                                                                                    FILED
                                                                        United States Court of Appeals
                                       PUBLISH                                  Tenth Circuit

                      UNITED STATES COURT OF APPEALS                         October 15, 2013

                                                                            Elisabeth A. Shumaker
                                   TENTH CIRCUIT                                Clerk of Court


 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,
                                                             No. 12-6034
 v.

 OLALEKAN RUFAI,

       Defendant - Appellant.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE WESTERN DISTRICT OF OKLAHOMA
                      (D.C. NO. 5:11-CR-00030-D-2)


Paul Antonio Lacy, Assistant Federal Public Defender, Office of the Federal Public
Defender, Oklahoma City, Oklahoma, appearing for Appellant Olalekan Rufai.

Amanda Maxfield Green, Assistant United States Attorney (Sanford C. Coats, United
States Attorney, with her on the brief), Office of the United States Attorney, Oklahoma
City, Oklahoma, appearing for Appellee.


Before MATHESON, EBEL, and O’BRIEN, Circuit Judges.


MATHESON, Circuit Judge.


      At a joint trial, a jury acquitted Olalekan Rufai and Adedayo Adegboye of one

count of conspiracy to commit health care fraud, pursuant to 18 U.S.C. § 1349, and

convicted them of five counts of aiding and abetting health care fraud, pursuant to 18
U.S.C. §§ 1347 and 2. The Government and Mr. Rufai agree that an unindicted third

party, Joshua Ohaka, knowingly filed fraudulent claims on behalf of the medical

equipment company set up by the Defendants. Mr. Rufai argues that the trial evidence

was insufficient to show that he knowingly and willfully participated in the fraud.

Exercising jurisdiction under 28 U.S.C. § 1291, we agree and reverse Mr. Rufai’s

convictions on all counts.

                                  I. BACKGROUND1

                                 A. Factual Background

       This case concerns fraudulent Medicare claims filed by Joshua Ohaka through a

durable medical equipment (“DME”) provider called First Century Medical Supply

(“First Century”). Mr. Rufai and Mr. Adegboye incorporated and set up First Century

and served as First Century’s legal face. Mr. Ohaka fled the country when he was

       1
          Mr. Rufai and Mr. Adegboye were tried together. The issues they raise on
appeal are similar. This background section addresses the information necessary to frame
the issues in both appeals and is incorporated in the separate opinion for Mr. Adegboye’s
appeal. We therefore cite to the record from both appeals. We cite to the record from
Mr. Rufai’s case as “Rufai ROA, Vol. [volume number] at [page number].” We cite to
the record from Mr. Adegboye’s case as “Adegboye ROA, Vol. [volume number] at
[page number].” In Mr. Rufai’s case, the trial transcript is found at Rufai ROA, Vol. 2,
and in Mr. Adegboye’s case, the trial transcript is found at Adegboye ROA, Vol. 3. The
trial transcript has its own internal pagination, independent of that in either ROA. For
simplicity, we will cite to “Trial Tr.,” followed by the page number from the transcript’s
internal pagination.
         Mr. Rufai and the Government did not supply the trial exhibits until ordered to do
so after oral argument. Mr. Adegboye did not present any exhibits at trial. We cite to
Mr. Rufai’s exhibits as “Defendant Rufai Trial Ex. # [exhibit number].” Similarly, we
cite to the Government’s trial exhibits as “Government Trial Ex. # [exhibit number],
Aplee. Suppl. Appx. at [page number].”

                                            -2-
indicted in federal district court in Texas in July 2009 for fraud involving another DME

company, Luant and Odera (“Luant”). Mr. Rufai and Mr. Adegboye were convicted of

aiding and abetting the fraudulent claims First Century billed to Medicare on behalf of

five beneficiaries. Although Mr. Ohaka was not indicted in this case, the parties agree

that he perpetrated the frauds at issue.

       We begin with some brief background on how Medicare is billed for durable

medical equipment. We then introduce the individuals involved with First Century

followed by a description of Mr. Ohaka’s DME companies and First Century’s history,

including the Government’s investigation of the fraud at First Century.

1. Medicare and Durable Medical Equipment Providers

       “Medicare is a federal insurance program which provides health benefits for

elderly and disabled individuals.” United States ex rel. Sikkenga v. Regence Bluecross

Blueshield of Utah, 472 F.3d 702, 706 (10th Cir. 2006). Medicare Part A, which is not

involved in this case, “provides for basic in-patient hospital services, nursing home and

hospice care, and, in some instances, home health services.” Id. Medicare Part B is a

voluntary supplemental insurance program funded in part by appropriations from the

federal government and in part from monthly premiums paid by individuals who choose

to enroll. See Schweiker v. McClure, 456 U.S. 188, 189-90 (1982). Part B, which is

involved in this case, provides reimbursement for “physician services, outpatient hospital

care and a range of other noninstitutional services, such as ambulance services, durable

medical equipment, diagnostic laboratory tests and X-rays.” United States v. Suba, 132
                                            -3-
F.3d 662, 665 n.3 (11th Cir. 1998).

       The United States Department of Health and Human Services (HHS) administers

Medicare. “HHS contracts with insurance companies (fiscal intermediaries) [and

carriers] to distribute Medicare funds. The fiscal intermediary [or carrier] pays the

Medicare funding to” health care providers—in this case, DME providers. Id. at 665.

Medicare covers the reasonable costs of patient care and, through its fiscal intermediaries

and carriers, determines the rates and amounts of payments that it will cover for

medically necessary services. Id. at 665-66.

       This case deals with reimbursements for two types of DME covered under Part B:

power wheelchairs and power scooters. Rather than having the customer—that is, the

beneficiary—pay directly for the equipment and seek reimbursement from Medicare, the

DME companies, including the company in this case, may provide the equipment and

then file the beneficiaries’ claims with Medicare. Then Medicare, through its fiscal

intermediaries, reimburses the DME providers. Medicare provides a greater

reimbursement for power wheelchairs than power scooters.

2. Cast of Characters

       The following briefly describes key individuals who were involved in this case.

       a. Mr. Ohaka

       Joshua Ohaka, a self-described medical doctor, is originally from Nigeria. He

owned and/or ran a number of DME companies in Oklahoma and Texas: Optimed,

Vitacare, Providence, and Luant. Although he was never listed in the ownership and
                                            -4-
management papers for First Century, the DME company at issue in this case, Mr. Ohaka

was heavily involved in its management and used it to file fraudulent Medicare claims.

       b. Mr. Rufai and Mr. Adegboye

       Mr. Rufai also is a native of Nigeria and holds passports from both Nigeria and

Trinidad and Tobago (“Trinidad”). After graduating from college in economics in

Nigeria, he taught high school English, commerce, economics, and science for two years.

He then worked for the Nigerian Department of Education for three years, after which he

started a business importing used products. In 1994, Mr. Rufai moved to Trinidad, where

he worked as a security guard and opened a mini mart. In 1999, he came to New York to

buy products to export to Nigeria while his wife stayed in Trinidad to run their store. In

New York, he lived with a cousin, Adebola Adebayo.

       Mr. Rufai met Mr. Ohaka outside a gas station in Brooklyn, New York, in 2004.

In 2005 and again in 2006, Mr. Rufai and Mr. Ohaka purchased used goods that Mr.

Rufai then shipped to Nigeria. In 2006 and 2007, Mr. Rufai sold three vehicles to Mr.

Ohaka. Beginning in the fall of 2007, Mr. Rufai helped establish First Century and was

part of the company’s legal front. In 2008 and 2009, Mr. Rufai and his cousin Mr.

Adebayo managed a supermarket in New York that they planned to buy with Mr. Ohaka.

       Less of Mr. Adegboye’s history was presented at trial. He also is from Nigeria

and moved with his family to the United States after receiving a resident visa. The

Adegboye family lived in the same building as Mr. Rufai and his cousin. Mr. Rufai

introduced Mr. Adegboye to Mr. Ohaka in 2007. Mr. Adegboye was involved in real
                                            -5-
estate in New York. He also helped establish and run First Century and was part of the

company’s legal front.

       c. Employees

       Employees moved from Mr. Ohaka’s other DME companies to First Century, and

employees at First Century often performed work for the other DME companies and vice

versa. The following employees worked at First Century or performed work on behalf of

First Century.

       Tracina Pratcher started working at Vitacare on October 18, 2007. In January

2008, she moved to First Century, where she worked until late March 2008. At Vitacare,

she was responsible for filling out the paperwork (a certificate of medical necessity, or

“CMN”) to bill Medicare. At First Century, she opened the facility, hired painters,

bought office equipment, prepared for its Medicare inspection, and served as the first

salesperson. She also continued to prepare CMNs for Vitacare customers.

       Florida Raines worked separately at Optimed, Vitacare, Providence, and First

Century, starting at Optimed in September 2007. She transferred to First Century after

Ms. Pratcher left, but she quit sometime before it was approved to bill Medicare. At First

Century she answered calls, paid bills, and continued preparing First Century to qualify

for Medicare billing approval.

       Sasha Rinker worked at Optimed for six months in 2006 and then worked at

Vitacare as store manager until January 2009. As Mr. Ohaka’s principal manager, she

filled in at First Century when no one was there, filled out Medicare claims paperwork
                                            -6-
that was submitted in First Century’s name, and advised Mr. Adegboye of matters at First

Century that he needed to address. She also performed management functions, such as

making sure First Century’s bills and employees were paid and that it had reapplied for

its state permits.

       Elizabeth Unsell managed First Century in the fall of 2008. She had been there for

about two weeks when it was inspected by Medicare contractors in September 2008. She

continued to work for First Century until at least November 2008, when she and Mr.

Adegboye were trying to address violations discovered during the September inspection.

       d. Medicare contractors and investigators

       Gina Bertram is a fraud analyst for a company that works for the National Supplier

Clearinghouse (the “NSC”). The NSC, a Medicare contractor, authorizes companies to

bill Medicare for durable medical equipment and monitors the billing process. It issues

Medicare billing numbers to DME companies, receives and processes the applications for

approval to bill Medicare, and monitors the DME companies for fraud. Ms. Bertram

reviewed the report from the NSC’s September 2008 inspection of First Century, notified

First Century of the violations found during the inspection, and ultimately revoked First

Century’s Medicare billing privileges for non-compliance.

       Steven Scott Ward is a lead investigator for Health Integrity, which contracts with

Medicare to investigate fraud. He investigated First Century after a routine inspection of

new providers revealed that it was billing for orthotics and power mobility devices at a

high rate.
                                            -7-
3. Mr. Ohaka’s Other DME Providers

       Besides his involvement in First Century, Mr. Ohaka owned three DME

companies in Oklahoma—Optimed, Vitacare, and Providence—and controlled another

DME company in Texas. The Texas company, Luant, was registered under the name of

an individual not involved in this case.

       a. Optimed

       Optimed’s application for enrollment in Medicare was approved in 2005, allowing

it to submit claims to Medicare for reimbursement. In 2006, the government began

investigating Optimed because 90 percent of its claims to Medicare were filed using a

special Medicare billing code called “the CR modifier.” The CR modifier eliminated

certain documentation requirements and allowed for faster processing of claims to

replace equipment lost due to Hurricanes Katrina and Rita. Around October 2006,

Medicare placed Optimed on “prepayment review,” which requires that a DME company

provide supporting documentation for each claim that it has submitted before Medicare

will approve reimbursement. Optimed was unable to submit the required documentation

for prepayment review, and the NSC revoked Optimed’s identification number and its

privilege to bill Medicare.

       b. Vitacare

       Vitacare was enrolled to bill for Medicare reimbursement in early 2007. Mr.

Ohaka listed his wife as Vitacare’s owner on the Medicare enrollment application. When

investigators from the NSC conducted a site visit to approve Vitacare’s application and

                                           -8-
encountered Mr. Ohaka, he told them that he was the owner. Around mid-2007, Health

Integrity began investigating Vitacare and noticed that it was billing with the CR

modifier at a high rate. Vitacare was placed on prepayment review in the spring of 2008.

Vitacare was unable to comply with the documentation requirements of prepayment

review, and its Medicare billing privileges were revoked.

       c. Providence

       Providence was approved to bill Medicare in early 2008. Medicare began

investigating it in July or August 2008 because Providence had been billing for orthotics

at a high rate. Providence was placed on prepayment review. When it could not

document several claims, its Medicare provider number was revoked.

       d. Luant

       In December 2008, Medicare conducted a site visit of Luant, Mr. Ohaka’s Texas

DME provider. Although Helen Etinfoh was listed on the company’s Medicare

application as the owner, employees told Medicare representatives that Mr. Ohaka was

the owner. Medicare subsequently determined that Mr. Ohaka and Ms. Etinfoh had

agreed that he would pay her in exchange for use of her name as owner on Luant’s

Medicare claims. Mr. Ohaka was indicted for fraud in July 2009 based on his

involvement with Luant.

       e. Investigation of Mr. Ohaka’s DME companies

       Mr. Ward, the Health Integrity investigator, testified that Medicare had received

complaints from Medicare beneficiaries that (1) Mr. Ohaka’s companies had not

                                            -9-
delivered promised products at all, (2) products delivered were not those ordered, or

(3) equipment was received that they never ordered. Because of these complaints and

because of Mr. Ohaka’s association with businesses that had submitted erroneous claims,

Medicare began investigating all businesses in which Mr. Ohaka had an ownership or

managing interest.

       Mr. Ward further testified that Mr. Ohaka’s use of Ms. Etinfoh as Luant’s straw

owner was a common Medicare fraud practice. Under this practice, the fraudulent actors

“identify other individuals that they can enter into a business arrangement with and get

them to . . . apply for the [Medicare billing] number or put their name down as the

registered agent for operating the business when . . . [the fraudulent actors are] the ones

actually operating the business behind the scenes.” Trial Tr. at 51-52.

4. History of First Century

       a. Starting the business

       In 2007, Mr. Rufai introduced Mr. Adegboye to Mr. Ohaka in New York. The

three discussed starting a DME company in Oklahoma. Although both Mr. Rufai and

Mr. Adegboye planned to fly to Oklahoma City from September 12 to September 17,

2007, to begin setting up the business, Mr. Adegboye was too busy at the last minute and

Mr. Rufai went alone.

       Mr. Ohaka picked up Mr. Rufai from the airport and showed him around Vitacare

before taking him to the office of the Oklahoma Secretary of State to file papers setting

up First Century. Mr. Rufai paid the incorporation fee, listed himself as the registered
                                            -10-
agent of First Century Medical Supply, and signed as the incorporator. He also listed

himself and Mr. Adegboye as First Century’s directors. First Century was incorporated

on September 12, 2007. Mr. Ohaka’s name did not appear on the incorporation papers.

         Mr. Rufai stayed at Mr. Ohaka’s apartment in Oklahoma City and spent the rest of

his time there filling out insurance paperwork for First Century, visiting Mr. Ohaka’s

businesses, and looking for places to purchase goods to take to Trinidad and Nigeria. On

September 17, Mr. Rufai flew from Oklahoma City to Houston, where he stayed at Mr.

Ohaka’s home for four days.

         b. Opening bank accounts, signing service agreements, and leasing space

         On October 17, 2007, Mr. Rufai and Mr. Adegboye traveled to Oklahoma City.

On October 18, they opened a Bank of America account for First Century. They listed

themselves as the authorized signers on the account, with Mr. Adegboye listed as

president of First Century and Mr. Rufai as vice-president. After opening the account,

Mr. Adegboye emailed the account information to Mr. Ohaka and copied the email to Mr.

Rufai.

         Mr. Adegboye signed a service agreement, dated October 17, 2007, between

Vitacare and First Century, for Vitacare to repair First Century’s customers’ equipment.

On the same day, Mr. Adegboye signed, as owner of First Century, an agreement that

First Century would purchase equipment from Vitacare. Also that day, Mr. Rufai signed

a general liability insurance agreement, which Medicare requires for all DME companies.

         Between November 20 and November 22, 2007, Mr. Rufai returned to Oklahoma
                                           -11-
without Mr. Adegboye to conduct additional First Century business. Mr. Rufai and Mr.

Adegboye had already begun arranging for First Century’s store space, and the leasing

company gave Mr. Rufai a key to inspect the premises and see what repairs needed to be

made. Mr. Rufai picked up bills at the post office in Oklahoma City and gave them to

Mr. Adegboye when he returned to New York. He then spent the Thanksgiving holiday

in Houston with Mr. Ohaka.

       The lease for First Century’s space was dated December 14, 2007, but Mr.

Adegboye signed and notarized it on November 15, 2007. Mr. Rufai signed as the

witness to Mr. Adegboye’s signatures. The lease listed Mr. Adegboye as First Century’s

contact person. It also listed Mr. Adegboye and Med-Links Holdings Inc. (a company

Mr. Ohaka and Mr. Rufai were using to buy a supermarket) as guarantors for the rent.

For the guaranty by Med-Links Holdings, Mr. Rufai signed as its director of sales, and

Mr. Adegboye signed as the witness. For the personal guaranty signed by Mr. Adegboye,

Mr. Rufai signed as witness.

       c. Applying to Medicare

       Ms. Pratcher was sent from Vitacare to First Century in January 2008 to open the

storefront and get the store running to prepare for the inspection necessary for Medicare

billing approval.

       On January 8, 2008, Mr. Adegboye signed and submitted the Medicare enrollment

application, which the NSC received on January 14, 2008. Section 6 of the application

required First Century to list all individuals with a five percent or greater ownership, all
                                             -12-
managing employees, anyone with a partnership interest, and authorized and delegated

officials. The completed application mentioned only Mr. Adegboye. He was listed as a

five percent or greater owner and managing employee. Section 14 of the application lists

the possible consequences for providing false information, which include liability for

executing a scheme to defraud a health care benefit program under 18 U.S.C. § 1347.

       Finally, in Section 15, Mr. Adegboye certified as the authorized official for First

Century that all the information in the application was correct. He also certified that (1)

he would notify the NSC of any changes to the information in the application within 30

days of the change; (2) no “owner, partner, officer, director, managing employee,

authorized official, or delegated official . . . is currently sanctioned, suspended, debarred,

or excluded . . . from supplying services to Medicare”;2 and (3) he would “not knowingly

present or cause to be presented a false or fraudulent claim for payment by Medicare, and

[would] not submit claims with deliberate ignorance or reckless disregard of their truth or

falsity.” Suppl. Appx. at 61.

       Sometime in January 2008, the NSC conducted a site inspection and found


       2
         Section 3 of the Application also required that First Century indicate whether it
or any of its owners had (1) in the previous ten years been suspended from participation
in any federal health care program, (2) a current Medicare payment suspension under any
billing number, or (3) a Medicare revocation of any Medicare billing number. By the
time Mr. Adegboye filed the application, Optimed had been placed on prepayment review
and had its privileges revoked. One possible motive for omitting Mr. Ohaka from the
application, then, was to avoid the scrutiny that would result from Mr. Ohaka’s
involvement in Optimed, but there was no evidence presented that Mr. Adegboye knew
about Optimed’s status at that time.

                                             -13-
paperwork and credit issues at First Century. On February 1, 2008, First Century

received a letter from the NSC that identified these issues and stated that First Century

could not be approved for Medicare billing because its application was incomplete. Ms.

Pratcher was unable to contact Mr. Rufai about the credit issues raised in the NSC letter

because he was out of the country, so she called Mr. Ohaka. He told her to go to Vitacare

and get a letter stating that it was lending credit to First Century.

       On February 19, 2008, Mr. Adegboye sent the additional documents to the NSC

that it had requested, including an electronic funds transfer agreement for Medicare to

deposit funds directly in First Century’s accounts. He again signed the paperwork as the

manager and authorized official for First Century.

       On March 28 or 29, 2008, Ms. Pratcher resigned from First Century to move to

Georgia to care for her ailing grandfather. She told Mr. Rufai, however, that she had quit

because of how poorly Mr. Ohaka treated her and because things at First Century did not

seem “right to [her].” Trial Tr. at 344. In particular, she was concerned about calls to

First Century from Vitacare customers complaining that they had not received their

equipment and about the credit letter from Vitacare to First Century, which “seemed

illegal to [her].” Id. at 345.

       On March 31, 2008, the NSC performed another site inspection of First Century.

Sasha Rinker, who managed Mr. Ohaka’s other stores and was there that day, told the

inspector that she was the manager and that the owner had other DME companies. When

the inspector asked for a list of the other locations, she called Mr. Ohaka, who told her to
                                             -14-
say that First Century had no other locations. After receiving the inspection report, the

Medicare NSC contractor who was processing the application requested that First

Century update the application to include Ms. Rinker as the managing employee and,

because there was so little inventory on site, that it provide evidence of inventory contract

agreements.

       On April 7, 2008, Mr. Adegboye updated the Medicare application by removing

his status as managing employee. On April 17, 2008, he added Ms. Rinker—Vitacare’s

manager—as managing employee and provided additional forms.

       On May 20, 2008, First Century received its approval letter from Medicare,

allowing it to begin submitting claims.

       First Century’s original bank account was eventually closed for lack of activity.

On May 30, 2008, Mr. Rufai and Mr. Adegboye opened three new accounts for First

Century at Bank of America. Mr. Adegboye was again listed as president of First

Century and Mr. Rufai as vice-president. They also requested debit cards to draw on the

accounts.

       d. Billing Medicare

       From approximately May 2008 through September 2008, First Century submitted

claims on behalf of beneficiaries to Medicare for approximately $1.2 million, for which it




                                            -15-
received approximately $303,000.3 Mr. Ohaka used the same process to bill Medicare at

all of his DME companies. He would choose an employee at one of the companies and

send her a packet of information about a Medicare beneficiary. He would instruct the

employee on the billing codes to enter, such as the CR modifier, and as to which

company—Vitacare, Providence, or First Century—would submit the CMN. The

employee would then send the CMN to Mr. Ohaka or directly to Reliance Billing, the

company Mr. Ohaka used to submit CMNs to Medicare.

       e. Inspection and Medicare investigation

       Mr. Rufai and Mr. Adegboye were rarely on site—Mr. Adegboye spent most of

his time in New York, and Mr. Rufai spent most of his time in New York or abroad—but

they were reachable by phone and email. Sometime during September 2008, Mr.

Adegboye visited First Century in Oklahoma and paid some bills. Also in September,

Ms. Unsell began working at First Century.

       On September 22, 2008, the NSC conducted another inspection of First Century.

For the NSC, it is a sign of fraud when a supplier submits many claims when it has little

       3
         All of the beneficiaries for whom First Century billed Medicare lived in
Louisiana or Texas, areas potentially affected by hurricanes and thus where use of the CR
modifier would be less suspicious. The five counts of health care fraud for which Mr.
Rufai and Mr. Adegboye were convicted related to claims filed on behalf of five of these
beneficiaries. For each of them, Medicare was billed for a power wheelchair using the
CR modifier for storm-related losses. Testimony at trial established that at least three of
the beneficiaries did not live in areas affected by Hurricanes Katrina or Rita. At least
four of them received cheaper power scooters rather than the power wheelchairs for
which Medicare was billed. At least four of them had never received a physician’s
prescription for the equipment.

                                           -16-
inventory. The First Century store had little inventory, and Ms. Unsell, who was

managing the store at the time, could not tell the inspector if there were any contracts

with another company to provide supplies. She also was unable to tell the inspector the

owner’s name or how First Century obtained beneficiary referrals. The inspector

reported a lack of files, apart from 10 files lying unsecured on top of a desk.

       On October 15, 2008, Gina Bertram, the NSC contractor employee who reviewed

the inspection report, sent a deficiency letter to First Century listing the company’s

violations of Medicare requirements and giving First Century three weeks to show

compliance.

       Health Integrity, the Medicare contractor investigating Medicare fraud in

Oklahoma, also opened an investigation of First Century based on Medicare’s practice of

monitoring new DME providers. Because First Century was a new provider that had

immediately started to bill Medicare for orthotics and power mobility devices, Health

Integrity put it on prepayment review around October 2008. This meant that every time

First Century submitted a claim, it received a letter asking it to provide supporting

documentation before Medicare would pay the claim. First Century did not provide the

required documents.

       On November 7, 2008, Ms. Unsell responded to the deficiency letter from NSC’s

Mr. Bertram with a number of documents, including a form from Mr. Adegboye

designating her as a delegated official for First Century. Ms. Bertram concluded that

First Century had not provided all the information the NSC had required and, on January
                                            -17-
21, 2009, sent First Century a letter stating that the NSC had revoked First Century’s

Medicare supplier number.

       f. First Century’s closure and post-closure investigations

       On January 4, 2009, Mr. Ohaka emailed his employees that all of the DME

companies, including First Century, would be closing because of the economy.

       On August 18, 2009, attorneys for Mr. Adegboye sent a letter to the FBI

requesting the return of First Century records that had been taken when FBI agents seized

Luant’s company records. Sometime before, Medicare had asked First Century to

produce records for post-payment review of numerous claims. The letter from Mr.

Adegboye’s attorneys to the FBI stated that Medicare had requested the records to verify

services that had been billed. The letter reported that the records had been “given to Mr.

Ohaka for safe keeping when Mr. Adegboye was in the process of relocating to New

York since Mr. Ohaka said he was coming to New York at a later date.” Government

Trial Ex. # 5A, Aplee. Suppl. Appx. at 246; Trial Tr. at 63. The letter further stated that

Mr. Ohaka had been unable to travel to New York to deliver the records because he had

been indicted.

       On October 5, 2009, Medicare investigators received a notarized affidavit from

Mr. Adegboye explaining why he was unable to produce the requested documents. He

stated that he owned First Century and that he had earlier decided to move the “company

back to New York.” Government Trial Ex. # 5B, Aplee. Suppl. Appx. at 248. He

explained that he had “contacted a long time friend, who also runs a similar business in
                                            -18-
Oklahoma by the name [of] Dr. Joshua Ohaka and requested him to help me box the files

and other office equipments and ship them to me in New York. . . . [Mr.] Ohaka resides

in Houston, Texas, so he moved the documents to Texas for onward mailing to New

York.” Id. He further explained that he had learned that the FBI seized the files when

Mr. Ohaka was indicted and that he had been unable to get the files back from the FBI.

                               B. Procedural Background

1. Indictment

       On January 18, 2011, the Government filed a six-count indictment against Mr.

Rufai and Mr. Adegboye. Count One charged them with conspiring to commit health

care fraud in violation of 18 U.S.C. § 1349. Counts Two to Six charged them with health

care fraud in violation of 18 U.S.C. § 1347 and of aiding and abetting Mr. Ohaka in

health care fraud in violation of 18 U.S.C. § 2. Each of the five counts related to a

request for Medicare reimbursement filed by First Century for equipment provided to a

different beneficiary. A superseding indictment was entered on June 22, 2011, enlarging

the time frame for the conspiracy in Count One and the dollar amount in Count Two.

2. Trial

       Trial began on August 8, 2011. At the close of the Government’s case, Mr.

Adegboye moved under Rule 29 of the Federal Rules of Criminal Procedure for judgment

of acquittal, arguing that the Government had not established mens rea—the knowing or

willful participation of Mr. Adegboye.



                                            -19-
       Mr. Rufai also moved for judgment of acquittal pursuant to Rule 29. He joined

Mr. Adegboye’s mens rea arguments on Count One. On Counts Two through Six, he

argued that the Government failed to show that he executed any scheme. He then asked

that the court dismiss the indictment insofar as it charged him in Counts Two to Six as a

principal and that the case proceed to the jury only on the aiding and abetting theory for

those counts.4

       The district court denied the motions, noting that it had to view the evidence in the

light most favorable to the Government and that “[j]udgment of acquittal is proper only if

the evidence and inferences therefrom are insufficient to permit a rational trier of fact to

find the essential elements of the crime beyond a reasonable doubt.” Trial Tr. at 801.

       In his case-in-chief, Mr. Adegboye did not present evidence. Mr. Rufai, on the

other hand, testified and called his cousin, Mr. Adebayo, as a witness.

       While deliberating, the jury sent the court two questions. The first question dealt

with jury instruction 25, which stated that the jury could find a defendant guilty of Counts

Two to Six if it found that defendant guilty of the conspiracy charge (Count One) and

found beyond a reasonable doubt that another member of the conspiracy committed the

offenses in Counts Two to Six. The jury asked if a defendant could be guilty of

conspiracy (Count One) but not fraud (Counts Two to Six) and vice versa. The district

court responded that the Government must prove conspiracy beyond a reasonable doubt

       4
        We note that Mr. Rufai did not argue for judgment of acquittal on the aiding and
abetting theory of liability for Counts Two to Six.

                                            -20-
and the jury must acquit a defendant of conspiracy if the Government had not done so. It

also told the jury that it did not have to find a defendant guilty of Count One to find him

guilty of Counts Two to Six. The jury had to consider whether the Government had met

its burden with respect to each count.

       The jury subsequently asked the court about the legal responsibilities of those

signing a business’s incorporation documents and Medicare applications. The court

responded that the Defendants had not been charged “with crimes based solely on the

execution of corporation formation documents or the Medicare application,” and that the

jury was “to consider only the crimes charged in the Superseding Indictment.” Adegboye

ROA, Vol. I at 60.

       On August 17, 2011, the jury acquitted Mr. Rufai and Mr. Adegboye on Count

One but found them guilty on Counts Two to Six.

3. Post-Trial Motions for Acquittal or for New Trial

       Mr. Rufai did not renew his motion for judgment of acquittal. Mr. Adegboye filed

motions for judgment of acquittal under Rule 29 or for a new trial under Rule 33. As to

the former, he argued that the only evidence of knowledge or intent was his failure to

identify Mr. Ohaka’s role at First Century in the Medicare application and updates, which

raises only a suspicion of guilt. As to the motion for a new trial, he argued that the jury’s

guilty verdict on the health care fraud charges was inconsistent with its acquittal on the

conspiracy charge and that the guilty verdict could have resulted only from a mistake of

law.
                                            -21-
       On October 13, 2011, the district court denied both motions.

4. Sentencing

       On January 25, 2012, the district court sentenced Mr. Rufai and Mr. Adegboye to

12 months and 1 day in prison for each of Counts Two to Six, to be served concurrently.

They also were sentenced to two years of supervised release and ordered to pay a $500

special assessment and $299,624 in restitution. They are jointly and severally liable for

the restitution.

                                    II. DISCUSSION

       On appeal, Mr. Rufai argues that the Government presented insufficient evidence

to prove beyond a reasonable doubt that he committed health care fraud as a principal or

as an aider and abettor. The Government does not contend that he is guilty as a principal,

so we focus on whether there was sufficient evidence to convict him for aiding and

abetting health care fraud.

                                 A. Standard of Review

1. The Reasonable Jury Standard

       “We review . . . the sufficiency of the evidence to support a conviction or the

denial of a defendant’s motion for judgment of acquittal de novo.” United States v.

Apperson, 441 F.3d 1162, 1209 (10th Cir. 2006) (quotations omitted). We “tak[e] the

evidence—both direct and circumstantial,” and reasonable inferences drawn from that

evidence—“in the light most favorable to the government” and ask “only whether . . . a

reasonable jury could find [the defendant] guilty beyond a reasonable doubt.” United

                                           -22-
States v. Kaufman, 546 F.3d 1242, 1263 (10th Cir. 2008) (quotations omitted); see also

United States v. Dobbs, 629 F.3d 1199, 1203 (10th Cir. 2011). “[W]e may not weigh

evidence or consider credibility of witnesses.” United States v. Renteria, 720 F.3d 1245,

1253 (10th Cir. 2013); see also United States v. Cui Qin Zhang, 458 F.3d 1126, 1128

(10th Cir. 2006). “[T]he evidence, together with the reasonable inferences to be drawn

therefrom, must be substantial, but it need not conclusively exclude every other

reasonable hypothesis and it need not negate all possibilities except guilt.” United States

v. MacKay, 715 F.3d 807, 812 (10th Cir. 2013) (quotations omitted).

       Nevertheless, “[w]e will not uphold a conviction . . . that was obtained by nothing

more than piling inference upon inference . . . or where the evidence raises no more than

a mere suspicion of guilt.” United States v. Rahseparian, 231 F.3d 1257, 1262 (10th Cir.

2000) (citations omitted) (quotations omitted). “[R]easonable inferences supported by

other reasonable inferences . . . may warrant a conviction,” but “[a] jury will not be

allowed to engage in a degree of speculation and conjecture that renders its finding a

guess or mere possibility.” United States v. Michel, 446 F.3d 1122, 1127-28 (10th Cir.

2006) (quotations omitted).

2. The Reasonable Jury and Proof beyond a Reasonable Doubt

       The key parts of our sufficiency-of-the-evidence standard of review are (1)

whether a reasonable jury could find guilt (2) beyond a reasonable doubt. The first sets a

high bar for a defendant challenging a criminal conviction on appeal. The second

recognizes the prosecution’s high burden to prove its case. Both are critical to our
                                            -23-
review.

       An appellate court must consider the burden of proof in its sufficiency-of-the-

evidence analysis. The test is not whether some evidence could have reasonably

supported a guilty verdict, but whether a rational jury could have found each element of a

crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).5

The test is not whether a rational jury could decide that guilt was more likely than not,

but beyond a reasonable doubt.6 The evidence “must be substantial, raising more than a

mere suspicion of guilt.” United States v. Smith, 133 F.3d 737, 742 (10th Cir. 1997).

       As explained below, the issue here is not whether Mr. Rufai aided Mr. Ohaka’s

fraud, but whether he knew he was doing so.7 The government’s case was weak, but not

bereft of circumstantial evidence. We must reconcile the highly deferential “reasonable

jury could find” appellate review standard with the “beyond a reasonable doubt”

standard. Compounding our challenge is the substantial evidence that Mr. Ohaka

committed Medicare fraud combined with the weak evidence of Mr. Rufai’s knowledge,

       5
         “[T]he critical inquiry on [appellate] review of the sufficiency of the evidence to
support a criminal conviction is whether, after 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 beyond a reasonable doubt.” 443 U.S. at 318-19.
       6
         Charles Allen Wright said over 50 years ago that “federal courts do not seem
ever to have distinguished between civil and criminal cases in considering appellate
power to order a new trial.” Charles Alan Wright, The Doubtful Omniscience of
Appellate Courts, 41 Minn. L. Rev. 751, 761 n.47 (1957). Whether or not that
observation applies today, it is useful admonition.
       7
         Although “[t]he standard for finding that a defendant aided or abetted a crime is
not a high one,” United States v. Burks, 678 F.3d 1190, 1198 (10th Cir. 2012), proof of
knowledge often requires, as here, an inference from circumstantial evidence.

                                            -24-
posing a risk of imputing knowledge to him from the strong evidence of wrongdoing by

non-defendant Ohaka.

3. Sufficiency of the Evidence and Plain Error Review

       Mr. Rufai failed to raise the mens rea argument as to the aiding and abetting

theory of liability on the health care fraud charges in his Rule 29 motion, and he failed to

renew the Rule 29 motion altogether after the close of evidence. When a defendant does

“not raise [a] specific argument in his Rule 29 motion,” United States v. DeChristopher,

695 F.3d 1082, 1091 (10th Cir. 2012), or fails to renew the motion after introducing

evidence in his own defense, see United States v. Flanders, 491 F.3d 1197, 1208 (10th

Cir. 2007), we review only for plain error.

              To establish plain error, [the appellant] must demonstrate the
              district court (1) committed error, (2) the error was plain, and
              (3) the plain error affected her substantial rights. If these
              factors are met, we may exercise discretion to correct the
              error if (4) it seriously affects the fairness, integrity, or public
              reputation of judicial proceedings.

United States v. Story, 635 F.3d 1241, 1244 (10th Cir. 2011) (citations omitted).

       “[A] conviction in the absence of sufficient evidence of guilt,” however, almost

always meets the first three factors of plain error review. Kaufman, 546 F.3d at 1263.

Moreover, it is only in a rare case when the absence of sufficient evidence will not meet

the fourth factor of plain error review. See United States v. Goode, 483 F.3d 676, 682

(10th Cir. 2007). Thus, “review under the plain error standard in this case and a review

of sufficiency of the evidence usually amount to largely the same exercise.” United

                                              -25-
States v. Duran, 133 F.3d 1324, 1335 n.9 (10th Cir. 1998); see also Goode, 483 F.3d at

681 n.1.

                                  B. Legal Background

1. Health Care Fraud

       Title 18, section 1347 of the United States Code states that it is a crime to

              knowingly and willfully execute[], or attempt[] to execute, a
              scheme or artifice--
                     (1) to defraud any health care benefit program; or
                     (2) to obtain, by means of false or fraudulent pretenses,
                     representations, or promises, any of the money or
                     property owned by, or under the custody or control of,
                     any health care benefit program,
              in connection with the delivery of or payment for health care
              benefits, items, or services.

18 U.S.C. § 1347(a); see also United States v. Franklin-El, 555 F.3d 1115, 1122 (10th

Cir. 2009). Thus, to establish health care fraud under § 1347, the Government must

prove beyond a reasonable doubt that the defendant (1) “devised a scheme or artifice to

defraud a health care benefit program in connection with the delivery of or payment for

health care benefits, items, or services; (2) executed or attempted to execute this scheme

or artifice to defraud,” United States v. Jones, 641 F.3d 706, 710 (6th Cir. 2011)

(quotations omitted); (3) acted knowingly and willfully with the “intent to defraud,” id.

(quotations omitted); and (4) the scheme to defraud employed “false pretenses,

representations, or promises,” Franklin-El, 555 F.3d at 1122. To establish that a

defendant knowingly and willfully acted with intent to defraud, “the Government must


                                            -26-
prove that the defendant acted with knowledge that his conduct was unlawful.” Id.

(quotations omitted).

2. Aiding and Abetting Health Care Fraud

       The focus of this appeal is whether the evidence was sufficient to convict Mr.

Rufai of aiding and abetting health care fraud. “Whoever . . . aids, abets, counsels,

commands, induces or procures [the] commission [of an offense against the United

States] is punishable as a principal.” 18 U.S.C. § 2. “[T]o aid and abet another to

commit a crime it is necessary that a defendant ‘in some sort associate himself with the

venture, that he participate in it as in something that he wishes to bring about, [and] that

he seek by his action to make it succeed.’” Nye & Nissen v. United States, 336 U.S. 613,

619 (1949) (quoting United States v. Peoni, 100 F.2d 401, 402 (2nd Cir. 1938)).

       The Government must first “prove that someone committed the underlying

substantive offense.” United States v. Self, 2 F.3d 1071, 1088 (10th Cir. 1993); see also

United States v. Cooper, 375 F.3d 1041, 1049 (10th Cir. 2004). Second, the Government

must prove that the defendant “(1) willfully associated with the charged criminal venture

and (2) aided the venture through affirmative action.” United States v. Summers, 414

F.3d 1287, 1295 (10th Cir. 2005); see also United States v. Rosalez, 711 F.3d 1194, 1205

(10th Cir. 2013); United States v. Bowen, 527 F.3d 1065, 1078 (10th Cir. 2008); United

States v. Anderson, 189 F.3d 1201, 1207 (10th Cir. 1999).

       “Liability as an aider and abett[o]r is based . . . on the act of intentionally

counseling, aiding, or assisting another in the commission of a crime.” Bowen, 527 F.3d
                                             -27-
at 1077 n.10; see also Nye, 336 U.S. at 620. “One need not participate in an important

aspect of a crime to be liable as an aider and abett[o]r; participation of relatively slight

moment is sufficient. Even mere words or gestures of encouragement constitute

affirmative acts capable of rendering one liable under this theory.” Bowen, 527 F.3d at

1078 (citations omitted) (quotations omitted). There is no need for “actual

communication between an aider and abettor and the principal” or for “the aider and

abettor [to] know by whom the crime is actually perpetrated.” White v. United States,

366 F.2d 474, 476 (10th Cir. 1966).

       Nevertheless, the Government must make “some showing of intent to further the

criminal venture.” United States v. Delgado-Uribe, 363 F.3d 1077, 1084 (10th Cir.

2004). “[A] defendant may not stumble into aiding and abetting liability by inadvertently

helping another in a criminal scheme unknown to the defendant.” United States v. Jones,

44 F.3d 860, 869 (10th Cir. 1995) (quotations omitted). Even “presence at the scene of

the crime” or “knowledge that [a] crime is being committed” is insufficient. Id. “[T]o be

convicted of aiding and abetting, a defendant must share in the intent to commit the

underlying offense.” United States v. Willis, 476 F.3d 1121, 1125 (10th Cir. 2007)

(quotations omitted). “[W]e have repeatedly held that circumstantial evidence may

support a jury’s reasonable inference of guilty knowledge by the defendant.”

Rahseparian, 231 F.3d at 1262.




                                             -28-
                   C. Sufficiency of the Evidence against Mr. Rufai

      Mr. Rufai does not challenge the Government’s contentions that Mr. Ohaka

committed health care fraud through First Century, that he was associated with First

Century, or that his acts contributed to the health care fraud. He challenges only whether

the Government presented sufficient evidence for a rational jury to conclude beyond a

reasonable doubt that he knowingly and willfully aided the fraudulent scheme.

1. Assistance in Committing the Fraud at First Century—Actus Reus of Aiding and
   Abetting

      Although Mr. Rufai does not challenge that fraud occurred at First Century or that

his actions aided the fraud, we briefly review the evidence of his and Mr. Adegboye’s

actions to provide foundation for our discussion of whether the Government proved his

knowledge of and intent to aid the fraud.

      By the time Messrs. Ohaka, Rufai, and Adegboye agreed to form First Century in

September 2007, Medicare had begun suspending Mr. Ohaka’s right to bill Medicare at

his other businesses. Such suspensions normally trigger review of related businesses that

bill Medicare. Mr. Ohaka had already set up straw owner schemes at Vitacare and Luant

when he approached Messrs. Rufai and Adegboye to set up First Century.8

      Messrs. Adegboye and Rufai provided the legal front for the business. Mr. Rufai

incorporated First Century, listing only himself as an incorporator and only himself and


      8
         There is no direct evidence in the record that Messrs. Rufai and Adegboye knew
of the other straw owner schemes or of the suspensions of Mr. Ohaka’s other businesses.

                                            -29-
Mr. Adegboye as directors on the incorporation forms. Mr. Adegboye applied for a

Medicare billing number and for authorization to bill Medicare, listing only himself as

owner and managing employee. Mr. Adegboye and Mr. Rufai also opened bank accounts

in October 2007 and May 2008 for First Century and indicated that Mr. Adegboye was

president and that Mr. Rufai was vice-president of the company. They were the only

people with authority to transfer or withdraw money from the accounts.

      Between Medicare approval in May 2008 and early September 2008, the record

does not indicate that Mr. Adegboye or Mr. Rufai visited First Century or even that an

employee was working there. During that time, Mr. Ohaka submitted fraudulent

Medicare claims using First Century’s billing number, including the claims charged in

this case. The First Century bank accounts received the Medicare reimbursements for the

fraudulent claims Mr. Ohaka submitted. From New York, Mr. Adegboye used this

money to pay for the rent, employee salaries, and other expenses for Mr. Ohaka’s

companies, including First Century.

      In short, the Government proved that Mr. Rufai and Mr. Adegboye “aided the

[criminal] venture through affirmative action,” Summers, 414 F.3d at 1295, the actus reus

element of aiding and abetting. We now turn to the mens rea element, whether they

“willfully associated with the charged criminal venture.” Id.

2. Knowingly and Willfully Aiding the Fraud—Mens Rea of Aiding and Abetting

      Short of incriminating statements from a defendant, proof of knowledge and intent

must be based on drawing inferences from the defendant’s actions, the testimony and
                                           -30-
actions of others, and documentary evidence. That is what the Government attempted to

do in this case. Largely through testimony from First Century employees, Medicare

investigators, and documents, the Government tried to present Mr. Rufai’s and Mr.

Adegboye’s activities on behalf of First Century against the backdrop of Mr. Ohaka’s and

First Century’s fraudulent Medicare billing. The Government urged the jury to infer the

Defendants’ knowledge and intent to defraud Medicare from the totality of the evidence.

       Mr. Rufai concedes that Mr. Ohaka executed a fraudulent Medicare billing scheme

at First Century, and he does not dispute that his actions contributed to health care fraud.

He argues there was insufficient evidence to establish beyond a reasonable doubt that he

knowingly involved himself in the scheme to defraud Medicare.

       We already have reviewed the evidence of the fraud at First Century and of Mr.

Adegboye’s and Mr. Rufai’s actions that assisted the fraudulent scheme. We therefore

turn to the evidence of Mr. Rufai’s knowledge of the Medicare fraud at First Century and

his intent to participate in it. There is no direct evidence of Mr. Rufai’s knowledge of the

fraudulent scheme or of his intent to participate, but a jury may make reasonable

inferences of knowledge and intent from circumstantial evidence. See Rahseparian, 231

F.3d at 1262. Nevertheless, “inferences may become so attenuated from underlying

evidence as to cast doubt on the trier of fact’s ultimate conclusion.” Michel, 446 F.3d at

1128 (quotations omitted). In such a case, a guilty verdict indicates that the jury has

impermissibly “engage[d] in a degree of speculation and conjecture that renders its

finding a guess or mere possibility.” Jones, 44 F.3d at 865 (quotations omitted).
                                            -31-
       a. Relationships

       Mr. Rufai had a longer history with Mr. Ohaka than Mr. Adegboye. Mr. Rufai

introduced Mr. Adegboye to Mr. Ohaka. He had other business dealings with Mr. Ohaka

and spent time at Mr. Ohaka’s home. One example of their multiple business

relationships was evidence that when Mr. Ohaka’s company, Med-Links, acted as

guarantor for First Century’s rent, Mr. Rufai acted as the authorized official for Med-

Links by signing the guaranty on its behalf. The Government argues that, based on their

business dealings and the time that Mr. Rufai and Mr. Ohaka spent together, a reasonable

jury could have inferred that Mr. Rufai had knowledge of the health care fraud scheme.

The Government attempts to push the evidence too far.

       In the conspiracy context, we “have warned that courts must be careful to guard

against guilt by association.” United States v. Fleming, 667 F.3d 1098, 1105 (10th Cir.

2011) (quotations omitted). Similarly, in the aiding and abetting context, we have held

that “[t]he government must prove . . . more than mere presence at the scene of the crime

even if coupled with knowledge that the crime is being committed.” Jones, 44 F.3d at

869. The Government has failed to demonstrate that Mr. Rufai was exposed to any

criminal activity during his interactions with Mr. Ohaka, much less that he knew illegal

activity was taking place at First Century. Although his association with someone who is

unquestionably guilty might suggest that Mr. Rufai knew of the fraudulent scheme, that

evidence alone would not be sufficient. See United States v. Austin, 786 F.2d 986, 988

(10th Cir. 1986) (“evidence that only places the defendant in a climate of activity that
                                            -32-
reeks of something foul” is insufficient to demonstrate criminal knowledge (quotations

omitted)).

       b. Straw owner scheme

       Mr. Rufai assisted in setting up the straw owner scheme. He filled out the articles

of incorporation and insurance paperwork, opened bank accounts, and assisted in leasing

First Century’s storefront. At no point did he indicate in these documents that Mr. Ohaka

had a role in running First Century.

       Mr. Rufai’s actions in setting up the straw owner operation were consistent with

setting up a legitimate business without mentioning a partner who wishes to remain

anonymous and silent. The Government presented no evidence that Mr. Rufai interacted

with Medicare, such as Mr. Adegboye’s preparation of the Medicare application. The

straw owner evidence does not show that Mr. Rufai knew that Mr. Ohaka was planning to

or did submit false bills for Medicare reimbursement. The Government conceded at oral

argument that Mr. Rufai’s last trip to Oklahoma for which there is evidence in the record

was in November 2007. He was never on site when First Century was billing Medicare.

       c. Ms. Pratcher’s testimony

       The Government relies on Ms. Pratcher’s testimony that she expressed suspicion

about Mr. Ohaka to Mr. Rufai several months before First Century was approved to bill

Medicare. It argues that this testimony shows that Mr. Rufai was on notice about the

fraudulent billing scheme. But this stretches Ms. Pratcher’s testimony too far. When Ms.

Pratcher was at Vitacare and at First Century, she received calls from Vitacare customers
                                           -33-
saying they had not received their equipment. She told Mr. Rufai about the calls, and he

said he would speak with Mr. Ohaka about it and instructed her to apologize to the

customers. The Government contends that this supports an inference that Mr. Rufai

knew of a scheme that involved Medicare fraud. Although the evidence showed that Mr.

Rufai knew that First Century’s billing was dependent on Medicare,9 Ms. Pratcher’s

testimony shows only that he knew Mr. Ohaka’s Vitacare customers were complaining

about not receiving their orders.

       For Ms. Pratcher’s statements about Vitacare customer complaints to have put Mr.

Rufai on notice of Medicare fraud at First Century would require the following. He

would have had to conclude that the Vitacare customers’ equipment was not just delayed

but was not being delivered at all; that failure to deliver the equipment was deliberate

rather than inadvertent or a result of incompetence; that Medicare had been billed for the

equipment; and that the customer calls were not isolated incidents. He would then need

to have concluded that the same occurrences would happen at First Century. Factfinder

inferences that Mr. Rufai knew (1) that Medicare fraud was occurring at Vitacare and (2)

that it would occur later at First Century are attenuated, speculative, and pile inference

upon inference.

       Ms. Pratcher’s testimony that she told Mr. Rufai about her concerns that Mr.

       9
        Mr. Rufai was calling nearly every day to see if Medicare had called about First
Century’s application, and he and Mr. Adegboye did not bother to maintain a bank
account for billings until First Century was approved by Medicare.


                                            -34-
Ohaka had asked her to put her name on some tax forms similarly fails to support an

inference that Mr. Rufai knew of Medicare fraud. The conversation may have put Mr.

Rufai on notice of tax misconduct, but that is not a link to knowledge of health care

fraud.

         The Government also pointed to inventory issues to argue that Mr. Rufai was on

notice of the fraud. To pass the initial Medicare inspection, site inspectors have to find

adequate inventory in the store. Ms. Pratcher testified that she called and spoke with Mr.

Rufai about the lack of inventory and that he told her to speak with Mr. Ohaka. Ms.

Pratcher’s grandfather had recently moved to Georgia, and Mr. Ohaka had asked her to

put her grandfather’s used wheelchair and toilet in the store.

         The problem with the Government’s inventory theory is that the evidence did not

show that Ms. Pratcher told Mr. Rufai about the used inventory. Moreover, even if Mr.

Rufai had known about the used inventory, and thus about Mr. Ohaka’s willingness to

deceive Medicare to get Medicare billing approval, a jury would still need to infer that

Mr. Rufai knew that Mr. Ohaka would begin submitting false Medicare claims several

months later.

         Ms. Pratcher’s testimony about her conversations with Mr. Rufai may have been

enough to suggest to him that something was amiss with Mr. Ohaka and First Century,

but they predated and did not forecast fraudulent billing. Her testimony does not support

the string of inferences the Government urges in this case.


                                            -35-
       d. Totality of the circumstances

       “[S]ufficiency of the evidence determinations are made by assessing the totality

of the circumstances in the individual case.” Torres v. Mullin, 317 F.3d 1145, 1164 (10th

Cir. 2003). Reliance on evidence of Mr. Rufai’s relationship with Mr. Ohaka runs the

risk of impermissible guilt by association. The straw owner and notice arguments pile

inference upon inference to the point that “the evidence raises no more than a mere

suspicion of guilt.” Rahseparian, 231 F.3d at 1262 (quotations omitted). The evidence

here cannot sustain beyond a reasonable doubt the conclusion that Mr. Rufai had

knowledge of the health care fraud scheme and therefore intended to participate in it.

       The Supreme Court has recognized “the imperative duty of a court to see that all

the elements of [a defendant’s] crime are proved, or at least that testimony is offered

which justifies a jury in finding those elements.” Clyatt v. United States, 197 U.S. 207,

222 (1905); see also United States v. Delgado, 672 F.3d 320, 351 (5th Cir. 2012), cert.

denied, 133 S. Ct. 525 (2012). Mr. Rufai argues that the district court’s failure to

recognize the insufficient evidence of health care fraud at First Century was plain error.

As discussed above, “a conviction in the absence of sufficient evidence” almost always

satisfies the first three factors of plain error review. Kaufman, 546 F.3d at 1263.

Moreover, although the standard for the fourth factor is “formidable,” United States v.

Trujillo-Terrazas, 405 F.3d 814, 820 (10th Cir. 2005), it is only in the rare case that

insufficient evidence for a conviction will not meet that requirement, see Goode, 483

F.3d at 682.
                                            -36-
       This case is not one of those rare cases like Goode. Mr. Goode was charged with

being a felon in possession of a firearm, id. at 678, which requires proof of “possess[ing]

in or affecting commerce[] any firearm,” 18 U.S.C. 922(g)(9). The weapon was

discovered in Mr. Goode’s possession in New Mexico. Goode, 483 F.3d at 678. It had

been made in Spain. Id. The district court instructed the jury that the government had to

prove that the firearm had moved from one state to another. Id. at 679. On appeal, Mr.

Goode argued that the district court had narrowed the “in or affecting commerce”

requirement to movement from one state to another and that there was no evidence of

such movement—the weapon could have crossed the international border into New

Mexico and never traveled from another state. Id. at 680; see United States v. Williams,

376 F.3d 1048, 1051 (10th Cir. 2004) (“The law of the case is applied to hold the

government to the burden of proving each element of a crime as set out in a jury

instruction to which it failed to object, even if the unchallenged jury instruction goes

beyond the criminal statute’s requirements.”).

       We held that, had the objection been properly made at trial, the district court could

have altered the jury instruction to include traveling in foreign commerce. Goode, 483

F.3d at 682. Because the weapon had come from Spain, “it [was] a certainty that the

firearm had traveled in foreign commerce,” which would meet the statutory requirement

“that Mr. Goode’s possession was ‘in or affecting commerce,’ as charged in the

indictment.” Id. There was, therefore, “no basis for concluding that the error seriously

affected the fairness, integrity or public reputation of judicial proceedings.” Id.
                                            -37-
         Unlike in Goode, the evidence in this case was insufficient to demonstrate beyond

a reasonable doubt one of the essential elements of the crime with which Mr. Rufai was

charged. Thus, under “the facts of [this] particular case,” Mr. Rufai’s conviction in the

absence of sufficient evidence is “particularly egregious” and the “failure to notice the

error would result in a miscarriage of justice.” United States v. Gonzalez-Huerta, 403

F.3d 727, 736 (10th Cir. 2005) (quotations omitted).

         We therefore conclude that Mr. Rufai’s convictions in the absence of sufficient

evidence was plain error, and we reverse.

         e. Jury confusion

         Because we reverse based on insufficiency of the evidence, we need not reach Mr.

Rufai’s argument that the jury could only have found him guilty because it was confused

by the jury instructions as to conspiracy and fraud.

                                    III. CONCLUSION

         For the foregoing reasons, we reverse Mr. Rufai’s convictions for health care

fraud.




                                            -38-
