United States v. Emordi

• Decision Date: 14 May 2020
• Docket Number: No. 19-10400,19-10400
• Citation: 959 F.3d 644
• Parties: UNITED STATES of America, Plaintiff-Appellee v. Paul EMORDI; Loveth Isidaehomen; Celestine Okwilagwe, also known as Tony Okwilagwe; Adetutu Etti, Defendants-Appellants
• Court: U.S. Court of Appeals — Fifth Circuit

959 F.3d 644

UNITED STATES of America, Plaintiff-Appellee

v.Paul EMORDI; Loveth Isidaehomen; Celestine Okwilagwe, also known as Tony Okwilagwe; Adetutu Etti, Defendants-Appellants

No. 19-10400

United States Court of Appeals, Fifth Circuit.

FILED May 14, 2020

Gail A. Hayworth, Leigha Amy Simonton, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Plaintiff-Appellee

Taly Haffar, Dallas, TX, for Defendant-Appellant Paul Emordi

Jeremy B. Gordon, Jeremy Gordon, P.L.L.C., Mansfield, TX, for Defendant-Appellant Loveth Isidaehomen

Seth Kretzer, Law Offices of Seth Kretzer, Houston, TX, for Defendant-Appellant Celestine Okwilagwe

Kimberly S. Keller, Keller Stolarczyk P.L.L.C., Boerne, TX, for Defendant-Appellant Adetutu Etti

Before SOUTHWICK, COSTA, and DUNCAN, Circuit Judges.

LESLIE H. SOUTHWICK, Circuit Judge:

The four defendants were indicted for conspiracy to engage in Medicare and Medicaid fraud in their operation of a home healthcare business, continuing over a period of three years and causing over $3.5 million in losses. All four were convicted after a jury trial. On appeal, two of the defendants are challenging the sufficiency of the evidence, while the other two complain about the validity of their sentences. We AFFIRM as to all defendants and claims.

FACTUAL AND PROCEDURAL BACKGROUND

In 2001, Celestine Okwilagwe and Loveth Isidaehomen, who are husband and wife, started a home health business called Elder Care Home Health Services, LLC ("Elder Care"). They approached their friend, Gloria Ogabi, to ask for permission to use her name in establishing the new business. Ogabi "didn’t think much about it" and agreed. Eventually, Okwilagwe came to Ogabi’s residence and asked Ogabi to sign paperwork, including the Elder Care articles of incorporation. Ogabi did not know why Okwilagwe and Isidaehomen needed her signature, but she signed because Isidaehomen was "like a sister." Later in 2001, Ogabi signed board meeting minutes reflecting the resignations of Okwilagwe and Isidaehomen as Elder Care managers. Ogabi, though, never participated in board meetings. Ogabi also signed Elder Care’s initial application to become a Medicare provider, listing herself as Elder Care’s owner despite having no ownership in the company. According to tax records from 2011 to 2014, Okwilagwe and Isidaehomen remained Elder Care’s owners.

In 2007, Ogabi began to worry about her name being on the Elder Care documents. She asked Okwilagwe and Isidaehomen to remove her name, and they falsely told her they did so. Elder Care continued to use Ogabi’s name as the company’s owner in applications for Medicare revalidation. Elder Care also used Ogabi’s name as the owner on its 2008 and 2015 ownership disclosure forms submitted to the Texas Department of Health and Human Services, which at the time was known as the Department of Aging and Disability Services ("DADS"). Ogabi’s name continued to be used as Elder Care’s owner on its 2015 recredentialing application to Molina Healthcare of Texas, a managed-care organization contracting with the state of Texas to provide Medicaid services in Texas, and to which Elder Care had to apply in order to bill Medicaid.

In 2012, the Texas Department of Health and Human Services Office of Inspector General sent letters to Okwilagwe and Paul Emordi, co-defendant here, informing them that they were "being excluded from participation in any capacity in Medicare, Medicaid, and all Federal health care programs ... for the minimum statutory period of 5 years." (bold and underline in original). These exclusions resulted from Okwilagwe and Emordi’s pleas of guilty to attempted theft arising from Medicaid fraud. Isidaehomen had been indicted as a result of these same events, but her indictment was dismissed. Okwilagwe and Emordi both appealed their exclusions, but neither appeal was successful.

Okwilagwe admits that he "continued to operate [Elder Care], under a straw owner named Gloria Ogabi." Emordi acknowledges that he knew he should not have been working at Elder Care while he was excluded. Three days after Okwilagwe and Emordi’s exclusions became effective, Isidaehomen became an authorized signer on the Elder Care bank account ending in the number 2858, the account into which Medicaid payments were deposited. Isidaehomen also became the primary signer of checks issuing from that account and from Elder Care’s bank account ending in the number 9574, into which Medicare payments were deposited. Isidaehomen began writing checks to Emordi’s wife, Mosunmola, and stopped writing checks to Emordi. FBI agent Diana Hernandez testified that she discovered no evidence that Mosunmola worked for Elder Care, though Hernandez remembered there had been "someone" who had mentioned that Mosunmola had worked at Elder Care at an undisclosed time.

According to Hernandez, Okwilagwe stated that he stayed on as the manager and director of Elder Care and paid the employees and paid the bills. During the exclusion period, Elder Care continued to bill Medicare and Medicaid. According to FBI auditor Crystal Garcia, Elder Care received more than $3.5 million from Medicaid and Medicare during the exclusion period. In the company’s 2015 renewal application with Molina Healthcare, co-defendant Adetutu Etti — Nursing Director for the company — certified that Elder Care did not "currently employ any person who has been or is currently excluded from participation in a government program (e.g. , Medicare, Medicaid)." In an Elder Care contract renewal with Superior Healthplan, another managed-care organization similar to Molina Healthcare, Etti certified that Elder Care had never been excluded from participation in a federal or state healthcare program. A Superior Healthplan representative testified that Elder Care affirmed in its contract renewal that it had not hired and would not hire anyone who had been so excluded. That witness also stated that Elder Care affirmed it would continuously check to make sure their employees had not been excluded. In Elder Care’s 2015 re-enrollment as a home health services agency for DADS, Etti certified that Elder Care and its principals (defined as including an "officer, director, owner, partner") were not excluded from participation in Medicare, Medicaid, or any federal or state healthcare program.

In June 2015, pursuant to Medicare’s regular recertification process, DADS surveyor Glory Lutrick found discrepancies in Elder Care’s patient files, completed a suspected provider fraud form, and referred the case for further investigation. The FBI’s investigation uncovered Okwilagwe’s involvement with Elder Care through franchise documents filed with the Texas Secretary of State that listed him as an Elder Care "officer, director, or member" from 2007 to 2010 and from 2013 to 2015. The FBI learned of Emordi’s role through surveillance, interviews, and its review of company bank records.

When FBI agents went to Elder Care during the investigation, they saw Emordi’s vehicle in the parking lot. When they asked the office manager if Emordi was there, she told them he was not. At that moment, the agents saw Emordi stand up and start to walk away, but they called his name and he came to them. When they asked Emordi about his exclusion, he initially said he knew nothing about it but then recalled his appeal. Emordi stated that Etti owned Elder Care. During the FBI’s 2016 investigation, agents also interviewed Okwilagwe and Isidaehomen, who then attempted to contact Ogabi for the first time since 2012.

Okwilagwe, Emordi, Etti, and Isidaehomen were indicted for conspiracy to commit healthcare fraud in violation of 18 U.S.C. §§ 1347 and 1349 (Count I). Okwilagwe and Etti were each indicted on two counts of making false statements in "health care matters," in violation of 18 U.S.C. § 1035, based on various filings such as Elder Care’s Molina Healthcare renewal application (Count II) and its June 2015 statement for the DADS disclosure of ownership form (Count III), each of which stated that Ogabi was the sole owner of Elder Care. All defendants pled not guilty. At their joint trial, the prosecution presented more than 150 exhibits and 12 witnesses. The jury found all defendants guilty on all counts.

At the sentencing hearing, the district court adopted the presentence report ("PSR"). The court found an intended loss amount of $3,733,272.40 based on the amounts that were billed to Medicare and Medicaid. To calculate Okwilagwe’s advisory range under the Sentencing Guidelines, the district court adopted the PSR’s base offense level of 6 under U.S.S.G. § 2B1.1(a)(2). It then added 18 levels under Section 2B1.1(b)(1)(J) for the intended loss between $3.5 million and $9.5 million and 2 levels under Section 2B1.1(b)(2)(A)(i) because the offense involved 10 or more victims. After several other enhancements not at issue here, the district court arrived at a total offense level of 36, which, combined with a criminal history category of I, produced a range of 188 to 235 months.

Okwilagwe objected to the Section 2B1.1(b)(2)(A)(i) enhancement for an offense that involved 10 or more victims, and the Section 2B1.1(b)(1)(J) enhancement for intended loss between $3.5 million and $9.5 million. These objections were overruled.

After expressing concern that Okwilagwe was the "mastermind" who was "running the whole show," and who concealed his conduct from 2001 to 2016 but nevertheless claimed he had done nothing wrong, the district court imposed a sentence of 188 months.

The district court ordered $3,559,154.22 in restitution to Medicare and Medicaid pursuant to the Mandatory Victims Restitution Act of 1996 ("MVRA"). Okwilagwe objected to the restitution amount, and the district court overruled the objection.

As to Etti, the district court adopted the PSR. Based on an offense level of 30 and Etti’s criminal history category of I, the court calculated an advisory Guidelines range of 97 to 120 months. Etti requested a downward...