                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                         APR 27 2016

                                                                       MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                        U.S. COURT OF APPEALS




UNITED STATES OF AMERICA,                        No. 13-50431

              Plaintiff - Appellee,              D.C. No. 2:12-cr-00905-R-2

 v.
                                                 MEMORANDUM*
GODWIN ONYEABOR,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 13-50436

              Plaintiff - Appellee,              D.C. No. 2:12-cr-00905-R-3

 v.

DR. SRI J. WIJEGUNARATNE, AKA Dr.
J.,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 13-50483

              Plaintiff - Appellee,              D.C. No. 2:12-cr-00905-R-4



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
 v.

HEIDI MORISHITA,

           Defendant - Appellant.



UNITED STATES OF AMERICA,                   No. 14-50081

           Plaintiff - Appellee,            D.C. No. 2:12-cr-00905-R-4

 v.

HEIDI MORISHITA,

           Defendant - Appellant.



UNITED STATES OF AMERICA,                   No. 14-50082

           Plaintiff - Appellee,            D.C. No. 2:12-cr-00905-R-2

 v.

GODWIN ONYEABOR,

           Defendant - Appellant.


                Appeal from the United States District Court
                   for the Central District of California
                 Manuel L. Real, District Judge, Presiding

                   Argued and Submitted February 3, 2016
                            Pasadena, California

Before: PREGERSON, WARDLAW, and HURWITZ, Circuit Judges.
      Following a seven-day trial, a jury found Godwin Onyeabor, Sri

Wijegunaratne, and Heidi Morishita (collectively, “Appellants”) guilty of federal

crimes involving Medicare fraud and kickbacks. On appeal, Appellants contend

that the district court unduly and excessively intervened in the proceedings, so as

to render the trial fundamentally unfair, and should have granted Appellants’

numerous motions for mistrial or severance.1 Appellants have been released on

bond pending appeal.2 We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

reverse.

      From 2006 through 2012, Fendih Medical Supply Inc. (“Fendih”) supplied

power wheelchairs to Medicare beneficiaries and received reimbursement from the

Center for Medicare & Medicaid Services (“CMS”). Fendih’s chief executive

officer was Victoria Onyeabor (“Victoria”), Onyeabor’s spouse. Onyeabor was

also employed by the company, though the nature of his role was in dispute.

Federal investigators concluded that Fendih was defrauding CMS by supplying

power wheelchairs to people who did not need them, and that Fendih illegally gave


      1
             Appellants also challenged their convictions and sentences on a host
of other grounds, which we need not reach.
      2
              The district court ordered Morishita’s release on bond pending appeal.
 Although the district court denied Onyeabor’s and Wijegunaratne’s requests for
similar relief, two different two-judge panels of our court ordered their release on
bond pending appeal.
                                          3
doctors, including Wijegunaratne, and promoters, including Morishita, cash

kickbacks in exchange for prescriptions. Investigators also concluded that

Wijegunaratne knowingly wrote medically unnecessary power wheelchair

prescriptions.

      After agents executed a search warrant on Fendih’s business, a grand jury

indicted Appellants and Victoria. Victoria pleaded guilty, and the government

proceeded to trial against Appellants. Onyeabor and Wijegunaratne were

convicted of conspiracy to commit health care fraud in violation of 18 U.S.C.

§ 1349, and several substantive counts of health care fraud in violation of 18

U.S.C. § 1347. All three defendants were convicted of conspiracy to pay and

receive kickbacks in violation of 18 U.S.C. § 371 and 42 U.S.C. § 1320a-7b(1)(A)

& (2)(A).

1.    Appellants contend that the district court judge so excessively intervened in

the trial as to render fair judgment impossible. After a thorough review of the

record, we agree. We will reverse a trial court for its undue participation in the

proceedings only “if the record . . . leaves [us] with an abiding impression that the

judge’s remarks and questioning of witnesses projected to the jury an appearance

of advocacy or partiality.” United States v. Mostella, 802 F.2d 358, 361 (9th Cir.

1986) (quoting Shad v. Dean Witter Reynolds, Inc., 799 F.2d 525, 531 (9th Cir.


                                           4
1986)) (internal quotation marks omitted). The moving party must show that “the

conduct measured by the facts of the case presented together with the result of the

trial[] was clearly prejudicial to the rights of the party,” which is assessed “in light

of the evidence of guilt.” United States v. Scott, 642 F.3d 791, 799 (9th Cir. 2011)

(per curiam) (citation omitted). We review for an abuse of discretion a district

court’s denial of a motion for mistrial brought on the basis of excessive judicial

intervention. Shad, 799 F.2d at 531.

      Considered collectively, a number of the court’s remarks devastated the

defense, projected an appearance of hostility to the defense, and went far beyond

the court’s supervisory role.3 Most of these were addressed to Wijegunaratne’s

counsel, Victor Sherman. The court admonished Sherman 39 times in the presence

of the jury, often at crucial moments and for innocuous conduct. The court

admonished the government only 4 times. The following remarks are illustrative,

though by no means exhaustive:



      3
              We reject the government’s argument that the district court judge
merely engaged in “ordinary efforts at courtroom administration,” which, even if
“stern and short-tempered,” are “immune” to a partiality challenge under Liteky v.
United States, 510 U.S. 540, 556 (1994). Assuming that Liteky, a statutory
disqualification case arising under 28 U.S.C. § 455(a), has any bearing on the
showing necessary to require a mistrial, its standard is satisfied. The judge’s
remarks “reveal[ed] such a high degree of . . . antagonism as to make fair judgment
impossible.” 510 U.S. at 555.
                                            5
      MR. SHERMAN: She testified about the visit. I’m going to ask her
      about the client [sic] with my client.
      THE COURT: Please. Come upon [sic], Mr. Sherman, you know better
      than that. You know very much better than that.
      MR. SHERMAN: I can’t ask her –
      THE COURT: Don’t try to poison this jury. And that’s what you’re
      trying to do.
      MR. SHERMAN: No. I’m trying to do my job.
      THE COURT: No. No, you’re not. You [sic] conduct is not doing your
      job.


      THE CLERK: All rise.
      [THE COURT:] Mr. Sherman, you’ve gotten a lot of hearsay evidence
      that is not admissible.
      (Recess taken)
      THE COURT: Well, just a moment. Before—I want to clear the record,
      Mr. Sherman. I was not doing anything for the Government. What I
      was doing is I was trying to teach my law clerks about trial and evidence.
      All right.


      MR. SHERMAN: Last question, Your Honor.
      THE COURT: Thank God. [Followed by an admonition.]

Our complete review of the record leaves us with an abiding impression that the

court projected an appearance of bias against Appellants and in favor of the

government. Mostella, 802 F.2d at 361.




                                          6
2.    Further, throughout trial, the district court made numerous erroneous rulings,

which one-sidedly accrued to the benefit of the government and the detriment of

Appellants.4 We provide two illustrative examples rather than an exhaustive list.

      First, the court prevented Sherman from effectively cross-examining

Margaret Perez, a key government witness, and foreclosed legitimate avenues of

impeachment without explanation. See United States v. Hibler, 463 F.2d 455, 462

(9th Cir. 1972). Second, the court prevented Wijegunaratne from presenting

medical records or testimony in support of a defense that he prescribed power

wheelchairs only when they were medically necessary. The government conceded

that the records showed medical necessity on their face, and informed the judge

that it did not object to the defense arguing to the jury that the patient files on their

face supported a finding of medical necessity, but the district court nevertheless

precluded the defense from doing so. Thus, the jury was never made aware of this

evidence.5 These rulings were abuses of the court’s discretion.

      Although these and other erroneous rulings might not by themselves provide

sufficient bases on which to reverse, when considered cumulatively with the

      4
             We note too that the court sustained almost all of the government’s
evidentiary objections, versus about one third of Appellants’ objections.
      5
              In its closing argument, which was not evidence, the government did
concede that Wijegunaratne’s prescriptions “[o]f course” looked legitimate, though
it argued that facial legitimacy was necessary to perpetuate the fraud.
                                            7
district court’s excessive intervention, they heightened the prejudicial effect on the

jury. See United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996).

3.    The government concedes that the district court judge made “occasionally

intemperate comments directed toward Wijegunaratne’s counsel,” but it argues that

these did not rise to the level of reversible error. The government relies principally

upon United States v. Scott, in which the same district judge made certain

“comments and interventions [that] were inconsistent with standards of judicial

decorum,” but where our court declined to overturn a conviction on this basis.

Scott, 642 F.3d at 799.

      Scott is inapposite. In that case, most of the court’s injudicious comments

were pursuant to its supervisory role, and the evidence against the defendant was

overwhelming. 642 F.3d at 799. Here, by contrast, the court far exceeded the

appropriate bounds of its role, and the evidence against Appellants, though legally

sufficient to convict, was not overwhelming. Moreover, each of the defendants

allegedly played a minor role in the conspiracy; Victoria, who masterminded and

most profited from the conspiracy, had pleaded guilty. The jury fairly could have

concluded that Onyeabor did not occupy a position within Fendih in which he

participated in or knew of its misdeeds; that Wijegunaratne, a medical doctor,

believed that the power wheelchairs were medically necessary for the patients for


                                           8
whom he prescribed them; and that Wijegunaratne and Morishita lacked the

necessary intent to participate in an illegal kickback scheme. Therefore, the

prejudicial effect of the court’s improper comments and the other trial errors may

well have influenced the verdict. Although Scott assigned great weight to the

curative instructions given by the district court, 642 F.3d at 800, we have long

recognized that such instructions cannot ameliorate pervasive and prejudicial

judicial interventions of the kind that occurred here. See, e.g., United States v.

Morgan, 376 F.3d 1002, 1008 n.5 (9th Cir. 2004).

4.    We likewise find unpersuasive the government’s argument that any

appearance of partiality bore only on the jury’s perception of Wijegunaratne’s

counsel, and not on any Appellant. The district court’s conduct was “so virulent

here as to result in material harm to [Appellants’] defense.” United States v. Burt,

765 F.2d 1364, 1368 (9th Cir. 1985). Given the manner in which the joint trial of

Appellants proceeded, this harm was not limited to Wijegunaratne, and necessarily

carried over to his co-defendants. See Mostella, 802 F.2d at 361.

5.    The reassignment of a case to a different district court judge following

remand is reserved for “rare and extraordinary circumstances.” United States v.

Kowalczyk, 805 F.3d 847, 861 (9th Cir. 2015) (citation omitted). We consider:




                                           9
      (1) whether the original judge would reasonably be expected upon
      remand to have substantial difficulty in putting out of his or her mind
      previously-expressed views or findings determined to be erroneous or
      based on evidence that must be rejected, (2) whether reassignment is
      advisable to preserve the appearance of justice, and (3) whether
      reassignment would entail waste and duplication out of proportion to any
      gain in preserving the appearance of fairness.

Id. (citation omitted). “The first two of these factors are of equal importance, and

a finding of one of them would support a remand to a different judge.” United

States v. Sears, Roebuck & Co., 785 F.2d 777, 780 (9th Cir. 1986). Reassignment

is necessary to preserve the appearance of justice. We instruct the Clerk of Court

for the Central District of California to reassign this case to a different district court

judge upon remand.

      REVERSED; REMANDED WITH INSTRUCTIONS.




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