United States v. Enitan Isiwele
2011 U.S. App. LEXIS 4425
| 5th Cir. | 2011Background
- Isiwele owned Galaxy Medical Supply, a durable medical equipment provider that billed Medicare/Medicaid for power wheelchairs.
- Medicare waived certain documentary requirements for replacements after Hurricanes Katrina and Rita for beneficiaries who already met prescription/necessity criteria.
- Galaxy billed $587,382.65 and was reimbursed $297,381.04 under the hurricane waiver.
- Isiwele was charged with sixteen counts of health care fraud and one count of conspiracy to pay kickbacks; Linda Patterson was the recruiter.
- At sentencing, the district court used the billed amount to determine loss, and added mass marketing and abuse-of-trust enhancements; restitution was $201,397.34.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Loss amount determines base offense level under guidelines. | Isiwele argues loss is the total paid, not billed. | Isiwele contends the proper loss is the capped Medicare/Medicaid allowances. | Remanded for resentencing on loss calculation. |
| Whether mass marketing enhancement applies. | Isiwele asserts mass marketing did not target victims. | Gov't contends recruiters' face-to-face recruitment constitutes mass marketing. | Mass marketing enhancement upheld. |
| Whether abuse of trust enhancement applies. | Isiwele contends no trust relationship with Medicare/Medicaid. | DME supplier status creates trust with program. | Abuse of trust enhancement affirmed. |
| Exclusion of witnesses' prior inconsistent statements as to authenticity. | Proffered documents should be admitted for impeachment. | District court erred by excluding documents lacking perfect authentication. | Exclusion deemed abuse of discretion but harmless. |
Key Cases Cited
- United States v. Whittington, 783 F.2d 1210 (5th Cir. 1986) (authentication suffices to admit unsigned impeaching statements; credibility for weight goes to jury)
- United States v. Jackson, 625 F.3d 875 (5th Cir. 2010) (harmless error review for evidentiary rulings; abuse of discretion standard)
- United States v. Harris, 597 F.3d 242 (5th Cir. 2010) (de novo review of loss-determination methodology; factual findings reviewed for clear error)
- United States v. Mauskar, 557 F.3d 219 (5th Cir. 2009) (mass-marketing enhancement upheld as relevant conduct in jointly undertaken fraud)
- United States v. Miller, 316 F.3d 495 (4th Cir. 2003) (loss is prima facie evidence of intended loss, may be rebutted by additional proof)
- United States v. Singh, 390 F.3d 168 (2d Cir. 2004) (remand to present evidence that billed amount exceeded defendant's expectation)