United States v. Okoro , 213 F. App'x 348 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 16, 2007
Charles R. Fulbruge III
Clerk
No. 05-20746
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
CHIJIOKE VICTOR OKORO, also known as Victor Okoro, also known as
Chiji V. Okoro
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
(4:01-CR-399-01)
Before BARKSDALE, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
Chijioke Victor Okoro (“Okoro”) appeals the district court’s
sentence for his mail fraud, healthcare fraud, and tax fraud
convictions. Okoro claims several points of error: (1) that his
post-Booker sentence was not “reasonable”; (2) that the district
court erred by sentencing him based on facts not found by a jury or
admitted by him; (3) that the district court erred in calculating
*
Pursuant to 5th Cir. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
the loss attributable to him; and (4) that the district court erred
by imposing consecutive sentences on his tax fraud and healthcare
fraud convictions. For the reasons stated below, we affirm.
I.
This Court previously has had the opportunity to discuss the
factual background of this case at some length in United States v.
Akpan, 407 F.3d 360, 362-65 (5th Cir. 2005). We quote from that
well-written opinion:
Doctor Okoro is a native of Nigeria who came to the
United States to attend college in the 1970s. He received
an undergraduate degree in chemistry and graduated from
medical school. As a licensed physician, Okoro practiced
medicine in the United States from 1981 until 2002. He
also developed a medical missionary program to bring
medical care to his native Nigeria. Between 1984 and
2000, Okoro traveled to Nigeria twice a year to provide
medical care to impoverished Nigerians. In 1989, Okoro
moved to Houston, Texas to work as an emergency room
doctor at Memorial Hospital Northwest (“Memorial”). In
1990, Memorial promoted him to the Director of the
Emergency Department, a position that he held until his
arrest. In 1999, Okoro became a United States citizen.
A. Mail Fraud
Okoro also worked for the Westchase Clinic (“Westchase”)
until it closed in 1995, when he began work for
Westchase's successor, Spectrum Medical Clinic
(“Spectrum”). Okoro and Akpan worked together at both
Westchase and Spectrum. In 1996, Spectrum was dissolved
and became Houston Medcare (“Medcare”), a minor injury
clinic owned by Okoro. Many of Spectrum's employees
joined Okoro at Medcare. Most importantly, Okoro hired
Akpan as Medcare's administrator to work with lawyers and
insurance company representatives to ensure that the
clinic received payment for the services that it
rendered. Akpan coordinated the transfer of patients from
Spectrum to Medcare and also supervised Spectrum's office
staff.
2
In March 1996, the Federal Bureau of Investigation
(“FBI”), the Internal Revenue Service (“IRS”), and the
United States Department of Health and Human Services
(“DHHS”) began to investigate attorneys and physicians
suspected of submitting false claims to insurance
companies for non-existent medical services purportedly
provided to victims of motor vehicle accidents. The
results of the undercover investigation by FBI Special
Agent Lorraine Tucker and Houston Police Officer Sheryl
Jefferson reveals the fraudulent scheme alleged by the
government in the indictment against Okoro and Akpan.
Tucker (posing as “Lorraine Bell”) and Jefferson (posing
as “Sheryl King”) took out insurance policies under their
aliases in cooperation with representatives of the United
Services Automobile Association (“USAA”). FN3 They then
filed a fictitious accident report that listed Jefferson
as the driver.
FN3. For ease of comprehension, we refer to Tucker
and Jefferson by their real names.
Tucker received a phone call on her undercover telephone
from an individual who identified herself as Cindy Halla,
allegedly a representative of a Christian organization
called Sisters of Grace. Halla informed Tucker that the
Sisters of Grace provided transportation and referrals
for victims of car accidents. Halla's associate, Walter
Oji, picked up Tucker at her undercover apartment and
took her to Spectrum, which was then still in operation.
Tucker wore a hidden recording device during this first
visit to Spectrum. When they arrived at the clinic, a
Spectrum employee gave Tucker some paperwork to complete.
She filled it out and gave it to Oji, who then gave it to
the receptionist.
Claudia Ramon, a Spectrum nurse, led Tucker to the back
of the clinic, where Ramon recorded Tucker's height,
weight, and blood pressure and told her that a doctor
would be in to see her shortly. Dr. Sunil Vachhani, a
licensed chiropractor employed by Okoro, examined Tucker.
She informed him that her right shoulder hurt. Dr.
Vachhani recommended that Tucker receive physical
therapy, but she received none during her first visit.
After Dr. Vachhani examined Tucker, Oji took her to the
law offices of Gabriel Giwa, whom she retained to recover
payment from USAA for the injuries that she had received
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in the purported car accident.
Oji again transported Tucker to Spectrum in late March
1996. Tucker asked Oji if she should sign in for
Jefferson as well, and Oji informed her that she could if
she wanted. Tucker wrote both of their undercover names
on the sign-in sheet. Ramon led Tucker to an examination
room, where she handed Tucker a sheet of yellow paper
that contained multiple dates. Ramon asked Tucker to
record the dates in her patient file. Tucker then signed
the daily sign-in sheets for the month of March, as well
as the daily sign-in sheets for all of the days listed on
the yellow paper.
Tucker told Ramon that her roommate Jefferson had been in
the same accident but that Jefferson was out of town.
Ramon told Tucker that she would speak to her superior
about Jefferson. Ramon then introduced Tucker to Akpan,
to whom Tucker spoke about Jefferson. Akpan told her that
“he would work something out” and would contact their
attorney.
In April 1996, Tucker returned to Spectrum by herself.
She signed in as usual, and Ramon again gave her a sheet
of paper that contained multiple dates. Tucker recorded
the dates into her patient file and signed her name on
the corresponding daily sign-in sheets. Ramon told Tucker
to bring Jefferson with her on her next visit.
On May 1 and 9, 1996, Tucker returned to Spectrum with
Jefferson. During the May 9 visit, Tucker and Jefferson
met with Akpan. When he asked Jefferson why she had not
visited Spectrum earlier, she explained that she had been
out of town. Akpan told them that he would help them but
that they should not tell others, explaining that car
accident lawsuits often settled and that problems arose
when the lawyers distributed the settlement funds. Akpan
also told them that patients often denied the amount of
services that they received at the clinic to avoid
payment. Akpan explained that he would get his money and
asked if they “were all together on that.” Tucker and
Jefferson assured him that they were. At the close of the
meeting, Ramon provided both Tucker and Jefferson with
more sign-in sheets for multiple future dates, which they
signed.
Spectrum ultimately billed USAA $1550 for services
rendered to Tucker, claiming 27 physical therapy
treatments from March 20 to May 9, 1996. Spectrum also
4
billed USAA $3190 for Jefferson's medical treatment, also
for 27 visits between March 20 and May 9, 1996, with
multiple treatments rendered on the same day. Okoro's
signature appeared on much of the paperwork, even though
Okoro had never examined either Tucker or Jefferson. In
fact, neither Tucker nor Jefferson had ever even met
Okoro.
The “sign-in” scheme was replicated with many of the
clinic's patients-Minh Nguyen, Audrey Santos, Simon
Mosongo, Yolanda Coleman, Rebecca Whitfield, Dexter Hall,
Iyomo Louison, Lora Goree, Halane Dunn, and Manuel Roth.
Although some of the patients received physical therapy
treatments and some were examined by Okoro, each patient
signed blank sign-in sheets and blank patient forms. In
addition, Okoro signed most of the forms himself, yet
many of the patients testified that he had never examined
them, and the evidence at trial demonstrated that he was
out of the country-in Nigeria-during many of their
“visits.”
B. Healthcare FraudFN4
FN4. Okoro does not appeal his conviction for tax
fraud.
Okoro also worked with 21 other physical therapy clinics.
Medicare issues a group number to each health care
facility and an individual provider number to physicians
within the facility. Physicians must complete a
“reassignment of benefits” application to allow the
facility to bill Medicare for the physician's services.
Medicare then reimburses the facility under the
physician's provider number. The facility may bill
Medicare for services that the physician renders only
when he is present.
Between 1998 and 2000, Okoro received individual provider
numbers in connection with 21 physical therapy clinics.
These clinics were owned by Akpan, Sekibo Williams, a
foreign medical student who worked at Medcare, and Henry
Johnson, Spectrum's previous owner. In total, the clinics
billed Medicare $9,788,724.76, and Medicare paid a total
amount of $4,192,544.16 to the clinics. Of this amount,
Okoro received $324,373.87 from the clinics between 1999
and 2001.
5
The evidence at trial demonstrated that many of the
physical therapy clinics billed Medicare for services
that Okoro allegedly rendered after he deactivated his
individual provider number for that clinic. In addition,
Okoro signed patient documents that stated that he had
treated those patients on specific dates and at specific
times on which Okoro could not possibly have rendered
services. For example, many of the dates on which Okoro
alleged that he provided services were dates when he was
in Nigeria.
Id.
In February 2002, a grand jury indicted Okoro on fifteen
counts of aiding and abetting mail fraud, in violation of 18 U.S.C.
§§ 1341 and 1342; three counts of filing false income tax returns,
in violation of 26 U.S.C. § 7206(1); and seven counts of healthcare
fraud, in violation of 18 U.S.C. § 1347. Following trial, a jury
found Okoro guilty on all counts.
Prior to the issuance of United States v. Booker, 543 U.S. 220
(2005), the district court sentenced Okoro to 151 months in prison:
120 months for the healthcare fraud counts, 31 months (consecutive)
for the tax fraud counts, and 60 months (concurrent) for the mail
fraud counts.2 The 151-month sentence was the highest allowed under
the Guidelines.
Okoro appealed his conviction and sentence and this Court
upheld the conviction but remanded the pre-Booker sentence because
the Government could not prove that the sentence would have been
the same under a non-mandatory Guideline regime. Akpan, 407 F.3d at
2
Sixty months was the statutory maximum penalty for
violations of 18 U.S.C. § 1341 in 2000.
6
377. At re-sentencing, the district court imposed the same 151-
month sentence and Okoro timely appealed to this Court.
II.
A.
After Booker, we ultimately review sentences for
reasonableness. See Booker, 543 U.S. at 261-62; United States v.
Smith, 440 F.3d 704, 706 (5th Cir. 2006). We review the district
court’s interpretation and application of the Sentencing Guidelines
de novo and its factual findings for clear error. Smith, 440 F.3d
at 706; United States v. Villanueva, 408 F.3d 193, 203 n.9 (5th
Cir.), cert. denied, 126 S. Ct. 268 (2005).
Booker mandates that sentencing courts consider the factors
set forth in 18 U.S.C. § 3553(a), and we review the court’s
application of those factors in determining whether a sentence is
reasonable. See United States v. Mares, 402 F.3d 511, 518-19 (5th
Cir.), cert. denied, 126 S. Ct. 43 (2005). Section 3553(a) requires
the district court to consider:
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant;
(2) the need for the sentence imposed–
(A) to reflect the seriousness of the offense, to
promote respect for the law, and to provide just
punishment for the offense;
(B) to afford adequate deterrence to criminal
conduct;
(C) to protect the public from further crimes of the
defendant; and
(D) to provide the defendant with needed educational
or vocational training, medical care, or other
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correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) [the relevant Guideline range];
(5) any pertinent policy statement--
(A) issued by the Sentencing Commission . . . .;
(6) the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found
guilty of similar conduct; and
(7) the need to provide restitution to any victims of the
offense.
18 U.S.C. § 3553(a).
Okoro claims that the district court erred by failing to
consider his “history and characteristics” as required by §
3553(a)(1), and therefore, his sentence is unreasonable. In
particular, Okoro argues that the court refused to consider his
“valuable charitable contributions to society through his
legitimate medical practice and through his [medical] missionary
work to impoverished Nigerians.” Okoro points out this Court
previously acknowledged his medical career in Houston and his
travels to Nigeria to provide medical care. Akpan, 407 F.3d at 363.
However, even a cursory review of the sentencing transcript
reveals that the district court considered Okoro’s history and
characteristics. The transcript indicates the court examined
Okoro’s alleged charitable medical work in Nigeria and ruled that
it was a fraud. The court noted that Okoro continued to bill
Medicare and insurance companies for patients he falsely claimed to
8
have treated in Houston during his trips, and that the government
(through Medicare) and the medically insured (through their
insurance premiums) were paying for Okoro’s trips to Nigeria.
By refusing to credit Okoro with his alleged charity work, the
district court has made a credibility determination to which this
Court gives deference. See United States v. Perez, 217 F.3d 323,
331-32 (5th Cir. 2000). Further, in imposing a Guideline sentence,3
the district court is presumed to have considered the § 3553
factors, and the sentence itself is entitled to a presumption of
reasonableness. Mares, 402 F.3d at 519-20; United States v. Alonzo,
435 F.3d 551, 553-54 (5th Cir. 2005). Okoro has failed to rebut
this presumption and we find that the sentence was reasonable.
B.
In considering Okoro’s other claimed points of error, we
find no errors under the applicable standards of review.
Therefore, we affirm.
AFFIRMED.
3
Okoro contends that his sentence is a “non-Guideline”
sentence and, as such, the district court was required to
thoroughly articulate its reasons for departing from the
Guidelines. See Smith, 440 F.3d at 707. Because we find the
sentence properly calculated under the Guidelines we need not
address this argument.
9