United States v. Obiageli Agbu , 640 F. App'x 613 ( 2016 )

FILED
NOT FOR PUBLICATION
JAN 11 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50158
Plaintiff - Appellee, D.C. No. 2:11-cr-00134-GW-2
v.
MEMORANDUM*
OBIAGELI BROOKE AGBU, AKA
Obiagele B. Agbu, AKA Obiageli B.
Agbu, AKA Obiageli Brook Agbu, AKA
Brooke, AKA Ivon, AKA Obiagele,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted December 9, 2015
Pasadena, California
Before: GOULD and BERZON, Circuit Judges and STEEH,** Senior District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable George Caram Steeh III, Senior District Judge for the
U.S. District Court for the Eastern District of Michigan, sitting by designation.
Obiageli Agbu appeals her jury conviction and sentence for one count of
conspiracy to commit health care fraud under 18 U.S.C. §§ 1349 and 2 and eight
counts of health care fraud under 18 U.S.C. §§ 1347 and 2(b) arising from her
participation in a durable medical equipment scheme that billed Medicare for
undelivered or unneeded equipment. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm in part, vacate in part, and remand to the district court.
Agbu claims that there was insufficient evidence for the jury to convict her
of health care fraud under 18 U.S.C. § 1347. We review this claim de novo, see
United States v. Bennett, 621 F.3d 1131, 1135 (9th Cir. 2010), and view the
evidence in the light most favorable to the prosecution. See Jackson v. Virginia,
443 U.S. 307, 319 (1979). Witnesses testified at trial that Agbu, or someone
matching her description, directed marketers to take beneficiaries to specific
doctors, was present while cursory medical examinations of ambulatory
beneficiaries took place in the Ibon offices, and paid the marketers and doctors
kickbacks in cash. Also, the FBI agents who interviewed Agbu testified that she
told them that she knew that paying for prescriptions was illegal and that Medicare
claims must be medically necessary. The agents also testified that Agbu falsely
told them that she did not buy prescriptions and that she herself did the marketing
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for Ibon. We conclude that there was substantial evidence presented at trial that
Agbu knowingly and willfully committed health care fraud as the owner of Ibon.
Agbu makes several arguments for the first time on appeal regarding
perceived flaws in the jury instructions. Because Agbu did not object to the district
court’s jury instructions at trial, we review those instructions for plain error. See
Fed. R. Crim. P. 52(b). First, Agbu argues that the district court should have sua
sponte instructed the jury that Agbu was not responsible for determining the
medical necessity of Ibon’s claims, and that the district court also should have
instructed the jury on the meaning of “medical necessity.” But lack of medical
necessity is not an element of health care fraud, and the jury was properly
instructed on all of the elements of the crime. See 18 U.S.C. § 1347. Second,
Agbu argues that the district court erred when it instructed that “the Government is
not required to prove that the Defendant knew that her acts or omissions were
unlawful.” We have previously found this instruction to be in error, but harmless.
United States v. Awad, 551 F.3d 930, 939–40 (9th Cir. 2009). The same reasoning
applies here under plain error review: although the instruction was in error, Agbu’s
“substantial rights” were not affected. See United States v. Olano, 507 U.S. 725,
734 (1993). As in Awad, the evidence is that Agbu knew she was committing a
fraud; the jury was instructed to find an “intent to defraud;” and the fraudulent
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scheme was “so bold and simple” that no reasonable person could have thought it
lawful. Awad, 551 F.3d at 940–41. Finally, Agbu argues that it was plain error for
the district court not to sua sponte give a cultural defense instruction, which she
likens to a “good character” instruction. We have held that a good character
instruction is not necessary where a jury is instructed to consider all of the
evidence, including all of the testimony. United States v. Karterman, 60 F.3d 576,
579 (9th Cir. 1995).
Agbu next contends that she received ineffective assistance of counsel
(1) because of her counsel’s failure to bring a pre-trial motion to suppress
testimony from FBI agents based on a Miranda violation and (2) because her
counsel did not obtain a psychological evaluation. Claims of ineffective assistance
of counsel are generally not reviewed on direct appeal and are more appropriately
brought in the context of habeas proceedings. United States v. Labrada-
Bustamante, 428 F.3d 1252, 1260 (9th Cir. 2005). There are exceptions where the
record is sufficiently developed or where the legal representation is so inadequate
that it obviously denies a defendant’s Sixth Amendment right. Id. While the
record is developed enough to adjudicate the first claim, we conclude that it has no
merit because there is no evidence that Agbu’s interview with FBI agents was
custodial in nature and required a Miranda warning. Yarborough v. Alvarado, 541
4
U.S. 652, 661–62 (2004). As to the second claim, we conclude that neither of the
exceptions apply and that it would be best adjudicated through a habeas
proceeding, in which Agbu can make a record pertinent to her claims. Massaro v.
United States, 538 U.S. 500, 505–06 (2003).
Finally, Agbu challenges the amount of restitution for the first time on
appeal. Agbu argues that intended loss should be based on what Medicare actually
paid for the fraudulent billing. However, this court has held that the billed amount
is prima facie evidence of intended loss, see United States v. Popov, 742 F.3d 911,
916 (9th Cir. 2014), and Agbu presented no evidence at trial that this overestimated
her intent. We also reject Agbu’s argument that the district court abused its
discretion by not apportioning the amount of restitution. The relevant statute is
clear that while the district court has the discretion to apportion restitution, it is not
required to do so. See 18 U.S.C. § 3664(h).
However, we conclude that the district court plainly erred when it calculated
the intended loss based on the combined submission of the claims from both
Bonfee and Ibon. The government conceded at oral argument that the only
evidence it had that Agbu contributed to the fraud perpetrated by Bonfee before the
creation of Ibon was the fact that Agbu worked at Bonfee. Agbu can be held
accountable “for reasonably forseeable substantive crimes committed by a
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coconspirator in furtherance of the conspiracy.” United States v. Riley, 335 F.3d
919, 932 (9th Cir. 2003). She could not reasonably foresee acts of her
coconspirators before she joined the conspiracy. Simply drawing a salary from
Bonfee is not sufficient to prove by a preponderance of the evidence that Agbu
knowingly and willfully participated in a fraudulent scheme or conspiracy during
the period that she worked only at Bonfee. See 18 U.S.C. § 3664(e).
The conviction is AFFIRMED and the amount of restitution is VACATED
AND REMANDED to the district court for further proceedings in accordance with
this disposition.
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