     Case: 16-20211      Document: 00513908394         Page: 1    Date Filed: 03/13/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                    No. 16-20211                                 FILED
                                  Summary Calendar                          March 13, 2017
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ENYIBUAKU RITA UZOAGA, M.D.,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:14-CR-65-1


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
       Enyibuaku Rita Uzoaga, M.D., appeals her conviction for conspiracy to
commit health care fraud, health care fraud, and aiding and abetting, in
violation of 18 U.S.C. §§ 2, 1347, 1349. She contends that the district court
committed plain, harmful error in instructing the jury on deliberate ignorance.
The Government disagrees and further argues that Dr. Uzoaga invited any




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-20211    Document: 00513908394     Page: 2   Date Filed: 03/13/2017


                                 No. 16-20211

error; thus, the applicable manifest injustice standard of review bars her
challenge.
      In reviewing a district court’s decision to give a deliberate ignorance
instruction, this court considers the evidence and draws all reasonable
inferences in the light most favorable to the Government, United States v.
Nguyen, 493 F.3d 613, 619 (5th Cir. 2007), and it takes into account the totality
of the evidence, United States v. Lara-Velasquez, 919 F.2d 946, 952 (5th Cir.
1990). A deliberate ignorance instruction should be rare. United States v.
McElwee, 646 F.3d 328, 341 (5th Cir. 2011). The purpose of the instruction is
to explain to the jurors that they may consider “the defendant’s charade of
ignorance as circumstantial proof of guilty knowledge,” but it may be given
only where the defendant argues that she did not have actual knowledge of
guilt and the evidence at trial supports an inference that the defendant
remained deliberately ignorant. Nguyen, 493 F.3d at 618 (internal quotation
marks and citation omitted).
      The parties’ dispute over the proper standard of review is immaterial
here because, even under the less onerous plain error standard urged by Dr.
Uzoaga, her arguments fails. See United States v. Harris, 740 F.3d 956, 965
(5th Cir. 2014); United States v. Salazar, 751 F.3d 326, 332 (5th Cir. 2014).
Binding case law forecloses Dr. Uzoaga’s first argument that a deliberate
ignorance instruction cannot be squared with a conviction for conspiracy to
commit health care fraud. United States v. St. Junius, 739 F.3d 193, 205 (5th
Cir. 2013). As to Dr. Uzoaga’s second argument, the Government presented
considerable evidence to support deliberate ignorance. The central assertions
underlying Dr. Uzoaga’s defense are belied by the Government’s evidence.
Regardless of whether Dr. Uzoaga knew, or should have known, that the billing
codes repeatedly used were for testing, not therapy, the record shows that she



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                                 No. 16-20211

nonetheless understood the specific names of the vestibular tests in her own
patient files.   As Dr. Uzoaga’s own expert acknowledged, her files were
copiously detailed and well organized, especially regarding a patient’s plan of
care, and the files noted patient progress. It naturally follows that Dr. Uzoaga
knew that her patient files indicated an excessive volume of vestibular testing,
which Dr. Uzoaga herself agreed was “absolutely unnecessary,” and for which
Medicare had been billed on her behalf.
      The evidence supports that (1) Dr. Uzoaga knew there was a high
probability that Medicare was being unlawfully billed on her behalf and (2)
that she purposefully avoided discovering the illegal conduct. Nguyen, 493
F.3d at 619. The record indicates that Dr. Uzoaga reviewed the Medicare
remittance notices yet refrained from ever inquiring with the treatment
provider about the billing or coding used. Under the circumstances here, Dr.
Uzoaga had good reason to be suspicious that illegal conduct was occurring in
her patients’ treatment. After Dr. Uzoaga’s submission of documents to the
audit response, Medicare denied some of the claims submitted. Regardless of
the precise basis given by Medicare, the post-audit denial gives rise to a
reasonable inference that Dr. Uzoaga was aware of a high probability of illegal
conduct. See Nguyen, 493 F.3d at 619. Yet Dr. Uzoaga’s response following
the audit was not to investigate the treatment provider business practices or
become more involved herself in patient billing or treatment. Instead, Dr.
Uzoaga continued using a third-party for testing and treatment, none of which
she attended. We conclude that Dr. Uzoaga has failed to establish error, plain
or otherwise, that affected her substantial rights.
      AFFIRMED.




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