[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 21, 2008
No. 06-16321 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00068-CR-RWS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
UDO UDO EKPO, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(February 21, 2008)
Before TJOFLAT, BLACK and FAY, Circuit Judges.
PER CURIAM:
Udo Udo Ekpo, Jr. appeals his conviction and 27-month sentence for 11
counts of health care fraud, in violation of 18 U.S.C. §§ 1347 and 2. First, as to his
conviction, Ekpo argues that there was insufficient evidence to support a jury
instruction on deliberate ignorance because the evidence demonstrated that he did
not believe that he was doing anything wrong, and that he did not learn of the
fraudulent claims until well after they had been submitted. Accordingly, Ekpo
asserts that there was no evidence to suggest that he deliberately attempted to avoid
the truth.
Second, as to his sentence, Ekpo argues that the district court clearly erred
by finding that he should not receive any credit against the calculated loss amount
for the motorized scooters, also known as power operated vehicles (“POV”), that
he sold to the Medicare beneficiaries in the transactions at issue, asserting that the
evidence shows that he did not intend for Medicare to suffer a complete loss.
Third, Ekpo argues that the district court erred by applying an enhancement for
obstruction of justice because it relied on the jury’s guilty verdict, and did not
make an independent factual finding that he had committed perjury. Fourth, Ekpo
argues that his sentence is procedurally unreasonable because the district court
improperly applied a presumption in favor of a sentence within the advisory
guideline range, failed to consider the sentencing factors enumerated in 18 U.S.C.
§ 3553(a), and failed to explain its reasons for imposing a sentence within the
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guideline range. Ekpo also argues that his sentence is substantively unreasonable
because the court failed to consider the § 3553(a) factors separately and apart from
the Sentencing Guidelines. Last, Ekpo argues that, by considering 24 additional
allegedly fraudulent transactions not charged in the indictment, or found by the
jury beyond a reasonable doubt, the district court increased his sentence above the
permitted statutory maximum in violation of his Sixth Amendment rights.
For the reasons set forth more fully below, we affirm Ekpo’s sentence and
conviction.
Ekpo owned a business, V & A Services, d/b/a V & A Medical Supplies (“V
&A”), which he enrolled as a durable medical equipment (“DME”) supplier with
Medicare. In the enrollment application, Ekpo agreed that V & A would submit
truthful, accurate, and complete Medicare claims, and further agreed that the
company would be responsible for all claims submitted by its employees or agents.
Ekpo also promised that V & A would research and correct claim discrepancies.
Medicare is authorized to pay for medically necessary equipment such as power
wheelchairs and accessories that are provided to beneficiaries by authorized DME
suppliers, such as V & A, who are enrolled with Medicare.
An FBI investigation revealed that Ekpo caused false claims for power
wheelchairs to be submitted to Medicare on behalf of 12 different beneficiaries,
when, in actuality, POVs were provided to those beneficiaries instead. POVs were
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assigned a specific Medicare billing code, and payments for those claims were
limited to $1,809.43. Payments for power wheelchairs, however, exceeded
$4,000.00. In addition to the false claims for power wheelchairs, Ekpo also caused
false claims for wheelchair accessories to be submitted to Medicare in order to
recover other expenses for which he believed V & A had not properly been
reimbursed. Moreover, Medicare made 24 additional payments for fraudulent
claims submitted by V & A, resulting in a total loss amount of $164,590.43.
I.
A challenge to a jury instruction presents a question of law that we review
de novo. United States v. Stone, 9 F.3d 934, 937 (11th Cir. 1993). A deliberate
ignorance instruction is not appropriate where the evidence only points to either
actual knowledge or no knowledge on the part of the defendant. Such an
instruction “is appropriate only when there is evidence in the record showing the
defendant purposely contrived to avoid learning the truth.” Id. (quotation omitted).
An erroneous deliberate ignorance instruction is not reversible error per se,
however. When a district court commits error in giving a deliberate ignorance
instruction because there is insufficient evidence to support it, the error can
nonetheless be harmless depending on the wording of the instruction. Id. at
937-38. The error is harmless as a matter of law where (1) “the jury was clearly
instructed that a precondition to its application of the deliberate ignorance
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instruction was proof beyond a reasonable doubt that [the defendant] deliberately
kept himself ignorant,” and (2) the evidence was sufficient to support a conviction
based on actual knowledge, but not necessarily overwhelming. Stone, 9 F.3d at
937-39. This is because juries are presumed to follow the judge’s instructions. Id.
at 938.
Here, the district court properly instructed the jury that it had to find that
Ekpo was deliberately ignorant beyond a reasonable doubt, and it is presumed that
the jury followed the judge’s instructions. See id. at 938-39. Moreover, the
district court instructed the jury on actual knowledge, and there is sufficient
evidence to support a conviction based on actual knowledge.
At trial, Ekpo denied that he had any knowledge of Medicare billing
procedures and stated that his son, Ini, was responsible for submitting all of
V & A’s claims to Medicare electronically. He also indicated that he did not
supervise his son’s work because he lacked expertise in Medicare billing and did
not know any of the billing codes. Ekpo denied knowledge of the fraudulent
claims submitted by his son and insisted that he did not learn about those claims
until well after the fact, when he received notice that some of the beneficiaries’
Medicare summaries indicated that they were billed for items they did not receive.
In contrast, Bridgett Flournoy, a former V & A employee, testified that she
confronted Ekpo about the items that were billed to Medicare, but not delivered to
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the beneficiaries, and indicated that Ekpo stated that he was trying to recover some
of the money he had spent on purchasing, delivering, and servicing a wheelchair to
a particular customer. Flournoy’s testimony was corroborated by a recorded
telephone conversation she had with Ekpo, who acknowledged that delivering a
POV to a beneficiary, but billing Medicare for a power wheelchair could “easily
get somebody into trouble,” and further admitted that “[a]ll [he] had wanted was to
find anywhere to get money back . . . . Money that [he] had spent on [the
customer’s] chair.”
Moreover, on cross-examination, Ekpo admitted that he directed employee
Ime Ikpe to prepare certificates of medical necessity and delivery tickets for power
wheelchairs rather than the POVs that were provided to the beneficiaries, and
expressed concern that Ikpe had recorded that the beneficiaries had received
scooters on delivery tickets and other documents. Ekpo also admitted that he
directed Ikpe to include items such as footrests and seat belts on the delivery
tickets, even though he knew that POVs did not come with such accessories. In
addition, Ekpo acknowledged that there were resources available to DME suppliers
to assist them with Medicare questions, but stated that he did not take advantage of
those resources.
When a defendant chooses to testify, we have held that “a statement by a
defendant, if disbelieved by the jury, may be considered as substantive evidence of
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the defendant's guilt. . . . To be more specific . . . when a defendant chooses to
testify, he runs the risk that if disbelieved the jury might conclude the opposite of
his testimony is true.” United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995)
(quotation omitted). Because the facts established at trial support a finding that
Ekpo was either actually aware of the fraudulent claims that were being submitted
to Medicare, or, alternatively, consciously avoided learning about Medicare rules
and regulations so as to avoid learning about those claims, the district court did not
clearly err in instructing the jury on both theories of actual knowledge and
deliberate ignorance. Accordingly, we affirm as to this issue.
II.
Under U.S.S.G. § 2B1.1, the base offense level for a theft offense involving
fraud or deceit is six. Where the resulting loss exceeds $5,000, the base offense
level increases. U.S.S.G. § 2B1.1(b)(1). A loss of more than $120,000 but less
than $200,000 adds 10 levels. U.S.S.G. § 2B1.1(b)(1)(F). In calculating loss
amounts, “loss is the greater of actual loss or intended loss.” U.S.S.G. § 2B1.1,
comment. (n.3(A)). “Actual loss” is the reasonably foreseeable pecuniary harm
resulting from the offense, and “intended loss” is the pecuniary harm that was
intended to result from the offense. U.S.S.G. § 2B1.1, comment. (n.3(A)(i) and
(ii)).
We review the district court’s amount-of-loss determination for clear error.
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United States v. Cabrera, 172 F.3d 1287, 1292 (11th Cir. 1999). The government
bears the burden of establishing the attributable loss by a preponderance of the
evidence. See United States v. Polar, 369 F.3d 1248, 1255 (11th Cir. 2004)
(addressing the applicability of Guidelines provisions that increase a defendant’s
offense level in the context of an offense involving counterfeit immigration
stamps). “The district court’s factual findings for purposes of sentencing may be
based on, among other things, evidence heard during trial, undisputed statements in
the PSI, or evidence presented during the sentencing hearing.” Id. “The
sentencing guidelines recognize that often the amount of loss caused by fraud is
difficult to determine accurately. Thus, courts may reasonably estimate that
amount.” United States v. Miller, 188 F.3d 1312, 1317 (11th Cir. 1999).
However, “[w]hile estimates are permissible, courts must not speculate concerning
the existence of a fact which would permit a more severe sentence under the
guidelines.” United States v. Sepulveda, 115 F.3d 882, 890 (11th Cir. 1997).
The record indicates that Ekpo did not and does not now dispute that
Medicare actually paid claims for power wheelchairs and accessories totaling
$164,590.43. Rather, Ekpo asserts that he did not intend for Medicare to suffer a
complete loss as a result of his fraudulent conduct and contends that, as a result,
the court erred by failing to reduce the loss amount based on what Medicare would
have paid for the POVs that were actually provided to the beneficiaries. The
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application notes to U.S.S.G. § 2B1.1 provide that the loss amount is to be reduced
by the amount of money or the fair market value of property or services rendered
that is returned to the victim before the offense was detected. U.S.S.G. § 2B1.1,
comment. (n.3(E)(i)). Because there is no evidence in the record to show that
V & A returned any of the money it received from Medicare for any of the claims
at issue, the district court did not clearly err in refusing to apply a credit to the loss
amount for the value of the POVs that were distributed. Similarly, there is no
evidence in the record to show that the beneficiaries would have been medically
eligible to receive POVs. Although the district court did not expressly mention the
terms “actual” and “intended” loss in overruling Ekpo’s objection, it indicated that
it considered the difference between the two amounts and found that the actual loss
was greater. For all these reasons, the district court did not clearly err by finding
that Ekpo was responsible for a loss amount of $164,590.43, and we affirm as to
this issue.
III.
For an obstruction of justice enhancement, we review the district court’s
findings of fact for clear error and the application of the Guidelines to those facts
de novo. United States v. Massey, 443 F.3d 814, 818 (11th Cir. 2006). “For a
factual finding to be ‘clearly erroneous,’ this court, ‘after reviewing all of the
evidence, must be left with a definite and firm conviction that a mistake has been
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committed.’” United States v. Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th Cir.
2004) (citation omitted). The Guidelines provide for a two-level increase in the
offense level
[i]f (A) the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice during the course of
the investigation, prosecution, or sentencing of the instant offense of
conviction, and (B) the obstructive conduct related to (i) the
defendant’s offense of conviction and any relevant conduct; or (ii) a
closely related offense . . . .
U.S.S.G. § 3C1.1. Perjury is among the examples of conduct warranting this
enhancement. Id., comment. (n.4(b)). “Perjury, for purposes of applying this
enhancement, has been defined by the United States Supreme Court as ‘false
testimony concerning a material matter with the willful intent to provide false
testimony, rather than as a result of confusion, mistake, or faulty memory.’”
United States v. Singh, 291 F.3d 756, 763 (11th Cir. 2002) (quoting United States
v. Dunnigan, 507 U.S. 87, 94, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993)).
Four elements are required to make a perjury finding: “(1) the testimony
must be under oath or affirmation; (2) the testimony must be false; (3) the
testimony must be material; and (4) the testimony must be given with the willful
intent to provide false testimony and not as a result of a mistake, confusion, or
faulty memory.” Singh, 291 F.3d 763 n.4. While specific findings as to each
instance of a materially false statement are preferable, we can affirm if “the district
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court makes a general finding of obstruction of justice that encompasses all of the
factual predicates of perjury.” United States v. Vallejo, 297 F.3d 1154, 1168 (11th
Cir. 2002) (quotation omitted).
Here, the district court did not clearly err in applying the obstruction
enhancement. We have stated that the district court may make a general
obstruction finding, as here, where it upheld the obstruction enhancement
specifically because it found that there were statements that were wholly
irreconcilable with the jury verdict. See Vallejo, 297 F.3d at 1168. The court was
making a finding that Ekpo’s testimony concerning his knowledge of the
fraudulent claims for wheelchairs and accessories constituted perjury, by
determining that it was irreconcilable with the jury verdict, similar to the court in
Vallejo, which found that the defendant had perjured himself because statements
that he made were contradicted by other witnesses. Additionally, the other
requirements of perjury were met: Ekpo made the statements at trial, under oath;
the statements were material, as they applied to his knowledge of the fraudulent
claims; and the court clearly did not believe that these statements were the result of
confusion or a faulty memory. See Singh, 291 F.3d at 763 n.4. Moreover, Ekpo’s
testimony was directly contradicted by Flournoy, who stated that he directed her to
use the same codes for power wheelchairs and POV’s, provided her with pre-
printed CMNs to submit to the beneficiaries’ doctors, and admitted that he billed
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Medicare for accessories in order to recover money that he had lost in the sale of a
wheelchair. Accordingly, the district court did not clearly err in applying a two-
level enhancement to Ekpo’s offense level and we affirm as to this issue.
IV.
We review the final sentence imposed by the district court for
reasonableness. United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005).
Unreasonableness may be procedural, when the court’s procedure does not follow
Booker’s 1 requirements, or substantive. See Gall v. United States, No. 06-7949,
slip op. at 12 (U.S. Dec. 10, 2007); United States v. Hunt, 459 F.3d 1180, 1182 n.3
(11th Cir. 2006). The Supreme Court has explained that a sentence may be
procedurally unreasonable if the district court improperly calculates the guideline
imprisonment range, treats the Guidelines as mandatory, fails to consider the
appropriate statutory factors, bases the sentence on clearly erroneous facts, or fails
to adequately explain its reasoning. Gall, No. 06-7949, slip op. at 12. The Court
also has explained that the substantive reasonableness of a sentence is reviewed
under an abuse-of-discretion standard. Id. It has suggested that review for
substantive reasonableness under this standard involves inquiring whether the
factors in 18 U.S.C. § 3553(a) support the sentence in question. Id. at 17.
When imposing a sentence, the district court must first correctly calculate
1
United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
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the Guidelines. United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005).
Second, the district court must consider the following factors to determine a
reasonable sentence:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need to reflect the seriousness
of the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of
sentences available; (7) the Sentencing Guidelines range; (8) pertinent
policy statements of the Sentencing Commission; (9) the need to
avoid unwanted sentencing disparities; and (10) the need to provide
restitution to victims.
Id. (citing 18 U.S.C. § 3553(a)). While the district court must consider the
§ 3553(a) factors, it is not required to discuss each factor. Id. Instead, we have
held that an explicit acknowledgment that the district court has considered the
defendant’s arguments and the § 3553(a) factors will suffice. United States v.
Scott, 436 F.3d 1324, 1329-30 (11th Cir. 2005); see also Rita v. United States, 551
U.S. __, 127 S.Ct. 2456, 2469, 168 L.Ed.2d 203 (2007) (holding that the
defendant’s sentence was reasonable when the district court considered the parties’
arguments and provided a reasoned basis for its choice of sentence).
“[T]here is a range of reasonable sentences from which the district court may
choose” and the burden of establishing that the sentence is unreasonable in light of
the record and the § 3553(a) factors lies with the party challenging the sentence.
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Talley, 431 F.3d at 788. We have held that a sentence within the guidelines range
is neither per se reasonable, nor entitled to a presumption of reasonableness. See
id. at 786-88; Hunt, 459 F.3d at 1185. However, the Supreme Court has held that,
in reviewing sentences for reasonableness under 18 U.S.C. § 3553(a), a federal
appellate court may apply a presumption of reasonableness to a district court
sentence imposed within the guideline range. Rita, 551 U.S. at ___, 127 S.Ct. at
2462. Nevertheless, it appears that, even in light of Rita, our previous holdings
remain intact. United States v. Campbell, 491 F.3d 1306, 1313 n.8 (11th Cir.
2007).
With regard to the procedural reasonableness of Ekpo’s sentence, the district
court imposed a procedurally reasonable sentence. See Gall, No. 06-7949, slip op.
at 12; Hunt, 459 F.3d at 1182 n.3. The district court acknowledged its obligation
to consider the advisory Sentencing Guidelines, along with the § 3553(a) factors,
in fashioning Ekpo’s sentence. See Gall, No. 06-7949, slip op. at 12. Moreover,
the record demonstrates that the district court correctly calculated the advisory
guideline range and considered the sentencing factors set forth in § 3553(a),
specifically, the nature and seriousness of the offense, Ekpo’s personal history and
characteristics, and the need to provide Ekpo with medical care. See id.; 18 U.S.C.
§ 3553(a)(1) and (5). The district court further considered the parties’ arguments
concerning the sentence to be imposed, and sufficiently explained its reasons for
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imposing the sentence. Gall, No. 06-7949, slip op. at 12.
To the extent Ekpo argues that the district court improperly applied a
presumption of reasonableness or effectively applied that Guidelines in a
mandatory fashion, when viewed in the context of the sentencing proceeding as a
whole, the district court’s statements indicate that it understood that the guidelines
were advisory, and that, while it had discretion to depart, it did not find that the
facts of the case justified a departure. Although the district court may or may not
have confused the concept of a downward departure pursuant to the Sentencing
Guidelines with the concept of a downward variance pursuant to § 3553(a), any
possible error arising from this confusion was harmless because there is no
evidence to show that Ekpo suffered prejudice as a result.
Ekpo also has not established that his sentence is substantively unreasonable.
See Gall, No. 06-7949, slip op. at 12; Hunt, 459 F.3d at 1182 n.3. Ekpo’s
27-month sentence was at the low-end of the advisory guideline range, and well
below the statutory maximum sentence of 10 years’ imprisonment. See 18 U.S.C.
§ 1347. The record indicates that the district court considered the nature and
seriousness of the instant offense, along with Ekpo’s lack of criminal history, his
family circumstances, his age, and his health, in determining that a Guidelines
sentence was appropriate. Therefore, the § 3553(a) factors supported the district
court’s sentence, and the district court did not abuse its discretion. See Gall, No.
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06-7949, slip op. at 12, 20. Thus, viewing the sentencing proceeding as a whole,
Ekpo’s sentence is reasonable, and we affirm as to this issue.
V.
Because Ekpo failed to raise a constitutional challenge to his sentence in the
district court, we review his claim only for plain error. See United States v.
Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), cert. denied, 125 S.Ct. 2935 (2005).
Under plain error review, “[a]n appellate court may not correct an error the
defendant failed to raise in the district court unless there is (1) error, (2) that is
plain, and (3) that affects substantial rights. If all three conditions are met, an
appellate court may then exercise its discretion to notice a forfeited error, but only
if (4) the error seriously affects the fairness, integrity, or public reputation of the
judicial proceedings.” Id. (quotations and citations omitted).
In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
(2000), the Supreme Court held that “[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
530 U.S. at 490, 120 S.Ct. at 2362-63. In Booker, the Supreme Court extended its
Apprendi line of cases to declare the mandatory application of the Sentencing
Guidelines to be unconstitutional, and reaffirmed its holding in Apprendi that
“[a]ny fact (other than a prior conviction) which is necessary to support a sentence
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exceeding the maximum authorized by the facts established by a plea of guilty or a
jury verdict must be admitted by the defendant or proved to a jury beyond a
reasonable doubt.” Booker, 543 U.S. at 232-33, 244, 125 S.Ct. at 749-50, 756.
Under Booker, a district court may commit both constitutional and statutory
error. United States v. Mathenia, 409 F.3d 1289, 1291 (11th Cir. 2005). A Booker
constitutional error violates an individual’s Sixth Amendment right to trial by jury
where a judge enhances an individual’s sentence based solely on judicially found
facts pursuant to a mandatory guidelines system. United States v. Paz, 405 F.3d
946, 948 (11th Cir. 2005). There is no constitutional error where a sentence is
enhanced based on judicial fact-finding beyond the facts admitted by the defendant
or found by the jury in a non-mandatory system. Rodriguez, 398 F.3d at 1300.
Booker statutory error is application of the guidelines as mandatory, rather than
advisory. Mathenia, 409 F.3d at 1291.
Here, no plain error exists in this case as to Ekpo’s Sixth Amendment
argument because the first prong of the plain error test is not satisfied. The district
court did not commit constitutional or statutory error under Booker because it
sentenced Ekpo under an advisory guidelines system. Rodriguez, 398 F.3d at
1300; Mathenia, 409 F.3d at 1291. There was also no error under Apprendi
because the district court did not sentence Ekpo above the statutory maximum of
10 years’ imprisonment, as authorized by 18 U.S.C. § 1347, for health care fraud.
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See Booker, 543 U.S. at 244, 125 S.Ct. at 756. Because there was no Booker error,
there is no reason to reach the remaining three prongs of the plain error test.
Moreover, as discussed above, Ekpo has failed to establish that his sentence of 27
months’ imprisonment was unreasonable. Accordingly, we affirm as to this issue.
In light of the foregoing, Ekpo’s sentence and conviction are
AFFIRMED.
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