     Case: 13-11237      Document: 00513188060         Page: 1    Date Filed: 09/10/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 13-11237                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                               September 10, 2015
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

COMFORT GATES; GODWIN UMOTONG,

              Defendants - Appellants




                  Appeals from the United States District Court
                       for the Northern District of Texas
                             USDC No. 3:11-CR-308


Before STEWART, Chief Judge, and JOLLY and GRAVES, Circuit Judges.
PER CURIAM:*
       After a jury trial, Defendants-Appellants Comfort Gates (Gates) and
Godwin Umotong (Umotong) were convicted of conspiracy to commit
healthcare fraud under 18 U.S.C. § 1349, and several substantive counts of
healthcare fraud under 18 U.S.C. §§ 1347 and 2, for their participation in an
elaborate scheme to defraud Medicare by billing for services that were never




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-11237
performed. Defendants-Appellants now challenge their convictions on appeal.
We AFFIRM.
                                        I.
      This case involves a complex scheme to fraudulently bill Medicare for
services that were never performed. The scheme was devised by Osvanna
Agopian (Agopian), who had twice been convicted of healthcare fraud, and
carried out by several “foot soldiers,” including Defendants-Appellants Gates
and Umotong. To effectuate her scheme, Agopian opened two clinics—Medic
in Houston, Texas, around July 2009, and Euless Healthcare Corporation
(EHC) located in Euless, Texas, a Dallas suburb, around April 2010
(collectively, the Clinics). The Clinics operated as “false-front” clinics: medical
operations that bill Medicare for services that are not actually performed. The
Clinics were Level 3.0 false fronts, which are the hardest for Medicare to detect
because of the sophisticated means, such as visiting actual patients and
maintaining patient files, employed to create the illusion of legitimacy.
      Agopian’s scheme went as follows: The Clinics recruited patients from
legitimate home healthcare agencies that would send over a patient’s
information. To bill Medicare for home visits, home healthcare providers need
a doctor or a physician’s assistant (P.A.) under a doctor’s supervision to certify
that such home visits are necessary. Though each clinic had a licensed doctor
on staff, Agopian would send employees like Gates and Umotong, who held
foreign medical credentials, to the patients’ homes to conduct home-health
assessments for a licensed clinic doctor to later certify. Agopian instructed the
employees to wear lab coats or scrubs so that patients would recognize them
as medical professionals and be more willing to allow them into their homes.
She further instructed the employees to tell patients that they were P.A.s from
the doctor’s office.
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                                     No. 13-11237
      Once in a patient’s home, the employees, often working in pairs, would
collect the patient’s information that would later be used for billing. After
collecting this information, one employee, usually the technician, would take
vital signs, while the other, usually the P.A., would conduct a physical checkup
and order the diagnostic tests. These tests were never performed. Instead,
Agopian purchased fake diagnostic test results from a diagnostic company.
      After conducting patient visits, the employees would return to either
Medic or EHC, where they were responsible for completing several forms,
which included ordering diagnostic tests, to be placed in the patient’s file. A
clinic doctor would then sign the forms authorizing tests that were never
performed, and Agopian would use those forms to request reimbursements
from Medicare. Through this fraudulent scheme, the Clinics received over $1.3
million for office visits and diagnostic tests that never occurred.
      By way of the Superseding Indictment, the Government charged Gates,
Umotong, Agopian, and several co-conspirators not part of this appeal, with
one count of conspiracy to commit health care fraud under 18 U.S.C. § 1349 for
their respective roles in the complex scheme to defraud Medicare. Gates was
charged with four substantive counts and Umotong with six substantive counts
of healthcare fraud under 18 U.S.C. §§ 1347 and 2. 1 Agopian, the architect of
the fraudulent scheme, pled guilty to the charges levied against her in the
Superseding Indictment. Gates and Umotong, with co-defendants Tolulope
Labeodan (Labeodan) and Vagharshak Smbatyan (Smbatyan), 2 elected to



      1   The Government dismissed one substantive count of healthcare fraud (Count 7)
against both Gates and Umotong at trial.
        2 Smbatyan, Agopian’s husband whom she persuaded to be the purported owner of

Medic, was charged with one count of making a false statement to a government agency in
violation of 18 U.S.C. § 1001. Labeodan was charged with one count of conspiracy to commit
healthcare fraud and one substantive count of healthcare fraud.
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proceed to trial, at which Agopian and other co-conspirators testified for the
Government.
       Based on trial evidence demonstrating Gates’s and Umotong’s
participation in Agopian’s scheme, 3 the jury found them guilty of conspiracy
and the substantive counts of healthcare fraud for which they were charged.
After the verdict, both Defendants-Appellants renewed previously urged Rule
29 motions for acquittal. After holding a hearing, the district court issued a
written order denying Gates’s and Umotong’s Rule 29 motions for acquittal and
Rule 33 motions for a new trial. Though the district court noted that the
evidence adduced at trial against Gates and Umotong was “thin,” the court
ultimately found that it was sufficient to sustain the jury’s verdict on the
conspiracy charge and “[did] not weigh so heavily against the verdict that a
new trial [was] in order.” 4 Defendants-Appellants were each sentenced to 72
months imprisonment. 5
       On appeal, both Gates and Umotong challenge the district court’s jury
instructions, arguing that they constructively amended the indictment in
violation of the Fifth Amendment. 6 Umotong independently challenges the
district court’s: (1) denial of his Rule 29 motion for acquittal; (2) denial of his
Rule 33 motion for a new trial; and (3) refusal to include an overt-act
requirement in its charge to the jury. 7


       3 The facts supporting Gates’s and Umotong’s involvement will be discussed where
appropriate infra.
       4 For similar reasons, the district court sustained the convictions on the substantive

charges of health care fraud and denied Defendants-Appellants motions for a new trial as to
those charges.
       5 Neither Defendant-Appellant challenges their sentence on appeal.
       6 Umotong has adopted the arguments made in Gates’s brief in support of a

constructive amendment.
       7 As Umotong acknowledges, our precedent, which provides that 18 U.S.C. § 1349 does

not contain an overt-act requirement, forecloses this issue on appeal. See United States v.
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                                        No. 13-11237
                                               II.
                                               A.
       Defendants-Appellants argue that the district court constructively
amended the indictment when it permitted trial evidence and the prosecutor’s
remarks in closing argument to prove a misrepresentation not charged in the
indictment, and refused to include their proposed curative instruction 8 in its
jury charge. This court reviews a claim of constructive amendment de novo.
United States v. Jara-Favela, 686 F.3d 289, 299 (5th Cir. 2012).
       “The Fifth Amendment guarantees that a criminal defendant will be
tried only on charges alleged in a grand jury indictment.” United States v.
Arlen, 947 F.2d 139, 144 (5th Cir. 1991). “It is a long-established principle of
our criminal justice system that, after an indictment has been returned, its
charges may not be broadened through amendment except by the grand jury
itself.” United States v. Hoover, 467 F.3d 496, 500 (5th Cir. 2006) (internal
quotation marks and citation omitted). “A constructive amendment occurs
when it permits the defendant to be convicted upon a factual basis that
effectively modifies an essential element of the offense charged or permits the
government to convict the defendant on a materially different theory or set of
facts than that with which [he or] she was charged.”                       United States v.



Njoku, 737 F.3d 55, 67–68 (5th Cir. 2013); United States v. Jones, 733 F.3d 574, 584 (5th Cir.
2013); see also United States v. Turner, 561 F. App’x 312, 316 (5th Cir. 2014). Accordingly,
we do not discuss this issue further.
        8 Defendants-Appellants do not separately challenge the district court’s refusal to

include this proposed jury instruction. Defendants-Appellants do, however, contend that the
district court erred by including an “Unanimity of Theory” instruction in its jury charge but
they failed to cite to any legal authority to support their contentions. Accordingly, they have
waived any challenge to the district court’s “Unanimity of Theory” instruction. See L & A
Contracting Co. v. S. Concrete Servs., Inc., 17 F.3d 106, 113 (5th Cir. 1994) (citation omitted);
Fed. R. App. P. 28(a)(8).


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                                 No. 13-11237
McMillan, 600 F.3d 434, 451 (5th Cir. 2010) (internal quotation marks and
citation omitted).
      Defendants-Appellants contend that, though they were charged for one
fraudulent misrepresentation—billing Medicare for office visits and diagnostic
tests that were never performed—the trial evidence focused almost exclusively
on another fraudulent misrepresentation: misrepresenting their medical
credentials.   Accordingly, they argue that the district court should have
specifically instructed the jury that a conviction for conspiracy required “proof
beyond a reasonable doubt of the specific misrepresentation charged in the
indictment relating to the performance of office visits and diagnostic tests.” We
disagree.
      While the Government elicited testimony from several witnesses that
Defendants-Appellants misrepresented their medical credentials, we agree
with the Government’s contention that such evidence was permissible because
it was probative of the co-conspirators’ fraudulent scheme. See McMillian, 600
F.3d at 451 (rejecting defendants’ argument that the admission of evidence
related to an uncharged misrepresentation, without the requested instruction,
allowed the jury to convict based on this uncharged factual basis when the
admitted evidence was probative of the charged fraud). It further explained to
the jurors how complex Level 3.0 false-front clinics operate generally, and how
the Clinics operated specifically, and it supported the Government’s argument
that the scheme could not have been accomplished but for the Defendants-
Appellants’ participation.
      More importantly, the district court employed many of the curative
measures recognized by our court to protect against a constructive amendment
of the indictment, such as: instructing the jury to only consider the crime
charged in the indictment; instructing the jury that the Defendants-Appellants
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                                 No. 13-11237
were not on trial for any offense not alleged in the indictment; including the
language from the Superseding Indictment in the jury charge; and providing
the jury with a copy of the indictment for their deliberations. See United States
v. Leahy, 82 F.3d 624, 631–32 (5th Cir. 1996); see also United States v. Holley,
23 F.3d 902, 912 (5th Cir. 1994) (“All of [the defendant’s] contentions must fail
because the district court instructed the jury that it was to consider only the
crime that was charged in the indictment.”). Because jurors are presumed to
follow the court’s instructions, see United States v. Bieganowski, 313 F.3d 264,
288 (5th Cir. 2002), and the district court properly instructed the jury, we
conclude that the jury convicted Defendants-Appellants based on the fraud
alleged in the Superseding Indictment. This conclusion is buttressed by the
fact that Defendants-Appellants’ co-defendant Labeodan was acquitted of the
conspiracy charge, despite the presentation of evidence that he misrepresented
his medical credentials. See Bieganowski, 313 F.3d at 288 (“Where, as here, a
jury returns a verdict of not guilty on some counts and as to some defendants,
the presumption that the jury followed the court’s instructions is even
stronger.” (internal quotation marks and citation omitted)).
      For these reasons, we conclude that no constructive amendment of the
indictment occurred.
                                       B.

      Umotong next challenges the district court’s denial of his motion for
acquittal. He argues that the trial evidence was insufficient to prove that he
knowingly and willfully participated in the conspiracy. We review preserved
sufficiency-of-the-evidence challenges de novo. United States v. Grant, 683
F.3d 639, 642 (5th Cir. 2012).



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                                  No. 13-11237
      When reviewing the sufficiency of the evidence, a court must determine
whether “any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” United States v. Moreno-Gonzalez, 662
F.3d 369, 372 (5th Cir. 2011) (citation omitted). Evidence must be viewed “in
the light most favorable to the verdict.” Id. (citation omitted). Moreover, this
court must “accept[] all credibility choices and reasonable inferences made by
the trier of fact which tend to support the verdict.” Id. (citation omitted).
      To prove a conspiracy to commit health care fraud under § 1349, the
government must prove beyond a reasonable doubt that: “(1) two or more
persons made an agreement to commit health care fraud; (2) that the
defendant knew the unlawful purpose of the agreement; and (3) that the
defendant joined in the agreement willfully, that is, with the intent to further
the unlawful purpose.”      Grant, 683 F.3d at 643.            “Direct evidence of a
conspiracy is unnecessary; each element may be inferred from circumstantial
evidence.” United States v. Willett, 751 F.3d 335, 339 (5th Cir. 2014) (internal
quotation marks and citation omitted). “An agreement may be inferred from
concert of action, voluntary participation may be inferred from a collection of
circumstances,    and    knowledge    may       be   inferred    from    surrounding
circumstances.” Grant, 683 F.3d at 643 (internal quotation marks and citation
omitted). “However, the government must do more than pile inference upon
inference upon which to base a conspiracy charge.”              Id. at 642 (internal
quotation marks and citation omitted).
      We conclude the trial evidence was sufficient to prove that Umotong
knowingly and willfully participated in the conspiracy to commit healthcare
fraud. First, without the active participation of Umotong and others, Agopian’s
scheme could not have succeeded. Agopian testified that to effectuate her
scheme, she instructed Umotong and other employees to pose as licensed P.A.’s
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                                    No. 13-11237
from a doctor’s office to gain entry into patients’ homes. She further instructed
employees like Umotong to collect the patients’ information and fill out forms,
which included ordering diagnostic tests that were later used to fraudulently
bill Medicare. Agopian testified that it was “common knowledge” that the tests
were never performed, and further known that in order for her to pay the
employees, the diagnostic tests needed to be ordered. Leslie Omagbemi, a co-
conspirator who pled guilty before trial, testified that he accompanied
Umotong on several patient visits and witnessed Umotong follow Agopian’s
instructions by misrepresenting himself as a doctor and ordering diagnostic
tests that would never be performed.
      Second, it was reasonable for the jury to infer Umotong’s knowing and
willful participation in the conspiracy based on his proximity to the fraudulent
conduct. See Willet, 751 F.3d at 340–41. Trial evidence revealed that Umotong
went into patients’ homes, performed basic examinations to lend the
appearance of legitimacy, ordered tests, and returned to a clinic to complete
paperwork used to fraudulently bill Medicare.             It also revealed that he
performed these acts in furtherance of the conspiracy for approximately nine
months 9 at both Clinics. Though there is no evidence that Umotong submitted
the fraudulent bills to Medicare, “[a] defendant need not have actually
submitted the fraudulent documentation to Medica[re] in order to be guilty of
health care fraud or conspiracy to commit health care fraud.” United States v.
Umawa Oke Imo, 739 F.3d 226, 235 (5th Cir. 2014).




      9  At oral argument, the parties disputed the length of time Umotong spent working
for the Clinics. We base our approximation on the testimony of Agopian and Special Agent
Timothy DeFrancesca, a health care fraud investigator for the U.S. Department of Health
and Human Services, which shows that Umotong worked for the Clinics for nine to ten
months.
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                                       No. 13-11237
       While it may be that, as the district court observed, the evidence against
Umotong is “thin,” viewing that evidence in the light most favorable to the
jury’s verdict, it is nevertheless sufficient to sustain Umotong’s conviction for
conspiracy to commit healthcare fraud. 10
                                              C.
       Finally, Umotong contends that the district court erred in refusing to
grant his motion for a new trial. 11                 Consistent with his constructive
amendment argument, Umotong avers that allowing his conviction to stand on
an uncharged factual basis constitutes a “miscarriage of justice.” However,
because we have concluded that no constructive amendment occurred, the
interests of justice do not require that a new trial be granted. See United States
v. Tarango, 396 F.3d 666, 672–73 (5th Cir. 2005). Moreover, in light of our
conclusion that the evidence is sufficient to sustain Umotong’s conviction, the
evidence does not “preponderate[] sufficiently heavily against the verdict such
that a miscarriage of justice may have occurred.” Id. at 672 (internal quotation
marks and citation omitted). Accordingly, the district court did not err in
denying Umotong’s motion for a new trial.
                                             III.
       The district court’s judgment is AFFIRMED.




       10  Because the evidence is sufficient to sustain the conviction for conspiracy to commit
healthcare fraud, it is equally sufficient to sustain the convictions on the substantive counts
of healthcare fraud. See United States v. Dean, 59 F.3d 1479, 1489 (5th Cir. 1995) (“Under
the rule established by the Supreme Court in Pinkerton v. United States, 328 U.S. 640 (1946),
‘[a] party to a conspiracy may be held responsible for a substantive offense committed by a
coconspirator in furtherance of a conspiracy, even if that party does not participate in or have
any knowledge of the substantive offense.’”)
        11 We were unable to locate Umotong’s motion for a new trial in the record. We

therefore rely on the district court’s representation that he so moved after the verdict.
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