United States v. Adeline Ekwebelem
669 F. App'x 868
9th Cir.2016Background
- Adeline Ekwebelem was convicted of one count of conspiracy to commit health care fraud, twelve counts of health care fraud, and three counts of illegal remunerations for health care referrals; she appealed her conviction and sentence.
- The district court instructed the jury on defenses including the "bona fide employment relationship" safe harbor in 42 U.S.C. § 1320a-7b(b)(2)-(3); the court treated that safe harbor as an affirmative defense.
- The government struck Juror No. 3; defense challenged the strike as racially motivated under Batson principles.
- At trial, a witness made an unsolicited reference that Ekwebelem spoke “Nigerian”; the defense argued this was prejudicial.
- The government introduced evidence of default notices on Ekwebelem’s real properties to show financial motive.
- Ekwebelem claimed her trial counsel had an actual conflict of interest and that counsel’s failure to cross-examine certain witnesses was ineffective assistance; she had orally waived the conflict argument before trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether the §1320a-7b(b)(2)-(3) "bona fide employment" safe harbor is an affirmative defense | Safe harbor should negate an element; government must disprove by its case | Safe harbor is a defensive, per se legal status the defendant must assert | Court: Safe harbor is an affirmative defense; any error in jury instruction was harmless because evidence showed marketers were independent contractors outside the safe harbor |
| 2. Whether prosecution’s strike of Juror No. 3 was a pretext for racial discrimination | Strike was pretextual and discriminatory | Proffered race-neutral reasons (attendance concerns; juror’s stated bias from Medicare experiences) | Court: No plain error; government’s race-neutral reasons were acceptable |
| 3. Whether witness reference to defendant speaking "Nigerian" was reversible error | Reference appealed to ethnic prejudice and denied fair trial | Statement was unsolicited, not an appeal to racial/ethnic prejudice, and evidence against defendant was overwhelming | Court: Not plain error; reference did not violate constitutional rights |
| 4. Admissibility of default notices on defendant’s properties | Evidence was prejudicial and irrelevant | Notices were relevant to show immediate financial need and motive | Court: Admission not plain error; relevant to motive |
| 5. Whether defense counsel labored under an actual conflict or provided ineffective assistance | Counsel had an actual conflict that adversely affected performance; failing to cross-examine prejudicial | Counsel’s choices were reasonable tactical decisions; defendant waived conflict claim orally before trial | Court: Record does not support an actual conflict; tactical decisions reasonable; claim waived |
Key Cases Cited
- United States v. Nobari, 574 F.3d 1065 (9th Cir. 2009) (racial/ethnic prejudice standards in criminal trials)
- United States v. Cabrera, 222 F.3d 590 (9th Cir. 2000) (improper appeals to ethnic prejudice)
- United States v. Marcus, 560 U.S. 258 (U.S. 2010) (plain-error standard and effect on fairness of proceedings)
- Puckett v. United States, 556 U.S. 129 (U.S. 2009) (plain-error review principles)
- United States v. Bensimon, 172 F.3d 1121 (9th Cir. 1999) (financial distress as evidence of motive)
- United States v. Baker, 256 F.3d 855 (9th Cir. 2001) (standards for actual conflict of interest claims)
- United States v. Moore, 159 F.3d 1154 (9th Cir. 1998) (defining actual conflict that adversely affects performance)
- United States v. Murray, 751 F.2d 1528 (9th Cir. 1985) (strategic decisions like foregoing cross-examination are permissible)
AFFIRMED.