Case: 15-20293 Document: 00513413100 Page: 1 Date Filed: 03/09/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-20293
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
March 9, 2016
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
MOHAMMAD KHAN,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:12-CR-64-1
Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
Defendant-Appellant Mohammad Khan appeals his convictions and
sentences for conspiracy to commit health care fraud in violation of 18 U.S.C.
§ 1349, conspiracy to defraud the United States and pay health care kickbacks
in violation of 18 U.S.C. § 371, and five counts of offering or paying health care
kickbacks and aiding and abetting in violation of 42 U.S.C. § 1320a-7b(b)(2)
and 18 U.S.C. § 2. Khan argues that his conspiracy offenses were the same
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 15-20293
offense for purposes of the Double Jeopardy Clause because they involved the
same times periods, the same locations, and the same participants. As he
concedes, he did not raise this claim in the district court, so our review is
limited to plain error. See United States v. Njoku, 737 F.3d 55, 67 (5th Cir.
2013).
The language on the face of the indictment, charging Khan with a
conspiracy in violation of § 1349 and a conspiracy in violation of § 371, does not
raise double jeopardy concerns. Section 371 contains an overt act requirement,
which § 1349 does not contain. See United States v. Jones, 733 F.3d 574, 584
(5th Cir. 2013). Further, § 371 is based on a conspiracy to violate a section of
Title 42, while § 1349 is based on a conspiracy to commit an offense under Title
18. See Jones, 733 F.3d at 584. There is no double jeopardy violation “apparent
on the face of the indictment or record,” so Khan has waived any double
jeopardy challenge to the convictions by pleading guilty to the offenses. See
United States v. Broce, 488 U.S. 563, 569, 575-76 (1989).
A complaint about the multiplicity of sentences may be raised for the
first time on appeal. Njoku, 737 F.3d at 67. We review a defendant’s
contention of multiplicitous sentences raised for the first time on appeal
involving an issue of double jeopardy for plain error. Njoku, 737 F.3d at 67.
We have held that a conspiracy to commit health care fraud in violation
of § 1349 and a conspiracy to defraud the United States by taking kickbacks in
violation of § 371 are two separate offenses for purposes of double jeopardy.
See Njoku, 737 F.3d at 67-68; see also Jones, 733 F.3d at 584; United States v.
Ngari, 559 F. App’x 259, 269-70 (5th Cir. 2014). This case is distinguishable
from United States v. Ogba, 526 F.3d 214, 234-36 (5th Cir. 2008), in which we
held that the imposition of sentences under both 42 U.S.C. § 1320a-7b(b)(2)(A)
(illegal remunerations) and 18 U.S.C. § 1347 (healthcare fraud) were
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multiplicitous. Unlike Ogba, a jury could not have found a violation of § 1349
simply by finding that Khan violated § 371, or vice versa. See Ngari, 559 F.
App’x at 270. Therefore, the district court did not err, plainly or otherwise, in
sentencing Khan for conspiracies under both statutes because, as charged,
each offense required proof of a fact that the other did not. See Njoku, 737 F.3d
at 67-68; Jones, 733 F.3d at 584; Ngari, 559 F. App’x at 270.
Khan next contends that the district court erred in ruling that there was
an adequate factual basis to support his convictions for two separate
conspiracies under §§ 1349 and 371. The record indicates that Khan, the
assistant administrator of Riverside General Hospital who controlled the
partial hospitalization programs (PHPs), knowingly and voluntarily entered
into a conspiracy to commit health care fraud by agreeing with Riverside’s
owners and operators to submit $116 million in fraudulent claims to Medicare
for PHP treatment for patients who did not have severe mental illness and did
not need or did not receive the treatment. Khan and others instructed the staff
to fabricate treatment plans and other documents in the patients’ files so as to
appear to meet Medicare standards and avoid detection of the ongoing fraud.
At rearraignment, Khan admitted that he knew that some of the services being
billed by Riverside were not medically necessary or were not actually provided.
The record thus indicates that Khan admitted that he and others agreed to
commit health care fraud, that he knew the unlawful purpose of the
agreement, and that he joined in the agreement willfully. See United States v.
Grant, 683 F.3d 639, 643 (5th Cir. 2012). The district court did not plainly err
in finding that there was a factual basis for Khan’s guilty plea to conspiracy to
commit health care fraud in violation of § 1349. See id.
The record also indicates that Khan and others agreed to pay kickbacks
to recruiters, as well as to owners of group homes and assisted living facilities,
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in exchange for their referral of patients for the PHPs. Khan also compensated
patients for attending the PHPs by providing them cigarettes, food, and
coupons redeemable for items available at Riverside. The record substantiates
that Khan and others agreed to defraud the United States by paying health
care kickbacks and that he took an overt act in furtherance of the conspiracy
by making various payments as set forth in the Presentence Report. The
district court did not plainly err in finding that there was an adequate factual
basis for Khan’s guilty plea to conspiracy to defraud the United States by
paying health care kickbacks in violation of § 371. See United States v. Wright,
211 F.3d 233, 237-38 (5th Cir. 2000).
AFFIRMED.
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