U.S. v. Ogba

• Decision Date: 24 April 2008
• Docket Number: No. 06-10519.,06-10519.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ignatius Chuka OGBA; Ifeanyi Boniface Ogba, also known as Iffy Ogba; Patrick David Antoon, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

526 F.3d 214

UNITED STATES of America, Plaintiff-Appellee, v. Ignatius Chuka OGBA; Ifeanyi Boniface Ogba, also known as Iffy Ogba; Patrick David Antoon, Defendants-Appellants.

No. 06-10519.

United States Court of Appeals, Fifth Circuit.

April 24, 2008.

Susan B. Cowger, Dallas, TX, Delonia Anita Watson (argued), Fort Worth, TX, for U.S.

Ignatius Chuka Ogba, Oakdale, TX, pro se.

Ifeanyi Boniface Ogba, Oakdale, TX, pro se.

Franklyn Ray Mickelsen, Jr. (argued), Broden & Mickelson, Dallas, TX, for Antoon.

Appeal from the United States District Court for the Northern District of Texas.

Before HIGGINBOTHAM, DAVIS and SMITH, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Ignatius Chuka Ogba ("Chuck") started a durable medical equipment ("DME") supply corporation for Medicare patients, and his brother, Ifeanyi Ogba ("Iffy") helped him run the business. They hired recruiters to find potential recipients of wheelchairs and paid doctors, including Dr. Patrick Antoon, to refer wheelchair recipients to their corporation. Antoon also charged Medicare for his visits with potential wheelchair recipients. Chuck and Iffy represented to Medicare that they had provided patients with high-end electric wheelchairs, but at times they provided no equipment at all, provided lower-end equipment, or took back the wheelchairs after delivering them to Medicare recipients. A jury found Defendants guilty on all counts, which included health care fraud, paying and receiving illegal kickbacks, engaging in monetary transactions with illegally-obtained property, alteration or falsification of records, endeavoring to influence a grand jury, and conspiracy to commit health care fraud, paying and receiving illegal remuneration, and illegal monetary transaction.¹ Defendants all appealed.

I

The jury could have concluded the following beyond a reasonable doubt. Chuck and Iffy Ogba, with the help of doctors and recruiters, carried out a scheme to profit from the regulations of Medicare. Medicare's "Part B" regulations allow Medicare to reimburse suppliers of certain types of DME, such as wheelchairs, for the equipment that they provide to Medicare patients. Chuck set up a corporation called Universal Health Services, Inc. ("Universal"), an approved Medicare supplier located in Dallas, Texas. The brothers later set up a second business, Apex Medical Services ("Apex"), to provide wheelchairs to Medicare beneficiaries in Magnolia, Arkansas and the surrounding area. Apex was not an approved independent supplier of DME so it submitted its claims for Medicare reimbursement through UHS. Iffy worked for both of Chuck's companies.

The brothers hired Rhonda Lambert Smith and other recruiters to help them sell wheelchairs. Smith sought out individuals who might need wheelchairs, referring them to Dr. David Antoon in Magnolia and Dr. Lloyd McGriff in Dallas, and other doctors. These referrals were made in order to obtain certification that the patients needed expensive electric wheelchairs called "K0011 power wheelchairs" ("K-11s"). The doctors in turn sent wheelchair prescriptions to UHS/Apex. The brothers paid the doctors an average of $200 for every referred patient for whom Medicare approved a wheelchair.²

Medicare required two forms from suppliers of chairs, a CMS³ 1500 and a Certificate of Medical Necessity ("CMN"). The CMS 1500 form requires identification of the patient who will be receiving the equipment, the reason for the patient's receipt of the equipment, supplier identification, and identification of the referring doctor. Doctors and suppliers prepare the CMN. This form has four parts. Part A, filled out by the equipment supplier, contains identifying information such as the patient's name and address, the supplier's identification number, and the treating physician authorizing the equipment. Part B, completed by the physician, describes the length of time during which the patient will need the equipment, diagnosis codes describing why the patient needs the equipment, the physical constraints of the patient demonstrating wheelchair necessity, such as weak upper extremities and the inability to operate manual wheelchairs,⁴ and the hours per day that the patient will spend in the chair. Part C, completed by the supplier, describes the type of equipment prescribed and its costs. Doctors signing the CMN verify in its Section D that they have reviewed Parts A through C and the charges for the equipment ordered for the patient, that all information is true, and that they will be subject to criminal and civil liability for any falsification.⁵

Under the Ogba brothers' plan, lasting from approximately 2002 through 2004, the brothers recruited patients and sent these patients to "company" physicians who regularly sent wheelchair prescriptions to UHS/Apex. The physicians signed off on Part D of the form before Part C was filled out, thus "approving" equipment and charges for equipment not yet provided, and sent the forms to UHS/Apex. UHS then sent equipment reimbursement requests to Palmetto GBA, the Texas administrator of Medicare Part B that provided reimbursement for wheelchair suppliers. The brothers received more than $4.8 million in Medicare reimbursement.

In addition to paying for wheelchair prescriptions,⁶ the Ogba brothers, through UHS, entered false delivery dates on the form — typically the date of the wheelchair recipient's visit to the doctor for a wheelchair prescription — and requested reimbursement for wheelchairs before they were supplied. The brothers added accessories to doctors' prescriptions, and requested reimbursement for 100% of the cost of the wheelchairs, violating a requirement that patients pay 20% in coinsurance. Finally, although nearly all of UHS's reimbursement claims were for K-11 wheelchairs, the brothers often gave patients less expensive equipment, such as scooters, or failed to deliver any equipment. In some cases, they delivered equipment and then took it back, claiming that it needed to be repaired. The brothers deposited their illegally-derived profits in several domestic and foreign bank accounts.

Antoon, in signing the CMNs, falsely certified that he was patients' treating doctor. By its section D, he certified that the equipment purchased, as indicated in Section C, matched the equipment prescribed, whereas Section C had not yet been completed. He charged Medicare for his visits with wheelchair patients, and he received illegal payments from the Ogba brothers.⁷ He also certified that patients needed K-11s when they did not need them.

Antoon recorded his meetings with the wheelchair patients as appointments in his computer system, only after he was subpoenaed by the Grand Jury. He then told an employee to record the appointments in the computer, back-date them, and prepare questionnaires and letters to fill in wheelchair patients' files. Antoon explained that he had ordered the filling in of appointments in response to a request by the prosecutor that the entries be reduced to an electronic format.

Recruiter Smith testified that she paid Antoon for each CMN that he signed, but in other testimony stated that she did not reimburse Antoon for the patients whose wheelchair claims were rejected by Medicare. The Government's evidence included a tape recording of one of these payment sessions. At trial, Smith described the recording, indicating that she and Antoon were counting the money for each patient whose prescription was fulfilled and deducting any denied claims. Antoon testified that the payments were for time blocked out for his office visits with potential wheelchair recipients, not for signing CMNs. He also testified that Smith paid him for every CMN he signed, not just for CMNs that resulted in Medicare approvals, urging that this shows that he did not intend to receive illegal kickbacks.

Recruiter Smith and Dr. McGriff entered into plea agreements and testified for the Government. Dr. McGriff also signed a plea agreement and testified. A jury convicted the Defendants⁸ for healthcare fraud; paying and receiving illegal remuneration and aiding and abetting; engaging in monetary transactions with property derived from unlawful activity; obstruction of a criminal investigation; alteration/falsification of documents; endeavor to influence a Grand Jury; and conspiracy to commit health care fraud, paying and receiving illegal remuneration ("health care kickback"), and illegal monetary transaction. Antoon and the Ogba brothers appealed. We address Antoon's claims first, followed by the Ogba brothers' claims.

II

Antoon alleges three errors with respect to Rhonda Smith's testimony. First, he argues that the court abused its discretion in refusing to provide Defendants with a copy of the colloquy between Smith and the judge. Second, he contests the court's refusal to admit an e-mail about Smith into evidence. Finally, he argues that the case should be reversed due to "cumulative errors" regarding Smith's testimony. Antoon's attorney objected to the court's rulings that he challenges on appeal.

Soon after her direct examination had begun, Smith asked to speak with the judge in private. Smith provided the judge with an e-mail from a head Federal Defender to an Assistant Federal Defender — an attorney working on Smith's case at the time. It indicated that the prosecution was concerned that Rhonda's sister wanted Rhonda to be in a mental institution and that Rhonda was now claiming that she was not guilty despite having pled guilty. The e-mail also indicated that the prosecutor "will see that she gets a competency exam compliments of the fed. prison system if she checks herself in anywhere," suggesting that the Government would threaten Rhonda with more recommended prison time if she checked into a mental institution. The response stated,

She is a special case, that's for sure. I wasn't aware that she is now claiming she's not guilty. I talked with her very briefly this afternoon .... She...