IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-20247

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

YOLANDA NOWLIN, 

 Defendant - Appellant

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 4:12-CR-730

Before DAVIS, BARKSDALE and DENNIS, Circuit Judges.

PER CURIAM:*

Yolanda Nowlin, the owner and operator of a durable medical equipment 

supply business, was convicted by a jury of conspiracy to commit health care 

fraud, four substantive counts of committing health care fraud, conspiracy to 

violate the Anti-Kickback Statute, and social security fraud. The district court 

sentenced her to 132 months of imprisonment. On appeal, Nowlin challenges 

her convictions as well as her sentence. Finding no error, we affirm. 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

February 25, 2016

Lyle W. Cayce

Clerk

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I.

A grand jury returned an indictment that charged Nowlin with one count 

of conspiracy to commit health care fraud in violation of 18 U.S.C. § 1349 (count 

one); four substantive counts of committing health care fraud in violation of 18 

U.S.C. § 1347 and § 2 (counts two through five); one count of conspiracy to 

violate the Anti-Kickback Statute in violation of 18 U.S.C. § 371 (count six); 

and one count of social security fraud in violation of 18 U.S.C. § 641 and § 2 

(count seven). The indictment alleged that Nowlin formed, owned, and 

controlled Yellabone Medic Care Express Equipment Supply Company and 

Yellabone Medical Equipment, Inc. (collectively, “Yellabone”), a durable 

medical equipment (“DME”) company located in Bryan, Texas. Nowlin 

submitted enrollment applications to Medicare and Medicaid (collectively “the 

programs”) in Yellabone’s name for the submission of claims for payment for 

DME supplied to Medicare/Medicaid beneficiaries by Yellabone. Nowlin hired 

Carla Parnell to help manage the day-to-day operations of Yellabone. 

According to the indictment, Nowlin, with the help of Parnell, used 

Yellabone as an artifice to submit false claims to Medicare and Medicaid, which 

resulted in Yellabone receiving reimbursements from the programs for medical 

supplies that were never delivered to beneficiaries, or that, alternatively, were 

not wanted nor needed by the beneficiaries. For example, the indictment 

alleged that Nowlin submitted claims for ostomy supplies (which are used by 

patients to discharge bodily waste) that were neither needed nor requested by 

beneficiaries, and that Nowlin also submitted claims for motorized wheelchairs 

when, in actuality, a less expensive scooter was actually provided to the 

beneficiaries. The indictment further alleged that Nowlin conspired to pay 

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illegal “kickbacks” to individuals in exchange for the referral of Medicare and 

Medicaid beneficiaries to Yellabone. 

Following a seven-day trial, a jury convicted Nowlin on all seven counts. 

The district court sentenced her to 120 months of imprisonment on count one 

to run consecutively with concurrent 12-month terms of imprisonment on each 

of counts two through seven, resulting in a total of 132 months of

imprisonment. The district court also imposed a three-year term of supervised 

release on each of the seven counts to run concurrently with each other, 

restitution of $850,597.10, and a special assessment of $700. Nowlin appealed. 

II.

Nowlin first contends that the evidence at trial was insufficient to convict 

her of conspiracy to commit health care fraud (count one), the four substantive 

counts of health care fraud (counts two through five), and conspiracy to violate 

the Anti-Kickback Statute (count six).1 Nowlin preserved her sufficiency 

challenge by filing a motion for judgment of acquittal under Fed. R. Crim. P. 

29 at the close of the Government’s case and at the close of all the evidence. 

Accordingly, we review de novo the denial of her Rule 29 motion. See United 

States v. Daniels, 723 F.3d 562, 569 (5th Cir. 2013). “[T]he relevant question 

is whether, after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements 

of the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 

U.S. 307, 319 (1979)). “All reasonable inferences from the evidence must be 

construed in favor of the jury verdict.” United States v. Akpan, 407 F.3d 360, 

370 (5th Cir. 2005) (internal quotation marks and citation omitted). “The jury 

 

1 As she conceded at oral argument, Nowlin does not challenge the evidence 

supporting her conviction for social security fraud in violation of 18 U.S.C. § 641 and § 2. 

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retains the sole authority to weigh any conflicting evidence and to evaluate the 

credibility of the witnesses.” United States v. Grant, 683 F.3d 639, 642 (5th 

Cir. 2012) (internal quotations marks and citation omitted). In order to be 

sufficient, “‘[t]he evidence need not exclude every reasonable hypothesis of 

innocence or be wholly inconsistent with every conclusion except that of guilt.” 

Id. (internal quotation marks and citation omitted). As explained below, we 

conclude that there was ample evidence presented at trial to sustain Nowlin’s 

convictions. 

A. The Health Care Fraud Offenses (Counts One through Five)

Count one of the indictment charged Nowlin with conspiracy to commit 

health care fraud, in violation of 18 U.S.C. § 1349, by conspiring to submit

claims for payment for DME and supplies to Medicare and Medicaid that were 

not delivered to beneficiaries, were medically unnecessary, or were the result 

of “upcoding.”2 Counts two through five of the indictment charged Nowlin with 

substantive health care fraud under 18 U.S.C. § 1347 and aiding and abetting 

in the offense under 18 U.S.C. § 2. 

“To prove a conspiracy to commit health care fraud, the government 

must prove beyond a reasonable doubt that (1) two or more persons made an 

agreement to commit health care fraud; (2) the defendant knew the unlawful 

purpose of the agreement; and (3) [ ] the defendant joined in the agreement 

willfully, that is, with the intent to further the unlawful purpose.” Grant, 683 

F.3d at 643 (citing 18 U.S.C. §§ 1347, 1349; United States v. Delgado, 668 F.3d 

219, 226 (5th Cir. 2012)). “Direct evidence of a conspiracy is unnecessary; each 

element may be inferred from circumstantial evidence.” Delgado, 668 F.3d at 

 

2 “Upcoding” refers to the practice of filing claims with Medicare and Medicaid for 

more expensive items than were actually supplied to beneficiaries—e.g., filing a claim for the 

payment of a motorized wheelchair when a less expensive scooter was actually provided. 

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226 (internal quotation marks and citation omitted). “However, there is 

insufficient evidence of a conspiracy if the Government has only piled inference 

upon inference upon which to base a conspiracy charge.” United States v. 

Umawa Oke Imo, 739 F.3d 226, 235 (5th Cir. 2014) (internal quotation marks 

and citation omitted). 

To prove the four substantive counts of health care fraud in violation of 

18 U.S.C. § 1347, the Government was required to “prove beyond a reasonable 

doubt that [Nowlin] knowingly and willfully executed, or attempted to execute, 

a scheme or artifice [ ] (1) to defraud any health care benefit program; or (2) to 

obtain, by means of false or fraudulent pretenses, representations, or promises, 

any of the money or property owned by, or under the custody or control of, any 

health care benefit program, in connection with the delivery of or payment for 

health care benefits, items, or services.” United States v. Willett, 751 F.3d 335, 

339 (5th Cir. 2014) (alternations and internal quotation marks omitted). 

“To obtain a conviction for aiding and abetting under 18 U.S.C. § 2, the 

Government must prove that [Nowlin] associated with the criminal venture [of 

health care fraud], purposefully participated in [that] criminal activity, and 

sought by [her] actions to make the venture successful.” Akpan, 407 F.3d at 

370-71. “A defendant associates with a criminal venture when [she] shares in 

the criminal intent of the principal.” Id. “Participation means that the 

defendant engaged in some affirmative conduct designed to aid the venture.” 

United States v. Lopez-Urbina, 434 F.3d 750, 757 (5th Cir. 2005) (internal 

quotation marks and citation omitted). 

The sole focus of Nowlin’s argument as to counts one through five is that 

there was insufficient evidence adduced at trial that she had the requisite 

knowledge of or specific intent to commit the charged offenses. In particular, 

she argues that the jury placed undue weight on the testimony of Carla 

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Parnell, who had entered into a plea agreement with the Government prior to 

testifying. For the reasons explained below, we find Nowlin’s argument 

unpersuasive. 

Ample evidence was presented at trial showing that Nowlin had the 

requisite knowledge and intent to conspire to commit, to commit, and to aid 

and abet the commission of health care fraud. As an initial matter, the 

evidence shows that Nowlin was aware of her obligations to truthfully comply 

with Medicare and Medicaid regulations. In 2003, for example, Nowlin signed 

the Medicaid and Medicare enrollment applications as the sole owner, 

administrator, and delegated official for Yellabone. In doing so, Nowlin 

certified numerous times that she understood and agreed to comply with 

underlying regulations, which include, inter alia, only submitting claims for 

equipment that has been prescribed by a doctor, providing equipment or 

services prior to billing the programs, using correct procedure codes, and 

delivering only new equipment to beneficiaries. In addition, other evidence 

presented at trial sheds further light on the extent of Nowlin’s knowledge of 

relevant program regulations and her obligation to comply with them. For 

instance, U.S. Department of Health and Human Services Special Agent 

Latisha Cleveland testified at trial regarding an interview that she conducted 

with Nowlin in 2004. During that interview, Nowlin explained that she 

understood the differences in billing for a motorized wheelchair and a power 

scooter and how those different pieces of equipment have their own distinct 

codes for filing claims with the programs. 

Further, substantial evidence at trial showed that Nowlin knew and 

intended for Yellabone to disregard its obligations to comply with program 

regulations, thereby resulting in Yellabone being reimbursed by the programs 

for medical equipment that was not delivered, was not new, or was not 

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medically necessary as charged in the indictment. For example, the 

Government’s first witness was Eleanor Brown, who was referred to Yellabone 

to obtain DME for her daughter, Jisha, who suffered from cerebral palsy and 

was a Medicaid beneficiary. Brown first went to Yellabone in 2004 in order to 

obtain a new specialized wheelchair for Jisha. Due to Jisha’s medical 

condition, the wheelchair needed to have a headrest and straps to hold her in 

place. Nevertheless, the wheelchair ultimately provided by Yellabone lacked 

these necessary components. After Brown complained to Nowlin about the 

substandard wheelchair, Nowlin visited the Brown’s home and observed 

Jisha’s condition and the wheelchair. However, Nowlin never visited the 

Brown’s home again or returned Brown’s calls. Jisha was not eligible to receive 

another chair from Medicaid for five years and was required to use a “bath 

chair” with wheels on it instead. Later on, Brown attempted to obtain a 

hospital bed, but Medicaid denied the claim because its records indicated that 

Yellabone had previously delivered a bed to the Browns. Yet, Brown testified 

that she had never requested that Yellabone obtain a hospital bed and that she 

had never received one from Yellabone. Although Jisha never received a 

specialized wheelchair or a hospital bed from Yellabone, billing documents and 

Yellabone bank statements presented at trial confirmed that Medicaid 

reimbursed Yellabone for a specialized wheelchair and for a hospital bed for 

Jisha into a Yellabone bank account that Nowlin exclusively controlled and 

from which she regularly withdrew cash. 

The testimony of numerous other program beneficiaries who dealt with 

Yellabone further supports a finding that Nowlin had knowledge of and 

specifically intended to commit health care fraud. For example, in May 2006, 

Linda Chopp, a Medicaid beneficiary, brought Nowlin a prescription for a 

scooter that she received from her doctor. The scooter that Yellabone 

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ultimately delivered to Chopp was used, never worked correctly, and 

ultimately caused a fire in Chopp’s apartment. Nevertheless, Yellabone billed 

and received payment from Medicaid for a more expensive power wheelchair—

not a scooter. Billing statements showed that Medicaid paid Yellabone over 

$3500 for a power wheelchair, instead of a cheaper scooter, for Chopp in May 

2006. A bank statement submitted by the Government into evidence confirmed 

that Medicaid paid those funds to a Yellabone bank account that was controlled 

by Nowlin and from which she regularly made ATM withdrawals. 

Similar to Chopp, Robert Brown also received a scooter from Yellabone 

through his program benefits. However, within three years of receiving this 

scooter, Brown explained that he required a power wheelchair as a result of a 

deterioration in his medical condition. Medicaid denied this request because 

Yellabone had previously filed a claim for a power wheelchair instead of the 

scooter that Brown had actually received. Medicare and Medicaid each 

reimbursed Yellabone for the payment of a power wheel chair and deposited 

those payments into a Yellabone bank account controlled by Nowlin. Brown’s 

doctor, Dr. Wade Farrow, also testified at trial. Dr. Farrow confirmed that he 

previously had prescribed Brown a scooter. At trial, Dr. Farrow examined a 

prescription in Brown’s file at Yellabone that had been altered with white-out 

and changed to request a power wheelchair. 

Ada Taylor also testified at trial regarding her dealings with Yellabone. 

Taylor testified that Yellabone provided her with one box of adult diapers and 

one box of pull-ups for her disabled granddaughter, Chanel Wright. Taylor 

never received any other supplies from Yellabone. Yet, billing data introduced 

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at trial showed that Yellabone billed Medicaid for large amounts of 

incontinence supplies that neither Taylor nor Wright ever received. 

The testimony of these beneficiaries was further corroborated by 

Yellabone employee Carla Parnell, who testified in detail that Nowlin provided 

her with a list of incorrect billing codes (which resulted in the submission of 

“upcoded” claims), instructed her to falsify delivery documents, and to bill for 

supplies that Yellabone never provided to beneficiaries. According to Parnell, 

“whether [the beneficiaries] got their equipment or not,” Nowlin “told [her] to 

bill it” to the programs. The jury was free to credit Parnell’s testimony 

notwithstanding the fact that she had entered into a plea agreement with the 

Government. See United States v. Shoemaker, 746 F.3d 614, 623 (5th Cir. 

2014) (observing that “a conviction may be based even on uncorroborated 

testimony of an accomplice or of someone making a plea bargain with the 

government, provided that the testimony is not incredible or otherwise 

insubstantial on its face.” (internal quotation marks and citation omitted)). 

In sum, the Government presented overwhelming evidence at trial that 

Nowlin had the requisite knowledge and intent to commit the crimes charged 

in counts one through five. See Willett, 751 F.3d at 339-43; Grant, 683 F.3d at 

642-44. 

B. Conspiracy to Violate the Anti-Kickback Statute (Count Six)

Nowlin also argues that there was insufficient evidence presented at 

trial that she conspired to violate the Anti-Kickback Statute in violation of 18 

U.S.C. § 371. “A conviction of conspiracy under Section 371 requires the 

Government to prove: (1) an agreement between two or more persons to pursue 

an unlawful objective; (2) the defendant’s knowledge of the unlawful objective 

and voluntary agreement to join the conspiracy; and (3) an overt act by one or 

more of the members of the conspiracy in furtherance of the objective of the 

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conspiracy.” United States v. Njoku, 737 F.3d 55, 63-64 (5th Cir. 2013). Here, 

the relevant statute tied to the conspiracy charge is the Anti-Kickback Statute, 

which provides: “[W]hoever knowingly and willfully offers or pays any 

remuneration (including any kickback, bribe, or rebate) directly or indirectly, 

overtly or covertly, in cash or in kind to any person to induce such person . . . 

to refer an individual to a person for the furnishing or arranging for the 

furnishing of any item or service for which payment may be made in whole or 

in part under a Federal health care program . . . shall be guilty of a felony.” 42 

U.S.C. § 1320a-7b(b)(2)(A). Nowlin likewise argues that there was insufficient 

evidence to establish that she had the requisite knowledge or intent to commit 

the offense. 

Contrary to Nowlin’s contention, the evidence adduced at trial 

overwhelmingly supported a finding that she knowingly and willfully 

conspired to violate the Anti-Kickback Statute. Testimony at trial made clear 

that Medicare and Medicaid regulations proscribe the payment of commissions 

for beneficiary referrals, and Nowlin personally signed the Yellabone 

enrollment applications agreeing to comply with all relevant regulations. 

Nevertheless, the evidence showed that Nowlin entered into an agreement 

with various individuals whereby Yellabone would make “commission” 

payments in exchange for their referring clients to Yellabone. For example, 

Victoria Johnson testified that she solicited beneficiaries for Yellabone—

sometimes by herself and other times with Nowlin. At trial, Johnson identified 

one of her commission files from Yellabone. She explained that she was paid 

her commissions on a monthly basis. Between 2003 and 2009, she received 

approximately four to six thousand dollars in checks from Yellabone and 

approximately five to seven thousand dollars in cash as commissions for 

referring Medicare/Medicaid beneficiaries to Yellabone. These payments 

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occurred either at Nowlin’s home or at Yellabone’s office. Although Johnson 

briefly worked at Yellabone as an employee in 2003, she later quit this job and 

thereafter only worked “in the field” soliciting beneficiaries for Yellabone. 

Yellabone did not withhold taxes from her commission checks, nor did she ever 

keep an office at Yellabone or sign a sales contract. Similarly, the evidence at 

trial showed that Yellabone also paid commissions to Frank Bosquez, a life 

insurance salesman, based upon the number of clients he referred to the 

company. The trial testimony of Turner, Benford, Parnell, and Johnson 

corroborated that Bosquez received commissions for referrals and did not work 

in the office. At trial, Parnell also identified the referral commission file for 

Bosquez. In light of this evidence, we conclude that there was sufficient 

evidence that Nowlin knowingly and willfully conspired to violate the AntiKickback Statute. 

III.

Nowlin also argues that the district court erred in refusing to provide a 

“safe-harbor” jury instruction in relation to the count for conspiracy to violate 

the Anti-Kickback Statute. This argument is likewise without merit. 

As explained above, the Anti-Kickback Statute, 42 U.S.C. § 1320a7b(b)(2), criminalizes the payment of any funds or benefits designed to 

encourage an individual to refer another party to a Medicare or Medicaid 

provider such as Yellabone. See United States v. Robinson, 505 F. App’x 385, 

387 (5th Cir. 2013). However, the statute contains a “safe-harbor provision,” 

under which “the statute’s criminal prohibition does not apply to ‘any amount 

paid by an employer to an employee (who has a bona fide employment 

relationship with such employer) for employment in the provision of covered 

items or services.’” Id. (quoting § 1320a-7b(b)(3)(B)). As we explained in 

Robinson, relevant factors in determining whether an individual qualifies as 

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an “employee” under the safe-harbor provision include “the method of 

payment, whether the work is part of the regular business of the hiring party, 

and the hiring party’s control over work hours.” 505 F. App’x at 387 (internal 

quotation marks and citation omitted). 

Nowlin’s proposed jury instructions included a “safe-harbor” instruction. 

However, at the jury charge conference, both the Government and Nowlin’s 

counsel agreed that no evidence showed that either Johnson or Bosquez had 

signed blank employment agreements found in Yellabone files. In addition, 

the district court agreed with the Government that there was no evidence 

Yellabone had ever withheld income taxes from Johnson or Bosquez’s 

commission payments. The district court thus denied Nowlin’s request for a 

safe-harbor instruction. In so doing, the district court emphasized, inter alia, 

that Johnson and Bosquez “had discretion over when and how long to work,” 

their payment was on “a commission basis,” their work was certainly not 

regular, the work was not subject to any employment agreement, “there were 

no benefits provided, and they were not treated as employees for federal income 

tax purposes.” 

In her briefing on appeal, Nowlin confusingly contends that the district 

court should have sua sponte provided a safe-harbor instruction because 

Parnell—as opposed to either Johnson or Bosquez—was a bona fide employee 

of Yellabone. Because Nowlin never argued before the district court that the 

safe-harbor instruction should be provided in light of Parnell’s status as a bona 

fide employee, our review is for plain error. See United States v. Job, 387 F. 

App’x 445, 454 (5th Cir. 2010) (observing that “plain error” review applied to 

defendant’s argument that “the district court erred by failing sua sponte to give 

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a jury instruction on Medicare’s safe-harbor provision,” because the claim was 

raised for the first time on appeal).

The indictment did not allege that Parnell herself was the recipient of 

illegal kickbacks. To the contrary, the indictment focused exclusively on the 

illegal payments made to Johnson and Bosquez in furtherance of the 

conspiracy between Nowlin and Parnell. Thus, because the indictment did not 

allege that Parnell was the recipient of any illegal remuneration, no plain error 

exists in the district court’s failure to sua sponte provide a safe-harbor 

instruction in light of Parnell’s employment status. See id. at 455-56.3 

IV.

Nowlin also argues that the district court erred in denying her motion to 

dismiss the indictment on the ground of multiplicity. She contends that count 

one, which charged conspiracy to commit health care fraud, and count six, 

which charged conspiracy to violate the Anti-Kickback Statute, are 

multiplicitous. We review Nowlin’s argument de novo. See United States v. 

Jones, 733 F.3d 574, 584 (5th Cir. 2013). 

“Multiplicity is the charging of a single offense in several counts. The 

chief danger raised by a multiplicitous indictment is the possibility that the 

defendant will receive more than one sentence for a single offense.” Id. 

(internal quotation marks and citation omitted). In assessing whether 

multiplicity exists, this court considers “whether each offense requires proof of 

 

3 In her brief, Nowlin also conclusorily argues that the district court erred in denying 

her requested jury instructions as to good faith, violation of a regulation not being a violation

of a criminal law, and a witness having a criminal history. However, at oral argument, 

Nowlin’s counsel abandoned these issues and we therefore do not address them. 

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an element that the other does not.” Njoku, 737 F.3d at 67 (internal quotation 

marks and citation omitted). 

This court has, at least, twice rejected the argument presented by Nowlin 

that multiplicity occurs when the Government charges a defendant with both 

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

to violate the Anti-Kickback Statute under 18 U.S.C. § 371. See Njoku, 737 

F.3d at 67; Jones, 733 F.3d at 584. As we explained in Njoku:

The two convictions involve two conspiracies, one under 18 U.S.C. 

§ 1349 and the other under 18 U.S.C. § 371. One statute requires 

that the government prove an additional fact that the other does 

not. Section 1349 requires proof of a conspiracy to commit an 

offense of fraud and that such fraud is the object of the conspiracy. 

Section 371 prohibits two or more persons from conspiring to 

commit any offense against the United States. Further, Section 

371 requires proof of an overt act, which Section 1349 does not. 

737 F.3d at 67. Nowlin has presented no persuasive argument as to why Njoku

and Jones do not foreclose her multiplicity arguments. Accordingly, we find no 

error in the district court’s refusal to dismiss the indictment. For the same 

reason, we reject Nowlin’s related argument that the district court erred in 

refusing to instruct the jury on multiplicitious conspiracies. 

V.

Nowlin also argues that the district court erred in using the term

“kickbacks” in its jury instruction related to count six. “We review a properly 

preserved challenge to a jury instruction for abuse of discretion and consider

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.” United States v. Montgomery, 747 F.3d 303, 

308 (5th Cir. 2014) (internal quotation marks and citation omitted). “But even 

if the jury instruction was erroneous, we will not reverse if, in light of the entire 

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record, the challenged instruction could not have affected the outcome of the 

case.” Id. (internal quotation marks and citation omitted). 

In its instructions to the jury, the district court explained that count six 

charged Nowlin with “conspiring to: knowingly and willfully offer or pay 

remuneration (including any kickback) directly or indirectly, overtly or 

covertly, in cash or in kind to induce the referral of an individual to a person 

for furnishing or arranging for the furnishing of any item or service for which 

payment may be made in whole or in part under the Medicare and Medicaid 

programs in violation of Title 42, U.S.C. § 1320a-7b(b)(2)(A); that is, to pay for 

Medicare and Medicaid patients.” In so doing, the district court largely tracked 

the language of the statute itself. See 42 U.S.C. § 1320a-7b(b)(2)(A) (“whoever 

knowingly and willfully solicits or receives any remuneration (including any 

kickback, bribe, or rebate) directly or indirectly, overtly or covertly, in cash or 

in kind . . . in return for referring an individual to a person for the furnishing 

or arranging for the furnishing of any item or service for which payment may 

be made in whole or in part under a Federal health care program . . . shall be 

guilty of a felony . . . .”). We perceive no error in the district court’s instruction 

and therefore reject Nowlin’s argument. 

VI.

Nowlin also argues that a prosecutor committed reversible error by 

improperly commenting on her failure to testify in violation of the Fifth 

Amendment. 

On the second day of trial, the Government called Daniel Castillo, who 

had previously worked as a Medicaid fraud investigator on the Yellabone 

investigation. During cross examination, defense counsel began to question 

Castillo about a 2006 report, which was prepared by another agent and which 

included details of a prior interview with Nowlin. Specifically, defense counsel 

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questioned Castillo regarding certain information contained in the report 

related to Nowlin’s answers about her educational and employment history. In 

response, the prosecutor made the following objection which is the focal point 

of Nowlin’s Fifth Amendment argument on appeal: 

Objection, Your Honor. My first objection would be to hearsay, in 

that the defense counsel is trying to get in statements of the 

defendant without presenting her as a witness through this report 

that Investigator Castillo never read—or, excuse me, read, but 

didn’t write. And, also, it’s not a direct statement of the defendant. 

Defense counsel immediately rephrased the question before the district court 

could rule upon the objection. Defense counsel then resumed questioning 

Castillo about Nowlin’s responses in the 2006 report. The prosecutor again 

objected as follows: “Your Honor, I renew my objection to the hearsay 

statements.” The district court overruled the objection and instructed defense 

counsel “to move on to something else.” 

On the following day of trial, prior to the jury entering the courtroom, 

defense counsel moved for a mistrial based on the prosecutor’s objection the 

day prior. Specifically, the following exchange occurred: 

Defense Counsel: In regard to the prosecutor’s objection yesterday, 

that I was attempting to put on my client’s testimony through the 

agent when she may not testify, that was an inadmissible 

statement by the prosecutor, in that it stepped on my client’s Sixth 

Amendment right to remain silent and we, therefore, object to that 

and move for a mistrial. 

The Court: All right. The motion for mistrial is denied. But I 

wouldn’t go into that anymore. 

Government: Certainly. Your Honor, can I bring up one other 

issue? I mean, we’ve had this issue repeatedly with [defense 

counsel] trying to get in statements of his client through various 

witnesses. You know, it’s not a statement of a party opponent as 

to his client and so we keep making that objection as to hearsay 

and it just keeps going on and on and on. And I don’t know if you 

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want us to keep making a hearsay objection or if we could maybe 

get a ruling or an admonishment not to do that anymore. 

The Court: Well, part of it—you can make your objection 

individually, and I will rule on each instance. Some of it may be 

admissible, some of it maybe not. I can’t make a blanket ruling 

until I understand the context in which the offer occur. 

Government: All right.

The Court: The motion for mistrial is denied. 

Defense counsel: And in that regard, Your Honor, while we think 

the hen is out of the henhouse and it’s reversible error, we still 

request the Court to again instruct the jury that my client has the 

right to remain silent all the way through trial and it’s not to be 

taken against her. 

The Court: I’ve instructed them two or three times already and I’ll 

instruct them at the end. If I mention it right now, it won’t serve 

any additional purpose that I can think of. 

On appeal, Nowlin contends that the district court erred in denying her motion 

for a mistrial based on the prosecutor’s comments. 

“The Fifth Amendment prohibits a prosecutor from commenting directly 

or indirectly on a defendant’s failure to testify in a criminal case.” United 

States v. Montoya-Ortiz, 7 F.3d 1171, 1178 (5th Cir. 1993) (internal quotation 

marks and citation omitted). “The test for determining if a constitutional 

violation has occurred is whether the language used was manifestly intended 

or was of such character that the jury would naturally and necessarily take it 

to be a comment on the failure of the accused to testify.” United States v. 

Rocha, 916 F.2d 219, 232 (5th Cir. 1990) (internal quotation marks and citation 

omitted). “The prosecutor’s intent is not manifest if there is some other, 

equally plausible explanation for the remark. Both inquiries are properly 

conducted by reviewing the challenged remarks in context.” United States v. 

Bohuchot, 625 F.3d 892, 901 (5th Cir. 2010). Further, because Nowlin failed 

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to timely object to the prosecutor’s remarks by waiting until the following day 

to move for a mistrial, we review her claim for plain error. Id. at 900. 

Applying this framework, Nowlin has failed to establish that the 

prosecutor’s comments violated her Fifth Amendment rights. Indeed, viewed 

“[i]n the context of the case,” the prosecutor’s statements were clearly intended 

to articulate a hearsay objection to defense counsel’s repeated questioning 

about Nowlin’s statements in the 2006 report. United States v. Grosz, 76 F.3d

1318, 1326 (5th Cir. 1996). In light of this “equally plausible explanation,” the 

prosecutor’s remarks did not constitute “constitutionally impermissible 

comments on [Nowlin’s] decision not to testify.” Id. Further, even assuming 

arguendo the prosecutor’s comments were improper, Nowlin cannot show that 

any error affected her substantial rights in light of the district court’s repeated 

instruction to the jury that she had the right not to testify. See Bohuchot, 625 

F.3d at 901 (finding prosecutor’s comments could not have affected defendant’s 

substantial rights where the “district court cautioned the jury through 

instructions that ‘no inference or conclusion may be drawn from a defendant’s 

decision not to testify’”). 

VII.

Nowlin claims that the district court erred in applying various 

sentencing enhancements. “[W]e review the district court’s factual findings for 

clear error and its interpretation of the Guidelines de novo.” Njoku, 737 F.3d 

at 75. 

A. Number of Victims

The district court enhanced Nowlin’s offense level by six points pursuant 

to U.S.S.G. § 2B1.1(b)(2)(C) because the offense involved 250 or more victims. 

According to Nowlin, the district court erred because the number of victims “is 

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either one (1), the United States Government, or no more than three (3), 

Medicare, Medicaid, and Social Security.” 

Under the Guidelines, a “victim” includes “any individual whose means 

of identification was used unlawfully or without authority.” See U.S.S.G. § 

2B1.1 cmt. n.4(E); United States v. Cardenas, 598 F. App’x 264, 267 (5th Cir. 

2015). “‘Means of identification’ are names and numbers such as social security 

numbers or dates of birth that are used to identify individuals.” United States 

v. Onenese, 542 F. App’x 427, 429 n.6 (5th Cir. 2013). 

In this case, the evidence at trial showed that Yellabone filed numerous 

false claims with Medicare and Medicaid that included beneficiaries’ names, 

dates of birth, and health insurance claim numbers (which generally 

corresponds to the beneficiary’s Social Security Number). At trial, the 

Government introduced evidence through HHS Special Agent Christine 

Finnegan that identified more than 250 beneficiaries whose information was 

used by Yellabone to file false claims. In light of this evidence, we conclude 

that the district court did not err in applying the six-level enhancement. See 

id. at 429-30. 

B. Aggravating Role

The district court also applied a four-level aggravating role enhancement 

pursuant to U.S.S.G. § 3B1.1(a), which applies “[i]f the defendant was an 

organizer or leader of a criminal activity that involved five or more participants 

or was otherwise extensive.” 

On appeal, Nowlin contends that the district court erred in applying this 

enhancement because there were less than five persons involved in the 

criminal activity and there was no evidence that any other Yellabone 

employees, besides Parnell, did anything criminal. However, contrary to 

Nowlin’s argument, the enhancement can apply even if the criminal activity 

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involved less than five participants, so long as the defendant was an organizer 

or leader of a criminal activity that “was otherwise extensive.” U.S.S.G. 

§ 3B1.1(a). “In assessing whether an organization is ‘otherwise extensive,’ all 

persons involved during the course of the entire offense are to be considered. 

Thus, a fraud that involved only three participants but used the unknowing 

services of many outsiders could be considered extensive.” U.S.S.G. § 3B1.1(a) 

cmt. n.3. 

Contrary to Nowlin’s arguments, overwhelming evidence showed that 

Nowlin exercised a leadership role at Yellabone as the exclusive owner of the 

company. Further, Parnell testified, inter alia, that Nowlin instructed her to 

bill for supplies that were never delivered and to forge delivery documents. In

addition to Parnell’s testimony showing that Nowlin closely monitored all 

aspects of the business, both Benford and Turner testified that Nowlin 

carefully oversaw the business by, for example, calling the office numerous 

times per day. Moreover, Turner described Parnell as Nowlin’s “flunky,” who 

did “[w]hatever Yolanda told her to do.” In sum, given the substantial evidence 

showing that Nowlin was a “leader” or “organizer” and that the criminal 

activity was “otherwise extensive,” the district court did not err in applying the 

enhancement. See Njoku, 737 F.3d at 77. 

C. Abuse of a Position of Trust

Nowlin also argues that the district court erred in applying a two-level 

enhancement for abusing a position of trust pursuant to U.S.S.G. § 3B1.3. 

Specifically, she argues that her position does not fall within the enhancement 

because it does not qualify as a position of “public or private trust” as 

contemplated by the Guidelines. See U.S.S.G. § 3B1.3. 

Section 3B1.3 permits a two-level enhancement “[i]f the defendant 

abused a position of public or private trust, or used a special skill, in a manner 

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that significantly facilitated the commission or concealment of the offense.” 

Contrary to Nowlin’s argument, this Guideline explicitly provides that “it may 

be employed in addition to an adjustment [for aggravating role]” so long as the 

enhancement is based on an abuse of trust rather than use of a special skill. 

Id. 

This court has previously rejected arguments similar to Nowlin’s and 

held that the owner of a DME company occupies a position of trust within the 

meaning of § 3B1.3. See United States v. Miller, 607 F.3d 144, 148-50 (5th Cir. 

2010). We likewise conclude that the district court did not err in applying that 

enhancement in Nowlin’s case.4 

VIII.

For these reasons, we AFFIRM Nowlin’s convictions and sentence. 

 

4 In her brief, Nowlin also argued that the district court erred in applying an 

obstruction of justice enhancement. However, at oral argument, Nowlin’s counsel expressly 

conceded that this argument was without merit because the district court actually refused to 

apply an obstruction of justice enhancement. 

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