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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 17-11121                   United States Court of Appeals
                                                                              Fifth Circuit

                                                                            FILED
                                                                    November 28, 2018
UNITED STATES OF AMERICA,
                                                                       Lyle W. Cayce
              Plaintiff–Appellee,                                           Clerk


v.

NOBLE U. EZUKANMA,

              Defendant–Appellant.




                  Appeals from the United States District Court
                       for the Northern District of Texas
                            USDC No. 3:15-CR-254-1


Before DENNIS, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Noble Ezukanma was indicted on one count of conspiracy to commit
health care fraud and six counts of health care fraud for his role in a scheme
to bill Medicare for home visits by a physician that failed to comply with
Medicare regulations, were medically unnecessary, and overstated services
rendered. A jury convicted Ezukanma on all seven counts, and the district
court sentenced him to 200 months of imprisonment. Ezukanma appeals,


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-11121
contending that the evidence was insufficient to support his convictions, the
district court erred in failing to include Medicare regulations in the jury
instructions, and the district court incorrectly calculated the loss amount. We
affirm.
                                       I
      A third-party fraud investigator, Health Integrity, notified Medicare
that US Physicians Home Visits (USPHV) “may have submitted claims for
Medicare services not rendered.”      After further investigation, Dr. Noble
Ezukanma was indicted along with Myrna Parcon and several others. All but
Ezukanma pleaded guilty, and a superseding indictment was filed against him.
The indictment alleged conspiracy to commit health care fraud (from January
2009 to June 2013) in violation of 18 U.S.C. §§ 1349 and 1347 (Count One), and
six counts of health care fraud in violation of 18 U.S.C. §§ 1347 and 2 (Counts
Two through Seven) for submissions of individual, fraudulent Medicare claims.
      At the close of the Government’s case-in-chief, Ezukanma moved for
judgment of acquittal alleging insufficient evidence, and that motion was
denied. The jury found Ezukanma guilty on all seven counts. The district
court denied Ezukanma’s renewed motion for judgment of acquittal.
      At sentencing, the district court concluded that there was “rampant
fraud in Mr. Ezukanma’s operation” that was “sufficiently pervasive that the
government’s failure to interview every single witness and look at every single
piece of paper is excused,” and that Ezukanma presented “nothing to indicate
he’s entitled to a credit.” The district court adopted the presentence report’s
(PSR) calculation that the actual loss to Medicare was $34,003,151.24,
consisting of $27,745,523.32 for fraudulent home health certifications under
Ezukanma’s provider number and $6,257,627.92 in actual losses for physician
home visits billed under Ezukanma’s provider number and that of Ezukanma’s
organization, UNEC Group, Inc. (UNEC). The district court found that there
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                                          No. 17-11121
was an intended loss of $10,788,900 with regard to fraudulent billings. This
resulted in a twenty-two level enhancement to the base offense level of six, as
the loss was greater than $25,000,000 but less than $65,000,000. The offense
level was increased by two levels because the offense involved ten or more
victims, four levels because a federal health care offense with a loss of more
than $20,000,000, and two levels for abusing a position of public trust. The
district court granted a downward variance as to the criminal history category,
resulting in a Guidelines range of 188 to 235 months of imprisonment. The
district court sentenced Ezukanma to a term of 200 months of imprisonment
and ordered him to pay restitution “in the amount of $34,003,151.24 jointly
and severally with . . . Parcon” and others. Ezukanma appeals.
                                                 II
         Ezukanma alleges that there was insufficient evidence to convict him of
conspiracy to commit health care fraud. To establish such a conspiracy, 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.” 1 “The agreement may be silent and informal,” 2 and
“may be inferred from concert of action.” 3 “The Government may establish any
element through circumstantial evidence,” but “[p]roof of an agreement to
enter a conspiracy is not to be lightly inferred.” 4 Proving that “the defendant




         1   United States v. Grant, 683 F.3d 639, 643 (5th Cir. 2012) (citing 18 U.S.C. §§ 1347,
1349).
         United States v. Barson, 845 F.3d 159, 163 (5th Cir. 2016).
         2

         United States v. Stephens, 571 F.3d 401, 404 (5th Cir. 2009).
         3
       4 United States v. Ganji, 880 F.3d 760, 767 (5th Cir. 2018) (alteration in original)

(quoting United States v. Johnson, 439 F.2d 885, 888 (5th Cir. 1971)).
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                                      No. 17-11121
knew something criminal was afoot” is insufficient evidence of conspiracy, 5 as
is piling “inference upon inference.” 6 Also, “‘[m]ere similarity of conduct among
various persons and the fact that they have associated with or are related to
each other’ is insufficient to prove an agreement.” 7
       When a defendant moves for acquittal in the district court, this court
reviews challenges to the sufficiency of the evidence de novo. 8 “Appellate
review is highly deferential to the jury’s verdict,” 9 so the “jury’s verdict will be
affirmed unless no rational jury, viewing the evidence in the light most
favorable to the prosecution, could have found the essential elements of the
offense beyond a reasonable doubt.” 10 The jury may make factually based
inferences, 11 but “a verdict may not rest on mere suspicion, speculation, or
conjecture, or on an overly attenuated piling of inference on inference.” 12 In
this case, the Government presented sufficient evidence to sustain the
conspiracy conviction.
                                             A
       Ezukanma asserts that the evidence proves that Medicare was
defrauded by USPHV, but not that he agreed to join a conspiracy with intent
to defraud Medicare. Although no witness testified that Ezukanma knew he
was in an agreement to commit Medicare fraud or knew his actions were




       5 Id. at 776.
       6 United States v. Umawa Oke Imo, 739 F.3d 226, 235 (5th Cir. 2014).
       7 Ganji, 880 F.3d at 767-68 (quoting United States v. White, 569 F.2d 263, 268 (5th

Cir. 1978)).
       8 United States v. Danhach, 815 F.3d 228, 235 (5th Cir. 2016).
       9 Ganji, 880 F.3d at 767.
       10 United States v. Bowen, 818 F.3d 179, 186 (5th Cir. 2016) (quoting United States v.

Roetcisoender, 792 F.3d 547, 550 (5th Cir. 2015)).
       11 Ganji, 880 F.3d at 767.
       12 United States v. Pettigrew, 77 F.3d 1500, 1521 (5th Cir. 1996).

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                                   No. 17-11121
illegal, the Government presented substantial circumstantial evidence of
Ezukanma’s crimes.
      Prior to his conviction, Ezukanma focused on pulmonary medicine and
saw patients in clinical and hospital settings for eighteen years. At the time
of his conviction, he had been operating Nobility Pulmonary and made rounds
at five hospitals and a nursing home. During the latter ten years of his
practice, Ezukanma also formed UNEC and provided home health care
services to Medicare beneficiaries through that entity.         Additionally, for
several years, Ezukanma served as the medical director of another home
health care organization, Healthcare Liaison Professionals, Inc. (HLP), doing
business as USPHV, soon after its formation in December 2008.
      Evidence at trial reflected that Medicare providers must submit an
application to a Medicare Administrative Contractor and once approved, a
provider is assigned a National Provider Identifier (NPI) number. Medicare
billing claims must include the provider’s identity and NPI number, a numeric
code identifying the services rendered (“Current Procedural Terminology” or
“CPT” code), and the amount requested for reimbursement. Patient files are
not attached to these claims, but providers must maintain patient files and
make them available to Medicare contractors upon request.
      In relevant part, Medicare Part A covers inpatient, hospital and home
health care services, and Part B covers outpatient services. Part B coverage
includes home visits that would ordinarily take place in a physician’s office,
and patient records must explain why the visit took place at home, rather than
the physician’s office.     For home health services under Part A, a physician
must submit a “Form 485” certifying that the patient is confined to the home
and has a specific need. Every sixty days, the physician must recertify the
patient. The CPT codes for billing a home visit depend on the length and
complication of the visit, and Medicare pays more for “prolonged” visits.
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                                      No. 17-11121
Specific codes correlate to specific durations of the visit. There are differing
codes, for example, for forty-minute and sixty-minute visits, and an additional
code, in conjunction with the underlying CPT code, is used if there are
additional services lasting from thirty to seventy-four minutes beyond the
duration of the CPT code time frame.
       Donna Large, an investigator at Health Integrity, testified that
Ezukanma was the owner and medical director of USPHV, and stated that
none of the claims data she reviewed justified a physician home visit. Agent
Michael Stapleton, a Medicare fraud investigator, explained USPHV’s
unconventional method of growing its client base.                Home health agencies
typically receive referrals from the patient’s treating physician, 13 but USPHV
patients were generally referred by other home health agencies.
       Agent Stapleton also addressed the scope of the alleged fraud.
Ezukanma was the listed provider for 4,200 unique USPHV Medicare
beneficiaries, 97.7% of whom received home health services. Between January
2009 and July 2013, Medicare paid $27,745,523.32 for Part A home health
services in which Ezukanma was the attending physician, about $4 million of
which was paid to Parcon’s other home health agencies. Over a similar period,
UNEC and HLP billed $10,788,900 and Medicare paid $6,257,621.92 for Part
B home medical visits, certifications of home health, and the oversight of care
plans all allegedly performed by Ezukanma. Almost all home visits for new
patients, 99.7%, were billed at the highest CPT codes, usually reserved for “an
extremely complex examination that typically takes 75 minutes.” Ezukanma
was the listed as the provider for 25,337 home visits, and approximately 98%
were billed under CPT codes for prolonged services reserved for complex



       13See Ganji, 880 F.3d at 764 (“Usually, although not a legal requirement, a patient’s
primary care physician . . . refers her for home health services.”).
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                                 No. 17-11121
examinations. Records indicate that Medicare was often billed for more than
twenty-four hours of work in a day under Ezukanma’s NPI number, including
a 211 hour day in October 2012. On some days, Ezukanma billed significantly
more hours than his visitation schedule indicated, such as one day when
Ezukanma billed Medicare 11.3 hours for five hours of home visits.           The
government also presented evidence that over a five-day period, USPHV billed
Medicare for 426 unique medical services under Ezukanma’s billing number
while he was in Germany.
      The Government also presented evidence that home visits were
medically unnecessary. Richard Schutt, a physician’s assistant, and Gabriella
Udabor, a nurse practitioner, both testified that they performed in-home visits
for USPHV that were often not medically necessary. Dr. Ransome Etindi
testified that some of the patients he visited at their homes did not necessarily
meet the criteria for such visits. He also admitted that he would sign Form
485 certifications without reviewing medical records or determining if the
patients were actually homebound. Denson Burkhead, a former FBI agent who
worked at Health Integrity, interviewed approximately a dozen patients, and
testified that some “had no need for home visits and that they did not receive
any positive benefit from the home visits.”
      The Government presented evidence that Ezukanma was a co-signer on
HLP and UNEC bank accounts.           The USPHV “Start-Up Organizational
Agreement” stated that the company would “[u]tiliz[e] [Ezukanma’s] provider
number,” and that Ezukanma would be paid $50 per patient home visit, as well
as a share of company’s profits.      Ezukanma did not sign the agreement.
However, from January 2009 through November 2011, USPHV billed Medicare
under Ezukanma’s and UNEC’s provider numbers. In March 2010, when
USPHV applied for its own Medicare provider number, Ezukanma signed the
application and was listed as “Owner/Director.”
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                                  No. 17-11121
       Burkhead testified that in mid-2011, Ezukanma admitted to him that
he knew UNEC and USPHV were submitting claims under his NPI number
for visits performed by others.    In this interview, Ezukanma also admitted
that his home visits were usually thirty to forty-five minutes, which would not
qualify as “prolonged” visits.     Ezukanma kept extensive UNEC billing
paperwork at his house. From March 2009 to May 2013, USPHV and HLP
paid Ezukanma $354,452.88. USPHV also paid Ezukanma at least $5,000
cash, made his car payments, and wired funds to Nigeria, Ezukanma’s place of
birth. Cash, in the amount of $344,000, was found at Ezukanma’s house.
      Loretta Bourland, Ezukanma’s assistant at his Nobility Pulmonary
practice, testified that USPHV would send twenty to thirty faxes a day with
paperwork for Ezukanma to sign.            Ezukanma would often sign these
documents without reading them and fax them back. Evidence presented at
trial indicates these documents included Form 485 certifications. Bourland
also stated that “[t]here’s no way” Ezukanma made all the home visits because
he was usually at his primary pulmonary practice.
      The Government also presented a large number of blank Form 485
certifications found in Parcon’s office, pre-signed with Ezukanma’s signature.
There is evidence of discrepancies between signatures purporting to be those
of Ezukanma on some of these forms.           Glenda Lydia testified that she
witnessed Ezukanma give Parcon his Medicare provider number and other
personal information so that USPHV could start billing Medicare prior to
receiving its own provider number. She also testified that Ezukanma was
present at USPHV lunch meetings in which Parcon told staff to “use the
highest extent of the [billing] code for a new patient visit.” Ezukanma’s NPI
number was pre-populated on bills from Parcon’s office.




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                                     No. 17-11121
      Ezukanma does not allege this evidence was inadmissible. Instead, he
contends it is insufficient to prove intent.           We disagree.       The evidence
presented by the government was sufficient for the jury to infer intent.
                                            B
      Ezukanma asserts that there is insufficient evidence that he knew of the
overbilling. Ezukanma told investigators he did not know how billing for home
visits worked, and it appears that Parcon and other employees were
responsible for billing Medicare.          However, defendants “need not have
personally submitted the necessary forms requesting reimbursement from
Medicare to be guilty of health care fraud or conspiracy to commit health care
fraud.” 14 The jury could have credited the unsigned start-up document, the
testimony that Ezukanma attended meetings in which employees were
instructed to overbill, the UNEC remittance notices at Ezukanma’s home,
Ezukanma’s 18 years of experience, the testimony that he admitted knowledge
of UNEC and USPHV submitting claims under his NPI for visits performed by
others, and that he signed certifications without reading them, to infer that
even though billing was not Ezukanma’s responsibility, he knowingly and
willingly agreed to defraud Medicare.
                                            C
      Ezukanma challenges the sufficiency of the evidence supporting the
finding that he fraudulently certified Medicare beneficiaries for home health
services. He argues that he was not required to be present for the home health
care visits and that a face-to-face encounter was not required for his NPI
number to be used for visits performed by others.




      14United States v. Barson, 845 F.3d 159, 164 (5th Cir. 2016); United States v. Umawa
Oke Imo, 739 F.3d 226, 235 (5th Cir. 2014).
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                                         No. 17-11121
      For Part A claims, Ezukanma could bill for home health certifications
performed by others. Under 42 C.F.R. § 424.22(a)(1)(v), to certify someone for
home health services, a face-to-face encounter may be conducted by the
certifying physician or enumerated others, including a nurse practitioner “in
collaboration with” the certifying physician or a physician assistant “under the
supervision of the certifying physician.” 15 This regulation came into effect in
2011—after the conspiracy began—but despite conflicting testimony, there
was also likely no requirement from 2005 to 2011 that the physician be present
for home health certifications performed by others. On the other hand, for Part
B claims for home visits, Ezukanma likely could only bill for visits he
personally made, according to testimony that under the Medicare Claims
Processing Manual, “a home visit cannot be billed by a physician unless the
physician was actually present in the beneficiary’s home.” The evidence is
sufficient to show fraud regardless of Ezukanma’s presence in the homes of
beneficiaries.
      At trial, witnesses testified that patient encounters must be face-to-face,
and the indictment stated that home health care may only be ordered by a
physician who had “face-to-face contact treating the beneficiary.” But even
assuming that Ezukanma need not meet a Medicare beneficiary to certify her
as homebound, the jury could have relied on other evidence to find that
Ezukanma fraudulently certified his patients. Schutt testified that Ezukanma
was his supervising physician, but that Schutt did not meet Ezukanma for at
least six weeks after Schutt began making home visits for USPHV, never
accompanied Schutt on visits, and did not ask about any notes.                       Udabor
testified that Ezukanma was her supervising physician but that they only
spoke about patient care “maybe one or two times” in her six-month tenure,


      15   42 C.F.R. § 424.22(a)(1)(v); see also Ganji, 880 F.3d at 771.
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                                    No. 17-11121
and that Ezukanma never accompanied her on visits. Burkhead testified that
Ezukanma told him he would supervise other practitioners. Based on Schutt’s
and Ubador’s testimony, a jury could conclude that Ezukanma failed to comply
with certification regulations because he did not supervise or collaborate with
those certifying patients under his NPI number. 16
      Even if Ezukanma did not know that his failure to supervise was illegal,
there is other evidence of his intent to certify patients fraudulently, such as
the blank Form 485 certifications with his signature, and the testimony that
he likely signed these forms without reading them. Ezukanma claims there
was no proof the signatures were his and that they could be forged. Perhaps,
but a rational jury could also infer that Ezukanma signed these forms to
defraud Medicare.
      Relatedly, Ezukanma highlights a December 2012 cease-and-desist
letter to Parcon stating “[i]t has come to my attention that my [NPI Number
is] being used to bill for medical services rendered by other physicians,” and to
cease and desist immediately.        In United States v. Umawa Oke Imo, the
defendant sent a similar letter but the guilty verdict was affirmed because of
the other evidence of fraud. 17 Likewise, there is substantial evidence that
Ezukanma knew his NPI number was used by others well before December
2012, and Ezukanma had spoken with fraud investigators seventeen months
prior. A rational jury could place little weight on this letter. Therefore, the
evidence was sufficient for the jury to convict Ezukanma for fraudulently
certifying Medicare beneficiaries for home health services.




      16   42 C.F.R. § 424.22.
      17   739 F.3d at 236-37.
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                                   No. 17-11121
                                        D
      Finally, Ezukanma likens his case to United States v. Ganji, in which
this court held that there was insufficient evidence to prove a physician agreed
to defraud Medicare. 18 There are factual similarities between Dr. Ganji and
Dr. Ezukanma’s cases: both were hired by home health agencies as medical
directors, the agencies committed Medicare fraud, and both physicians allege
there was insufficient evidence to prove their role in the conspiracies beyond a
reasonable doubt. 19 Also, both cases had evidence of blank, signed certification
forms. 20 But unlike Ezukanma, who did not testify and argued the signatures
could be forgeries, Ganji testified that these blank forms were preceded by
medical records she reviewed before signing the forms. 21 In Ganji, there “was
no evidence that Dr. Ganji” would refer patients who were not homebound to
the home health agency, 22 and the prosecution proved only that: (1) another
physician defrauded Medicare, (2) Ganji was compensated, and (3) Ganji
increased patient referrals to the fraudulent home health agency. 23 In this
case, the Government presented similar evidence—(1) Dr. Etindi’s admission
of fraud, (2) evidence of $350,000 in compensation, and (3) thousands of
referrals by Ezukanma to home health agencies (many multiples more than
Ganji, none of whom were already primary care patients of Dr. Ezukanma) 24—
but also much more, including evidence that Ezukanma would refer patients
who were not homebound to home health agencies.




      18 Ganji, 880 F.3d at 773.
      19 Id. at 764-67.
      20 Id. at 772.
      21 Id.
      22 Id. at 771.
      23 Id.
      24 Id. at 772-73.

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                                    No. 17-11121
      On appeal of the sufficiency of the evidence, this court has affirmed a
conviction for conspiracy to commit health care fraud when the defendant
knew billing codes were being altered, he co-signed the bank account and was
held out as an owner of the fraudulent organization, he signed the Medicare
provider application, he was informed of the likely fraud, and he was aware of
the high profits margins received on upcoded items. 25 There was also sufficient
evidence to convict a physician who knew her NPI number was being used to
bill for services she was not licensed to provide, received compensation, and
signed Medicare application documents. 26 In United States v. Barson, despite
a lack of experience with the Medicare billing process, we affirmed a conspiracy
conviction. The evidence showed that the defendant signed blank documents,
allowed the clinic to bill others under his NPI number, opened a bank account
that received Medicare reimbursements, and was compensated. 27 Barson also
admitted to an FBI investigator that several suspicious circumstances had
come to his attention, but he did not report his concerns to anyone. 28
      The copious evidence against Ezukanma—from his awareness others
were billing under his NPI number to his presence at meetings discussing
overbilling to his approval of up to 211 hours of patient visits per day—when
viewed in the light most favorable to the prosecution, demonstrates that a
rational jury could infer that the Government proved the essential elements of
conspiracy to commit health care fraud beyond a reasonable doubt.
                                          III
      Ezukanma argues that there was insufficient evidence to convict him of
health care fraud.     To convict for health care fraud, the Government must



      25 United States v. Willett, 751 F.3d 335, 340-43 (5th Cir. 2014).
      26 United States v. Umawa Oke Imo, 739 F.3d 226, 236-37 (5th Cir. 2014).
      27 United States v. Barson, 845 F.3d 159, 164-65 (5th Cir. 2016).
      28 Id. at 163-64.

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                                     No. 17-11121
prove beyond a reasonable doubt that Ezukanma (1) “knowingly and willfully
execute[d], or attempt[ed] to execute, a scheme” to either “defraud any health
care benefit program” or “obtain, by means of false of fraudulent pretenses,
representations, or promises, any of the money or property owned by . . . any
health care benefit program, in connection with the delivery of or payment for
health care benefits, items, or services;” 29 (2) acted with specific intent to
defraud Medicare, (3) made material false or fraudulent representations; and
that (4) the operation of the health care benefit program affected interstate
commerce. Because Ezukanma moved for acquittal in the district court, we
again review this challenge to the sufficiency of the evidence de novo. 30
       Ezukanma again contends that the there was insufficient evidence to
prove he knowingly executed a scheme with the intent to defraud Medicare
and that the evidence does not prove he knew these patients were fraudulently
certified as homebound. In support, he again cites Ganji, in which this court
overturned Dr. Ganji’s fraud conviction because there was insufficient proof
that “the accused doctor executed a fraudulent scheme with knowledge that
the patient was not homebound.” 31 While evidence of Dr. Ganji’s “lax practices”
and “haphazard” business operation permitted an inference that the patient
was not homebound, the jury could not “stretch that into a second inference
that Dr. Ganji knew [the patient] was not homebound.” 32
      In this case, the Government presented evidence that each patient was
certified as homebound by a physician’s assistant or nurse practitioner,
Ezukanma was listed as the performing physician on the Medicare claim even
though he was not present, Medicare paid for the visit, the patient did not



      29 18 U.S.C. § 1347.
      30 United States v. Danhach, 815 F.3d 228, 235 (5th Cir. 2016).
      31 United States v. Ganji, 880 F.3d 760, 777 (5th Cir. 2018).
      32 Id. at 777-78.

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                                       No. 17-11121
qualify for home health services, and USPHV billed for “prolonged” visits even
though most, if not all, of the patients were seen in less time. Using Count
Two as an example, in April 2012, Schutt visited Medicare beneficiary Geneiva
Sewell at her home for less than thirty minutes. There was no evidence Sewell
was homebound, and the patient voiced no medical concerns, yet Schutt
authorized home health services. Medicare was billed for a ninety-minute visit
with Ezukanma listed as the provider. The claim was paid into a USPHV
account that Ezukanma could access. Based on the patient files, the other five
claims that form the basis of Counts Three through Seven appear similarly
medically unnecessary.
       Although there is no direct evidence that Ezukanma knew the individual
patients were being fraudulently certified as homebound, and Ezukanma
repeats that he was not part of Parcon’s fraudulent billing and certification
scheme, a “defendant need not have actually submitted the fraudulent
documentation . . . in order to be guilty of health care fraud.” 33 A defendant is
punishable as a principal if he aids, abets, or induces the commission of the
fraud. 34 In Imo, the health care fraud convictions against the defendant were
affirmed based on the evidence of conspiracy. 35 In this case, the evidence was
sufficient for a rational jury to convict Ezukanma of conspiracy, and a rational
jury could also find that the Government proved beyond a reasonable doubt
that Ezukanma knew USPHV was fraudulently certifying these patients as
homebound—under his NPI number and for prolonged visits—in order to
defraud Medicare. Accordingly, we affirm Ezukanma’s convictions for health
care fraud.


       33  United States v. Willett, 751 F.3d 335, 340 (5th Cir. 2014) (quoting United States v.
Umawa Oke Imo, 739 F.3d 226, 235 (5th Cir. 2014)).
        34 18 U.S.C. § 2.
        35 Imo, 739 F.3d at 237; see also Willett, 751 F.3d at 340-43 (analyzing the sufficiency

of the evidence as to conspiracy and substantive health care fraud together).
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                                        No. 17-11121
                                              IV
       Alternatively, Ezukanma asks that this court reverse and remand,
alleging that the district court plainly erred by not including relevant Medicare
regulations in the jury instructions. Ezukanma admits that neither party
requested a jury instruction on Medicare regulations.                      Accordingly, this
unpreserved challenge to the jury instructions is reviewed for plain error. 36 To
establish plain error, the defendant must show that “(1) there was error; (2) the
error was clear and obvious, not subject to reasonable dispute; (3) the error
affected his substantial rights; and (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” 37 In reviewing jury
instructions, this Court considers “whether the instruction, taken as a whole,
is a correct statement of the law and whether it clearly instructs jurors as to
the principles of law applicable to the factual issues confronting them.” 38 Plain
error only occurs if “the instruction, considered as a whole, was so clearly
erroneous as to result in the likelihood of a grave miscarriage of justice.” 39
       The jury instructions included the essential elements of each crime, but
made no mention of Medicare regulations. Ezukanma does not challenge the
instructions given; he challenges the omission of instructions about Medicare
regulations, claiming that they were needed to explain the law properly.
Medicare requirements were relevant to whether Ezukanma agreed to defraud
Medicare, 40 and he argues that the testimony at trial about Medicare was



       36 United States v. Nagin, 810 F.3d 348, 350 (5th Cir. 2016).
       37 Id. (citing Puckett v. United States, 556 U.S. 129, 135 (2009)); see also Rosales-
Mireles v. United States, 138 S. Ct. 1897, 1904-07 (2018).
       38 United States v. Ebron, 683 F.3d 105, 151-52 (5th Cir. 2012).
       39 United States v. Davis, 19 F.3d 166, 169 (5th Cir. 1994).
       40 See United States v. Saks, 964 F.2d 1514, 1523 (5th Cir. 1992) (explaining that it

was not plain error to omit a cautionary instruction about a civil regulation discussed at trial,
because “[t]he government would be hard pressed to prove that defendants defrauded federal
regulators without mention of the regulations these officials are responsible for enforcing”).
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                                       No. 17-11121
“confusing, inconsistent and in apparent conflict with the law.” Although the
testimony at trial likely misstated that Medicare required Ezukanma to have
met all his patients face-to-face, 41 Ezukanma rebutted this testimony during
cross-examination and in his closing argument. Regardless, Ezukanma likely
violated Medicare regulations by inadequately supervising those who
performed in-home visits. 42 Donna Large referenced the Medicare Claims
Processing Manual without explaining it was not the law. Medicare manuals
do not have the force of law, 43 but they do assist the jury in understanding how
claims are processed. Ezukanma did not challenge the manual’s admissibility.
       Ezukanma argues that based on these misleading statements, and in the
absence of a jury instruction on Medicare regulations, the jury could not
determine if the Government proved its fraud theory beyond a reasonable
doubt.      But even assuming the testimony was flawed, there is sufficient
evidence of guilt. Ezukanma has not shown plain error simply because the
judge failed to sua sponte include Medicare regulations in the jury instructions.
He certainly has not shown that the omission was a clear and obvious error,
affected his substantial rights, and seriously affected the fairness, integrity, or
public reputation of the judicial proceedings. 44
                                              V
       Even if his conviction is affirmed, Ezukanma asks this court to remand
for resentencing, primarily because the district court allegedly erred by
shifting the burden of proof for the loss calculation upon a finding that the



       41 Cf. United States v. Ganji, 880 F.3d 760, 764 (5th Cir. 2018) (“Regulations allow for
medical professionals who are not physicians to complete the face-to-face encounter.”); 42
C.F.R. § 424.22(a)(1)(v).
       42 42 C.F.R. § 424.22(a)(1)(v) (stating that a face-to-face encounter must be performed

by the certifying physician or other qualified non-physicians working “in collaboration with”
or “under the supervision of” the certifying physician).
       43 See United States ex rel. Colquitt v. Abbott Labs., 858 F.3d 365, 379 (5th Cir. 2017).
       44 See United States v. Nagin, 810 F.3d 348, 350 (5th Cir. 2016).

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                                      No. 17-11121
fraud was pervasive.          Generally, the Government has the “burden of
demonstrating the amount of the loss sustained by a victim as a result of the
offense.” 45 There must be “some factual basis for the conclusion that those
losses were the result of fraud.” 46 But “where the government has shown that
the fraud was so extensive and pervasive that separating legitimate benefits
from fraudulent ones is not reasonably practicable, the burden shifts to the
defendant to make a showing that particular amounts are legitimate,”
otherwise all claims are included in the loss calculation. 47
       The issue on appeal is whether the district court properly concluded that
the loss calculation was reasonable. 48           Generally, this court reviews the
application and interpretation of the Sentencing Guidelines de novo, and
reviews factual findings for clear error. 49 Estimating loss is a “factual finding
reviewed for clear error,” while “the court’s method of calculating those losses
is an application of the guidelines subject to de novo review.” 50 “[T]his court
need only determine whether the district court made ‘a reasonable estimate of
the loss.’” 51 As to the finding that fraud was pervasive, this court has not
expressly opined as to the appropriate standard of review, however in this case
the result is the same under either a de novo or clear error standard.




       45 18 U.S.C. § 3664(e); see also United States v. Sheinbaum, 136 F.3d 443, 449 (5th
Cir. 1998).
       46 United States v. Hearns, 845 F.3d 641, 649 (5th Cir. 2017) (citations omitted); see

also United States v. Hebron, 684 F.3d 554, 561 (5th Cir. 2012) (“[L]oss calculations in
government-benefit cases include only fraudulent ones and not payments to which the
[defendant] was legitimately entitled.”).
       47 Hebron, 684 F.3d at 563.
       48 Id. at 560 (citing U.S.S.G. § 2B1.1 cmt. 3(C)).
       49 See United States v. Isiwele, 635 F.3d 196, 202 (5th Cir. 2011).
       50 United States v. Fairley, 880 F.3d 198, 215 (5th Cir. 2018).
       51 Id. (quoting Hebron, 684 F.3d at 560).

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                                      No. 17-11121
                                             A
       The base offense level for a fraud conviction is six but can increase based
on the amount of loss. 52 Ezukanma claims that the loss should have been
$10,000, which would result in a guidelines range as low as six to twelve
months.     Over Ezukanma’s objections, the district court adopted the PSR
calculation that the actual loss was $34,003,151.24, 53 and after granting a
downward variance from the 235 to 293 month guidelines range, sentenced
Ezukanma to a total term of 200 months’ imprisonment—within the revised
188 to 235 month guidelines range. The main reason for this increase in the
guidelines ranges was the 22-level enhancement for a loss calculation greater
than $25 million but less than $65 million. 54                The district court’s loss
calculation was correct because the fraud was “so extensive and pervasive that
separating legitimate benefits from fraudulent ones [was] not reasonably
practicable.” 55
       The district court found “by a preponderance of the evidence that the
relevant conduct . . . established by the evidence, by the government’s proof, by
the PSR, by the evidence at trial, and hav[ing] carefully listened to the defense
arguments” amounted to fraud “sufficiently pervasive that the government’s
failure to interview every single witness and look at every single piece of paper
is excused.” Ezukanma asserts that while calculating the true loss would be
difficult, it was “reasonably practicable” for the Government to establish which
transactions were fraudulent, but it “did not want to” do the work. The district
court did express reservations about the Government’s assertions that every
claim for every patient was fraudulent. While the district court acknowledged


       52 U.S.S.G. § 2B1.1(a)(2), (b)(1) (2016).
       53 The district court may properly calculate the loss by using actual loss or intended
loss. U.S.S.G. § 2B1.1 cmt. 3(A) (2016).
       54 See U.S.S.G. § 2B1.1(b)(1) (2016).
       55 Hebron, 684 F.3d at 563.

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                                       No. 17-11121
that “obviously there was rampant fraud in Mr. Ezukanma’s operation,” it
noted that this “is a case where we don’t know that every single dollar that he
generated in Medicare claims was based on fraud.”
       Ultimately, the district court concluded that the Government produced
sufficient evidence of the scope of the fraud to find the fraud pervasive. The
Government reviewed over 1,000 files and interviewed multiple beneficiaries.
Evidence at sentencing, testimony from Stapleton and Bourland, and the
“master list” indicate that Ezukanma did not personally conduct most in-home
visits, and there is evidence he knew of over-billing and improperly certified
patients for home health services. Ezukanma challenges much of this evidence
as insufficient or mischaracterized for the same reasons he challenged his
conviction, but even if some of his concerns have merit, all of the fraudulent
claims were likely a “reasonably foreseeable” result of joining the conspiracy. 56
Additionally, much of this evidence was in the PSR, which is generally
considered reliable for sentencing purposes, so long as it is not based on “bare
assertions,” 57 and has “sufficient indicia of reliability to support its probable
accuracy.” 58 Furthermore, at the sentencing hearing, Agent Stapleton testified
that although he had not reviewed all the records, based on those he had
reviewed, the procedures established, and the interviews conducted, there was,
              an overall pattern of services not being provided, of services
       that were not needed and that, based on the backwards referral
       process, based on the false certifications which deprived Medicare
       of any opportunity to truly vet whether the services were needed,
       that . . . all of the subsequent money paid for home health services
       was tainted.




       56   See U.S.S.G. § 1B1.3(a)(B)(iii) (2016) (adjustments at sentencing take into account
“all acts . . . reasonably foreseeable in connection with that criminal activity”).
        57 United States v. Hearns, 845 F.3d 641, 650-51 (5th Cir. 2017).
        58 Id.; see also U.S.S.G. § 6A1.3 (2016).

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                                      No. 17-11121
       It is not “reasonably practicable” to make an individual determination of
the validity of the claims, as it would be inefficient, expensive, and problematic
to ask the Government to review over 90,000 claims and interview 4,200
Medicare beneficiaries to establish a loss calculation.               As this court has
explained, the wrongdoer “should not reap the benefits of a lower sentence
because of his ability to defraud the government to such an extent that an
accurate loss calculation is not possible.” 59
       In an unpublished decision, this court has held that when the trial
evidence demonstrated that “the vast majority of patients . . . did not need
home healthcare services and received ‘little or no benefit’ from these services,”
the fraud was pervasive. 60 Accordingly, the district court did not err in holding
that the evidence demonstrates that the fraud was “sufficiently pervasive that
the government’s failure to interview every single witness and look at every
single piece of paper is excused.” This shifted the burden to Ezukanma to show
that certain claims were legitimate.
                                             B
       Ezukanma also asserts that he should have received credit for the fair
market value of services rendered.            The district court correctly held that
Ezukanma did not meet his burden of demonstrating certain legitimate claims
and presented “nothing to indicate he’s entitled to a credit.”                If Medicare
beneficiaries “receive legitimate health care services for which Medicare would
pay but for a fraud,” the fair market value should be deducted from the loss
calculation. 61   However, the defendant has the burden of proving that he



       59 Hebron, 684 F.3d at 563.
       60  United States v. Murthil, 679 F. App’x 343, 352 (5th Cir. 2017) (per curiam)
(unpublished).
       61 United States v. Mahmood, 820 F.3d 177, 193 (5th Cir. 2016); see also United States

v. Klein, 543 F.3d 206, 214 (5th Cir. 2008) (offsetting the loss amount with the value of the
medication provided).
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                                     No. 17-11121
rendered legitimate services that Medicare, as victim of the fraud, would have
paid for but for the fraudulent billing. 62 Ezukanma provided no such evidence
at sentencing.
                                            C
       Finally, Ezukanma alleges that the intended loss calculation was
erroneous because there was no inquiry into his actual intent. “In United
States v. Isiwele, we ‘endorsed a fact-specific, case-by-case inquiry into the
defendant’s intent in determining intended loss for sentencing purposes’ in the
health care fraud context.” 63 While it is possible that Ezukanma did not know,
foresee, or intend to defraud Medicare every time he signed a form or a
fraudulent claim was filed, the Sentencing Guidelines state that he must take
responsibility for all acts that are “reasonably foreseeable in connection with
that criminal activity.” 64 Furthermore, “[t]he amount billed to Medicare and
Medicaid is ‘prima facie evidence of the amount of loss [the defendant] intended
to cause,’” albeit not “conclusive evidence.” 65 And there was other evidence
that Ezukanma intended to defraud Medicare. But even if Ezukanma lacked
subjective intent, actual losses were $34,003,145.24. This is equivalent to the
restitution order and results in the same 22-level enhancement as the
$38 million intended-loss calculation. 66
       There was sufficient evidence to determine that the fraud was pervasive.
Accordingly, the loss calculation was reasonable and is affirmed.
                                        *        *      *
      For the foregoing reasons, we AFFIRM the district court’s judgment.



       62 Id. at 194.
       63 United States v. Umawa Oke Imo, 739 F.3d 226, 240 (5th Cir. 2014) (quoting United
States v. Isiwele, 635 F.3d 196, 203 (5th Cir. 2011)).
       64 U.S.S.G. § 1B1.3(a)(B)(iii) (2016).
       65 Imo, 739 F.3d at 240 (quoting Isiwele, 635 F.3d at 203).
       66 U.S.S.G. § 2B1.1(b)(1) (2016).

                                            22
