United States v. Akhigbe, 395 U.S. App. D.C. 257

Akhigbe, a DC Medicaid primary care physician, joined Amerigroup's network in December 2001.
Amerigroup audited Akhigbe in May 2004 and terminated him after finding only six percent documentation for billed services.
Government indicted Akhigbe for one count of health care fraud and 18 counts of making false statements related to health care; one false statement count was later dismissed.
At trial, government relied on patient/employee testimony and HCFA claim documentation dating back to 2002 to prove an ongoing fraud scheme and ‘impossible days’.
Defense argued mismanagement and delegated billing; Akhigbe sought a good-faith defense instruction and attempted to introduce testimony about his efforts to resolve debts with Amerigroup.
District court imposed a 53-month sentence above the Guidelines after trial; on appeal, the district court’s reasoning for the variance was found to be inadequate, leading to remand.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether evidence of pre-June 2004 false HCFA submissions was admissible	Government argues prior fraud evidence is highly probative of scheme and not unduly prejudicial.	Akhigbe contends Rule 403 exclusion; evidence is cumulative and prejudicial.	No abuse of discretion; admissible for probative value outweighing prejudice.
Whether the district court abused its discretion in excluding Stein testimony	Government asserts no abuse; testimony irrelevant to nonhearsay use and privileged.	Akhigbe claims Fifth/Sixth Amendment right to call favorable witnesses was violated.	No reversible error; court did not abuse discretion.
Whether the district court properly instructed on good faith defense	Government maintains the instructions, taken as a whole, sufficed to convey knowledge/willfulness and negate mere mismanagement.	Akhigbe contends the court failed to give explicit good-faith instruction tailored to his theory.	But for the overall instructions, including knowledge/willfulness, the court adequately conveyed the theory; no reversible error.
Whether the sentence as an above-Guidelines deviation was procedurally proper	Government argues the district court properly weighed factors and justified variance.	Akhigbe asserts the court failed to provide specific, written reasons and an adequate oral explanation for the 53-month sentence.	Plain error; vacate and remand for resentencing due to inadequate written/oral justification.

Henderson v. George Washington Univ., 449 F.3d 127 (D.C. Cir. 2006) (Rule 403 balancing standard for evidentiary decisions)
United States v. Manner, 887 F.2d 317 (D.C. Cir. 1989) (probative value vs. prejudicial effect balancing evident from record)
United States v. Douglas, 482 F.3d 591 (D.C. Cir. 2007) (jury instructions and use of prior bad acts evidence)
United States v. Young, 107 F.3d 903 (D.C. Cir. 1997) (standard review of evidentiary rulings)
United States v. Lathern, 488 F.3d 1043 (D.C. Cir. 2007) (limitations on constitutional claims from evidentiary rulings)
In re Sealed Case, 527 F.3d 188 (D.C. Cir. 2008) (plain-error review for sentencing explanation; need for writing reasons)
Rita v. United States, 551 U.S. 338 (Supreme Court 2007) (context for advisory guidelines and variance/policy considerations)
Gall v. United States, 552 U.S. 38 (Supreme Court 2007) (procedural requirements for explanation of non-Guidelines sentences)
Kimbrough v. United States, 552 U.S. 85 (Supreme Court 2007) (district courts may consider non-Guidelines arguments; substantive reasons for variance)