751 Fed.Appx. 456 (5th Cir. 2018), 17-20022, United States v. Chikere

Docket Nº:17-20022
Citation:751 Fed.Appx. 456
Opinion Judge:PER CURIAM:
Party Name:UNITED STATES of America, Plaintiff-Appellee v. Oakey CHIKERE, Defendant-Appellant
Attorney:Amy Howell Alaniz, Carmen Castillo Mitchell, Assistant U.S. Attorneys, U.S. Attorney’s Office, Southern District of Texas, Houston, TX, for Plaintiff - Appellee Oakey Chikere, Pro Se
Judge Panel:Before HAYNES, HO, and DUNCAN, Circuit Judges.
Case Date:October 04, 2018
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
FREE EXCERPT

Page 456

751 Fed.Appx. 456 (5th Cir. 2018)

UNITED STATES of America, Plaintiff-Appellee

v.

Oakey CHIKERE, Defendant-Appellant

No. 17-20022

United States Court of Appeals, Fifth Circuit

October 4, 2018

UNPUBLISHED

Editorial Note:

Please Refer Federal Rule of Appellate Procedure Rule 32.1. See also U.S.Ct. of App. 5th Cir. Rules 28.7 and 47.5.

Page 457

[Copyrighted Material Omitted]

Page 458

Appeals from the United States District Court for the Southern District of Texas, USDC No. 4:15-CR-303-1

Amy Howell Alaniz, Carmen Castillo Mitchell, Assistant U.S. Attorneys, U.S. Attorney’s Office, Southern District of Texas, Houston, TX, for Plaintiff - Appellee

Oakey Chikere, Pro Se

Before HAYNES, HO, and DUNCAN, Circuit Judges.

OPINION

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) ("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.

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

Page 459

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 "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, 129 S.Ct. 1423, 173 L.Ed.2d 266 (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 Garcias Overview...

To continue reading

FREE SIGN UP