                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            JAN 11 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-50158

              Plaintiff - Appellee,              D.C. No. 2:11-cr-00134-GW-2

 v.
                                                 MEMORANDUM*
OBIAGELI BROOKE AGBU, AKA
Obiagele B. Agbu, AKA Obiageli B.
Agbu, AKA Obiageli Brook Agbu, AKA
Brooke, AKA Ivon, AKA Obiagele,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     George H. Wu, District Judge, Presiding

                     Argued and Submitted December 9, 2015
                              Pasadena, California

Before: GOULD and BERZON, Circuit Judges and STEEH,** Senior District
Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable George Caram Steeh III, Senior District Judge for the
U.S. District Court for the Eastern District of Michigan, sitting by designation.
      Obiageli Agbu appeals her jury conviction and sentence for one count of

conspiracy to commit health care fraud under 18 U.S.C. §§ 1349 and 2 and eight

counts of health care fraud under 18 U.S.C. §§ 1347 and 2(b) arising from her

participation in a durable medical equipment scheme that billed Medicare for

undelivered or unneeded equipment. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm in part, vacate in part, and remand to the district court.

      Agbu claims that there was insufficient evidence for the jury to convict her

of health care fraud under 18 U.S.C. § 1347. We review this claim de novo, see

United States v. Bennett, 621 F.3d 1131, 1135 (9th Cir. 2010), and view the

evidence in the light most favorable to the prosecution. See Jackson v. Virginia,

443 U.S. 307, 319 (1979). Witnesses testified at trial that Agbu, or someone

matching her description, directed marketers to take beneficiaries to specific

doctors, was present while cursory medical examinations of ambulatory

beneficiaries took place in the Ibon offices, and paid the marketers and doctors

kickbacks in cash. Also, the FBI agents who interviewed Agbu testified that she

told them that she knew that paying for prescriptions was illegal and that Medicare

claims must be medically necessary. The agents also testified that Agbu falsely

told them that she did not buy prescriptions and that she herself did the marketing




                                           2
for Ibon. We conclude that there was substantial evidence presented at trial that

Agbu knowingly and willfully committed health care fraud as the owner of Ibon.

      Agbu makes several arguments for the first time on appeal regarding

perceived flaws in the jury instructions. Because Agbu did not object to the district

court’s jury instructions at trial, we review those instructions for plain error. See

Fed. R. Crim. P. 52(b). First, Agbu argues that the district court should have sua

sponte instructed the jury that Agbu was not responsible for determining the

medical necessity of Ibon’s claims, and that the district court also should have

instructed the jury on the meaning of “medical necessity.” But lack of medical

necessity is not an element of health care fraud, and the jury was properly

instructed on all of the elements of the crime. See 18 U.S.C. § 1347. Second,

Agbu argues that the district court erred when it instructed that “the Government is

not required to prove that the Defendant knew that her acts or omissions were

unlawful.” We have previously found this instruction to be in error, but harmless.

United States v. Awad, 551 F.3d 930, 939–40 (9th Cir. 2009). The same reasoning

applies here under plain error review: although the instruction was in error, Agbu’s

“substantial rights” were not affected. See United States v. Olano, 507 U.S. 725,

734 (1993). As in Awad, the evidence is that Agbu knew she was committing a

fraud; the jury was instructed to find an “intent to defraud;” and the fraudulent


                                           3
scheme was “so bold and simple” that no reasonable person could have thought it

lawful. Awad, 551 F.3d at 940–41. Finally, Agbu argues that it was plain error for

the district court not to sua sponte give a cultural defense instruction, which she

likens to a “good character” instruction. We have held that a good character

instruction is not necessary where a jury is instructed to consider all of the

evidence, including all of the testimony. United States v. Karterman, 60 F.3d 576,

579 (9th Cir. 1995).

      Agbu next contends that she received ineffective assistance of counsel

(1) because of her counsel’s failure to bring a pre-trial motion to suppress

testimony from FBI agents based on a Miranda violation and (2) because her

counsel did not obtain a psychological evaluation. Claims of ineffective assistance

of counsel are generally not reviewed on direct appeal and are more appropriately

brought in the context of habeas proceedings. United States v. Labrada-

Bustamante, 428 F.3d 1252, 1260 (9th Cir. 2005). There are exceptions where the

record is sufficiently developed or where the legal representation is so inadequate

that it obviously denies a defendant’s Sixth Amendment right. Id. While the

record is developed enough to adjudicate the first claim, we conclude that it has no

merit because there is no evidence that Agbu’s interview with FBI agents was

custodial in nature and required a Miranda warning. Yarborough v. Alvarado, 541


                                           4
U.S. 652, 661–62 (2004). As to the second claim, we conclude that neither of the

exceptions apply and that it would be best adjudicated through a habeas

proceeding, in which Agbu can make a record pertinent to her claims. Massaro v.

United States, 538 U.S. 500, 505–06 (2003).

       Finally, Agbu challenges the amount of restitution for the first time on

appeal. Agbu argues that intended loss should be based on what Medicare actually

paid for the fraudulent billing. However, this court has held that the billed amount

is prima facie evidence of intended loss, see United States v. Popov, 742 F.3d 911,

916 (9th Cir. 2014), and Agbu presented no evidence at trial that this overestimated

her intent. We also reject Agbu’s argument that the district court abused its

discretion by not apportioning the amount of restitution. The relevant statute is

clear that while the district court has the discretion to apportion restitution, it is not

required to do so. See 18 U.S.C. § 3664(h).

       However, we conclude that the district court plainly erred when it calculated

the intended loss based on the combined submission of the claims from both

Bonfee and Ibon. The government conceded at oral argument that the only

evidence it had that Agbu contributed to the fraud perpetrated by Bonfee before the

creation of Ibon was the fact that Agbu worked at Bonfee. Agbu can be held

accountable “for reasonably forseeable substantive crimes committed by a


                                             5
coconspirator in furtherance of the conspiracy.” United States v. Riley, 335 F.3d

919, 932 (9th Cir. 2003). She could not reasonably foresee acts of her

coconspirators before she joined the conspiracy. Simply drawing a salary from

Bonfee is not sufficient to prove by a preponderance of the evidence that Agbu

knowingly and willfully participated in a fraudulent scheme or conspiracy during

the period that she worked only at Bonfee. See 18 U.S.C. § 3664(e).

      The conviction is AFFIRMED and the amount of restitution is VACATED

AND REMANDED to the district court for further proceedings in accordance with

this disposition.




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