United States v. Owusu Firempong ( 2015 )

FILED
NOT FOR PUBLICATION
AUG 27 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50118
Plaintiff - Appellee, D.C. No. 2:11-cr-00847-GAF-1
v.
MEMORANDUM*
OWUSU ANANEH FIREMPONG,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Argued and Submitted August 4, 2015
Pasadena, California
Before: D.W. NELSON, SILVERMAN, and WARDLAW, Circuit Judges.
Owusu Ananeh Firempong appeals his conviction for health care fraud in
violation of 18 U.S.C. § 1347. We have jurisdiction pursuant to 28 U.S.C. § 1291,
and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. In his opening brief, Firempong argues only that Dr. Owens’ testimony
was admissible under Federal Rule of Evidence 404(b)(2)’s “identity” exception.
Thus, to the extent that Owens’ testimony may have been admissible under Rule
404(b)(2)’s “plan” exception, this argument is waived. See United States v. Kama,
394 F.3d 1236, 1238 (9th Cir. 2005).
The district court did not abuse its discretion in concluding that Owens’
testimony was character and propensity evidence, and not evidence of
identity—the argument Firempong does advance on appeal. Owens would have
testified that HB Financial and Sirin Billing had previously duped her into
submitting false bills to Medicare, supporting an impermissible inference that they
had a propensity to dupe doctors, and, in conformity with this character, they also
duped Firempong. See Fed. R. Evid. 404(b)(1); United States v. McCourt, 925
F.2d 1229, 1235 (9th Cir. 1991) (“Evidence of ‘other crimes, wrongs, or acts,’ no
matter by whom offered, is not admissible for the purpose of proving propensity or
conforming conduct . . . .”). This evidence was not otherwise admissible for
purposes of proving identity under Rule 404(b)(2), because the identity of the two
companies was never in doubt and because the scheme described by Dr. Owens
was not “peculiar, unique, [] bizarre,” or “so unusual or distinctive as to constitute
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[a] personal signature on each crime.” United States v. Ezzell, 644 F.2d 1304,
1306 (9th Cir. 1981).
2. The district court did not abuse its discretion in declining to give
Firempong’s requested jury instructions because they were unnecessary. See
United States v. Trevino, 419 F.3d 896, 901 (9th Cir. 2005) (“It is not reversible
error to reject a defendant’s proposed instruction on his theory of the case, if other
instructions, in their entirety, adequately cover that defense theory.”). The
instructions given required proof beyond a reasonable doubt that Firempong acted
with a bad purpose, with knowledge that his conduct was unlawful, and with intent
to defraud. Therefore, the jury could not have found Firempong guilty if it found
that he acted in good faith. This obviated the need for a separate good faith
instruction. See United States v. Shipsey, 363 F.3d 962, 967 (9th Cir. 2004) (“[A]
criminal defendant has ‘no right’ to any good faith instruction when the jury has
been adequately instructed with regard to the intent required to be found guilty . . .
.”). Nor was it necessary to instruct the jury that it could not find Firempong guilty
simply because he violated a Medicare regulation, as that finding alone would not
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include the findings of intent to defraud and knowledge of unlawfulness included
in other instructions.1
3. The district court did not abuse its discretion in denying Firempong’s
motion to exclude evidence of uncharged false Medicare claims because they were
inextricably intertwined with the false claims charged in the indictment and
evidenced the scope of the charged scheme. See United States v. Rizk, 660 F.3d
1125, 1131–33 (9th Cir. 2011); United States v. Soliman, 813 F.2d 277, 278–79
(9th Cir. 1987). Similarly, the district court did not plainly err in failing to exclude
evidence that power wheelchairs were used to recruit Medicare beneficiaries. The
means of recruitment was part of the charged scheme and was explicitly alleged in
the indictment. See Soliman, 813 F.2d at 279; United States v. Santiago, 46 F.3d
885, 889 (9th Cir. 1995) (“[T]he record reveals no evidence of any specific,
wrongful acts by either [the defendant or his gang] that are unrelated to the [crime
charged]. . . . It therefore does not constitute ‘other crimes’ evidence subject to
Rule 404(b).” (emphasis added)). Moreover, the evidence was not unfairly
prejudicial, as it did not show that Firempong himself recruited any beneficiaries or
1
We have squarely rejected Firempong’s challenge to the instruction that
intent to defraud “may be shown by evidence that a representation is made with
reckless indifference to its truth or falsity.” See United States v. Dearing, 504 F.3d
897, 902–03 (9th Cir. 2007).
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even knew about the way in which his co-conspirators were recruiting
beneficiaries. Any prejudice caused by the waste involved in giving power
wheelchairs to individuals who did not need them was not unfair, as the evidence
was proof of the manner in which the scheme operated. See Rizk, 660 F.3d at
1133.
4. Nor did the district court abuse its discretion in allowing the government
to impeach Firempong with his prior conviction for conspiracy to launder money
in violation of 18 U.S.C. §§ 1956(a), (h). While not automatically admissible
under Federal Rule of Evidence 609(a)(2), Firempong’s prior money laundering
conviction was admissible under Rule 609(a)(1)(B), as the probative value of the
conviction for impeachment purposes outweighed its prejudicial effect.
Firempong’s testimony and credibility were central to the case, and the prior
money laundering conviction was recent, probative of veracity, and dissimilar to
the crime charged in this case. See United States v. Alexander, 48 F.3d 1477, 1488
(9th Cir. 1995). Moreover, the court mitigated the prejudicial impact of the prior
conviction by issuing a proper limiting instruction, which we presume the jury
followed. See Weeks v. Angelone, 528 U.S. 225, 234 (2000).
AFFIRMED.
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