                                                                              FILED
                            NOT FOR PUBLICATION                               JUN 08 2015

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 13-50347

              Plaintiff-Appellee,                 D.C. No. 2:12-cr-00415-CAS-2

  v.
                                                  MEMORANDUM*
AUGUSTUS OHEMENG, M.D.,

              Defendant-Appellant.


                    Appeal from the United States District Court
                        for the Central District of California
                    Christina A. Snyder, District Judge, Presiding

                         Argued and Submitted May 5, 2015
                               Pasadena, California

Before: LIPEZ,** WARDLAW, and MURGUIA, Circuit Judges.

       Augustus Ohemeng, the medical director of the Pacific Clinic in Long Beach,

California, appeals his jury conviction for six counts of health care fraud in violation

of 18 U.S.C. § 1347. Ohemeng claims that the government's introduction at trial of


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
              The Honorable Kermit V. Lipez of the United States Court of Appeals
for the First Circuit, sitting by designation.
evidence that he conducted unnecessary medical tests constituted a constructive

amendment, or, in the alternative, a prejudicial variance of the indictment. He further

contends that the district court abused its discretion under U.S.S.G. § 1B1.3 when it

calculated the loss amount to include the acts of appellant's co-schemers. We have

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742 and we affirm.

      1. The admission of evidence showing Ohemeng billed Medicare for medically

unnecessary tests and prescribed some recruited patients medically unnecessary power

wheelchairs did not constructively amend the indictment because the crime charged

in the indictment was not "substantially altered at trial, so that it was impossible to

know whether the grand jury would have indicted for the crime actually proved."

United States v. Von Stoll, 726 F.2d 584, 586 (9th Cir. 1984). The government

provided ample evidence to establish the allegation in the indictment that Ohemeng

participated in a scheme to defraud Medicare by writing fraudulent prescriptions for

enteral nutrition and feeding syringes. Specifically, there was evidence that the Pacific

Clinic used paid recruiters to recruit Medicare beneficiaries, that Ohemeng and his co-

schemer George Tarryk prescribed enteral nutrition and feeding syringes to those

patients, and that none of these patients had a feeding tube or used a syringe to drink

the enteral nutrition, and none requested syringes from the clinic. Because the

government proved the scheme charged, there was no infringement on Ohemeng's


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"right to have the grand jury make the charge on its own judgment," Stirone v. United

States, 361 U.S. 212, 218-19 (1960), and accordingly, no amendment of the

indictment.

       Furthermore, the challenged evidence was used to demonstrate Ohemeng's

knowledge of the fraudulent scheme charged in the indictment and therefore was

admitted for a "legitimate" purpose. United States v. Bhagat, 436 F.3d 1140, 1146 (9th

Cir. 2006); Fed. R. Evid. 404(b) (stating that "evidence may be admissible for another

purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge,

identity, absence of mistake, or lack of accident"). Moreover, the district court's

limiting instruction1 made explicit the limited application of the evidence of

unnecessary medical tests.

       1
         The parties agreed to the following limiting instruction, a version of which was given
three times during the course of the trial, and again at the close of evidence:

           The government has introduced evidence that defendant ordered or approved
           unnecessary medical tests for patients that also received a prescription for Enteral
           Nutrition and syringes, that these tests were billed to Medicare, and that
           Medicare paid the defendant. You may consider this evidence to determine if
           defendant knowingly and willfully participated in the conduct charged in the
           indictment. You may also consider this evidence for its bearing, if any, on the
           question of defendant’s knowledge, intent, motive, or absence of mistake.
           Defendant is charged with six counts, each of which represents a separate
           execution of the alleged scheme to defraud Medicare. Those executions are
           claims to Medicare for Enteral Nutrition and syringes, and not medical tests
           ordered or approved by defendant.


                                                  3
      Finally, because the government did not present "a materially different set of

facts from those alleged in the indictment" during trial, there was no material variance.

See Bhagat, 436 F.3d at 1146. As alleged in the indictment, the government proved

that Ohemeng signed erroneous prescriptions and Certificates of Medical Necessity

for patients who were not tube-fed. The government introduced the evidence of

unnecessary medical testing to establish Ohemeng's knowing participation in the

scheme. Its introduction did not materially alter the facts as alleged in the indictment,

or "steer[] [the jury] toward a finding at variance with the indictment," id. at 1147, but

rather supplemented those facts by establishing Ohemeng's knowledge of the fraud

perpetrated at the Pacific Clinic.

      2. The district court properly calculated the loss amount at sentencing.

Ohemeng was convicted for his participation in a scheme that resulted in

$5,664,204 in fraudulent Medicare claims for enteral nutrition and feeding syringes

for patients who could eat and drink normally, of which Medicare paid $2,964,934.

Both the billed amount and the paid amount exceeded $2,500,000, which resulted

in an 18-level upward adjustment. Under the Guidelines, Ohemeng is responsible

for foreseeable losses caused by his own prescriptions and prescriptions written by

his co-schemers. See U.S.S.G. § 1B1.3(a)(1)(B) (stating that "in the case of a

jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or


                                            4
enterprise undertaken by the defendant in concert with others, whether or not

charged as a conspiracy)," the offense level includes "all reasonably foreseeable

acts and omissions of others in furtherance of the jointly undertaken criminal

activity"); U.S.S.G. § 2B1.1, comment (n.3(A)(iv)) (defining "reasonable

foreseeable pecuniary harm" as "pecuniary harm that defendant knew or, under the

circumstances, reasonably should have known, was a potential result of the

offense").

      AFFIRMED.




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