United States v. Ekanem

555 F.3d 172, 2009 U.S. App. LEXIS 338, 2009 WL 32849
CourtCourt of Appeals for the Fifth Circuit
DecidedJanuary 7, 2009
Docket06-11407
StatusPublished
Cited by75 cases

This text of 555 F.3d 172 (United States v. Ekanem) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Ekanem, 555 F.3d 172, 2009 U.S. App. LEXIS 338, 2009 WL 32849 (5th Cir. 2009).

Opinion

EMILIO M. GARZA, Circuit Judge:

Bassey Jackson Ekanem (“Ekanem”) was convicted on five counts of healthcare fraud in violation of 18 U.S.C. § 1347. Ekanem now appeals, contending that (1) there was a fatal variance between Count Four of the indictment and the evidence presented at trial; (2) there was insufficient evidence to support a conviction on Count Five of the indictment; and (3) the district court erred in calculating his Guidelines range based on the relevant conduct of others under U.S.S.G. § 1B1.3. For the following reasons, we affirm Eka-nem’s convictions but remand the case for resentencing.

I

Ekanem owned and operated Rooster Medical Equipment and Supplies (“Rooster”), a supplier of durable medical equipment. The government alleged that Eka-nem, through Rooster, engaged in a fraudulent scheme to provide patients with motorized scooters while billing Medicare for more expensive motorized wheelchairs. The charging indictment contained five counts of alleged fraud in violation of 18 U.S.C. § 1347; each count contained a specific Medicare claim tied to a specific patient. At trial, the patients set forth in Counts One through Four testified that they never received the more expensive wheelchairs that were billed to Medicare. As to Count Five, the government offered circumstantial evidence that a wheelchair was never delivered. Ekanem was convicted on all five counts.

At sentencing, the district court sought to determine the applicable Guidelines range. The government argued that Eka-nem’s offense level should be increased based on the relevant conduct of Don Usanga (“Usanga”), who helped Ekanem set up Rooster. After a hearing, the court determined that Ekanem had entered into a “jointly undertaken criminal activity” involving Usanga’s own fraudulent medical-equipment company, Mendus Medical. Thus, the court found that losses caused by Usanga and Mendus Medical were “relevant conduct” attributable to Ekanem for sentencing purposes. See U.S.S.G. § 1B1.3. Ekanem’s offense level was increased by two levels to 32, resulting in an advisory Guidelines range of 121 through 151 months. The court ultimately sentenced Ekanem to 120 months of imprisonment. Ekanem now appeals his convictions and sentence.

II

Ekanem first contends that there was a fatal variance between the terms of Count Four of the indictment and the evi *174 dence offered at trial. We review such claims for harmless error—the defendant must show that the variance was material and prejudiced his substantial rights. United States v. Freeman, 434 F.3d 369, 374-75 (5th Cir.2005). “As long as the defendant receives notice and is not subject to the risk of double jeopardy, his substantial rights are not affected.” Id. at 375 (internal quotation marks omitted).

The evidence at trial indicated that Ekanem committed fraud with regard to Medicare claim number 03234877398000— a reimbursement claim for a wheelchair allegedly delivered to patient Otis Howard. However, the claim number in Count Four of the indictment contained an extra digit and read 032234877398000. Because these different numbers represent different dates for the alleged conduct, 1 Ekanem contends that he was prejudiced in preparing his defense and may be in danger of double jeopardy.

Ekanem cannot show an error that affected his substantial rights. The claim-number variance in the indictment was a harmless typographical error. Count Four contained additional information identifying the specific conduct charged, including the name of the patient, the name of the doctor, the exact amount of the reimbursement claim, and the calendar date (August 22, 2008) on which the claim was submitted. See McGill v. United States, 10 F.2d 972, 973 (5th Cir.1926) (explaining that a variance may be cured by other identifying information in the indictment); see also United States v. Miller, 491 F.2d 638, 648-49 (5th Cir.1974) (“[T]he validity of an indictment is determined by practical, not technical considerations.”). Furthermore, the typographical error was discussed at length at trial. See United States v. Levy, 803 F.2d 1390, 1395 (5th Cir.1986) (explaining that a subsequent court may look beyond the prior indictment in assessing double-jeopardy claims). Thus, Ekanem received notice of the conduct charged and is in no danger of double jeopardy for the same conduct. The variance did not affect Ekanem’s substantial rights.

Ill

Ekanem next claims that there was insufficient evidence to support a conviction on Count Five of the indictment. We review a claim of insufficient evidence to determine if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Infante, 404 F.3d 376, 384 (5th Cir.2005) (internal quotation marks omitted). In applying this standard, we view the evidence in the light most favorable to the prosecution and accept all reasonable inferences that tend to support the verdict. Id.

Count Five of the indictment charged Ekanem with fraudulently billing Medicare for the delivery of a wheelchair to patient Loretha Williams in violation of 18 U.S.C. § 1347. The following evidence was presented at trial: The government offered a delivery log indicating that Eka-nem’s Rooster had delivered a motorized scooter to Ms. Williams in November, 2003. A government agent testified that she visited the home of Ms. Williams and observed such a scooter with three “Rooster Medical” stickers on it. The agent further testified that the only claim submitted *175 by Rooster with regard to Ms. Williams was for a more expensive motorized wheelchair. Ekanem argues that this evidence does not rule out the possibility that Rooster separately delivered the motorized wheelchair that was billed to Medicare.

Viewing the evidence in the light most favorable to the prosecution, we hold that a reasonable jury could have convicted Ek-anem on Count Five. “The evidence need not exclude every reasonable hypothesis of innocence .... ” Infante, 404 F.3d at 384. At trial, the government established a pervasive scheme of billing for wheelchairs and delivering scooters (i.e., Counts One through Four of the indictment). Given that Rooster delivered a scooter to Ms. Williams that was never billed to Medicare, it is reasonable to infer that Rooster did not deliver a separate wheelchair. Accordingly, there was sufficient evidence to support a conviction on Count Five.

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Bluebook (online)
555 F.3d 172, 2009 U.S. App. LEXIS 338, 2009 WL 32849, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ekanem-ca5-2009.