounter.”

27. The 2020 code description for CPT code 99214 was: “Office or other
outpatient visit for the evaluation and management of an established patient,
which requires at least 2 of these 3 key components: A detailed history; A
detailed examination; Medical decision making of moderate complexity.
Counseling and/or coordination of care with other physicians, other qualified
health care professionals, or agencies are provided consistent with the nature
of the problem(s) and the patient’s and/or family’s needs. Usually, the

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presenting problem(s) are of moderate to high severity. Typically, 25 minutes
are spent face-to-face with the patient and/or family.” The 2021 code
description for CPT code 99214 was: “Office or other outpatient visit for the
evaluation and management of an established patient, which requires a
medically appropriate history and/or examination and moderate level of
medical decision making. When using time for code selection, 30-39 minutes
of total time is spent on the date of the encounter.”

28. From in or around March 2020, and continuing through in or around
February 2022, in the District of Maryland, the defendant, RON
ELFENBEIN, aided and abetted by others, and aiding and abetting others
known and unknown to the Grand Jury, in connection with the delivery of
and payment for health care benefits, items, and services, did knowingly and
willfully execute and attempt to execute a scheme to defraud a health care
benefit program affecting commerce, as defined in Title 18, United States
Code, Section 24(b), that is, Medicare [and CareFirst Blue Cross Blue
Shield] [REDACTED], and to obtain and attempt to obtain, by means of
materially false and fraudulent pretenses, representations, and promises,
money and property owned by, and under the custody and control of
Medicare [and CareFirst Blue Cross Blue Shield] [REDACTED], in
violation of Title 18, United States Code, Sections 1347 and 2 (hereinafter
the “scheme to defraud”).

29. It was a purpose of the scheme to defraud for the defendant, RON
ELFENBEIN, to unlawfully enrich himself and others by: (a) submitting
and causing the submission of false and fraudulent claims to Medicare [and
CareFirst Blue Cross Blue Shield] [REDACTED] for E/M Services during
the COVID-19 pandemic that were medically unnecessary, not provided as
represented, and ineligible for reimbursement; (b) concealing the submission
of false and fraudulent claims and the receipt and transfer of the proceeds of
the fraud; and (c) using proceeds of the fraud for the personal use and benefit
of the defendant and others.

30. The manner and means by which the defendant, RON ELFENBEIN,
and others known and unknown to the Grand Jury sought to accomplish the
objects and purpose of the scheme to defraud included, among other things:

a. RON ELFENBEIN controlled, operated, and directed Drs
ERgent Care.

b. RON ELFENBEIN submitted and caused the submission
of enrollment documents to Medicare for Drs ERgent Care,

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in which he attested he would “not knowingly present or
cause to be presented a false or fraudulent claim for
payment by Medicare, and [] will not submit claims with
deliberate ignorance [REDACTED] of their truth or
falsity.”

. RON ELFENBEIN caused Drs ERgent Care to enroll and
contract with [REDACTED] CareFirst BlueCross
BlueShield, to provide services to [CareFirst BlueCross
BlueShield’s] members.

. RON ELFENBEIN caused Drs ERgent Care to offer
COVID-19 testing to members of the public, as the effects
of the COVID-19 pandemic were felt in the United States
and many individuals were reporting difficulty obtaining
tests to determine whether they were infected with the
COVID-19 virus.

. RON ELFENBEIN, through Drs ERgent Care, offered
COVID-19 testing, but required that the COVID-19 tests
and the reporting of results be bundled, i.e., required to be
billed in combination with more lucrative, but medically
unnecessary, services, such as E/M Services, that were
purportedly of a 30-minute or longer duration, or involving
moderate or high levels of medical decision making, but did
not in fact occur as represented.

RON ELFENBEIN instructed providers and other
employees of Drs ERgent Care to submit claims to
Medicare and other payors for these lucrative E/M Services
knowing that some or all of the beneficiaries were being
seen by providers for less than five minutes total.
Nevertheless, RON ELFENBEIN instructed providers and
other employees to bill the encounters as moderate
complexity E/M Services even though such encounters did
not occur as represented.

. RON ELFENBEIN instructed providers and other
employees of Drs ERgent Care to submit claims for these
lucrative E/M Services because the higher complexity E/M
Services were “the ‘bread and butter’ of how we get paid
... 499202 pays way less than a 99204.”

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h. RON ELFENBEIN, through Drs ERgent Care, submitted
and caused the submission of claims to Medicare [and
CareFirst Blue Cross Blue Shield] [REDACTED] for E/M
Services that were medically unnecessary, not provided as
represented, and ineligible for reimbursement.

i. RON ELFENBEIN, through Drs ERgent Care, submitted
in excess of the approximate amount of S$INUMBER TBD]
in claims for reimbursement to Medicare [and CareFirst
Blue Cross Blue Shield] [REDACTED] for moderate
complexity E/M Services in conjunction with COVID-19
tests, and was paid approximately $[NUMBER TBD] on
those claims.

31. | Onor about the dates set forth as to each count below, in the District
of Maryland, the defendant,

RON ELFENBEIN,

aided and abetted by others, and aiding and abetting others known and
unknown to the Grand Jury, for the purpose of executing and attempting to
execute the scheme to defraud as described above, submitted and caused the
submission of the following false and fraudulent claims to Medicare and
CareFirst Blue Cross Blue Shield for E/M Services that were medically
unnecessary, not provided as represented, and ineligible for reimbursement,
each submission constituting a separate count:

Each in violation of Title 18, United States Code, Sections 1347 and 2.

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The defendant has denied that he is guilty of these charges.

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JURY INSTRUCTION 28 (Variance — dates)

While we are on the subject of the indictment, I should draw your attention to the
fact that the indictment charges that specific acts occurred on or about certain dates. The
proof need not establish with any certainty the exact date of the specific act charged. It is
sufficient if the evidence in this case establishes that an offense was committed on a date
reasonably near the date alleged in the indictment. The law only requires a substantial
similarity between the date alleged in the indictment and the date established by testimony

or exhibits.

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JURY INSTRUCTION 29 (Variance — amounts)
The law requires only a substantial similarity between the indictment and the proof;
that is sufficient.
Thus, if the indictment charges that a certain amount was involved, and the
testimony or exhibits indicate that, in fact, a different amount was involved, it is for you to

determine whether the difference is material and, if you find it was material, then you must

find the defendant not guilty.

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JURY INSTRUCTION 30 (Knowingly; willful blindness)

In order to sustain its burden of proof, the government must prove that the defendant
acted knowingly. A person acts knowingly ifhe acts intentionally and voluntarily, and not
because of ignorance, mistake, accident, or carelessness. Whether a defendant acted
knowingly may be proven by a defendant’s conduct and by all of the facts and
circumstances surrounding the case.

You may infer that a defendant acted knowingly from circumstantial evidence or
from proof that the defendant deliberately closed his eyes to what would otherwise have
been obvious to him. Stated another way, a defendant’s knowledge of a fact may be
inferred from willful blindness to the existence of that fact. “Willful blindness” exists
when a defendant, whose suspicion has been aroused, deliberately fails to make further
inquiries. If you find that a defendant deliberately shielded himself from learning a critical
fact strongly suggested by the circumstances, or deliberately failed to inquire further, you
may conclude that he acted knowingly. Actual knowledge and deliberate or conscious
avoidance of knowledge are the same thing.

It is entirely up to you whether you find that a defendant deliberately closed his eyes

and any inferences to be drawn from the evidence on this issue.

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JURY INSTRUCTION 31 (Willfully)

[instruct you that in order to sustain its burden of proof the government must prove
beyond a reasonable doubt that the defendant acted willfully. “Willfully” means to act
with knowledge that one’s conduct is unlawful and with the intent to do something the law
forbids, that is to say, with the bad purpose to disobey or to disregard the law.

A defendant’s conduct was not “willful” if it was due to negligence, inadvertence,
er mistake, or was the result of a good faith misunderstanding of the requirement of the
law. In this connection, it is for you to decide whether the defendant acted in good faith,
that is, whether he sincerely misunderstood the requirements of the law, or whether he

knew what he was required to do and deliberately did not do so.

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JURY INSTRUCTION 32 (Intentionally)

The government must prove beyond a reasonable doubt that the defendant acted
intentionally if and when he committed the crimes charged in the indictment. Before you
can find that a defendant acted intentionally, you must be satisfied beyond a reasonable
doubt that he acted deliberately and purposefully. That is, a defendant’s acts must have

been the product of that defendant’s conscious objective rather than the product of a

mistake or accident.

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JURY INSTRUCTION 33 (Intent — inferences)

Intent ordinarily may not be proved directly, because there is no way of fathoming
or scrutinizing the operations of the human mind. But you may infer a defendant’s intent
from the surrounding circumstances. You may consider any statement made, any act done
or omitted by the defendant, and all other facts and circumstances in evidence that indicate
his state of mind.

You may consider it reasonable to draw the inference and find that a person intends
the natural and probable consequences of acts knowingly done or knowingly omitted. As

I have said, it is entirely up to you to decide what facts to find from the evidence.

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JURY INSTRUCTION 34 (Knowledge, willfulness, intent)

Knowledge, willfulness, and intent involve the state of a person’s mind. The state
of one’s mind is a fact. Accordingly, this is a fact you are called upon to decide.

Rarely is direct proof available to establish the state of one’s mind. However, state
of mind may be inferred from what one says or does: one’s words, one’s actions, and one’s
conduct, as of the time of the occurrence of certain events.

The intent with which an act is done is often more clearly and conclusively shown
by the act itself, or by a series of acts, than by words or explanations of the act uttered long
after its occurrence. Accordingly, intent, willfulness, and knowledge are usually
established by surrounding facts and circumstances as of the time the acts in question

occurred, or the events took place, and the reasonable inferences to be drawn from them.

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JURY INSTRUCTION 35 (INTENTIONALLY BLANK)

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JURY INSTRUCTION 36 (Using motive for intent)

Proof of motive is not a necessary element of the crimes with which the defendant
is charged.

Proof of motive does not establish guilt, nor does a lack of proof of motive establish
that a defendant is innocent.

If the guilt of a defendant is shown beyond a reasonable doubt, it is immaterial what
the motive for the crime may be, or whether any motive was shown. But the presence or
absence of motive is a circumstance you may consider as bearing on the intent of a

defendant.

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JURY INSTRUCTION 37 (Health Care Fraud)

The indictment charges the defendant with health care fraud.
Section 1347 of Title 18 of the United States Code provides in pertinent part, that
Whoever knowingly and willfully executes, or attempts to execute, a scheme or artifice—
(1) to defraud any health care benefit program; or
(2) to obtain, by means of false or fraudulent pretenses, representations, or
promises, any of the money or property owned by, or under the custody or
control of, any health care benefit program,

in connection with the delivery of or payment for health care benefits, items, or services,

shall be [guilty of a crime].

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JURY INSTRUCTION 38 (Elements of Health Care Fraud)

In order to prove the defendant guilty of health care fraud, the government must
establish beyond a reasonable doubt each of the following elements:

First, that there was a scheme to defraud or a scheme to obtain money or property
by means of materially false or fraudulent pretenses, representations, or promises in
connection with the delivery of or payment for health care benefits, items or services, as
charged in the Indictment;

Second, that the defendant knowingly and willfully executed or attempted to
execute that scheme with the intent to defraud; and

Third, that the target of the scheme was a health care benefit program, as I will

define that phrase for you.

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JURY INSTRUCTION 39 (First element — scheme to defraud)

The first element that the government must establish beyond a reasonable doubt is
that there was a scheme to defraud or a scheme to obtain money or property by means of
materially false or fraudulent pretenses, representations, or promises in connection with the
delivery of or payment for health care benefits, items or services, as charged in the
Indictment.

A “scheme to defraud” is defined as a pattern or course of conduct concerning a
material matter designed to deceive.

A representation is fraudulent if it was falsely made with the intent to deceive.
Deceitful statements of half truth, the concealment of material facts, and the expression of
an opinion not honestly entertained may constitute false or fraudulent representations under
the statute.

The deception need not be premised upon spoken or written words alone. The
arrangement of the words, or the circumstances in which they are used may convey a false
and deceptive appearance. If there is intentional deception, the manner in which it is
accomplished does not matter.

A fraudulent representation must relate to a material fact or matter. A material fact
is one that would reasonably be expected to be of concern to a reasonable and prudent
person in relying upon the representation or,statement in making a decision. This means
that if you find a particular statement of fact to have been false, you must determine

whether that statement was one that a reasonable person might have considered important

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in making his or her decision. The same principle applies to fraudulent half-truths or
omissions of material facts necessary to make the statements that were made not materially
misleading.

The representations that the government charges were made as part of the scheme
are set forth in paragraph 30 of the indictment, which I have already read to you. It is not
required that every misrepresentation charged in the indictment as part of the scheme be
proved. It is sufficient ifthe prosecution proves beyond a reasonable doubt that one or more
of the alleged material misrepresentations were made in furtherance of the alleged scheme.

However, each count of the superseding indictment charges that, in furtherance of
the alleged scheme, a specific claim was submitted to Medicare or to CareFirst Blue Cross
Blue Shield that was false and fraudulent. You may not find the defendant guilty ofa count
in the superseding indictment unless you find that the government has proved beyond a
reasonable doubt that the claim charged in that count of the superseding indictment was
false or fraudulent as to a material fact or matter.

Although it is not necessary for the government to prove an actual loss of funds by
the health care benefit programs, the government must prove beyond a reasonable doubt
that by executing or attempting to execute the scheme alleged in the indictment, the
defendant placed the health care benefit programs at a risk of loss and that the health care

benefit programs did not knowingly accept such a risk.

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JURY INSTRUCTION 40 (Second element — intent to defraud)

The second element that the government must establish beyond a reasonable doubt
is that the defendant knowingly and willfully executed or attempted to execute that scheme
with the intent to defraud.

“Knowingly” means to act voluntarily and deliberately, rather than mistakenly or
inadvertently.

“Willfully” means to act knowingly and with a bad purpose.

To act with intent to defraud means to act willfully and with the specific intent to
deceive for the purpose of causing some financial loss to another.

The question of whether a person acted knowingly, willfully and with intent to
defraud is a question of fact for you to determine, like any other fact question. This question

involves one’s state of mind.

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JURY INSTRUCTION 41 (Third element — health care benefit program)

The third element that the government must establish beyond a reasonable doubt is
that the target of the scheme was a health care benefit program.

The phrase “health care benefit program” means any public or private plan or
contract under which any medical benefit, item, or service is provided to any individual,
and includes any individual or entity who is providing a medical benefit, item, or service
for which payment may be made under the plan or contract.

In order to qualify as a “health care benefit program,” the program must affect
interstate commerce. This means that the program must have had some effect on the
movement, transportation, or flow of goods, merchandise, money and individuals between

or among the states.

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JURY INSTRUCTION 42 (Willfully causing a crime)

In this case, the government does not contend that the defendant actually submitted
false or fraudulent claims to Medicare and a private insurer. Instead, it contends that the
defendant caused other persons to submit false or fraudulent claims to Medicare and a
private insurer.

Section 2(b) of the aiding and abetting statute reads as follows: “Whoever willfully
causes an act to be done which, if directly performed by him, would be an offense against
the United States, is punishable as a principal.”

What does the term “willfully caused” mean? It does not mean that the defendant
himself need have physically committed the crime or supervised or participated in the
actual criminal conduct charged in the indictment.

The meaning of the term “willfully caused” can be found in the answers to the
following questions:

Did the defendant knowingly, willfully, and with intent to defraud participate in a
scheme to defraud Medicare and other public and private insurers?

Did the defendant intentionally cause another person to submit false or fraudulent
claims to Medicare and other public and private insurers?

If you are persuaded beyond a reasonable doubt that the answer to both of these
questions is “yes,” and if the other elements of health care fraud are proved beyond a
reasonable doubt, then the defendant is guilty of the crime charged just as if he himself had

actually committed it.

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If you are not so persuaded, then the defendant is not guilty under an aiding and

abetting theory.

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JURY INSTRUCTION 43 (INTENTIONALLY BLANK)

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JURY INSTRUCTION 44 (INTENTIONALLY BLANK)

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JURY INSTRUCTION 45 (INTENTIONALLY BLANK)

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JURY INSTRUCTION 46 (Penalty not proper consideration)

I have finished the court’s instructions on the specific crimes charged. As you
deliberate, I caution you that the question of possible punishment of the defendant is of no
concern to you and should not, in any sense, enter into or influence your deliberations. The
duty of imposing sentence, if the defendant is convicted, rests exclusively upon the court.
Similarly, the possible consequences of a not guilty verdict are ofno concern to you. Your
duty is to weigh the evidence in the case and to determine whether or not the defendant is

guilty beyond a reasonable doubt, solely upon the evidence presented.

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JURY INSTRUCTION 47 (Concluding Instructions)

In conclusion, let me remind you that your verdict must be unanimous, reflecting
the judgment of each ‘and every one of you. Consider it in the jury room deliberately and
carefully, in light of the instructions I have given you, and use the same common sense
and the same intelligence that you would use in determining any important matter that
you have to decide in the course of your own affairs.

It is your duty, as jurors, to consult with one another and to deliberate with a view
to reaching an agreement, if you can do so without violence to individual judgment.

Each of you must decide the case for yourself, but do so only after an impartial
consideration of the evidence with your fellow jurors. In the course of your deliberations,
do not hesitate to re-examine your own views and change your opinion if convinced it is
erroneous. But do not surrender your honest conviction as to the weight or effect of
evidence solely because of the opinion of your fellow jurors, or for the mere purpose of
returning a verdict. If, after carefully considering all the evidence and the arguments of
your fellow jurors, you entertain a conscientious view that differs from the others, you are
not to yield your conviction simply because you are outnumbered.

Upon retiring to the jury room, your first duty will be to elect a foreperson. The
foreperson has no extra vote, but he or she will preside over your deliberations and be
your spokesperson in court.

If it becomes necessary during your deliberations to communicate with the court,

you may send a note by the court security officer. Never attempt to communicate with

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the court except in writing. You will note from the oath about to be taken by the court
security officer that he or she, as well as all other persons, are forbidden to communicate
in any way or manner with any member of the jury on any subject touching the merits of
the case. And bear in mind always that you are not to tell to the court, or anyone else,
how you stand in terms of a numerical division, until after you have reached a unanimous
verdict.

In order to record your verdict in this case, we have prepared a verdict form for
you.

(Review verdict form.)

When you have reached a unanimous agreement, the foreperson should fill out the
verdict form in accordance with your agreement. Then the foreperson should sign and
date the form in the space provided at the end.

When you have agreed and finished completing the verdict form, the foreperson
should rap on the door and inform the Clerk or Court Security Officer simply that you
have agreed upon a verdict. The foreperson should not disclose or indicate in any way
what your verdict is at that time. The verdict must be announced for the first time in
open court.

When you return to the jury box, the Clerk will ask you, “Have you agreed upon
your verdict?” And we hope that you collectively will respond that you have.

The Clerk will then ask, “Who shall say for you?” All of you will respond, “Our

foreperson.”

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Your foreperson will then stand and present the verdict form to the Clerk, who
will hand it to me. After I review it, I shall read the verdict out loud in open court.

I remind you that you may not conduct any research by using any source
whatsoever to learn more about this case, the issues in the case, or anyone associated with
this case. And I further caution you not to communicate with anyone other than your
fellow jurors in this case about your deliberations. Until the jury has rendered its verdict
in open court, you are prohibited from commenting, whether in person, over the
telephone, through the Internet, or through any other means, about this case.

While you are in the jury deliberation room, all electronic devices must remain
completely off. Only when you are on break from deliberations may you turn on your
cell phone or other electronic device to communicate with anyone outside of your fellow
jurors, and only then to discuss matters that have no relation to this trial.

[EXCUSE ALTERNATES]

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