United States v. Ebolose Eghobor ( 2015 )

Case: 14-11354 Document: 00513294149 Page: 1 Date Filed: 12/03/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-11354 United States Court of Appeals
Fifth Circuit
FILED
UNITED STATES OF AMERICA, December 3, 2015
Lyle W. Cayce
Plaintiff–Appellee, Clerk
v.
EBOLOSE EGHOBOR, R.N., also known as Ebolose Friday Eghobor, also
known as Friday Ebolose Eghobor, also known as Fred Eghobor,
Defendant–Appellant.
Appeal from the United States District Court
for the Northern District of Texas
Before PRADO, SOUTHWICK, and GRAVES, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
In May 2014, a jury convicted Defendant–Appellant Ebolose Eghobor of
one count of conspiracy to commit health care fraud in violation of 18 U.S.C.
§ 1349. We AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 2007, Ebolose “Fred” Eghobor, a registered nurse, began working as
the director of nursing at PTM Healthcare Services (“PTM”), a Dallas-area
home health agency. Eghobor reported directly to PTM’s owner, Ferguson
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Ikhile. As the director of nursing, Eghobor controlled, inter alia, which patients
to admit for home health care.
Home health care is a form of short-term health care administered in the
patient’s home. Under Medicare, the federal government reimburses home
health agencies that treat Medicare beneficiaries who are (1) certified as
“homebound” and (2) under the care of a physician. “Homebound” means that
the patient’s ability to leave the home is restricted due to a serious medical
condition. A beneficiary is “under the care of a physician” when the treating
physician has determined that home health care is necessary. The process for
admitting a patient for home health care starts with the treating physician
issuing an order for such care.
In order to receive Medicare reimbursements, a home health agency
must submit certain documents detailing the patient’s medical condition and
prognosis. One such document, the OASIS form, 1 provides a comprehensive
overview of the patient’s medical issues. The OASIS form, which is signed by
the agency, is used by Medicare contractors to set the reimbursement amount,
with more serious conditions correlating to greater reimbursement amounts.
Another document, the Plan of Care, or Form 485, outlines the course of
treatment and must be approved and signed by a physician before the agency
can receive reimbursements.
At PTM, Eghobor and Ikhile executed a home health care scheme that
defrauded Medicare. Specifically, they recruited individuals to be their
patients, prepared forms that exaggerated those individuals’ medical needs,
and then had a physician, coconspirator Dr. Joseph Megwa, approve such
treatment. By exaggerating patients’ medical problems, PTM was able to
1 The term “OASIS” comes from the full title of the form, Outcome and Assessment
Information Set.
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receive higher Medicare reimbursement amounts. Further, PTM’s nurses
would disregard the treatment prescribed by the exaggerated Plans of Care
and instead provide minimal assistance to PTM’s patients.
The government began to investigate PTM’s billing practices and, in
December 2009, two Medicare contractor investigators—including Trudy Bell,
who testified at trial—visited PTM’s office unannounced. Eghobor told Bell
that he was in charge of reviewing OASIS forms and that he and Ikhile handled
most of PTM’s patient admissions. Bell was suspicious that only two
employees, Ikhile and Eghobor, handled the admissions process given that
PTM at times had up to 300 patients.
In October 2012, a grand jury indicted Eghobor, Ikhile, and Dr. Megwa.
It charged each defendant with one count of conspiracy to commit health care
fraud in violation of 18 U.S.C. § 1349 and three counts of health care fraud in
violation of 18 U.S.C. §§ 2, 1347, which related to three specific claims PTM
submitted to Medicare. Dr. Megwa was charged with four additional counts of
making false statements relating to health care matters in violation of 18
U.S.C. § 1035. After Ikhile pled guilty and agreed to cooperate, a superseding
indictment was filed against Eghobor and Dr. Megwa, charging them with the
same counts as contained in the original indictment.
On April 28, 2014, the case against Dr. Megwa and Eghobor proceeded
to trial. The government’s witnesses included Ikhile, two Medicare
beneficiaries that PTM had recruited, several law enforcement agents, and
Trudy Bell, the Medicare anti-fraud investigator. The jury began deliberations
on the afternoon of Tuesday, May 6, 2014. On the next day, Wednesday, May
7, the jury sent several notes to the judge. As relevant here, one note requested
the transcript of Ikhile’s testimony, which the court provided after no
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objections were made. Later that afternoon, the judge went on the record to
explain that he had received another jury note stating:
There is no unanimous vote among the jurors on any of the counts
thus far on one defendant, Eghobor. Can we continue on defendant
Dr. Megwa?
The district judge told the parties that he planned to respond, “Yes, continue
with your deliberations.” Eghobor objected and requested either a mistrial or,
alternatively, an instruction to continue deliberating only as to Dr. Megwa.
The district court overruled the objection, denied Eghobor’s motion for a
mistrial, and responded to the jury, “Yes, continue with your deliberations.”
On the morning of the third day of deliberations, Monday, May 12, the
jury sent a note providing:
On several counts, the jury cannot reach a unanimous verdict on
[sic]. How should we proceed? We have exhausted deliberations on
these particular counts.
In response, the court informed the parties that it would deliver an Allen
charge 2 to the jury. Eghobor objected and again moved for a mistrial, arguing
that, given the second note, the jury was clearly deadlocked as to him and that
the Allen charge would be unduly prejudicial and coercive. The court overruled
this objection, explaining that Eghobor was speculating as to the jury’s division
because it could be “11/1 for guilt, 11/1 the other way” and “could be on any [of
the] counts.” Eghobor also objected to the district court’s proposed modification
of the pattern Allen charge, which the court also overruled. The court gave the
charge shortly before 11:45 a.m.
2 “‘Allen’ refers to the case Allen v. United States, [164 U.S. 492] (1896). The term is
used generally in reference to supplemental instructions urging a jury to forego their
differences and come to a unanimous decision.” United States v. Bottom, 638 F.2d 781, 764
n.4 (5th Cir. 1981).
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Later that afternoon, the jury sent a note requesting the transcript of the
testimony of Trudy Bell. Unlike with the first transcript request, Eghobor
objected to providing Bell’s testimony or any other testimony. Eghobor
contended that the second transcript request showed that the jury was
becoming dependent on the transcripts. The court overruled his objection and
provided the jury with the Bell transcript around 4:00 p.m. At approximately
4:45 pm, the jury returned its verdict. It found Eghobor guilty on one count of
conspiracy to commit health care fraud and not guilty on the three counts of
health care fraud. It convicted Dr. Megwa on all eight counts against him.
Eghobor timely filed a post-verdict motion for acquittal or, alternatively,
a new trial under Federal Rules of Criminal Procedure 29 and 33, respectively,
which the district court denied. Five months after trial, in October 2014,
Eghobor filed a motion for a new trial based on newly discovered evidence
under Federal Rule of Criminal Procedure 33. The evidence at issue was a
recording of a conversation among Eghobor’s wife, Ikhile, and Ikhile’s wife,
which took place about one year before trial. In the motion, Eghobor averred
that his wife, Bridget, had reported the conversation to his lawyer before trial,
but that neither Bridget nor his lawyer were aware that Bridget’s cell phone
had recorded the conversation until August 2014, three months after trial. The
court denied the motion.
In December 2014, the court sentenced Eghobor to 48 months
imprisonment and entered final judgment. Eghobor timely appealed.
II. DISCUSSION
On appeal, Eghobor argues the district court made five reversible errors,
specifically by (1) giving the Allen charge, (2) providing the jury with the
transcript of Bell’s trial testimony, (3) committing cumulative error, (4)
denying his post-verdict challenge to the sufficiency of the evidence, and (5)
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denying his motion for a new trial based on newly discovered evidence. We
address and reject each claim in turn.
A. The Allen Charge
The court reviews the use of an Allen charge to which the defendant
objected for abuse of discretion. United States v. Andaverde-Tiñoco, 741 F.3d
509, 515 (5th Cir. 2013). “The relevant inquiry on appeal is whether: (1) any
semantic deviation from approved Allen-charge language was so prejudicial
that it requires reversal and (2) the circumstances surrounding the use of the
charge were coercive.” Id. The district court has “broad discretion to determine
whether an Allen charge might coerce a jury.” United States v. Heath, 970 F.2d
1397, 1406 (5th Cir. 1992).
Under the first prong of our Allen charge analysis, district courts are not
required to recite verbatim the pattern Allen charge approved by this Court.
The key inquiry is whether the modification was “so significant as to coerce the
jury to reach its verdict.” Id. This Court has “upheld versions of [the Allen]
charge so long as they avoid the pitfalls of coercive deadlines, threats of
marathon deliberations, or pressure for surrender of conscientiously held
minority views.” United States v. Scruggs, 583 F.2d 238, 240 (5th Cir. 1978)
(quoting United States v. Skinner, 535 F.2d 325, 326 (5th Cir. 1976)).
In this case, Eghobor argues that the district court improperly deviated
from the language of the pattern Allen charge by including the following
additions to the pattern charge italicized below:
You must also remember that if the evidence in the case fails to
establish guilt beyond a reasonable doubt as to a count as [sic], the
accused should have your unanimous verdict of Not Guilty on that
count. On the other hand, if the evidence establishes guilt beyond a
reasonable doubt on a count as to a defendant, the verdict should
be guilty on that count.
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See Fifth Circuit Pattern Jury Instructions (Criminal) § 1.45. Eghobor claims
that the sentence beginning “[o]n the other hand” caused him undue prejudice
by tilting the balance of the charge in the government’s favor.
This deviation from the pattern charge was not an abuse of discretion.
The added language explained how the burden of proof operates in a trial with
multiple counts and multiple defendants. The court’s modification clarified
that a failure of proof “as to a count” requires an acquittal “on that count,”
rather than on all counts. Eghobor was not prejudiced simply because the court
also stated the inverse: if the government carried its burden on one count as to
a defendant, then the defendant should be guilty “on that count.” Moreover,
the remainder of the charge was substantively identical to the pattern Allen
charge and thus included language that mitigates against the threat of
coercion. The judge, for instance, instructed the jurors that they “may be as
leisurely in [their] deliberations as the occasion may require” and that “no juror
is expected to yield a conscientious opinion he or she may have as to the weight
or effect of the evidence.” See United States v. Kimmel, 777 F.2d 290, 295 (5th
Cir. 1985) (upholding Allen charge where “the judge tempered his remarks
with reminders that each juror should remain true to his own conscience”).
Under the second prong of our Allen charge analysis, this Court
evaluates “the ‘totality of the circumstances’ surrounding the use of the charge
in assessing its coercive effect.” Andaverde-Tiñoco, 741 F.3d at 517 (quoting
United States v. Lindell, 881 F.2d 1313, 1321 (5th Cir. 1989)). Factors that
weigh against finding coercion include where: (1) the time lapse between the
charge and the jury’s decision was not unduly short, Lindell, 881 F.2d at 1322;
(2) the charge was not given “prematurely,” United States v. Garcia, 732 F.2d
1221, 1227 (5th Cir. 1984); and (3) the jurors were not “required to deliberate
for an unreasonable length of time” before the charge was given. Kimmel, 777
F.2d at 295.
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Eghobor claims the judge improperly coerced the jury when he gave an
Allen charge rather than declare a mistrial after receiving a second note that,
according to Eghobor, stated that the jury was deadlocked as to the charges
against him. We disagree. As the district court noted, Eghobor is assuming
that the second note refers to him. While the first note mentioned Eghobor, the
second note only stated that the jury could not reach a unanimous verdict “[o]n
several counts,” but it does not specify as to which defendant. Even assuming
that the second deadlock note concerned Eghobor, the trial court did not abuse
its discretion. This Court has consistently upheld Allen charges given after the
jury had sent two or even three notes indicating it was deadlocked. See, e.g.,
United States v. Montalvo, 495 F. App’x 391, 392 (5th Cir. 2012) (per curiam)
(upholding Allen charge given after the jury had sent three deadlock notes over
three days of deliberation); Lindell, 881 F.2d at 1321 (two deadlock notes).
In addition, no other indicia of coercion were present. The jury did not
rush to a decision after the charge was given, but instead continued to
deliberate for roughly four hours. See Garcia, 732 F.2d at 1227 (upholding
Allen charge where the jury continued to deliberate for “approximately three
hours” after receiving the charge). The amount of time that the jury was kept
in deliberations before the court gave the charge—here, approximately two full
days—was not unreasonable. See United States v. Miles, 360 F.3d 472, 482–83
(5th Cir. 2004) (noting that issuing an Allen charge four days into the jury’s
deliberations was not an abuse of discretion). Conversely, the charge was not
given prematurely because the jury was on its third day of deliberations. See
United States v. McClatchy, 249 F.3d 348, 353, 359 (5th Cir. 2001) (upholding
Allen charge given after six hours of deliberations). We conclude the district
court did not abuse its discretion by either deviating from the language of the
pattern Allen charge or by deciding to give the Allen charge.
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B. Providing the Trial Transcript to the Jury
It is a “firm rule” that the district court “has broad discretion in
responding to the jury’s request for the transcript of a particular witness’[s]
testimony and will only be reversed upon a finding of an abuse of discretion.”
United States v. Schmitt, 748 F.2d 249, 256 (5th Cir. 1984). Though the court’s
discretion is broad, it cannot ignore the risk of the jury placing undue emphasis
on the provided testimony. See id.; United States v. Morrow, 537 F.2d 120, 148
(5th Cir. 1976).
Other circuits also recognize that, in deciding whether to comply with a
jury’s request for a transcript, a district court must account for “the possibility
of undue emphasis on any portion of the testimony.” United States v. Escotto,
121 F.3d 81, 84 (2d Cir. 1997); see also United States v. Hernandez, 27 F.3d
1403, 1408–09 (9th Cir. 1992). In Hernandez, the Ninth Circuit held the trial
court had abused its discretion by giving the jury the transcript of a key
witness’s testimony, which included the description of the suspect. 27 F.3d at
1408. In that case, the court ordered a new trial, explaining that the district
court had allowed for undue emphasis of particular testimony because “[t]he
jury clearly indicated by note that its final decision turned on [the witness’s]
testimony, specifically his description of the suspect.” Id. at 1409.
Here, Eghobor claims that, when providing a copy of Bell’s testimony,
the court ignored the risk that the jury would unduly emphasize her testimony.
We reject this contention for three reasons. First, Bell’s complete testimony
was provided to the jury, which mitigates the threat of the jury taking portions
out of context. Second, the jury did not indicate why it wanted Bell’s transcript
or the importance it attached to it, nor does Eghobor argue that her testimony
was likely critical to its decision. Indeed, Eghobor in his brief acknowledges
that only a small part of Bell’s testimony concerned him. This case contrasts
sharply with the Ninth Circuit’s decision in Hernandez where the jury “relayed
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that its final decision was based on” the testimony it requested. 27 F.3d at
1405. Third, given that the Ikhile transcript had already been provided, the
district court acted appropriately by treating the second request equally.
During the trial, the court indicated its agreement with the government’s
argument that the defendants should not be able to “pick and choose” which
transcripts to provide to the jury. To deny the request could be interpreted as
a judicial comment on Bell’s testimony. 3
Eghobor also contends that the court, when providing the Bell transcript,
erred by not including a cautionary instruction reminding the jury to consider
all of the evidence as a whole and not to give undue emphasis to the provided
transcript. This Court has never directly addressed whether such instructions
are necessary or appropriate. Other circuits have observed that the risk of
undue emphasis may be mitigated if the trial judge gives a “cautionary
instruction” reminding the jury “to consider all the evidence without unduly
emphasizing any portion of it.” Escotto, 121 F.3d at 85; accord United States v.
Bertoli, 40 F.3d 1384, 1401 (3d Cir. 1994). We agree that a cautionary
instruction reminding the jury to focus on all of the evidence, while not
required, should generally be included when providing a trial transcript to the
jury. Bertoli, 40 F.3d at 1401.
Importantly, in this case, Eghobor did not request such an instruction
during the trial. He instead asserted a blanket objection to providing the Bell
transcript and any other transcripts. Because his objection did not put the
3 Eghobor also attempts to justify his reason for objecting to the Bell transcript but
not the Ikhile transcript on the basis that Ikhile, unlike Bell, spoke with an accent. This
argument, which was not raised to the district court, misses the mark. Our inquiry focuses
on what evidence, if any, suggests that the jury would give undue emphasis to the Bell
transcript. It is unclear how Eghobor’s speculation as to why the jury requested the transcript
of another witness, Ikhile, has bearing on whether the jury was going to unduly emphasize
the Bell transcript.
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district court on notice as to whether it should include a cautionary instruction,
we review his claim for plain error. See United States v. Sanchez-Espinal, 762
F.3d 425, 429 (5th Cir. 2014) (holding that plain error review applies where a
party fails to raise an objection “specific enough to put the district court on
notice of potential issues for appeal and allow the district court to correct
itself”); Escotto, 121 F.3d at 85 (citing Fed. R. Crim. P. 51).
“Plain error exists if (1) there is an error, (2) the error is plain, . . . (3) the
error affect[s] substantial rights and (4) the error seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.” United States
v. Garcia-Carrillo, 749 F.3d 376, 378 (5th Cir. 2014) (alterations in original)
(quoting Henderson v. United States, 133 S. Ct. 1121, 1126–27 (2013)). Here,
the district court did not err because Eghobor failed to establish that the court
ignored a risk of undue emphasis. Further, even assuming the district court
erred, such error was not plain. This Court, as noted, has never expressly
required trial judges to include cautionary instructions when providing the
transcript. Other circuits similarly have not mandated them, although they
acknowledge such instructions are “advisable.” Escotto, 121 F.3d at 85; Bertoli,
40 F.3d at 1401. Eghobor also cannot show that his “substantial rights were
affected”—that is, the lack of cautionary instructions “affected the outcome of
the district court proceedings.” Puckett v. United States, 556 U.S. 129, 135
(2009) (quoting United States v. Olano, 507 U.S. 725, 734 (1993)). The jury had
previously been instructed to consider all of the evidence and Eghobor has not
presented evidence to overcome the presumption that the jury followed these
instructions. See United States v. Millsaps, 157 F.3d 989, 993 (5th Cir. 1998)
(per curiam). Lastly, Eghobor fails to explain how the lack of a cautionary
instruction casts doubt on the integrity of the judicial proceedings.
Accordingly, we conclude that the district court neither abused its
discretion in complying with the jury’s request for the second transcript nor
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committed plain error by not giving a cautionary instruction when providing
the transcript.
C. Cumulative Error
The cumulative error doctrine “provides that an aggregation of non-
reversible errors (i.e., plain errors failing to necessitate reversal and harmless
errors) can yield a denial of the constitutional right to a fair trial, which calls
for reversal.” United States v. Delgado, 672 F.3d 320, 343–44 (5th Cir. 2012)
(en banc) (quoting United States v. Munoz, 150 F.3d 401, 418 (5th Cir. 1998)).
“The doctrine justifies reversal only in the unusual case in which synergistic
or repetitive error violates the defendant’s constitutional right to a fair trial.”
Id. The defendant’s “[a]llegations of non-errors do not play a role in cumulative
error analysis since there is nothing to accumulate.” United States v.
Cervantes, 706 F.3d 603, 619 (5th Cir. 2013). The cumulative error doctrine
does not apply here because the district court did not err and, as such, there
are no errors that we could aggregate to find cumulative error.
D. The Sufficiency of the Evidence
This Court reviews de novo a preserved challenge to the sufficiency of
the evidence. United States v. Grant, 683 F.3d 639, 642 (5th Cir. 2012). Our
review, however, is constrained by the rule that we “view all evidence, whether
circumstantial or direct, in the light most favorable to the government, with
all reasonable inferences and credibility choices to be made in support of the
jury’s verdict” and affirm if “a rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Id. (quoting United
States v. Ford, 558 F.3d 371, 375 (5th Cir. 2009)). To be sufficient, the evidence
“need not exclude every reasonable hypothesis of innocence or be wholly
inconsistent with every conclusion except that of guilt.” Id. (quoting United
States v. Moreno, 185 F.3d 465, 471 (5th Cir. 1999)). Moreover, the jury “retains
the sole authority to weigh any conflicting evidence and to evaluate the
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credibility of the witnesses.” United States v. Loe, 262 F.3d 427, 432 (5th Cir.
2001).
To sustain a conviction for conspiracy to commit health care fraud, a
reasonable trier of fact must be able to conclude beyond a reasonable doubt
that (1) “two or more persons made an agreement to commit health care fraud;”
(2) “that the defendant knew the unlawful purpose of the agreement;” and (3)
“that the defendant joined in the agreement willfully, that is, with the intent
to further the unlawful purpose.” Grant, 683 F.3d at 643 (citing 18 U.S.C. §§
1347, 1349). “The agreement between conspirators may be silent and need not
be formal or spoken.” Id. “[V]oluntary participation may be inferred from a
collection of circumstances, and knowledge may be inferred from surrounding
circumstances.” Id. (quoting United States v. Stephens, 571 F.3d 401, 404 (5th
Cir. 2009)).
The evidence presented at trial was legally sufficient to show that
Eghobor conspired with Ikhile to defraud Medicare by preparing falsified
documents that enabled PTM to overcharge Medicare for unnecessary home
health services. The government’s primary witness was Ikhile, PTM’s owner. 4
At trial, he testified at length as to the scheme, including that Eghobor was his
“right-hand” man at PTM who oversaw PTM’s patient admission process. In
particular, he testified that Eghobor admitted patients into PTM by falsifying
4 On appeal, Eghobor attacks Ikhile’s credibility, contending that Ikhile had lied in
the past and was lying at trial in order to reduce his own sentence. However, the court cannot
make credibility determinations when reviewing a challenge to the sufficiency of the
evidence. Loe, 262 F.3d at 432. Indeed, a “defendant may be convicted on the uncorroborated
testimony of a coconspirator who has accepted a plea bargain unless the coconspirator’s
testimony is incredible.” United States v. Valdez, 453 F.3d 252, 257 (5th Cir. 2006) (quoting
United States v. Villegas-Rodriguez, 171 F.3d 224, 228 (5th Cir. 1999)). “Testimony is
incredible . . . only if it relates to facts that the witness could not possibly have observed or
to events which could not have occurred under the laws of nature.” Id. (quoting United States
v. Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994)). In this case, Ikhile’s testimony was neither
incredible in nature nor, equally important, uncorroborated.
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OASIS forms and Plans of Care. He also stated that Eghobor would create
physician’s orders prescribing home health care that Dr. Megwa would then
sign, which were used for obtaining Medicare reimbursements. Upon being
shown a specific physician’s order, Ikhile testified that Eghobor created it and
not the physician.
The government also submitted evidence that corroborated Ikhile’s
testimony, including multiple documents signed by Eghobor that a reasonable
jury could conclude were falsified. In particular, the government introduced
documents relating to two individuals that PTM had recruited as patients. For
one such individual, Mary Smith, the government introduced OASIS and Plan
of Care forms signed by Eghobor, which claimed that Smith had arthritis and
incontinence. At trial, Smith testified that she did not have these ailments and
had been recruited to be a PTM patient while shopping at a grocery store. For
another individual, Mattie Durham, the government introduced a Plan of Care
and OASIS form, both signed by Eghobor, that provided that she was
incontinent and suffering from paralysis. The OASIS form also stated that she
was unable to feed herself. Durham’s trial testimony, however, indicated that
she routinely walked around with her dogs, fed and cooked for herself, and
never had incontinence issues. A rational trier of fact that credited this
testimony could infer that Eghobor had knowledge of the falsified nature of the
forms that he signed. 5 We conclude that the evidence at trial was sufficient to
prove that Eghobor knew of and participated in PTM’s home health care fraud.
5 The jury acquitted Eghobor of three counts of health care fraud related to specific
three claims submitted by PTM. Of those three counts, one count was based on PTM’s
treatment of Mary Smith and another count was based on PTM’s treatment of Mattie
Durham. Eghobor claims that the jury’s acquittal on the three counts of health care fraud
proves that Smith’s and Durham’s patient files were not connected to Eghobor and that, as a
result, these documents cannot be considered as evidence in support of the conspiracy
conviction. We disagree and consider all the trial evidence separately when determining the
sufficiency of the evidence as to each count. See United States v. Swaim, 757 F.2d 1530, 1536
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E. The Motion for a New Trial Based on Newly Discovered Evidence
This Court reviews for abuse of discretion the district court’s denial of a
motion for a new trial based on newly discovered evidence. United States v.
McRae, 795 F.3d 471, 478 (5th Cir. 2015). “Generally, motions for new trial are
disfavored and must be reviewed with great caution.” United States v. Piazza,
647 F.3d 559, 565 (5th Cir. 2011). A defendant that moves for a new trial based
on newly discovered evidence under Federal Rule of Criminal Procedure 33
must prove each of the following five so-called Berry factors:
(1) the evidence is newly discovered and was unknown to the
defendant at the time of trial; (2) the failure to detect the evidence
was not due to a lack of diligence by the defendant; (3) the evidence
is not merely cumulative or impeaching; (4) the evidence is
material; and (5) the evidence if introduced at a new trial would
probably produce an acquittal.
McRae, 795 F.3d at 478.
The trial court did not abuse its discretion in denying Eghobor’s motion
for a new trial based on the recording of a conversation among Eghobor’s wife,
Ikhile, and Ikhile’s wife. As to the third Berry factor, the statement does not
have an “evidentiary purpose other than to impeach” trial testimony. United
States v. Villarreal, 324 F.3d 319, 326 (5th Cir. 2003). Eghobor argues that
Ikhile’s statements contained in the recording, which purportedly contradict
Ikhile’s trial testimony, are not merely impeaching because they show that
Ikhile intentionally lied at trial and prove that he was biased against Eghobor.
The case law, however, is against him. Evidence that “only casts doubt on the
veracity” of a witness’s testimony and “demonstrates a bias on the part of [that
witness]” is “mere impeachment evidence” that is insufficient to entitle a
(5th Cir. 1985) (“[J]uries in criminal cases are free to render verdicts on the conspiracy and
the underlying felony counts that are inconsistent or even the result of mistake or
compromise. Each count must be considered separately, and, if the verdict is supported by
evidence, it may stand.” (footnotes omitted)).
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No. 14-11354
defendant to a new trial. United States v. Holmes, 406 F.3d 337, 360 (5th Cir.
2005); see United States v. Garcia-Esparza, 388 F. App’x 407, 408 (5th Cir.
2010) (per curiam) (noting that evidence introduced to show a witness “lied
extensively on the witness stand . . . is impeaching and not a basis for a new
trial”). Further, Eghobor has not explained how Ikhile’s out-of-court
statements, which were allegedly made in a parking lot, could have been
admitted at trial except as a prior inconsistent statement offered for
impeachment purposes only. See United States v. St. Junius, 739 F.3d 193, 202
(5th Cir. 2013) (explaining that unsworn prior inconsistent statements may be
used to impeach even if they are inadmissible as substantive evidence).
As to the final Berry factor, the evidence would not “probably produce an
acquittal.” Eghobor focuses on two of Ikhile’s statements from the recorded
conversation but neither statement contradicts nor seriously undermines
Ikhile’s trial testimony. The first statement is Ikhile’s one-word response,
“Yeah,” to a lengthy, compound statement by Eghobor’s wife, Bridget, in which
she expresses distress over her husband’s incarceration and concludes by
saying, “Fred would never sign anything that is not correct.” 6 But it is not at
all clear whether Ikhile’s response, “Yeah,” was intended to show agreement
6 In his motion, Eghobor provided a transcript of the recording. The portion of the
transcript on which Eghobor relies provides:
Ms. Eghobor: And he said—he told me—and I was kind of shocked. He said
the deal is you cannot testify against the other client—or the—or that
codefendant thing, including my husband. Then I am confused. I don’t know
what—I thought she was aware of the whole thing. That’s why I said, okay, is
there anything else that my husband did in the company that I didn’t know
because I don’t know why Fred is in jail. I don’t understand the whole thing. I
am confused. I am—just in the—I am confused because I don’t go to work with
him (indiscernible). The husband that I know is the most honest man I know.
Fred would never sign anything that is not correct.
Mr. Ikhile: Yeah.
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with any of Bridget’s preceding statement. Thus, Ikhile’s response does not
plainly undercut his trial testimony concerning Eghobor’s fraudulent conduct.
In the second statement, Ikhile said, “Fred work [sic] for me. At no point
did Fred ever give money to Megwa.” Eghobor claims that this statement
contradicts the trial testimony in which, according to Eghobor, Ikhile stated
that Eghobor had given money to Dr. Megwa as part of their conspiracy.
However, Ikhile made no such statement at trial. In the portion of the trial
testimony Eghobor cites, Ikhile testified that although he recognized Eghobor’s
signature on a copy of a check written to Dr. Megwa that the government
introduced at trial, he was not aware that Eghobor was writing checks to Dr.
Megwa. Eghobor fails to explain how Ikhile’s out-of-court statement that does
not contradict Ikhile’s lengthy trial testimony could probably produce an
acquittal. The district court did not abuse its discretion in denying Eghobor’s
motion for a new trial based on the recording.
III. CONCLUSION
For the foregoing reasons, we AFFIRM Eghobor’s conviction.
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