                                                                           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                           NOT FOR PUBLICATION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,


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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.




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