                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                                                                    F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                                                                                     April 28, 2005
                                 FOR THE FIFTH CIRCUIT                           Charles R. Fulbruge III
                                                                                         Clerk


                                         No. 04-50791



       UNITED STATES OF AMERICA,


                                                           Plaintiff-Appellee,

                                             versus

       ARTHUR NIAZ RANA,

                                                           Defendant-Appellant.


                    Appeal from the United States District Court for
                             the Western District of Texas
                              (USDC No. M-04-CR-003)
            _______________________________________________________


Before REAVLEY, JONES, and GARZA, Circuit Judges.

PER CURIAM:*

       For the following reasons we uphold the conviction, and we vacate and remand the

case for resentencing:

       1.     Rana’s various criminal acts were not improperly joined for trial, and the



       *
        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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
     district court did not abuse its discretion by refusing to sever the

     allegations. See United States v. Hickman, 331 F.3d 439, 446-47 & nn. 7-

     8 (5th Cir. 2003). Rana billed for services not performed and billed for

     unnecessary services actually performed as part of his scheme to commit

     health care fraud. Each false claim was an act in furtherance of that

     scheme. Id. at 446 & n.7. Likewise, Rana was not convicted on a less than

     unanimous verdict, and the indictment was not duplicitous. Id. at 443 and

     446.

2.   The government did not constructively amend the indictment by offering

     evidence that Rana performed and billed for unnecessary medical

     procedures in addition to offering evidence that Rana fraudulently billed for

     procedures that were never actually performed. The indictment referred to

     the elements of the charged offense generally and also mentioned specific

     instances of charging the health care programs for allergy tests Rana never

     performed. Rana claims that the government’s introduction of testimony

     relating to other, medically unnecessary tests (in addition to evidence

     relating to the allergy tests Rana never performed at all) constituted a

     variance. However, the introduction of additional evidence referencing a

     separate fraudulent act does not mean that Rana was tried for anything

     beyond the specific charges presented in the indictment returned by the

     grand jury, or that Rana lacked sufficient notice of the charges against him.

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     Any error was harmless. See Stirone v. United States, 361 U.S. 212, 217-

     18 (1960); United States v. Martino, 648 F.2d 367, 382 (5th Cir. 1981)

     (rejecting defendant’s claim of variance where the government indicted on

     only one count of conspiracy and presented evidence of multiple

     conspiracies at trial).

3.   The evidence was sufficient to support the jury’s guilty verdict. Rana

     admitted that he billed for more allergy tests than he actually performed and

     that he performed unnecessary medical procedures, and the government

     provided evidence that the overbilling was not merely due to clerical or

     computer errors. The government provided evidence that Rana was aware

     that he routinely billed for 96 allergy tests, no matter how many tests were

     actually performed. Because Rana targeted Medicaid, his scheme to

     commit health care fraud affected interstate commerce. See Hickman, 331

     F.3d at 444.

4.   The indictment did not include acts barred by the statute of limitations,

     because Rana was engaged in a continuous scheme to commit health care

     fraud. Id. at 445-46.

5.   Rana argues that the district court erred by allowing into evidence summary

     charts without requiring the government to furnish the underlying data used

     to create the charts; however, after looking at all of the evidence, the district

     court found that the government had turned over all of the underlying data.

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     Rana also argues that the summary charts were flawed or incomplete due to

     (1) clerical errors in the summary charts, (2) patients’ information being

     redacted, and (3) the fact that the charts could not prove that the services

     billed for were not actually performed. The clerical errors in the charts may

     have affected the weight of the evidence, but they did not render the

     evidence inadmissible. Some of the patients’ information was redacted to

     ensure the patients’ privacy when the evidence was presented to the jury,

     but Rana had all of the redacted information. Finally, the summary charts

     were not offered to prove that Rana failed to perform the services for which

     he billed; they merely summarized Rana’s billing history. The government

     offered sufficient evidence to prove that Rana had not performed the

     services, including Rana’s own admissions. We hold that the district court

     did not abuse its discretion by admitting the summary charts into evidence.

     See United States v. Smyth, 556 F.2d 1179, 1184 (5th Cir. 1977).

6.   It was also not an abuse of discretion for the government to exclude Rana’s

     hearsay evidence in the form of a note allegedly written by a former

     employee taking blame for billing errors that occurred at the clinic. Id.

7.   The government did not engage in misconduct by questioning the

     authenticity of an obviously altered document offered into evidence by

     Rana. The district court noted that the date on which the document was

     purported to be created was three weeks after the date on which the

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          document was offered into evidence, so there was some basis for the

          government’s allegations.

    8.    Finally, in light of United States. v. Booker, __ U.S. __, 125 S. Ct. 738, 750

          (2005), we vacate and remand the case for resentencing, because the district

          court and not the jury determined the amount of restitution and loss, which

          was then used to calculate Rana’s sentence.

    The conviction is AFFIRMED; the sentence is VACATED and the case is

REMANDED.




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