FILED
NOT FOR PUBLICATION
OCT 20 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50220
Plaintiff-Appellee, D.C. No.
2:12-cr-01170-MWF-1
v.
ADELINE EKWEBELEM, AKA MEMORANDUM*
Maduabuchi,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Argued and Submitted October 5, 2016
Pasadena, California
Before: REINHARDT, WARDLAW, and OWENS, Circuit Judges.
Adeline Ekwebelem appeals her conviction and sentence for one count of
conspiracy to commit health care fraud, twelve counts of health care fraud, and
three counts of illegal remunerations for health care referrals. We have jurisdiction
under 28 U.S.C. § 1291. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1. The trial court did not err in holding that the “bona fide employment
relationship” safe harbor described in 42 U.S.C. § 1320a-7b(b)(2)-(3) is an
affirmative defense. The safe harbors are not mandatory for legal compliance but
rather describe certain per se legal activities. A contrary holding would lead to
absurd indictments requiring the government to plead the negative of every
enumerated safe harbor, even if it bore no connection to the facts. Furthermore,
even if the trial court erred in instructing the jury, any such error was harmless
because the evidence at trial established beyond a reasonable doubt that the
marketers whom Ekwebelem hired were independent contractors and thus fell
outside the safe harbor.
2. The trial court did not plainly err in accepting the government’s proffered
race-neutral reasons for striking Juror No. 3. First, it was not unreasonable for the
prosecution to distinguish Juror No. 3 from Juror No. 7, because Juror No. 3 might
have missed two days of trial, while Juror No. 7 might have missed one. Second,
Juror No. 3’s statement that her negative experiences with Medicare would cause
her to view the government’s case “cautiously” was a reasonable basis for the
government’s concern about Juror No. 3’s ability to be impartial.
3. The reference to Ekwebelem speaking “Nigerian” did not constitute plain
error. This unsolicited reference to “Nigerian” was not an “appeal[ ] to racial,
2
ethnic, or religious prejudice” and did not “encourage[ ] the jury to convict the
defendant[ ] on the basis of [her] membership in a particular ethnic group, rather
than on the strength of the government’s case.” United States v. Nobari, 574 F.3d
1065, 1073-75 (9th Cir. 2009) (quoting United States v. Cabrera, 222 F.3d 590,
594 (9th Cir. 2000)). Nor did this reference “affect[ ] the outcome of the district
court proceedings” or “seriously affect[ ] the fairness, integrity or public
reputation” of the proceedings, United States v. Marcus, 560 U.S. 258, 262 (2010)
(quoting Puckett v. United States, 556 U.S. 129, 135 (2009)), particularly in light
of the overwhelming evidence against Ekwebelem. Accordingly, this testimony
did not violate Ekwebelem’s constitutional rights.
4. The trial court did not plainly err by admitting evidence of default notices
against Ekwebelem’s real properties, because they were admitted as “evidence of a
specific and immediate financial need,” United States v. Bensimon, 172 F.3d 1121,
1129 (9th Cir. 1999), and thus were relevant to showing defendant’s motive.
5. The record evidence does not support Ekwebelem’s claim that her trial
counsel labored under an “actual conflict of interest” that “adversely affected [his]
performance.” United States v. Baker, 256 F.3d 855, 860 (9th Cir. 2001) (quoting
United States v. Moore, 159 F.3d 1154, 1157 (9th Cir. 1998)). Furthermore, her
trial counsel’s decision not to cross-examine certain witnesses was a reasonable
3
strategic decision. See United States v. Murray, 751 F.2d 1528, 1535 (9th Cir.
1985) (the “fail[ure] to cross-examine some witnesses . . . is a reasonable tactical
decision”). In any event, Ekwebelem expressly waived this claim by oral consent
prior to the start of trial.
AFFIRMED.
4