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

                                                 FILED
                                                                         November 23, 2009

                                       No. 07-20471                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff - Appellee
v.

DAVID DENNIS BROWN; JAYSHREE PATEL; PIUS JAMES EKIKO;
CHARLES FRANK SKRIPKA, JR

                                                   Defendants - Appellants




                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 4:04-cr-00349-5


Before BARKSDALE, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
       The appellants in this case were doctors, medical equipment suppliers, and
marketers who were charged in a sixty-eight count indictment for conspiring to
fraudulently bill Medicare for power wheelchairs.1 They now appeal, raising
numerous challenges to their convictions and sentences. We AFFIRM.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
       1
        Not all defendants were charged with all counts. The specific charges against each
defendant-appellant are discussed below.
                                      No. 07-20471

                                        I. FACTS
       Viewed in the light most favorable to the jury’s verdict, the record
establishes that appellants Jayshree Patel, Charles Frank Skripka, Jr., Pius
James Ekiko, and David Dennis Brown acted to defraud Medicare by
fraudulently issuing or marketing prescriptions for power wheelchairs.
       Ekiko and Brown recruited Medicare beneficiaries to a clinic owned by
Lewis Gottlieb, a licensed physician, by promising the patients a free power
wheelchair and compensation for making the trip. Patel and Skripka, licensed
physicians employed at Gottlieb’s clinic, wrote the prescriptions for power
wheelchairs and certified to Medicare that the wheelchairs were medically
necessary. Gottlieb then sold the prescriptions and accompanying certificates
of medical necessity (CMNs) to suppliers of durable medical equipment (DME),
including Ekiko. In turn, the DME suppliers provided the patients with
motorized wheelchairs or scooters and sought reimbursement from Medicare for
the cost of the equipment.2 To maximize their profits, the DME suppliers,
including Ekiko, often billed Medicare for a power wheelchair, but delivered a
less-expensive scooter to the patient.
       During the 2002 year, Gottlieb’s clinic saw over one hundred patients per
day. The doctors rarely spent more than a few minutes with each patient and
approximately ninety-five percent of the patients were prescribed a power
wheelchair. The high volume of patients receiving power wheelchairs covered
by Medicare triggered an investigation by federal law enforcement officers.
       Shortly thereafter, a grand jury handed down a sixty-eight count
indictment. Among other things, the indictment charged Patel, Brown, Ekiko,



       2
          Medicare’s “Part B” regulations authorize Medicare to reimburse suppliers of DME
for the equipment they provide to Medicare beneficiaries. During the 2002 year, Medicare was
reimbursing DME suppliers $4200 for a motorized wheelchair, and $1700 for a motorized
scooter.

                                             2
                                       No. 07-20471

and Skripka with conspiracy to commit health-care fraud, to violate the anti-
kickback statute, to commit wire fraud, and to commit mail fraud. All were also
charged with health-care fraud and aiding and abetting wire fraud. Ekiko and
Skripka were also charged with aiding and abetting money laundering by
concealment. Finally, Ekiko was also charged with aiding and abetting money
laundering by promotion. At trial, Gottlieb and a DME supplier named Prince
Yellowe testified as Government witnesses, having reached plea agreements
with the Government.
       Patel was convicted of ten counts of health-care fraud.                  Ekiko was
convicted of the conspiracy charge, several counts of health-care fraud, wire
fraud, money laundering by promotion, and money laundering by concealment.
Skripka was convicted of the conspiracy charge, several counts of health-care
fraud, one count of wire fraud, and several counts of money laundering by
concealment. Brown was convicted of the conspiracy charge, several counts of
health-care fraud, and aiding and abetting wire fraud.                The instant appeal
followed.
                                       II. MERITS
       Patel, Ekiko, and Skripka appeal their convictions and their sentences.
Brown appeals his sentence.
A. Sufficiency of the Evidence Challenges
       Patel, Ekiko, and Skripka challenge the sufficiency of the evidence to
support their convictions.3 When an insufficiency-of-the-evidence challenge is
properly presented to the district court through a motion for judgment of



       3
         Ekiko, Patel, and Skripka also attempt to adopt their co-appellants arguments
through Federal Rule of Appellate Procedure 28(i). But challenges to the sufficiency of the
evidence are fact-specific inquiries, and the appellants may not adopt or incorporate the
arguments of their co-appellants through Rule 28(i). United States v. Stephens, 571 F.3d 401,
404 n.2 (5th Cir. 2009) (noting that sufficiency of the evidence challenges are fact-specific,
barring application of Federal Rule of Appellate Procedure 28(i)).

                                              3
                                       No. 07-20471

acquittal, we ask “whether a reasonable trier of fact could have found that the
evidence established guilt beyond a reasonable doubt.” United States v. Mauskar,
557 F.3d 219, 229 (5th Cir. 2009), cert. denied, 129 S. Ct. 2756 (2009) (quotation
marks and citations omitted). In evaluating the sufficiency of the evidence, we
view “all evidence and all reasonable inferences drawn from it in the light most
favorable to the government.” Id.4 This standard applies regardless of whether
the evidence is direct or circumstantial. United States v. Mergerson, 4 F.3d 337,
341 (5th Cir. 1993).
1. Patel
       Patel asserts that the evidence is insufficient to support her convictions for
health-care fraud because she did not knowingly or intentionally defraud
Medicare. But the Government introduced evidence from which a reasonable
juror could infer that, by signing the CMN form, Patel certified to Medicare that
each patient was currently using a wheelchair, suffered from physical
limitations that made a wheelchair necessary, and was incapable of using a
manual wheelchair.5 The Government introduced evidence that Patel approved


       4
           Patel asserts that this court reviews the sufficiency of the evidence de novo. That
is incorrect. This court does review a district court’s denial of a motion for judgment of
acquittal de novo; however, even under that standard we ask whether a reasonable jury could
find the evidence sufficient to support a finding of guilt beyond a reasonable doubt. United
States v. Percel, 553 F.3d 903, 910 (5th Cir. 2008). Conversely, where “a motion for judgment
of acquittal insufficiently preserves a claim, our review is only for a manifest miscarriage of
justice.” United States v. McDowell, 498 F.3d 308, 312 (5th Cir. 2007).
       5
          Patel and Skripka argue that the requirements to receive a power wheelchair were
ambiguous and inconsistent at the time the health-care fraud occurred. For the first time on
appeal, they assert that this court should take judicial notice of congressional testimony
regarding purported ambiguities in the Medicare coverage guidelines, which were
disseminated through the DME suppliers’ manual. We need not reach this issue because the
Government introduced evidence from which a reasonable jury could conclude that Patel and
Skripka were guilty of health-care fraud. The Government introduced evidence that Patel and
Skripka were aware of the standard contained on the CMN form, and nonetheless certified
patients for power wheelchairs who did not meet that standard. Because this evidence is
sufficient to sustain Patel and Skripka’s convictions for health-care fraud, we need not reach
the issue of whether the requirements to receive a power wheelchair in the DME suppliers’

                                              4
                                      No. 07-20471

patients for power wheelchairs who were able to walk into the clinic. Patel
certified to Medicare that these patients required power wheelchairs without
investigating whether they exhibited physical restrictions or were capable of
operating a manual wheelchair, as required by the CMN. This is sufficient to
support a finding that Patel committed health-care fraud. See United States v.
Ogba, 526 F.3d 214, 232 (5th Cir. 2008) (“In signing these forms and certifying
their truth, [the doctor] would have had to deliberately ignore the requirements
for prescribing a wheelchair.”), cert. denied, 129 S. Ct. 220 (2009); Mauskar, 557
F.3d at 230 (rejecting sufficiency of the evidence challenge to health-care fraud
conviction where doctor was aware that the patient was able to jog at the time
he prescribed a motorized wheelchair).
       Patel claims—and the Government does not dispute—that she crossed out
the words “and use” on the CMN form.6               She asserts that, in doing so, she
refused to certify that the patients were using a wheelchair at the time of the
evaluation; rather, she certified only that she believed they would benefit from
one, regardless of the Medicare standard. We need not reach the effect of Patel’s
crossing out this language because the Government introduced substantial
circumstantial evidence that Patel had the requisite knowledge and intent to
commit health-care fraud.
       The record is replete with circumstantial evidence that Patel had
constructive knowledge of Gottlieb’s fraudulent scheme: the large number of
patients in the clinic, Gottlieb’s failure to review test results or adhere to the
proper standard on the CMN, and the presence of recruiters and DME suppliers


manual were ambiguous. We note, however, that neither Patel nor Skripka presented any
evidence that they relied on a reasonable interpretation of the Medicare regulations when
prescribing power wheelchairs; rather, they disavowed any knowledge of the substance of the
regulations and claimed that they never received the DME suppliers’ manual.
       6
          Before Patel’s crossing-out of “and use,” this portion of the form read as follows:
“Does the patient require and use a wheelchair to move around in their residence?”

                                             5
                                       No. 07-20471

in the clinic. As we explain below, this evidence supported an instruction to the
jury on deliberate ignorance, and the record contains sufficient evidence from
which a reasonable jury could conclude that Patel was aware of the health-care
fraud and acted to further Gottlieb’s scheme.7
2. Ekiko
       Ekiko asserts that the evidence is insufficient to support his convictions
for conspiracy and money laundering.8               We conclude that the evidence is
sufficient to support the challenged convictions.
       The Government introduced testimony that Ekiko recruited Medicare
beneficiaries to the clinic, paid Gottlieb for prescriptions and CMN forms, and
billed Medicare for the cost of supplying power wheelchairs to these patients.
This evidence is legally sufficient to support a conviction for conspiracy to
defraud Medicare. See, e.g., Mauskar, 557 F.3d at 229.
       The evidence also supports Ekiko’s convictions for money laundering.
Ekiko does not dispute that he deposited the money he received from Medicare
into his bank accounts. This evidence is sufficient to support a finding that he



       7
          While Gottlieb did withhold information regarding the kickbacks from Patel and
Skripka, he did not conceal the substance of the CMN form, the prospect of criminal liability
for falsely certifying patients, or the existence of the vast number of recruiters, DME
suppliers, and Medicare beneficiaries in the clinic. Indeed, Gottlieb even warned Patel and
Skripka that other doctors were unwilling to risk signing the CMN forms out of fear of
liability. Thus, the evidence is legally sufficient to support the jury’s finding that Patel
knowingly committed health-care fraud.
       8
          Ekiko also raises a cursory challenge to his conviction for wire fraud. To the extent
that he provides no factual or legal analysis of this challenge, he has waived the issue.
Jason D.W. ex rel. Douglas W. v. Houston Indep. Sch. Dist., 158 F.3d 205, 210 n.4 (5th Cir.
1998) (“[F]ailure to provide any legal or factual analysis of an issue on appeal waives that
issue.”). We also note that the Government introduced substantial evidence that Ekiko
used the interstate wires to fraudulently obtain reimbursement from Medicare for the cost
of providing power wheelchairs. Accordingly, the Government introduced sufficient
evidence to support his conviction for wire fraud. See, e.g., United States v. Pedrick, 181
F.3d 1264, 1267-68 (11th Cir. 1999) (finding evidence that defendant submitted fraudulent
billing claims to Medicare to be sufficient to support convictions for wire fraud).

                                              6
                                      No. 07-20471

used the money for an illicit purpose. See United States v. Brown, 186 F.3d 661,
668 n.12 (5th Cir. 1999) (“Courts have held that a promotion money laundering
offense may occur when a defendant receives and deposits criminally derived
funds, in which case the deposit of the funds is the transaction intended to
promote the specified unlawful activity.”).
3. Skripka
       Skripka challenges the sufficiency of the evidence to support his
convictions for conspiracy to commit health-care fraud, health-care fraud, wire
fraud, and money laundering by concealment. Reviewing the record in the light
most favorable to the jury’s verdict, Skripka’s challenges fail.
       First, the Government introduced sufficient evidence to support Skripka’s
conspiracy conviction.      Prince Yellowe testified that Skripka knew that DME
suppliers were paying cash kickbacks to the clinic because Skripka was present
for many of the transactions.9 Skripka asserts that Yellowe’s testimony is not
credible because he was testifying pursuant to a plea agreement with the
Government. But this court reviews only the sufficiency of the evidence, not the
credibility of witnesses. United States v. Brown, 553 F.3d 768, 780 (5th Cir.
2008), cert. denied sub nom Combs v. United States, 129 S. Ct. 2812 (2009), and
cert. denied, 78 U.S.L.W. 3177 (2009).
       Second, the evidence is sufficient to support Skripka’s convictions for
health-care fraud. The Government introduced evidence that Skripka certified
patients for power wheelchairs without conducting a meaningful physical
examination, and with the knowledge that the patients failed to satisfy the
Medicare requirements. The Government also introduced evidence that Skripka



       9
         Skripka argues that his conviction should be overturned because he was unaware of
all members of the conspiracy. But the Government was not required to prove that Skripka
knew all of the members of the conspiracy. See United States v. Garcia Abrego, 141 F.3d 142,
155 (5th Cir. 1998).

                                             7
                                  No. 07-20471

knew that Gottlieb was profiting from the issuance of prescriptions and CMNs,
and Skripka continued to falsely certify patients for power wheelchairs.
      In addition to this testimony, there was other circumstantial evidence
before the jury that supported its verdict. This evidence includes the large
number of patients being transported by Brown to the clinic each day and the
dispensing of an unusually high number of power wheelchairs. In light of this
evidence, a reasonable jury could readily conclude that Skripka was aware of the
scheme to defraud Medicare and actively participated in the health-care fraud.
United States v. Achobe, 560 F.3d 259, 264 (5th Cir. 2008), cert. denied, 78
U.S.L.W. 3171 (2009).
      Third, the evidence is sufficient to support Skripka’s conviction of wire
fraud. In addition to the evidence demonstrating that Skripka was aware of the
scheme to defraud Medicare, the Government introduced evidence that Skripka
opened up a bank account to allow Medicare funds to be deposited after
Gottlieb’s accounts were frozen by the FBI. Based on this evidence, a rational
jury could find that Skripka was guilty of wire fraud. See United States v.
Stalnaker, 571 F.3d 428, 436 (5th Cir. 2005) (“[O]nce membership in a scheme
to defraud is established, a knowing participant is liable for any wire
communication which subsequently takes place or which previously took place
in connection with the scheme.”) (quotation marks and citation omitted).
      Finally, the evidence is sufficient to support Skripka’s conviction for aiding
and abetting money laundering by concealment.         The evidence introduced at
trial established that Skripka opened up multiple bank accounts for the purpose
of concealing the Medicare funds from the Government. This evidence is
sufficient to support a conviction for money laundering by concealment. See
Brown, 553 F.3d at 787.




                                         8
                                  No. 07-20471

B. Improper Commentary on the Evidence
      Ekiko argues that he was denied his right to a presumption of innocence
because the Government referred to Ekiko as a “co-conspirator” when responding
to a hearsay objection. Ekiko did not object at the time the statement was made;
thus, the issue is reviewed for plain error. United States v. Stephens, 571 F.3d
401, 408 (5th Cir. 2009). To obtain relief, Ekiko must demonstrate (1) error; (2)
that the error is plain; and (3) that it affected his substantial rights. Id. Even
if Ekiko meets that burden, this court still retains the discretion to “decide
whether to reverse the conviction, which [it] generally will not do unless the
plain error seriously affected the fairness, integrity, or public reputation of the
judicial proceeding.” Id. (quotation marks and citation omitted).
      Examining the Government’s statement in context, Ekiko cannot
demonstrate plain error or that the error seriously affected the fairness of the
proceedings. Initially, he cannot even demonstrate that the Government’s
statement was improper. The Government merely stated an exception to the
hearsay rule and did not elaborate or otherwise comment on the evidence.
Further, the Government’s statement was isolated, targeted at the court rather
than the jury, and was only one statement during a lengthy cross-examination.
Even assuming the Government’s statement was improper, it was not
prejudicial. See, e.g., United States v. Hitt, 473 F.3d 146, 161 (5th Cir. 2006).
Accordingly, Ekiko’s argument fails.
C. Deliberate Ignorance Instruction
      Patel and Skripka assert that the district court erroneously gave the jury
an instruction on deliberate ignorance. The district court gave three different
instructions on deliberate ignorance for the health-care fraud, wire fraud, and
money laundering concealment counts.
      Patel and Skripka objected at trial to the deliberate ignorance instruction.
Accordingly, we review the decision to give the jury the instruction for an abuse

                                        9
                                       No. 07-20471

of discretion.10 Ogba, 526 F.3d at 230. We ask whether the district court’s
instructions, taken in their entirety, made “a correct statement of the law and
whether [the instructions] clearly instruct[ ] jurors as to the principles of law
applicable to the factual issues confronting them.” United States v. Lara-
Velasques, 919 F.2d 946, 950 (5th Cir. 1990) (quotation marks and citation
omitted). The court’s instructions must be legally accurate, as well as factually
justified. Id. In assessing whether the evidence supports a given instruction, we
view “the evidence and all reasonable inferences that may be drawn from the
evidence in the light most favorable to the Government.” Id.
       A deliberate ignorance instruction is warranted if the evidence at trial
raises two inferences: “(1) the defendant was subjectively aware of a high
probability of the existence of the illegal conduct; and (2) the defendant
purposefully contrived to avoid learning of the illegal conduct.” Lara-Velasquez,
919 F.2d at 951; see also United States v. Orji-Nwosu, 549 F.3d 1005, 1009-10
(5th Cir. 2008).
       Whether a defendant purposefully contrived to avoid learning of the illegal
conduct may be established by direct or circumstantial evidence. “[W]here the
facts raise a question about the conduct and intentions of someone other than
the defendant . . . a deliberate ignorance instruction is appropriate.” Orji-Nwosu,
549 F.3d at 1009 (citation omitted).
       In this case, the Government presented substantial evidence from which
a reasonable jury could conclude that Patel and Skripka were subjectively aware


       10
            The Government asserts that Skripka did not object to the deliberate ignorance
instruction as it related to the substantive wire fraud counts or money laundering counts.
The Government concedes that the district court issued a pretrial order stating that an
objection from one party would be deemed an objection by all parties, unless counsel “expressly
opts out of an objection.” But the Government argues that Skripka expressly opted out of the
objection by stating that he had “no objections to the charge.” We need not decide whether this
is sufficient to opt out of the objection, because Skripka’s challenge fails even under the more
favorable abuse of discretion standard.

                                              10
                                No. 07-20471

of a high probability of illegal conduct. The Government presented evidence of
the high rate at which patients were being seen and approved for motorized
wheelchairs, despite the fact that the patients were ambulatory at the time of
the evaluation. The Government also presented evidence that both Patel and
Skripka were aware that the prescriptions and CMNs were not being delivered
to the patients. Further, the Government introduced evidence that the clinic
was overcrowded with recruiters and DME suppliers, and that the patients were
being brought in by the van-load from neighboring states.         Finally, the
Government introduced evidence that both Patel and Skripka knew of the
Medicare standard contained on the CMN form, but repeatedly certified patients
that did not meet that standard. This evidence raised an inference that Patel
and Skripka were subjectively aware of a high probability that illegal conduct
was occurring at the clinic.
      The Government also presented circumstantial evidence that Patel and
Skripka engaged in a “purposeful contrivance to avoid learning of the illegal
conduct.” Gottlieb testified that he warned Patel and Skripka that many doctors
would refuse to sign the CMN form based on his interpretation because they did
not want to certify those findings to Medicare. Patel testified that she would
simply shut her office door and ignore the persons in the clinic—including
twenty or more recruiters present on a daily basis.   This evidence supports a
conclusion that she purposefully contrived to avoid learning of the fraudulent
scheme.   See, e.g., Orji-Nwosu, 549 F.3d at 1009 (finding the purposeful
contrivance requirement satisfied where the defendant accepted a strange
explanation at face value without further investigation despite strong
circumstantial evidence of a crime). Prince Yellowe testified that Skripka was
present when cash payments were made for the CMNs. Skripka testified that,
despite all of the circumstantial evidence of fraud, he accepted Gottlieb’s
statement that the clinic was in compliance with Medicare regulations. Based

                                      11
                                      No. 07-20471

on this evidence, the district court was entitled to instruct the jury on deliberate
ignorance.11
D. Sentencing Errors
       On appeal, Ekiko and Brown argue that the district court erred by
applying a three-level enhancement to their sentences based upon a finding that
they were managers or supervisors in the criminal scheme. Patel argues that
the district court erred by applying a twenty-level enhancement to her sentence
based upon a finding that she was responsible for an intended loss of almost
$12,000,000.
1. Upward Adjustment for Role in Offense
       Ekiko and Brown assert that the district court erred by adjusting their
offense levels upward three levels based upon their roles in the conspiracy. The
district court determined that Brown and Ekiko were managers or supervisors
in the criminal activity and that the criminal enterprise was extensive.
Accordingly, the district court raised Brown’s and Ekiko’s offense level by three.
See U.S. S ENTENCING G UIDELINES M ANUAL § 3B1.1(b) (2008). Brown and Ekiko
challenge this determination on appeal.
a. Brown
       Brown did not file any written objections to the presentence report (PSR),
and he did not object to the imposition of the three-level enhancement at
sentencing. As a result, this court reviews his objection on appeal for plain
error. United States v. Ronquillo, 508 F.3d 744, 748 (5th Cir. 2007), cert. denied,
128 S. Ct. 2458 (2008).



       11
         Patel also argues that the district court’s instruction diluted the mens rea
requirement and gave the jury the ability to find her guilty if she “should have known” that
criminal wrongdoing was occurring. But the court’s instructions explicitly warned the jury
that “demonstrating that the defendant was negligent, careless or foolish” was insufficient.
Thus, the court did not abuse its discretion by instructing the jury on deliberate ignorance.
Ogba, 526 F.3d at 232.

                                             12
                                  No. 07-20471

      On appeal, Brown argues that he was not a manager or supervisor.
Specifically, Brown asserts that, at best, he “employed other people who in turn
may have paid individuals brought to Houston as an incentive to take the trip.”
This concession alone is sufficient to support a finding that Brown was a
manager. Mauskar, 557 F.3d at 235 (affirming district court’s application of the
enhancement because the defendant supervised at least one criminally
responsible participant and the criminal activity charged was otherwise
extensive). The evidence introduced at trial demonstrated that Brown brought
in over 521 patients from the state of Louisiana during the August 22, 2002 to
March 6, 2003 time period. Brown also offered to pay the Medicare beneficiaries
extra money if they brought in patients on their own. In sum, Brown’s actions
demonstrate that he occupied a manager or supervisor role in the conspiracy.
The district court did not plainly err by increasing his offense level by three for
the role he played in the offense.
b. Ekiko
      Ekiko argues that he did not have an manager or supervisor role in the
offense because the Government never established that the persons Ekiko
supervised or managed participated in the fraud.          Ekiko objected to the
application of the three-level enhancement at sentencing. As a result, we review
the district court’s factual findings for clear error and the application of the
sentencing guidelines de novo. United States v. Gould, 529 F.3d 274, 276 (5th
Cir. 2008) We review the district court’s determination that an individual was
a criminally responsible participant for clear error, and ask whether the
determination is “plausible in light of the record as a whole.” See United States
v. Holmes, 406 F.3d 337, 363 (5th Cir. 2005).
      The commentary to U.S. Sentencing Guidelines § 3B1.1 states that a
participant is “a person who is criminally responsible for the commission of the
offense, but need not have been convicted.” At sentencing, the Government

                                        13
                                       No. 07-20471

argued that Allen Driver, King Robinson, Shenike Harrison and Michelle Morris
were participants subject to Ekiko’s control. Harrison testified that Robinson
was hired to drive patients to the clinic and deliver scooters for Ekiko. Driver
testified that he was hired to do the same. Ekiko asserts that these individuals
were independent contractors, not employees. But the testimony established
that Ekiko told the individuals where to go and what to do with the patients.
The fact that Ekiko did not control every aspect of their employment does not
preclude a finding that he supervised their actions.12 Mauskar, 557 F.3d at 235
(affirming application of three-level enhancement where testimony established
that the appellant paid recruiters for referring patients, requested kickbacks and
controlled which recruiters could bring patients in). Thus, the district court did
not commit clear error in concluding that Ekiko occupied an aggravating role in
the offense.
2. Upward Adjustment Based on Intended Loss Computation
       Patel raised two objections to the calculation of her total offense level at
sentencing. She renews both objections on appeal. First, she argues that her
total offense level is not supported by the record because the jury acquitted her
on the conspiracy charges. As a result, Patel asserts that she cannot be held
responsible for amounts lost because of the conspiracy. Second, Patel claims




       12
            Ekiko asserts in his reply brief that the offense was not extensive within the
meaning of § 3B1.1 because he was not responsible for the bulk of the Medicare fraud. But
the third comment to § 3B1.1 states that “[i]n assessing whether an organization is ‘otherwise
extensive,’ all persons involved during the course of the entire offense are to be considered.
Thus, a fraud that involved only three participants but used the unknowing services of many
outsiders could be considered extensive.” U.S. SENTENCING GUIDELINES § 3B1.1 cmt. n.3. In
this case, the Government introduced substantial evidence that Ekiko utilized the services of
Gottlieb, Patel, Skripka, and Rodriguez to defraud Medicare. In addition, the evidence
demonstrated that Ekiko used recruiters to drum up business at Gottlieb’s clinic and increase
his profits. Thus, the evidence demonstrates that the offense was extensive.


                                             14
                                     No. 07-20471

that the PSR inappropriately relied on information that was beyond the scope
of the trial witnesses’ testimony.
      The district court’s determination of the intended amount of loss is a
factual finding that we review for clear error. United States v. Klein, 543 F.3d
206, 214 (5th Cir. 2006). The district court’s method of calculation, however, is
reviewed de novo. Id.
      Patel asserts that the amount of loss calculated is unfairly based on the
conspiracy charge of which she was acquitted. The fact that Patel was acquitted
of the conspiracy charge does not preclude the court from taking into account her
participation in the scheme. This court has repeatedly held that “a jury’s verdict
of acquittal on some . . . counts does not prevent the sentencing court from
considering conduct underlying the acquitted count as long as that ‘related’
conduct has been proved by a preponderance of the evidence.” United States v.
Pineiro, 470 F.3d 200, 206 (5th Cir. 2006).
      Patel has not shown that the district court’s enhancement of her sentence
based on acquitted conduct was in error. She asserts only that the evidence
suggests that her Medicare account was being used without her knowledge and
that the testimony given in support of the district court’s finding was based on
speculation.   She also asserts that she was not given a forum to confront
witnesses. There is no basis for these assertions.
      Agent Judy Sly of the Department of Health and Human Services testified
that approximately $14 million was billed to Patel’s unique physician
identification number. Patel asserts that Agent Sly’s testimony supports an
inference that Patel’s account was being used without her knowledge because
each billing code was not supported by an accompanying signed CMN. But Patel
does not deny that she pre-signed CMN forms and approved over ninety-five
percent of her patients. Agent Sly’s testimony established that the CMNs signed
by Patel were then sold to DME suppliers who used the prescriptions to generate

                                         15
                                       No. 07-20471

over $9 million in reimbursement fees from Medicare. Patel does not suggest
that the district court’s mathematical calculations were in error; rather she
questions the credibility of the testimony relied on by the district court.13 This
is insufficient to warrant reversal of the district court’s findings.
                                  III. CONCLUSION
       For the reasons set forth above, the judgment of the district court is
AFFIRMED.




       13
         Similarly, Patel’s assertion that her signature was forged is unsupported by the
evidence. Charlotte Ware, a handwriting expert, testified that only a few documents
containing Patel’s signature were an inconclusive match to Patel’s handwriting sample. Her
testimony does not support Patel’s assertion that forgery was rampant or an inference that the
bulk of Patel’s CMN forms were forged.

                                             16
