U.S. v. Isiwele

• Decision Date: 07 March 2011
• Docket Number: No. 10–40347.,10–40347.
• Citation: 635 F.3d 196
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Enitan Osagie ISIWELE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

635 F.3d 196

84 Fed. R. Evid. Serv. 1203

UNITED STATES of America, Plaintiff–Appellee,

v.Enitan Osagie ISIWELE, Defendant–Appellant.

No. 10–40347.

United States Court of Appeals, Fifth Circuit.

March 7, 2011.

Terri Lynn Hagan, Asst. U.S. Atty. (argued), Plano, TX, Christopher Tony Tortorice, Asst. U.S. Atty., Tyler, TX, for U.S.F. Clinton Broden (argued), Broden & Mickelsen, Dallas, TX, for Defendant–Appellant.Appeal from the United States District Court for the Eastern District of Texas.Before KING, DeMOSS and PRADO, Circuit Judges.KING, Circuit Judge:

Defendant–Appellant Enitan Isiwele was convicted on multiple counts of health care fraud and conspiracy to pay kickbacks in connection with a scheme to fraudulently bill Medicare/Medicaid for power wheelchairs. In this appeal, Isiwele challenges the exclusion of certain prior inconsistent statements of witnesses at trial as well as various aspects of his sentence. We affirm the judgment of conviction. We vacate Isiwele's sentence; the district court correctly applied the “mass marketing” and “abuse of trust” sentencing enhancements, but the court's method for determining the “loss amount” attributable to the fraud requires clarification.

BACKGROUND

Appellant Enitan Isiwele was the owner of a durable medical equipment (“DME”) supply company called Galaxy Medical Supply (“Galaxy”), which was a supplier to both Medicare and Medicaid. DME includes power wheelchairs. Medicare rules relating to power wheelchairs provide that a beneficiary must first obtain a prescription from a physician who determines that the beneficiary cannot use a cane, walker, rollator, or manual wheelchair. Upon submission of such a prescription to a DME supplier, the supplier must complete a Certificate of Medical Necessity, to be signed by the physician and then sent together with the prescription to Medicare. Medicare then reimburses the supplier for the power wheelchair. Medicaid's procedures for DME reimbursement are similar to Medicare's.

In an effort to meet urgent medical needs in the wake of Hurricanes Katrina and Rita, Medicare eliminated these documentary requirements for the replacement of any power wheelchairs lost or damaged in those hurricanes. This waiver applied only to beneficiaries who had already met the requirements for a doctor's prescription and Certificate of Medical Necessity before obtaining their original power wheelchairs. Galaxy used this waiver to bill Medicare and Medicaid a total of $587,382.65 for power wheelchairs and related accessories, and was reimbursed a total of $297,381.04.

Isiwele was tried on sixteen counts of health care fraud, in violation of 18 U.S.C. § 1347, and one count of conspiracy to pay illegal remunerations, in violation of 42 U.S.C. § 1320a–7b(b)(2)(A). The indictment alleged that Isiwele instructed a “recruiter,” Linda Patterson, to go into elderly and low-income communities and gather billing information from Medicare/Medicaid beneficiaries. Isiwele paid Patterson for this information, which he then used to claim reimbursement from Medicare/Medicaid under the new hurricane exception for power wheelchairs provided to these beneficiaries. At trial, the government presented testimony from Patterson, as well as from eleven such beneficiaries who testified that they did not need a power wheelchair and never had a power wheelchair prior to Hurricanes Katrina or Rita, much less one that was damaged in those hurricanes. The jury found Isiwele guilty on all counts.

At sentencing, the district court applied a fourteen-level increase to Isiwele's base offense level on the basis of the “loss amount” occasioned by Isiwele's fraud. The court calculated the loss amount according to the amount that Isiwele billed to Medicare/Medicaid. Isiwele objected, arguing that the proper loss amount was the total of the fixed allowances paid for the wheelchairs by Medicare/Medicaid. The district court also applied a two-level increase to Isiwele's offense level for the use of “mass marketing” in committing the offenses and another two-level increase for an “abuse of trust” based on Isiwele's status as a DME supplier to Medicare/Medicaid. Isiwele was sentenced to 97 months' imprisonment and three years of supervised release, and was ordered to pay a $1,700 special assessment and restitution in the amount of $201,397.34. He now appeals his conviction and sentence.

ANALYSIS

I. Exclusion of Prior Inconsistent Statements

Isiwele claims that the district court erred in excluding three documents offered as prior inconsistent statements of three different witnesses. We review a district court's evidentiary rulings for abuse of discretion, subject to harmless error review. United States v. Jackson, 625 F.3d 875, 879 (5th Cir.2010).

Federal Rule of Evidence 613 provides that a witness may be impeached with a prior inconsistent statement. See United States v. Watkins, 591 F.3d 780, 787 (5th Cir.2009) (“It is well established that after a witness denies making a statement during cross examination, evidence may be introduced to prove the statement was made.” (citations omitted)). However, Federal Rule of Evidence 901(a) requires, as a preliminary matter, that all evidence be properly authenticated as a condition precedent to admission. The proponent bears the burden of introducing “evidence sufficient to support a finding that the matter in question is what its proponent claims.” Fed R. Evid. 901(a); see 5 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 901.02[3], at 901–14 (Joseph M. McLaughlin ed., 2d ed.2010) [hereinafter “Weinstein”]. “The requirement of showing authenticity falls in the category of ‘relevancy dependent upon fulfillment of a condition of fact and is governed by the procedure set forth in Rule 104(b).’ ” 5 Weinstein § 901.02[3], at 901–15 (quoting Fed. R. Evid. 901 Advisory Committee Note (1972)). “Under Rule 104(b), the trial court must admit the evidence if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification.” Id.

The prior inconsistent statements at issue here are three documents, each entitled “Request for Replacement of DME Lost in Hurricane” and purportedly signed by one of three beneficiaries—Leroy Bass, Marion DeGutis, and James Brady—who were government witnesses at trial. The documents were on Galaxy letterhead and stated:

I, [name of beneficiary/witness], hereby request the services of Galaxy Medical Supply, LLC to assist me in obtaining a replacement for my equipment, a(an) POWERCHAIR, which was lost in [H]urricane RITA.

By signing the attached Release of Information and Authorization for Payment of Benefits Form, I hereby declare that the said equipment was lost as a direct result of the hurricane and authorize us [sic] to take necessary action to assist me in securing the replacement equipment.

On cross examination, each of the three witnesses identified his or her signature on one of these documents, but testified in direct contravention of its contents that they had not previously owned power wheelchairs that were lost in Hurricane Rita. Bass testified that he signed a paper that Isiwele gave him to sign, without looking at it. When shown the statement at trial, Bass said that he did not know what the document was, that he did not know “how [his signature] got there,” and surmised that “[i]t could have been under something else and I signed and you got my name under there.” DeGutis testified that the signature on the document bearing her name looked like her signature, but said the contents of the documents were not true. Brady identified his signature, but stated at trial that he “didn't read the documents” and disagreed with the contents.¹ The district court refused to admit these documents into evidence on the ground that they had not been properly authenticated because the witnesses did not absolutely adopt the substance of the documents.

“[W]e do not require conclusive proof of authenticity before allowing the admission of disputed evidence.” Watkins, 591 F.3d at 787. Rule 901(a) “merely requires some evidence which is sufficient to support a finding that the evidence in question is what its proponent claims it to be.” Id. “Once the proponent has made the requisite showing, the trial court should admit the exhibit ... in spite of any issues the opponent has raised about flaws in the authentication. Such flaws go to the weight of the evidence instead of its admissibility.” 5 Weinstein § 901.02[3], at 901–17.

In United States v. Whittington, 783 F.2d 1210 (5th Cir.1986), we held that “[p]roof that a document has been signed is sufficient to charge a signatory with its contents.” Id. at 1215 (citing 7 J. Wigmore, Evidence § 2134, at 719 & n.2 (Chadbourn rev.1978)). In Whittington, the defendants challenged a contract bearing their signatures on the grounds that there was no evidence that any part of the document other than the signature page was the same as the document they originally signed, and that they never intended the contract to have any legal effect. Id. at 1214–15. In holding that the document was sufficiently identified as authentic by identification of its signature page, we stated:

A decision that a document is authentic and, therefore, admissible does not determine whether the evidence will be credited by the trier of fact. The opponent may then question whether the challenged document is the same or different from the one originally signed. As Weinstein's Evidence states, “Once the evidence is admitted the question becomes one of credibility and probative force and the trier may ultimately disbelieve the proponent's proof and entirely disregard or substantially discount the persuasive impact of the evidence admitted.”

Id. at 1215 (quoting J. Weinstein & M. Berger, Weinstein's Evidence ¶ 901(a)[01], at 16–17 (1985)). After the district court admitted the contract on the basis of evidence sufficient to authenticate...