United States v. Akpan ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED APRIL 29, 2005
IN THE UNITED STATES COURT OF APPEALS April 14, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-20875
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERNEST NDA AKPAN; CHIJIOKE VICTOR
OKORO, MD, also known as Victor
Okoro, also known as Chiji V.
Okoro
Defendants-Appellants.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
(H-01-CR-399-2)
--------------------
Before WIENER and PRADO, Circuit Judges, and LITTLE,* District
Judge.
WIENER, Circuit Judge:
Defendant-Appellant Ernest Nda Akpan appeals his conviction
and sentence after a jury trial for mail fraud in violation of 18
U.S.C. § 1341. Defendant-Appellant Chijioke Victor Okoro appeals
his conviction and sentence after a jury trial for fifteen counts
of mail fraud in violation of 18 U.S.C. § 1341, three counts of
filing false tax returns in violation of 26 U.S.C. § 7206(1), and
*
District Judge of the Western District of Louisiana, sitting
by designation.
seven counts of healthcare fraud in violation of 18 U.S.C. § 1347.
Finding no error in the district court’s rulings or the jury trial,
we affirm Akpan’s and Okoro’s convictions. We also affirm Akpan’s
sentence, but, in light of the Supreme Court’s opinion in United
States v. Booker1 and our recent opinion in United States v. Mares,2
we vacate Okoro’s sentence and remand for resentencing.
I. FACTS AND PROCEEDINGS
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
1
—— U.S. —— , 125 S. Ct. 738 (Jan. 12, 2005).
2
—— F.3d ——, 2005 WL 503715 (5th Cir. Mar. 4, 2005).
2
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.
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
3
Association (“USAA”).3 They then filed a fictitious accident
report that listed Jefferson as the driver.
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 in the purported car accident.
3
For ease of comprehension, we refer to Tucker and Jefferson
by their real names.
4
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
5
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 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
6
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 Fraud4
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.
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
4
Okoro does not appeal his conviction for tax fraud.
7
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.
C. Indictment and Trial
In May 2001, a federal grand jury returned a 22-count
indictment against Okoro and Akpan. The following February, a
grand jury returned a 25-count second superceding indictment
against Okoro, Akpan, as well as counts against Claudia Ramon,
Guadalupe Castro, and Ana Lilia Garcia. The district court severed
the charges against these additional defendants before trial, and
they are not a subject of this appeal. Counts one through 15 of
the second superceding indictment charged Okoro with aiding and
abetting mail fraud in violation of 18 U.S.C. §§ 1341 and 2.
Counts 16 through 18 charged Okoro with filing false federal income
tax returns in violation of 26 U.S.C. § 7206(1). Counts 19 through
25 charged Okoro with health care fraud in violation of 18 U.S.C.
§ 1347. Count One charged Akpan with mail fraud in violation of 18
U.S.C. § 1341.
Trial against Okoro and Akpan began in September 2002. After
deliberating, the jury found Okoro guilty on all twenty-five counts
and found Akpan guilty on Count One. Akpan timely filed a motion
for a new trial, which the district court denied. In August of the
8
following year, the district court sentenced Akpan to 41 months in
the custody of the Bureau of Prisons on count one. One month
later, the district court sentenced Okoro to 120 months
imprisonment for the mail and healthcare fraud violations. The
district court also sentenced Okoro to a 31-month sentence for tax
fraud to run consecutively to the 120-month sentence for mail and
healthcare fraud. Both Okoro and Akpan timely filed notices of
appeal.
II. ANALYSIS
A. Motion for a Mistrial
Okoro and Akpan (collectively, “appellants”) first argue that
the district court abused its discretion when it refused to grant
their motion for a mistrial grounded in the court’s allowing the
jurors to remove the government’s summary trial notebooks from the
courtroom before trial started. We review a district court’s
refusal to grant a mistrial for abuse of discretion.5
After the court empaneled the jury, it instructed the jurors:
(1) not to seek outside information about the case; (2) not to
discuss experiences that were not in evidence; (3) not to discuss
the case or the evidence with anyone —— their spouse or among
themselves —— before the district court’s final instructions; (4)
to keep an open mind about the evidence; and (5) not to form an
5
United States v. Moreno, 185 F.3d 465, 475 (5th Cir. 1999).
9
opinion until they had heard all of the evidence. The district
court then recessed for lunch.
During the recess, the government received permission from the
district court to place summary notebooks on each juror’s chair.
The summary notebooks contained “key” documents of the government’s
case against appellants. Specifically, each notebook contained
excerpts of government exhibits one to forty-three. Before jury
selection, the district court had entertained appellants’
objections to the exhibits in the summary notebooks but had
admitted all of them.6
After the jury returned from lunch, the court recessed for the
day and informed the jury that opening statements would begin the
next day.7 As the jury left the courtroom, one juror asked the
district court if they could take the summary notebooks with them.
The district court responded: “You can take it home or leave it
here, it’s up to you.” The jury then left the courtroom.
After the jury left, the following colloquy occurred between
Akpan’s defense counsel, Robert Fickman, and the district court:
Fickman: Your Honor, are they allowed to take the exhibit
notebooks home with them?
Court: They’re copies. Why not? I let them take their
notes home. I let them take their minds home. Why is
that a problem?
6
Neither appellant challenges the district court’s
evidentiary rulings on the exhibits.
7
Doctors for Okoro’s lead counsel, Richard Haynes, had
scheduled emergency surgery for the afternoon of September 10, 2002
on a tumor in his hand.
10
Fickman: Well, I’ve never seen it before, I guess.
The record reflects that this colloquy occurred immediately after
the jury left the room. Later, before the court recessed for the
day, counsel for Akpan explicitly objected to the removal of the
summary notebooks from the courtroom on the grounds that it (1) was
prejudicial, (2) would encourage the jurors to discuss the evidence
with others, and (3) would allow the jurors to deliberate before
all evidence had been presented. The district court overruled the
objection, stating that “I might have made them keep it if it had
been done before it was an accomplished fact, but . . . .” The
district court also informed counsel for Akpan that if he could
think of a better reason, the court would not allow the jurors to
remove the notebooks from the courtroom the following day. Okoro’s
defense counsel made no objection to the court’s order even though
three attorneys were present. Although Richard Haynes, lead
counsel for Okoro, was in surgery, Sharon Levine, Paul Coselli, and
Mike Durham, all counsel for Okoro, were present in the courtroom
during the exchange.
The next day, Haynes and Fickman moved for a mistrial on the
ground that the district court had allowed the jurors to leave the
courtroom with the summary notebooks. The district court denied
the motion and reminded defense counsel that the court had already
admitted into evidence all of the notebook exhibits. Defense
counsel then moved the district court to poll the jury to see
11
whether any of the jurors had actually left the courtroom with the
summary notebooks. The district court denied the motion too.
The government argues that Fickman’s colloquy with the
district court after the jury left the courtroom amounts to neither
a specific nor timely objection to preserve an abuse-of-discretion
standard of review for the district court’s denial of a mistrial.
The government contends that we should review the district court’s
denial of a mistrial for plain error. We reject this argument.
The government appears to argue that because counsel for
appellants did not object to the removal of the summary notebooks
before the jury left the courtroom, they failed to preserve their
objection to the district court’s denial of a mistrial. This
argument misconstrues the basis of appellants’ assignment of error.
Okoro and Akpan ultimately appeal the district court’s denial of
their motion for a mistrial based on its alleged error in allowing
the jury to leave the courtroom with the summary notebooks. Under
Federal Rule of Criminal Procedure 51, “[a] party may preserve a
claim of error by informing the court —— when the court ruling or
order is made or sought —— of the action the party wishes the court
to take, or the party’s objection to the court’s action and the
grounds for that objection.”8 On the day following the jurors’
putative removal of the notebooks from the courtroom, Attorney
Haynes specifically (and immediately) sought a mistrial, arguing
8
FED. R. CRIM. P. 51(b).
12
that allowing the jurors to consider the summary notebooks outside
of the courtroom prejudiced appellants because the books contained
conclusions and allegations of the prosecution. When Haynes and
Fickman sought a mistrial for appellants, they followed Rule 51
precisely: They advised the district court of the action that they
wished it to take and the grounds for that action. The appellants
preserved their objection to the denial of a mistrial for appeal,
which we review for abuse of discretion.9
Akpan and Okoro do not challenge the government’s use of
summary notebooks. Rather, they challenge whether the district
court erred when it did not grant a mistrial on the grounds that
one or more of the jurors may have left the courtroom with the
summary notebooks. The general rule in this circuit is that “no
material either introduced in evidence or excluded from evidence
9
We also note that the district court considered and treated
Fickman’s statements as objections. When court reconvened the next
day, the following colloquy occurred between Haynes and the
district court:
Mr. Haynes: . . . in my absence yesterday I’m advised
that Juror No. 2 . . . requested of the Court
instructions as to whether or not the jurors could take
home with them what’s in evidence as Government’s Exhibit
41DD, which is their summary of the conclusions and
allegations and et cetera. The Court apparently, over
objection timely made by counsel for Defendant Akpan ——
The Court: Actually before objection.
Mr. Haynes: Sir?
The Court: Before objection.
Mr. Haynes: Before objections?
The Court: The objection was made after the jury had left.
The record clearly reflects that the district court considered
Fickman’s colloquies as objections and specifically treated them as
such the next day when lead counsel for Okoro moved for a mistrial.
13
should be in the possession of members of the jury outside of the
courtroom.”10 This is not, however, an immutable rule. For
example, in Rothstein, we ruled that the alleged possession of
evidence by jurors outside of the courtroom amounted to harmless
error because: (1) no misconduct was charged to anyone; (2) defense
counsel admitted that it was no one’s fault; (3) the jurors used
the summaries on the day after they may have taken them home; and
(4) there was no proof that any juror actually had possession of
the summaries outside of the courtroom.11
The record supports a similar conclusion here. First, the
jurors used the summary notebooks throughout the trial with no
further objection from appellants. Second, appellants charge no
one with misconduct and, indeed, there is no record evidence that
any juror actually left the courthouse with a copy of the summary
notebooks.12 Third, before the government distributed the summary
notebooks, the district court had entertained and denied objections
to the exhibits and admitted them into evidence.
This last finding —— that the district court had already
admitted all of the notebook exhibits into evidence —— is central
10
United States v. Rothstein, 530 F.2d 1275, 1279 (5th Cir.
1976).
11
See id.
12
Although the district court denied appellants’ motion to
poll the jury, neither the record nor any evidence obtained later
reflects that any one of them left the courtroom with the summary
notebooks. Indeed, only one juror asked if he could do so.
14
to our holding that the district court did not abuse its discretion
in not granting a mistrial under these circumstances. Although we
have found no case law directly on point, we recognize that other
circuits that have considered objections to summary notebooks
distinguish those instances when the exhibits in the notebooks have
been admitted from those in which they have not.13
We are admittedly concerned with the district court’s denial
of appellants’ motion to poll the jury, but we recognize that the
court specifically admonished the jury —— before allowing them to
leave the courtroom with the summary notebooks —— to keep an open
mind about the evidence and not to arrive at a conclusion until
13
In United States v. Rana, for example, where the defendant
objected to the use of notebooks at trial, the Third Circuit held
that “[t]he use of [a] notebook containing still-to-be admitted
exhibits . . . conflicts with” a defendant’s right to have an
impartial jury base its verdict on properly admitted evidence 944
F.2d 123, 126-27 (3rd Cir. 1991) (emphasis added). In United
States v. Smith, the defendant objected to the jury’s use of
summary notebooks at trial because they contained “four incomplete
exhibits, four exhibits that were never admitted, and all the
exhibits before they were admitted in evidence.” 966 F.2d 1446,
1992 WL 137523, at *3 (4th Cir.) (unpublished disposition). The
Fourth Circuit rejected the defendant’s challenge because there was
no evidence in the record that the jury had considered any of the
exhibits before the district court admitted them. See id. Nor did
the record support the defendant’s claims that any juror noticed or
studied the four exhibits that were never admitted. See id.
Lastly, in United States v. Best, the defendant challenged the
jury’s use of summary binders in the jury room during
deliberations. 939 F.2d 425, 429 (7th Cir. 1991). The Seventh
Circuit found no error in the jury’s use of the binders because the
district court had admitted into evidence all of the exhibits in
them. See id. at 431. In addition, the district court there
“verified, through individual voir dire of each juror, that the
jurors considered all the evidence, not just the binders, in
arriving at their verdict.” Id.
15
they had heard all of the evidence. As the district court itself
noted, “[j]uries are presumed to follow the instructions of the
court,” and there is no indication here that the jurors did not do
so.14
Akpan and Okoro appear to raise the same argument raised by
the defendant in Best, which was rejected by the Seventh Circuit.15
Appellants assert that the government’s summary notebooks made it
easier for the jury to follow the government’s case, i.e., the
summary notebooks served as a “road map” to the defendants’ guilt.
Thus, they urge, the district court should have granted a mistrial
on this basis. Even were we to “accept the argument that the
binders permitted greater access to the government’s exhibits,” it
is unclear how “easy access by itself amounts to error.”16 Although
the summary notebooks here contained excerpts of exhibits one to
forty-three, there is no record evidence that the jury did not have
access to the originals.17
Again, neither Akpan nor Okoro challenge the admissibility of
any of the exhibits contained in the government’s summary
notebooks, only the district court’s refusal to grant a mistrial
14
United States v. Fletcher, 121 F.3d 187, 197 (5th Cir. 1997)
(citing Zafiro v. United States, 506 U.S. 534, 540-41 (1993)).
15
939 F.2d at 429.
16
Id. at 430.
17
See id. (noting that “the original exhibits, both the
government and the defense documents, were carefully organized in
boxes that were just as easily accessible to the jury.”).
16
because one of the jurors may have taken home the notebook. Under
the demanding abuse-of-discretion standard,18 however, we will not
reverse a district court unless “no reasonable person could take
the trial court’s adopted position.”19 We do not find the district
court’s ruling so erroneous that no reasonable person would have
arrived at the same conclusion.
Furthermore, even if the district court had abused its
discretion, such “abuse is only reversible i[f] the error affected
a substantial right of the complaining party,” i.e, we would
subject the abuse to harmless error review, and conclude that if
any error occurred here, it was harmless.20 As noted, the district
court had admitted into evidence all of the exhibits in the
notebooks (to which appellants do not object), the jurors
eventually saw each exhibit, and the district court did not allow
the jurors to remove the summary notebooks from the courtroom after
the appellants brought to its attention that they disagreed with
the practice. If one juror happened to have taken his copy of the
summary notebook one evening, doing so did not affect either
appellant’s substantial rights. We hold that the district court
18
See id. (noting that although defendant objection to the
presence of the binders in the jury room during deliberations, the
proper standard of review was whether the district court abused its
discretion when it failed to grant a new trial).
19
Whitehead v. Food Max of Miss., Inc., 332 F.3d 796, 803 (5th
Cir. 2003).
20
Green v. Administrators of Tulane Educ. Fund, 284 F.3d 642,
660 (5th Cir. 2002).
17
did not abuse its discretion when it denied Okoro and Akpan’s
motion for a mistrial.
We are nevertheless constrained to reiterate the general rule
of this circuit that “no material either introduced in evidence or
excluded from evidence should be in the possession of members of
the jury outside of the courtroom.”21 Appellants note, and we
agree, that such a rule discourages jurors from deliberating
outside of the jury room and from discussing evidence with those
who are not part of the trial process. The rule also keeps jurors
from contemplating evidence before its admission. The context in
which evidence is introduced is crucial to the weight that the jury
potentially affords it. Although we reiterate that this is not a
bright-line rule, we caution any district court that considers
making such an exception to the rule that adequate cautionary
instructions and procedural safeguards must be present to ensure
that an allowance of this kind does not so taint the trial process
as to require a new trial.
B. Sufficiency of the Evidence: Okoro
Okoro also contends that the evidence adduced at trial was
insufficient to support his convictions on counts seven and eight,
which charged him with aiding and abetting mail fraud under 18
U.S.C. §§ 1341 and 2. At the close of the government’s evidence
and at the end of trial, both Okoro and Akpan moved for a judgment
21
Rothstein, 530 F.2d at 1279.
18
of acquittal under Federal Rule of Criminal Procedure 29 with
regard to all counts. Okoro expressly sought a judgment of
acquittal on counts seven and eight.
We review a denial of a motion for judgment of acquittal de
novo.22 We “review[] jury verdicts with great deference and
evaluate[] the evidence in the light most favorable to the verdict
and afford the government the benefit of all reasonable inferences
and credibility choices.”23 When treating a challenge to the
sufficiency of the evidence to sustain a conviction, we consider
“‘whether, viewing the evidence in the light most favorable to the
government, a rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt.’”24 “All
reasonable inferences from the evidence must be construed in favor
of the jury verdict.”25 We will not “supplant the jury’s
determination of credibility with . . . [our] own.”26
To prove a mail fraud violation under Section 1341, the
government must establish: “(1) a scheme to defraud; (2) use of the
22
United States v. McCauley, 253 F.3d 815, 818 (5th Cir.
2001).
23
Id. (quoting United States v. Odiodio, 244 F.3d 398, 400-02
(5th Cir. 2001)) (quotations omitted).
24
Id. (quoting United States c. De Leon, 170 F.3d 494, 496
(5th Cir. 1999)).
25
United States v. Martinez, 975 F.2d 159, 161 (5th Cir.
1992).
26
Id.
19
mails to execute the scheme; and (3) the specific intent to
defraud.”27 “Each separate use of the mails to further a scheme to
defraud is a separate offense.”28 The government need not establish
that the defendant used the mails himself or that he actually
intended that the mails be used.29 The government need only prove
that the scheme depended for its success in some way upon the
information and documents which passed through the mail.30 Further,
a defendant acts with the intent to defraud when he “acts knowingly
with the specific intent to deceive for the purpose of causing
pecuniary ‘loss to another or bringing about some financial gain to
himself.’”31
To obtain a conviction for aiding and abetting under 18 U.S.C.
§ 2, the government must prove “that the defendant associated with
a criminal venture, purposefully participated in the criminal
activity, and sought by his actions to make the venture
successful.”32 A defendant associates with a criminal venture when
27
United States v. Floyd, 343 F.3d 363, 371 (5th Cir. 2003);
United States v. Tencer, 107 F.3d 1120, 1125 (5th Cir. 1997).
28
United States v. Pazos, 24 F.3d 660, 665 (5th Cir. 1994)
(citing United States v. McClelland, 868 F.2d 704, 706 (5th Cir.
1989)).
29
Id.
30
See id.
31
United States v. Blocker, 104 F.3d 720, 732 (5th Cir. 1997)
(quoting United States v. Jimenez, 77 F.3d 95, 97 (5th Cir. 1996)).
32
Id. at 733 (citing United States v. Polk, 56 F.3d 613, 620
(5th Cir, 1995).
20
he “shares in the criminal intent of the principal.”33 To
establish that the defendant participated in the criminal activity,
the government must prove that “he has acted in some affirmative
manner to aid the venture.”34 “Mere presence and association are
insufficient to sustain a conviction for aiding and abetting.”35
Counts seven and eight charged Okoro with the receipt —— by
mail —— of funds from USAA for medical services that he did not
render to Audrey Santos. Okoro argues that the evidence adduced at
trial was insufficient to uphold his conviction because Santos
never testified. Santos’s boyfriend, Minh Nguyen, testified at
trial with regard to the treatment that both he and Santos
received. In sum, Okoro argues that Nguyen’s testimony alone is
insufficient to sustain his conviction. Thus, he urges, the
government failed to prove that he falsely represented to USAA the
medical services that he rendered to Santos. We reject this
argument.
Nguyen testified that he and Santos went to MedCare on the
advice of their attorney after they were injured in an automobile
accident. The same man examined both him and Santos. Guadalupe
Castro (“Lupy”) then took them to adjacent rooms, placed them on
therapy beds, and set the timers. Although Nguyen testified that
33
Id. (citing United States v. Jaramillo, 42 F.3d 920, 923
(5th Cir. 1995)).
34
Id.
35
Id.
21
he never witnessed a doctor examine Santos, he also stated that he
would have been aware if she had received any treatment on her
therapy bed because her treatment room was immediately adjacent to
his. Nguyen testified that he and Santos could converse with each
other from the adjacent rooms. Moreover, Nguyen stated that they
attended other therapy sessions at Medcare together, and that on
the one occasion when Santos attended a session alone, he drove her
there.
Nguyen further testified that in each others’ presence, Lupy
instructed the two of them to sign the blank sign-in sheets, and
they did so. Nguyen also stated that he saw Santos fill out the
forms and that each of them signed forms for dates on which they
did not visit the clinic. Nguyen also identified the MedCare bills
that each received, testifying that each bill noted that the
patient had received treatments that he or she had not. And, USAA
mailed the settlement checks to Nguyen’s and Santos’s attorney,
who, in turn, paid both patients.
The record belies Okoro’s contention that the government
relied solely on Nguyen’s testimony to sustain counts seven and
eight. At trial, Dr. Vachhani identified Okoro’s signature on the
progress notes in Nguyen’s patient file, and on the medical
summary, the progress notes, and the narrative in Santos’s file.
Nguyen stated that Okoro never examined either him or Santos.
Indeed, Okoro himself testified that he never treated either
patient.
22
Other evidence adduced at trial established that Okoro and the
other clinic employees followed this pattern with all the patients
named by the government in counts one through four and nine through
fifteen of the second superceding indictment, including Nguyen
himself. The jury was entitled to rely on all of the other
evidence and testimony to determine whether a scheme to defraud
existed and whether Okoro followed that scheme with regard to
Santos.36 The evidence was sufficient for a jury to conclude that
Okoro falsely reported medical services that he rendered Santos
when he had not —— medical services that were subsequently billed
via mail to USAA. We hold that the evidence was sufficient to
support Okoro’s convictions on counts seven and eight.
C. Sufficiency of the Evidence: Akpan
Akpan also argues that the evidence was insufficient to
convict him of aiding and abetting mail fraud in violation of
Sections 1341 and 2. Count one of the second superceding
indictment charged Akpan with aiding and abetting such mail fraud
by receiving inflated insurance payments from USAA for treatment
that Agents Tucker and Jefferson allegedly received. Akpan argues
that the evidence is insufficient to uphold his conviction on count
one, because the government relied solely on an audiotape of a
36
See, e.g., Tencer, 107 F.3d at 1127-28 (noting that even
though patient charged in indictment did not testify at trial with
regard to fraudulent services, jury was entitled to rely on
circumstantial evidence in form of testimony of other patients with
regard to whether claims submitted to insurance company were
fraudulent).
23
conversation between him and the two undercover agents. Akpan
advances that the audiotape is unintelligible and does not
demonstrate that he stood to derive any financial benefit from
Tucker’s or Jefferson’s cases. In sum, Akpan maintains that the
audiotape merely demonstrates that he performed his job as the
clinic administrator.
Contrary to Akpan’s argument, the government did not rely
solely on the audiotape. Thus, his reliance on an allegedly
unintelligible audiotape is meritless. Agent Tucker herself
testified in detail at trial as to her interaction with Akpan. Her
testimony revealed that Claudia Ramon was in the room during the
conversations with Akpan, that Akpan had Tucker’s and King’s files
with him, and that he returned them to Ramon when the conversation
ended. Tucker also testified that after she, Ramon, and King left
Akpan’s office, Ramon provided them with the dates to fill in on
their patient files.
Further, as noted, to conclude that Akpan participated in a
scheme to defraud, the jury was entitled to rely on “circumstantial
evidence and by inferences drawn from the facts and circumstances
surrounding the scheme.”37 Although the district court agreed to
give a limiting instruction to the jury regarding which witnesses
and evidence it could consider during deliberations on count one
(the sole count that charged Akpan with mail fraud), even Akpan’s
37
United States v. O’Brien, 119 F.3d 523, 532 (7th Cir. 1997).
24
counsel conceded that other witness testimony could establish a
common scheme or plan.
The government established that Akpan and Okoro had an ongoing
business relationship. They had worked together at Westchase and
Spectrum Clinics before they transferred to MedCare. In addition,
Akpan owned one of the clinics for which Okoro worked as a
provider. Most importantly, the evidence at trial established that
at both Spectrum and MedCare, Akpan was the administrator who
supervised the office staff and worked with the lawyers and
insurance companies to ensure that the clinic received its share of
the settlement funds for the services rendered to the car accident
“victims.” Akpan thus supervised the key activity of the mail
fraud scheme —— the mailing of letters to the insurance companies
and the attorneys to ensure that they paid the clinic and, in turn,
the receipt of such funds through the mails. The audiotape,
containing the most damning evidence, viz., Akpan’s insistence that
the clinic receive its money (because, as he alleged, many patients
denied receiving services as many times as their record
demonstrated), further bolstered the government’s allegation of a
common scheme or plan. The record demonstrates sufficient evidence
to sustain Akpan’s conviction on count one.
D. Rule 404(b) Evidence
Okoro maintains that the district court committed reversible
error when it admitted extrinsic evidence of his involvement with
25
seventeen home health care agencies in support of the health care
fraud charges in counts twenty through twenty-six of the second
superceding indictment. Okoro first contends that the government
failed to provide him with notice before trial of its intent to use
Rule 404(b) evidence. Okoro argues in the alternative that the
evidence does not pass Rule 404(b)’s admissibility test.
Generally, we review a trial court’s decision to admit
evidence for abuse of discretion.38 As Okoro did not object to the
admissibility of the evidence until his motion for a new trial, we
review the district court’s decision for plain error only.39 Also,
Okoro raises for the first time on appeal the issue whether he
properly received notice of the government’s intent to use the
specific acts evidence. Accordingly, we also review this objection
for plain error.40
Okoro’s contention that Rule 404(b) applies here is off the
mark. Okoro forfeited the protection of Rule 404(b) when he placed
his character at issue by testifying at trial.41 Although this
“does not give the prosecution free rein,” it allows the
38
United States v. Riggio, 70 F.3d 336, 339 (5th Cir. 1995).
39
United States v. Smith, 203 F.3d 884, 890 (5th Cir. 2000)
(“However, if a defendant fails to object at trial, this Court will
only review evidentiary rulings for plain error.”).
40
Id.
41
United States v. Mikolajczyk, 137 F.3d 237, 244 (5th Cir.
1998) (citing United States v. Tomblin, 46 F.3d 1369, 1388 (5th
Cir. 1995)) (“A defendant makes his character an issue, losing the
protection of rule 404(b), when he testifies.”).
26
government, under Federal Rule of Evidence 608(b), to cross-examine
the defendant “with respect to instances of misconduct that are
clearly probative of truthfulness or untruthfulness, such as
perjury, fraud, swindling, forgery, bribery, and embezzlement.”42
Because the government offered the other-acts evidence to impeach
Okoro on cross-examination while he was on the stand so as “to show
the character of the witness for untruthfulness,” Rule 404(b)’s
notice provision and its two-part admissibility test do not apply
here.43
The government’s evidence pertained directly to Okoro’s
character for truthfulness or the lack thereof. Okoro insisted on
direct examination that he did not enter into a scheme to defraud
Medicare. He testified that he did not authorize the home
healthcare clinics to bill Medicare under his provider number for
services that he himself did not render. Okoro stated that he had
regularly treated patients in nursing or halfway homes from 1996
until 1999, but that he did not charge for these services and did
not receive many payments for services that he did provide.
On cross-examination, the government demonstrated that, to the
contrary, seventeen home healthcare providers had charged Medicare
42
Id. (quotations omitted); see also Bustamente, 45 F.3d at
945-46 (“FRE 608(b) allows the government to inquire into specific
instances of conduct relevant to Bustamente’s character for
truthfulness.”).
43
Tomblin, 46 F.3d at 1388 & n. 51 (quoting United States v.
Schwab, 886 F.2d 509, 511 (2d Cir. 1989)).
27
almost two million dollars for Okoro’s services. Of this two
million dollars, the home healthcare providers paid Okoro $15,000
in “consulting fees.” This evidence directly contradicted Okoro’s
testimony that the home healthcare providers did not pay him. The
district court did not abuse its discretion in admitting this
evidence under Rule 608(b).
E. Admissibility of Witness Testimony
Okoro informed the district court that he intended to call
three groups of witnesses: (1) personal injury attorneys who had
represented car accident victims named in the indictment, which
attorneys would testify that their clients were satisfied with the
services Okoro had rendered and who never questioned the amount of
money that the insurance companies paid; (2) former patients of
Okoro not named in the indictment who would testify that they were
satisfied with Okoro’s services; and (3) owners of physical therapy
clinics who would rebut the allegations that Okoro billed them for
services that he did not perform. Okoro argues that the district
court severely limited his right to call these witnesses,
contending that the district court excluded testimony of Okoro’s
former patients and the owners of the medical clinics. We review
a district court’s rulings on the admissibility of the testimony of
a witness for abuse of discretion.44
44
United States v. Gray, 105 F.3d 956 (5th Cir. 1997).
28
The government first argues that Okoro made no proffer with
regard to the testimony of the witnesses who he intended to call.
Federal Rule of Evidence 103 states that no “[e]rror may be
predicated upon a ruling which admits or excludes evidence unless
a substantial right of the party is affected, and . . . the
substance of the evidence was made known to the court by offer or
was apparent from the context within which questions were asked.”45
We have held that a defendant will preserve his challenge to
excluded evidence if “‘the trial court has been informed as to what
counsel intends to show by the evidence and why it should be
admitted, and this court has a record upon which [it] may
adequately examine the propriety and harmfulness of the ruling.’”46
We will not review a challenge to excluded evidence, however,
unless the defendant made an offer of proof at trial.47 We reject
the government’s contention on this point because the record
reflects that Okoro’s counsel held a lengthy discussion with the
district court in which he informed the court about the testimony
of the witnesses that he intended to call.
Contrary to Okoro’s argument, however, the district court did
not exclude these witnesses. Okoro called four patients who
45
FED. R. EVID. 103(a) & (a)(2).
46
United States v. Jimenez, 256 F.3d 330, 343 (5th Cir.
2001)(quoting United States v. Ballis, 28 F.3d 1399, 1406 (5th Cir.
1994)).
47
United States v. Winkle, 587 F.2d 705, 708 (5th Cir. 1979).
29
testified to their relationship with Okoro and that they were
satisfied with Okoro’s services. Although the district court
limited Okoro’s former patients’ testimony and stated that they
could not testify with regard to billing matters because the
indictment did not name these patients, Okoro did not object to
this ruling or attempt to proffer the testimony of other patients
after the four testified.
Further, the following colloquy occurred when Okoro mentioned
the third set of witnesses —— the clinic owners:
Mr. Haynes: Well, that would be what we would want the
clinic people to say and that is, one, they had the
agreement with [Okoro], two, that he was salary or actual
hours there, three that he came by when he told then he
would be scheduled to come by and that when he did come
by, he performed evaluations on the patients for whom
they gave bills to the insurance company and/or Medicare.
The Court: Well, now, that’s three things, all of which
that’s fine.
The district court then stated that it would allow the clinic
owners to testify as to the custom or practice of the clinic at the
times that Okoro was there. Okoro did not object at trial that
this testimony would be too limited; in fact, he called one clinic
owner to the stand. After that clinic owner’s testimony, counsel
for Okoro informed the district court that he would let everyone
know after lunch whether he would call another owner to the stand.
After lunch, however, counsel for Okoro made no further mention
about calling another clinic owner. Okoro’s objections are without
merit. We find no error here.
30
F. Okoro’s Sentence
Okoro asserts several challenges to his sentence.
Specifically, he contends that under United States v. Booker,48 the
district court erred when it calculated the amount of loss
attributable to him under United States Sentencing Guidelines
(“U.S.S.G.”) § 2F1.1.49 Okoro also challenges the district court’s
application of U.S.S.G. § 2F1.1(b)(8)(B), pursuant to which the
district court enhanced Okoro’s base offense level by four levels
because he had deprived one or more financial institutions of more
than one million dollars. In his supplemental Rule 28(j) letter to
this court, Okoro also challenges the district court’s enhancement
of his base offense level by: (1) four levels for being a
leader/organizer of the criminal activity; (2) two levels for more
than minimal planning; and (3) two levels for abuse of his position
of trust.50
48
—— U.S. ——, 125 S. Ct. 738 (Jan. 12, 2005).
After the Supreme Court handed down Blakely v. Washington, ——
U.S. ——, 124 S. Ct. 2531, both appellants raised Blakely challenges
to their sentences in a Rule 28(j) letter to this court. When the
Supreme Court decided Booker, we ordered the parties to brief its
effect on their sentences. Thus, because Booker specifically
applies to the U.S.S.G., we refer to each appellant’s challenge to
his sentence as a Booker challenge.
49
The district court increased Okoro’s base offense level by
14 levels based on a total loss of between five and ten million
dollars. The indictment alleged a total loss of $75,408.47.
50
Okoro also contends that the district court erred when it
specified that his 31-month sentence for tax fraud should run
consecutively to his 120-month sentence for mail and healthcare
fraud. As we remand for resentencing in light of Booker, we need
not and therefore do not reach this challenge.
31
The Supreme Court made clear in Booker that “[a]ny fact (other
than a prior conviction) which is necessary to support a sentence
exceeding the maximum authorized by the facts established by a plea
of guilty or a jury verdict must be admitted by the defendant or
proved to the jury beyond a reasonable doubt.”51 The government
argues that Okoro has not properly preserved his Booker objection
and that we should review Okoro’s challenge for plain error.52
Okoro did not, however, fail to preserve his Booker challenge to
the district court’s loss calculation. Our review of Okoro’s pre-
sentencing objections to the Presentence Investigation Report
(“PSR”) and his objections during his sentencing reveal that Okoro
repeatedly objected to the district court’s determination of a
range of financial loss between five and ten million dollars on the
ground that that figure had not been proven at trial. Okoro also
consistently urged that the district court confine its
determination of loss to the amount alleged in the indictment.
Although Okoro never explicitly mentioned the Sixth Amendment,
Apprendi, or Blakely until his Rule 28(j) letter, we are satisfied
that his objections adequately apprised the district court that
Okoro was raising a Sixth Amendment objection to the loss
calculation because the government did not prove to the jury beyond
a reasonable doubt that the loss was between five to ten million
51
123 S. Ct. at 756.
52
See United States v. Mares, —— F.3d ——, 2005 WL 503715, at
*7-8 (5th Cir. Mar. 4, 2005).
32
dollars.53 When, as here, a defendant preserves his error, “we will
ordinarily vacate the sentence and remand, unless we can say the
error is harmless under Rule 52(a) of the Federal Rules of Criminal
Procedure.”54
We recognize that several circuit courts appear to be taking
divergent positions on the question whether a harmless error
analysis applies when a Sixth Amendment violation occurs.55 Were
53
See, e.g., United States v. Selwyn, 398 F.3d 1064, 1066-67
(8th Cir. 2005) (noting, in case involving Sixth Amendment
violation, that defendant preserved error by objecting to drug
quantity findings); United States v. Fox, 396 F.3d 1018, 1027 (8th
Cir. 2005) (noting, in case involving Sixth Amendment violation,
that Booker objection to drug quantity finding in supplemental pro
se brief preserved error).
We recognize, as have other circuits, that there exists some
question “whether, in cases not involving a Sixth Amendment
violation, there must be an objection to the mandatory nature of
the guidelines in order to preserve that error on appeal, or
whether a general objection to the sentence imposed under the
guidelines is sufficient to preserve a Booker challenge.” United
States v. Sayre, —— F.3d ——, 2005 WL 544819, at * 1 (8th Cir. Mar.
9, 2005). Because a pure Booker Sixth Amendment violation occurred
here, however, we need not —— and do not —— resolve this debate.
54
Mares, 2005 WL 503715, at *7 n. 9.
55
For example, the Sixth Circuit seems to intimate that a
harmless error analysis is not required when a constitutional
violation occurs. See, e.g., United States v. Oliver, 397 F.3d
369, 381 (6th Cir. 2005) (noting in a case where defendant failed
to preserve error that “[h]aving concluded that the district
court’s sentencing determinations in this case plainly violate the
Sixth Amendment, we need not consider whether such an error is
harmless.”). The Sixth Circuit’s position finds support in the
last sentence of the remedial Booker opinion. —— U.S. at ——, 125 S.
Ct. at 769 (“It is also because, in cases not involving a Sixth
Amendment violation, whether resentencing is warranted or whether
it will instead be sufficient to review a sentence for
reasonableness may depend upon application of the harmless-error
doctrine.”).
On the other hand, the District of Columbia Circuit appears to
33
we to review Okoro’s sentence for harmless error, however, we would
find that here the error was harmful.56 Harmless error is “[a]ny
defect, irregularity, or variance that does not affect substantial
rights” of the defendant,57 and “arises when the mistake fails to
prejudice the defendant.”58 “Prejudice occurs when the error ‘ha[s]
affected the outcome of the district court proceedings.’”59 The
government must bear the burden of demonstrating that the error was
harmless60 by demonstrating beyond a reasonable doubt that the
federal constitutional error of which a defendant complains did not
contribute to the sentence that he received.61
The government cannot meet this burden here. It can point to
no record evidence that would prove beyond a reasonable doubt that
the district court would not have sentenced Okoro differently had
it acted under an advisory Guidelines regime. Based on the record
before us, we cannot say that the mandatory nature of the
assume that Booker challenges are “governed by the harmless error
standard appropriate for constitutional error . . . .” United
States v. Coumaris, —— F.3d ——, 2005 WL 525213, at *6 (D.C. Cir.
Mar. 8, 2005).
56
Mares, 2005 WL 503715, at *7 n. 9.
57
FED. R. CRIM. P. 52(a).
58
United States v. Munoz, 150 F.3d 401, 413 (5th Cir. 1998)
(citing United States v. Olano, 507 U.S. 725, 734 (1993)).
59
Id.
60
See id.
61
Chapman v. California, 386 U.S. 18, 24 (1967).
34
Guidelines at the time of Okoro’s sentence did not contribute to
the sentence that he received. Accordingly, we vacate Okoro’s
sentence and remand for resentencing.62
G. Akpan’s Sentence
Akpan also challenges his sentence on Booker grounds.
Specifically, Akpan argues that the district court violated Booker
when it calculated the loss and increased his sentence based on an
amount of loss not found by the jury nor admitted by him. Akpan
also argues that the district court violated his right to trial by
jury when it increased his base offense level by two levels for
more than minimal planning and by three levels for a leadership
role in the offense. The government counters that Akpan has not
preserved his Booker challenge as he raised it for the first time
on appeal. Our review of the record demonstrates that this
contention is accurate. Akpan did not couch his arguments in the
district court as to the loss calculation in the same terms as
Okoro. Thus, we review Akpan’s sentence for plain error.63
Under the plain error test, we may not correct an error that
the defendant has failed to preserve unless there is “(1) error,
62
Because we vacate and remand Okoro’s entire sentence, we
need not and do not reach his other arguments of sentencing errors;
rather, we leave to the discretion of the district court, whether
in its discretion, it will impose the identical sentence with the
identical departures or enhancements, or both.
63
Mares, 2005 WL 503715, at *7-8.
35
(2) that is plain, and (3) that affects substantial rights.”64 Even
if the defendant carries his burden as to these three factors,
however, we will not correct the error unless “the error seriously
affects the fairness, integrity, or public reputation of judicial
proceedings.”65
Under Mares, Akpan passes the first two requirements for plain
error,66 but he fails the third. To demonstrate that the error
affected his substantial rights, Akpan had to show that the error
affected the outcome of the district court proceedings.67 Thus, the
defendant, rather than the government, bears the burden here.68
Akpan must “demonstrate a probability ‘sufficient to undermine
confidence in the outcome.’”69
Under Mares, Akpan cannot satisfy his burden. He cannot
demonstrate that the district judge —— sentencing under an advisory
rather than a mandatory Guidelines regime —— would have sentenced
him differently.70 The record does not contain anything to reflect
64
United States v. Cotton, 535 U.S. 625, 631 (2002).
65
Id.
66
2005 WL 503715, at *8.
67
See id. (quoting United States v. Olano, 507 U.S. 725, 734
(1993)).
68
Olano, 507 U.S. at 734.
69
United States v. Dominguez-Benitez, —— U.S. ——, 124 S. Ct.
2333, 2340 (2004).
70
Mares, 2005 WL 503715, at *9.
36
what the district court would have done had it sentenced Akpan
under an advisory Guidelines regime. The district court made no
remarks on the record to indicate that (1) it was bound by the
Guidelines, (2) it felt constrained by the Guidelines to sentence
Akpan in the way that it did, or (3) it would have sentenced him
differently if it had had the discretion to do so. In the total
absence of any such language, Akpan cannot carry his burden on the
third prong of the plain-error test.
Akpan also contends that the district court erred when it did
not state the reasons for imposing his particular sentence under 18
U.S.C. § 3553(c)(1). As Akpan failed to object to the district
court’s failure to state its reasons for imposing his particular
sentence, our review is again for plain error.71
Under 18 U.S.C. § 3553(c), “[i]f a defendant’s guidelines
sentencing range exceeds twenty-four months, the district court
must state in open court its reasons for the particular sentence
that it has imposed.”72 Akpan argues that the district court
failed to state its reasons in open court for imposing a 41-month
sentence as to Count One.
Based on a total offense level of 21 and a criminal history
category of I, the district court determined that Akpan’s guideline
range was between 37 to 46 months imprisonment. “Although 18
71
United States v. James, 46 F.3d 407, 407-08 (5th Cir. 1995).
72
Id. at 407 (citing 18 U.S.C. § 3553(c)(1)).
37
U.S.C. § 3553(c) requires the sentencing judge to state in open
court the reasons for its imposition of the particular sentence .
. . the district court need not provide reasons for imposing a
sentence at a particular point within the [applicable Guidelines
range] if this range is less than twenty-four months.”73 Here,
Akpan’s guideline range did not span a range of twenty-four months.
His argument is therefore without merit. We affirm Akpan’s
sentence.
III. CONCLUSION
For the foregoing reasons, we AFFIRM both Okoro’s and Akpan’s
convictions, as well as Akpan’s sentence. In light of Okoro’s
preservation of Sixth Amendment error, however, we VACATE his
sentence and remand for resentencing.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
73
United States v. Pippin, 903 F.2d 1478, 1484-85 (11th Cir.
1990) (citations and quotations omitted). See also United States
v. Richardson, 925 F.2d 112, 117 (5th Cir. 1991) (“Following the
reasoning in United States v. Ehret, 885 F.2d 441 (8th Cir. 1989),
cert. denied, 493 U.S. 1062 110 S. Ct. 879, 107 L. Ed. 2d 962
(1990), we find that when the spread of an applicable Guideline
range is less than 24 months, the district court is not required to
state its reasons for imposing a sentence at a particular point
within the Guideline range.”).
38