     Case: 17-20688      Document: 00515004306         Page: 1    Date Filed: 06/20/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit

                                    No. 17-20688                             FILED
                                  Summary Calendar                       June 20, 2019
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

REX DURUJI,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:16-CR-114-2


Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       A grand jury indicted Rex Duruji on one count of conspiracy to commit
health care fraud under 18 U.S.C. § 1349 (count 1), one count of conspiracy to
pay healthcare kickbacks under 18 U.S.C. § 371 (count 2), and one count of
aiding and abetting health care fraud under 18 U.S.C. § 2 and 18 U.S.C. § 1347
(count 3). Following a jury trial, the district court sentenced Duruji to 37
months in prison on each count, to be served concurrently, to a supervised


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 17-20688

release term of 3 years which he is currently serving, and to $133,443.35 in
restitution. Duruji appealed.
      Duruji challenges the sufficiency of the evidence as to each of the three
counts of conviction. He first argues that the Government failed to introduce
evidence sufficient to prove beyond a reasonable doubt that he entered into an
agreement with Nkiru Ibeabuchi to commit healthcare fraud. See § 1349.
Because Duruji moved for a judgment of acquittal at the close of evidence, we
review his challenge to the sufficiency of the evidence de novo. See United
States v. Eghobor, 812 F.3d 352, 361-62 (5th Cir. 2015). In doing so, however,
we “view all evidence, whether circumstantial or direct, in the light most
favorable to the government, with all reasonable inferences and credibility
choices to be made in support of the jury’s verdict.” Eghobor, 812 F.3d at 362
(internal quotation marks and citation omitted).
      The trial evidence showed that Duruji repeatedly worked with staff from
Ibeabuchi’s company, Koby Home Health (Koby), in Waco, Texas, to find and
enroll new Medicare patients with Koby. In doing so, Duruji dressed and acted
towards potential patients as if he were a physician capable of certifying
patients for Medicare services, directed Koby’s nurse to enroll patients, and
assigned diagnoses for the new patients. Additionally, the evidence showed
that Duruji discussed payment with a patient recruiter, sometimes paid new
or re-enrolling patients, and sometimes provided money for others to pay the
enrollment kickbacks.       Moreover, in a conversation between Duruji and
Ibeabuchi, Duruji indicated that he could bring Koby 300 Medicare patients if
Ibeabuchi “cooperate[d].”    Ibeabuchi responded that such a large number of
enrollees would be profitable for her. The trial evidence is sufficient to show
at the very least the “essential nature” of the agreement between Duruji and




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Ibeabuchi and Duruji’s participation in the agreed conduct. United States v.
Pofahl, 990 F.2d 1456, 1470 (5th Cir. 1993); see Eghobor, 812 F.3d at 362.
      The evidence supporting Duruji’s participation in the healthcare fraud
conspiracy equally supports the jury’s conclusion that Duruji participated in
the kickback scheme with Ibeabuchi. See § 371; 42 U.S.C. § 1320a-7b(b)(1), (2);
Eghobor, 812 F.3d at 362. Duruji presented himself as the diagnosing and
enrolling physician, discussed the payment for new patients with a recruiter,
paid new and re-enrolling patients as well as recruiters of other new patients,
and provided cash to other recruiters with which they were to pay new
enrollees. Additionally, a reasonable jury could infer Duruji’s awareness of the
illegality of the kickback payments because, out of fear of legal consequences,
he provided cash to other recruiters to pay new enrollees; because of the
reference to payments in the recorded phone call; and because of the evidence
that he gave new patients cash in a hotel room bathroom where he purported
to examine them for enrollment. See United States v. Gibson, 875 F.3d 179,
188 (5th Cir. 2017), cert. denied, 138 S. Ct. 2664 (2018).
      To the extent that Duruji challenges the sufficiency of the evidence
showing that he also solicited and received kickbacks himself for enrollees, the
Government did not have to prove that the conspiracy involved violations of
each of the two subsections of § 1320a-7b(b). See United States v. Mauskar,
557 F.3d 219, 229 (5th Cir. 2009); United States v. Mann, 493 F.3d 484, 492
(5th Cir. 2007).   Viewing the evidence in the light most favorable to the
Government, the evidence supports the jury’s conclusion that Duruji
understood and willfully participated in the illegal kickback scheme.           See
Eghobor, 812 F.3d at 361-62.
      Duruji’s challenge to the sufficiency of the evidence supporting his
conviction of aiding and abetting health care fraud, which focuses on his



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interactions with one Koby patient, is equally unavailing. According to Duruji,
the Government failed to produce evidence showing that Duruji certified the
individual for home health service with the intent to defraud Medicare, signed
either a physician’s order or certification for home health care, caused the
creation of an initial Medicare care assessment for the patient, or caused the
creation of a care plan for her.
      The absence of Duruji’s signature on the formal documents, however,
does not counter the evidence that he knew about and willingly participated in
the conspiracy generally and in relation to one particular patient. See United
States v. Umawa Oke Imo, 739 F.3d 226, 235 (5th Cir. 2014). In addition to
the evidence recited above that Duruji understood and worked to further the
Medicare fraud conspiracy generally, the Government produced evidence of
Duruji’s interactions with this patient in the context of the conspiracy. Duruji,
while working with Ibeabuchi to prepare for certification individuals brought
to them by their recruiters, visited the patient and her husband at home,
examined both on their front porch, recruited the husband to bring in further
Medicare beneficiaries for enrollment, and, upon the couple both signing up
with Koby, either paid them or was present as Ibeabuchi paid them cash for
signing up. Thereafter, Koby billed Medicare for services for the wife, although
she did not receive the services. Moreover, because we view the evidence in
the light most favorable to the verdict, we accord credibility, as the jury did, to
Jack Smart’s testimony that Willie Smart did not need assistance with the
activities of daily living. See United States v. Lopez-Urbina, 434 F.3d 750, 757
(5th Cir. 2005). A reasonable jurist could conclude the Government established
beyond a reasonable doubt that health care fraud occurred and that Duruji
associated with the conspiracy, actively participated in it in regard to the




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referenced patient, and sought to make the fraud successful.           See Lopez-
Urbina, 434 F.3d at 757.
      In the alternative to his challenges to his convictions, Duruji contends
that the district court erred in calculating the loss and restitution amounts.
Duruji did not raise in the district court the challenges he asserts here, and
both the loss amount and the restitution award are therefore reviewable only
for plain error. See United States v. Lozano, 791 F.3d 535, 537 (5th Cir. 2015);
United States v. Nesmith, 866 F.3d 677, 679 (5th Cir. 2017). The guidelines
loss calculation and the actual loss for purposes of restitution are both findings
of fact. See United States v. Brown, 727 F.3d 329, 340-41 (5th Cir. 2013);
United States v. Read, 710 F.3d 219, 231 (5th Cir. 2012). Such “questions of
fact capable of resolution by the district court can never constitute plain error.”
United States v. Chung, 261 F.3d 536, 539 (5th Cir. 2001) (internal quotation
marks and citation omitted); see United States v. Castellon-Aragon, 772 F.3d
1023, 1026 (5th Cir. 2014).
      The judgment of the district court is AFFIRMED.




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