United States v. Abdallah (629 F. Supp. 2d 699, 2009)

MEMORANDUM AND OPINION

LEE H. ROSENTHAL, District Judge.

This Medicare and Medicaid fraud case arises out of ambulance transportation of individuals to and from regularly scheduled, nonemergency dialysis treatments. The individuals transported all suffered from renal disease. The government alleged that Mazen and Wesam Abdallah, brothers who purchased and operated an ambulance service from the codefendants, committed fraud and conspiracy to defraud by submitting claims for payment by Medicare and Medicaid for regularly scheduled nonemergency ambulance transports to and from dialysis of patients whose medical conditions did not make them medically eligible for the service. The government also alleged that Wesam Abdallah violated the statutory “antikickback” provisions prohibiting soliciting ambulance riders by paying them or someone else to obtain the business, and that Mazen Abdallah committed money laundering using the proceeds of the healthcare fraud.

Two codefendants, Ayad Fallah and Mu-rad Almasri, pleaded guilty to conspiracy to commit health care fraud. After a five-week trial in which the codefendants were among over forty witnesses, the jury convicted Mazen and Wesam Abdallah of conspiracy to defraud Medicare and Medicaid programs and to obtain money from Medicare and Medicaid by false billing, in violation of 18 U.S.C. § 1347. The jury acquitted Mazen Abdallah of the substantive healthcare fraud counts and acquitted him of the money laundering charge. The jury convicted Wesam Abdallah of four substantive counts of healthcare fraud and one count of violating the antikickbaek statute. Both defendants moved for a judgment of acquittal or in the alternative for a new trial. They argue that the evidence was insufficient and that prosecutorial misconduct, Brady violations, and the court’s erroneous legal rulings infected the trial.

Based on a careful review of the motions, response, and replies; the record; the evidence presented at trial; and the applicable law, this court denies the Abdallahs’ motions for acquittal and new trial. The reasons for these and related rulings are explained in detail below.

I. Background

A. The Medicare Statute and Regulations

The Medicare Act, 42 U.S.C. § 1395 et seq., established a federally subsidized health insurance program. Part A of the Act provides insurance for the cost of hospital and related postdischarge services. 42 U.S.C. § 1395c et seq. Part B establishes a program of “supplemental medical insurance” covering physicians’ charges and other medical services, including ambulance service. 42 U.S.C. §§ 1395k, 1395(1), and 1395x(s); 42 C.F.R. § 410.40(a)(2). The Medicare program is run by the United States Department of Health and Human Services (HHS). HHS delegated the operation of Medicare to its component entity, the Centers for Medicare and Medicaid Services (CMS). CMS contracts with insurers in various regions of the country to act for HHS in reviewing, processing, and paying Medicare claims. These insurers act as HHS’s agents for the purposes of auditing claims for reimbursement by, and administering payments to, Medicare contractors. CMS is responsible for issuing guidance and instructions about the rules for beneficiaries’ eligibility for coverage and the criteria for payment. CMS issues such instructions through newsletters, bulletins, manuals, and other contractor publications. Both Medicare regulations and CMS instructions address the payment of claims submitted by ambulance transport companies for providing nonemergency, regularly scheduled ambulance service for beneficiaries traveling to and from dialysis treatments.

Medicare regulations provide for payment of part of the reimbursement claims submitted by ambulance transport companies for taking dialysis patients to and from treatment, under certain conditions. The ambulance transport service provider must be an approved supplier of ambulance services with a unique Medicare provider number. The transport must be medically necessary. The general rule is that Medicare will pay for ambulance transports “only if they are furnished to a beneficiary whose medical condition is such that other means are contraindicated. The beneficiary’s condition must require both the ambulance transportation itself and the level of service provided in order for the billed service to be considered medically necessary.” 42 C.F.R. § 410.40(d)(1). For nonemergency ambulance transportation to be “appropriate,” the beneficiary must be either “bed-confined, and it is documented that the beneficiary’s condition is such that other methods of transportation are contraindicated,” or have a medical condition “regardless of bed confinement” “such that transportation by ambulance is medically required.” Id. Bed-confinement is one factor in determining medical necessity, but not the “sole criterion.” Id. The regulation states that “[f]or a beneficiary to be considered bed-confined, the following criteria must be met: (1) The beneficiary is unable to get up from the bed without assistance. (2) The beneficiary is unable to ambulate. (3) The beneficiary is unable to sit in a chair or wheelchair.” Id.

A special rule for nonemergency, scheduled, repetitive ambulance services, such as the dialysis transports at issue in this case, states: “Medicare covers medically necessary nonemergency, scheduled, repetitive ambulance services if the ambulance provider or supplier, before furnishing the service to the beneficiary, obtains a written order from the beneficiary’s attending physician certifying that the medical necessity requirements of paragraph (d)(1) of this section are met.” 42 C.F.R. § 410.40(d)(2). These physician orders, known as Certificates of Medical Necessity (CMN), must be dated “no earlier than 60 days before the date the service is furnished.” Id. A separate special rule, § 410.40(d)(3), covers nonemergency ambulance services that are either unscheduled or scheduled on a nonrepetitive basis. Subsection 410.40(d)(3)(v) states: “In all cases, the provider or supplier must keep appropriate documentation on file and upon request, present it to the contractor. The presence of the signed certification statement ... does not alone demonstrate that the ambulance transport was medically necessary. All other program criteria must be met in order for payment to be made.”

For administrative efficiency, carriers typically authorize payment for a provider’s claims on receipt, absent glaring irregularities. Carriers may conduct postpayment audits to verify that the payments were proper. See 42 U.S.C. § 1395u; 42 C.F.R. § 421.200(a)(2).

B. The Evidence at Trial

In 2002, Ayad Fallah, Murad Almasri, and Raed Elmasri became the owners and operators of Unico International, Inc., dba Americare Medical Service (“Americare”). Americare provided ambulance transportation in Houston, Texas, primarily for Medicare beneficiaries who needed dialysis treatment on a regularly scheduled, non-emergency basis. Raed Elmasri, Americare’s president, was responsible for complying with the licensing and paperwork requirements imposed by Medicare and the Texas Department of Health. Murad Almasri, Raed’s younger brother, was the vice-president. He handled marketing and advertising. Ayad Fallah, who had trained as a doctor in Lebanon and Russia and was a licensed EMT, directed Americare’s day-to-day operations. Americare had a City of Houston Ambulance Service Permit, a Texas Emergency Medical Service Provider license, and a Medicare provider number.

Each Americare EMT filled out a run sheet for each trip, documenting the EMT’s information about each patient’s medical condition at the time of the transport. A run sheet included a brief statement of medical history and identified the patient’s condition using descriptions such as diabetes, end-stage renal disease, shortness of breath, or general weakness. A run sheet also indicated by using specified codes whether each patient was bed-confined and required movement by stretcher between the home or the dialysis center and the ambulance. Americare EMTs turned the run sheets in to the Americare office, which in turn submitted the sheets to a billing office. The billing office prepared the claims for submission to Medicare for payment to Americare. The billing office used the run-sheet information and codes to bill Medicare for the ambulance transport.

Americare initially used a company called Express Billing to perform billing services. After roughly one year, Americare switched to Structure Billing, which it used from 2003 to 2005. Evelyne Almasri, Murad’s wife, began doing Americare’s billing in 2005. Evelyne Almasri used a computer software program called Medisoft that was set up to bill Medicare based on the diagnosis codes entered on the run sheet for each ambulance transport. During the relevant period, Medicare would pay healthcare providers such as Americare approximately $225 for each trip, or $450 for each round-trip transport, for ambulance transport services.

When Fallah and Murad Almasri owned Americare, Almasri was in charge of obtaining patients to use Americare’s ambulance transport service. When Americare began operating in 2002, Murad Almasri looked for potential patients at dialysis centers, nursing homes, and hospitals. Dialysis patients typically have three appointments per week that require some form of transportation. Many of the dialysis patients that Murad Almasri recruited to ride in Americare ambulances were initially clients of other ambulance companies. Fallah testified at trial that the ambulance transport business in Houston was highly competitive. In 2002, when Americare began operating, there were approximately 60 ambulance companies in Houston, and by 2007, there were approximately 300 companies. When Murad Almasri had difficulty recruiting patients to switch from the ambulance company they were using to Americare, he offered them cash payments as an incentive. These cash payments were made on a monthly basis for as long as the patient used Americare for ambulance transport to their dialysis treatments. Fallah testified that Murad Almasri was paying approximately one out of ten Americare patients to use Americare’s ambulance service.

Murad Almasri testified that in 2005, he recruited a man named Leobaldo to use Americare for ambulance transport to and from dialysis. At the time, Leobaldo was using another ambulance company. Leobaldo’s son-in-law, Sameh, was a friend of Murad Almasri’s and had worked at Americare for a brief period. Murad Almasri paid Sameh $1,000 up front, then $200 to $300 a month while Leobaldo used Americare for transportation to dialysis. Almasri also testified that in late 2005 or early 2006, he began paying Margarita Gomez $200 a month to use Americare’s ambulance service. Gomez began using Americare in 2004 and received treatment at Fondren Dialysis Center. She was referred to Americare by Kelvin Washington, a nursing home administrator whom Americare paid to solicit dialysis patients. A social worker at Fondren Dialysis believed that Americare’s clients were not medically eligible for ambulance transport to dialysis and stated that Americare could no longer transport Fondren patients to treatments. Gomez stopped using Americare for transportation to dialysis. After Murad Almasri told Washington that some of his referrals, including Gomez, were not being allowed to be transported to Fondren Dialysis Center, the Center began allowing Americare to transport patients there again. Murad Almasri convinced Gomez to return to Americare’s service by giving her the $200 monthly payment. These payments subsequently increased to $250 a month. Almasri testified that he paid cash to about seven patients (or their family members), including Leobaldo and Gomez, to use Americare’s ambulance service.

Murad Almasri testified that he met a City of Houston Metro-Lift driver named Mohamed while recruiting patients for Americare at a dialysis center. Metro-Lift is a public transportation service. It picks individuals up at their home or other designated place and provides curb-to-curb transportation service using specially equipped vans and sedans. The service is for individuals whose physical condition precludes them from using conventional public transportation. Using Metro-Lift requires physician approval. Metro-Lift is not an ambulance and does not provide ambulance service. Murad Almasri paid Mohamed for his current Metro-Lift “manifest” or a list of the patients he drove to and from dialysis on a regularly scheduled basis. Almasri initially paid Mohamed $30 for each name of a dialysis patient on the manifest who used a wheelchair. (Docket Entry No. 374, at 24). Murad Almasri did not initially ask Mohamed for the names of other types of Metro-Lift customers. (Id.). Murad Almasri’s attempts to recruit patients from these Metro-Lift lists were largely unsuccessful. He then asked Mohamed to continue providing updated Metro-Lift manifests and agreed to pay Mohamed $400 for every patient from those manifests who signed up to ride to dialysis with Americare instead of Metro-Lift. From 2004 to 2006, Murad Almasri paid Mohamed for approximately eight or nine patients who had been on the Metro-Lift manifests and agreed to use Americare ambulances to go to and from dialysis treatment on a regularly scheduled, nonemergency basis.

Fallah also paid to solicit individuals to ride to and from dialysis on Americare ambulances. Fallah testified that he entered into an arrangement with Kelvin Washington, the administrator of Sugar Land Nursing Home (SLNH), to pay Washington to have patients at the nursing home use Americare ambulances to travel to and from their dialysis treatments. Fallah met Washington while Fallah was driving Americare ambulances as an EMT. Washington told Fallah that SLNH’s agreement with another ambulance service company was about to expire. Washington and Fallah entered into an agreement that Americare would be the primary provider of ambulance services for SLNH patients. This arrangement gave Americare access to a new source of customers. Dialysis patients typically did not stay at SLNH long term. Once these patients returned home, Americare would recruit them to continue using the ambulances to ride to and from dialysis.

Americare paid Washington for these patients. America initially agreed to pay Washington $500 for every new dialysis patient who came to SLNH and who would ride on America ambulances to and from dialysis. Americare made the first payment by check on November 11, 2003. Washington suggested that the memo notation on this check state “petty cash.” The notation on subsequent checks from Americare to Washington stated “commission.” By early 2006, Americare was paying Washington $1,000 for every dialysis patient at SLNH who rode to and from treatment on Americare ambulances. At trial, the government presented several of these “commission” checks made out to Washington between November 2003 and June 2006.

In late 2004, Tina, the owner of Structure Billing, told Fallah about problems with the run sheets being filled out by Americare EMTs. Fallah testified that according to Tina, Medicare had denied several claims because of information the EMTs had put on the run sheets about the patient’s condition. The information included details like observing the patient sitting in a wheelchair on arrival. Tina told Fallah that if a run sheet indicated that the patient was able to sit in a wheelchair, Medicare would likely deny the claim. Fallah testified that he asked Tina to explain the run sheet mistakes to the Americare EMTs. Tina subsequently came to Americare and told the EMTs how to fill out the run sheets to avoid having them declined by Medicare.

The jury heard evidence that during the period of Raed Elmasri, Murad Almasri, and Fallah’s ownership, some of the clinical social workers at dialysis centers believed that some of Americare’s clients were not medically eligible for Medicare-provided ambulance transport to dialysis treatments. The evidence showed that Murad Almasri knew of these concerns. Almasri testified that in late 2005 or early 2006, a social worker at Fondren Dialysis Center told Americare it could not transport patients there any more. Vanessa Beltran, a social worker at a DaVita Kidney Dialysis center, testified that her observations of a patient named Richard Didsbury led her to conclude that he did not need an ambulance to get to dialysis. She told Didsbury that she did not believe that he qualified for ambulance transport under Medicare’s criteria.

By late 2005, Americare was transporting, each month, approximately 29-31 patients by ambulance to and from their regularly scheduled dialysis treatments. At trial, the government presented evidence that some of these patients could walk or sit in a wheelchair at the time of transport. The government also presented evidence that some of Americare’s clients were medically able to travel to dialysis treatments by means other than ambulance. Several of the patients transported by Americare, including Leobaldo Pereznegron, had been using, and were able to use, Metro-Lift for transportation to dialysis. Fallah testified that when Americare did not have an available ambulance and he could not get a back-up ambulance from another company, Americare’s owners transported the patient to or from dialysis in private cars. Fallah knew of two occasions on which Murad Almasri had picked up Margarita Gomez in his own car — not an ambulance — and taken her home from her dialysis treatment.

Mazen and Wesam Abdallah are first cousins of Murad Almasri and Raed Elmasri. The Abdallah brothers came to Houston from New Orleans in the fall of 2005 after their family’s home and business were destroyed in Hurricane Katrina. When they arrived in Houston, the Abdallahs did not have jobs and stayed at Raed Elmasri’s apartment. Mazen Abdallah was a recent law-school graduate. While at Americare’s office, Mazen Abdallah met Fallah and asked him about the ambulance service business in Houston. Fallah told Mazen Abdallah that the business was good and that Americare was making more than a million dollars a year in profit. Mazen and Wesam Abdallah told Raed Elmasri that they wanted to start their own ambulance company to transport dialysis patients. Raed Elmasri told the Abdallahs that it typically took up to one year for a new ambulance company to obtain the necessary licenses, certifications, and Medicare provider number. He recommended that the Abdallahs begin recruiting patients to Americare while they worked on obtaining the necessary documents. Any patients the Abdallahs recruited would use Americare until the Abdallahs opened their own company. Raed Elmasri offered Mazen and Wesam Abdallah 25% of all amounts paid by Medicare for these patients. Once the Abdallahs obtained the necessary documents to start their own ambulance company, they would take these patients with them.

Murad Almasri taught the Abdallahs how to recruit dialysis patients to use a particular ambulance service to ride to and from dialysis. At trial, Almasri testified about taking Mazen and Wesam Abdallah with him, separately, to show them how to recruit dialysis patients to be Americare clients. Almasri testified about two specific instances when he and Mazen Abdallah went to visit a potential customer. One was to Edna Anderson, a dialysis patient who was using another ambulance service. Almasri testified that before this visit, he told Mazen Abdallah that Americare paid patients to ride in Americare ambulances to and from dialysis. During the visit, both Murad Almasri and Mazen Abdallah talked with Edna Anderson about Americare’s ambulance service. Anderson’s daughter, Patricia Williams, testified at trial that she and her mother were approached by Murad Almasri and Americare’s lawyer, whose name she could not recall, and that Almasri offered her mother money to use Americare’s ambulance transport service. Anderson was offered $1,000 to switch to Americare. According to Almasri, Mazen Abdallah identified himself as Americare’s attorney and told Anderson that she didn’t have to worry because Americare was a legitimate company and everything was legal. Anderson rejected the offer and did not switch to Americare. The other visit was to an elderly woman whose name and address Mu-rad Almasri had obtained from Mohamed at Metro-Lift. Almasri could not recall the woman’s name at trial. Before the visit, Murad Almasri told Mazen Abdallah about his arrangement with Mohamed and that the woman’s name and address had come from a Metro-Lift manifest. During the visit, Almasri did most of the talking with the woman, although Mazen Abdallah did talk with the woman’s daughter. Mu-rad Almasri testified that the woman rejected their offer of payment to use Americare.

Murad Almasri also told Wesam Abdallah that Americare paid patients to use its ambulance service for regular dialysis treatment transportation and about recruiting patients from Metro-Lift manifests obtained from Mohamed. (Docket Entry No. 374, at 67-68). Shortly thereafter, in November 2005, Wesam Abdallah began working as a van driver for Metro-Lift. He worked at Metro-Lift for a few months. Almasri testified that Wesam Abdallah began obtaining Metro-Lift manifests from work and recruiting his own ambulance patients from those manifests. Murad Almasri was still obtaining Metro-Lift manifests from Mohamed.

Before purchasing and operating Americare, Mazen and Wesam Abdallah recruited approximately seven patients to ride with Americare. At trial, the government presented several commission checks for the Abdallahs’s 25% share for these patients. All the checks were made out to Wesam Abdallah. Fallah testified that although some of the patients had been recruited by Mazen Abdallah, he wanted all the commission checks in his brother Wesam’s name. According to Fallah, Mazen Abdallah still received his share of the commissions from his brother.

In late March or early April 2006, Fallah told Mazen Abdallah that he, Raed Elmasri, and Murad Almasri were interested in selling Americare. Mazen Abdallah had discussions with all three men about buying Americare. Fallah testified that during one of the discussions, he told Mazen Abdallah about Americare’s agreement to pay Washington $1,000 for every dialysis patient he brought to SLNH. Fallah took Mazen Abdallah to meet Washington at SLNH in May 2006. At the meeting, Fallah told Washington that Mazen Abdallah would be the new owner of Americare.

On June 16, 2006, Mazen Abdallah and Will Smith purchased Americare from Raed Elmasri, Murad Almasri, and Fallah for $2.2 million. Mazen Abdallah drafted the legal documents for the sale. One of the documents, titled “Unico International, Inc., Waiver of Notice of Meeting and Unanimous Consent of Shareholders in Lieu of Meeting,” stated that Mazen Abdallah was elected president, secretary, and registered agent of the corporation and that Smith was elected vice-president. The document stated that Raed Elmasri and Fallah would each relinquish their one-third ownership of the corporation’s stock. Murad Almasri would relinquish his one-third stock ownership but would retain a one-percent ownership interest. Both Murad Almasri and Fallah testified that Mazen Abdallah included the one-percent retained-ownership provision so that Americare’s new owners could continue to receive Medicare payments. (Docket Entry No. 374, at 108-13). If Americare had completely new ownership, Medicare would stop paying claims until the new owners applied for and received a new Medicare provider number. (Id. at 111—12). Murad Almasri testified that he never received payment or compensation for the one-percent ownership he retained in Americare, which was intended to allow the Abdallahs to continue to use the existing Medicare provider number. (Id. at 111).

Fallah testified that Americare typically received Medicare payments three weeks after a particular transport. The parties agreed at the time of sale that Raed Elmasri, Murad Almasri, and Fallah would receive the Medicare payments received for transports performed before June 16, 2006. To help the new owners cover Americare’s operating expenses until they received Medicare payments for transports conducted after the sale date, Raed Elmasri, Murad Almasri, and Fallah gave Mazen Abdallah a $100,000 loan. According to Fallah, Mazen instructed Fallah and Mu-rad Almasri to write Americare checks to themselves and to pay him with cashier’s checks. At trial, the government introduced two checks written from Americare’s account totaling $100,000. One was payable to Fallah for $34,000 and signed by him, and the other was payable to Murad Almasri for $66,000 and signed by him. Murad Almasri testified that they cashed these checks and gave Mazen Abdallah the $100,000 loan in a cashier’s check. The loan was to be repaid in August 2006.

After the sale, Mazen and Wesam Abdallah operated Americare. Mazen asked Fallah to stay at Americare as a consultant for up to two months. Fallah worked as a consultant at Americare for two weeks after the sale. He helped to schedule the ambulance transports and ensure that the run sheets and CMNs were in order.

Fallah testified that during this transition period, he and Mazen Abdallah were in Americare’s office reviewing and discussing CMNs or prescriptions for ambulance transport to and from regular dialysis treatments. Mazen Abdallah asked Fallah what to do if the patient’s nephrologist refused to sign the certification form. Fallah said that he should ask the patient’s primary care doctor to sign the CMN. Mazen Abdallah told Fallah that there was a patient for whom neither doctor would sign the medical necessity form. Fallah told Mazen Abdallah that sometimes they called “easy” doctors who would look at a patient’s medical file and sign a CMN for ambulance transport. During this conversation, Mazen Abdallah was holding an unsigned CMN in front of him. Fallah testified that Abdallah gestured with his pen as if to sign the form and said, “What if we sign it by ourselves?” Fallah responded that Medicare could audit the company and discover that it was not the doctor’s signature. At trial, Fallah testified that while reviewing the medical necessity forms the very next day, the unsigned CMN Mazen Abdallah had been holding was signed. Fallah testified he did not know for sure if it was signed by Mazen Abdallah but that it had a signature and was in the stack of signed CMNs.

On June 30, 2006, Mazen Abdallah met with Washington and Raed Elmasri and Murad Almasri at a Houston restaurant to discuss continuing the relationship between SLNH and Americare. At the meeting, Raed Elmasri brought up the fact that Americare had been paying Washington $1,000 for every dialysis patient he brought to SLNH. According to Fallah and Murad Almasri, Mazen did not object or disagree with continuing this arrangement.

After the Abdallahs were indicted, FBI agents searched Mazen Abdallah’s home pursuant to a warrant on June 13, 2007. A Quicken log obtained from a computer during the search references a lunch meeting with the “SLNH Administrator” on June 30, 2006. (Government’s Trial Exhibit 113). At trial, the government presented evidence that Americare continued to pay Washington after Mazen Abdallah bought the company. Mazen Abdallah signed a $1,000 “commission” check made out to Washington on July 20, 2006. (Government’s Trial Exhibit 1.12.1d). A $1,000 commission check signed by Mazen Abdallah and dated August 25, 2006 was for patient M.H. (Government’s Trial Exhibit 1.12.1e). Marine- Hanchett was a patient at SLNH from August 28, 2006 to November 25, 2006. (Government’s Trial Exhibit 61). The government presented CMNs for Marine Hanchett signed by Dr. Kurt Merkelz, who worked at SLNH, dated September 13, 2006, February 2, 2007, and April 2, 2007. Each of these CMNs stated that Marine Hanchett was bed-confined. (Government’s Trial Exhibit 1.12.3). Dr. Merkelz testified that he had never treated or seen Marine Hanchett and that he signed the form without any information about her medical condition. Dr. Merkelz, who spent several hours each week at SLNH, testified that he had signed similar forms for patients he did not treat or know. Dr. Ami Thacker, who also worked on a part-time basis for the nursing home, gave similar testimony.

The government presented evidence that Americare obtained a number of signed CMNs from Washington at SLNH, signed by Dr. Merkelz and Dr. Thacker, for patients they had not seen. Americare EMTs Michael Montalbano and Kathleen Bell testified that Wesam Abdallah gave them envelopes to deliver to Washington at SLNH. Bell testified that the envelopes she received were sealed and she did not know what was in them. (Docket Entry No. 354, at 44:2-18). Montalbano testified that on one occasion, he opened an envelope that Washington gave him to bring back to Wesam Abdallah. Montalbano testified that the envelope contained CMNs for Americare clients signed by Dr. Merkelz and Dr. Thacker. Some of these CMNs were for clients Montalbano had been transporting. Montalbano knew that these clients were not SLNH residents.

The government also presented evidence that some of the CMNs found at Americare had photocopied physician signatures. Stormy Kelly, an employee of the Texas Medicaid Fraud Control Unit, testified that in reviewing the CMNs she found forms on which inspection showed that the doctor’s signature had been photocopied from a prior CMN and only the dates had been changed. Kelly came to this conclusion by holding the CMNs up to the light and finding that the signatures “lined up exactly.” (Docket Entry No. 364, at 25:5-16).

In addition to clients obtained through Washington at SLNH, Americare clients also came from Metro-Lift manifests. Government’s Exhibit 1.15 is a group of documents found in a folder in the garage of Mazen Abdallah’s home during that search. Exhibit 1.15 includes Metro-Lift manifests and typed lists of client names. Beneath each name are blanks for the client’s address, dialysis treatment center, “condition,” and “comment.” The medical conditions listed include “wheelchair,” “cane,” “blind,” and “ambulatory.” The comments describe the level of interest in ambulance transport with Americare, such as: “Possibility: Mother Against It”; “Former Client. Social Worker Drama”; “Will subscribe once Bisonnet Dialysis opens”; and “Wife Ain’t Having It!” One patient, Johnny Brooks, has “wheelchair” listed next to his condition, but the comment states “He Walks.”

Government’s Exhibit 1.9, referred to at trial as “The List,” was found in Mazen Abdallah’s home office during the search. The “List” is of Americare clients and the amounts paid to each, both an initial sign-up payment and a monthly payment. There is a heading for “miscellaneous” payments made to several clients. There are also payments set out under a heading for “Kelvin Washington.” Some of the clients on the list, like “Leobaldo-$200 (monthly); $1000 (saving sign up),” began using Americare before June 2006, but continued using the service after the change of ownership. And other clients on the list, like Ray “Stevenson — $200 (monthly),” began using Americare only after the Abdallahs bought the company in June 2006.

Additional evidence about Wesam Abdallah’s involvement in making payments to clients to recruit them to ride to and from dialysis treatments in Americare ambulances came from Murad Almasri’s testimony. (Docket Entry No. 374, at 100). He stated that Wesam Abdallah asked him and David, a Salvadorian mechanic who worked for Americare, to visit a Spanish-speaking woman to convince her to use Americare’s services. Murad Almasri testified that he speaks a little Spanish and that David’s English was not very good. (Id.). When the three men arrived at the home, the woman was not there, so they spoke with her husband, Alfredo Garcia. Murad Almasri testified that at Wesam Abdallah’s urging, they offered the husband cash payments if his wife agreed to be transported by Americare. Garcia testified that he was opposed to accepting any money, but left the decision up to his wife, Estella Garcia. She decided to accept a $500 initial payment and began using Americare for transportation to dialysis. Garcia’s name is on “The List,” with the notation “$500 (initial sign up).” (Government’s Trial Exhibit 1.9).

Evelyne Almasri formed A & A Billing on June 19, 2006 to perform the billing services for Americare after the sale to the Abdallahs. (Docket Entry No. 355, at 5). Evelyne Almasri earned a salary from Americare when she did the billing in-house, but after the sale to the Abdallahs, she was paid a percentage of the total billings. Typically, Wesam Abdallah or Americare EMTs gave Evelyne Almasri the completed run sheets, which she used to enter the codes into the computer billing system to prepare the bills and submitted those bills to Medicare or Medicaid. (Id., at 24-25). Evelyne Almasri testified that if a run sheet did not indicate that the patient was bed-confined, she would call Wesam Abdallah and ask him whether that patient was bed-confined. According to Evelyne Almasri, Wesam Abdallah never told her that he would have to check the patient’s records. Instead, he always immediately responded that the patient she had inquired about was bed-confined. Evelyne Almasri testified that either because the run sheet showed that the patient was bed confined or because Wesam Abdallah told her that was the patient’s condition, she marked bed-confined on the bill for each and every Americare patient for whom she billed Medicare for an ambulance transport when the Abdallahs owned and operated the company. She also testified that within months of the sale to the Abdallahs, the number of patients Americare was transporting increased from around 25-30 to approximately 50.

As the August 2006 due date for the $100,000 loan approached, Mazen and Wesam Abdallah told Murad Almasri that they felt that they had overpaid for Americare and would not pay back the loan. Murad Almasri told Fallah about the Abdallahs’ intentions. Fallah called Mazen Abdallah the day before the due date to discuss repayment. Fallah recorded this phone call, and the government played the recording at trial. During the conversation, Fallah and Mazen had an argument about the number of patients the Abdallahs received as a result of the sale of Americare. Before the sale, Americare had an arrangement with a man named Naief Abukhalid to recruit clients, identical to the arrangement with the Abdallahs. Abukhalid was also interested in starting his own ambulance company. He recruited clients for Americare while he waited for the necessary licenses and Medicare provider number for his own company, which became American Care EMS. In the interim, those clients rode with Americare and Abukhalid was paid for recruiting them. After Abukhalid’s company, American Care, became licensed, the clients would shift to the new company. Fallah testified that everyone knew at the time of the Americare sale to the Abdallahs that there were 42 patients, 31 who “belonged to” Americare and were part of the sale to the Abdallahs and 11 who “belonged to” Abukhalid and would eventually ride with American Care. In the phone call, Fallah said that he and Raed Elmasri and Murad Almasri had given the Abdallahs everything they bargained for and reminded Mazen that he had introduced him to Washington, a source of new clients. After the call ended, Fallah called back and said that he forgot to tell Mazen that “the process Americare is doing right now, it might get you in trouble with FBI, TDH, or [unintelligible] like your brother is [unintelligible].” (Government’s Trial Exhibit 1.11.1.a).

In the summer of 2006, an EMT named Brooke Mahalec left her job at Care Plus EMS, an ambulance transport company, and began working at Americare. While working at Care Plus, Mahalec had successfully recruited Ray Stevenson, a dialysis patient, to switch from riding on Freedom EMS to Care Plus. Stevenson had been riding with Care Plus for about four months when Mahalec went to work for Americare. While using Care Plus, Stevenson had applied for a permit to use Metro-Lift but was denied on the basis of medical ineligibility. Mahalec asked Stevenson to switch to Americare so that she could earn a commission from “Wesam,” who she described as Americare’s owner. Mahalec told Stevenson that if he began using Americare’s service, she would split her $1,000 commission with him. Stevenson used Americare for a few weeks in July 2006 and then switched back to Care Plus. He received no payment from Mahalec. After Stevenson returned to using Care Plus, he was approved for transportation by Metro-Lift but did not immediately switch to that shared-ride service.

On August 2, 2006, the FBI contacted Stevenson and asked for his help in getting information about Americare. Stevenson agreed to set up a meeting with Wesam Abdallah. Stevenson subsequently called Mahalec, obtained Wesam’s contact information, and scheduled a meeting with him for September 1, 2006 at Stevenson’s apartment. Before the meeting, FBI agents set up recording equipment in Stevenson’s apartment and gave him a recording device to keep in his pocket.

Stevenson had a lengthy medical history, including severe diabetes that had led to the amputation of several toes. Stevenson had been in a coma for approximately seven months during 2004 and for several months afterward had difficulty walking and other severe medical problems. He required dialysis several times each week. Stevenson testified that at the time of this meeting, in August and September 2006, he was capable of walking, driving, and going up and down the stairs of his second-floor apartment. He occasionally used a cane when pain in his right foot, the result of his toes being amputated, bothered him enough that he needed to use it.

At trial, the jury was shown a videotape of the meeting between Wesam Abdallah and Ray Stevenson. The meeting lasted about 15 minutes and was only between the two men, in Stevenson’s apartment. Stevenson is shown walking with his cane at the beginning, then sitting, unaided, on the couch. After Stevenson said that he was using Care Plus for transportation to dialysis, Wesam Abdallah said “They’re not giving you nothing?” Stevenson testified he understood Wesam Abdallah was asking whether Care Plus was paying him for using that ambulance transport service.

After a few minutes, Wesam Abdallah said he was feeling “uncomfortable” and asked to step outside of the apartment onto the front steps. Stevenson got up from the couch without help and walked outside with Wesam Abdallah and they continued their conversation. Abdallah told Stevenson, “I’ll take care of you. I mean, I don’t do business with the whole world. Do you understand?” Stevenson understood this to be an offer to pay him to use Americare’s ambulance service. Wesam Abdallah continued, saying, “[I]f you want to deal with me, man, it has to be between me, you, and God. Nobody else. You have to keep it that way. Look, I’ve got too much to lose. You understand? I’ve got too much to lose for you or everybody else.” Abdallah stated, “Either way it goes with her, now whether or not we get that signature or not, okay, I’m going to guarantee 500. All right? I’m going to guarantee it for you ... If you don’t get it done, we’ll help you. We’ll find one. All right. Whatever it takes.” Stevenson testified this meant regardless of what Mahalec did, Wesam Abdallah would pay Stevenson $500 if he was able to get a signed CMN prescribing ambulance transport to and from dialysis, and that if Stevenson was unable to get one of his two doctors to sign a CMN, Wesam Abdallah would find a doctor who would do so. Abdallah also told Stevenson, “Secondly, I’ll slip you two a month. All right?” Stevenson testified that Wesam Abdallah would pay him $200 a month as long as Stevenson used Americare.

Stevenson’s name was on Government’s Exhibit 1.9, the list of clients found in the study of Mazen Abdallah’s home. This list had notations about payments next to the client names, such as “$200 (monthly); $500 (initial sign up).” (Government’s Trial Exhibit 1.9). Next to Stevenson’s name was a hand-written notation of “$200 (monthly),” consistent with what Wesam Abdallah told Stevenson in their videotaped meeting about “slipping” him “two a month.” (Id,.).

After the September 1, 2006 meeting with Wesam Abdallah, Stevenson began riding with Americare again. When the Americare EMTs picked Stevenson up from his apartment, they gave him blank CMNs to take to his doctors. Stevenson’s doctors included a cardiologist, Dr. Shenoy, and a nephrologist at Acres Homes Dialysis Center, Dr. Malya. When Stevenson was using Freedom EMS, he had received signed CMNs for ambulance transport from Dr. Malya. There was evidence that as late as March 2006, Stevenson had received a signed CMN from Dr. Shenoy for ambulance transport by Care Plus. Stevenson saw Dr. Shenoy in April 2006 for chest pains and pains in his legs, and in June 2006 for chest pains, pains in his hip, and dizziness. In September 2006, Stevenson took the blank CMNs he received from Americare to his two doctors. Neither doctor would sign the CMN authorizing Stevenson as medically eligible for Medicare transport. Dr. Malya threw the form in the trash. Dr. Shenoy told Stevenson that he would not sign it because Stevenson did not need ambulance transport.

On October 3, 2006, Wesam Abdallah told Stevenson that he knew a doctor in Sugar Land who made house calls and, if needed, would evaluate Stevenson and sign a CMN stating that he needed ambulance transport to and from dialysis. Stevenson testified that no doctor ever came to evaluate him at his apartment.

The government presented evidence that Americare transported Stevenson to and from dialysis treatments on July 18, 2006, November 7, 2006, and December 2, 2006. Stevenson testified that on those days, like all other days on which Americare transported him, he could walk and would enter and exit his second-floor apartment to get to and from the ambulance by using the stairs. The government introduced into evidence a CMN for Stevenson signed by Dr. Merkelz and dated October 20, 2006 which states that ambulance transport was medically necessary because Stevenson was bed-confined and other means of transportation were contraindicated. (Government’s Trial Exhibit 30.8). There was no evidence that Stevenson was ever a resident at SLNH. (Government’s Trial Exhibit 61). At trial, Dr. Merkelz testified that he never saw or treated Stevenson. Americare billed Medicare $1,388.00 for the trips on July 18, 2006, $1,388.00 for the trips on November 7, 2006, and $1,388.00 for the trips on December 2, 2006. (Government’s Trial Exhibit 1.47-28). Medicare paid Americare $435.90 for each of these three dates. (Id).

After Stevenson quit using Americare for the second time, he began using Metro-Lift for transportation to and from his dialysis treatments. He continued to use Metro-Lift up until the time of trial.

The government also presented testimony from other Americare clients, including Estella Garcia and Reginald Batiste, about payments they received to use Americare. Murad Almasri and Wesam Abdallah paid Garcia $500 to begin using Americare. Garcia’s name is on “The List,” with the notation “$500 (initial sign up).” (Government’s Trial Exhibit 1.9). Exhibit 1.15, the typewritten list of Americare clients found in Mazen Abdallah’s home, stated that Garcia used a wheelchair. The run sheets for Garcia stated that she was bed-confined. Batiste testified that Wesam Abdallah paid him to begin using Americare. The “List” shows that Batiste was paid $100 on August 17, 2006. (Id.). Batiste had diabetes, end-stage renal disease, was blind, and a double amputee. The government presented evidence that, notwithstanding his ailments, he was able to and did use a wheelchair during the period of Americare transports. The run sheets for Batiste stated that he was bed-confined.

Batiste testified that Wesam Abdallah also offered to pay him if he referred other dialysis patients to Americare. Batiste referred Joseph Yanowski, but never received money for the referral and was not sure if Yanowski ever used Americare. Under the heading “Miscellaneous” on “The List,” it states “Reginald Batiste— $_(Commission for Yanowski).” (Id.). Americare transported Yanowski to his dialysis treatments between September and November 2006. Yanowski had end-stage renal disease, diabetes, and hypertension. Due to his diabetes, he had one foot amputated and lost some toes on his other foot. The government presented evidence that, notwithstanding his ailments, in fall 2006 he was able to and did use a wheelchair.

Sophronia Ladmirault, Lucendia Reed, and Oranell Lee were also paid to use Americare. On “The List” it states “Sophronia — $200 (monthly); $500 (initial sign up).” (Government’s Trial Exhibit 1.9). Ladmirault had renal disease and was recovering from leg surgery during the time period Americare transported her to dialysis. There was evidence that she was able to sit in a chair or wheelchair during this time frame. The government presented a CMN for Ladmirault signed by Dr. Merkelz of SLNH on April 2, 2007. It was undisputed that Ladmirault was never a patient at SLNH. With respect to Lueendia Reed, “The List” stated “Lucendia— $250 (monthly); $500 (initial sign up).” (Id.). Reed had renal disease but was able to walk. The government presented evidence that her attending physician had described her walking pattern and her ability to stand without holding onto anything as normal. Several CMNs signed by Dr. Merkelz certified that Reed was medically eligible for ambulance transport. It was undisputed that Reed too was never a patient at SLNH. With respect to Lee, “The List” stated “Oranell Lee — $250.” (Id.). The government presented evidence that Americare transported Lee to dialysis treatments between June 2006 and July 2007. The run sheets stated that Lee was bed-confined. Lee had renal disease and had hip replacement surgery in March 2006. She underwent rehabilitation and was unable to walk without help but was able to use a wheelchair during the relevant time frame. Dr. Debra Patterson, the government’s expert witness, testified that Lee’s medical records showed that she was not bed-confined, as defined by the Medicare regulations, and transportation by other means was not contraindicated.

The government also presented evidence about Americare’s transport of Yolanda Vargas. Vargas testified that when Americare ambulances came to pick her up in 2006 and 2007, she often walked out of her house, down the front stairs, and onto the stretcher. After she moved to the back of her house, Americare EMTs began helping her walk down the back stairs and onto the stretcher. For all of her transports, upon arrival at the dialysis center Vargas was transferred from the stretcher to a wheelchair and wheeled inside for treatment. Vargas testified that during this period of time, she walked to the grocery store two blocks from her home about four times. She also testified that one time she walked to a store that was “around the corner” from her dialysis center. Vargas testified that she used an ambulance service for transportation to dialysis because she had extreme difficulty walking and could not “catch a bus.” By the time of trial in April 2008, Vargas’s condition had worsened and she was using a wheelchair when she testified in court.

At trial, Dr. Patterson testified for the government about Vargas’s numerous medical ailments, including diabetes, high blood pressure, end-stage renal disease, abnormal blood protein, and deep vein thrombosis. (Docket Entry No. 311, at 23-25). She also testified that Vargas’s medical records showed a history of asthma, shortness of breath, and depression. (Id,.). Patterson testified that based on the information available to her, despite these medical conditions, Vargas was not medically eligible for Medicare coverage for ambulance transport to and from dialysis. Patterson stated that, based on her review of the run sheets for the transports on November 23, 2006 and January 11, 2007, there was no indication that Vargas was bed-confined or that transportation by other means was contraindicated. Vargas’s dialysis treatment records for those two dates show that Vargas arrived at and left the dialysis center sitting unassisted in a wheelchair. The government presented a video taken after Vargas’s dialysis treatment on January 11, 2007 which showed her walking from the ambulance up the front steps to her door with minimal assistance.

Vargas’s two treating doctors testified that her medical condition was not such as to make ambulance transport to and from her regularly scheduled dialysis treatments medically necessary. Dr. Patel, her nephrologist, testified that he refused to sign a CMN for ambulance transport for Vargas. Dr. McColloster testified that Vargas walked to his clinic for treatment and was not medically eligible for Medicare coverage for ambulance transport. Americare used CMNs for Vargas signed by Dr. Thacker and Dr. Merkelz. (Government’s Trial Exhibit 2.8). Vargas was never a resident at SLNH, (Government’s Trial Exhibit 61), and Dr. Merkelz testified that he never saw or treated Vargas. The Abdallahs presented an expert witness, Dr. Evans, who reviewed Vargas’s medical records and opined that, based on her numerous ailments and diseases, ambulance transport to her dialysis treatments was medically necessary.

Some of the health care fraud counts in the indictment were based on Americare’s transports of Vargas on October 31, 2006, November 23, 2006 and January 11, 2007. Americare billed Medicare $1460.00 for the trips on each of these three dates. (Government’s Trial Exhibit 1.47-30). Americare received $464.94 for the October 31 trips, $464.94 for the November 23 trips, and $472.60 for the January 11 trips. (Id.).

EMT Kathleen Bell testified that from November 2006 to April 2007, Wesam Abdallah was mainly responsible for the day-to-day operations of Americare, including scheduling, making sure the run sheets were collected, filled out, and submitted to the billing company, and obtaining CMNs. Evelyne Almasri testified that Mazen Abdallah was out of town during much of that period.

In January 2007, Mazen Abdallah and Will Smith entered into a purchase agreement to buy American Care from Naief Abukhalid and from Murad Almasri’s parents. Financing was obtained and the sale completed on March 26, 2007. Evelyne Almasri testified that after Mazen Abdallah purchased American Care, he brought her the run sheets for American Care’s clients. (Docket Entry No. 355, at 27). Evelyne Almasri testified that she dealt with Mazen Abdallah, not Wesam, in doing American Care’s billing because Wesam was operating Americare. (Id., at 26). In addition to bringing her the run sheets, Mazen Abdallah would pick up American Care’s Medicare remittance notices. Medicare remittance notices show the claims paid for each beneficiary under a particular check or electronic-funds transfer.

In early 2007, Murad Almasri went to Wesam Abdallah’s apartment to talk to Mazen about problems with the Americare sale. Both Mazen and Wesam Abdallah were present. While there, Murad Almasri saw a stack of Metro-Lift manifests, approximately six inches high. Murad Almasri knew that Wesam Abdallah was no longer working at Metro-Lift and asked where the manifests came from. Wesam Abdallah replied that he had a connection with the dispatch people at Metro-Lift. (Docket Entry No. 374, at 91-94).

On April 23, 2007, the Aballahs, along with Raed Elmasri, Murad Almasri, and Fallah, were charged with conspiracy to violate 18 U.S.C. § 1347 by submitting fraudulent claims for the ambulance transportation provided by Americare. On October 15, 2007, a superseding indictment alleged that “[i]t was [the] object of the conspiracy that defendants unlawfully enriched themselves by false and fraudulently representing the conditions of Medicare and Medicaid beneficiaries in order to bill Medicare and Medicaid for transport by ambulance to regularly scheduled non-emergency dialysis treatments, when in fact defendants well knew that the beneficiaries did not qualify for these transports.” (Docket Entry No. 126). Raed Elmasri, Murad Almasri, and Fallah were charged with multiple counts of health care fraud under 18 U.S.C. § 1347 and § 2 for the dialysis transports of several patients. Mazen and Wesam Abdallah were charged with seven counts of health care fraud under 18 U.S.C. § 1347 and § 2 for dialysis transports of Yolanda Vargas, Mary Martinez, and Ray Stevenson. (Id.).

Wesam Abdallah, Raed Elmasri, and Murad Almasri were also charged with violating 42 U.S.C. § 1320a-7b(b)(2)(A), the antikickback statute, by paying to obtain patients who would use Americare. Raed Elmasri, Murad Almasri, Fallah, and Mazen Abdallah were charged with conspiracy to launder funds under 18 U.S.C. § 1956(h).

Murad Almasri and Fallah pleaded guilty to conspiracy to commit health care fraud and testified for the government at trial. Raed Elmasri remains a fugitive. The Abdallahs proceeded to trial. Mazen Abdallah was convicted of conspiracy to commit health care fraud and acquitted on the substantive health care fraud and money laundering counts. Wesam Abdallah was convicted of conspiracy to commit health care fraud, four substantive counts of health care fraud, and one violation of the antikickback statute. The four substantive counts of fraud were Counts 31 and 32, for Americare’s ambulance transports of Stevenson on November 7, 2006 and December 2, 2006, respectively, and Counts 3 and 4, for the ambulance transports of Yolanda Vargas on November 23, 2006 and January 11, 2007, respectively.

The motions for acquittal, or in the alternative, a new trial, followed.

II. The Motion for Judgment of Acquittal

A. Legal Standard

“A motion for judgment of acquittal challenges the sufficiency of the evidence to convict.” United States v. Lucio, 428 F.3d 519, 522 (5th Cir.2005) (quoting United States v. Medina, 161 F.3d 867, 872 (5th Cir.1998)). When the defendant challenges the sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); see also United States v. Lopez-Urbina, 434 F.3d 750, 757 (5th Cir.) (applying Jackson), cert. denied, 546 U.S. 1024, 126 S.Ct. 672, 163 L.Ed.2d 541 (2005). The court considers the evidence, all reasonable inferences drawn therefrom, and all credibility determinations in the light most favorable to the prosecution. United States v. Ramos-Cardenas, 524 F.3d 600, 605 (5th Cir.2008); see also United States v. Resio-Trejo, 45 F.3d 907, 910-11 (5th Cir.1995). The court’s role does not extend to weighing the evidence or assessing the credibility of witnesses. Ramos-Cardenas, 524 F.3d at 605. The evidence need not exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, and the jury is free to choose among reasonable constructions of the evidence. Id.; see also Resio-Trejo, 45 F.3d at 911. The jury “retains the sole authority to weigh any conflicting evidence and to evaluate the credibility of the witnesses.” United States v. Loe, 262 F.3d 427, 432 (5th Cir.2001) (citation and internal quotation marks omitted).

B. Analysis

1. Conspiracy to Commit Health Care Fraud

The superseding indictment alleged that the Abdallahs conspired to violate the health care fraud statute and that “[i]t was an object of the conspiracy that defendants unlawfully enriched themselves by falsely and fraudulently representing the conditions of Medicare and Medicaid beneficiaries in order to bill Medicare and Medicaid for transport by ambulance to regularly scheduled non-emergency dialysis treatments, when in fact defendants well knew that the beneficiaries did not qualify for those transports.” (Docket Entry No. 126, at 7). As part of the conspiracy, the Abdallahs allegedly paid dialysis patients or their family members to ride with Americare, regardless of whether the patients had conditions that made ambulance transport medically necessary. The indictment alleged that the Abdallahs “falsely presented] prescriptions to nursing home staff in order to secure staff physicians’ signatures for ambulance transports of dialysis patients who had never been under the care of the nursing home.” (Id. at 9). The indictment alleged several overt acts of the conspiracy, including the substantive counts of the indictment.

The Abdallahs argue that the evidence was insufficient to support a jury finding beyond a reasonable doubt that: 1) the individuals they transported were ineligible for Medicare coverage for ambulance transport; 2) the Abdallahs knew the patients were ineligible; or 3) they intentionally and falsely misrepresented the patients’ medical conditions to Medicare.

To support a conviction for conspiracy under 18 U.S.C. § 371, the government must prove: (1) an agreement between two or more persons to pursue an unlawful objective; (2) the defendant’s knowledge of the unlawful objective and voluntary agreement to join the conspiracy; and (3) an overt act by one or more of the members of the conspiracy in furtherance of the objective of the conspiracy. United States v. Dadi, 235 F.3d 945, 950 (5th Cir.2000). To support a conviction for health care fraud under 18 U.S.C. § 1347, the government must prove that the defendant: (1) knowingly and willfully executed, or attempted to execute, a scheme or artifice; to (2) defraud a health care benefit program or to obtain by false or fraudulent pretenses any money or property under the custody or control of a health care benefit program; (3) in connection with the delivery of or payment for health care benefits, items, or services.

To prove conspiracy, “[t]he government must prove the same degree of criminal intent as is necessary for proof of the underlying substantive offense.” Dadi, 235 F.3d at 950. Circumstantial evidence can support a finding of specific intent. Id. (conspiracy); see also United States v. Hughes, 230 F.3d 815, 821 (5th Cir.2000) (money laundering); United States v. Ismoila, 100 F.3d 380, 387 (5th Cir.1996) (fraud). The government need not prove that a defendant was aware of specific regulations, nor need it introduce evidence that would conclusively demonstrate a defendant’s state of mind. It suffices to show facts and circumstances from which the jury reasonably could infer that a defendant knew his conduct was unauthorized and illegal. United States v. Bordelon, 871 F.2d 491, 494 (5th Cir.1989); see also United States v. Forcada, 206 Fed.Appx. 969, 971 (11th Cir.2006) (rejecting defendant’s argument of insufficient evidence for conviction of conspiracy to commit health care fraud where there was circumstantial evidence sufficient to permit a jury to infer “that the defendant acted with the specific intent to defraud”).

When proving conspiracy, “[a]n express agreement is not required; a tacit, mutual agreement with common purpose, design, and understanding will suffice.” United States v. Infante, 404 F.3d 376, 385 (5th Cir.2005). “[A]ssent to a conspiracy may be inferred from acts which furthered the purpose of the conspiracy.” United States v. Marx, 635 F.2d 436, 439 (5th Cir.1981). “Because secrecy is the norm, each element may be established by circumstantial evidence.” United States v. Farias, 469 F.3d 393, 398 (5th Cir.2006); see also Unit