An Alexander doctor on trial for multiple counts of fraud, conspiracy, identity theft and lying to the FBI was found guilty of all 22 counts by a jury of seven men and five women in federal court Thursday.
Dr. Joe David May, also known as "Jay May," faced 22 federal counts including one count each of conspiracy to generate kickbacks and generate fraudulent prescriptions, solicitation and receipt of kickbacks and bribes, falsifying records to impede an investigation, false statements, two counts of identify theft, four counts of fraud and 10 counts of aiding and abetting wire fraud.
The jury deliberated for three hours after four full days of testimony and a day of closing arguments and instructions. Over the course of the trial, they heard from co-defendants, Tricare beneficiaries and investigators as assistant U.S. attorneys Alex Morgan and Stephanie Mazzanti attempted to provide a picture of May's involvement in the fraud and subsequent cover-up attempt and as defense attorney Shelly Koehler of Fayetteville attempted to poke holes in that picture.
At about 6:25 p.m. court officials were notified the jury had reached a verdict and within a few minutes, May and Koehler, along with about a dozen of May's family members who have been present throughout the trial, walked quietly into the courtroom, quickly followed by Morgan and Mazzanti. At 6:35, U.S. District Judge Kristine G. Baker walked in and called the court to order.
Before calling the jury in, Baker admonished the courtroom to remain orderly while the verdicts were read.
"It's going to take a while to read these verdicts so everyone please keep their composure and I don't want any outbursts, please," Baker said. "Let's all hold it together while I make it through all of the verdicts, please."
As Baker read the first verdict, guilty on Count 1 -- conspiracy to commit wire fraud -- May's wife began to sob quietly in the gallery as May, seated at the defense table, looked alternately at his hands folded in his lap and the far wall of the courtroom, his face expressionless during the eight minutes it took Baker to read verdicts on all 22 counts. After that, at Koehler's request, Baker polled each juror on each count, asking if they had voted guilty, which took another 25 minutes.
In Koehler's summation for the defense, she said the government's case amounted to trying to pound a round peg into a square hole, "and no matter how hard they try to shove and shove and shove, it just doesn't fit."
Koehler hit hard on the lack of a recording of May's January 2016 FBI interview. FBI Special Agent Jill Hudson, when testifying on Wednesday, said she and another agent, Justin Beach, interviewed May while Beach took notes of the interview.
"I asked Agent Hudson was the interview recorded," Koehler said. "I said 'why not' and she said 'I don't know, it's policy.'"
The lack of recordings from May's interview, Koehler said, made it impossible to determine for sure what May had or had not said to the FBI.
"Here we are, seven years later," she said, "arguing about what he said or what he didn't say."
Koehler pulled up a number of prescription forms that she said had what looked like May's signature but which she said were actually forged without May's knowledge.
"Fraud has absolutely been committed," she said, "but not by my client. Not even remotely close to by my client."
In his closing, Morgan walked jurors through each of the charges against May, the different elements of each charge, and a timeline of the events that culminated in charges against a total of 10 people, including May, on federal counts of fraud and conspiracy.
Morgan told jurors that May signed prescriptions at the behest of his longtime friend, Derek Clifton, a former Baxter County basketball coach-turned-medical sales rep, and that the fraud went on as long as it did because Tricare didn't -- as a matter of course -- question prescriptions until and unless it was alerted that something was wrong.
"Tricare is not in the business of catching fraud," Morgan said. "Tricare is in the business of delivering health care to our nation's veterans. They trust the professionals to do the right thing."
In the case of May, Morgan said, that trust was betrayed. He said Clifton, along with Glenn Hudson -- who also testified at the trial -- developed a streamlined process for finding Tricare beneficiaries, signing them up for high-cost drugs from a Mississippi compounding pharmacy, sending pre-filled prescription forms needing only a provider's signature to willing doctors who would then sign off on the prescriptions without ever having seen or talked to the patients receiving the prescriptions.
May was originally charged in January 2020 along with Clifton in a 41-page indictment. A superseding indictment the following September added Kenneth Myers Jr. of Alpharetta, Ga., to the indictment.
Clifton, who pleaded guilty in November 2020 to one count of conspiracy to violate the federal anti-kickback statute, testified earlier this week against May, implicating him in the issuance of over 200 prescriptions written to more than a hundred Tricare beneficiaries over a one-year period in 2015. Clifton was sentenced to 51 months in prison in May 2021.
Myers pleaded guilty to conspiracy to violate the federal anti-kickback statute in August and is awaiting sentencing. He faces a maximum penalty of five years in prison. Myers did not testify at May's trial.
Other co-conspirators -- charged in separate indictments -- are Donna Crowder of North Little Rock, Jennifer Crowder (formerly Bracy) of Little Rock, Keith Benson of North Little Rock, Keith Hunter of Little Rock, Angie Johnson of North Little Rock, and Blake Yoder of Scott.
All have pleaded guilty to conspiracy to violate the federal anti-kickback statute.
May will be sentenced after completion of a pre-sentence report by the U.S. Probation Office, which will determine the federal sentencing guideline ranges for each of the counts May was found guilty on.
Statutory maximum penalties are five years in prison on the conspiracy count, the anti-kickback statute count, falsifying and altering records counts, and lying to the FBI. For the wire and mail fraud counts, the maximum sentence is 20 years in prison.
At the conclusion of the hearing, Baker allowed May to remain free on pre-trial conditions until his sentencing date. Once court was adjourned, May walked to the gallery and embraced his wife as other family members crowded around them, many in tears.