                                                                NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     _____________

                                      No. 14-3111
                                     _____________


                            UNITED STATES OF AMERICA

                                             v.

                                 CHIKEZIE ONYENSO,
                                                Appellant



                     On Appeal from the United States District Court
                              for the District of New Jersey
                        (District Court No.: 2-12-cr-00602-001)
                       District Judge: Honorable Claire C. Cecchi



                       Submitted under Third Circuit LAR 34.1(a)
                                   On June 1, 2015


          Before: RENDELL, HARDIMAN, and VANASKIE, Circuit Judges


                              (Opinion filed: June 29, 2015)


                                      O P I N I O N*


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
RENDELL, Circuit Judge:

       Chikezie Onyenso appeals from his conviction of one count of conspiracy to

violate the Anti-Kickback Statute, under 18 U.S.C. § 371, and one count of receiving

kickbacks, under 42 U.S.C. § 1320a-7b(b)(1)(A). Onyenso urges several errors by the

District Court: (1) it improperly admitted certain testimony under the co-conspiracy

exception to the hearsay rule, as background testimony, and as business records; (2) it

failed to take judicial notice of a financial reporting regulation; (3) it admitted testimony

about the public policy behind the Anti-Kickback Statute; (4) it improperly denied his

motion for a mistrial; and (5) cumulative error by the District Court.1 We will affirm.

I. BACKGROUND

       Chikezie Onyenso, a medical doctor practicing in New Jersey, received kickbacks

from Orange Community MRI (“OCM”) for referring patients to OCM for diagnostic

tests. OCM employees Dr. Ashokkumar Barbaria, Chirag Patel, Faisal Paracha, and

Krunal Banker devised and operated the kickback scheme. Beginning in mid-2010,

Onyenso received $50 for each MRI referral of a Medicaid or Medicare patient, $75 for

each MRI referral of a patient with private insurance, and $40 for each CAT scan referral.

Onyenso also requested that OCM enter into a monthly lease agreement of $1490.45 in

exchange for fifty to sixty ultrasound referrals per month. In the summer of 2011, federal

law enforcement agents confronted OCM employee Banker about the kickback system.

Banker admitted his role in the scheme and agreed to cooperate with law enforcement.

1
  The District Court had jurisdiction pursuant to 18 U.S.C. § 3231; this Court has
jurisdiction pursuant to 28 U.S.C. § 1291.
                                              2
On two occasions over the next few months, Banker videotaped Onyenso accepting cash

payment for referrals made to OCM pursuant to the kickback agreement.

II. ANALYSIS

          A. Hearsay2

                     1. Co-conspirator Statements

       The District Court did not abuse its discretion by conditionally admitting Patel’s

testimony regarding kickbacks made to other doctors prior to the charged conspiracy and

Banker’s testimony regarding the list of doctors involved in the kickback scheme.

Onyenso objected at trial that Banker’s testimony that Paracha had shown him a list of

doctors to be paid was hearsay. Onyenso also objected to Patel’s testimony about

payments to doctors occurring before the charged conspiracy as irrelevant. The District

Court conditionally admitted these statements as background information or under the co-

conspirator exception of Federal Rule of Evidence 801(d)(2)(E), subject to proof of the

required elements by the close of evidence.

       Because both pieces of evidence were properly admitted as background

information or under Federal Rule of Evidence 801(d)(2)(E), neither implicates the

Confrontation Clause. In United States v. Price, we held that certain background

information can serve a “legitimate non-hearsay evidentiary purpose” and thus be

admissible. 458 F.3d 202, 210 (3d Cir. 2006). Here, the legitimate purpose of Patel’s


2
 We review challenges to the admission of evidence for abuse of discretion. See United
States v. Christie, 624 F.3d 558, 567 (3d Cir. 2010). The District Court’s factual findings
are reviewed for clear error. See United States v. Turner, 718 F.3d 226, 231 (3d Cir.
2013).
                                              3
testimony about conduct occurring before the charged conspiracy was to provide

information about why and how Patel developed and operated the kickback scheme. The

testimony was therefore not hearsay—because it was offered as background rather than

for truth of the matter asserted—and non-hearsay statements “raise[] no Confrontation

Clause concerns.” Tennessee v. Street, 471 U.S. 409, 414 (1985).

       Evidence constituting “business records or statements in furtherance of a

conspiracy” which are “by their nature . . . not testimonial” also does not implicate the

Confrontation Clause. Crawford v. Washington, 541 U.S. 36, 56 (2004). Instead,

admission of such evidence is governed by the Federal Rules of Evidence. See United

States v. Figueroa, 729 F.3d 267, 276 & n.14 (3d Cir. 2013) (co-conspirator statement);

United States v. Baker, 458 F.3d 513, 519 (6th Cir. 2006) (business records). Under the

Federal Rules of Evidence, a statement is not treated as hearsay if it is “offered against an

opposing party and . . . was made by the party’s coconspirator during and in furtherance

of the conspiracy.” Fed. R. Evid. 801(d)(2)(E). In order for a statement to be properly

admitted as a co-conspirator statement, “the Government must prove by a preponderance

of the evidence that: (1) a conspiracy existed; (2) the declarant and the party against

whom the statement is offered were members of the conspiracy; (3) the statement was

made in the course of the conspiracy; and (4) the statement was made in furtherance of

the conspiracy.” Turner, 718 F.3d at 231.

       The court may conditionally admit evidence under Rule 801(d)(2)(E), provided

the government makes the necessary showing by the close of its case. United States v.

Ammar, 714 F.2d 238, 246-47 (3d Cir. 1983). The District Court’s conditional admission

                                              4
of the challenged evidence was therefore procedurally sound. The District Court

concluded that the government had carried its burden under Rule 801(d)(2)(E) by the

close of its case, and we do not find that ruling to be an abuse of discretion.3

                     2. Handwritten Notes

       The District Court did not abuse its discretion in admitting Banker’s three

handwritten notes under the Federal Rule of Evidence 803(6) business record exception.

These handwritten lists showed the amount of kickbacks paid to each doctor for

September through November 2011. A party seeking to admit evidence as a business

record must lay a foundation with a qualified witness who will testify that: (1) the

declarant in the records had knowledge to make accurate statements; (2) the declarant

recorded the statements contemporaneously with the actions which were the subject of

the reports; (3) the declarant made the record in the regular course of the business

activity; and (4) such records were kept regularly by the business. See United States v.

Furst, 886 F.2d 558, 571 (3d Cir. 1989). The District Court concluded that Banker’s

notes met these four requirements: Banker kept these notes every month for over two




3
  Onyenso argues that admission of this testimony also violated Federal Rules of
Evidence 404(b) and 1002. Because he did not raise these objections at trial, we review
them for plain error. See Christie, 624 F.3d at 567. The District Court’s admission of
Banker’s testimony that Onyenso was on the list of kickbacks from before the charged
conspiracy did not violate Rule 404(b) because there were non-propensity reasons for its
admission, including prior knowledge and relationship to the conspiracy. See Fed. R.
Evid. 404(b)(2). Nor did admission of Banker’s testimony regarding the contents of
Paracha’s notes violate Rule 1002, as Rule 1002 is not violated by the testimony of a
witness who has personal knowledge of the contents of a destroyed writing. See Fed. R.
Evid. 1004; United States v. Ross, 33 F.3d 1507, 1513-14 (11th Cir. 1994).
                                              5
years in order to maintain the accuracy of his payments, and any concern regarding the

trustworthiness of the records was mitigated by Banker testifying at trial.

       Onyenso’s arguments regarding the notes’ admissibility under Rule 803(6) are

primarily reiterations of those put forth in his motion in limine. He argues that the notes

were not created as a regular practice or in the ordinary course of business because they

were created at the request of law enforcement. However, Banker testified that he had a

regular practice of creating the notes—a practice that stretched back two-and-a-half

years. Onyenso also points to discrepancies between Banker’s description of the notes

and their actual appearance and claims the notes are not reliable. Again, the minor

inconsistencies Onyenso emphasizes only affect the weight of the evidence, not its

admissibility. See United States v. Sokolow, 91 F.3d 396, 403-04 (3d Cir. 1996). Finally,

the evidence at trial showed the lists were reliable: they were used to calculate kickbacks

to doctors, reviewed monthly by Patel and Barbaria, discussed by Banker and Patel in a

recorded conversation, relied upon by Banker when he delivered kickbacks to Onyenso,

and were consistent with OCM’s patient lists.

          B. Judicial Notice4

       The District Court did not abuse its discretion by refusing to take judicial notice of

31 C.F.R. § 1010.330(a) or its application to OCM employee Patel. During Patel’s cross-

examination, Onyenso attempted to suggest that Patel violated § 1010.330(a), which

contains tax reporting requirements for the receipt of cash, by failing to report to the IRS


4
 We review the District Court’s decision regarding judicial notice for abuse of discretion.
See United States v. Mitchell, 365 F.3d 215, 251 (3d Cir. 2004).
                                              6
that he had received cash in excess of $10,000 for the purpose of making kickback

payments. Onyenso argues that the District Court’s failure to take judicial notice of

§ 1010.330(a) prevented him from fully cross-examining Patel. Judicial notice is

governed by Federal Rule of Evidence 201(b): “The court may judicially notice a fact

that is not subject to reasonable dispute because it: (1) is generally known within the trial

court’s territorial jurisdiction; or (2) can be accurately and readily determined from

sources whose accuracy cannot reasonably be questioned.” Judicial notice requires a

“high degree of indisputability.” Fed R. Evid. 201 advisory committee’s note. Here,

Patel was never charged with violating § 1010.330(a), and the government argues that the

regulation does not even apply to Patel. Because it is disputable whether Patel violated

§ 1010.330(a) or if the regulation even applies, the District Court’s refusal to take judicial

notice of § 1010.330(a) did not constitute an abuse of discretion.

          C. Expert Testimony5

       The District Court did not abuse its discretion by admitting expert testimony

regarding the purposes of the Anti-Kickback Statute. The government’s expert, Jean

Stone, testified that Medicare does not allow the payment of claims tainted by kickbacks

because it undermines the basic doctor/patient relationship, incentivizes and encourages

overutilization, provides an unfair advantage to providers who accept kickbacks, and

increases healthcare costs. Onyenso argues that admission of this testimony was

erroneous and prejudicial. Informing the jury about the purpose of a statute is


5
 Again, we review challenges to the District Court’s admission of evidence for abuse of
discretion. See Christie, 624 F.3d at 567.
                                              7
permissible, although in some cases that purpose can be irrelevant and unduly prejudicial.

See United States v. Haynes, 16 F.3d 29, 32-33 (2d Cir. 1994); United States v. Denny,

939 F.2d 1449, 1453-54 (10th Cir. 1991); United States v. Perez, 702 F.2d 33, 37-38 (2d

Cir. 1983). We find no such prejudice here, and, given the persuasive opinions from

other circuits that permit the jury to be told about statutory purpose, the District Court’s

admission of Stone’s testimony did not amount to an abuse of discretion.

          D. Mistrial6

       The District Court’s denial of Onyenso’s motion for a mistrial based on Banker’s

and Patel’s testimony was not erroneous. Onyenso moved for a mistrial during Patel’s

testimony regarding the commencement of the conspiracy. Onyenso argues that Banker’s

and Patel’s testimony about events occurring before the charged conspiracy was used by

the government to taint the jury’s deliberations with hearsay accusations that Onyenso

had been receiving kickbacks since 2008. The District Court admitted this testimony as

statements of a co-conspirator and as background of the conspiracy, as discussed above.

When reviewing the denial of a mistrial based on prejudicial testimony, three factors are

considered: (1) whether the witness’s remarks were pronounced and persistent, creating a

likelihood they would mislead and prejudice the jury; (2) the strength of the other

evidence; and (3) curative action taken by the district court. Riley, 621 F.3d at 336.

However, Onyenso’s motion for a mistrial is based on the same testimony of Banker and



6
 We review challenges to the denial of a mistrial motion based on a witness’s allegedly
prejudicial comments for abuse of discretion. See United States v. Riley, 621 F.3d 312,
335-36 (3d Cir. 2010).
                                              8
Patel that we determined above was properly admitted. Because we found that this

evidence was properly admitted, there is no basis for a mistrial.

          E. Cumulative Error7

       Finally, Onyenso has not demonstrated cumulative error by the District Court. On

a cumulative error challenge, this Court reviews the record to determine if the alleged

errors, when combined, so infected the jury’s deliberations as to have had a substantial

influence on the outcome of the trial. United States v. Copple, 24 F.3d 535, 547 n.17 (3d

Cir. 1994). Because Onyenso did not raise this challenge before the District Court, it is

reviewed for plain error. As we conclude above, Onyenso failed to show any District

Court error rising to the level of abuse of discretion. He therefore necessarily failed to

meet the even higher standard of plain error.

III. CONCLUSION

       For the foregoing reasons, we will affirm Onyenso’s conviction.




7
 Objections not specifically raised in the District Court are reviewed for plain error. See
Christie, 624 F.3d at 567.
                                              9
