United States v. Zafar Mehmood

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 13, 2018
• Docket: 16-2641
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 18a0346n.06

Nos. 16-2639/2641/2649

UNITED STATES COURTS OF APPEALS FOR THE SIXTH CIRCUIT FILED UNITED STATES OF AMERICA, ) Jul 13, 2018 ) DEBORAH S. HUNT, Clerk Plaintiff-Appellee, ) ) v. ) ON APPEAL FROM THE ) UNITED STATES DISTRICT ZAFAR MEHMOOD (16-2639/2641); BADAR ) COURT FOR THE EASTERN AHMADANI (16-2649), ) DISTRICT OF MICHIGAN ) Defendants-Appellants. ) )

BEFORE: MERRITT, WHITE, and DONALD, Circuit Judges.

HELENE N. WHITE, Circuit Judge. A jury convicted Defendants Zafar Mehmood and

Badar Ahmadani (“Defendants”) of conspiracy to commit health-care fraud and conspiracy to pay

and receive kickbacks, and Mehmood of health-care fraud, conspiracy to commit money

laundering, money laundering, and obstruction of justice. The district court sentenced both

Defendants to below-Guidelines terms of imprisonment and ordered them to pay approximately

$40 million in restitution. On appeal, Defendants raise several challenges to their convictions and

sentences. We AFFIRM their convictions, VACATE their sentences, and REMAND for

resentencing. Nos. 16-2639/2641/2649, Unites States v. Mehmood et al.

I. BACKGROUND

From 2006 to 2011, Mehmood, Ahmadani, and others ran a number of home-health-care

companies that purported to provide physical therapy to home-bound Medicare beneficiaries.1 In

reality, the companies were engaged in a scheme to defraud Medicare.

The government presented evidence that Defendants and their co-conspirators hired and

paid recruiters to use bribes, including cash and prescriptions for narcotics, to induce Medicare-

eligible persons to sign up for in-home physical-therapy services with Defendants’ companies.

Defendants and their employees then created fake patient records with fabricated medical

information to make it appear as if the patients needed and received physical therapy. The

companies then submitted claims to Medicare for health-care services that were either not provided

to the beneficiaries or were not medically necessary. In total, Defendants’ companies submitted

$47,219,535.47 in Medicare claims, and Medicare paid $40,488,106.98 on those claims.

Mehmood also controlled Exclusive Rehab Services, Inc. (Exclusive) and New Light

Physical Therapy and Rehab, Inc. (New Light), which purported to provide staffing services to

Mehmood’s and Ahmadani’s health-care agencies. The government asserted that Exclusive and

New Light were shell companies used to launder the proceeds of the fraud for payment of

kickbacks and Mehmood’s personal use. The nominal owner of Exclusive was Mohammed Alam,

a janitor at one of Mehmood’s businesses; Mehmood’s wife was the owner of New Light.

Law enforcement eventually caught up with the scheme and executed search warrants at

Defendants’ health-care agencies on November 3, 2011. On April 24, 2012, a grand jury returned

an indictment against Mehmood and Ahmadani. Count 1 of the indictment charged Mehmood and

1 The companies included Access Care Home Health Care, Inc. (Access), All State Home Health Care, Inc. (All State), Patient Care Home Care, Inc. (Patient), and Hands on Healing Home Care, Inc. (Hands on Healing or “HOH”). Mehmood was the owner and president of Access, Patient, and All State, and co-owned HOH with Ahmadani.

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Ahmadani with conspiracy to commit health-care fraud, in violation of 18 U.S.C. § 1349; Counts

2 through 5 charged Mehmood with health-care fraud, in violation of 18 U.S.C. §§ 1347 and 2;

Count 6 charged Mehmood and Ahmadani with conspiracy to pay and receive health-care

kickbacks, in violation of 18 U.S.C. § 371; Count 7 charged Mehmood with conspiracy to commit

money laundering, in violation of 18 U.S.C. § 1956(h); and Counts 8 and 9 charged Mehmood

with money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i) and 2. On December 16,

2014, a grand jury returned a separate indictment against Mehmood, charging him with two counts

of obstruction of justice, in violation of 18 U.S.C. §§ 1512 and 2, based on Mehmood’s removing

incriminating documents from the Detroit office of the U.S. Department of Health and Human

Services.

A jury found both defendants guilty of all charges. The district court sentenced Mehmood

to 360 months’ imprisonment, below the Guidelines-recommended term of 155 years, and

Ahmadani to 96 months’ imprisonment, below the Guidelines-recommended term of 180 months.2

Both were also ordered to pay approximately $40 million in joint and several restitution.3

2 As Mehmood’s PSR explains,“based upon a total offense level of 43 and a criminal history category of I,” Mehmood’s “guidelines imprisonment range is life. However, as none of the counts of conviction carry a life statutory penalty, the guideline range becomes 155 years.” (R. 13-1 at 19.) As to Ahmadani, his PSR explains that “[b]ased upon a total offense level of 37 and a criminal history category of I, [Ahmadani’s] guideline imprisonment range is 210 to 262 months. However, the combined statutorily authorized maximum sentences are less than the minimum of the applicable guideline range; therefore, the guideline term of imprisonment is 180 months.” (R. 14-1 at 14-15.) 3 Specifically, Mehmood was ordered to pay $40,488,106.98, (R. 285, PID 5374), while Ahmadani was ordered to pay $38,150,113.64, (R. 298, PID 5507). The district court did not give a reason for the discrepancy.

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II. DISCUSSION

A. Mehmood - Violation of the Court Interpreters Act

Mehmood first argues that the district court violated the Court Interpreters Act (“CIA”),

28 U.S.C. § 1827,4 by proceeding with the trial in the absence of a previously appointed interpreter

without a valid waiver of Mehmood’s right to an interpreter, thus denying him a fair trial.

During a pre-trial status conference, the district judge initially assigned to the case noted

that Mehmood “does not speak English as a first language” and “does not express himself precisely

in English.” (R. 127, PID 1130.) The successor judge appointed an interpreter for Mehmood

based on the previous judge’s remarks. On the fourth day of the trial, however, the judge

questioned the need for the interpreter because she had not “seen any words interpreted.” (R. 317,

PID 8299.) Mehmood’s counsel responded: “I’m sensitive to the court’s concern. I’ll address that

after I confer with [Mehmood] and report to the court.” (Id. at 8300.) The following day, the

judge asked Mehmood’s counsel at sidebar if Mehmood “waive[s] the interpreter.” (R. 318, PID

8352.) Mehmood’s counsel responded, “for now, your Honor, we are good without an interpreter.”

(Id.) The remainder of the trial continued without an interpreter.

Although Mehmood’s failure to object to the absence of an interpreter triggers plain-error

review, United States v. Markarian, 967 F.2d 1098, 1104 (6th Cir. 1992),5 he asks us to review the

issue de novo because it implicates “[t]he district court’s compliance with the statutory procedure

4 The CIA states that a party may waive the right to an interpreter “only if” the waiver has been made “expressly by [the party] on the record,” “after opportunity to consult with counsel,” and “after the presiding judicial officer has explained to such individual . . . the nature and effect of the waiver.” 28 U.S.C. § 1827(f)(1). 5 See also United States v. Lulseged, 688 F. App’x 719, 722 (11th Cir. 2017) (reviewing for plain error a defendant’s failure to object to the district court’s decision not to appoint an interpreter); United States v. Rodriguez, 211 F. App’x 467, 469 (6th Cir. 2006) (reviewing for plain error where defendant failed to object to the absence of an interpreter); United States v. Garcia-Perez, 190 F. App’x 461, 470 (6th Cir. 2006) (reviewing for plain error because defendant failed to object to the interpreter he received); United States v. Camejo, 333 F.3d 669, 672 (6th Cir. 2003) (reviewing for plain error where defendant failed to object to alleged translation errors).

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for accepting a waiver of the defendant’s right to utilize an interpreter.” (Mehmood Br. at 18.) 6

Mehmood cites United States v. Murguia-Rodriguez, 815 F.3d 566 (9th Cir. 2016) for support, but

the case is of no help to him. In Murguia-Rodriguez, the Ninth Circuit held that plain-error review

did not apply to a district court’s error in proceeding with sentencing without first obtaining a valid

waiver of the defendant’s right to an interpreter because the government failed to request—and

thus waived its right to—plain-error review. Id. at 574-75. That is not the case here. Thus, we

review Mehmood’s claim for plain error.

Plain-error review involves four steps.

First, there must be an error or defect—some sort of [d]eviation from a legal rule— that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the district court proceedings. Fourth and finally, if the above three prongs are satisfied, the court of appeals has the discretion to remedy the error—discretion which ought to be exercised only if the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.

Puckett v. United States, 556 U.S. 129, 135 (2009) (alterations in original) (internal citations and

quotation marks omitted).

Although it is well-settled that the defendant, not the government, bears the burden of

demonstrating plain error, United States v. Olano, 507 U.S. 725, 734-35 (1993), Mehmood argues

that we should “refuse[] to place the onus on the defendant to prove plain error on the basis of a

silent appellate record.” (Mehmood Reply Br. at 6.) Instead, relying on United States v. Tapia,

631 F.2d 1207, 1210 (5th Cir. 1980), he urges us to remand for a new trial or “remand to the district

court for a hearing to determine whether the absence of an interpreter inhibited [the defendant’s]

6 Mehmood also argues that the district court’s failure to comply with the statutory procedures for waiver is “indefensible” and necessitates “a reversal of Mehmood’s convictions, and a remand for a new trial.” (Mehmood Br. at 24.)

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comprehension of the proceedings, or whether such failure prevented him from assisting his

counsel.” (Mehmood Br. at 6 (internal citation marks and citation omitted).) To be sure, in Tapia,

the Fifth Circuit did remand for a hearing to determine whether the absence of an interpreter

“inhibited [the defendant’s] comprehension of the proceedings,” 631 F.2d at 1210; however, Tapia

did not involve plain-error review, and the case predates the Supreme Court’s clear admonition

that “[w]hen an appellate court considers error that qualifies as plain, the tables are turned on

demonstrating the substantiality of any effect on a defendant’s rights: the defendant who sat silent

at trial has the burden to show that his ‘substantial rights’ were affected.” United States v. Vonn,

535 U.S. 55, 62 (2002) (citation omitted). We, therefore, review for plain error.

Pursuant to the CIA, a party may waive the right to an interpreter “only if” the waiver has

been made “expressly by [the party] on the record,” “after opportunity to consult with counsel,”

and “after the presiding judicial officer has explained to such individual . . . the nature and effect

of the waiver.” 28 U.S.C. § 1827(f)(1). Only then may the presiding judicial officer approve the

waiver. Id. Here, the district court failed to comply with the clear language of the CIA by

accepting the waiver from Mehmood’s counsel at sidebar instead of from Mehmood on the record,

and by failing to explain to Mehmood the nature and effect of the waiver. Thus, the district court

erred.

Further, because the district court failed to effectuate the protections enshrined in the clear

and unambiguous language of the CIA, the error was plain. See In re Sealed Case, 573 F.3d 844,

851 (D.C. Cir. 2009) (district court’s failure to comply with statute prohibiting courts from

considering rehabilitative goals in sentencing was plain error because the statute “speaks with

absolute clarity”); United States v. Molina, 356 F.3d 269, 276 (2d Cir. 2004) (district court’s failure

to state reasons for a sentence enhancement it imposed was plain error because it “did not satisfy

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th[e] unambiguous [statutory] mandate” to “state in open court the reasons for the imposition of

the particular sentence”); see also United States v. Merlos, 8 F.3d 48, 51 (D.C. Cir. 1993)

(explaining that an error can be plain if it violates an “absolutely clear” legal norm, “for example,

because of the clarity of a statutory provision”).

The third prong of plain-error review—whether the error affected the defendant’s

substantial rights—“means that the error must have been prejudicial: It must have affected the

outcome of the district court proceedings.” Olano, 507 U.S. at 734. “A defendant must thus satisfy

the judgment of the reviewing court, informed by the entire record, that the probability of a

different result is sufficient to undermine confidence in the outcome of the proceeding.” United

States v. Dominguez Benitez, 542 U.S. 74, 83 (2004) (citation and internal quotation marks

omitted).

Here, there is no evidence in the record that the absence of an interpreter affected

Mehmood’s understanding of the proceedings. At no point did Mehmood indicate to the district

court that the absence of an interpreter “inhibit[ed] [his] comprehension of the proceedings or

communication with counsel or the presiding judicial officer,” 28 U.S.C. § 1827(d)(1), nor did he

raise the issue in his motion for acquittal or new trial. On appeal, Mehmood does not point to any

difficulties communicating with his counsel or inability to understand the proceedings.

In contrast, the record demonstrates that Mehmood was able to successfully convey in

English his many objections and arguments to the district court at sentencing after he rejected the

assistance of an interpreter and waived his right to an attorney. The probation officer who

interviewed Mehmood also reported no difficulty communicating with him, noting that Mehmood

was fluent in both English and Punjabi. Thus, Mehmood has not carried his burden to demonstrate

plain error because he has failed to demonstrate any effect on his substantial rights.

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B. Mehmood - Sufficiency of the Evidence

Mehmood next argues that the district court erred in denying his motion for acquittal

because his convictions of money laundering, conspiracy to commit money laundering, and

obstruction of justice were not supported by sufficient evidence. Specifically, he argues that:

(1) “the government failed to produce sufficient evidence that the animating purpose of the bank

transactions was concealment for a prohibited purpose under the money laundering statute rather

than mere facilitation of the underlying health care fraud violations”; and (2) “the government

failed to produce sufficient evidence to prove that Mehmood concealed patient files for the purpose

of obstructing his prosecution for health care fraud.” (Mehmood Br. at 25, 29.)

We review de novo the denial of a motion for acquittal. United States v. Graham, 622 F.3d

445, 448 (6th Cir. 2010). When considering a challenge to the sufficiency of the evidence, “the

relevant question is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). “All reasonable inferences

and resolutions of credibility are made in the jury’s favor.” United States v. Tragas, 727 F.3d 610,

617 (6th Cir. 2013) (citation omitted). We may not “weigh the evidence presented, consider the

credibility of witnesses, or substitute our judgment for that of the jury.” United States v. M/G

Transp. Servs., Inc., 173 F.3d 584, 588-89 (6th Cir. 1999) (citation omitted).

1. Money Laundering

To find Mehmood guilty of money laundering, the jury was required to find beyond a

reasonable doubt that Mehmood engaged in “a financial transaction . . . involv[ing] proceeds from

specified unlawful activity” “knowing that the transaction is designed in whole or in part to conceal

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or disguise the nature, the location, the source, the ownership, or the control of the proceeds.”

18 U.S.C. § 1956(a)(1)(B)(1).7

Mehmood argues that the financial transactions at issue—executing and cashing two

checks drawn on Exclusive’s bank account, pre-signed by Alam, and made out and delivered by

Mehmood to his intermediary, Tausif Rahman, for payment of kickbacks to recruiters and for

Mehmood’s personal use—were not “designed to conceal.” Rather, he argues, the transactions

merely furthered the underlying fraud scheme, and the government failed to present sufficient

evidence that concealment was one of the purposes that drove Mehmood to engage in the

transactions in the first place.

Mehmood is correct that to prove money laundering, “it is not enough for the government

to prove merely that a transaction had a concealing effect,” or “that the transaction was structured

to conceal the nature of illicit funds.” United States v. Faulkenberry, 614 F.3d 573, 586 (6th Cir.

2010). “Concealment—even deliberate concealment—as mere facilitation of some other purpose

[e.g., fraud], is not enough to convict. . . . What is required, rather, is that concealment be an

animating purpose of the transaction.” Id. We conclude that the evidence, viewed in the light

most favorable to the government, was sufficient for the jury to find that concealment was an

animating purpose of Mehmood’s transactions.

As Mehmood concedes, his “businesses could not make the payments directly to the

marketers due to the anti-kickback provisions of federal law.” (Mehmood Br. at 28.) Instead, to

circumvent the law, the payments were made indirectly through Mehmood’s shell company.

A rational juror could thus infer that Mehmood set up the shell company and structured the

transactions to avoid being directly linked to the payments and evade detection, and that

7 The Supreme Court has held that the word “designed” requires proof of a purpose. Cuellar v. United States, 553 U.S. 550, 563-64 (2008).

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Mehmood’s animating purpose was “to cleanse the funds of their fraudulent taint.” United States

v. Patel, 651 F. App’x 468, 473 (6th Cir. 2016). And because “purpose and structure are often

related[,]” Cuellar, 128 S.Ct. at 2004, “proof that a transaction was structured to conceal a listed

attribute[8] of the funds can yield an inference that concealment was a purpose of the transaction.”

Faulkenberry, 614 F.3d at 586 (citation omitted).

Additionally, because Mehmood kept some of the money for his personal use, facilitation

of the health-care fraud was not the only purpose of the transactions. Concealment need not be

the only or dominant purpose of the transaction; the statute requires only that the transaction be

designed “in whole or in part” to conceal. 18 U.S.C. § 1956(a)(1)(B). Here, Rahman testified that

Mehmood directed him to cash the two checks at issue and return a portion of the money to

Mehmood.9 Thus, viewing the evidence in the light most favorable to the prosecution, we conclude

that there was sufficient evidence that concealment was, at least partially, an animating purpose

for conducting the transactions rather than merely a mechanism used solely to facilitate the health-

care fraud.

8 “Listed attribute” refers to the nature, the location, the source, the ownership, or the control of the proceeds. Cuellar, 553 U.S. at 559. 9 Q. All right. This check is written out to you? A. Yes. Q. Do you know whether this money was for you? A. No. Q. What was this money for, to your recollection? A. I actually had this check deposited into my account and I gave the cash to Mr. Zafar Mehmood. Q. And why did you do that? A. I was told by Mr. Mehmood. ... Q. If we could look at the check. What is that? A. That’s the check written to me in the amount of $5,000. ... Q. And what were your instructions for Mr. Mehmood to do with it? A. To use it for the marketing. Q. Or for him? A. Or for him. (R. 319, PID 8579-82.)

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2. Obstruction of Justice

To find Mehmood guilty of obstructing justice, the jury was required to find beyond a

reasonable doubt that Mehmood (1) “altered, destroyed, mutilated, or concealed a record,

document, or other object;” (2) “acted knowingly;” (3) “acted corruptly;” and (4) “acted with the

intent to impair the record, document, or object’s integrity or availability for use in an official

proceeding.” 18 U.S.C. § 1512(c)(1).

The government presented evidence that although Mehmood was detained pending trial he

was granted temporary release from custody to accompany his attorneys to the office of the U.S.

Department of Health and Human Services (“HHS”) in Detroit to prepare for trial and review

original patient records and other materials seized from Mehmood’s companies. HHS discovered

that certain incriminating, original pages were missing following Mehmood’s three visits and law

enforcement found these pages in Mehmood’s cell upon executing a search warrant.

At trial, the government presented evidence that the original patient files had been scanned

by the government prior to Mehmood’s examination of those files at HHS. The government

argued: “we’re able to take both what was left after Mehmood’s visit [to HHS,][(Ex. 352)], as well

as the documents that were seized from Mr. Mehmood’s cell[, (Ex. 350A)], and if we put them

together, they match exactly” to the scan of the original records produced before Mehmood’s visit

to HHS, (Ex. 351). (R. 322, PID 9340.) Specifically, the government focused on the file of Janie

Drake, comparing a scanned version of the Drake file made before Mehmood’s visit, to a version

of the original Drake file scanned immediately after Mehmood’s visit, (Ex. 352), to reveal the

missing pages. The missing pages, (Ex. 350A), were later found in Mehmood’s cell.

Mehmood now seizes on the government’s argument at trial that the pre- and post-HHS-

visit scans “match[ed] exactly.” (R. 322, PID 9340.) He argues that because the two scans contain

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certain dissimilarities, they do not “match exactly,” and thus Exhibit 351 cannot be a reliable

representation of the contents of the Drake file as originally seized. (Mehmood Br. at 34 (“In light

of the dissimilarities . . . , the case agent’s testimony that Exhibit 351 is a scanned duplicate of the

original Drake file viewed by Mehmood at the HHS field office ‘defies physical realities’ and

‘contradicts indisputable physical facts.’” (citing United States v. Farley, 2 F.3d 645, 652 (6th Cir.

1993)).) Stated differently, Mehmood argues that the dissimilarities prove that “Exhibit 351 and

Exhibit 352 . . . were not created from the same physical document,” (Mehmood Reply Br. at 15),

and thus Exhibit 351 “should be excluded from this Court’s review of the sufficiency of the

evidence.” (Mehmood Br. at 34.)10

Mehmood’s argument fails. First, the complained-of dissimilarities are minute: stray pen

marks, additional or misaligned punch holes, additional staple marks or staple marks in different

locations, a speck of dust or stray piece of lint, or slight discoloration or stains. Mehmood

identifies no substantive differences between the two scans. And the differences he does point to

do not make Exhibit 351 inherently unreliable because the scans were made of the originals at

different times and after they were reviewed and handled.

Second, Mehmood did not make this argument to the jury, did not explore the alleged

dissimilarities at trial, and did not raise the issue in his motion for acquittal. He never argued, as

he does now, that certain dissimilarities undermined the authenticity of the exhibit. Instead, he

asks that we draw our own conclusions about the scans and “give no weight to this evidence

because it is irreconcilable with the physical facts.” (Mehmood Reply Br. at 10.) We decline to

entertain Mehmood’s argument about the alleged dissimilarities because “it is the responsibility of

the jury—not the court—to decide what conclusions should be drawn from evidence admitted at

10 Mehmood also separately argues that the district court abused its discretion in admitting Exhibit 351, addressed infra.

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trial.” Cavazos v. Smith, 565 U.S. 1, 2 (2011). “[T]he court cannot substitute its judgment of the

evidence or the facts for that of the jury, since ascertaining the facts is within the exclusive province

of the latter.” 9B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2524

(4th ed.); see also United States v. M/G Transp. Servs., Inc., 173 F.3d 584, 588-89 (6th Cir. 1999).11

Mehmood also points to other evidence he argues undermines his obstruction conviction,

such as testimony that: (1) neither Mehmood’s attorney nor the HHS agents saw Mehmood take

any patient files from the HHS office; (2) “Medicaid providers may have legitimate business

reasons to create multiple copies of a patient file”; and (3) Mehmood’s attorneys had given him

copies of patient records that he kept in his cell. (Mehmood Br. at 34-35.) But the jury heard this

testimony and chose to give it little weight. Instead, the jury permissibly credited the testimony

of the FBI agent who executed the search of Mehmood’s cell and who testified that the pages

recovered from Mehmood’s cell were the missing originals because “the paper was indented as if

being pressed by a point of . . . a pen,” and because they contained an original, handwritten “sticky

note” attached to the documents, as opposed to a photocopy of the note, and, thus, the recovered

pages could not have been copies given to Mehmood by his attorneys or made at Mehmood’s

companies before his arrest. (R. 323, PID 9504-06; 9509-10.)

Thus, we conclude that the evidence was sufficient for the jury to find beyond a reasonable

doubt that Mehmood attempted to obstruct justice by removing certain incriminating patient files

from HHS.

11 Mehmood relies on a Sixth Circuit case stating that “[w]here testimony is patently incredible or defies physical realities, it may be rejected by the court, despite the jury’s evaluation.” United States v. Farley, 2 F.3d 645, 652 (6th Cir. 1993). But as Farley explained, “[t]he exception is an extremely narrow one . . . and can be invoked only where the testimony contradicts indisputable physical facts or laws.” Id. (citation omitted). The testimony of an HHS agent that Exhibit 351 was scanned before Mehmood’s visit is not contrary to any indisputable facts. And the agent did not testify that the two scans “match exactly” – that was argued by the government. Thus, no exceptional circumstances exist to reject the testimony of the agent. The fact that the post-visit version contains some insignificant dissimilarities is not inconsistent with the HHS agent’s testimony that Exhibit 351 is a scanned duplicate of the original Drake file.

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C. Mehmood - Admission of Exhibit 351

Next, Mehmood argues that the district court abused its discretion in admitting Exhibit 351

because the exhibit was not properly authenticated and the government failed to establish a proper

chain of custody.

We review the district court’s evidentiary rulings for an abuse of discretion, which occurs

when the district court “relies on clearly erroneous findings of fact, improperly applies the law, or

employs an erroneous legal standard,” Griffin v. Finkbeiner, 689 F.3d 584, 592 (6th Cir. 2012)

(internal quotation marks omitted), or “when we are firmly convinced that a mistake has been

made, i.e., when we are left with a definite and firm conviction that the trial court committed a

clear error of judgment.” United States v. Heavrin, 330 F.3d 723, 727 (6th Cir. 2003) (citation

“To satisfy the requirement of authenticating or identifying an item of evidence, the

proponent must produce evidence sufficient to support a finding that the item is what the proponent

claims it is.” Fed. R. Evid. 901. Similarly, “[t]o establish a chain of custody sufficient to make

evidence admissible, the proponent need only prove a rational basis from which to conclude that

the evidence is what the party claims it to be.” United States v. Rawlins, 606 F.3d 73, 82 (3d Cir.

2010) (internal quotation marks omitted). See also 2 McCormick On Evid. § 213 (7th ed.) (“The

standard of proof requires only evidence from which the trier could reasonably believe that an item

still is what the proponent claims it to be.”). The possibility of misidentification or alteration must

be “eliminated, not absolutely, but as a matter of reasonable probability.” United States v. Allen,

106 F.3d 695, 700 (6th Cir. 1997) (citation omitted).

Here, Exhibit 351 was authenticated by HHS agent James Grzeszczak, who testified how

the patient records were obtained, maintained, and tracked, and that they had been scanned before

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Mehmood’s visit to the HHS, a copy produced to the defense in discovery, and the originals viewed

by the defense at HHS. Mehmood, however, calls into question the authenticity of the exhibit

because of the minimal differences between the two scans. But “foundational requirements are

essentially requirements of logic, and not rules of art. Thus, even an altered item of real evidence

may still be admissible if the pertinent features which make it probative remain unchanged.”

2 McCormick On Evid. § 213 (7th ed.). Here, aside from the minor dissimilarities, the pertinent

features of the files remained unchanged. As caselaw makes clear, Mehmood must do more than

“merely rais[e] the possibility of tampering or misidentification . . . to render evidence

inadmissible.” United States v. Combs, 369 F.3d 925, 938 (6th Cir. 2004) (citation omitted). And,

as discussed, those dissimilarities were not brought to the district court’s attention.

Mehmood next argues that “[t]here was a total failure to establish a chain of custody for

Exhibit 351,” because “[d]uring cross-examination, the case agent was unable to provide even

basic information regarding the source document used to prepare the duplicate, the date on which

it was scanned, or the identity of the individual who did the scanning.” (Mehmood Br. at 38.) But

“challenges to the chain of custody go to the weight of evidence, not its admissibility.” Combs,

369 F.3d at 938 (citation omitted). And “[w]here there is no evidence indicating that tampering

with the exhibits occurred, courts presume public officers have discharged their duties properly.”

Allen, 106 F.3d at 700. Further, Mehmood misunderstands both the applicable evidentiary

standard and the role of the judge. “Rule 901 does not erect a particularly high hurdle, and the

proponent of the evidence is not required to rule out all possibilities inconsistent with authenticity,

or to prove beyond any doubt that the evidence is what it purports to be.” United States v. Dhinsa,

243 F.3d 635, 658 (2d Cir. 2001). “The authenticity of an exhibit is not a question of the

application of a technical rule of evidence. It goes to genuineness and conditional relevance . . . .

-15- Nos. 16-2639/2641/2649, Unites States v. Mehmood et al.

Thus, the function of the judge is to ensure that there is sufficient evidence of authenticity, and the

ultimate determination of whether to believe that evidence is left for the jury.” 2 McCormick On

Evid. § 212 n.19 (7th ed.).

Thus, the district court did not abuse its discretion in admitting Exhibit 351.

D. Mehmood - Guidelines Calculation

Mehmood next argues that his 360-month sentence is procedurally unreasonable because

the district court erroneously calculated his advisory Guideline imprisonment range. Specifically,

Mehmood argues that the district court: (1) erroneously applied an excessive-loss enhancement;

(2) violated a double-counting prohibition against overlapping sophisticated-means and

sophisticated-laundering enhancements; (3) erroneously applied a second obstruction-of-justice

enhancement; and (4) violated the Ex Post Facto Clause of Art. 1, § 10 of the U.S. Constitution

by imposing a health-care-fraud enhancement.

We review sentences for procedural and substantive reasonableness under an abuse-of-

discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). The district court’s conclusions

of law are reviewed de novo, while its findings of fact are reviewed for clear error. United States

v. Moon, 513 F.3d 527, 539-40 (6th Cir. 2008).

1. Loss Enhancement

Under the Guidelines, a defendant’s offense level is adjusted according to the amount of

loss12 involved in the offense. U.S.S.G. § 2B1.1(b)(1). Where, as here, the district court

determines that the loss is more than $25,000,000 but less than $65,000,000, the base offense level

is increased by 22 levels. Id. § 2B1.1(b)(1)(L). Mehmood challenges that finding and argues that

12 The amount of loss “is the greater of actual or intended loss.” U.S.S.G. § 2B1.1 cmt. n.3(A). “Actual loss” is “the reasonably foreseeable pecuniary harm” resulting from the offense. Id. § 2B1.1 cmt. n.3(A)(i). “Intended loss” is the pecuniary harm that was intended to result from the offense, even if “impossible or unlikely to occur.” Id. § 2B1.1 cmt. n.3(A)(ii).

-16- Nos. 16-2639/2641/2649, Unites States v. Mehmood et al.

the district court erred when it “use[d] the gross amount of Medicare claims, rather than the net

gain . . . to calculate the loss.”13 (Mehmood Br. at 44.)

We review the district court’s fact findings regarding loss for clear error and its

methodology for calculating loss de novo. United States v. McCarty, 628 F.3d 284, 290 (6th Cir.

2010). The district court is to determine the amount of loss by a preponderance of the evidence.

United States v. Triana, 468 F.3d 308, 320, 321 (6th Cir. 2006) (citation omitted). In cases

involving fraud, the district court “need only make a reasonable estimate of the loss. The

sentencing judge is in a unique position to assess the evidence and estimate the loss based upon

that evidence. For this reason, the [district] court’s loss determination is entitled to appropriate

deference.” U.S.S.G. § 2B1.1, cmt. n. 3(C). Further,

[i]n a case in which the defendant is convicted of a Federal health care offense involving a Government health care program, the aggregate dollar amount of fraudulent bills submitted to the Government health care program shall constitute prima facie evidence of the amount of the intended loss, i.e., is evidence sufficient to establish the amount of the intended loss, if not rebutted.

U.S.S.G. § 2B1.1, cmt. n.3(F)(viii).

Here, the district court took a different approach in concluding that the full amount of gross

billings submitted by Mehmood’s companies between 2006 and 2011—$47,219,535.47—

constituted loss for sentencing purposes. (R. 279, 5163-70; 5193-94.) The district court

determined that none of Mehmood’s claims were legitimate—and thus could not be offset against

13 Mehmood relies on two cases that are of no help. He first relies on United States v. Fowler, 819 F.3d 298, 307 (6th Cir. 2016), but Fowler involved loss calculation for the purposes of restitution, not for sentencing purposes. Mehmood also relies on United States v. White, 492 F.3d 380 (6th Cir. 2007), in arguing that “the net-gain method for calculating loss applies in instances where the defendant is convicted of violating a Medicare rule despite having certified that he would comply with the rules.” (Mehmood Br. at 45.) But White does not stand for that proposition. The case held only that courts should, “to the extent practicable, adopt the ‘net gain’ method for calculating loss where a party is convicted of Medicare fraud due to violations of [Medicare’s] ‘related party’ rule” – a rule not at issue here. White, 492 F.3d at 417. And the Guidelines clearly state that [t]he court shall use the gain that resulted from the offense as an alternative measure of loss only if there is a loss but it reasonably cannot be determined.” U.S.S.G. 2B1.1, cmt. 3(B).

-17- Nos. 16-2639/2641/2649, Unites States v. Mehmood et al.

the aggregate billings—because Mehmood obtained access to the Medicare program by certifying

that he would not engage in kickbacks “without any intention of living up to” that promise.

(R. 279, PID 5164.) Indeed, testimony at trial established that Medicare would not have paid any

of Mehmood’s claims, including any legitimate ones, if Mehmood had disclosed his fraudulent

scheme.

However, this approach is unsupported. The Eleventh Circuit has expressly rejected loss

calculations based solely on a defendant’s false representations to Medicare about the defendant’s

intent to follow Medicare’s anti-kickback rules, and we do as well. United States v. Medina,

485 F.3d 1291, 1304 (11th Cir. 2007) (“Even though [the government’s Medicare witness]

testified that Medicare would not pay a claim if they knew parties were receiving kickbacks, this

is not sufficient to establish a loss to Medicare.”). As the Guidelines state, “the aggregate dollar

amount of fraudulent bills submitted to the Government health care program shall constitute prima

facie evidence of the amount of the intended loss.” U.S.S.G. § 2B1.1, cmt. n.3(F)(viii) (emphasis

added). Thus, to calculate loss for sentencing purposes, the value of any legitimate claims, if

established, must be offset against the aggregate billings.

Here, the defense elicited testimony from multiple therapists, nurses, and counselors

regarding legitimate medical services rendered to home-bound patients.14 The district court,

however, failed to consider that testimony; instead, it relied on its belief that Mehmood’s

fraudulent representations to Medicare allowed it to count all claims as losses without first

considering whether any medical services claimed were legitimate.

The government defends the district court’s error as harmless. To be sure, to qualify for a

lower offense level, Mehmood would have to show that the district court’s loss finding was wrong

14 Even the government’s main witness, Rahman, testified that not all services were illegitimate.

-18- Nos. 16-2639/2641/2649, Unites States v. Mehmood et al.

by at least $15 million. See U.S.S.G. § 2B1.1(b)(1)(K). However, “[a]n error with respect to the

loss calculation is a procedural infirmity that typically requires remand.” United States v.

Warshak, 631 F.3d 266, 328 (6th Cir. 2010) (citing Gall v. United States, 552 U.S. 38, 51 (2007)).

Here, we cannot say that the error is clearly harmless.

2. Obstruction-of-Justice Enhancements

Mehmood next argues that the district court erred when it applied a two-level enhancement

for obstruction of justice under U.S.S.G. § 3C1.1 and a three-level enhancement under § 3C1.3 for

committing an offense while on release. The government concedes that the application of both

enhancements was error, and that the district court should not have applied § 3C1.3. Thus, on

remand for resentencing, the district court must recalculate Mehmood’s offense level without the

§ 3C1.3 enhancement.

3. Ex Post Facto Violation

Mehmood next argues that the district court’s use of a 2011 Guidelines manual at

sentencing constituted an ex post facto violation because that manual included an enhancement

under § 2B1.1(b)(7)(iii) for defrauding a government health-care program in an amount exceeding

$20 million that was added after Mehmood’s conspiracy concluded.

We review ex post facto challenges de novo. United States v. VanHoose, 437 F.3d 497,

500 (6th Cir. 2006). Generally, courts apply the Guidelines in effect at the time a defendant is

sentenced. Huff v. United States, 734 F.3d 600, 608 (6th Cir. 2013). However, “if the court

determines that use of the Guidelines Manual in effect on the date that the defendant is sentenced

would violate the Ex Post Facto Clause of the United States Constitution, the court shall use the

Guidelines Manual in effect on the date that the offense of conviction was committed.” U.S.S.G.

§ 1B.1.11(b)(1). “[A] violation of the Ex Post Facto Clause occurs ‘when a defendant is sentenced

-19- Nos. 16-2639/2641/2649, Unites States v. Mehmood et al.

under Guidelines promulgated after he committed his criminal acts and the new version provides

a higher applicable Guidelines range than the version in place at the time of the offense.’” Huff,

734 F.3d at 608 (quoting Peugh v. United States, 133 S. Ct. 2072, 2078 (2013)).

The effective date of the § 2B1.1(b)(7)(iii) enhancement was November 1, 2011, when the

2011 Guidelines manual went into effect. Mehmood’s indictment for health-care-fraud and

money-laundering conspiracies, returned on November 1, 2011, stated that the conspiracies ended

“in or around November 2011.” (R. 42, PID 350, 353.) Mehmood was arrested on November 3,

2011.

At sentencing, the district court held that the 201115 Guidelines manual applied because

“[t]o avoid this, Mr. Mehmood would have had to affirmatively withdraw from the conspiracy.

Now, he was arrested on November 3rd of 2011, which was after the effective date of the 2011

guidelines. And there’s no evidence that Mr. Mehmood affirmatively withdrew whatsoever from

the health care fraud conspiracy.” (R. 279, PID 5202.) Mehmood argues, however, that “[s]ince

there was no proof that the conspiracy was still in existence on the date the 4-level health care

fraud enhancement went into effect, the burden never shifted to Mehmood to prove that he

withdrew from the conspiracy.” (Mehmood Reply Br. at 22.) Mehmood’s argument finds no

support in caselaw.

Because “conspiracy is a continuing offense, a defendant who has joined a conspiracy

continues to violate the law through every moment of the conspiracy’s existence.” Smith v. United

States, 568 U.S. 106, 111 (2013) (internal quotation marks and citations omitted). Thus, a

defendant who is convicted of a conspiracy that began before, but continued after, a Guidelines

amendment became effective may be sentenced based on the amendment without triggering any

15 There was some dispute whether to use the 2011 or 2015 manual, but that is irrelevant here because both manuals contain the enhancement at issue.

-20- Nos. 16-2639/2641/2649, Unites States v. Mehmood et al.

ex post facto concerns. United States v. Aviles, 518 F.3d 1228, 1230 (11th Cir. 2008).

“A defendant may escape the more severe amended penalty by withdrawing from the conspiracy

prior to the effective date of the amend[ed Guidelines].” Id. at 1232; see also United States v.

Romans, 823 F.3d 299, 320 (5th Cir. 2016); United States v. Vallone, 752 F.3d 690, 696 (7th Cir.

2014). To establish withdrawal from conspiracy, “a defendant must show that he or she took

affirmative action to defeat or disavow the purpose of the conspiracy.” United States v. Lash, 937

F.2d 1077, 1083 (6th Cir. 1991).

The defendant knows what steps, if any, he took to dissociate from his confederates. He can testify to his act of withdrawal or direct the court to other evidence substantiating his claim. It would be nearly impossible for the Government to prove the negative that an act of withdrawal never happened.

Smith, 568 U.S. at 113 (internal citation, quotation marks, and alterations omitted).

Here, Mehmood did not argue or present any evidence at sentencing that he took

affirmative steps to disavow or defeat the purpose of the conspiracy prior to the effective date of

the enhancement at issue.16 Because Mehmood has not carried his burden of proving that he had

withdrawn from the conspiracy before the amended Guidelines went into effect, we reject his ex

post facto challenge.

4. Sophisticated-Means and Sophisticated-Laundering Enhancements

Mehmood argues that the district court impermissibly double-counted when it applied a

two-level enhancement for “sophisticated laundering” under U.S.S.G. § 2S1.1(b)(3) and a two-

16 In fact, the evidence seized during the search of Mehmood’s businesses on November 3, 2011, suggests that the conspiracy continued until Mehmood’s arrest. For example, photographs of Mehmood’s offices taken during the search on November 3, 2011 show that Mehmood continued to employ the same means to avoid detection. In any event, Mehmood does not challenge the sufficiency of the evidence of his health-care-conspiracy conviction and he did not present any evidence at trial that he had withdrawn from the conspiracy, despite having the burden to establish this defense. Smith, 568 U.S. at 110-13.

-21- Nos. 16-2639/2641/2649, Unites States v. Mehmood et al.

level enhancement for a fraudulent scheme involving “sophisticated means” under U.S.S.G.

§ 2B1.1(b)(10)(C).

Although Mehmood failed to preserve this claim below, the government does not assert

forfeiture or waiver. The Guidelines provide that the application of both enhancements is improper

when the same conduct forms the basis of each enhancement. U.S.S.G. § 2S1.1, n.5(B).17 On

resentencing, the district court should address the propriety of the dual enhancement under the

Guideline.

E. Mehmood - Restitution and Forfeiture

Finally, Mehmood argues that the district court’s restitution and forfeiture orders are

erroneous because they rest on an erroneous loss determination.

The district court ordered Mehmood to pay $40,488,106.98 in restitution and ordered

forfeiture in that amount, relying on the calculations of loss under the Guidelines. Although

restitution and loss are not one and the same, it is permissible for the district court to base its order

of restitution on the actual loss calculated for the purpose of sentencing. United States v. Boring,

557 F.3d 707, 713 (6th Cir. 2009); United States v. Finkley, 324 F.3d 401, 404 (6th Cir. 2003).

However, because we conclude that the district court erred in calculating loss, we also remand for

recalculation of the amount of restitution and forfeiture. See United States v. Stein, 846 F.3d 1135,

1153 (11th Cir.), cert. denied, 138 S. Ct. 556 (2017) (remanding for recalculation of both loss and

restitution where the district court based its restitution order on an erroneous calculation of the

actual loss figure); United States v. Radziszewski, 474 F.3d 480, 487 (7th Cir. 2007) (same).

17 Note 5(B) states: If subsection (b)(3) applies, and the conduct that forms the basis for an enhancement under the guideline applicable to the underlying offense is the only conduct that forms the basis for application of subsection (b)(3) of this guideline, do not apply subsection (b)(3) of this guideline.

-22- Nos. 16-2639/2641/2649, Unites States v. Mehmood et al.

F. Ahmadani - Motion for Severance

Ahmadani first argues that the district court erred by not severing Defendants’ trials.

However, Ahmadani never asked to be tried separately from Mehmood. Rather, he unsuccessfully

sought to have Mehmood’s obstruction charge severed from his and Mehmood’s joint health-care-

fraud trial. Ahmadani now argues for the first time that he and Mehmood should not have been

tried together at all. Because that argument was not preserved below, we review it for plain error.

Federal Rule of Criminal Procedure 8(b) allows for the joinder of defendants who “are

alleged to have participated in the same act or transaction, or in the same series of acts or

transactions, constituting an offense.” The Supreme Court has commented that Rule 8(b) is meant

“to promote economy and efficiency and to avoid a multiplicity of trials.” Zafiro v. United States,

506 U.S. 534, 540 (1993) (citation omitted). Even when joinder is proper, however, a court may

“order separate trials of counts, sever the defendants’ trials, or provide any other relief that justice

requires,” if a joint trial “appears to prejudice a defendant or the government.” Fed. R. Crim. P.

14(a). Severance is only required if there is “a serious risk that a joint trial would compromise a

specific trial right of one of the defendants, or prevent the jury from making a reliable judgment

about guilt or innocence.” Zafiro, 506 U.S. at 539. But it is “well settled that defendants are not

entitled to severance merely because they may have a better chance of acquittal in separate trials.”

Id. at 540.

Here, Ahmadani fails to show “specific and compelling prejudice that would mislead and

confuse the jury in the absence of a separate trial.” Walls, 293 F.3d at 966. First, except for

witnesses testifying about Mehmood’s obstruction of justice, Ahmadani fails to point to any

testimony that would have been excluded at his separate trial. Second, a spillover of evidence does

not require severance, Lopez, 309 F.3d, at 971, and may be cured by limiting instructions. Zafiro,

-23- Nos. 16-2639/2641/2649, Unites States v. Mehmood et al.

506 U.S. at 539. The district court specifically instructed the jury that the obstruction charge did

not relate to Ahmadani. (R. 323, PID 9442 (“You can only consider this testimony against

Defendant Zafar Mehmood. You cannot consider it in any way against Defendant Badar

Ahmadani.”).) The district court, and the government as well, repeated this instruction several

times, and “juries are presumed to follow their instructions.” Zafiro, 506 U.S. at 540 (citation

omitted). Third, Ahmadani does not argue that any particular testimony was so confusing that “a

jury could [not] reasonably be expected to sort out the evidence.” United States v. Crotinger,

928 F.2d 203, 206 (6th Cir. 1991). And, in any case, any confusion “must be balanced against

society’s interest in speedy and efficient trials.” Walls, 293 F.3d at 967. Fourth, even if Ahmadani

can show some prejudice given that Mehmood attempted to obstruct justice by stealing records of

Ahmadani’s patient, “Rule 14 does not require severance even if prejudice is shown; rather, it

leaves the tailoring of the relief to be granted, if any, to the district court’s sound discretion.”

Zafiro, 506 U.S. at 538-39.

Thus, we conclude that the district court did not plainly err when it joined Mehmood’s and

Ahmadani’s trials.

G. Ahmadani - Confrontation Clause

Ahmadani next argues that admitting statements Mehmood made during an interview with

law enforcement violated Ahmadani’s Confrontation Clause rights under Bruton v. United States,

391 U.S. 123 (1968), because those statements implicated Ahmadani.

We review de novo claims that the admission of evidence violated the Confrontation

Clause. United States v. Johnson, 581 F.3d 320, 325 (6th Cir. 2009). In Bruton, the Supreme

Court held that “[a]n accused is deprived of his rights under the Confrontation Clause when the

confession of a nontestifying codefendant that implicates the accused is introduced into evidence

-24- Nos. 16-2639/2641/2649, Unites States v. Mehmood et al.

at their joint trial . . . even if the jury is instructed to consider the confession only as evidence

against the codefendant.” United States v. Cope, 312 F.3d 757, 780-81 (6th Cir. 2002) (citing

Bruton, 391 U.S. at 137).18 Bruton was later refined by Richardson v. Marsh, 481 U.S. 200, 208

(1987), which limited Bruton’s reach to statements that expressly implicate the co-defendant and

are “incriminating on [their] face,” as opposed to statements “requiring linkages.”

Here, concerned about potential Bruton violations, the district court ordered that

Mehmood’s statements be redacted to eliminate any reference to Ahmadani or the company he co-

owned, HOH. Ahmadani, however, argues that “[t]he statements by Mehmood [were] clearly

accusatory as to Ahmadani, even without mentioning Ahmadani’s name or HOH.” (Ahmadani

Br. at 28.) But he does not point to any specific admitted statements, nor does he develop his

argument any further. Our independent review of the trial testimony regarding Mehmood’s

interview with law enforcement does not reveal any statements that expressly implicated

Ahmadani or were incriminating on their face.

Ahmadani also argues that the district court erred when it admitted some, but not all, of the

statements Ahmadani made during his interview with law enforcement. Ahmadani claims that the

district court should have allowed the remaining statements under the completeness rule of Federal

Rule of Evidence 106 because his statements were “exculpatory.” (Ahmadani Br. at 28.) Although

“[o]ut-of-court statements made by a party-opponent are an exception to the general hearsay rule,”

“[t]his hearsay exception does not . . . extend to a party’s attempt to introduce his or her own

statements through the testimony of other witnesses.” United States v. Ford, 761 F.3d 641, 651-

52 (6th Cir. 2014) (citation and quotations marks omitted). “Precluding a defendant from eliciting

18 Because Bruton is premised on the Confrontation Clause, it applies only to testimonial statements. United States v. Arnold, 486 F.3d 177, 192-93 (6th Cir. 2007) (en banc). Here, the government does not argue that the statements were nontestimonial.

-25- Nos. 16-2639/2641/2649, Unites States v. Mehmood et al.

inadmissible hearsay statements does not violate the Confrontation Clause.” Id. at 652. And

“[e]xculpatory hearsay may not come in solely on the basis of completeness.” United States v.

Adams, 722 F.3d 788, 826 (6th Cir. 2013). Further, although the statements Ahmadani sought to

add were exculpatory, their omission did not render the testimony misleading or unfair.

Thus, Ahmadani’s Confrontation Clause and Rule 106 challenges lack merit.

H. Ahmadani - Loss Calculation

Ahmadani next argues that the amount of loss attributable to him—$38,150,113.64—and

the resulting twenty-two-level enhancement were erroneous because his liability should be limited

to the claims Medicare paid to HOH and only for the period in which he was listed as the co-owner

of HOH.19

We review the method used to calculate loss de novo and any factual determinations for

clear error. United States v. Wendlandt, 714 F.3d 388, 393 (6th Cir. 2013).

The jury found Mehmood and Ahmadani guilty of conspiracy to commit health-care fraud

and conspiracy to offer, pay, solicit, and receive kickbacks. Thus, as Mehmood’s co-conspirator,

pursuant to U.S.S.G. § 1B1.3(a)(1)(B), Ahmadani’s Guideline range was to be determined in part

based on:

all acts and omissions of [Mehmood] that were: (i) within the scope of the jointly undertaken criminal activity, (ii) in furtherance of that criminal activity, and (iii) reasonably foreseeable in connection with that criminal activity; that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense[.]

Application Note Three to U.S.S.G. § 1B1.3 sets out a test that must be satisfied before a

defendant is held accountable for the conduct of others. First, the district court must make

particularized findings about “the scope of the defendant’s agreement.” United States v. Campbell,

At most, he argues, he should be responsible for $6,723,828 – the total amount in claims paid by Medicare 19

to HOH during Ahmadani’s co-ownership of HOH from 2007 to 2008.

-26- Nos. 16-2639/2641/2649, Unites States v. Mehmood et al.

279 F.3d 392, 400 (6th Cir. 2002); U.S.S.G. § 1B1.3(a)(1)(B) & cmt. n.3. This finding

“differentiate[s] between co-conspirators’ varying degrees of culpability.” Campbell, 279 F.3d at

400. The district court may consider “any explicit agreement or implicit agreement fairly inferred

from the conduct of the defendant and others,” U.S.S.G. § 1B1.3 cmt. n.3(B), but mere

“aware[ness] of the scope of the overall operation” is insufficient, Campbell, 279 F.3d at 400.

Second, the district court must make particularized findings about “the foreseeability of [the] co-

conspirators’ conduct.” Id. Only conduct reasonably foreseeable to the particular defendant may

be attributed to him. United States v. Orlando, 281 F.3d 586, 600 (6th Cir. 2002). Finally, even

if the defendant could reasonably foresee conduct in furtherance of the conspiracy, the loss from

that conduct will only be attributed to the defendant if the conduct falls within the scope of his

particular agreement. Campbell, 279 F.3d at 400.

Here, the district court failed to make a finding that Mehmood’s conduct was reasonably

foreseeable to Ahmadani and failed to make particularized findings with respect to the scope of

Ahmadani’s agreement, as required by Campbell and the relevant Guidelines Application Note.

Ahmadani did not object to the district court’s failure to abide by the above-mentioned

authority, nor does he object to it on appeal. Instead, the parties and the district court reasoned

that United States v. Shannon, 803 F.3d 778 (6th Cir. 2015) provides the appropriate framework.

But Shannon, which applied § 1B1.3(a)(2), has no application here. There, the defendant objected

to the district court’s reliance on the defendant’s own relevant conduct in calculating the loss, not

on the acts of a co-conspirator. The Guidelines are clear, however, that “in the case of a jointly

undertaken criminal activity,” the analysis begins with § 1B1.3(a)(1)(B). Thus, we review for, and

find, plain error. We remand for resentencing with instructions that the district court apply the

proper framework for analyzing the attribution of a co-conspirator’s conduct in calculating loss.

-27- Nos. 16-2639/2641/2649, Unites States v. Mehmood et al.

See, e.g., United States v. Harris, 636 F. App’x 922, 927 (6th Cir. 2016); United States v. Sullins,

529 F. App’x 584, 588 (6th Cir. 2013); United States v. Elias, 107 F. App’x 634, 637 (6th Cir.

2004); Campbell, 279 F.3d at 400.

I. Ahmadani - Ineffective Assistance of Counsel

Finally, Ahmadani argues that his conviction should be set aside because of his trial

counsel’s ineffective assistance. Specifically, he argues that his attorney failed to challenge the

joinder of the trials and “failed to make an appropriate argument at sentencing relating to the

amount of loss.” (Ahmadani Br. at 29.)

However, this court has “adopted a general rule that a defendant may not raise ineffective

assistance of counsel claims for the first time on direct appeal.” United States v. Ferguson,

669 F.3d 756, 762 (6th Cir. 2012) (citation, quotations marks, and alterations omitted)). And

Ahmadani fails to explain why this case presents the “rare instance[]” in which a defendant can

pursue a claim for ineffective assistance on direct appeal.20 United States v. Yisrael, 355 F. App’x

933, 934 (6th Cir. 2009).

Thus, we decline to rule on Ahmadani’s ineffective-assistance claim.

III. CONCLUSION

We AFFIRM Defendants’ convictions, VACATE their sentences, and REMAND for

resentencing.

20 Further, Ahmadani’s ineffective-assistance claim based on his counsel’s “fail[ure] to make an appropriate argument at sentencing relating to the amount of loss” is moot in light of our remand for resentencing.

-28-