United States v. Oakey Chikere ( 2018 )

Case: 17-20022 Document: 00514669033 Page: 1 Date Filed: 10/04/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 17-20022 October 4, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
OAKEY CHIKERE,
Defendant - Appellant
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:15-CR-303-1
Before HAYNES, HO, and DUNCAN, Circuit Judges.
PER CURIAM:*
Oakey Chikere appeals his conviction for health care fraud and
conspiracy to commit health care fraud. He contends that the government
offered improper “overview” testimony, improper testimony about Chikere’s
state of mind, and that the cumulative effect of this testimony denied him a
fair trial. Propriety of the trial aside, he further argues that the district court
improperly applied a sentencing enhancement. U.S.S.G. § 2B1.1(b)(11)(C)(i)
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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(“If the offense involved . . . the unauthorized transfer or use of any means of
identification unlawfully to produce or obtain any other means of identification
. . . increase by 2 levels.”).
We conclude that the government’s overview testimony was not plain
error, the government did not offer improper testimony about Chikere’s state
of mind, and that the cumulative error doctrine does not apply here.
Furthermore, because we determine that imposing the sentencing
enhancement was not plain error, we AFFIRM the judgment of the district
court.
I.
Medicare covers home health care services for those who need short-term
care, but for whom it would be unnecessary or burdensome to go to a hospital
or other medical facility. To get home health care, patients must meet with a
physician who can determine whether the patient is eligible for home health
care. Then, the physician refers the beneficiary to a home health care agency,
which conducts its own evaluation. If the agency is satisfied that the
beneficiary is qualified for and needs home health care services, it generates a
“485 Form” that the physician signs to authorize home health care. Then, the
home health care agency bills Medicare for the services it renders to the
beneficiary.
One common fraudulent scheme in the home health care industry begins
with a “marketer” or a “recruiter” working for a home health care agency who
finds Medicare-eligible patients willing to essentially sell their Medicare
Identification Numbers. Then, the patients go a clinic willing to sell 485
Forms—without a 485 Form, a home health care agency cannot bill Medicare.
The agency pays the clinic for the 485 Form and then bills Medicare for services
it never renders the patient.
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This case involves such a scheme. Ebelenwa Chudy-Onwugaje operated
a home health care agency, Candid Health Care. Chudy paid Angela
Mcfarlane to recruit patients, and paid the patients for their information.
Chudy also paid Oakey Chikere—and his Direct Care Clinic—for each doctor-
signed 485 Form he provided. But Chikere and Direct Care did not have
doctors actually examining patients. Rather, Direct Care’s manager Munda
Massaquoi filled out 485 Forms for patients brought in by marketers. Then, a
doctor would come by at regular intervals to mass sign the 485 Forms.
Chikere was charged with health care fraud and conspiracy to commit
health care fraud. At trial, the government offered testimony from Lisa Garcia,
Mcfarlane, Chudy, Massaquoi, and Sunday Joseph Edem. Relevant to
Chikere’s arguments here, Lisa Garcia is an investigator for Health Integrity,
which conducts fraud investigations for Medicare. Garcia testified about how
Medicare works and common fraudulent schemes she has seen in her
investigations. Chikere’s counsel cross-examined her and established that her
testimony did not explain the full range of legal practices in the home health
care industry.
After the jury found Chikere guilty on all counts, the district court
sentenced Chikere to 70 months in prison, three years of supervised release,
and a $500 special assessment. In addition, the court found Chikere and
Chudy jointly and severally liable for $258,738 in restitution.
II.
Chikere objects to Garcia’s trial testimony for two reasons: (1) she gave
impermissible overview evidence; and (2) she impermissibly addressed
Chikere’s state of mind. Because Chikere did not object to Garcia’s testimony,
we review for plain error. See United States v. Flores-Martinez, 677 F.3d 699,
710 (5th Cir. 2012). To reverse the district court for plain error: (1) there must
be legal error; (2) that is clear or obvious; (3) affecting the appellant’s
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“substantial rights”; and (4) “if the above three prongs are satisfied, the court
of appeals has the discretion to remedy the error—discretion which ought to be
exercised only if the error seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” United States v. Escalante-Reyes, 689 F.3d
415, 419 (5th Cir. 2012) (en banc) (alteration in original) (quotation marks
omitted) (quoting Puckett v. United States, 556 U.S. 129, 135 (2009)).
Although some of Garcia’s testimony was arguably inappropriate, the
government offered enough evidence of Chikere’s guilt that Chikere’s rights
were unaffected.
A. Permitting Garcia’s Overview Testimony Was Not Plain Error.
Chikere contends that Garcia provided impermissible “overview”
testimony “to paint a picture of guilt before the evidence ha[d] been
introduced.” United States v. Griffin, 324 F.3d 330, 349 (5th Cir. 2003). Rather
than merely explaining how Medicare works, Chikere asserts that Garcia
offered her testimony on disputed issues of credibility. The government
responds that even if the district court abused its discretion by allowing
impermissible “overview” testimony—which it disputes—the government
offered enough corroborating evidence that there is no plain error.
“Permitting a witness to describe a complicated government program in
terms that do not address witness credibility is acceptable.” Id. But to allow
a witness to provide “tendentious testimony . . . would greatly increase the
danger that a jury ‘might rely upon the alleged facts in the [overview] as if
[those] facts had already been proved,’ or might use the overview ‘as a
substitute for assessing the credibility of witnesses’ that have not yet testified.”
Id. (alteration in original) (quoting United States v. Scales, 594 F.2d 558, 564
(6th Cir. 1979)). Unlike summary witnesses, who provide a summary of
evidence already presented to the jury, we are skeptical of the use of “overview”
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witnesses because their testimony can prime the jury’s view of the rest of the
evidence.
Garcia offered her lay testimony about how Medicare works and common
fraudulent schemes she has seen. Chikere objects to three specific exchanges.
First, he contends that Garcia offered improper testimony about how clinics
typically operate:
Q. Now let’s talk about clinic owners that open up clinics for
diagnostic testing. Have you ever seen a clinic that is only there
to serve as home health company referrals?
A. No.
Q. Would you say that’s a functioning clinic?
A. No.
Q. Is there such a thing as a clinic that does not do any tests or
any lab work or anything but only caters to a home health
company?
A. No, I’ve never seen anything like that, not in my experience.
Q. All right. Well, not legitimately, correct?
A. Correct.
While her testimony addressed part of the government’s theory, it was
otherwise permissible lay witness testimony based on Garcia’s experience. See
FED. R. EVID. 701; 704(a) (“An opinion is not objectionable just because it
embraces an ultimate issue.”).
Second, Chikere points to an exchange about one of the billing records
the government intended to use to show fraud:
Q. So, in this scenario, they’re always going to make the patient
as sick as possible to get paid the maximum allowed amount?
A. Unfortunately, yes, unless they have a very honest boss or a
very honest agency.
Q. Right. So in this scenario, you know, we’re looking at James
Allen for 60 days in a scenario where it’s fraudulent. He doesn’t
even need home health. And the government, Medicare, has paid
two thousand dollars for really nothing to someone? Is that—
A. That’s probably very true.
Q. And you see that—in your investigations, you see that over and
over again?
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A. And the—probably the sadder part is that he only got—he
probably only got seen nine times maybe in those whole 60 days.
Not only did Garcia opine on facts that go beyond her lay opinion, the
government asked Garcia to agree that something was “fraudulent.” Chikere
reasonably complains that the government improperly asked Garcia to testify
about ultimate legal liability. See, e.g., United States v. Espino-Rangel, 500
F.3d 398, 400 (5th Cir. 2007) (“[A] non-expert witness may not offer legal
conclusions.”); see also United States v. Gutierrez-Farias, 294 F.3d 657, 663
(5th Cir. 2002).
Third, Chikere objects to a government “hypothetical,” using facts from
this case:
Q. Is it okay for someone who’s just hypothetically, let’s say, a lady
by the name of Munda at the office of Direct Care, who’s not even
a P.A., seeing patients and taking notes, and there’s no doctor and
the doctor comes two weeks later to sign those forms—
A. No.
Q. —is that allowed?
A. No, that would not be appropriate.
Q. And that would just be like an office manager?
A. That would not be appropriate.
Unlike the first exchange—which is just lay opinion testimony—and the
second exchange—which is arguably an impermissible legal conclusion—this
exchange comes the closest to the ill that we recognized in Griffin: by using a
name-specific “hypothetical” scenario, the government was priming the jury
and coloring the rest of the testimony it would hear. Griffin, 324 F.3d at 349.
But even this testimony does not make the kind of express credibility
determination that we have found improper. See, e.g., United States v. Price,
722 F.2d 88, 90 (5th Cir. 1983); see also United States v. Moore, 997 F.2d 55,
59 (5th Cir. 1993) (“[The] Price [court] prohibited only an express statement by
the expert that he believed the government’s witnesses.”).
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Moreover, even if the district court abused its discretion by allowing
impermissible overview testimony, that is not automatically plain error. See
Griffin, 324 F.3d at 349. Here, there is overwhelming evidence of Chikere’s
guilt. Each of the government’s witnesses provided testimony that supports
Garcia’s. Id. at 350 (“[T]he record indicates that [the] overview testimony . . .
[was] supported by other witnesses’ testimony and exhibits admitted into
evidence. [The] testimony, viewed in light of the record as a whole, had little,
if any, [e]ffect on the jury’s verdict.”).
Mcfarlane testified that she recruited patients for Candid and Direct
Care, that she never saw a doctor examine a patient at Direct Care, and that
Mundy filled out the patient paperwork at Direct Care. She even provided
video of some of her interactions with Direct Care, including one showing
Mundy filling out forms and one showing discussions with Chikere about
recruiting patients for another doctor. Massaquoi corroborated Mcfarlane’s
testimony that Direct Care’s patients came from recruiters and that Direct
Care did not have doctors examining patients for the 485 Forms. Although
Massaquoi did not testify that Chikere had an agreement with Direct Care,
Chudy did. As payment, Chudy wrote checks—sometimes blank checks—to
Chikere’s nonprofit. She too testified that none of the patients identified at
trial ever saw a doctor. Edem said that he acted as a consultant to Chikere,
teaching him how to run a fraudulent clinic without raising Medicare’s
suspicion, which matches the typical fraudulent scheme that Garcia identified.
He further testified that Direct Care was only set up to fraudulently certify
patients for home health care.
At trial, Chikere’s response to the government’s witnesses was simply
that they are all lying; Chudy donated to his ministry, nothing more. Chikere
had the opportunity to cross-examine all witnesses for inconsistencies. And
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here, Chikere contends that the government’s witnesses had credibility
problems because they all have been involved in Medicare fraud themselves.
In light of the overwhelming and consistent evidence of Chikere’s guilt,
we conclude that—even if there is clear legal error here—the error did not
affect Chikere’s substantial rights. Id.
B. Garcia Did Not Improperly Opine on Chikere’s State of Mind.
“An expert in a criminal case may not [] offer ‘an opinion or inference as
to whether the defendant did or did not have the mental state or condition
constituting an element of the crime charged.’” Gutierrez-Farias, 294 F.3d at
662 (quoting FED. R. EVID. 704(b)).
Chikere argues that Garcia offered improper testimony about Chikere’s
state of mind. Chikere points to two exchanges and a chart, none of which
concern state of mind. First, the government asked
Q. Is there any scenario where a home health owner should be
paying a clinic owner?
A. No.
Much like her other testimony, Garcia offered her lay opinion about how clinics
normally operate, not Chikere’s state of mind. Second, Chikere points again
to the “hypothetical” about Massaquoi which does not address Chikere’s state
of mind. Finally, Garcia offered a chart showing the steps in a typical home
health care fraud scheme. This too says nothing about Chikere’s state of mind.
Moreover, it is distinguishable from the chart in Griffin because it was not
offered by the government agent investigating the case and did not implicate
Chikere or any of his co-conspirators. See Griffin, 324 F.3d at 349.
None of these exchanges address Chikere’s state of mind. Rather, Garcia
offered observations based on her experience as an investigator. Thus, these
exchanges work better as complements to Chikere’s overview witness
objection. And they are subject to the same response: even if it were an abuse
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of discretion to allow the testimony, the district court did not commit plain
error and certainly nothing warranting our discretionary reversal.
III.
Chikere further argues that the cumulative error doctrine requires
reversal in this case. “[A]n 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. Munoz, 150 F.3d 401, 418 (5th Cir. 1998) (collecting authorities). “We have
repeatedly emphasized that the cumulative error doctrine necessitates
reversal only in rare instances and have previously stated en banc that ‘the
possibility of cumulative error is often acknowledged but practically never
found persuasive.’” United States v. Delgado, 672 F.3d 320, 344 (5th Cir. 2012)
(en banc) (footnote omitted) (quoting Derden v. McNeel, 978 F.2d 1453, 1456
(5th Cir. 1992) (en banc)). We are especially unlikely to apply the doctrine
where “the government presents substantial evidence of guilt” or the defendant
has only “demonstrated one possible harmless error.” Id.
The purported errors in this case did not “so fatally infect the trial that
they violated the trial’s fundamental fairness.” Id. at 344 (internal quotations
omitted) (quoting United States v. Fields, 483 F.3d 313, 362 (5th Cir. 2007)).
At best, Chikere can point to one example of improper overview witness
testimony and one example of a witness arguably being asked to offer a legal
conclusion. In addition to his substantive critiques of Garcia’s testimony,
Chikere argues that, “[b]ecause the underlying evidence had not been
introduce[d], Chikere’s ability to cross-examine the basis of [] Garcia’s
testimony and opinions was also limited.” This is simply not supported by the
record. Both the government and Chikere entered evidence into the record
before Garcia testified and Chikere had the ability to cross examine Garcia,
which he did.
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Especially when weighed against the overwhelming evidence of guilt and
the weak evidence in his favor, there is no cumulative error here. Id. at 344.
IV.
Finally, Chikere challenges the district court’s sentencing enhancement
for “the unauthorized transfer or use of any means of identification unlawfully
to produce or obtain any other means of identification.” U.S.S.G.
§ 2B1.1(b)(11)(C)(i). Because Chikere forfeited this argument and there is no
controlling law, we conclude that the district court did not commit plain error
applying the enhancement.
Chikere failed to preserve error. “To preserve error, an objection must
be sufficiently specific to alert the district court to the nature of the alleged
error and to provide an opportunity for correction.” United States v. Neal, 578
F.3d 270, 272 (5th Cir. 2009) (citing United States v. Ocana, 204 F.3d 585, 589
(5th Cir. 2000)).
Chikere’s objections were not specific enough to alert the district court
to the argument he makes before this court. He objected to the pre-sentencing
report:
Defendant should not be given a 2 level increase pursuant to
U.S.S.G. § 2B1.1(b)(11)(C)(i) for using a means of identification
unlawfully to obtain another means of identification. Defendant
never did this.
At the sentencing hearing, Chikere’s counsel said, “I don’t think there’s any—
any evidence that he—that—using a means of identification unlawfully to
obtain identification. I don’t remember that happening at all at the trial. I
don’t remember any testimony of that nature.” But before us, Chikere
contends that he had permission to use the information and therefore the
enhancement does not apply. These are different arguments, emphasizing
different factual and legal grounds. Chikere’s argument now is that his use
can be unlawful but still authorized, a point he said nothing about in the
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district court. Chikere’s vague objections were therefore ill-suited to alert the
district court to the issue presented here: § 2B1.1(b)(11)(C)(i)’s application to
situations in which a person receives permission to use identification and does
so unlawfully.
Because Chikere “has failed to make his objection to the guidelines
calculation sufficiently clear, the issue is considered forfeited, and we review
only for plain error.” United States v. Chavez-Hernandez, 671 F.3d 494, 497
(5th Cir. 2012) (collecting authorities).
Here, if the district court erred, such error would not be plain because
there is no controlling law. See id. (citing United States v. Olano, 507 U.S. 725,
732–36 (1993); United States v. Infante, 404 F.3d 376, 394 (5th Cir. 2005)). “‘At
a minimum,’ establishing plain error requires a showing that the ‘error [was]
clear under current law.’” United States v. Trejo, 610 F.3d 308, 319 (5th Cir.
2010) (alteration in original) (citing Olano, 507 U.S. at 734). Accordingly, we
have declined to find plain error under similar facts. What’s more, one of our
sister courts concluded that the guideline applied in an analogous case.
Section 2B1.1(b)(11)(C)(i) applies to the “unauthorized transfer or use of
any means of identification unlawfully to produce or obtain any other means
of identification.” 1 Here, the question is whether the enhancement applies to
a situation in which someone permits the use of her information for an
unlawful purpose.
We have yet to definitively interpret § 2B1.1(b)(11)(C)(i). But, in an
unpublished decision, we concluded that “we cannot say it was plain error for
the district court to find that [use of a social security number] to obtain a
1 There is no dispute that the Medicare information here is a “means of identification,”
18 U.S.C. § 1028(d)(7), and any fraudulent health care claims would be the “other means of
identification.” Id.; U.S.S.G. § 2B1.1(b)(11)(C)(i), comment n.1.
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driver’s license was an unauthorized use of the social security number,
regardless of whether [the defendant] had permission from the owner of the
information to use the number for that unlawful purpose.” United States v.
Morris, 376 Fed. App’x 461, 462 (5th Cir. 2010) (per curiam) (unpublished)
(emphasis added).
And our sister court has held that under § 2B1.1(b)(11)(C)(i), “the
beneficiaries . . . could not have authorized submission of claims when they had
no legal authority to do so. For that reason, . . . [even if] the beneficiaries
testified that they consented to or permitted submission of claims, it would be
of no consequence.” United States v. Gonzalez, 644 Fed. App’x 456, 465 (6th
Cir. 2016) (unpublished) (internal citations omitted) (citing United States v.
Mobley, 618 F.3d 539, 547–48 (6th Cir. 2010)).
Without controlling precedent from this court and in light of other
precedents, the district court did not commit clear error by applying the
enhancement here.
V.
We therefore AFFIRM the district court’s judgment.
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