United States v. Eghobor
| Decision Date | 03 December 2015 |
| Docket Number | No. 14–11354.,14–11354. |
| Citation | 812 F.3d 352 |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Ebolose EGHOBOR, R.N., also known as Ebolose Friday Eghobor, also known as Friday Ebolose Eghobor, also known as Fred Eghobor, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Brian Walters Stoltz (argued), James Wesley Hendrix, Asst. U.S. Atty., U.S. Attorney's Office, Dallas, TX, for Plaintiff–Appellee.
Paul Taliaferro Lund (argued), Dallas, TX, for Defendant–Appellant.
Before PRADO, SOUTHWICK, and GRAVES, Circuit Judges.
In May 2014, a jury convicted Defendant–Appellant Ebolose Eghobor of one count of conspiracy to commit health care fraud in violation of 18 U.S.C. § 1349. We AFFIRM.
In 2007, Ebolose "Fred" Eghobor, a registered nurse, began working as the director of nursing at PTM Healthcare Services ("PTM"), a Dallas-area home health agency. Eghobor reported directly to PTM's owner, Ferguson Ikhile. As the director of nursing, Eghobor controlled, inter alia, which patients to admit for home health care.
Home health care is a form of short-term health care administered in the patient's home. Under Medicare, the federal government reimburses home health agencies that treat Medicare beneficiaries who are (1) certified as "homebound" and (2) under the care of a physician. "Homebound" means that the patient's ability to leave the home is restricted due to a serious medical condition. A beneficiary is "under the care of a physician" when the treating physician has determined that home health care is necessary. The process for admitting a patient for home health care starts with the treating physician issuing an order for such care.
In order to receive Medicare reimbursements, a home health agency must submit certain documents detailing the patient's medical condition and prognosis. One such document, the OASIS form,1 provides a comprehensive overview of the patient's medical issues. The OASIS form, which is signed by the agency, is used by Medicare contractors to set the reimbursement amount, with more serious conditions correlating to greater reimbursement amounts. Another document, the Plan of Care, or Form 485, outlines the course of treatment and must be approved and signed by a physician before the agency can receive reimbursements.
At PTM, Eghobor and Ikhile executed a home health care scheme that defrauded Medicare. Specifically, they recruited individuals to be their patients, prepared forms that exaggerated those individuals' medical needs, and then had a physician, coconspirator Dr. Joseph Megwa, approve such treatment. By exaggerating patients' medical problems, PTM was able to receive higher Medicare reimbursement amounts. Further, PTM's nurses would disregard the treatment prescribed by the exaggerated Plans of Care and instead provide minimal assistance to PTM's patients.
The government began to investigate PTM's billing practices and, in December 2009, two Medicare contractor investigators—including Trudy Bell, who testified at trial—visited PTM's office unannounced. Eghobor told Bell that he was in charge of reviewing OASIS forms and that he and Ikhile handled most of PTM's patient admissions. Bell was suspicious that only two employees, Ikhile and Eghobor, handled the admissions process given that PTM at times had up to 300 patients.
In October 2012, a grand jury indicted Eghobor, Ikhile, and Dr. Megwa. It charged each defendant with one count of conspiracy to commit health care fraud in violation of 18 U.S.C. § 1349 and three counts of health care fraud in violation of 18 U.S.C. §§ 2, 1347, which related to three specific claims PTM submitted to Medicare. Dr. Megwa was charged with four additional counts of making false statements relating to health care matters in violation of 18 U.S.C. § 1035. After Ikhile pled guilty and agreed to cooperate, a superseding indictment was filed against Eghobor and Dr. Megwa, charging them with the same counts as contained in the original indictment.
On April 28, 2014, the case against Dr. Megwa and Eghobor proceeded to trial.
The government's witnesses included Ikhile, two Medicare beneficiaries that PTM had recruited, several law enforcement agents, and Trudy Bell, the Medicare anti-fraud investigator. The jury began deliberations on the afternoon of Tuesday, May 6, 2014. On the next day, Wednesday, May 7, the jury sent several notes to the judge. As relevant here, one note requested the transcript of Ikhile's testimony, which the court provided after no objections were made. Later that afternoon, the judge went on the record to explain that he had received another jury note stating:
There is no unanimous vote among the jurors on any of the counts thus far on one defendant, Eghobor. Can we continue on defendant Dr. Megwa?
The district judge told the parties that he planned to respond, "Yes, continue with your deliberations." Eghobor objected and requested either a mistrial or, alternatively, an instruction to continue deliberating only as to Dr. Megwa. The district court overruled the objection, denied Eghobor's motion for a mistrial, and responded to the jury, "Yes, continue with your deliberations."
On the morning of the third day of deliberations, Monday, May 12, the jury sent a note providing:
On several counts, the jury cannot reach a unanimous verdict on [sic]. How should we proceed? We have exhausted deliberations on these particular counts.
In response, the court informed the parties that it would deliver an Allen charge2 to the jury. Eghobor objected and again moved for a mistrial, arguing that, given the second note, the jury was clearly deadlocked as to him and that the Allen charge would be unduly prejudicial and coercive. The court overruled this objection, explaining that Eghobor was speculating as to the jury's division because it could be "11/1 for guilt, 11/1 the other way" and "could be on any [of the] counts." Eghobor also objected to the district court's proposed modification of the pattern Allen charge, which the court also overruled. The court gave the charge shortly before 11:45 a.m.
Later that afternoon, the jury sent a note requesting the transcript of the testimony of Trudy Bell. Unlike with the first transcript request, Eghobor objected to providing Bell's testimony or any other testimony. Eghobor contended that the second transcript request showed that the jury was becoming dependent on the transcripts. The court overruled his objection and provided the jury with the Bell transcript around 4:00 p.m. At approximately 4:45 pm, the jury returned its verdict. It found Eghobor guilty on one count of conspiracy to commit health care fraud and not guilty on the three counts of health care fraud. It convicted Dr. Megwa on all eight counts against him.
Eghobor timely filed a post-verdict motion for acquittal or, alternatively, a new trial under Federal Rules of Criminal Procedure 29 and 33, respectively, which the district court denied. Five months after trial, in October 2014, Eghobor filed a motion for a new trial based on newly discovered evidence under Federal Rule of Criminal Procedure 33. The evidence at issue was a recording of a conversation among Eghobor's wife, Ikhile, and Ikhile's wife, which took place about one year before trial. In the motion, Eghobor averred that his wife, Bridget, had reported the conversation to his lawyer before trial, but that neither Bridget nor his lawyer were aware that Bridget's cell phone had recorded the conversation until August 2014, three months after trial. The court denied the motion.
In December 2014, the court sentenced Eghobor to 48 months imprisonment and entered final judgment. Eghobor timely appealed.
On appeal, Eghobor argues the district court made five reversible errors, specifically by (1) giving the Allen charge, (2) providing the jury with the transcript of Bell's trial testimony, (3) committing cumulative error, (4) denying his post-verdict challenge to the sufficiency of the evidence, and (5) denying his motion for a new trial based on newly discovered evidence. We address and reject each claim in turn.
The court reviews the use of an Allen charge to which the defendant objected for abuse of discretion. United States v. Andaverde–Tiñoco, 741 F.3d 509, 515 (5th Cir.2013). "The relevant inquiry on appeal is whether: (1) any semantic deviation from approved Allen-charge language was so prejudicial that it requires reversal and (2) the circumstances surrounding the use of the charge were coercive." Id. The district court has "broad discretion to determine whether an Allen charge might coerce a jury." United States v. Heath, 970 F.2d 1397, 1406 (5th Cir.1992).
Under the first prong of our Allen charge analysis, district courts are not required to recite verbatim the pattern Allen charge approved by this Court. The key inquiry is whether the modification was "so significant as to coerce the jury to reach its verdict." Id. This Court has "upheld versions of [the Allen ] charge so long as they avoid the pitfalls of coercive deadlines, threats of marathon deliberations, or pressure for surrender of conscientiously held minority views." United States v. Scruggs, 583 F.2d 238, 240 (5th Cir.1978) (quoting United States v. Skinner, 535 F.2d 325, 326 (5th Cir.1976) ).
In this case, Eghobor argues that the district court improperly deviated from the language of the pattern Allen charge by including the following additions to the pattern charge italicized below:
You must also remember that if the evidence in the case fails to establish guilt beyond a reasonable doubt as to a count as [sic], the accused should have your unanimous verdict of Not Guilty on that count. On the other hand, if the evidence establishes guilt beyond a reasonable doubt on a count as to a defendant, the verdict should be guilty on that count.
See Fifth Circuit Pattern Jury Instructions (Criminal) § 1.45. Eghobor claims that the sentence...
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