FILED
United States Court of Appeals
Tenth Circuit
February 3, 2009
Elisabeth A. Shumaker
PUBLISH Clerk of Court
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-3259
JOHNNIE FRANKLIN-EL,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF KANSAS
(D.C. No. 06-CR-40011-MLB)
Lawrence W. Williamson, Jr., Williamson Law Firm, L.L.C., Kansas City,
Kansas, for Defendant-Appellant.
Tanya J. Treadway, Assistant United States Attorney (Eric F. Melgren, United
States Attorney, with her on the brief), Topeka, Kansas, for Plaintiff-Appellee.
Before HOLMES, McKAY, and BALDOCK, Circuit Judges.
McKAY, Circuit Judge.
Defendant Johnnie Franklin-El appeals his seventeen convictions of health
care fraud and one conviction of obstruction of justice. The principal issue on
appeal is whether sufficient evidence supports these convictions. Defendant also
claims entitlement to a new trial on the grounds of: (A) prosecutorial misconduct
in closing argument, (B) erroneous admission of 404(b) evidence, and (C)
cumulative error. 1 We find Defendant’s obstruction of justice conviction to be
unsupported by sufficient evidence, but affirm the district court on the remaining
claims of error.
B ACKGROUND
As discussed more thoroughly in the companion case of United States v.
Peggy Franklin-El, No. 07-3257, the evidence at trial established that Defendant
and his spouse, Peggy Franklin-El, incorporated, owned, and operated The Great
Meeting Is On For Your Success, a nonprofit business that provided services to
the community. Both Defendant and Ms. Franklin-El were highly involved in the
business and worked as client counselors, and both were active in the drug and
alcohol treatment community for numerous years.
The record shows that from 1993 to 2003, the business survived mostly on
income from fundraising. Then, in 2003, The Great Meeting became eligible to
bill Medicaid for drug and alcohol treatment and case management services for
addicted clients. Defendant and Ms. Franklin-El attended a multi-day Medicaid
1
In a footnote in his principal brief, Defendant also moves to adopt the
constitutional argument his co-defendant, Peggy Franklin-El, raised in her brief in
the companion case, United States v. Peggy Franklin-El, No. 07-3257. In that
case, we affirmed the district court’s denial of Ms. Franklin-El’s constitutional
vagueness argument, and our reasoning and judgment apply equally here.
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billing class as a prerequisite to this eligibility. Defendant’s continuing education
record, which was introduced as evidence, indicates he attended each session, and
the trainer testified Defendant attended. The record shows that at the training,
Defendant and Ms. Franklin-El were taught the assessment and authorization
requirements as well as the processes for Medicaid billing. At trial, Defendant
testified on his own behalf. He disputed that he attended all of the training but
admitted he attended some.
Over the course of seventeen months, The Great Meeting submitted 1331
claims to Medicaid—counts two through fifty-three are representative of these.
Both a billing expert and a medical expert testified that all fifty-two claims were
false in numerous respects and none should have been paid. In fact, the billing
expert reviewed all 1331 claims and found them all to be false and fraudulent.
Specifically, the falsities consisted of: (1) indicating clients (including children)
were addicted to drugs and alcohol when they were not, (2) claiming Defendants
had provided drug and alcohol treatment when they had not, (3) indicating
Defendants performed two assessments, when they really performed only one, (4)
claiming services had been provided where no documentation supported these
claims, and (5) implicitly representing that services were authorized by the
regional assessment center when they were not.
The government presented evidence showing Defendant actively
participated in a number of these schemes. For instance, documents allegedly
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signed by Defendant indicated a child, Gary H., was not using alcohol or drugs
while also indicating that he needed drug and alcohol services and that such
services were being provided. Another document showed Austen W., a nine-year-
old client, was receiving individual and group therapy. At trial, Defendant
admitted he was listed as Austen’s counselor, but denied memory of Austen.
Defendant testified that, according to an initial assessment form, Austen had no
addiction and would have no reason to receive addiction treatment, that is,
individual or group therapy. Yet, The Great Meeting billed for individual and
group therapy for Austen.
Further, Defendant admitted at trial that at least some of his clients—the
children in particular—were not addicted to drugs or alcohol. This admission fits
with evidence introduced by the government that it is not considered clinically
possible to diagnose or treat anyone under age twelve as an addict. Nonetheless,
The Great Meeting submitted claims for two children who were only weeks old
and several children who were Defendant and Ms. Franklin-El’s relatives.
Defendant also admitted The Great Meeting provided transportation, after-school
care, meals, and similar services, and that these services did not constitute
addiction treatment. Defendant himself even provided some of these services.
All in all, The Great Meeting received more than $420,000 from Medicaid for
drug and alcohol claims for children alone.
Fact witnesses testified to Defendant’s role in specifically recruiting people
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with Medicaid cards. For instance, Defendant, along with Ms. Franklin-El,
suggested a relative obtain a Medicaid card and turn it over to The Great Meeting
in exchange for a rent-free place to live. The relative did so. Later, after she had
problems obtaining grief counseling due to The Great Meeting’s use of her card,
the relative confronted Ms. Franklin-El. Ms. Franklin-El threatened to throw her
out of the house, and Defendant changed the locks on the house several times.
Through all this, the relative received no counseling from The Great Meeting.
Defendant also participated in the administrative aspects of The Great
Meeting’s Medicaid billing. Tracy Wagner, the government’s billing expert,
testified to her firsthand knowledge of this. Ms. Wagner worked for Electronic
Data Systems, a company that contracted with Kansas Medicaid. After
investigating and determining none of The Great Meeting’s Medicaid claims
should have been paid, Ms. Wagner sought to recoup the funds The Great Meeting
had received. According to Ms Wagner, Defendant actively pursued The Great
Meeting’s appeal of the recoupment. He spoke with Ms. Wagner numerous times,
arguing the claims should have been paid. In Ms. Wagner’s opinion, during these
conversations, Defendant showed an understanding of which claims had been
submitted for which services and knowledge that the claims were for drug and
alcohol treatment. Ms. Wagner attested that Defendant also voiced his
understanding of the claims at numerous in-person meetings at the Office of Fair
Hearings in Topeka, Kansas.
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Additionally, Defendant participated with Ms. Franklin-El in an
administrative review hearing on November 12, 2003. A verbatim transcript of
this hearing was admitted into evidence at trial. The hearing was an appeal of
two of The Great Meeting’s claims for alcohol and drug treatment which had been
denied by the Kansas Medikan program. Medikan is a state program similar in
some ways to Medicaid, but with different enrollment criteria and stricter
limitations on services. Because Ms. Franklin-El testified that she believed the
Medikan clients to be covered by Medicaid at the time they received services, the
defendants discussed Medicaid at the hearing. Defendant tacitly supported Ms.
Franklin-El’s claim that the clients were addicts who had received drug and
alcohol treatment. However, the government’s experts testified at trial that there
is no indication any such treatment was provided.
The government presented evidence that Defendant personally benefitted
from The Great Meeting’s Medicaid funds, receiving more than $186,000 of the
more than $1.24 million in Medicaid money The Great Meeting obtained.
Finally, the government presented evidence that after the investigation
began, The Great Meeting submitted preauthorization documents to the regional
assessment center. On September 16, 2004, Defendant and Ms. Franklin-El
received a request for records, including proof the regional assessment center had
authorized the billed services. Then, on October 28, 2004, they were served with
a federal subpoena requesting the records. Shortly thereafter, The Great Meeting
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started submitting preauthorization documents to the center. In November 2004
alone, documents for thirty clients were submitted. Additionally, the government
established that after Defendant received the federal subpoena, he met with The
Great Meeting’s accountant and asked him to recreate transactions to determine
whether they were business-related or personal.
The government ultimately charged Defendant with (1) conspiracy, (2)
obstruction, (3) fifteen counts of money laundering, and (4) fifty-two counts of
health care fraud. He stood trial with Ms. Franklin-El. A jury convicted him of
seventeen counts of health care fraud—reflecting only the claims The Great
Meeting made on behalf of children. The jury also convicted him of obstruction,
conspiracy, and money laundering. However, as in Ms. Franklin-El’s case, the
district court declared a mistrial on the conspiracy count because of the jury’s
failure to identify which substantive crime Defendant and Ms. Franklin-El
conspired to commit. The court also declared a mistrial on the money laundering
counts because of a jury instruction error. The court granted the government’s
later motion to dismiss these charges. One additional count of conviction related
to forfeiture. However, like Ms. Franklin-El, Defendant waived a jury trial on
that count and has not complained about the final forfeiture amount imposed.
The court sentenced Defendant to ninety-two months’ imprisonment (the
bottom end of the guideline range) on each of the fraud counts and to sixty
months on the obstruction count, all to run concurrently. The court also ordered
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Defendant to serve two years of supervised release.
D ISCUSSION
I. Sufficiency of the Evidence
Defendant first challenges the sufficiency of the evidence supporting his
convictions for health care fraud and obstruction. 2
A. Health Care Fraud
As with Ms. Franklin-El, Defendant’s convictions for health care fraud
were based on the Medicaid claims The Great Meeting submitted. Defendant
generally claims the government presented insufficient evidence of his intent to
defraud, without addressing any of his seventeen convictions individually.
We review this challenge de novo, determining whether, “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[s] beyond a reasonable
doubt.” United States v. McPhilomy, 270 F.3d 1302, 1307 (10th Cir. 2001)
(internal quotation marks omitted). “By viewing the evidence in the light most
favorable to the government, we necessarily resolve any conflicts in the evidence
2
Defendant also argues that because the conspiracy charges were ultimately
dismissed, the underlying charges must necessarily fail. However, the district
court’s declaration of a mistrial (and subsequent dismissal) as to the conspiracy
count due to the jury’s failure to identify which substantive crime Defendant and
Ms. Franklin-El conspired to commit has no effect on the underlying charges.
The case Defendant relies upon, United States v. Migliaccio, 34 F.3d 1517 (10th
Cir. 1994), cannot be stretched to support this proposition.
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in favor of the government and we assume the trier of fact found that evidence
credible.” United States v. Williamson, 53 F.3d 1500, 1516 (10th Cir. 1995).
Accordingly, we do not reweigh conflicting evidence or consider the credibility of
witnesses. Id. “In this respect, we must defer to the jury’s resolution.” United
States v. Brooks, 438 F.3d 1231, 1236 (10th Cir. 2006).
The government charged Defendant with health care fraud and with aiding
and abetting health care fraud. To prove Defendant violated 18 U.S.C. § 1347,
the government had to show he “knowingly and willfully” executed or attempted
to execute a scheme to defraud a health care benefit program or a scheme to
obtain a health care benefit program’s money or property through false pretenses,
representations, or promises. 18 U.S.C. § 1347. To establish knowledge and
willfulness, “‘the Government must prove that the defendant acted with
knowledge that his conduct was unlawful.’” Bryan v. United States, 524 U.S.
184, 191–92 (1998) (quoting Ratzlaf v. United States, 510 U.S. 135, 137 (1994)).
We conclude the government presented sufficient evidence of Defendant’s
individual intent to defraud.
Significantly, the government presented evidence that The Great Meeting’s
records contained misrepresentations of the status of some of Defendant’s clients.
For instance, documents allegedly signed by Defendant characterized Gary H. as
non-addicted, yet in need of drug and alcohol treatment. And the Great Meeting
billed for another child client’s addiction treatment, even though Defendant
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admitted that, based on the initial assessment, the child would have no reason to
receive such treatment.
Also notable is the evidence of Defendant’s involvement in the Medikan
hearing and in The Great Meeting’s appeal of the recoupment. At the Medikan
hearing, Defendant tacitly agreed that The Great Meeting had provided addiction
treatment to two clients whose Medikan coverage was at issue. Yet the
government’s experts testified there was no evidence the Medikan clients received
any such treatment. Moreover, Ms. Wagner, a government expert, testified that
Defendant revealed his understanding of The Great Meeting’s Medicaid billing
during the company’s appeal of the recoupment. In her opinion, Defendant knew
the Medicaid claims were for drug and alcohol treatment and knew which claims
had been submitted for which services. In conjunction with Defendant’s trial
admissions that the children and other clients were not addicts and that the
support services offered by The Great Meeting did not constitute addiction
treatment, this evidence supports a reasonable inference that Defendant was
aiding and abetting the scheme to submit fraudulent Medicaid claims.
But there is more. The government also established Defendant’s active role
in obtaining Medicaid cards for billing purposes. One witness testified that
Defendant and Ms. Franklin-El both encouraged a relative to provide her
Medicaid card to them in exchange for a rent-free place to live. Defendant later
changed the locks of the home numerous times when she challenged The Great
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Meeting’s use of the card. Further, the government presented evidence that
Defendant attended Medicaid billing training. Although Defendant denied
attending all of the training, it was reasonable for the jury to reject this testimony
in light of the trainer’s testimony and Defendant’s continuing education records.
Finally, like Ms. Franklin-El, Defendant significantly profited from the scheme.
Defendant next argues that United States v. Rahseparian, 231 F.3d 1257
(10th Cir. 2000), mandates reversal of his health care fraud convictions. In
Rahseparian, we found no evidence establishing that the defendant knew a
fraudulent business was not legitimate. Four out of the five pieces of evidence
the government relied upon were consistent with a lawful business. The final
piece—the defendant’s false exculpatory statements—was not enough, alone, to
prove the defendant’s knowledge and intent. Defendant claims evidence of his
knowledge and intent is similarly lacking in this case, but we find the evidence of
intent to be greater than in Rahseparian. Defendant’s knowledge of Medicaid
billing and The Great Meeting’s billing practices, his misrepresentation of Gary
H.’s addiction status in client care documents, his $5,000 a week profit from
Medicaid proceeds, and his active steps to obtain others’ Medicaid cards is
enough to establish Defendant’s intent to defraud.
Finally, Defendant complains about the prosecutor’s conduct at trial.
Although Defendant characterizes this final claim as a sufficiency challenge, it is
more a claim of trial error. Specifically, Defendant contends the prosecutor’s use
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of the pronoun “they” to refer to the defendants at trial led the jury to confuse and
conflate the evidence against Ms. Franklin-El with the evidence against
Defendant. We disagree. Although the government’s pigeonholing of the
defendants is concerning, defense counsels’ regular objections prevented jury
confusion. The record reflects that the court largely sustained defense counsels’
objections, requiring the prosecutor to refer to the defendants individually. 3
Although there were instances where the prosecutor’s grouping of the defendants
went unaddressed because defense counsel did not object, the court’s overall
pattern of sustaining the objections and correcting the prosecutor adequately
signaled to the jury the need to individually view the evidence.
Taken in the light most favorable to the government, we conclude the
evidence supports a finding beyond a reasonable doubt that Defendant knowingly
and willfully executed, attempted to execute, or aided and abetted the execution
of a scheme to defraud a health care benefits plan. Accordingly, we sustain his
convictions of health care fraud.
B. Obstruction
Defendant next argues the evidence was insufficient to support his
3
Because there is no indication Defendant complained of the court’s
cure—instructing the prosecutor to separate out the defendants—this claim is
subject to plain error review. See United States v. Taylor, 514 F.3d 1092, 1095
(10th Cir. 2008). However, even if we review the ruling de novo, see United
States v. Pulido-Jacobo, 377 F.3d 1124, 1134 (10th Cir. 2004), it fails.
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conviction for obstructing justice. Defendant concedes our review is for plain
error, as he did not move for judgment of acquittal on the obstruction conviction
at trial. Therefore, to secure relief, Defendant must show: (1) an error, (2) that is
plain (clear or obvious under current law), and (3) that affects substantial rights.
United States v. Goode, 483 F.3d 676, 681 (10th Cir. 2007). If Defendant
satisfies these criteria, we may exercise discretion to correct the error if it
“seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (internal quotations marks omitted). We find this to be one of
the unusual cases where Defendant has met this standard.
To establish Defendant obstructed or attempted to obstruct justice, the
government had to show he willfully prevented, obstructed, misled, or delayed
“the communication of information or records relating to a violation of a Federal
health care offense to a criminal investigator” or attempted to do so. 18 U.S.C. §
1518. Defendant contends the government failed to establish willfulness or
intent. We agree.
The government largely relies upon evidence that only after Defendant was
served with a federal subpoena seeking specific client records (including records
of preauthorizations for the Medicaid claims), did The Great Meeting submit
requests for preauthorization to the regional center. Defendant contends this
evidence is meaningless because the government presented no evidence tying him
to any attempts to submit preauthorization forms. In its responsive brief, the
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government does nothing to address this concern. The government does not
establish Defendant’s individual participation in these submissions, nor does it
appear from the record that it could do so. The evidence shows Ms. Franklin-El,
not Defendant, spoke with a Kansas Medicaid consultant while she filled out
several of these client preauthorizations forms. Therefore, evidence relating to
the belated preauthorizations is inapposite to Defendant’s willfulness or intent.
The government also presented evidence that Ms. Franklin-El transferred
more than $162,000 in Medicaid proceeds from her personal account to a newly-
created Success, Inc., savings at a commercial bank. This—again—relates only to
Ms. Franklin. It does not link Defendant to any effort to hide wrongdoing.
The government’s strongest evidence is that, near the time he received the
federal subpoena, Defendant went to the home of the company’s accountant and
asked him to recreate the transactions of The Great Meeting. Defendant
explained to the accountant that he and Ms. Franklin-El might be under
investigation. He asked the accountant to go over all their transactions and
determine whether they were business-related or personal. The accountant
characterized this as a request to “help them look over their receipts and help
them get everything in order.” (R. Vol. 16 at 1429.) Nothing in the accountant’s
testimony would support an inference that Defendant exhibited any intent to
prevent, obstruct, mislead, or delay. Accordingly, the evidence is insufficient for
a jury to reasonably conclude beyond a reasonable doubt that Defendant was
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trying to obstruct justice.
In light of this lack of evidence, we find the court plainly erred by allowing
this conviction to stand. This error certainly affected Defendant’s substantial
rights. Moreover, our failure to mandate reversal of a conviction resting on
insufficient evidence in this case would “seriously affect[] the fairness, integrity
or public reputation of judicial proceedings.” Goode, 483 F.3d at 681. Therefore,
we must reverse Defendant’s conviction for obstruction of justice.
II. Motion for a New Trial
Defendant next claims entitlement to a new trial due to prosecutorial
misconduct in closing argument, erroneous admission of 404(b) evidence, and
cumulative error. None of these claimed errors were raised below, so all are
subject to plain error review. See Goode, 483 F.3d at 681.
A. Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct in her rebuttal
argument by improperly vouching for a witness, calling Defendant a liar, aligning
Defendant with a criminal and former addict, and improperly attacking the
defense expert.
In reviewing Defendant’s claim of prosecutorial misconduct, the main issue
to be decided is not the appropriateness of the prosecutor’s comments but, rather,
whether the comments constitute misconduct rising to the level of plain error.
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This distinction is important because the line between proper and improper
advocacy is inexact, see United States v. Young, 470 U.S. 1, 7 (1985), and even
improper conduct does not in all cases warrant reversal of a conviction. “‘[A]
criminal conviction is not to be lightly overturned on the basis of a prosecutor’s
comments standing alone, for the statements or conduct must be viewed in
context; only by doing so can it be determined whether the prosecutor’s conduct
affected the fairness of the trial.’” United States v. Kravchuck, 335 F.3d 1147,
1153 (10th Cir. 2003) (quoting Young, 470 U.S. at 11).
Defendant first argues the prosecutor improperly vouched for the credibility
of a witness, LaShekia Edwards, by saying, “And when she had no reason to lie,
she told them the truth about who was in charge of the billing. It was Peggy.”
(R. Vol. 14 at 2462.) An argument is only improper vouching “‘if the jury could
reasonably believe that the prosecutor is indicating a personal belief in the
witness’ credibility, either through explicit personal assurance of the witness’
veracity or by implicitly indicating that information not presented to the jury
supports the witness’ testimony.’” United States v. Magallanez, 408 F.3d 672,
680 (10th Cir. 2005) (quoting United States v. Bowie, 892 F.2d 1494, 1498 (10th
Cir. 1990)). With this comment, the prosecutor expressed no personal belief
about Ms. Edwards’ veracity, nor did she make any personal assurances or
reference information outside the record. Instead, she simply argued Ms.
Edwards had no motive to lie at the time she spoke with investigative agents.
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This argument is not plainly erroneous.
With the same breath he uses to allege the prosecutor vouched for Ms.
Edwards’ credibility, Defendant claims the prosecutor improperly denounced her
by commenting, “The government witness did not take the stand and tell
Whoppers like the defendant and the witness LaShekia did.” (R. Vol. 14 at
2465.) Defendant also argues the prosecutor improperly impugned his credibility
and that of Ms. Edwards with the following statements:
The defendants took the stand in their own defense and sponsored
some witnesses in what I’m going to call their Burger King defense,
because boy, we heard some Whoppers.
(Id. at 2461.)
Next, we have the defendants who simply did not tell you the truth,
ladies and gentlemen.
(Id. at 2462.)
[O]r you can believe the defendants’ tall ta[le] and LaShekia whose
lies have been repeatedly highlighted during the trial. You can
believe the witnesses who have no incentive to lie, and whose every
word is corroborated by a document or another witness; or you can
believe the two people in this courtroom who have every incentive to
lie.
(Id. at 2468.)
In short, Defendant objects to the prosecutor’s comments on the veracity
and motive for dishonesty of Ms. Edwards and Defendant. However, “[w]e have
not . . . established that referring to testimony as a lie constitutes per se
prosecutorial misconduct.” United States v. Hernandez-Muniz, 170 F.3d 1007,
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1012 (10th Cir. 1999). Further, the prosecutor placed her somewhat indelicate
comments within the context of the evidence. For instance, after saying the
defendants had not told the truth, the prosecutor continued, “[t]heir testimony is
completely inconsistent with the evidence and common sense.” (R. Vol. 14 at
2462.) The prosecutor then detailed the inconsistencies as she saw them. The
prosecutor provided similar context for her statement about Ms. Edwards: “Her
credibility was completely demolished by Agent Harshaw[’s] rendition of all the
false denials she made on the witness stand.” (Id. at 2461–62.) On cross-
examination, Ms. Edwards had denied making various statements to investigators,
but an investigator later rebutted her denials. In light of this, the prosecutor’s
comment on Ms. Edwards’ credibility and motive for dishonesty was grounded in
evidence. Indeed, the prosecutor’s attempt to contrast the witnesses’ testimony
with the evidence is akin to reminding the jury of the need to determine witness
truthfulness.
Additionally, many of the prosecutor’s comments were responsive to
defense counsel’s closing in which he discussed numerous witnesses’ credibility
and questioned their motives to tell the truth. In particular, defense counsel
focused on Defendant’s credibility, even going so far as to say, “when Johnnie
Franklin-El took the witness stand, he absolutely told you the entire truth.” (Id.
at 2447.) “Prosecutors have considerable latitude to respond to an argument made
by opposing counsel.” Hernandez-Muniz, 170 F.3d at 1012. Accordingly, in
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context, we do not believe these remarks by the prosecutor to be misconduct.
Next, Defendant claims the following testimony prejudiced him by aligning
him with Shelly Harding, a former drug addict with a criminal history. First, the
prosecutor elicited testimony about Ms. Harding from Ms. Franklin-El during
cross-examination:
Q. Did you know Shelly has a similar background to you, don’t
you, ma’am? Including time in prison, including addiction,
isn’t that right?
A. Yes.
Q. And that’s probably one of the reasons you’re best friends,
isn’t it, you have a lot in common, right?
A. I wouldn’t say that.
Q. And she ran a drug and alcohol abuse treatment [center] in
Wichita called A New Beginning, didn’t she?
A. I know she worked there.
Q. She and her husband Lorenzo ran that, didn’t they?
A. To my knowledge.
Q. And A New Beginning was a Medicaid provider before you
were, isn’t that correct?
A. I guess so. Now, I really don’t know what A New Beginning
did.
Q. In fact, you talked a lot with Shelly Harding . . . about the fact
that she was making a lot of money from Medicaid, didn’t
you?
A. I did.
(R. Vol. 13 at 2215–16.) The prosecutor then remarked during her rebuttal
argument, “Who were the two top folks in terms of payment per
beneficiary? The defendants and best friend Shelly Har[d]ing at A New
Beginning. Birds of a feather, ladies and gentlemen.” (R. Vol. 14 at 2467.)
Defendant argues the prosecutor’s references to Ms. Harding had the
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sole purpose of showing Defendant’s own propensity to commit health care
fraud. Generally, propensity evidence consists of such things as a
“defendant’s prior trouble with the law, specific criminal acts, or ill name
among his neighbors.” United States v. Enjady, 134 F.3d 1427, 1430 (10th
Cir. 1998) (emphasis added) (internal quotation marks omitted). It is not
clear how evidence of a third party’s history would constitute propensity
evidence, creating “the risk that a jury will convict for crimes other than
those charged—or that, uncertain of guilt, it will convict anyway because a
bad person deserves punishment.” Old Chief v. United States, 519 U.S.
172, 181 (1997) (internal quotation marks omitted). This is especially true
in this case, where the prosecutor focused mainly on Ms. Franklin-El’s
relationship with Ms. Harding.
Moreover, the evidence had a direct purpose. It was introduced to
show where Ms. Franklin-El may have obtained information about making
money from Medicaid. Although Ms. Franklin-El denied obtaining advice
from Ms. Harding, the record shows the two were best friends and talked
about Medicaid money. The government introduced evidence that The
Great Meeting ranked second out of seventy-nine drug and alcohol
treatment providers in Kansas for Medicaid dollars received per beneficiary
from June 2003 through November 2004. The only company ranked higher
was A New Beginning, Ms. Harding’s company. Finally, the government
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introduced evidence that Ms. Franklin-El attempted to use Ms. Harding as
an expert in The Great Meeting’s administrative hearings. In light of all
this, the prosecutor’s comments were relevant to show Ms. Franklin-El may
have been patterning her scheme on the practices of Ms. Harding.
Defendant also claims the prosecutor improperly attacked his expert
by saying in rebuttal, “The defendants had to go all the way to Missouri to
find some blow hard expert who talked a lot but said very little of
significance in this case.” (R. Vol. 14 at 2460.) The government maintains
this comment accurately reflected the expert’s demeanor and what the
government characterizes as his lengthy and irrelevant narratives. Accurate
or not, the use of the term “blow hard” does not constitute prosecutorial
misconduct per se, let alone misconduct constituting plain error. The main
effect of the prosecutor’s comment was to remind the jury of its duty to
scrutinize and weigh all witness testimony, including that of experts.
Therefore, the court did not plainly err in allowing the statement.
Moreover, although Defendant concedes the plain error standard is
appropriate to review his claims of prosecutorial misconduct, he makes no
attempt to establish prejudice. For these reasons, we affirm the district
court.
B. Rule 404(b) Evidence
Defendant next argues the court admitted evidence of his wrongful
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receipt of welfare benefits in violation of Rule 404(b) of the Federal Rules
of Evidence.
We review this claim for plain error. Initially, Defendant filed a
Motion in Limine with regard to the welfare benefits issue. When the court
addressed the motion, it noted the evidence was likely admissible, but
delayed issuing a ruling because of insufficient information on “exactly
what this evidence is going to be.” (R. Vol. 16 at 1547.) The court then
instructed defense counsel to object at the appropriate time, so it could
“make timely rulings.” (Id.) Because defense counsel made no later
objection, the claim is properly reviewed for plain error. However, even
under an abuse of discretion standard, we would affirm.
Rule 404(b) governs the admission of “other crimes, wrongs, or
acts.” Fed. R. Evid. 404(b). A court ruling on Rule 404(b) admissibility
must examine the following four factors: “(1) whether the evidence is
offered for a proper purpose, (2) its relevancy, (3) that the probative value
of the evidence is not substantially outweighed by its prejudicial effect, and
(4) a limiting instruction is given if the defendant so requests.” United
States v. Mares, 441 F.3d 1152, 1156 (10th Cir. 2006) (citing Huddleston v.
United States, 485 U.S. 681, 691 (1988)).
The first reference to Defendant’s receipt of welfare benefits arose
when the prosecution cross-examined Ms. Franklin-El about “repayment of
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loan” notations she wrote on many of the weekly checks issued to
Defendant by The Great Meeting. Ms. Franklin-El denied knowing
Defendant received welfare and general assistance in 2004—the same time
period in which he was paid $5,000 a week from Medicaid proceeds. The
prosecutor inquired into the issue no further. Then, during direct
examination, Defendant tried to explain why he was receiving state benefits
and during which time periods it was received. Defendant testified he
stopped using the welfare benefits before he received his first paycheck
from Ms. Franklin-El. It was defense counsel who first referred to the
conduct as “welfare fraud” in eliciting testimony from Defendant. (R. Vol.
13 at 2260.) And defense counsel first questioned Defendant about the
civil petition filed against Defendant claiming he defrauded Kansas Social
and Rehabilitation Services, opening the door for the prosecutor’s cross-
examination.
In short, very little evidence of Defendant’s receipt of welfare
benefits was introduced, and the most damaging evidence came from
Defendant himself. In light of this, it is difficult to see how the court erred
or abused its discretion by admitting the evidence. Indeed, the evidence
may even be considered part of the ongoing narrative necessary to describe
the context of the charges. The prosecutor used the evidence to establish
that the money The Great Meeting paid to Defendant could not have been
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in repayment of loans because if Defendant was so indigent as to need state
assistance, he would be unable to make such loans in the first place.
Defendant also appeals the admission of evidence of his drug
addiction and criminal background, but he fails to discuss any of the facts
surrounding this evidence. Our review of the record reveals no indication
Defendant objected to this evidence before the trial court. Moreover,
Defendant himself openly testified to his criminal background and prior
drug addiction on direct examination. The testimony seems geared toward
showing Defendant’s longstanding reformation and rehabilitation.
Consequently, we cannot say the district court erred by admitting this
evidence.
C. Cumulative Error
Lastly, Defendant claims the effect of cumulative error at his trial
mandates the reversal of his convictions. He argues the evidence against
him is weak enough that the improper statements and prejudicial evidence
became the lynchpin of the jury verdict. The government contends simply
that none of Defendant’s claims of error actually amounted to error.
“A cumulative-error analysis merely aggregates all the errors that
individually have been found to be harmless, and therefore not reversible,
and it analyzes whether their cumulative effect on the outcome of the trial
is such that collectively they can no longer be determined to be harmless.”
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United States v. Rivera, 900 F.2d 1462, 1470 (10th Cir. 1990). The
“cumulative-error analysis applies where there are two or more actual
errors. It does not apply, however, to the cumulative effect of non-errors.”
Moore v. Gibson, 195 F.3d 1152, 1175 (10th Cir. 1999) (internal quotation
marks omitted); see also Workman v. Mullin, 342 F.3d 1100, 1116 (10th
Cir. 2003) (noting that cumulative error analysis requires at least two
errors). Here, Defendant has failed to establish the existence of multiple
errors. Thus, we refrain from engaging in a cumulative error analysis.
C ONCLUSION
For the foregoing reasons, we REVERSE Defendant’s conviction for
obstruction of justice, but otherwise AFFIRM the district court.
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