Sentencing Memorandum by USA as to Gayle and Davis — USA v. Gayle et al (Dkt. 121, N.D. Ala.)

Summary

This is the United States' Sentencing Memorandum as to Francene Aretha Gayle and Schara Monique Davis, Document 121 in Case 5:22-cr-00113-LCB-HNJ, United States District Court for the Northern District of Alabama, Northeastern Division. The government says the defendants committed serious crimes out of their three-clinic pain practice, including pre-signed opioid prescriptions and billing insurers for doctor office visits when Gayle was not there. It recommends 87 months for Gayle, the high end of her Guidelines range, and 42 months for Davis, described as the less culpable co-conspirator. It also asks that each defendant be ordered to pay restitution totaling $2,234,237.67, and says Davis is not challenging the proposed figures.

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“Sentencing Memorandum by USA as to Gayle and Davis — USA v. Gayle et al (Dkt. 121, N.D. Ala.).” Original at ecf.alnd.uscourts.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/sentencing-memorandum-by-usa-as-to-gayle-and-davis-usa-v-gayle-et-al-d-e0123adab5/, SHA-256 9fe5c39f5dad210e70055a970b35f5ffe1f760aff12801a0e8c452f851a60e73.

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Case 5:22-cr-00113-LCB-HNJ Document 121 Filed 12/13/24 Page 1 of 10 FILED
2024 Dec-13 PM 05:54
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION

UNITED STATES

v. Case 5:22-cr-113-LCB-HNJ

FRANCENE ARETHA GAYLE and
SCHARA MONIQUE DAVIS

UNITED STATES’ SENTENCING MEMORANDUM

The United States submits this memorandum to support its sentencing

recommendations for Francene Gayle and Schara Davis. For years, the defendants

committed serious crimes out of their three-clinic pain practice. Gayle issued

illegitimate opioid prescriptions pre-signed and handed out to patients in her

absence. Gayle and Davis stole seven figures by billing insurers for doctor office

visits when Gayle was not there. And after Gayle lost her medical license and the

defendants left town, they cheated a pandemic relief program out of another half

million dollars on the pretense that their Alabama practice was still a going concern.

For all this, Gayle should receive a sentence of 87 months, the high end of her

Guidelines range. Davis, the less culpable co-conspirator, should receive a prison

sentence but one less severe: the government recommends 42 months. Each

defendant should also be ordered to pay restitution totaling $2,234,237.67.

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Case 5:22-cr-00113-LCB-HNJ Document 121 Filed 12/13/24 Page 2 of 10

BACKGROUND

For much of the 2010s, Gayle and Davis operated Complete Medical Health,

a medical practice in north Alabama. Gayle was the only doctor. Davis was the sole

owner, the office manager, and Gayle’s wife. At first, the practice was just one clinic

in Huntsville. But it expanded as the defendants took over two other clinics, one in

Athens, another in Killen.

Huntsville clinic Athens clinic Killen clinic

The defendants operated those three clinics for the next five years. The clinics were

some distance apart: Huntsville is 35 miles from Athens and 60 miles from Killen.

The defendants manned all three clinics without any other doctor on staff.

The clinics were a wellspring of opioid prescribing. Between 2013 and 2018,

according to Alabama Department of Public Health data, Gayle—a family medicine

doctor, not an oncologist or pain specialist—ranked ninth in the state for quantity of

controlled substances prescribed. In interviews with the government, former patients

and employees described waiting rooms crowded with patients seeking opioid

prescriptions.

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Even with so many patients receiving so many drug prescriptions in Killen,

Athens, and Huntsville, Gayle was regularly absent.1 Patients often got their

prescriptions because Gayle pre-signed them and had Davis or other staff deliver

them to clinics before the start of the clinic day or week. Gayle also pre-signed blank

prescription pads for personnel to use in case of “emergencies” when Gayle was not

around—a practice that violated Gayle’s obligations to patients and the public. See,

e.g., Ala. Admin. Code r. 545-X-4.06(13) (effective Jul. 27, 2005) (“[s]igning a

blank, undated or predated prescription form” is “unprofessional conduct”

“detrimental or harmful to the patient” or “the health, safety, and welfare of the

public”); Ala. Admin. Code r. 540-x-4-.06 (effective Oct. 24, 2002) (noting it “is

improper, under any circumstances, for a physician to pre-sign blank prescription

pads or forms and make them available to employees or support personnel”).

The practice did not just hand out pre-signed opioid prescriptions to patients

and delegate visits to staff in Gayle’s absence; the practice also fraudulently billed

insurers for all office visits as if the doctor had seen the patients, when she often had

1
In interviews with the government, employees described these habitual absences.
For example, former employee D.B. said Gayle “never ever” came to the Killen
clinic and was frequently absent from the Huntsville clinic, too. A.M. said that, when
a nurse practitioner was at Killen, Gayle would come “maybe once every three
months,” even though the clinic was open four or five days a week and it was not
unusual to see 50 or 60 patients a day. R.W. said that, in a year at the Killen clinic,
she saw Gayle present two or three times.
3
Case 5:22-cr-00113-LCB-HNJ Document 121 Filed 12/13/24 Page 4 of 10

not. Between 2015 and 2020, none of the three clinics billed a single office visit to

Medicare or Medicaid under any National Provider Identifier other than Gayle’s.

Doc. 87 at 6. Between 2015 and mid-2019, the same was true for Blue Cross Blue

Shield of Alabama. Id. at 6-7. This billing practice continued for years even after

employees and Blue Cross officials told Gayle it was fraud.

By 2019, the state medical board was investigating Gayle for unprofessional

conduct related to prescribing and insurance billing. With the practice under

investigation, the Killen clinic shut down. In March 2020, Gayle’s medical license

was revoked. The Athens and Huntsville clinics soon shut down, too, and Gayle and

Davis moved to Florida. Still, in June 2020, Gayle and Davis applied for COVID-

19 disaster relief funds, supposedly to prop up their medical practice (which was no

longer operational) in Alabama (where Gayle and Davis no longer lived). Gayle and

Davis got about $450,000 in Paycheck Protection Program and Economic Injury

Disaster Loan program loans. They quickly spent the funds for unauthorized

purposes and have still not repaid them.

ARGUMENT

The defendants should be ordered to pay restitution in the amounts detailed

below, which, as the government will be prepared to show at sentencing, are if

anything conservative. Gayle should be sentenced at the high end of her Guidelines

range. And for Davis, the government recommends 42 months in custody.
4
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I. The Court Should Order Restitution Of $2,234,237.67

The Mandatory Victims Restitution Act (MVRA) requires that defendants pay

restitution to their victims. 18 U.S.C. § 3663A. “The government bears the burden

of establishing the amount of restitution by a preponderance of the evidence.” United

States v. Baldwin, 774 F.3d 711, 728 (11th Cir. 2014). Because determining the

amount is “an inexact science, where difficulties arise, a district court may accept a

reasonable estimate of the loss based on the evidence presented.” Id. (cleaned up).

Under the MVRA, Gayle and Davis must pay restitution to their victims: the

Small Business Administration (SBA), which lost hundreds of thousands of dollars

in the COVID-19 loan fraud scheme, and Medicare, Medicaid, and Blue Cross, who

were defrauded in the office billing scheme. The government has provided proposed

restitution figures to Gayle and Davis. Davis is not challenging those figures; Gayle

has not confirmed whether she plans to challenge them. But the figures are

straightforward. The government will be prepared to prove them at sentencing.

First, the SBA is entitled to restitution for the PPP loan the defendants got,

plus related costs (a lender fee and interest)—a total that stands at $318,947.49. The

SBA is also entitled to restitution for the EIDL program loan the defendants got—

which, with interest, stands at $174,657.53.

Second, Medicare, Medicaid, and Blue Cross are entitled to restitution for

their losses. The restitution figures as the government has calculated them are
5
Case 5:22-cr-00113-LCB-HNJ Document 121 Filed 12/13/24 Page 6 of 10

conservative. For office visit billings under Gayle’s name, the practice received

$1,413,639.47 from Medicare; $419,663.62 from Medicaid; and $777,645.88 from

Blue Cross. The evidence establishes that Gayle was regularly not at the clinics to

see patients during their visits—and even if she was at one clinic, she was not at the

other two, making claims for doctor visits at those clinics fraudulent. Even giving

Gayle every benefit of the doubt, then, the Court may reasonably treat two thirds of

the payments for doctor office visit claims as fraudulent. The government has

proposed restitution figures representing two thirds of the totals above: $942,426.31

for Medicare, $279,775.75 for Medicaid, and $518,430.59 for Blue Cross. The Court

should order restitution in these amounts.

II. The Court Should Sentence Gayle At The High End Of Her Guidelines
Range

Gayle should receive a high-end sentence of 87 months. A high-end sentence

would appropriately punish this defendant for writing illegitimate opioid

prescriptions, bilking health insurers out of millions of dollars, and committing a

whole new fraud even after her medical license had been revoked.

First, a high-end sentence would acknowledge the nature of Gayle’s crimes,

which were serious, wide-ranging, and long-running. Her crimes ran the gamut from

drugs to health care fraud to wire fraud. Her crimes spanned several years: from

illicit drug prescriptions in 2017 and 2018, see Doc. 87 at 5, to office visit billing

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fraud between 2015 and 2020, see id., to COVID-19 disaster relief fraud even after

her medical practice had closed down, see id. at 7-9. And her crimes made real

victims, not only of health insurers but also of patients. The people whose

prescriptions Gayle admitted to having written illegitimately have told the

government they were addicted to drugs; only after Gayle’s practice closed down

were any of them able to get clean.

Second, a high-end sentence would take account of Gayle’s history and

characteristics. Gayle was not a doctor who made mistakes because she was

overworked, underpaid, and underwater. She was a doctor who knew better.

Employees warned her about her prescribing and billing practices. Employees quit

over their concerns. Gayle did not change. Her crimes are attributable not to her

ignorance but to her indifference. They are also attributable to her greed. Thanks to

her busy three-clinic medical practice, Gayle lived well. She and Davis drove luxury

cars—a Hummer, a Range Rover, a Porsche. They lived in luxury houses.

Third, a Guidelines-range sentence is appropriate to deter Gayle and others.

Specific deterrence is a larger consideration here than in some other cases involving

white-collar defendants without prior convictions. During Gayle’s crimes, others—

clinic employees, insurers, medical board officials—made clear to her their

concerns, and those concerns went ignored. Gayle has shown no interest in

correcting her behavior voluntarily.
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Case 5:22-cr-00113-LCB-HNJ Document 121 Filed 12/13/24 Page 8 of 10

There is also a need for general deterrence. Gayle’s sentence should send a

strong message that opioid overprescribing and health care fraud and government

disaster relief fraud will not be tolerated. Opioid overprescribing enables and extends

addiction. Health care and disaster relief frauds do untold damage to our government

programs and the taxpayers who fund them. United States v. Moss, 34 F. 4th 1176,

1181 (11th Cir. 2022). There may be a “tendency for people to consider crimes

against the government as less serious than crimes committed against a person.”

United States v. Carreras, 793 F. App’x 859, 864 (11th Cir. 2019) (citing district

court’s reasoning). But in several recent decisions, the Eleventh Circuit has argued

forcefully for treating these offenses as the dangerous crimes they are and punishing

them accordingly. See, e.g., Moss, 34 F. 4th at 1181. A high-end sentence for Gayle

would send that message.

III. The Court Should Sentence Davis To 42 Months

Like Gayle, Davis deserves a custodial sentence for the fraud crimes to which

she pleaded guilty. Davis bears substantial culpability for those crimes. She served

as the owner of the practice; she handled bookkeeping and billing functions; she

delivered pre-signed narcotic prescriptions to clinics on Gayle’s behalf. It was

Davis’s name that appeared on the fraudulent COVID-19 disaster relief loan

applications. And like Gayle, Davis enjoyed the fruits of their crimes—driving a

Porsche and living in luxury homes.
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Case 5:22-cr-00113-LCB-HNJ Document 121 Filed 12/13/24 Page 9 of 10

Still, Gayle’s offenses warrant a much greater sentence. It was Gayle who

overprescribed opioids; Gayle who dishonored her medical license; and Gayle who

had ultimate decision-making authority in the practice, even if Davis was the owner.

For Davis, a sentence of 42 months, about half the length of Gayle’s high end,

would accomplish the purposes Congress has set out for sentencing.

CONCLUSION

Gayle and Davis committed serious crimes that demand serious punishment.

Gayle, who not only devised multiple, different fraud schemes but issued illicit drug

prescriptions too, should be sentenced at the high end of her range. The government

asks for 42 months for Davis. And both defendants should be ordered to pay

restitution as the government has (conservatively) proposed it.

Respectfully submitted,

PRIM F. ESCALONA
United States Attorney

/s/ John B. Ward
JOHN B. WARD
RYAN S. RUMMAGE
Assistant United States Attorneys

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Case 5:22-cr-00113-LCB-HNJ Document 121 Filed 12/13/24 Page 10 of 10

CERTIFICATE OF SERVICE

I certify that, on December 13, 2024, I filed this document electronically with

the United States District Court for the Northern District of Alabama using the

CM/ECF system and thereby caused a copy to be served on the defendants’ counsel

of record.

/s/ John B. Ward
JOHN B. WARD
Assistant United States Attorney
1801 Fourth Avenue North
Birmingham, AL 35203
(205) 244-2001

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