United States v. Ayika

• Decision Date: 14 September 2016
• Docket Number: Consolidated w/ 14–51093,No. 15–50122,15–50122
• Citation: 837 F.3d 460
• Parties: United States of America, Plaintiff–Appellee v. Peter Victor Ayika, Defendant–Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

837 F.3d 460

United States of America, Plaintiff–Appellee

v.Peter Victor Ayika, Defendant–Appellant

No. 15–50122

Consolidated w/ 14–51093

United States Court of Appeals, Fifth Circuit.

Filed September 14, 2016

Jennifer Sheffield Freel, Assistant U.S. Attorneys, U.S. Attorney's Office, Western District of Texas, Austin, TX, Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff–Appellee.

Peter Victor Ayika, Pro Se.

Before JOLLY, CLEMENT, and OWEN, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Peter Ayika (“Ayika”), pro se, appeals his conviction and sentence based on healthcare fraud. He raises issues relating to the Speedy Trial Act, insufficiency of the evidence, Federal Rules of Evidence 403 and 404(b), the actual loss amount attributable to the fraud, restitution, forfeiture, the calculation of his sentence, and double jeopardy.

We reject Ayika's challenges to his conviction, sentence of incarceration, and order of restitution. In this appeal, however, the primary issue we address concerns forfeitable assets that may be seized to satisfy the money judgment entered against Ayika. We conclude that the district court erred to the extent that it held that forfeitable assets arising from commingled funds could be seized under the procedures of 18 U.S.C. § 982(a)(7) ; but when a defendant's assets cannot be traced to the crime of conviction under § 982(a)(7), due to the defendant's commingling of legal and illegal assets, the Government may then invoke the provisions of 21 U.S.C. § 853(p) to satisfy the money judgment.

Accordingly, we VACATE the Preliminary Order of Forfeiture listing Ayika's forfeitable assets. We further VACATE the Judgment in a Criminal Case (the “Judgment”), in part, with respect to forfeiture (pages 9 and 10, which refer to those same assets), and REMAND for further proceedings with respect thereto. We AFFIRM the Judgment in all other respects.

I.

Ayika was a licensed pharmacist who owned and operated Continental Pharmacy (“Continental”) in El Paso, Texas. In April 2011, Ayika was indicted for unlawfully possessing and distributing hydrocodone (the “drug case”). In August 2011, Ayika was charged in a second indictment with healthcare fraud, mail fraud, and wire fraud related to submission of fraudulent claims for healthcare benefits in connection with Continental (the “fraud case”).

The drug case went to trial first. After a jury found Ayika guilty in the drug case, he entered a plea of guilty to Count One of the healthcare fraud indictment, which charged him with defrauding healthcare-benefits providers in an amount exceeding $1,000,000. In the drug case, Ayika was sentenced to concurrent terms of 60 months and 170 months in prison. In the fraud case, Ayika was sentenced to 63 months in prison, to run concurrently with his sentences in the drug case. The district court also ordered Ayika to pay restitution in the amount of $2,498,586.86, entered a money judgment against him in the same amount, and ordered the forfeiture of certain property to partially satisfy that money judgment.

Ayika appealed the judgments in each case. Id. Although Ayika's conviction in the drug case was affirmed, his guilty plea in the fraud case was vacated and the case was remanded.

On remand, Ayika pleaded not guilty and went to trial. After a jury trial, Ayika was again convicted on Count One of the healthcare fraud indictment. In the sentencing process, Ayika waived his right to a jury trial for his forfeiture hearing. Instead, the Government presented evidence of the actual and intended loss amounts caused by Ayika's healthcare fraud scheme, as well as various assets obtained and/or contributed to through these illegitimate funds. Ayika was sentenced at the bottom of the Guidelines range to 87 months in prison to run consecutively to his sentences in the drug case, three years of supervised release, and ordered to pay restitution in the amount of $2,482,901.93. The district court also entered a money judgment against Ayika in the same amount and ordered forfeiture of certain properties to satisfy the judgment.

Ayika has appealed his healthcare fraud conviction and sentence; and we address his arguments in turn below.

II.

First, we address Ayika's challenges to his conviction.

A.

Ayika argues that his indictment should have been dismissed based on violations of the Speedy Trial Act (“STA”). Specifically, Ayika contends that his healthcare fraud indictment should have been dismissed because: 1) his indictment on the healthcare fraud charges was “returned ... approximately twenty nine (29) months” after his arrest (and was thus untimely under 18 U.S.C. § 3161 (b) ); and 2) “two hundred and seventy one (271) days elapsed” between the reversal of his conviction and the start date of his trial (and was thus untimely under 18 U.S.C. § 3161 (e) ). Ayika also contends that his counsel was ineffective for failing to raise these STA claims before the district court.

Because Ayika did not raise either of these STA violations before the district court before his trial, he has waived entitlement to relief under the statute.¹ Because, however, Ayika also raises ineffective assistance of counsel (“IAC”) claims in connection with these alleged STA violations, we must consider the underlying STA violations to determine the merits of the IAC claims.²

Turning to the IAC claims, to succeed Ayika “must show that counsel's performance was deficient ... [and] that the deficient performance prejudiced the defense.” Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The Government argues that Ayika cannot meet this burden because he cannot point to a violation of 18 U.S.C. § 3161(b) or (e), much less show that he was prejudiced by his counsel's deficient performance. We agree.

First, under 18 U.S.C. § 3161(b), “[a]ny ... indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges.” Ayika, however, was never arrested for the healthcare fraud charges, but arrested only in connection with the 2009 drug charges. Thus, Ayika cannot rely on his arrest date for the drug charges for the purposes of alleging an STA violation under 18 U.S.C. § 3161(b). Instead, because Ayika was never arrested in connection with the healthcare fraud charges, but indicted on those charges while in custody for the drug charge, he must rely on the return date of his healthcare fraud indictment (August 24, 2011), which was timely under § 3161(b). Accordingly, Ayika has not shown any error under § 3161(b).

Second, under 18 U.S.C. § 3161(e), “[i]f the defendant is to be tried again following a declaration by the trial judge of a mistrial or following an order of such judge for a new trial, the trial shall commence within seventy days from the date the action occasioning the retrial becomes final.” Because Ayika miscalculated the start date for which the seventy-day period under § 3161(e) began to run,³ and because there were several motions that tolled the seventy-day period,⁴ less than 70 countable days passed before the start of his trial.⁵ Accordingly, Ayika's counsel was not ineffective for failing to move to dismiss the indictment under the STA. Strickland , 466 U.S. at 687, 104 S.Ct. 2052.

Thus, Ayika has not shown any error by the district court under the STA, much less that he was prejudiced by his attorney's deficient performance in identifying or responding to such errors; and these claims fail as such.

B.

Next, Ayika argues that the district court committed reversible error by allowing the introduction of his prior conviction in the drug case, contrary to Federal Rules of Evidence 403 and 404(b). Specifically, Ayika contends that under Rule 403 this evidence was “inflammatory and prejudicial” and “obviously mislead the jury to convict” him on the healthcare fraud charges; and Ayika further contends that this evidence also constituted improper character evidence under Rule 404(b). (It is important to note that this evidence was presented to the jury only after Ayika took the stand to testify on his own behalf.).

To preserve either of his arguments, Ayika's objections to the introduction of this evidence, under Rule 403 or 404(b), must have been specific enough to alert the district court “to the nature of the alleged error and to provide an opportunity for correction.” See United States v. Ellis , 720 F.3d 220, 224–25 (5th Cir. 2013) (internal quotation marks and citation omitted). Ayika, however, did not object to the introduction of evidence of his drug conviction at any point in his healthcare fraud trial based on Federal Rule of Evidence 403 or 404(b) ; thus, “in the absence of a proper objection, we review [these claims] only for plain error.” United States v. Avants , 367 F.3d 433, 443 (5th Cir. 2004). Furthermore, our review for plain error is limited, as we “may not correct an error the defendant failed to raise in the district court unless there is ‘(1) error, (2) that is plain, and (3) that affects substantial rights.’ ” United States v. Mares , 402 F.3d 511, 520 (5th Cir. 2005) (citation omitted). Furthermore, “[i]f all three conditions are met [we] may then exercise [our] discretion to notice a forfeited error but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id .

Ayika's argument fails at the first step. The district court's ruling allowing the introduction of this evidence does not constitute error at all, as the introduction of such evidence is permissible under Federal Rule of Evidence 609(a). FED. R. EVID. 609(a) (allowing the Government to attack “a witness's character for truthfulness by evidence of a criminal conviction”); see also United States v. Bray , 445 F.2d 178, 181 (5th Cir. 1971) (“[A] defendant who takes the stand to...