`
`
`
`Case: 19-3054 Document: 35 Filed: 12/28/2020 Pages: 4
`NONPRECEDENTIAL DISPOSITION
` To be cited only in accordance with Fed. R. App. P. 32.1
`
`United States Court of Appeals
`
`For the Seventh Circuit
`Chicago, Illinois 60604
`
`Argued November 18, 2020
`Decided December 28, 2020
`
`Before
`
`DIANE S. SYKES, Chief Judge
`
`MICHAEL S. KANNE, Circuit Judge
`
`DIANE P. WOOD, Circuit Judge
`
`
`No. 19-3054
`
`UNITED STATES OF AMERICA,
`
`Plaintiff-Appellee,
`
`
`
`
`JACQUELINE TUANQUI,
`
`Defendant-Appellant.
`
`
`v.
`
` Appeal from the United States
`District Court for the Northern
`District of Illinois, Eastern Division.
`
`No. 1:15-CR-00715(1)
`
`Andrea R. Wood,
`Judge.
`
`O R D E R
`
`A jury convicted Jacqueline Tuanqui of Medicare fraud, in part because she paid
`for patient referrals in violation of the Medicare Anti-Kickback Statute, 42 U.S.C.
`§ 1320a-7b(b)(2)(A), while operating a home-healthcare company. Tuanqui challenges
`the sufficiency of the evidence, arguing that no rational jury could have concluded that
`her fixed monthly payments to a recruiter constituted illegal per-patient referral fees.
`But the jury, in rendering a guilty verdict, was not required to find that Tuanqui made
`kickback payments on a per-patient basis. Because the government presented ample
`evidence that Tuanqui paid money for patient referrals, we affirm.
`
`

`

`Case: 19-3054 Document: 35 Filed: 12/28/2020 Pages: 4
`No. 19-3054
`
`Page 2
`
`I
`
`Tuanqui owned and operated a home-healthcare company, Hexagram Home
`Heath, LLC, from 2008 to 2015. Hexagram provided in-home care to patients and
`received $12.4 million—approximately 90% of its revenue—from Medicare claims.
`Tuanqui herself received approximately $1.4 million in checks from Hexagram and
`withdrew $800,000 in cash from Hexagram accounts.
`
`In 2017, Tuanqui and several Hexagram employees were charged in a
`superseding indictment with conspiracy to commit health care fraud (count 1),
`conspiracy to violate the Medicare Anti-Kickback Statute (count 2), substantive
`violations of the Medicare Anti-Kickback Statute involving codefendants Susie
`Avellanosa (counts 3–8) and Lourdes Ladlad (count 9), and visa fraud (count 10). The
`other defendants pleaded guilty, while Tuanqui’s case proceeded to an eight-day jury
`trial. Because Tuanqui’s appeal challenges the sufficiency of the evidence only with
`respect to counts three through eight, which involved payments to cooperating
`codefendant Avellanosa, we focus on the record as it relates to her dealings with
`Avellanosa.
`
`At trial Avellanosa testified about her arrangement with Tuanqui and Hexagram.
`When she began working with Tuanqui in 2012, she agreed to refer 10 to 12 patients to
`Hexagram each month in return for Hexagram’s commitment to pay her $3,600 twice
`monthly. For any month that Avellanosa fell short, they agreed that she would make up
`the difference the next month. Avellanosa understood that the purpose of the
`arrangement was to compensate her $600 for each referral and “make it look like a flat
`rate.” She did no work for Hexagram other than referring patients. During her 16
`months at Hexagram, Avellanosa regularly missed her quota (though she met it once
`and exceeded it once). Nonetheless, twice each month, Tuanqui cut Avellanosa a check
`for $3,600. When Tuanqui discontinued their arrangement after 16 months, Avellanosa
`believed her reason was too few referrals.
`
`Testimony was also presented by another cooperating codefendant, Josarina
`Buenavista, Hexagram’s former health care services manager. Buenavista was familiar
`with Avellanosa’s work for the company, and she corroborated Avellanosa’s
`description of the latter’s arrangement with Tuanqui. She also testified about her
`understanding of the scope of the Anti-Kickback Statute. When questioned on cross-
`examination by Tuanqui’s counsel, Buenavista said that, as she understood it, the
`statute prohibited only a specific form of payment for patient referrals—“paying on a
`per-patient basis”—and flat-fee payments were always permissible. On redirect,
`Buenavista confirmed that Avellanosa was paid a flat fee but added that she still “had
`concerns” about the arrangement’s legality. Other government witnesses testified that
`
`

`

`Case: 19-3054 Document: 35 Filed: 12/28/2020 Pages: 4
`No. 19-3054
`
`Page 3
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`they understood the Anti-Kickback Statute to prohibit paying for patient referrals, with
`no mention of flat versus per-patient fees.
`
`After the government presented its case, Tuanqui moved under Federal Rule of
`Criminal Procedure 29 for a judgment of acquittal on all counts. The court denied the
`motion because it found the government’s evidence sufficient to sustain convictions.
`The jury then convicted on all ten counts, finding, as pertinent here, each check written
`to Avellanosa to be an illegal kickback.
`
`After trial, Tuanqui challenged the sufficiency of the evidence against her,
`moving again for a judgment of acquittal under Rule 29 on counts three through eight
`as well as for a new trial under Federal Rule of Criminal Procedure 33 on the other
`counts. The court denied both motions, concluding that a reasonable jury could find,
`based on Avellanosa’s testimony, that Tuanqui paid her for patient referrals.
`
`II
`
`On appeal, Tuanqui challenges the denial of her posttrial motion for a judgment
`of acquittal, renewing her argument that the government’s evidence was legally
`insufficient on counts three through eight. But the evidence at trial, when viewed in the
`light most favorable to the prosecution, see United States v. George, 900 F.3d 405, 409
`(7th Cir. 2018), was sufficient for the jury to find that that Tuanqui and Avellanosa
`exchanged money for patient referrals—an arrangement that qualifies as an illegal
`kickback. Multiple witnesses testified that Tuanqui agreed to pay Avellanosa $7,200 per
`month for her efforts to refer 10 to 12 patients per month. The jury also heard evidence
`that the only work Avellanosa did for Hexagram was referring patients, and that
`Tuanqui eventually fired her for referring too few patients. Tuanqui does not dispute
`that she made the payments in question or that Avellanosa tried to refer 10 to 12
`patients per month as part of their agreement.
`
`Tuanqui nonetheless challenges the sufficiency of the evidence on the ground
`that the government failed to prove that Tuanqui paid Avellanosa on a per-patient
`basis, as opposed to a flat fee. In her view, the government argued at trial that she
`compensated Avellanosa per patient, and it thus waived any argument (by failing to
`present it to the jury, see United States v. Barta, 776 F.3d 931, 939 (7th Cir. 2015)) that flat-
`fee payments could also be illegal kickbacks.
`
`But Tuanqui is not doing justice to the record. The government did in fact tell the
`jury that Tuanqui paid Avellanosa an illegal kickback in the form of a fixed bimonthly
`payment. And as a matter of law, paying for patient referrals violates the Anti-Kickback
`Statute regardless of how the payments are structured. See 42 U.S.C. § 1320a-7b(b)(2)
`(prohibiting “any remuneration (including any kickback, bribe, or rebate) directly or
`indirectly, overtly or covertly …” to induce a person to refer a patient for services paid
`
`

`

`Case: 19-3054 Document: 35 Filed: 12/28/2020 Pages: 4
`No. 19-3054
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`Page 4
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`by a federal health care program) (emphasis added); United States v. Nagelvoort, 856 F.3d
`1117, 1122, 1126 (7th Cir. 2017) (upholding anti-kickback conviction for three defendants
`paid flat monthly fees); United States v. Borrasi, 639 F.3d 774, 781–82 (7th Cir. 2011)
`(finding payment in the guise of a salary an illegal kickback); United States v. Jain, 93
`F.3d 436, 438 (8th Cir. 1996) (upholding anti-kickback conviction for defendant paid a
`flat monthly fee). The jury instructions, consistent with the government’s trial
`arguments, accurately reflected the statute’s prohibition on “any remuneration”
`regardless of the payment structure.
`
`Finally, Tuanqui argues that she is entitled to a new trial on counts one, two,
`nine, and ten, because the jury’s legally defective findings on counts three through eight
`compromised the fairness of the entire trial. We reject this argument because the
`evidence on counts three through eight was more than sufficient to support her
`conviction.
`
`We have considered Tuanqui’s other arguments, and they are without merit.
`
`AFFIRMED
`
`