     Case: 14-11344      Document: 00513597779         Page: 1    Date Filed: 07/18/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-11344                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                   July 18, 2016
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

JOSEPH MEGWA, MD,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:12-CR-312-1


Before KING, JOLLY, and ELROD, Circuit Judges.
PER CURIAM:*
       Dr. Joseph Megwa appeals his conviction for healthcare fraud and
related crimes after being found guilty by a jury. Two of his challenges have
already been substantially resolved during the appeal of a codefendant, United
States v. Eghobor, 812 F.3d 352 (5th Cir. 2015). Based on that appeal and our
review of the record, we affirm the district court’s judgment in all respects.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-11344
                                               I.
        Dr. Megwa was employed as the medical director of PTM Healthcare
Services (“PTM”), a company that provides home health care. 1 PTM was owned
by Ferguson Ikhile.
        In order to receive Medicare reimbursements, a home health provider
must submit certain documents. One document, the OASIS form, details the
patient’s medical issues and must be signed by the company.                         Another
document, the Plan of Care, or Form 485, outlines the course of treatment and
must be approved and signed by a physician before the agency can receive
reimbursements.
        Under the ownership of Ikhile, PTM executed a home health care scheme
that defrauded Medicare. Specifically, it recruited individuals to be patients,
prepared forms that exaggerated those individuals’ medical needs, and then
had Dr. Megwa approve treatment.                    By exaggerating patients’ medical
problems, PTM was able to receive higher Medicare reimbursement amounts.
        In October 2012, a grand jury indicted Megwa, Ikhile, and Ebolose
Eghobor (the director of nursing at PTM). It charged Megwa with one count of
conspiracy to commit health care fraud in violation of 18 U.S.C. § 1349, three
counts of health care fraud in violation of 18 U.S.C. §§ 2, 1347 (which related
to three specific claims PTM submitted to Medicare), and four counts of making
false statements relating to health care matters in violation of 18 U.S.C.
§ 1035. Ikhile pled guilty and agreed to testify against the remaining two
defendants.
        On April 28, 2014, the case against Megwa and Eghobor proceeded to
trial. The government’s witnesses included Ikhile, two Medicare beneficiaries



        1   Home health care is a form of short-term health care administered in the patient’s
home.
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                                     No. 14-11344
that PTM had recruited, several law enforcement agents, and Trudy Bell, a
Medicare anti-fraud investigator.         The jury heard evidence showing that
Megwa’s role as medical director was a sham, that he did not perform any of
the duties for which he was purportedly paid, and that those payments were
instead intended to reward him for signing falsified documents. The jury also
heard testimony from purported patients of Dr. Megwa who had never met
Megwa and did not know who he was. Additionally, the government provided
evidence of numerous instances of Megwa billing Medicare for personally
conducting home visits that supposedly took place on dates when Megwa was,
in reality, out of the country.
      The jury began deliberations on the afternoon of Tuesday, May 6, 2014.
On the morning of the third day of deliberations, Monday, May 12, the jury
sent a note providing:
      1.    On several counts, the jury cannot reach a unanimous
      verdict on [sic]. How should we proceed? We have exhausted
      deliberations on these particular counts.
      (This was the second jury note indicating that the jury was having
difficulty reaching a unanimous verdict.) In response, the court decided to
deliver an Allen charge. 2 Eghobor objected, arguing that the Allen charge
would be unduly prejudicial and coercive; Megwa joined in this objection. The
court overruled the objection. Eghobor also objected to the district court’s
proposed modification of the pattern Allen charge, which the court also
overruled.
      At approximately 4:45 pm, the jury returned its verdict. It convicted Dr.
Megwa on all eight counts against him.




      2An Allen charge is a charge urging the jury to overcome their differences and reach
a unanimous verdict.
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                                  No. 14-11344
      Megwa timely filed a post-verdict motion for acquittal, which the district
court denied. Five months after trial, Eghobor filed a motion for a new trial
based on newly discovered evidence under Federal Rule of Criminal Procedure
33. The evidence at issue was a recording of a conversation among Eghobor’s
wife, Ikhile, and Ikhile’s wife, which took place about one year before trial.
Megwa filed a one-page motion to join Eghobor’s motion for a new trial. The
court denied both motions and subsequently entered final judgment against
both Megwa and Eghobor.
      Both Megwa and Eghobor timely appealed.               Eghobor’s appeal was
severed from Megwa’s and was resolved in United States v. Eghobor, 812 F.3d
352 (5th Cir. 2015). Relevant to Megwa, Eghobor also challenged the Allen
charge and the denial of a new trial under Rule 33. Eghobor rejected both
challenges and fully affirmed Eghobor’s conviction.
                                        II.
      Denial of a motion for a new trial is reviewed for an abuse of discretion.
United States v. Piazza, 647 F.3d 559, 564 (5th Cir. 2011). Alleged indictment-
related errors, such as claims of constructive amendment of the indictment,
are reviewed de novo. United States v. Jara-Favela, 686 F.3d 289, 299 (5th
Cir. 2012). We review objected-to jury instructions for abuse of discretion.
United States v. St. Junius, 739 F.3d 193, 204 (5th Cir. 2013). This Court
reviews the use of an Allen charge for abuse of discretion. United States v.
Lindell, 881 F.2d 1313, 1320 (5th Cir. 1989). When evaluating a challenge to
the sufficiency of the evidence, we will “affirm a conviction if, after viewing the
evidence and all reasonable inferences in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” United States v. Vargas-Ocampo, 747
F.3d 299, 301 (5th Cir. 2014) (en banc).


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                                  No. 14-11344
                                        III.
      We begin with the two issues largely resolved by Eghobor. First, the
Allen charge. Megwa objected to the Allen charge on exactly the same grounds
as his codefendant, Eghobor: that the charge improperly deviated from the
Fifth Circuit pattern jury instruction and that it improperly coerced a jury that
had already indicated difficulty reaching a unanimous verdict.            Eghobor
explicitly rejected each of these challenges in a published, binding opinion.
Eghobor, 812 F.3d at 358–59 (“This deviation from the pattern charge was not
an abuse of discretion. . . . Eghobor claims the judge improperly coerced the
jury when he gave an Allen charge rather than declare a mistrial after
receiving a second note that, according to Eghobor, stated that the jury was
deadlocked as to the charges against him. We disagree.”). Adhering to this
precedent, we reject Megwa’s parallel challenge.
      Next, we turn to Megwa’s motion based on the newly discovered
evidence. We note that Megwa did not file a motion for a new trial in the
district court; instead, he filed a motion to join Eghobor’s motion for a new trial.
Eghobor’s motion for a new trial was denied, and this denial was upheld on
appeal. Eghobor, 812 F.3d at 364. As a matter of logical necessity, if the
district court did not err in denying Eghobor’s motion, it could not have abused
its discretion in denying a motion to join that doomed motion. Accordingly, we
affirm the district court’s denial of Megwa’s motion.
      Megwa next contends that the district court abused its discretion by
instructing the jury that it could convict Megwa based on his deliberate
ignorance to healthcare fraud (as opposed to actual knowledge). We have often
cautioned that deliberate ignorance instructions should rarely be given.
United States v. Kuhrt, 788 F.3d 403, 417 (5th Cir. 2015) (“The proper role of
the deliberate ignorance instruction is not as a backup or supplement in a case
that hinges on a defendant’s actual knowledge.”), cert. denied, 136 S. Ct. 1376
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                                      No. 14-11344
(2016).    District courts may permissibly instruct the jury on deliberate
ignorance only
       when a defendant claims a lack of guilty knowledge and the proof
       at trial supports an inference of deliberate indifference. The
       evidence at trial must raise two inferences: (1) the defendant was
       subjectively aware of a high probability of the existence of the
       illegal conduct; and (2) the defendant purposely contrived to avoid
       learning of the illegal conduct.
United States v. Delgado, 668 F.3d 219, 227 (5th Cir. 2012) (citations omitted).
The government contends that it satisfied this standard.
       We need not decide this issue, however, because—even assuming that
the district court erred by providing the deliberate ignorance instruction—any
error was harmless in light of the substantial evidence that Megwa actually
knew about the illegal conduct. See St. Junius, 739 F.3d at 204–05 (“Even if
the district court errs in its decision to give the deliberate ignorance
instruction, any such error is harmless where substantial evidence of actual
knowledge is presented at trial.”) (citation omitted); see also Kuhrt, 788 F.3d
at 417–18 (holding that any error was harmless); United States v. Mendoza-
Medina, 346 F.3d 121, 135 (5th Cir. 2003) (holding that error was harmless).
Accordingly, we hold that the district court did not commit reversible error in
charging the jury on deliberate ignorance. 3
       Megwa also argues that the government constructively amended the
indictment.      The government, however, did nothing of the sort.                      The



       3  Megwa also argues that a deliberate ignorance charge is inappropriate in the
complex area of healthcare law. Megwa points out that the Supreme Court had held
deliberate ignorance charges to be inappropriate in cases involving willful violations of tax
statutes, “due to the complexity of the tax laws.” Cheek v. United States, 498 U.S. 192, 200
(1991). Megwa argues that healthcare laws are equally complex and, accordingly, that
deliberate ignorance instructions are also inappropriate when the charged offenses are
willful violations of healthcare laws. The Fifth Circuit, however, has previously approved of
the use of deliberate ignorance instructions in healthcare fraud cases. Delgado, 668 F.3d at
228. Accordingly, Megwa’s argument is foreclosed.
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                                   No. 14-11344
government charged Megwa with four counts of fraud based on four instances
when Megwa fraudulently billed Medicare for home visits that he claimed to
have personally conducted; in reality, Megwa was out of the country on each of
those four occasions. Megwa admitted that he was out of the country on those
four dates, but argued that he had not fraudulently billed for those home visits.
According to Megwa, the bills resulted from nurses accidentally writing down
Megwa’s billing code instead of their own. Specifically, when questioning a
government witness, Megwa asked, “For example, if someone had thousands
of patients over 35 years and made four billing errors, that could be just an
accident or inadvertent, couldn’t it?” To rebut this argument, the government
introduced evidence showing that—though it was only charging Megwa with
four counts of this sort of fraud—he had committed similar billing fraud dozens
of times before. The government argued that this pattern of billing fraud
showed that the four charged instances were not accidental or inadvertent.
      Megwa argues that admitting this evidence of uncharged misconduct
amounted to a constructive amendment of his indictment. This argument is
without merit. Uncharged misconduct may be inadmissible under Federal
Rule of Evidence 404 (though this evidence would have been admissible to
prove lack of mistake). But uncharged misconduct is not an amendment of the
indictment so long as it is used to show that the defendant committed the
charged offense. United States v. Guerrero, 768 F.3d 351, 365 (5th Cir. 2014);
see also United States v. Rosario-Diaz, 202 F.3d 54, 71 (1st Cir. 2000)
(“[E]vidence . . . ultimately offered to prove guilt of the charged offense[] effects
no constructive amendment of the indictment”). Accordingly, we hold that the
government did not constructively amend the indictment.
      Finally, Megwa argues that the evidence presented to the jury was
insufficient to support a conviction. We disagree. Below, we briefly review the
evidence relevant to each count:
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                                 No. 14-11344
Count 1—conspiracy to commit healthcare fraud.
      To prove a conspiracy to commit health-care fraud in violation of
      18 U.S.C. § 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.
United States v. Willett, 751 F.3d 335, 339 (5th Cir. 2014).
      Megwa admitted to the jury that his codefendants conspired to commit
healthcare fraud, but argued that he was an unwitting participant. Further,
Megwa admits that one conspirator, Ikhile, testified of “Megwa’s knowledge
and intent to join the conspiracy.” Megwa argues that the jury should have
discounted this evidence, but this argument goes to weight and not sufficiency.
Further, the government presented evidence that Megwa repeatedly signed
documents saying that he had given telephonic instructions to PTM about
patient care, when he was well aware that he had not spoken to PTM at all
about those patients. Thus, ample evidence supports the jury’s finding that
Megwa willfully joined the conspiracy, with the intent to further its unlawful
purpose.
Counts 2–4—healthcare fraud
      To prove health-care fraud in violation of 18 U.S.C. § 1347, the
      government must prove beyond a reasonable doubt that the
      defendant knowingly and willfully executed, or attempted to
      execute, a scheme or artifice—(1) to defraud any health care
      benefit program; or (2) to obtain, by means of false or fraudulent
      pretenses, representations, or promises, any of the money or
      property owned by, or under the custody or control of, any health
      care benefit program, in connection with the delivery of or payment
      for health care benefits, items, or services.
Willett, 751 F.3d at 339 (citations, quotation marks, and alterations omitted).



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                                  No. 14-11344
      Ikhile testified that Megwa certified three patients who were not
homebound as homebound and thereby defrauded Medicare. The government
also introduced the relevant paperwork (Plans of Care), which bore Megwa’s
signature.
      At trial, Megwa argued that each patient was genuinely homebound and
thus certifying them as such was not fraudulent. But two of the patients
testified at trial that they did not have the limitations outlined in the Plans of
Care and that they had never met Megwa. Further, in all three instances,
Megwa signed paperwork indicating that he had instructed PTM on the care
of each patient via telephone, when he knew this to be false. In combination
with the other evidence of Megwa’s involvement in the conspiracy to defraud
Medicare, this evidence sufficed for a reasonable jury to find that Megwa had
engaged in healthcare fraud.
Counts 5–8—False statements relating to healthcare matters
      To find Megwa guilty of counts five through eight, the jury had to find
that Megwa “in any matter involving a health care benefit program, knowingly
and willfully . . . ma[de] any materially false, fictitious, or fraudulent
statements or representations, or ma[de] or use[d] any materially false writing
or document knowing the same to contain any materially false, fictitious, or
fraudulent statement or entry.” 18 U.S.C. § 1035.
      The government introduced evidence that Megwa submitted Medicare
claims that stated he had conducted home visits on days when Megwa was out
of the country. Megwa freely admitted that these claims were false, but argued
to the jury that he did not knowingly make a false statement—he argued that
those forms either accidentally listed the wrong date or accidentally listed
Megwa as the provider instead of a nurse who had actually provided the care.
To show that the false statements were made willfully (that is, that they were
not the result of a mistake), the government introduced evidence that showed
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                                    No. 14-11344
many other instances of Megwa billing for care when he was out of the country;
the government argued, in effect, that no one would have made that many
mistakes without meaning to.         This evidence supported the jury’s guilty
verdict.
                                        IV.
      We reject each of Megwa’s arguments on appeal.              Accordingly, the
judgment of the district court is
                                                                      AFFIRMED.




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