United States v. Jonathan Agbebiyi , 575 F. App'x 624 ( 2014 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0612n.06
No. 12-2559
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Aug 08, 2014
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF MICHIGAN
JONATHAN AGBEBIYI, )
)
Defendant-Appellant. )
)
________________________________
BEFORE: GRIFFIN and DONALD, Circuit Judges; GRAHAM, District
Judge.*
GRAHAM, District Judge. Defendant-Appellant Jonathan Agbebiyi
was charged by a third superseding indictment returned in the
United States District Court for the Eastern District of Michigan
with one count of conspiracy to commit health care fraud in
violation of 18 U.S.C. §§ 1349 and 1347 (Count 1), and six counts
of health care fraud in violation of § 1347 (Counts 2 through 7).
Other co-conspirators also named in the original indictment filed
in this case pleaded guilty. The case against Agbebiyi was tried
to a jury, and he was convicted on five counts of health care fraud
and the conspiracy charge. He now appeals his conviction on the
*
The Honorable James L. Graham, Senior United States District Judge for the Southern District
of Ohio, sitting by designation.
No. 12-2559, United States v. Agbebiyi
conspiracy charge and his sentence. For the reasons that follow, we
AFFIRM the judgment and sentence of the district court.
I. Background
Medicare Part B is federal health insurance which covers
physician charges and diagnostic tests. In Michigan, Medicare Part
B is administered by Wisconsin Physician Service (“WPS”), a
Medicare contractor. Medicare contractors are responsible for
processing and reimbursing claims on behalf of Medicare
beneficiaries, and for enrolling physicians and group clinics as
providers. The provider application form includes a certification
that the applicant will submit claims truthfully and accurately.
Medicare claims must be for services which are medically necessary.
Providers are responsible for knowing the Medicare rules and
regulations, and for submitting claims in accordance with those
regulations. Physicians commonly reassign their billed Medicare
benefits to the clinic or entity for which they work. A physician
who becomes a Medicare provider must sign a form which puts him on
notice of Medicare rules and regulations, and attests that the
physician is responsible for the truth and accuracy of any claims
submitted under his Medicare provider number. A physician provider
is responsible for the billing of services under his provider
number even if someone else prepares the billing. WPS provides
welcome packets to providers, advises them about provider
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accountability for claims submitted on their behalf and how to
report suspected fraud, and offers documents, educational programs,
newsletters, and a toll-free phone number for questions. If
fraudulent activity is detected, WPS refers the matter to Trust
Solutions for investigation.
In 2007, Karina Hernandez moved from Miami, Florida, to the
Detroit, Michigan, area. Hernandez, who had a high-school
education, planned to open a clinic for the purpose of providing
diagnostic testing which could be billed to Medicare. Hernandez
admitted that she opened the clinic for the purpose of defrauding
Medicare. Marieva Briceno (Hernandez’s mother), Juan Villa
(Hernandez’s brother-in-law), Dora Binimelis and Emilio Haver were
also involved in this scheme.
Hernandez first opened Blessed Medical Clinic (“Blessed”), in
Livonia, Michigan, with the assistance of her mother and Dora
Binimelis. Hernandez later opened the Alpha & Omega Medical Clinic
(“Alpha & Omega”) and the Manuel Medical Clinic (“Manuel”).
Binimelis provided the diagnostic equipment that was used in the
clinic. All three clinics were located in the same building and
shared equipment. The Medicare application submitted for Blessed
listed Juan Villa as the contact person. Hernandez was listed as
the contact person on the Medicare application for Alpha & Omega,
and Henry Briceno was listed as the contact person on the Medicare
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No. 12-2559, United States v. Agbebiyi
application for Manuel. Juan Villa was approached by Hernandez
about being the owner of Blessed on paper because he had no prior
involvement with a clinic and no criminal record, thereby reducing
the risk that Medicare would investigate them.
In order to bill Medicare, the clinics were required to employ
doctors to work at the clinics. The clinics provided the doctors
with forms to order diagnostic tests, such as EKGs and nerve
conduction tests. Dr. Alfonso Acosta, a general family physician,
worked briefly at Blessed in the fall of 2007. He was interviewed
for the position by Hernandez, who showed him the clinic’s
diagnostic equipment, including machines for administering the
Doppler test and nerve conduction tests. Hernandez pressured him
to order tests. Acosta also observed Alejandro Haver, the son of
Emilio Haver, instruct clinic employees to conduct additional tests
which he had not ordered. As a general practitioner, Acosta had
asked a specialist on two or three occasions to do a nerve
conduction test, but had not previously performed these specialized
tests himself, and had never ordered a Doppler test.
Doctor Agbebiyi, who specialized as a gynecologist,
obstetrician and general family doctor, worked for the clinics from
April, 2008, through January 15, 2010. Hernandez interviewed
Agbebiyi for the position and gave him a tour of the clinic to show
him the diagnostic equipment. Hernandez explained to Agbebiyi that
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No. 12-2559, United States v. Agbebiyi
after he had seen a patient, the patient would be referred for
diagnostic tests. According to the Government, Agbebiyi ordered
numerous diagnostic tests without any legitimate medical purpose so
that the clinic could generate profits from Medicare reimbursement
revenues. Agbebiyi worked for the clinics on a part-time basis
from April of 2008 to January of 2010, and was paid $100 per hour.
After Hernandez opened Manuel, Agbebiyi agreed to work there for
his hourly rate plus fifteen percent of the total amount being
billed by the three clinics.
The clinics employed drivers who were paid to find patients
who were Medicare-eligible and bring them to the clinics. The goal
was to make money for the clinics when the clinics’ doctor referred
patients for diagnostic tests. The drivers were organized by
Hernandez’s husband, Santiago Villa. Isaac Carr, one of the
drivers used by the clinics, testified that he would go to soup
kitchens and recruit persons who had a Medicare card to go to the
clinics for cash. Carr was paid $50 for every patient he brought
to the clinic, and the patient was also paid $50. Patients were
delivered to the clinics in groups, and were at the clinics from
two to eight hours, where Juan Villa would provide fast food to
these individuals while they were waiting to see the doctor.
Agbebiyi knew that the clinics paid a driver to bring in patients.
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No. 12-2559, United States v. Agbebiyi
The patients were coached to say they had certain symptoms,
such as lower back pain, headaches, or swollen knees. Onthaus
Madden, a patient at Alpha & Omega, went to the clinic once a month
because she was paid money by the driver, was given food, and
received paid prescriptions. Madden testified that she was
instructed by the receptionist to complain about her knees. At
trial, Madden stated that a doctor with an African name told her
that she was required to take the diagnostic nerve tests as her
treatment. Dr. Agbebiyi billed Medicare for eighteen nerve
conduction studies administered to Madden. No one from the clinic
ever called Madden to talk to her about the results of these tests.
Ultrasound tests were performed at the clinics by Kim Seung
Hee, a certified ultrasound technician who worked at the clinics
for seven to eight months until June, 2009. Hee testified that
some patients stated they came to the clinic for prescriptions, and
objected or threatened her when she started to perform the
ultrasound tests ordered by Agbebiyi. On those occasions, Agbebiyi
instructed her to go ahead and do the tests. Occasionally when she
informed Agbebiyi that a patient had received ultrasound tests
within the past two or three months for which no results had been
received, Agbebiyi instructed her to go ahead and perform the test
anyway. Hee observed diagnostic tests being performed at the
clinic even when no doctor was present. Hernandez and Juan Villa
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No. 12-2559, United States v. Agbebiyi
forced her to perform ultrasounds even when Agbebiyi was not there.
When Hee informed Agbebiyi about this, he would look at the chart,
see the patient, and tell her to do the ultrasound.
The diagnostic test results were sent to a group of doctors in
Miami, Florida, for interpretation. Hee observed ultrasound test
results from Florida in cases where the pictures were not taken
properly by another technician. She cited two examples involving
test result reports which stated that a kidney or the thyroid
looked normal, but the corresponding ultrasound pictures were not
of those organs. Agbebiyi told Hee not to let Lynn, the other
technician, do the ultrasounds.
Jasmine Oliver also worked at the clinics. She had a high-
school education, and her sole medical training consisted of one
phlebotomy (blood-drawing) class in trade school. Oliver’s job
included interviewing patients about their health complaints,
taking their vital signs, and doing blood pressure readings.
Oliver also administered transcranial Doppler tests, pulmonary
function tests, nerve conduction velocity tests, and vestibular
tests. Oliver had no prior training in administering diagnostic
tests, and was taught by Juan and Santiago Villa how to use the
diagnostic equipment. When test results came back from Florida,
Oliver put them in the patient files and put the files on
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No. 12-2559, United States v. Agbebiyi
Agbebiyi’s desk, and after Agbebiyi had reviewed the files, which
she often observed him do, she put them away.
The clinic used a form prepared by Alejandro Haver which
listed symptoms corresponding to the various diagnostic tests
available at the clinics. Oliver used a complaint sheet to record
the patients’ symptoms, which almost always included radiating back
pain. She noted the tests which a patient had not yet had or was
eligible to have on a sticky note, then attached the note to the
patient’s chart before giving the chart to Agbebiyi. Agbebiyi
commonly ordered diagnostic tests, and agreed with the test
recommendations she wrote on the sticky notes more than half the
time. Oliver was sometimes told by Agbebiyi to go ahead and
perform the diagnostic tests even if he was going to be late in
arriving at the clinics. Tests were administered based on Oliver’s
initial assessment before Agbebiyi arrived at the clinic in the
afternoon. Hernandez would also ask Agbebiyi to order certain
tests, and the majority of the time, Agbebiyi would then order
those tests. On one occasion, Oliver informed Agbebiyi that she
had seen Hernandez mark an “X” on the complaint sheet as Oliver was
taking the file to the doctor, and Agbebiyi responded that he would
make a mental note of it. Juan Villa would also ask Agbebiyi to
order tests, and would call his attention to tests he had not yet
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No. 12-2559, United States v. Agbebiyi
ordered, and most of the time, Agbebiyi would agree to order the
tests.
After seeing a patient, Agbebiyi would tell Oliver which tests
were ordered for the patient, and would give her the patient’s
prescriptions. The prescriptions were given to her rather than to
the patients because the patients would leave before taking the
tests if the prescriptions were given to them directly. Many
patients also complained to Agbebiyi about having to take the
tests. They received their prescriptions for drugs such as
Vicodin, Metformin, and Xanax after taking the tests.
At trial, the government presented the testimony of Dr. James
Teener, M.D., a neurologist with board certifications in
neuromuscular and electrodiagnostic medicine. Dr. Teener explained
that a nerve conduction test involves placing electrodes on the
skin at the location of specific muscles under study. The
electrodes are connected to a computer. The nerve is stimulated
with an electrical impulse, and the result of exciting the nerve is
recorded. The study is designed by the physician, although the
test can be performed by a technologist. The technologist must
complete six months of observational training and another three to
four months of work with intense supervision before being permitted
to give the test independently. Usually obstetricians are not
trained in nerve conduction studies. Teener’s usual practice is to
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No. 12-2559, United States v. Agbebiyi
remain in or near the room to observe the administration of the
test and to explain the results to the patient.
Teener testified that, as a nerve specialist, he orders a
nerve conduction study for one-half to two-thirds of his patients,
but that it is very uncommon to administer a nerve conduction study
repeatedly to the same patient. He examined nerve conduction test
results in fifteen to twenty patient files from the clinics, and
found that none of the tests were done properly. Nerve conduction
studies are almost always done in conjunction with a needle
electromyography test, which is typically done at the same visit as
the nerve conduction test and involves the discomfort of inserting
a needle into the muscle. The needle examination was not done in
any of the patient files he reviewed.
Teener also testified that the transcranial Doppler test, an
ultrasound test used to evaluate the velocity of blood flow within
the brain, is infrequently administered because the test is
inaccurate and CAT scans and MRIs give a picture of what the blood
vessels look like. The transcranial Doppler test would not be an
appropriate test for someone complaining of a headache.
Medicare records showed that the three clinics billed Medicare
for approximately $6.7 million during the total time of their
operation. Medicare was billed for 537 patients under Agbebiyi’s
provider number for services dating from April 29, 2008, through
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No. 12-2559, United States v. Agbebiyi
January 29, 2010. Ninety-three percent of Agbebiyi’s patients (499
patients) received surface nerve conduction tests. Medicare was
billed $2,265,665 for these tests, and Medicare reimbursed the
clinics for $1,125,634. Claims were submitted to Medicare for
sixty-nine percent of Agbebiyi’s patients (372 patients) for
transcranial Doppler tests in the amount of $178,702, and Medicare
reimbursed those claims in the amount of $88,171. Only one patient
out of the 537 patients seen by Agbebiyi did not receive either the
nerve conduction or transcranial Doppler test. Medicare was also
billed under Agbebiyi’s provider number for H-Reflex studies in the
amount of $97,650, and Medicare reimbursed these claims in the
amount of $38,686. The claims submitted for these three tests
totaled $2,542,017, and Medicare reimbursed the clinics for the
three tests in the amount of $1,252,491.
These three tests were just a fraction of the types of tests
ordered by Agbebiyi. For example, the record indicates that from
July 1, 2008, through November 23, 2009, Blessed and Manuel billed
Medicare $14,540.24 under Agbebiyi’s provider number for office
visits and tests which included venipuncture, electrocardiogram,
nystagmus tests, a caloric vestibular test, and oscillating
tracking test, a sinusoidal rotational test, and an electro-
oculography test.
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No. 12-2559, United States v. Agbebiyi
In April of 2008, Agbebiyi received his first payment from the
clinics, made payable in his name. From May, 2008, through January,
2010, the payments were made by the clinics to Harmony
International. Agbebiyi is the agent for Harmony Health Choice,
and he worked at the Harmony International Clinic. In his
individual capacity and in his capacity with Harmony International,
Agbebiyi was paid a total of $183,476.69 by the clinics from April,
2008, through January, 2010. A chart showing a combination of the
payments to Agbebiyi and Harmony International from bank records
along with the payments by Medicare to the three clinics showed
that Medicare paid $1,258,277.18 to Blessed, $1,043,948.64 to Alpha
& Omega, and $679,803.37 to Manuel, resulting in a total of
$2,982,029.19.
On May 11, 2012, the jury returned a verdict of guilty on
Counts 1 through 5 and Count 7, and Count 6 was dismissed upon the
government’s motion.
A sentencing hearing was held on November 6, 2012. In the
presentence investigation report (“PSR”), the probation officer
concluded that Agbebiyi joined the conspiracy in April, 2008, and
was employed by the clinics for approximately eighteen months. In
calculating the base offense level under the advisory United States
Sentencing Guidelines (“the Guidelines”) the probation officer
determined that the amount of actual loss was $2,982,029.19,
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No. 12-2559, United States v. Agbebiyi
stating that this was the amount paid to the three clinics “as a
result of the fraudulent claims attributed to the defendant.” PSR
¶¶ 26-27. The probation officer’s calculations resulted in a total
offense level 28, Criminal History Category I, with a sentencing
range of 78 to 97 months. Defense counsel agreed with the
probation officer’s calculation of the applicable range. After
addressing the sentencing factors contained in 18 U.S.C. §3553(a),
the district court deviated downward from the range established
under the Guidelines, and imposed a sentence of sixty months
incarceration on each count to be served concurrently. The
district court also ordered the payment of restitution in the
amount of $2,982,029.19, as a joint and several obligation with
Agbebiyi’s co-conspirators. The judgment filed on November 14,
2012, also directed the forfeiture of $183,476.69 from Agbebiyi,
representing the amount of unlawful proceeds which he personally
profited from the fraud.
A timely notice of appeal was filed on November 28, 2012.
II. ARGUMENTS
In this appeal, Agbebiyi asserts three claims of error:
(1) the trial court committed plain error in failing to
specifically find the amount of loss attributable to him after he
joined the conspiracy; (2) his sentence violated the Sixth
Amendment because the amount of loss used in determining the
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No. 12-2559, United States v. Agbebiyi
Guidelines base offense level enhancement and the amount of
restitution was not found by the jury; and (3) he is entitled to a
judgment of acquittal on the conspiracy charge.
A. Calculation of Amount of Loss
In the PSR, the probation officer noted that the total amount
billed by the three clinics to Medicare exceeded $5.4 million. The
probation officer further found that Medicare suffered a loss in
the amount of $2,982,029.19, which was the amount paid by Medicare
to the three clinics, as documented in Government’s Exhibit 18. In
calculating the Guidelines sentencing range, the probation officer
used the $2,982,029.19 figure as representing “the amount that
Medicare actually paid out as a result of the fraudulent claims
attributed to the defendant.” PSR, ¶ 27. This loss determination
resulted in an eighteen-level enhancement of the base offense level
pursuant to U.S.S.G. § 2B1.1(b)(1)(J), which is applicable where
the amount of loss is over $2.5 million but less than $7 million.
In commenting on the statutory sentencing factors, the probation
officer observed, “The nearly three million dollars in loss[] is a
direct result[] of the defendant’s billings to Medicare.” PSR,
¶ 86. At sentencing, Agbebiyi did not object to the probation
officer’s loss determination or to the application of the eighteen-
level enhancement. He now argues for the first time on appeal that
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No. 12-2559, United States v. Agbebiyi
the district court erred in failing to determine the amount of loss
specifically attributable to him after he joined the conspiracy.
Agbebiyi argues that the amount of loss should be the
$1,265,543 paid to the clinics for three types of tests (nerve
conduction, transcranial Doppler, and H-Reflex) which he ordered.
The probation officer based the loss determination on the
$2,982,029.19 figure in Government’s Exhibit 18, concluding that
this figure represented the amount Medicare paid on claims
submitted under Agbebiyi’s provider number. Although both the
government and Agbebiyi raised no objection below to the probation
officer’s use of this amount actually paid to the clinics by
Medicare as the loss figure, the probation officer could have based
loss on the amount of the bills, i.e., the intended loss. See
U.S.S.G. § 2B1.1 cmt. n. 3(A) (loss is typically the greater of
actual loss or intended loss). See also United States v. Martinez,
588 F.3d 301, 326-27 (6th Cir. 2009)(holding that actual loss
consisting of payments actually made to doctor and intended loss in
the amount of bills submitted by doctor were properly included in
the loss calculations).
Although the government states that the amount of the claims
was $5.4 million, there was also testimony that the total amount
billed by the clinics during the total time of their operation was
$6.7 million. The $5.4 million figure may be the amount billed
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No. 12-2559, United States v. Agbebiyi
during the twenty months Agbebiyi worked at the clinics. As noted
by the government, the amount claimed by the clinics for the nerve
conduction, transcranial Doppler and H-Reflex tests ordered by
Agbebiyi was $2,542,017. This amount alone is sufficient to
satisfy the $2.5 million threshold required for the eighteen-level
enhancement. Agbebiyi also ordered other types of tests. Where
losses are not easy to quantify, the court is only required to make
a reasonable estimate of the loss, given the available information,
and such estimates need not be determined with precision. United
States v. Triana, 468 F.3d 308, 320 (6th Cir. 2006); see also
United States v. Greco, 734 F.3d 441, 446-447 (6th Cir. 2013)(a
reasonable estimate of loss is sufficient, and the court’s loss
determination is entitled to appropriate deference). The amount
that Agbebiyi was paid while he worked for the clinics (his
personal financial gain) is not the preferred measure of loss
because it ordinarily underestimates the loss. Triana, 486 F.3d at
323; U.S.S.G. § 2B1.1 cmt. n. 3(B).
We note, moreover, that Agbebiyi has waived his right to
challenge the eighteen-level loss-amount-based sentence enhancement
on appeal because he failed to present his current argument in
objections to the district court at sentencing. This court “will
generally not consider an argument not raised in the district court
and presented for the first time on appeal.” United States v.
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No. 12-2559, United States v. Agbebiyi
Ellison, 462 F.3d 557, 560 (6th Cir. 2006)(citing Foster v.
Barilow, 6 F.3d 405, 408 (6th Cir. 1993)). If appellate review is
to be meaningful, it is absolutely essential that a defendant raise
all objections to the sentence before his sentencing judge in the
first instance. United States v. Callin, 83 F.App’x 776, 777 (6th
Cir. Dec. 9, 2003)(internal quotation marks and citation omitted).
In United States v. Aparco-Centeno, 280 F.3d 1084, 1088 (6th Cir.
2002), we held that where defendant explicitly agreed at sentencing
that his prior convictions qualified as aggravated felonies, as
reported in the PSR, he waived his claim on that issue. In United
States v. Nagi, 947 F.2d 211, 213-14 (6th Cir. 1991), the
defendants argued for the first time on appeal that the district
court erred in not applying an earlier version of the Guidelines in
calculating their base offense level. Defense counsel urged the
court to impose a sentence within the ranges contained in the
defendants’ plea agreements, which were based on a later version of
the Guidelines. Id. at 214. This court found that defendants had
waived their arguments by failing to raise them in the lower court.
Id. at 213-14. Similarly, in United States v. Sloman, 909 F.2d
176, 182 (6th Cir. 1990), this court held that the defendant waived
an issue concerning application of Guidelines where defense counsel
not only failed to object to the application of the Guidelines, but
affirmatively agreed with the court’s decision to sentence under
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No. 12-2559, United States v. Agbebiyi
the Guidelines. As this court noted, “An attorney cannot agree in
open court with a judge’s proposed course of conduct and then
charge the court with error in following that course.” Id. at 214.
At the sentencing hearing in this case, defense counsel made
no objection to the application of the eighteen-level enhancement
to the base offense level. The district court asked defense
counsel if he agreed with the calculations in the PSR, and he
responded, “With the calculations themselves, yes.” R. 328, ID
2646. The district court then stated, “The calculations are
Criminal History Category I and total offense level 28, resulting
in a range of 78 months to 97 months. That’s what you’re all
agreeing to as being accurate?” R. 328, ID 2646. Defense counsel
responded, “We agree on the range, Your Honor, yes.” R. 328, ID
2646. At the conclusion of the proceedings, defense counsel stated
that he had “[n]o additional objections.” R. 328, ID 2666.
Defense counsel not only failed to object to the calculations
in the PSR, he also affirmatively agreed with them. Because
defense counsel failed to give the court “any inkling that [he]
disagreed” with the district court’s sentencing determination,
United States v. Barajas-Nunuez 91 F.3d 826, 830 (6th Cir. 1996),
the district court had no opportunity to examine the merits of the
issue defendant now raises for the first time on appeal.
Accordingly, we also find that Agbebiyi’s failure to object to the
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No. 12-2559, United States v. Agbebiyi
district court’s loss amount calculation at sentencing amounted to
a constructive waiver of his right to appeal this issue.
B. Sixth Amendment Violation
Agbebiyi further argues that the loss-amount question should
have been submitted to the jury instead of being decided by the
judge. Agbebiyi argues that the Supreme Court’s decision in
Apprendi v. United States, 530 U.S. 466 (2000), and its subsequent
decisions in Alleyne v. United States, U.S. , 133 S. Ct. 2151
(2013), and Southern Union Co. v. United States, U.S. , 132
S. Ct. 2344 (2012), stand for the proposition that he was entitled
to a jury finding as to the loss amount because it was a factor
that increased the length of his sentence and established the
amount of his restitution obligation. Agbebiyi did not object
below to the failure to submit the issue of the amount of loss to
the jury during his trial. Thus, the plain-error test under Rule
52(b) as outlined in United States v. Olano, 507 U.S. 725, 733-34
(1993), applies. Under that test, before an appellate court can
correct an error not raised in the trial court, there must be
“(1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s]
substantial rights.’ If all three conditions are met, an appellate
court may then exercise its discretion to notice a forfeited error,
but only if (4) the error ‘seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings.’” Johnson
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No. 12-2559, United States v. Agbebiyi
v. United States, 520 U.S. 461, 466-67 (1997)(internal quotation
and citation omitted). Plain error review has been applied to an
enhanced penalty argument under Apprendi. See United States v.
Cotton, 535 U.S. 625, 631 (2002).
No error has been shown in this case. Apprendi and its
progeny do not apply here, as those cases dealt with Sixth
Amendment rights with regard to legally proscribed criminal
penalties imposed by statutory minimums and maximums, while the
sentence imposed here was based on the Sentencing Guidelines.
Neither Apprendi nor Alleyne or Southern Union eliminated the
general fact-finding discretion granted to the district courts
under the advisory Sentencing Guidelines. United States v.
Osborne, 545 F.3d 440, 445 (6th Cir. 2008)(citing United States v.
Booker, 543 U.S. 220, 233 (2005)). The district court can find the
facts, including the amount of loss, necessary to calculate the
appropriate Guidelines range. United States v. Keller, 498 F.3d
316, 328 (6th Cir. 2007); see also United States v. Gross, 626 F.3d
289, 299 (6th Cir. 2010)(because the Guidelines range is only
advisory, the district court was permitted to make factual findings
concerning the amount of tax loss at sentencing). In United States
v. Smith, 749 F.3d 465 (6th Cir. 2014), the defendants argued that
the district court violated Apprendi and Alleyne when it based
their Guidelines ranges on its own findings of the amount of loss
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No. 12-2559, United States v. Agbebiyi
and number of victims rather than submitting those issues to a
jury. This court noted that although Alleyne held that facts that
increase mandatory minimum sentences must be submitted to a jury,
“both Apprendi and Alleyne took care not to disturb the district
court’s discretionary fact-finding in other circumstances.” Smith,
749 F.3d at 487. Where a defendant does not face a statutory
maximum or statutory minimum sentence, Apprendi and Alleyne are
inapplicable. Id. The statutory maximum for Agbebiyi’s offenses
was ten years imprisonment. 18 U.S.C. § 1347(a). Accordingly, the
district court’s imposition of a sixty-month sentence, well below
that statutory maximum, does not give rise to any claim of error
under Apprendi or Alleyne.
Booker also does not require a jury to determine restitution.
United States v. Johnson, 440 F.3d 832, 849 (6th Cir. 2005); United
States v. Sosebee, 419 F.3d 451, 461 (6th Cir. 2005). The statute
governing restitution provides that the amount of restitution
should be equal to the “amount of each victim’s losses as
determined by the court.” 18 U.S.C. § 3664(f)(1)(A). Where a
statute mandates the exercise of judicial discretion, “Booker
provides no impediments to a judicial determination of the
necessary underlying facts.” Sosebee, 419 F.3d at 462.
Restitution orders are also unaffected by the Supreme Court’s
ruling in Apprendi, which required that facts enhancing a sentence
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No. 12-2559, United States v. Agbebiyi
above a statutory maximum penalty be found by the jury, “because
the restitution statutes do not specify a statutory maximum.”
United States v. Lay, 612 F.3d 440, 448 (6th Cir. 2010).
Agbebiyi relies on Southern Union, in which the Supreme Court
held that facts that increase the amount of a criminal fine beyond
the statutory maximum must be found beyond a reasonable doubt. 132
S. Ct. at 2350. Agbebiyi argues that the Supreme Court’s holding in
Southern Union should logically extend to restitution. As several
other circuits have noted after Southern Union, however, criminal
fines are fundamentally different from restitution—fines are purely
pecuniary measures proscribed by statute whereas restitution is
intended to remedy victims of crimes’ economic injuries.
Accordingly, the holding in Southern Union, which dealt exclusively
with criminal fines, does not apply. See United States v. Green,
722 F.3d 1146, 1150-51 (9th Cir. 2013); United States v. Wolfe, 701
F.3d 1206, 1216-17 (7th Cir. 2012); United States v. Day, 700 F.3d
713, 732 (4th Cir. 2012); see also United States v. Jarjis, 551
F.App’x 261, 261-62 (6th Cir. Jan. 24, 2014).
Agbebiyi had no Sixth Amendment right to have a jury decide
the amount of loss used to calculate his Guidelines range and to
establish his restitution obligation, and no plain error has been
shown in this case.
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No. 12-2559, United States v. Agbebiyi
C. Judgment of Acquittal on Conspiracy Charge
Agbebiyi argues that his conviction for conspiracy to commit
health care fraud is not supported by sufficient evidence, and that
he is entitled to a judgment of acquittal on that charge. Agbebiyi
did not move for a judgment of acquittal during or after trial.
The standard of review on appeal for an insufficient-evidence
challenge is “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979)(emphasis in
original). However, the failure to make a motion for judgment of
acquittal under Fed. R. Crim. P. 29 constitutes a waiver of
objections to the sufficiency of the evidence. United States v.
Jordan, 544 F.3d 656, 670 (6th Cir. 2008). Where a defendant fails
to make the requisite Rule 29 motions, review is “limited to
determining whether there was a manifest miscarriage of justice.
A miscarriage of justice exists only if the record is devoid of
evidence pointing to guilt.” Id. (quoting United States v. Price,
134 F.3d 340, 350 (6th Cir. 1998)); see also United States v.
Kennedy, 714 F.3d 951, 957 (6th Cir. 2013). Although Rule 29 now
states that “a defendant is not required to move for a judgment of
acquittal before the court submits the case to the jury as a
prerequisite for making such a motion after jury discharge[,]” see
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No. 12-2559, United States v. Agbebiyi
Fed. R. Crim. P. 29(c)(3), Agbebiyi not only failed to move for a
judgment of acquittal during trial, he also failed to so move after
the return of the guilty verdict, as permitted under Fed. R. Crim.
P. 29(c)(1). Therefore, the “manifest miscarriage of justice”
standard applies in this case.
The offense of health care fraud under 18 U.S.C. § 1347 is
committed by one who “knowingly and willfully executes, or attempts
to execute, a scheme or artifice– (1) to defraud any health care
benefit program; or (2) to obtain, by means of false or fraudulent
pretenses, representations, or promises, any of the money or
property owned by, or under the custody or control of, any health
care benefit program in connection with the delivery of or payment
for health care benefits, items, or services[.]” § 1347. To
establish a violation under § 1347, the government must prove
beyond a reasonable doubt that the defendant “(1) knowingly devised
a scheme or artifice to defraud a health care benefit program in
connection with the delivery of or payment for health care
benefits, items, or services; (2) executed or attempted to execute
this scheme or artifice to defraud; and (3) acted with intent to
defraud.” United States v. Martinez, 588 F.3d 301, 314 (6th Cir.
2009); see also United States v. Semrau, 693 F.3d 510, 525 (6th
Cir. 2012). Proof of intent to defraud does not require direct
evidence; a jury may consider circumstantial evidence and infer
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No. 12-2559, United States v. Agbebiyi
intent from evidence of efforts to conceal the unlawful activity,
from misrepresentations, from proof of knowledge, and from profits.
United States v. Davis, 490 F.3d 541, 549 (6th Cir. 2007).
The law also penalizes “[a]ny person who attempts or conspires
to commit any offense under this chapter[.]” 18 U.S.C. § 1349. A
conspiracy charge requires the government to prove an agreement
between two or more persons to act together in committing an
offense, and an overt act in furtherance of the conspiracy. United
States v. Hunt, 521 F.3d 636, 647 (6th Cir. 2008). The government
is not required to show a formal written agreement. Id. “Instead,
it is sufficient to demonstrate a tacit or mutual understanding
among the parties.” Id. Direct evidence of the conspiracy is not
necessary; rather, “[i]t is enough to present ‘[c]ircumstantial
evidence which a reasonable person could interpret as showing
participation in a common plan....’” Id. (quoting United States v.
Crossley, 224 F.3d 847, 856 (6th Cir. 2000)).
The government need not prove that the defendant knew every
detail of the conspiracy, but only that the defendant knew the
object of the conspiracy and voluntarily associated himself with
the conspiracy to further its objective. Crossley, 224 F.3d at
856. A defendant’s participation in the conspiracy’s common
purpose and plan may be inferred from the defendant’s actions and
reactions to the circumstances. United States v. Salgado, 250 F.3d
25
No. 12-2559, United States v. Agbebiyi
438, 447 (6th Cir. 2001). “Although an agreement must be shown
beyond a reasonable doubt, the connection between the defendant and
the conspiracy need only be slight, and the government is only
required to prove that the defendant was a party to the general
conspiratorial agreement.” Id.
Agbebiyi argues that the government failed to prove that he
knowingly and voluntarily became a participant in the conspiracy
organized by Hernandez and her cohorts. He claims that he
performed valid services for patients, and that he was unwittingly
involved in the clinics’ scheme as a pawn. Agbebiyi argues that he
legitimately visited with patients, ordered tests and prescribed
medications; that he was never told by the clinic owners that they
intended to defraud Medicare; that he never ordered tests which his
co-workers thought to be unnecessary; that he was not involved in
the actual billing of Medicare; and that he received only
reasonable compensation for his services.
The government’s theory was that Agbebiyi participated in the
conspiracy to defraud Medicare by ordering medically unnecessary
tests. The government presented evidence that Agbebiyi worked at
the clinics for a period spanning twenty months of the twenty-nine
months during which the clinics were in operation. When Hernandez
interviewed Agbebiyi, she explained what his role would be, namely,
to see patients and then to refer them for diagnostic tests.
26
No. 12-2559, United States v. Agbebiyi
Agbebiyi never expressed any concerns about ordering the tests or
the fact that the tests would be sent elsewhere for interpretation.
Agbebiyi was originally paid a salary of $100 per hour.
However, when Hernandez opened the Manuel Clinic, Agbebiyi told her
he wanted an additional fifteen percent of the total billed by the
three clinics. Although Agbebiyi did not process the Medicare
claims at the clinics, he signed a certificate which put him on
notice of Medicare rules which rendered him responsible for claims
submitted under his provider number. Because the clinics were
required to have a doctor on site in order to bill Medicare, it was
Agbebiyi’s signature on the test orders which allowed the clinics
to submit the claims. See Hunt, 521 F.3d at 648 (noting that
because the health care benefit programs would not have paid for
the procedures but for the doctor’s signature on the orders, the
doctor was the direct and proximate cause of the harm suffered by
those entities).
Dr. Teener testified that as a neurologist specializing in
nerve problems, he only referred one-half to two-thirds of his
patients for nerve conduction studies, and that the unreliable
Doppler test was used only in rare circumstances. The nerve
conduction and transcranial Doppler tests are used by neurologists
and physiatrists specializing in rehabilitative medicine. The
nerve conduction study is given in conjunction with a painful
27
No. 12-2559, United States v. Agbebiyi
needle electromyography test. Teener is also typically present
when the test is being given so that he can monitor the test and
explain the results to the patient immediately after the test. Dr.
Acosta, a general practitioner like Agbebiyi, testified that he
always referred patients to a specialist for tests such as the
nerve conduction study.
In contrast, Agbebiyi, a general practitioner, ordered the
nerve conduction study for ninety-three percent of his patients.
All but one of the 537 patients seen by Agbebiyi were referred
either for a nerve conduction study or a transcranial Doppler test.
There is no evidence that Agbebiyi ever referred anyone for the
painful needle electromyography test. He was occasionally absent
from the building when the tests were administered; Agbebiyi
informed Oliver that the tests could be given before he arrived for
the afternoon.
Teener’s technicians typically trained for nine to ten months
before they were permitted to give a nerve conduction test
independently. Oliver, who had no medical training other than a
phlebotomy class, received ten to twelve hours of training from
Juan and Santiago Villa, who also had no medical training, on how
to operate the clinics’ equipment. There is no evidence that
Agbebiyi ever expressed any concern about the fact that Oliver, who
interviewed patients, took their vital signs, and administered
28
No. 12-2559, United States v. Agbebiyi
tests, had no medical training in these areas. Dr. Acosta, who
only worked at the clinics a few months, was quickly troubled by
the fact that Hernandez and other clinic employees pressured him to
order tests. In contrast, Agbebiyi readily ordered the tests
suggested by Oliver, Juan Villa, and Hernandez.
Teener also testified concerning a sample of patient records
he reviewed, where the test results for the nerve conduction
studies were physiologically impossible, indicating that the test
procedures were invalid. He stated that even a family practice
doctor who received these results would be worried and request
additional testing. Agbebiyi was given the patient files to review
after test results came in, yet he never expressed concern about
the practice of sending the test results to Florida for
interpretation. Agbebiyi directed Hee to give ultrasound tests to
patients whose test results from previous ultrasounds had not yet
come back. Agbebiyi also ordered her to perform ultrasounds on
patients who objected to taking the tests.
Agbebiyi contends that there is no evidence that he knew that
patients were being paid to come to the clinics. However, there is
evidence that Agbebiyi knew that food was being provided for the
patients, as he was present when Juan Villa delivered the food and
would eat some of the food himself. After he had seen the
patients, Agbebiyi gave a list of ordered tests and any
29
No. 12-2559, United States v. Agbebiyi
prescriptions to Oliver, rather than giving the prescriptions to
the patients after he visited them, because if the patients
received the prescriptions directly, they would leave without
taking the tests. Madden, a patient who received eighteen nerve
conduction studies at Alpha & Omega, testified that she went to the
clinic not because she was sick, but because she received food and
prescriptions. When she objected to taking the tests, Agbebiyi
told here that it was part of her treatment, although he and other
people at the clinic never called her to talk about her test
results. Isaac Carr, one of the drivers for the clinics, testified
that Agbebiyi stated on one occasion that he wanted to get out once
he found out what they were doing at the clinics, yet Agbebiyi
worked at the clinics over a twenty-month period.
Based on the government’s evidence, a rational trier of fact
could come to the conclusion that Agbebiyi tacitly agreed to the
scheme to defraud Medicare, and committed overt acts in furtherance
of the scheme by ordering tests which were not medically necessary.
This is not a case in which there was no evidence of guilt of
Agbebiyi’s knowing and voluntary participation in the conspiracy.
Agbebiyi has failed to show grounds for setting aside his
conspiracy conviction.
30
No. 12-2559, United States v. Agbebiyi
III. Conclusion
In accordance with the f§oregoing, the judgment and sentence
of the district court are AFFIRMED.
31