Case: 09-20877 Document: 00511541529 Page: 1 Date Filed: 07/15/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 15, 2011
No. 09-20877 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA
Plaintiff–Appellee,
v.
KING ARTHUR; BOSE EBHAMEN; RHONDA FLEMING,
Defendants–Appellants.
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:07-CR-513-6
Before SMITH, DeMOSS, and OWEN, Circuit Judges.
PER CURIAM:*
King Arthur, Bose Ebhamen, and Rhonda Fleming were accused of
submitting fraudulent claims for durable medical equipment to Medicare and
Medicaid. A jury convicted each defendant of health care fraud and wire fraud,
as well as conspiracy to commit those crimes. Ebhamen and Fleming were
additionally convicted of money laundering. All three defendants appeal their
convictions on various grounds. Ebhamen and Fleming additionally challenge
their sentences. We affirm.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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I
Viewing the evidence in the light most favorable to the verdict, the jury
could have found the following facts beyond a reasonable doubt.1 Rhonda
Fleming, King Arthur, and Bose Ebhamen participated in a scheme to submit
false claims for durable medical equipment (DME) to Medicare and Medicaid
(together, Medicare).2 DME includes items such as wheelchairs, motorized
scooters and accessories, beds, walkers, and diabetic supplies. Companies
controlled by the defendants purchased and delivered very little DME, yet billed
Medicare for more than $34 million. All told, Medicare reimbursed over $5.8
million into accounts controlled by the defendants.
Rhonda Fleming was the central figure in the fraud scheme. She formed
a medical billing company, Advanced Medical Billing Specialists (AMBS), to
submit fraudulent claims to Medicare. In order to qualify for Medicare
reimbursement, each claim submitted must include the DME company’s supplier
number, as well as specific physician, patient, prescription, and cost information.
AMBS initially used the supplier number from a related DME company Fleming
had formed, but that supplier number was revoked shortly after Fleming formed
AMBS. Accordingly, Fleming purchased a supplier number from King Arthur,
the owner of Hi-Tech Medical Supply (Hi-Tech), in exchange for a promised
monthly salary of $13,000. Hi-Tech’s supplier number was revoked shortly after
Arthur and Fleming’s agreement, but Fleming discovered that Medicare would
reimburse claims with delivery dates prior to the revocation of Hi-Tech’s supplier
number. She therefore instructed her employees to submit backdated claims,
1
See, e.g., Jackson v. Virginia, 443 U.S. 307, 318-19 (1979).
2
The scheme described in this opinion targeted both Medicare and Medicaid, but most
of the money reimbursed by Medicaid was pursuant to Medicaid’s role as a secondary payor
for particular Medicare transactions. Because the identity of the payor is irrelevant to the
defendants’ convictions, we generally refer to the two federal programs as “Medicare.”
2
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providing them with handwritten “delivery tickets” containing fraudulent
information necessary to complete claims via Medicare’s electronic reporting
system.
Fleming later purchased another supplier number from Bose Ebhamen,
a part-owner of First Advantage Nursing (FAN). AMBS submitted fraudulent
claims on that number as well, including claims for dates of service prior to the
time Fleming contracted with Ebhamen. Fleming also purchased stolen patient
information from former employees to facilitate fraudulent billing on both the
Hi-Tech and FAN supplier numbers. Fleming, moreover, was intimately
involved in minute details of the fraud, requiring her employees to submit
frequent status reports and giving detailed instructions on how to submit claims.
Arthur and Ebhamen remained involved with the scheme after the initial
sale of their supplier numbers. Neither Arthur nor Ebhamen notified Medicare,
as they were required to do under Medicare regulations, of the sale of their
supplier numbers. Both remained as signatories on bank accounts in which
Medicare funds were deposited, and both derived, or attempted to derive,
significant financial benefits from the scheme. For example, Arthur arranged
for the Medicaid portion of reimbursements to be deposited in a separate account
over which he maintained sole control. Later, Arthur tried to withdraw over
$350,000 from his joint account with Fleming on the same day Fleming tried to
withdraw a similar amount. Ebhamen, meanwhile, wrote checks amounting to
more than $200,000 from the FAN account to AMBS, herself, and Chase Bank.
Fleming, Arthur, and Ebhamen were convicted of violating and conspiring3
to violate 18 U.S.C. § 1347 (health care fraud) and 18 U.S.C. § 1343 (wire fraud).
Fleming and Ebhamen were additionally convicted of money laundering in
violation of 18 U.S.C. §§ 1956, 1957. The district court sentenced Fleming,
3
18 U.S.C. § 371.
3
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Arthur, and Ebhamen to terms of imprisonment of 360, 95, and 135 months,
respectively. On appeal, each defendant argues that the evidence is insufficient
to sustain his or her individual convictions. Ebhamen brings forward six
additional issues, arguing that (1) certain counts of the indictment were
multiplicitous; (2) the district court should have given the jury a cautionary
instruction concerning evidence of regulatory violations; (3) the district court
improperly instructed the jury that knowledge could be established by deliberate
ignorance; (4) the prosecutor improperly impugned Ebhamen’s attorney’s
integrity; (5) the district court should have adjusted Ebhamen’s sentence
downward because she was a minor participant; and (6) the district court
improperly imposed a two-level increase for obstruction of justice. Proceeding
pro se, Fleming also argues that the district court erred by delivering the
deliberate ignorance instruction. Fleming raises more than forty additional
issues, which we address below.
II
Arthur, Ebhamen, and Fleming contend that they are entitled to
judgments of aquittal because the evidence was insufficient to prove the charges
for which they were convicted. While we review de novo properly preserved
sufficiency objections, our review is “narrow.”4 We ask only whether, “viewing
the evidence and the inferences that may be drawn from it in the light most
favorable to the verdict, a rational jury could have found the essential elements
of the offenses beyond a reasonable doubt.”5
A
We first address Arthur’s, Ebhamen’s, and Fleming’s contentions that the
evidence was insufficient to support their convictions for health care fraud and
4
United States v. Williams, 520 F.3d 414, 420 (5th Cir. 2008) (internal quotation marks
and citations omitted).
5
Id. (internal quotation marks and citation omitted).
4
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wire fraud, as well as conspiracy to commit those crimes. To obtain a conspiracy
conviction under 18 U.S.C. § 371, the Government must prove (1) an agreement
between two or more persons to pursue an unlawful objective; (2) the defendant
knew of the unlawful objective and voluntarily agreed to join the conspiracy; and
(3) one or more of the members of the conspiracy committed an overt act in
furtherance of the objective of the conspiracy.6 “The [G]overnment must prove
the same degree of criminal intent as is necessary for proof of the underlying
substantive offense.”7
To prove health care fraud under 18 U.S.C. § 1347, the Government must
prove (1) the defendant knowingly and willfully executed, or attempted to
execute, a scheme or artifice to (a) defraud any health care benefit program or
to (b) obtain by false or fraudulent pretenses, representations, or promises any
money or property owned by or under the custody or control of a health care
benefit program; and (2) the scheme or artifice was in connection with the
delivery of or payment for health care benefits, items, or services.8 Wire fraud
under 18 U.S.C. § 1343 requires the Government to prove: “(1) a scheme to
defraud and (2) the use of, or causing the use of, wire communications in
6
United States v. Elashyi, 554 F.3d 480, 496 (5th Cir. 2008).
7
United States v. Dadi, 235 F.3d 945, 950 (5th Cir. 2000).
8
18 U.S.C. § 1347; see also United States v. Martinez, 588 F.3d 301, 314 (6th Cir. 2009),
cert. denied, 131 S. Ct. 538 (2010).
5
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furtherance of the scheme.”9 Both health care fraud10 and wire fraud11 require
that the Government prove a “conscious knowing intent to defraud.”12
1
Arthur and Ebhamen do not contend that health care fraud and wire fraud
did not occur. Rather, Arthur and Ebhamen argue that the evidence is
insufficient to show that they had knowledge of the health care fraud scheme,
or the intent to defraud necessary to sustain their convictions for health care
fraud, wire fraud, and conspiracy to commit those crimes. Arthur also contends
that the evidence is insufficient to show that he had knowledge of the conspiracy
or the intent to join it.
We have set forth above evidence supporting the verdict under the
applicable standard, including Arthur’s and Ebhamen’s failure to notify
Medicare of the sale of their supplier numbers and the financial rewards they
reaped from participating in the scheme. The Government also presented ample
other evidence from which a rational jury could infer that Arthur and Ebhamen
had the requisite intent to defraud, and that Arthur had knowledge of, and
willingly participated in, the conspiracy. That evidence included testimony and
exhibits casting doubt on Arthur’s and Ebhamen’s assertions that they were
duped by Fleming into participating in an illegitimate business. For instance,
prior to contracting with Fleming, Arthur’s medical equipment business was
unsuccessful; he had never purchased a motorized wheelchair. Similarly,
9
United States v. Ingles, 445 F.3d 830, 838 (5th Cir. 2006) (internal quotation marks
and citation omitted).
10
See 18 U.S.C. § 1347; see also Martinez, 588 F.3d at 314.
11
United States v. Brown, 459 F.3d 509, 519 (5th Cir. 2006).
12
Id. (internal quotation marks and citation omitted).
6
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Ebhamen had made only a handful of Medicare claims before she agreed to a
contract with Fleming splitting proceeds 35/65.
The Government also presented evidence showing that Medicare continued
to send remittance notices and overpayment letters to Arthur’s and Ebhamen’s
business address. These documents—which detailed the high volume of claims
paid and denied on Arthur’s and Ebhamen’s supplier number—were later
discovered in AMBS’s files. The jury could have inferred that Arthur sent the
notices to AMBS, as the Hi-Tech notices were fax transmittals bearing the tag
line from Arthur’s office. Similarly, the jury could have inferred that Ebhamen
delivered the notices to AMBS, as the Government presented evidence to that
effect. Further, the jury could have inferred the defendants’ knowledge and
fraudulent intent from these notices because they contained claims pre-dating
the defendants’ business relationships with Fleming.
When Ebhamen took the stand at trial, her primary defense was that FAN
was her husband’s business and that she did not understand its nature. The
Government’s evidence demonstrated, however, that it was Ebhamen, not her
husband, who signed the application for the supplier number and consistently
represented to Medicare inspectors that she was FAN’s owner. Ebhamen also
personally participated in the effort to have FAN’s supplier number reinstated
when it was revoked, signing a letter to Medicare seeking reinstatement and
appearing at a telephone hearing as the FAN representative. Despite
Ebhamen’s testimony to the contrary, a rational juror could have concluded,
based on evidence presented by the Government, that fraudulent documents
were attached to Ebhamen’s letter and that she lied during the telephone
hearing.
The evidence described above represents only a small portion of that
contained in the entire record. We have little trouble concluding that Arthur’s
and Ebhamen’s sufficiency challenges fail. Moreover, Arthur’s and Ebhamen’s
7
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contention that the verdict should be overturned because they did not know all
the coconspirators is meritless.13 Finally, Arthur’s argument that the evidence
is insufficient to show accomplice liability is not well taken. Even assuming it
had merit, however, any error would be harmless in light of this court’s rule on
conspiracy liability.14
2
Fleming also challenges the sufficiency of the evidence, but her challenges
are similarly meritless. She argues there was no agreement sufficient to prove
the existence of a conspiracy or, alternatively, that she had no knowledge of the
conspiracy. She also argues she did not personally execute a scheme to defraud
and that she is not liable for her employees’ actions. As detailed above, however,
the evidence overwhelmingly demonstrates that Fleming orchestrated the
conspiracy to commit health care fraud and wire fraud.
Fleming also argues that the evidence with respect to health care fraud is
insufficient to maintain her conviction. She contends that personal testimony
from each of the affected beneficiaries was required to support her convictions
for thirty-five counts of health care fraud. We discern no requirement for
individual beneficiary testimony from the language of the statute.15 The
Government’s evidence, including its detailed documentary evidence for each
count of health care fraud, is sufficient to sustain Fleming’s convictions. The
Government’s detailed evidence of banking transactions also plainly supports
Fleming’s convictions for wire fraud, despite her assertions to the contrary.
13
United States v. Garcia Abrego, 141 F.3d 142, 155 (5th Cir. 1998).
14
United States v. Garcia, 917 F.2d 1370, 1377 (5th Cir. 1990) (“Each conspirator may
be held criminally culpable for substantive offenses committed by the conspiracy of which he
is a member while he is a member.” (internal quotation marks, brackets, and citation
omitted)).
15
See also Martinez, 588 F.3d at 315 (rejecting sufficiency claim based on lack of
individualized patient testimony for each count of indictment).
8
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B
We now address Ebhamen’s and Fleming’s arguments that the evidence
was insufficient to convict them of money laundering.
1
On the basis of three checks written by Ebhamen to AMBS and deposited
by Fleming, both Ebhamen and Fleming were convicted of three counts of
violating 18 U.S.C. § 1956(a)(1)(A)(i). We have previously held that to sustain
a conviction for money laundering under this section, the Government must
prove beyond a reasonable doubt “(1) the financial transaction in question
involves the proceeds of unlawful activity, (2) the defendant had knowledge that
the property involved in the financial transaction represented proceeds of an
unlawful activity, and (3) the financial transaction was conducted with the
intent to promote the carrying on of a specified unlawful activity.”16 Neither
defendant argues that the financial transactions in question were not in fact
conducted, or that the funds used in those transactions were not the proceeds of
unlawful activity.17 Rather, both defendants contend that the checks written by
Ebhamen to AMBS merely represent the division of criminal proceeds and do not
show their intent to promote a specified unlawful activity.
In United States v. Valuck, we held the defendant’s negotiation and deposit
of cashier’s checks received from his accomplice was sufficient to sustain the
defendant’s conviction for money laundering promotion, even though the
unlawful crime promoted was the antecedent wire fraud.18 Here, Fleming’s
16
United States v. Valuck, 286 F.3d 221, 225 (5th Cir. 2002).
17
In a supplemental brief to this court, Fleming contends that United States v. Santos,
553 U.S. 507 (2008), requires reversal of her convictions for money laundering. We address
this contention in Section X of this opinion.
18
286 F.3d at 225-28.
9
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deposit of the checks written by Ebhamen is similarly sufficient to sustain
Fleming’s conviction for money laundering promotion.
Ebhamen contends that absent proof she placed conditions on the funds
delivered to Fleming via check, the evidence is insufficient to show her intent to
promote an illegal activity. She argues the following statement from United
States v. Miles supports her position: “The crime of money laundering promotion
is aimed not at maintaining the legitimate aspects of a business nor at
proscribing all expenditures of ill-gotten gains, but only at transactions which
funnel ill-gotten gains directly back into the criminal venture.”19
We are not persuaded. Ebhamen points to no evidence suggesting the
money she paid Fleming was used for legitimate business expenditures.
Moreover, Valuck lends support to Ebhamen’s convictions. Though we did not
consider whether the accomplice’s purchase of cashier’s checks in that case
would support a conviction for money laundering promotion, we noted that “this
court subscribes to a broad interpretation of the word ‘promote’ within the
context of section 1956 . . . to ‘promote’ something is to ‘contribute to [its] growth,
enlargement, or prosperity.’”20 We have little difficulty concluding that
Ebhamen’s payments to Fleming evince the intent to contribute to the growth,
enlargement, or prosperity of the conspiracy. Indeed, the payments were the
lifeblood of the conspiracy. The contract between AMBS and FAN required
payment each Friday, and the record shows that Fleming unfailingly insisted
that payments be timely. If the payments stopped, there is little doubt Fleming
would have ended the relationship with Ebhamen, denying her the opportunity
to profit further from the conspiracy. A rational jury could have concluded that
19
360 F.3d 472, 479 (5th Cir. 2004).
20
Valuck, 286 F.3d at 226 (quoting BLACK’S LAW DICTIONARY 1214 (6th ed. 1990)).
10
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Ebhamen had the requisite intent to promote the carrying on of a specified
unlawful activity.
2
Fleming was convicted on eighteen additional counts of money laundering.
Specifically, she was convicted of five counts of money laundering promotion for
her payments to former employees for stolen patient files; eight counts of
violating 18 U.S.C. § 1956(a)(1)(B)(i) for her actions to conceal fraudulently
obtained funds; and five counts of violating 18 U.S.C. § 1957, which prohibits
spending criminally derived funds in transactions greater than $10,000.
Fleming’s challenge to the sufficiency of the evidence on these counts is
meritless, as each count is supported by testimony and individual
documentation. Her argument that she did not have knowledge that the funds
were the proceeds of an unlawful transaction is belied by the record. Moreover,
her transfers to other bank accounts and payments to individuals are the
epitome of concealment under § 1956(a)(1)(B)(i): she “intended to and did make
it more difficult for the [G]overnment to trace and demonstrate the nature of”
the funds.21
III
Ebhamen contends, for the first time on appeal, that the money laundering
counts alleged against her in the indictment are multiplicitous and her
convictions are therefore unconstitutional under the Double Jeopardy Clause.22
As discussed above, Ebhamen was convicted of violating 18 U.S.C.
§ 1956(a)(1)(A)(i) on the basis of three checks she wrote to AMBS. Based on the
same three transactions, Ebhamen was also convicted for three separate counts
of violating 18 U.S.C. § 1957.
21
United States v. Brown, 553 F.3d 768, 787 (5th Cir. 2008).
22
U.S. CONST. amend. V.
11
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To the extent that Ebhamen challenges the district court’s failure to
require the Government to elect between charging her under § 1956 or § 1957,
that argument has been waived by Ebhamen’s failure to seek dismissal of the
indictment pursuant to FED. R. CRIM. P. 12(b) prior to trial.23 To the extent that
Ebhamen challenges her sentences under both statutes, we may review that
claim for plain error.24
The district court did not commit error, let alone plain error, when it
sentenced Ebhamen under both statutes. The Fifth Amendment’s Double
Jeopardy clause “is meant to protect against both multiple prosecutions and,
relevant here, multiple punishments for the same offense.”25 “[T]he proper test
for determining whether a defendant has been punished twice for the same
offense [is] ‘whether each provision requires proof of a fact which the other does
not.’”26 Our inquiry is focused not on particular factual circumstances, but on
the elements of the statutory offense.27 Thus, the proper inquiry is whether all
violations of § 1957 constitute violations of § 1956(a)(1)(A)(i), and vice versa.28
Here, it is clear not every violation of § 1957 is also a violation of
§ 1956(a)(1)(A)(i), or vice versa. Section 1957(a) requires the Government to
prove: (1) property valued at more than $10,000 was derived from specified
unlawful activity; (2) the defendant engaged in a monetary transaction with this
23
United States v. Gerald, 624 F.2d 1291, 1300 (5th Cir. 1980) (“Rule 12(b)(1) of the
Federal Rules of Criminal Procedure provides that failure to raise objections to defects in the
indictment before trial amounts to a waiver of the objection.”).
24
United States v. Bradsby, 628 F.2d 901, 905-06 (5th Cir. Unit A 1980); see also United
States v. Ogba, 526 F.3d 214, 232 (5th Cir. 2008).
25
United States v. Odutayo, 406 F.3d 386, 392 (5th Cir. 2005).
26
Id. (quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)).
27
Id.
28
See id. (applying test to 18 U.S.C. §§ 1341, 1342).
12
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property; and (3) the defendant knew this property was derived from unlawful
activity.29 Section 1956(a)(1)(A)(i), by contrast, requires the Government to
prove “(1) the financial transaction in question involves the proceeds of unlawful
activity, (2) the defendant had knowledge that the property involved in the
financial transaction represented proceeds of an unlawful activity, and (3) the
financial transaction was conducted with the intent to promote the carrying on
of a specified unlawful activity.”30 Thus, not every violation of § 1957 is also a
violation of § 1956(a)(1)(A)(i) because a violation of the former does not require
proof of intent to promote unlawful activity. Similarly, not every violation of
§ 1956(a)(1)(A)(i) is a violation of § 1957 because a violation of the former does
not require that the proceeds of the unlawful activity be valued at more than
$10,000. Accordingly, Ebhamen’s claim that her sentences violate the Double
Jeopardy clause fails.
IV
Ebhamen next contends the district court erred by not submitting a
limiting instruction to the jury concerning evidence of regulatory violations.
Ebhamen did not request a cautionary instruction at trial, so our review is for
plain error.31 Addressing a similar issue in United States v. Saks, we noted that
the Government “would be hard pressed to prove that defendants defrauded
federal regulators without mention of the regulations these officials are
responsible for enforcing. It would also be difficult to explain the stakes in a
bank fraud case without some reference to the rules by which these institutions
29
United States v. Wilson, 249 F.3d 366, 379 (5th Cir. 2001), abrogated on other
grounds, Whitfield v. United States, 543 U.S. 209 (2005).
30
United States v. Valuck, 286 F.3d 221, 225 (5th Cir. 2002).
31
United States v. Saks, 964 F.2d 1514, 1523 (5th Cir. 1992).
13
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are governed.”32 Similarly, the evidence concerning violations of Medicare
regulations in this case—including evidence Ebhamen failed to notify Medicare
of the sale of FAN’s supplier number and evidence FAN, on several occasions,
did not have sufficient DME inventory to meet regulatory
requirements—provided context for the jurors to help them understand the
scheme to defraud Medicare.
The evidence was also admitted for the allowed purpose of showing
Ebhamen’s state of mind—her intent to defraud—and in order to cast doubt on
her credibility. Relying on United States v. Christo,33 Ebhamen contends that
evidence of regulatory violations is not relevant to the question of fraudulent
intent. This court has expressly noted, however, that “Christo does not prohibit
and subsequent cases explicitly permit use of such evidence for [showing state
of mind] or similar purposes.”34 This case, moreover, is not similar to Christo:
the Government did not exclusively rely on Medicare violations to prove its case,
and it never argued that regulatory violations equaled guilt for the substantive
crimes.35 Moreover, the court did not mention Medicare violations in its
instructions to the jury.36 The district court did not commit plain error when it
did not issue a cautionary instruction.
V
Ebhamen and Fleming contend the evidence did not support the district
court’s use of a deliberate ignorance instruction. The court instructed the jury
32
Id.
33
614 F.2d 486 (5th Cir. 1980).
34
United States v. Ramos, 537 F.3d 439, 460 (5th Cir. 2008) (citing United States v.
Butler, 429 F.3d 140, 150 (5th Cir. 2005), and United States v. Cordell, 912 F.2d 769, 777 (5th
Cir. 1990)).
35
See id.; see also Christo, 614 F.2d at 489.
36
Christo, 614 F.2d at 490-91.
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that it could “find that a defendant had knowledge of a fact” if the defendant
“deliberately closed his or her eyes to what would otherwise have been obvious
to him or her” or “deliberately blinded himself or herself to the existence of a
fact.” Because both defendants objected to this instruction below, we review the
court’s decision for an abuse of discretion.37 In reviewing whether an instruction
was supported by the evidence, we view the evidence and all reasonable
inferences that may be drawn from it in the light most favorable to the
Government.38
We have previously said that “an error in giving the deliberate ignorance
instruction is harmless where there is substantial evidence of actual
knowledge.”39 Because there is substantial evidence Fleming possessed actual
knowledge of the fraudulent scheme, the deliberate ignorance instruction, if
error, was harmless as to her.
There was also significant evidence that Ebhamen had actual knowledge
of the fraud. She signed the 35/65 contract with Fleming, presented fraudulent
documents to Medicare officers, and wrote checks from the FAN account to
AMBS, herself, and Chase Bank. She regularly represented herself as the owner
of FAN. Medicare remittance notices and overpayment letters, as well as bank
statements reflecting large deposits from Medicare, were mailed to FAN’s office.
We conclude this evidence is sufficient to make any error in instructing the jury
on deliberate ignorance harmless as to Ebhamen as well.
Moreover, even if Ebhamen did not have actual knowledge, the district
court did not abuse its discretion by instructing the jury on deliberate ignorance.
37
United States v. Nguyen, 493 F.3d 613, 619 (5th Cir. 2007).
38
Id.
39
United States v. Mendoza-Medina, 346 F.3d 121, 134 (5th Cir. 2003) (internal
quotation marks and citation omitted).
15
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We have said that “a deliberate ignorance instruction is justified where the
evidence shows (1) subjective awareness of a high probability of the existence of
illegal conduct and (2) purposeful contrivance to avoid learning of the illegal
conduct.”40 Here, the same evidence that would support a finding of actual
knowledge, discussed above, also suggests that Ebhamen had a subjective
awareness of the high probability of illegal conduct. We have held that the
second prong can be satisfied when the circumstances present are “so
overwhelmingly suspicious that the defendant[’s] failure to conduct further
inspection or inquiry suggests a conscious effort to avoid incriminating
knowledge.”41 Here, Ebhamen’s DME company was singularly unsuccessful
prior to engaging with Fleming. Within months of selling the supplier number,
however, hundreds of thousands of dollars poured into FAN’s accounts. The
money continued coming in even after FAN lost its supplier number, a fact of
which Ebhamen was well aware because she applied to have it reinstated.
Ebhamen wrote large checks from the FAN account, yet claims to have never
looked at the bank statements. She also claims she did not view the remittance
notices or overpayment letters. We have little trouble concluding these
circumstances are so overwhelmingly suspicious that Ebhamen’s failure to
conduct further investigation suggests “a conscious effort to avoid incriminating
knowledge.”42 Accordingly, the district court did not abuse its discretion by
delivering a deliberate ignorance instruction to the jury.
VI
Ebhamen next contends the prosecutor made an improper remark about
Ebhamen’s attorney that was “highly prejudicial, improperly argumentative and
40
Nguyen, 493 F.3d at 619 (internal quotation marks and citation omitted).
41
Id. at 621 (internal quotation marks and citation omitted).
42
Id.
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caused [her] undue harm.” The remark in question occurred on day fifteen of the
trial, the same day Ebhamen was on the stand for cross-examination. That
morning, the prosecutor introduced a corrected version of Government Exhibit
409A, the transcript of the Medicare telephone hearing at which Ebhamen
appeared. The prosecutor explained that eight or nine lines were missing from
the original version, and that the corrected version corresponded with the
recording the jury had heard earlier in the trial. Ebhamen’s counsel, Mr. Waska,
did not object to the substituted transcript.
Later, during Ebhamen’s cross-examination, the prosecutor began playing
a tape of the Medicare hearing. Waska interrupted, stating, “Your Honor, may
I ask are we talking—what exhibit? Because we have an altered transcript in
the case.” The prosecutor objected to Waska’s comment as a sidebar with no
proof. In the presence of the jury, Waska, the judge, and the prosecutor engaged
in a lengthy exchange concerning how to differentiate between the two
transcripts, which used different fonts and margins but contained the same
information. Ultimately, it was decided the corrected transcript would be
renamed as Exhibit 409A1. During the course of her testimony, Ebhamen
continued to express confusion about the “different” transcript and accused the
prosecutor of “trying to put something on me that never existed.” The prosecutor
subsequently asked Ebhamen to read the transcripts line-by-line. When
Ebhamen admitted the transcripts were identical and she simply had trouble
locating the text due to the different layouts, the prosecutor asked, “Did you
know when you got up here that your attorney, Mr. Waska, was going to
intentionally mislead the jury about that?” Waska objected, and the district
court instructed the prosecutor to “keep it civil.” The prosecutor withdrew the
question.
17
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No. 09-20877
We review purportedly improper prosecutorial remarks in two steps.43
First, we must determine whether, considering the context in which it was made,
the remark was improper.44 We will assume, without deciding, that the remark
here was improper. Our next inquiry is whether the remark “prejudiced the
defendant’s substantive rights.”45 “The determinative question is whether the
prosecutor’s remarks cast serious doubt on the correctness of the jury’s verdict.”46
In making that determination, we consider “(1) the magnitude of the statement’s
prejudice, (2) the effect of any cautionary instructions given, and (3) the strength
of the evidence of the defendant’s guilt.”47
The statement here was not so prejudicial as to warrant reversal. On its
face, the statement was not unduly prejudicial because it did not suggest that
the prosecutor was privy to some information about defense counsel not
available to the jury. Rather, the jury observed each exchange and could make
its own judgment as to the parties’ motivations—indeed, it is possible the jury
shared defense counsel’s confusion. The district court instructed the prosecutor
to be “civil,” and he withdrew the question. The court later instructed the jury
to disregard questions to which the court sustained objections. Finally, the
Government’s evidence of Ebhamen’s guilt was strong. Viewed in context, the
prosecutor’s remark did not “cast serious doubt on the correctness of the jury’s
verdict.”48 Moreover, Ebhamen’s reliance on United States v. McDonald is
misplaced because the prosecutor’s remark about Ebhamen’s attorney did not
43
United States v. Insaulgarat, 378 F.3d 456, 461 (5th Cir. 2004).
44
Id.
45
Id. (internal quotation marks and citation omitted).
46
Id. (internal quotation marks and citation omitted).
47
Id. (internal quotation marks and citation omitted).
48
Id. (internal quotation marks and citation omitted).
18
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No. 09-20877
impute guilt to Ebhamen or imply that she sought representation because she
was guilty.49
VII
Ebhamen argues the district court erred by failing to apply a two-point
downward adjustment to her offense level pursuant to U.S.S.G. § 3B1.2(b)
because she was a “minor participant” in the fraud scheme. We review the
district court’s interpretation of the Sentencing Guidelines de novo and its
factual determinations for clear error.50 Unless a factual finding is implausible
in light of the record as a whole, it is not clearly erroneous.51
Section 3B1.2 provides that when a defendant is a “minimal participant”
or “minor participant” in a criminal activity, a district court may reduce the
defendant’s offense level by four or two levels, respectively.52 A “minor
participant” is one “who is less culpable than most other participants, but whose
role could not be described as minimal.”53 Because this determination is fact-
based, we will “upset a sentence only if that finding is clearly erroneous.”54
We have previously determined that a “minor participant must be
peripheral to the advancement of the criminal activity.”55 In light of Ebhamen’s
significant role in perpetrating the fraud, the district court’s determination that
Ebhamen was not a minor participant is not clearly erroneous.
49
See United States v. McDonald, 620 F.2d 559, 564 (5th Cir. 1980).
50
United States v. Griffith, 522 F.3d 607, 611 (5th Cir. 2008).
51
Id. at 611-12.
52
U.S. SENTENCING GUIDELINES MANUAL § 3B1.2 (2008).
53
Id. § 3B1.2(b) cmt. n.5.
54
Griffith, 522 F.3d at 612.
55
United States v. Martinez-Larraga, 517 F.3d 258, 272 (5th Cir. 2008).
19
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VIII
Ebhamen also challenges the district court’s two-level enhancement of her
sentence for obstruction of justice under U.S.S.G. § 3C1.1, arguing that the
district court did not make the required factual findings before applying the
enhancement. “We review the district court’s factual findings in applying the
Sentencing Guidelines for clear error.”56
In United States v. Dunnigan, the Supreme Court held that “if a defendant
objects to a sentence enhancement resulting from her trial testimony, a district
court must review the evidence and make independent findings necessary to
establish a willful impediment to or obstruction of justice, or an attempt to do
the same, under the perjury definition we have set out.”57 The Court defined
perjury as “giv[ing] false testimony [under oath] concerning a material matter
with the willful intent to provide false testimony, rather than as a result of
confusion, mistake, or faulty memory.”58 “While it is preferable that the district
court ‘address each element of the alleged perjury in a separate and clear
finding,’ the district court’s findings are sufficient if ‘the court makes a finding
of an obstruction of, or impediment to, justice that encompasses all of the factual
predicates for a finding of perjury.’”59
We conclude the district court fulfilled its duty. During the sentencing
hearing, the court stated, “I also believe, having sat through the trial and
listened to Ms. Ebhamen’s testimony, that she did commit perjury and obstruct
justice during the course of the trial, so I am going to agree with the Government
that the two-level enhancement for obstruction of justice should be applied.”
56
United States v. Creech, 408 F.3d 264, 270 (5th Cir. 2005).
57
507 U.S. 87, 95 (1993).
58
Id. at 94 (citing 18 U.S.C. § 1621(1)).
59
Creech, 408 F.3d at 271 (quoting Dunnigan, 507 U.S. at 95).
20
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Although the district court’s statement did not “address each element of the
alleged perjury,” when read in light of the Government’s written objections to the
presentence investigation report and the arguments presented by counsel at the
sentencing hearing concerning Ebhamen’s testimony at trial, the statement
“encompasse[d] all the factual predicates for [such] a finding.”60
IX
Fleming raises many additional claims of error. We address claims related
to her mental health, sentencing, and other matters below.
A
Citing Pate v. Robinson,61 Fleming contends her due process rights were
violated by the trial court’s failure to hold a competency hearing sua sponte.
Before Fleming elected to proceed pro se, the district court granted her counsel’s
two requests that Fleming undergo psychological evaluations. Although the
psychologists’ reports issued following the evaluations noted Fleming had been
diagnosed with bipolar disorder and chronic, severe post-traumatic stress
disorder, the reports also stated Fleming was competent to stand trial and was
sane at the time of the offense. Thus, there was no evidence the trial judge
“receive[d] information which, objectively considered, should reasonably have
raised a doubt about [the] defendant’s competency,” alerting the judge to the
possibility that Fleming “could neither understand the proceedings or appreciate
their significance, nor rationally aid [her] attorney in [her] defense.”62 Fleming’s
Pate claim therefore fails. Fleming’s claim that proceeding to trial was improper
60
Id.
61
383 U.S. 375 (1966).
62
Roberts v. Dretke, 381 F.3d 491, 497 (5th Cir. 2004) (internal quotation marks and
citation omitted) (first alteration in original).
21
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No. 09-20877
because the order finding her incompetent was not superceded also fails, as no
such order existed.
Fleming’s claim that the district court wrongly ordered her forcibly
medicated without examining the criteria set forth in Sell v. United States63
likewise fails, as the record demonstrates Fleming voluntarily agreed to take her
medication as a condition of being allowed to proceed pro se. Fleming also
argues she was incompetent because no psychiatrist ever determined she “had
enough medication in her system to reach the therapeutic levels needed for
competency,” and that interruptions in her medication regime during trial
affected her competency. There is no evidence in the record that medication was
required to make Fleming competent. Despite Fleming’s assertions to the
contrary, the district court expressed doubt about her ability to represent herself
absent medication, not her competency to stand trial. Moreover, there is no
evidence in the record showing Fleming was not medicated adequately at the
time of trial.
Fleming challenges the district court’s denial of her motion for recusal
pursuant to 28 U.S.C. § 455(a) and (b)(1). That motion sought recusal on the
basis of the court’s ex parte consultation with a prison doctor concerning
Fleming’s medication, which the court required her to take in order to represent
herself. Fleming’s motion to recuse was filed nine months after the time of the
ex parte communication and five months after trial. Though this court has
adopted no per se rule regarding timeliness, the general rule is that “one seeking
disqualification must do so at the earliest moment after knowledge of the facts
demonstrating the basis for such disqualification.”64 Because we conclude that
Fleming’s motion was untimely, we do not further consider her claim of error.
63
539 U.S. 166, 180-81 (2003).
64
United States v. Sanford, 157 F.3d 987, 988 (5th Cir. 1998) (internal quotation marks
and citation omitted).
22
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No. 09-20877
Fleming next argues the district court improperly denied her request for
appointment of a mental health expert under 18 U.S.C. § 3006A(e)(1). The same
day Fleming moved for appointment of an expert, the district court ordered her
to provide, within ten days, specific information regarding the expert, the area
of testimony, and cost. Despite an extension of time, Fleming never did so. We
have said that “[t]o justify the authorization of [expert] services under
§ 3006A(e)(1), a defendant must demonstrate[,] with specificity, the reasons why
such services are required.”65 Despite several opportunities to provide such
specific information, Fleming failed to do so. The court did not abuse its
discretion in denying her request.66
Fleming also argues for the first time on appeal that, under § 3006A(e)(1),
the district court was required to hold a formal hearing on her request for
appointment of an expert. We have explained that “[n]either the statute’s plain
language nor our caselaw interpreting it supports” a rule “requir[ing] in all
circumstances that a district court hold a hearing on an ex parte application for
appointment under § 3006A(e).”67 Accordingly, Fleming’s claim fails because any
error by the district court was not clear or obvious.68
Three months after trial, Fleming submitted a motion entitled “Motion for
Ex Parte Hearing For Appointment of Independent Mental Health Expert Under
18 U.S.C., Section 3006 [sic].” Still, Fleming did not provide any specific
65
United States v. Gadison, 8 F.3d 186, 191 (5th Cir. 1993).
66
See generally United States v. Hardin, 437 F.3d 463, 468 (5th Cir. 2006) (reviewing
a district court’s denial of a motion for expert appointment under the CJA for abuse of
discretion).
67
Id. at 470.
68
United States v. Juarez, 626 F.3d 246, 254 (5th Cir. 2010) (stating the plain error
standard of review applies to claims of error not raised below).
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information regarding her request. The district court did not abuse its discretion
when it denied the motion.69
Fleming argues the district court improperly excluded expert evidence
pertaining to her insanity defense. This claim is waived because it is advanced
for the first time on appeal.70 Fleming only argued in the district court that she
lacked the ability to form specific intent, not that she could not appreciate the
nature and quality of the wrongfulness of her acts.71
Fleming also argues the district court improperly excluded evidence
pertaining to her diminished capacity defense, a ruling we review for an abuse
of discretion.72 Even assuming that diminished capacity evidence is admissible
to defeat the mental state requirement for a specific intent crime, a matter we
do not decide, Fleming “wholly failed to explain—on appeal and before the
district court—how [her] mental condition negated [her] intent.”73 Accordingly,
the district court did not abuse its discretion in excluding Fleming’s evidence.
Similarly, the district court did not err in denying Fleming a diminished capacity
jury instruction, a matter we review de novo.74 Fleming did not present
sufficient evidence to permit the jury to “find to a high probability” that she
lacked the intent necessary to commit the crime.75
69
Hardin, 437 F.3d at 468.
70
Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
71
See United States v. Eff, 524 F.3d 712, 716 (5th Cir. 2008) (“Where a defendant
asserts an insanity defense, the ultimate issue is whether at the time of the crime the
defendant appreciated the nature and quality or the wrongfulness of his acts.” (internal
quotation marks and citation omitted)).
72
United States v. Dixon, 185 F.3d 393, 398 (5th Cir. 1999).
73
Eff, 524 F.3d at 720 n.11.
74
Dixon, 185 F.3d at 403.
75
See id. at 404.
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B
Fleming alleges several claims of error with respect to sentencing, but
none are well taken. First, the district court’s determination of sentencing
factors under the Guidelines did not violate Fleming’s rights under the Sixth
Amendment.76 Fleming’s related arguments that the sentencing factors should
have been included in the indictment and jury charge are also without merit.77
Similarly, the advisory nature of the Guidelines does not violate her Sixth
Amendment rights.78
Fleming next contends that the district court improperly calculated her
criminal history score by relying on the 2008 Guidelines, instead of the 2003
version in effect when she committed the offenses. Post-Gall, we “continue to
review the district court’s application of the Guidelines de novo and its factual
findings for clear error.”79 We have held that a “sentencing court must apply the
version of the sentencing [G]uidelines effective at the time of sentencing unless
application of that version would violate the Ex Post Facto Clause of the
Constitution.”80 Fleming’s offense level and criminal history category would be
the same under both the 2003 and 2008 Guidelines; therefore, application of the
version of the Guidelines in effect at the time of sentencing did not “result[] in
76
See United States v. Booker, 543 U.S. 220, 245 (2005).
77
See id.
78
Id.; see also Gall v. United States, 552 U.S. 38, 49 (2007) (“[A] district court should
begin all sentencing proceedings by correctly calculating the applicable Guidelines range. As
a matter of administration and to secure nationwide consistency, the Guidelines should be the
starting point and the initial benchmark.” (internal citation omitted)).
79
United States v. Delgado-Martinez, 564 F.3d 750, 751 (5th Cir. 2009).
80
United States v. Rodarte-Vasquez, 488 F.3d 316, 322 (5th Cir. 2007) (internal
quotation marks and citations omitted).
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No. 09-20877
a harsher penalty than would application of the Guidelines in effect when the
offense was committed.”81
The district court applied a twenty-two-level increase to Fleming’s base
offense level because it determined the intended loss amount from Fleming’s
fraud was $34 million.82 In supplemental briefing to this court, Fleming
contends our recent decision in United States v. Isiwele83 demonstrates that the
district court erred in applying the twenty-two-level increase. We held in Isiwele
that, while the amount fraudulently billed to Medicare is “prima facie evidence
of the amount of loss the defendant intended to cause,” the “amount billed does
not constitute conclusive evidence of intended loss.”84 Rather, the “parties may
introduce additional evidence to suggest that the amount billed either
exaggerates or understates the billing party’s intent.”85 We note initially that
Fleming waived any argument contesting the district court’s method of
calculating intended loss because she did not contest that method below.86
Alternatively, to the extent this argument was not waived by virtue of Fleming’s
failure to advance it below, her defective supplemental brief containing no
citation to record evidence demonstrating that the amount billed exaggerates the
intended loss also constitutes waiver.87
81
Id.
82
See U.S. SENTENCING GUIDELINES MANUAL § 2B1.1 cmt. n.3(A) (2008) (defining “loss”
as “the greater of actual loss or intended loss”).
83
635 F.3d 196 (5th Cir. 2011).
84
Id. at 203 (internal quotation marks and brackets omitted).
85
Id. (internal quotation marks and citation omitted).
86
Nunez v. Allstate Ins. Co., 604 F.3d 840, 846 (5th Cir. 2010) (“An argument not raised
before the district court cannot be asserted for the first time on appeal.” (internal quotation
marks and citation omitted)).
87
See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
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In a related issue, Fleming argues the district court violated her rights by
failing to provide her with a trial transcript, which she requested prior to
sentencing in order to contest the intended loss amount. Fleming cites no
authority for the proposition that the district court was required to provide her
with a transcript prior to sentencing. Even assuming such a requirement exists,
any error was harmless. Fleming had a copy of the transcript for this appeal
and, as noted above, she has not cited any record evidence demonstrating that
the amount billed exaggerates the intended loss.
We do not have jurisdiction to review the district court’s denial of
Fleming’s request for a downward departure for diminished capacity under
U.S.S.G. § 5K2.13 unless the “district court held a mistaken belief that the
Guidelines do not give it the authority to depart.”88 Fleming points to no
evidence the district court was unaware of its authority.
Finally, Fleming contends the district court erred when it denied her
motion for a continuance pursuant to FED. R. CRIM. P. 32(g). That rule states the
probation officer must provide “the presentence report and an addendum
containing any unresolved objections, the grounds for those objections, and the
probation officer’s comments on them” to the court and the parties at least seven
days before sentencing. The probation officer timely provided a report and a
supplemental response to the parties’ objections—including Fleming’s—over a
month before sentencing. Fleming filed further objections to the PSR three days
before sentencing, to which the probation officer also responded, albeit not seven
days prior to sentencing. Fleming points to no authority for the proposition that
a defendant can restart Rule 32(g)’s seven-day requirement by filing further
objections to the PSR, and we find none. Although such an interpretation would
seemingly produce an absurd result—allowing a defendant to postpone
88
United States v. Lucas, 516 F.3d 316, 350 (5th Cir. 2008).
27
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sentencing indefinitely—we need not decide the issue. Assuming error, such
error was harmless: Fleming had an adequate opportunity to object to the PSR.89
C
Fleming asserts, for the first time on appeal, that the district court should
have dismissed the indictment against her under FED . R. CRIM. P. 48(b). The
burden of proving prejudicial delay rests on Fleming.90 She has not
demonstrated that any delay in this case was “intentionally undertaken by the
[G]overnment for the purpose of gaining some tactical advantage over the
accused in the contemplated prosecution or for some other impermissible, bad
faith purpose.”91 Accordingly, the district court did not err, let alone plainly err,
by not dismissing the indictment.
Fleming also argues the district court erred when it refused to grant her
request for an evidentiary hearing, filed more than five months after the verdict
was rendered, on jury tampering. The district court did not abuse its discretion
in denying Fleming’s request because her claim the jurors engaged in “smoke
break deliberations” with employees of the United States Marshals service was
purely speculative.92
D
Though “we construe pro se pleadings liberally, pro se litigants, like all
other parties, must abide by the Federal Rules of Appellate Procedure.”93 Rule
89
See United States v. Roberge, 565 F.3d 1005, 1011-12 (6th Cir. 2009).
90
United States v. Gulley, 526 F.3d 809, 820 (5th Cir. 2008) (per curiam).
91
United States v. Crouch, 84 F.3d 1497, 1514 (5th Cir. 1996) (en banc).
92
United States v. Smith, 354 F.3d 390, 394 (5th Cir. 2003) (“A district court is not
required to conduct a full-blown evidentiary hearing in every instance in which an outside
influence is brought to bear upon a petit jury. . . . The court is not required to conduct an
investigation into claims of exposure that are merely speculative.” (internal citation omitted)).
93
United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994) (per curiam).
28
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28(a)(9)(A) requires that Fleming’s arguments must identify her “contentions
and the reasons for them, with citations to the authorities and parts of the
record on which [she] relies.”94 In her lengthy brief to this court, many of the
legal authorities cited by Fleming are unrelated to her claims of error. Fleming’s
citations to the record, moreover, are sparse and often incorrect. In many of her
argument sections, she provides no citation whatsoever to the record. We have
consistently recognized that when an appellant fails to provide “the reasons [s]he
deserves the requested relief with citation to the authorities, statutes and parts
of the record relied on,” that failure constitutes waiver.95
Accordingly, we conclude that Fleming has waived the following claims:
that (1) the confrontation clause was violated; (2) the district court was required
to provide her with a mental health expert pursuant to Ake v. Oklahoma;96
(3) the district court erred when it denied her motion for discovery on selective
prosecution; (4) Ibarra’s allegedly perjured testimony violated her due process
rights; (5) the Government interfered with the appearance of her witnesses;
(6) she was prejudiced by the spillover effect of Ebhamen’s perjured testimony;
(7) the district court erred when it denied her motion to suppress evidence;
(8) restitution is barred by claim and issue preclusion; (9) the district court erred
in not analyzing forfeiture under 18 U.S.C. § 983(g); (10) the district court erred
in increasing her criminal-history score based on convictions for which she was
on probation; and (11) the district court erred when it denied her motion for a
mistrial based on the Government’s violation of FED. R. EVID. 615.
94
See also id. (citing former version of FED. R. APP. P. 28).
95
Turner v. Quarterman, 481 F.3d 292, 295 n.1 (5th Cir. 2007) (quoting Hughes v.
Dretke, 412 F.3d 582, 597 (5th Cir. 2005)).
96
470 U.S. 68 (1985).
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E
We have examined the following issues raised by Fleming and conclude
they are so lacking in merit as to not warrant discussion: that (1) she did not
knowingly and intelligently waive her right to counsel; (2) the district court
erred when it denied her motions pursuant to FED. R. CIV. P. 60; (3) the district
court did not have jurisdiction; (4) Fleming received ineffective assistance of
counsel; (5) the district court erred in denying her motions for a new trial; (6) her
indictment should have been dismissed due to prosecutorial misconduct;
(7) evidence of the Medicare telephone hearing was not relevant and therefore
inadmissible; (8) the district court erred when it denied her motion to dismiss
the indictment pursuant to the Speedy Trial Act; (9) there was a material
variance between the indictment and proof offered at trial; (10) the district court,
and not the jury, decided the amount of restitution owed; (11) Fleming should
have received a two-point reduction on her criminal history for acceptance of
responsibility; (12) the jury should have determined forfeiture; (13) the district
court erred when it denied her motion for additional discovery; and (14) evidence
was admitted in violation of FED. R. EVID. 404(b).
F
Fleming contends reversal is required due to cumulative error. “Having
determined above that none of [her] claims warrant reversal individually, we
decline to employ the unusual remedy of reversing for cumulative error.”97
Fleming has not demonstrated any errors “so fatally infect[ing] the trial that
they violated the trial’s fundamental fairness.”98
97
United States v. Fields, 483 F.3d 313, 362 (5th Cir. 2007).
98
Id. (internal quotation marks and citation omitted).
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No. 09-20877
X
Fleming filed a supplemental brief in this court eleven months after
submitting her initial brief. In addition to her claim, addressed above, that
United States v. Isiwele99 applies to her case, Fleming also contends that (1) she
did not receive billing records supporting summary charts advanced at trial;
(2) United States v. Santos100 and Garland v. Roy101 apply to her money
laundering convictions; and (3) Skilling v. United States102 and United States v.
Hoeffner103 apply to her case. “Although we have elected to consider issues
raised for the first time in a supplemental brief where there has been an
intervening court decision, we have done so where the decision provided an
important clarification in the law, and refusal to do so would have resulted in
perpetuating incorrect law.”104 Absent such circumstances, issues not raised in
an opening brief are generally considered waived.105
Here, Fleming’s billing records claim does not pertain to an intervening
change in law and is therefore waived. While Skilling and Hoeffner were
decided after Fleming filed her initial brief, they pertain to issues completely
inapposite to Fleming’s convictions. Garland, which was also decided after
99
635 F.3d 196 (5th Cir. 2011).
100
553 U.S. 507 (2008).
101
615 F.3d 391 (5th Cir. 2010).
102
130 S. Ct. 2896 (2010).
103
626 F.3d 857 (5th Cir. 2010), cert. denied, 131 S. Ct. 2465 (2011).
104
Am. Int’l Specialty Lines Ins. Co. v. Res-Care, Inc., 529 F.3d 649, 661 n.28 (5th Cir.
2008).
105
Id. (“[I]ssues not raised in opening brief are generally considered waived.” (citation
omitted)); see also United States v. Pompa, 434 F.3d 800, 806 n.4 (5th Cir. 2005) (“Neither of
the Pompas addressed the sufficiency-of-the-evidence argument in their opening briefs,
instead filing supplemental briefs on the subject. Any issue not raised in an appellant’s
opening brief is deemed waived.”).
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Fleming filed her initial brief, merely applied Santos, which was decided long
before Fleming filed her initial brief. Accordingly, Fleming’s argument based on
Garland and Santos fails.
* * *
For the foregoing reasons, the defendants’ convictions and sentences are
AFFIRMED.
32