United States v. Bolademi Adetola , 601 F. App'x 592 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 07 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-50312
Plaintiff - Appellee, D.C. No. 2:12-cr-00382-GW-1
v.
MEMORANDUM*
BOLADEMI ADETOLA, AKA Demi,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Submitted May 4, 2015**
Pasadena, California
Before: FISHER, BEA and FRIEDLAND, Circuit Judges.
Bolademi Adetola appeals her conviction and sentence for conspiracy to
commit healthcare fraud in violation of 18 U.S.C. § 1349 and substantive
healthcare fraud in violation of 18 U.S.C. § 1347. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1. The jury’s general verdict did not violate Yates v. United States, 354
U.S. 298, 312 (1957), overruled on other grounds by Burks v. United States, 437
U.S. 1, 8-10 (1978). The jury was never instructed that Adetola’s payment of
kickbacks was in itself sufficient to sustain a finding of healthcare fraud. Rather,
the kickback evidence was introduced to demonstrate Adetola had committed an
act in furtherance of the conspiracy and that she knew the prescriptions she had
submitted were false. Because the government presented only a single, legally
permissible theory of guilt, there is no Yates error. Cf. United States v. Naghani,
361 F.3d 1255, 1260-61 (9th Cir. 2004).
2. The prosecution’s isolated references to the fact Medicare is taxpayer-
funded were not “designed to appeal to the passions, fears and vulnerabilities of the
jury,” and thus did not constitute misconduct. United States v. Weatherspoon, 410
F.3d 1142, 1149 (9th Cir. 2005).
Similarly, the prosecutor’s statement that Dr. William B. Simpson was found
not to be credible did not constitute implicit vouching for the veracity of Dr.
Schwartz’s testimony. This observation was properly offered in response to
defense counsel’s argument that the government had failed to call Dr. Simpson to
testify at trial. See id. at 1150 (“[T]he reviewing court must not only weigh the
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impact of the prosecutorial remarks, but must also take into account defense
counsel’s opening salvo” (internal quotation marks omitted)).
We are, however, troubled by two instances of improper vouching in the
prosecutor’s rebuttal. A prosecutor may not vouch for his own credibility by
seeking to “establish[] his own veracity and credibility as a representative of the
government.” United States v. Smith, 962 F.2d 923, 933 (9th Cir. 1992). Here, the
prosecutor crossed the line twice: first, when he remarked on his own credentials
relative to those of other attorneys at the Department of Justice; second, when he
said he could not think of a “plausible excuse” for the forged signatures of
deceased beneficiaries on the equipment renewal leases. Reviewing for plain error,
however, given the strong evidence supporting Adetola’s conviction, the
prosecutor’s inappropriate argument did not “substantially prejudice[] [her] trial”
and does not warrant reversal. Cf. United States v. Sanchez, 659 F.3d 1252, 1256
(9th Cir. 2011) (internal quotation marks omitted). We also reject Adetola’s
cumulative-error argument. See United States v. Solorio, 669 F.3d 943, 956 (9th
Cir. 2012).
3. The district court did not err in applying an 18-level enhancement to
Adetola’s sentence. It reasonably estimated that the fraudulent scheme resulted in
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at least $2.5 million in actual or intended loss. See United States v. Armstead, 552
F.3d 776 (9th Cir. 2008); see also U.S.S.G. § 2B1.1(b)(1).
AFFIRMED.
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