UNITED STATES OF AMERICA v. COMFORT GATES; GODWIN UMOTONG
No. 13-11237
United States Court of Appeals, Fifth Circuit
Sept. 10, 2015
Patrick R. Cowlishaw, General Counsel, Jackson Walker, L.L.P., Mario Pfister Cadeddu, Esq., Dallas, TX, for Defendants-Appellants.
Before STEWART, Chief Judge, and JOLLY and GRAVES, Circuit Judges.
PER CURIAM: *
After a jury trial, Defendants-Appellants Comfort Gates (Gates) and Godwin Umotong (Umotong) were convicted of conspiracy to commit healthcare fraud under
I.
This case involves a complex scheme to fraudulently bill Medicare for services that were never performed. The scheme was devised by Osvanna Agopian (Agopian), who had twice been convicted of healthcare fraud, and carried out by several “foot soldiers,” including Defendants-Appellants Gates and Umotong. To effectuate her scheme, Agopian opened two clinics—Medic in Houston, Texas, around July 2009, and Euless Healthcare Corporation (EHC) located in Euless, Texas, a Dallas suburb, around April 2010 (collectively, the Clinics). The Clinics operated as “false-front” clinics: medical operations that bill Medicare for services that are not actually performed. The Clinics were Level 3.0 false fronts, which are the hardest for Medicare to detect because of the sophisticated means, such as visiting actual patients and maintaining patient files, employed to create the illusion of legitimacy.
Agopian’s scheme went as follows: The Clinics recruited patients from legitimate home healthcare agencies that would send over a patient’s information. To bill Medicare for home visits, home healthcare providers need a doctor or a physician’s assistant (P.A.) under a doctor’s supervision to certify that such home visits are necessary. Though each clinic had a licensed doctor on staff, Agopian would send employees like Gates and Umotong, who held foreign medical credentials, to the patients’ homes to conduct home-health assessments for a licensed clinic doctor to later certify. Agopian instructed the employees to wear lab coats or scrubs so that patients would recognize them as medical professionals and be more willing to allow them into their homes. She further instructed the employees to tell patients that they were P.A.s from the doctor’s office.
Once in a patient’s home, the employees, often working in pairs, would collect the patient’s information that would later be used for billing. After collecting this information, one employee, usually the technician, would take vital signs, while the
After conducting patient visits, the employees would return to either Medic or EHC, where they were responsible for completing several forms, which included ordering diagnostic tests, to be placed in the patient’s file. A clinic doctor would then sign the forms authorizing tests that were never performed, and Agopian would use those forms to request reimbursements from Medicare. Through this fraudulent scheme, the Clinics received over $1.3 million for office visits and diagnostic tests that never occurred.
By way of the Superseding Indictment, the Government charged Gates, Umotong, Agopian, and several co-conspirators not part of this appeal, with one count of conspiracy to commit health care fraud under
Based on trial evidence demonstrating Gates’s and Umotong’s participation in Agopian’s scheme,3 the jury found them guilty of conspiracy and the substantive counts of healthcare fraud for which they were charged. After the verdict, both Defendants-Appellants renewed previously urged Rule 29 motions for acquittal. After holding a hearing, the district court issued a written order denying Gates’s and Umotong’s Rule 29 motions for acquittal and Rule 33 motions for a new trial. Though the district court noted that the evidence adduced at trial against Gates and Umotong was “thin,” the court ultimately found that it was sufficient to sustain the jury’s verdict on the conspiracy charge and “[did] not weigh so heavily against the verdict that a new trial [was] in order.”4 Defendants-Appellants were each sentenced to 72 months imprisonment.5
On appeal, both Gates and Umotong challenge the district court’s jury instructions, arguing that they constructively amended the indictment in violation of the Fifth Amendment.6 Umotong independently challenges the district court’s: (1) denial of his Rule 29 motion for acquittal;
II.
A.
Defendants-Appellants argue that the district court constructively amended the indictment when it permitted trial evidence and the prosecutor’s remarks in closing argument to prove a misrepresentation not charged in the indictment, and refused to include their proposed curative instruction8 in its jury charge. This court reviews a claim of constructive amendment de novo. United States v. Jara-Favela, 686 F.3d 289, 299 (5th Cir. 2012).
“The Fifth Amendment guarantees that a criminal defendant will be tried only on charges alleged in a grand jury indictment.” United States v. Arlen, 947 F.2d 139, 144 (5th Cir. 1991). “It is a long-established principle of our criminal justice system that, after an indictment has been returned, its charges may not be broadened through amendment except by the grand jury itself.” United States v. Hoover, 467 F.3d 496, 500 (5th Cir. 2006) (internal quotation marks and citation omitted). “A constructive amendment occurs when it permits the defendant to be convicted upon a factual basis that effectively modifies an essential element of the offense charged or permits the government to convict the defendant on a materially different theory or set of facts than that with which [he or] she was charged.” United States v. McMillan, 600 F.3d 434, 451 (5th Cir. 2010) (internal quotation marks and citation omitted).
Defendants-Appellants contend that, though they were charged for one fraudulent misrepresentation—billing Medicare for office visits and diagnostic tests that were never performed—the trial evidence focused almost exclusively on another fraudulent misrepresentation: misrepresenting their medical credentials. Accordingly, they argue that the district court should have specifically instructed the jury that a conviction for conspiracy required “proof beyond a reasonable doubt of the specific misrepresentation charged in the indictment relating to the performance of office visits and diagnostic tests.” We disagree.
While the Government elicited testimony from several witnesses that Defendants-Appellants misrepresented their medical credentials, we agree with the Government’s contention that such evidence was permissible because it was probative of the co-conspirators’ fraudulent scheme. See McMillan, 600 F.3d at 451 (rejecting defendants’ argument that the admission of evidence related to an uncharged misrepresentation, without the requested instruction, allowed the jury to convict based on
More importantly, the district court employed many of the curative measures recognized by our court to protect against a constructive amendment of the indictment, such as: instructing the jury to only consider the crime charged in the indictment; instructing the jury that the Defendants-Appellants were not on trial for any offense not alleged in the indictment; including the language from the Superseding Indictment in the jury charge; and providing the jury with a copy of the indictment for their deliberations. See United States v. Leahy, 82 F.3d 624, 631-32 (5th Cir. 1996); see also United States v. Holley, 23 F.3d 902, 912 (5th Cir. 1994) (“All of [the defendant’s] contentions must fail because the district court instructed the jury that it was to consider only the crime that was charged in the indictment.“). Because jurors are presumed to follow the court’s instructions, see United States v. Bieganowski, 313 F.3d 264, 288 (5th Cir. 2002), and the district court properly instructed the jury, we conclude that the jury convicted Defendants-Appellants based on the fraud alleged in the Superseding Indictment. This conclusion is buttressed by the fact that Defendants-Appellants’ co-defendant Labeodan was acquitted of the conspiracy charge, despite the presentation of evidence that he misrepresented his medical credentials. See Bieganowski, 313 F.3d at 288 (“Where, as here, a jury returns a verdict of not guilty on some counts and as to some defendants, the presumption that the jury followed the court’s instructions is even stronger.” (internal quotation marks and citation omitted)).
For these reasons, we conclude that no constructive amendment of the indictment occurred.
B.
Umotong next challenges the district court’s denial of his motion for acquittal. He argues that the trial evidence was insufficient to prove that he knowingly and willfully participated in the conspiracy. We review preserved sufficiency-of-the-evidence challenges de novo. United States v. Grant, 683 F.3d 639, 642 (5th Cir. 2012).
When reviewing the sufficiency of the evidence, a court must determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Moreno-Gonzalez, 662 F.3d 369, 372 (5th Cir. 2011) (citation omitted). Evidence must be viewed “in the light most favorable to the verdict.” Id. (citation omitted). Moreover, this court must “accept[] all credibility choices and reasonable inferences made by the trier of fact which tend to support the verdict.” Id. (citation omitted).
To prove a conspiracy to commit health care fraud under
We conclude the trial evidence was sufficient to prove that Umotong knowingly and willfully participated in the conspiracy to commit healthcare fraud. First, without the active participation of Umotong and others, Agopian’s scheme could not have succeeded. Agopian testified that to effectuate her scheme, she instructed Umotong and other employees to pose as licensed P.A.’s from a doctor’s office to gain entry into patients’ homes. She further instructed employees like Umotong to collect the patients’ information and fill out forms, which included ordering diagnostic tests that were later used to fraudulently bill Medicare. Agopian testified that it was “common knowledge” that the tests were never performed, and further known that in order for her to pay the employees, the diagnostic tests needed to be ordered. Leslie Omagbemi, a coconspirator who pled guilty before trial, testified that he accompanied Umotong on several patient visits and witnessed Umotong follow Agopian’s instructions by misrepresenting himself as a doctor and ordering diagnostic tests that would never be performed.
Second, it was reasonable for the jury to infer Umotong’s knowing and willful participation in the conspiracy based on his proximity to the fraudulent conduct. See Willett, 751 F.3d at 340-41. Trial evidence revealed that Umotong went into patients’ homes, performed basic examinations to lend the appearance of legitimacy, ordered tests, and returned to a clinic to complete paperwork used to fraudulently bill Medicare. It also revealed that he performed these acts in furtherance of the conspiracy for approximately nine months9 at both Clinics. Though there is no evidence that Umotong submitted the fraudulent bills to Medicare, “[a] defendant need not have actually submitted the fraudulent documentation to Medicare] in order to be guilty of health care fraud or conspiracy to commit health care fraud.” United States v. Umawa Oke Imo, 739 F.3d 226, 235 (5th Cir. 2014).
While it may be that, as the district court observed, the evidence against Umotong is “thin,” viewing that evidence in the light most favorable to the jury’s verdict, it is nevertheless sufficient to sustain Umotong’s conviction for conspiracy to commit healthcare fraud.10
C.
Finally, Umotong contends that the district court erred in refusing to grant his
III.
The district court’s judgment is AFFIRMED.