United States v. Grant

• Decision Date: 08 June 2012
• Docket Number: No. 11–20013.,11–20013.
• Citation: 683 F.3d 639
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Howard GRANT, Obisike Nwankwo, Clinton Lee, Defendants–Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

683 F.3d 639

UNITED STATES of America, Plaintiff–Appellee,

v.Howard GRANT, Obisike Nwankwo, Clinton Lee, Defendants–Appellants.

No. 11–20013.

United States Court of Appeals, Fifth Circuit.

June 8, 2012.

Joshua Stephen Johnson (argued), Nina Goodman, Crim. Div., Ellen R. Meltzer, Sp. Counsel, U.S. Dept. of Justice, Washington, D.C., for Plaintiff–Appellee.

George D. Murphy, Jr. (argued), Edmond Nwamdi O'Suji (argued), David P. Cunningham (argued), Houston, TX, for Defendants–Appellants.

Appeals from the United States District Court for the Southern District of Texas.

Before GARZA, DENNIS and HIGGINSON, Circuit Judges.

HIGGINSON, Circuit Judge:

After a jury trial, defendants Dr. Howard Grant (“Grant”), Obisike Nwankwo (“Nwankwo”), and Clinton Lee (“Lee”) were convicted of conspiracy to commit health care fraud in violation of 18 U.S.C. § 1349. Grant also was convicted of two counts of aiding and abetting health care fraud in violation of 18 U.S.C. §§ 1347 and 2.

Grant, Nwankwo, and Lee each appeal their convictions, claiming insufficiency of the evidence. Grant also raises the following three issues on appeal: (1) whether the district court plainly erred by admitting co-conspirator Doris Vinitski's statements; (2) whether the government's cross-examination of Dr. Grant constituted reversible prosecutorial error; and (3) whether the district court abused its discretion by not giving a missing witness instruction to the jury.

FACTS

Between 2003 and 2009, Onward Medical Supply (“Onward”), a Houston company run by Doris Vinitski (“Vinitski”), fraudulently billed Medicare for durable medical equipment that patients did not need. After a series of inspections over several years by Mark Porter, a Medicare auditor who found multiple indications of fraud at Onward, Onward voluntarily surrendered its status as an eligible Medicare supplier in August 2009. Between March 2003 and July 2009, Onward had submitted 989 claims to Medicare totaling approximately $4,000,000, of which Medicare paid Onward approximately $2,000,000.

In order to submit a claim for reimbursement from Medicare for durable medical equipment, Onward needed a certificate of medical necessity and a prescription, signed by a physician. In 2008, John Nasky Okonkwo (“Okonkwo”), a co-defendant in this case, provided Vinitski/Onward with forged prescriptions for durable medical equipment. Okonkwo purchased the prescriptions, which were already signed with co-defendant Grant's name, from Dr. Joseph Edem (“Edem”), who owned Attentive Care Clinic in Houston. Okonkwo paid Edem $500 per motorized wheelchair prescription signed by a physician and $300 per signed prescription for orthotics. A first batch of ten to twelve prescriptions from Okonkwo arrived at Onward in late September or early October 2008.

Javonica Moten (“Moten”) worked for Onward as an administrative assistant from August 2008 through January 2009 and was co-defendant Lee's live-in girlfriend during that time. Moten found out about the job opening at Onward through Lee because Lee, an electrician, knew Vinitskifrom electrical work he performed at Onward. When the first batch of prescriptions from Okonkwo arrived at Onward, Moten, who had seen Grant's signature before, told Vinitski that the signature on the prescriptions did not look like Grant's actual signature. Moten spoke with Lee, who was friends with Grant, about the apparently forged prescriptions, and Lee told her Grant would come to see the prescriptions the following day. Grant met with Vinitski and confirmed the signatures on this batch of prescriptions were not his. Grant and Vinitski spoke after this first meeting and had dinner the following week, at which point Grant asked Vinitski for money “to redo the prescription order and sign it with his signature.” A second set of prescriptions with Grant's forged signature arrived at Onward from Okonkwo about a month after the first set. Per Vinitski's request, Moten created lists of patients in both the first and second set of prescriptions for Grant.

Vinitski told Moten that co-defendant Nwankwo would deliver the equipment for the patients on the prescriptions Onward received from Okonkwo. Nwankwo made at least nine deliveries of equipment billed to Medicare using the prescriptions from Okonkwo. Nwankwo repeatedly delivered or attempted to deliver durable medical equipment to patients who were able to walk unassisted or who refused to take the equipment because they did not need it.

Moten informed Lee about the illegal practices at Onward, including that Onward used the forged prescriptions and that the beneficiaries Onward delivered equipment to were receiving equipment they did not need. However, even after Lee learned of the illegal activity at Onward, Moten testified that Lee still wanted to deliver durable medical equipment for Onward. To this end, Lee enrolled in a training class, paid for by Vinitski, in order to make deliveries for Vinitski. When Vinitski was looking for a way to pay Grant for redoing the forged prescriptions because she could not pay Grant directly, Lee suggested to Moten that he could serve as a third party through whom Vinitski could route her payments to Grant.

DISCUSSION

A. Sufficiency of the evidence

This court reviews preserved challenges to the sufficiency of the evidence de novo. United States v. McElwee, 646 F.3d 328, 340 (5th Cir.2011). The court will “view all evidence, whether circumstantial or direct, in the light most favorable to the government, with all reasonable inferences and credibility choices to be made in support of the jury's verdict,” to determine whether “a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Ford, 558 F.3d 371, 375 (5th Cir.2009). The jury “retains the sole authority to weigh any conflicting evidence and to evaluate the credibility of the witnesses.” United States v. Loe, 262 F.3d 427, 432 (5th Cir.2001). “The evidence need not exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt,” in order to be sufficient. United States v. Moreno, 185 F.3d 465, 471 (5th Cir.1999). However, the government “must do more than pile inference upon inference upon which to base a conspiracy charge.” United States v. Mackay, 33 F.3d 489, 493 (5th Cir.1994) (internal quotation marks omitted).

All three defendants appeal their convictions for conspiracy to commit health care fraud in violation of 18 U.S.C. § 1349.¹ All three defendants filed Rule 29 motions for judgment of acquittal, which the district court denied on August 13, 2010. The district court's denial is detailed in a lengthy written order, specific to each defendant.

To prove a conspiracy to commit health care fraud, the government must prove beyond a reasonable doubt that (1) two or more persons made an agreement to commit health care fraud; (2) that the defendant knew the unlawful purpose of the agreement; and (3) that the defendant joined in the agreement willfully, that is, with the intent to further the unlawful purpose. 18 U.S.C. §§ 1347, 1349; United States v. Delgado, 668 F.3d 219, 226 (5th Cir.2012). The agreement between conspirators may be silent and need not be formal or spoken. United States v. Williams–Hendricks, 805 F.2d 496, 502 (5th Cir.1986). “An agreement may be inferred from concert of action, voluntary participation may be inferred from a collection of circumstances, and knowledge may be inferred from surrounding circumstances.” United States v. Stephens, 571 F.3d 401, 404 (5th Cir.2009) (internal citations and quotation marks omitted).

1. Dr. Howard Grant²

Grant argues that the evidence was insufficient to prove that he “joined the conspiracy or executed a scheme to defraud either on his own or in concert with others.” Grant argues that the government's “primary theory of prosecution” is that Grant joined the conspiracy by choosing not to report the illegal activity at Onward after he learned about it. The jury heard enough credible evidence, however, to determine that Grant's role was much more than a failure to report fraud; instead, Grant actively participated in the fraud.

Grant took the stand in his own defense. He acknowledged that the prescriptions would have been fraudulent regardless of whether they had his forged signature and regardless of whether he actually signed them because the prescriptions were for equipment that was not medically necessary for the beneficiaries. Testimony from Moten and Okonkwo showed that Grant himself demanded payment for redoing prescriptions he knew to be fraudulent.³ For example, Vinitski said Grant was “asking for money to ... redo the prescription order and sign it with his signature” for the forged prescriptions sent by Okonkwo and that “Dr. Grant wanted money to make those patients' prescriptions correct.” Vinitski also said that: (1) Grant knew what was going on and had demanded $10,000 to redo the prescriptions; (2) she was going to pay Grant because “that's what Dr. Grant is demanding”; and (3) “she would need Dr. Grant to redo the paperwork when she had to pay him the money.” Okonkwo testified that Edem, the doctor from whom he obtained the prescriptions with Grant's forged signature, told him that he paid the doctors at Grant's medical facility $100 per durable medical equipment prescription. The jury could reasonably infer that Grant expected to be paid for the prescriptions he admitted were fraudulent based on testimony that Grant told Vinitski that he had been “cheated ... out of money for those prescriptions” by Edem.

Furthermore, Grant continued to speak on the phone repeatedly with Vinitski and Edem, even after he found out that Vinitski had bought prescriptions from Edem with Grant's forged signature.⁴ Grant testified that he had continued to talk to Vinitski and Edem in an effort to gather information for the qui tam lawsuit he was considering filing regarding...