                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           AUG 27 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-50118

              Plaintiff - Appellee,              D.C. No. 2:11-cr-00847-GAF-1

 v.
                                                 MEMORANDUM*
OWUSU ANANEH FIREMPONG,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     Gary A. Feess, District Judge, Presiding

                       Argued and Submitted August 4, 2015
                               Pasadena, California

Before: D.W. NELSON, SILVERMAN, and WARDLAW, Circuit Judges.

      Owusu Ananeh Firempong appeals his conviction for health care fraud in

violation of 18 U.S.C. § 1347. We have jurisdiction pursuant to 28 U.S.C. § 1291,

and we affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1. In his opening brief, Firempong argues only that Dr. Owens’ testimony

was admissible under Federal Rule of Evidence 404(b)(2)’s “identity” exception.

Thus, to the extent that Owens’ testimony may have been admissible under Rule

404(b)(2)’s “plan” exception, this argument is waived. See United States v. Kama,

394 F.3d 1236, 1238 (9th Cir. 2005).

      The district court did not abuse its discretion in concluding that Owens’

testimony was character and propensity evidence, and not evidence of

identity—the argument Firempong does advance on appeal. Owens would have

testified that HB Financial and Sirin Billing had previously duped her into

submitting false bills to Medicare, supporting an impermissible inference that they

had a propensity to dupe doctors, and, in conformity with this character, they also

duped Firempong. See Fed. R. Evid. 404(b)(1); United States v. McCourt, 925

F.2d 1229, 1235 (9th Cir. 1991) (“Evidence of ‘other crimes, wrongs, or acts,’ no

matter by whom offered, is not admissible for the purpose of proving propensity or

conforming conduct . . . .”). This evidence was not otherwise admissible for

purposes of proving identity under Rule 404(b)(2), because the identity of the two

companies was never in doubt and because the scheme described by Dr. Owens

was not “peculiar, unique, [] bizarre,” or “so unusual or distinctive as to constitute




                                           2
[a] personal signature on each crime.” United States v. Ezzell, 644 F.2d 1304,

1306 (9th Cir. 1981).

      2. The district court did not abuse its discretion in declining to give

Firempong’s requested jury instructions because they were unnecessary. See

United States v. Trevino, 419 F.3d 896, 901 (9th Cir. 2005) (“It is not reversible

error to reject a defendant’s proposed instruction on his theory of the case, if other

instructions, in their entirety, adequately cover that defense theory.”). The

instructions given required proof beyond a reasonable doubt that Firempong acted

with a bad purpose, with knowledge that his conduct was unlawful, and with intent

to defraud. Therefore, the jury could not have found Firempong guilty if it found

that he acted in good faith. This obviated the need for a separate good faith

instruction. See United States v. Shipsey, 363 F.3d 962, 967 (9th Cir. 2004) (“[A]

criminal defendant has ‘no right’ to any good faith instruction when the jury has

been adequately instructed with regard to the intent required to be found guilty . . .

.”). Nor was it necessary to instruct the jury that it could not find Firempong guilty

simply because he violated a Medicare regulation, as that finding alone would not




                                           3
include the findings of intent to defraud and knowledge of unlawfulness included

in other instructions.1

      3. The district court did not abuse its discretion in denying Firempong’s

motion to exclude evidence of uncharged false Medicare claims because they were

inextricably intertwined with the false claims charged in the indictment and

evidenced the scope of the charged scheme. See United States v. Rizk, 660 F.3d

1125, 1131–33 (9th Cir. 2011); United States v. Soliman, 813 F.2d 277, 278–79

(9th Cir. 1987). Similarly, the district court did not plainly err in failing to exclude

evidence that power wheelchairs were used to recruit Medicare beneficiaries. The

means of recruitment was part of the charged scheme and was explicitly alleged in

the indictment. See Soliman, 813 F.2d at 279; United States v. Santiago, 46 F.3d

885, 889 (9th Cir. 1995) (“[T]he record reveals no evidence of any specific,

wrongful acts by either [the defendant or his gang] that are unrelated to the [crime

charged]. . . . It therefore does not constitute ‘other crimes’ evidence subject to

Rule 404(b).” (emphasis added)). Moreover, the evidence was not unfairly

prejudicial, as it did not show that Firempong himself recruited any beneficiaries or



      1
         We have squarely rejected Firempong’s challenge to the instruction that
intent to defraud “may be shown by evidence that a representation is made with
reckless indifference to its truth or falsity.” See United States v. Dearing, 504 F.3d
897, 902–03 (9th Cir. 2007).

                                           4
even knew about the way in which his co-conspirators were recruiting

beneficiaries. Any prejudice caused by the waste involved in giving power

wheelchairs to individuals who did not need them was not unfair, as the evidence

was proof of the manner in which the scheme operated. See Rizk, 660 F.3d at

1133.

        4. Nor did the district court abuse its discretion in allowing the government

to impeach Firempong with his prior conviction for conspiracy to launder money

in violation of 18 U.S.C. §§ 1956(a), (h). While not automatically admissible

under Federal Rule of Evidence 609(a)(2), Firempong’s prior money laundering

conviction was admissible under Rule 609(a)(1)(B), as the probative value of the

conviction for impeachment purposes outweighed its prejudicial effect.

Firempong’s testimony and credibility were central to the case, and the prior

money laundering conviction was recent, probative of veracity, and dissimilar to

the crime charged in this case. See United States v. Alexander, 48 F.3d 1477, 1488

(9th Cir. 1995). Moreover, the court mitigated the prejudicial impact of the prior

conviction by issuing a proper limiting instruction, which we presume the jury

followed. See Weeks v. Angelone, 528 U.S. 225, 234 (2000).

        AFFIRMED.




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