IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-10519

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

IGNATIUS CHUKA OGBA; IFEANYI BONIFACE OBGA, also known as

IFFY OGBA; PATRICK DAVID ANTOON

Defendants-Appellants

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 3:04-CR-37-1

Before HIGGINBOTHAM, DAVIS, and SMITH, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Ignatius Chuka Ogba (“Chuck”) started a durable medical equipment

(“DME”) supply corporation for Medicare patients, and his brother, Ifeanyi Ogba

(“Iffy”) helped him run the business. They hired recruiters to find potential

recipients of wheelchairs and paid doctors, including Dr.Patrick Antoon,to refer

wheelchair recipients to their corporation. Antoon also charged Medicare for his

visits with potential wheelchair recipients. Chuck and Iffy represented to

Medicare thatthey had provided patients with high-end electric wheelchairs, but

at times they provided no equipment at all, provided lower-end equipment, or

took back the wheelchairs after delivering them to Medicare recipients. A jury

United States Court of Appeals

Fifth Circuit

F I L E D

April 24, 2008

Charles R. Fulbruge III

Clerk
No. 06-10519

1 Not all counts included all of the Defendants. Count One, Conspiracy to Commit

Health Care Fraud, Paying and Receiving Illegal Remuneration (Health Care Kickback) and

Illegal Monetary Transaction (Violation of 18 U.S.C. § 371 (18 U.S.C. § 1347 and 42 U.S.C. §§

1320a-7b(b)(2)(A) and 1320a-7b(b)(1)(A) and 18 U.S.C. § 1957(a)), charged all Defendants.

Counts Two through Twelve, Health Care Fraud (Violations of 18 U.S.C. §§ 1347 and 2),

charged all Defendants. Count Thirteen, Paying Illegal Remuneration (Violation of 42 U.S.C.

§1320a-7b(b)(2)(A)), charged Chuck. Count Fourteen, Paying Illegal Remuneration (Violation

of 42 U.S.C. §1320a-7b(b)(2)(A)), charged Iffy. Count Fifteen, Paying Illegal Remuneration and

Aiding and Abetting (Violations of 42 U.S.C. §1320a-7b(b)(2)(A) and 18 U.S.C. § 2), charged

Chuck. Count Sixteen, Receiving Illegal Remuneration (Violation of 42 U.S.C. § 1320a7b(b)(1)(A)), charged Antoon. Counts Seventeen and Eighteen, Engaging in Monetary

Transaction in Property Derived From Specified Unlawful Activity (Violations of 18 U.S.C. §

1957(a) and 2), charged Chuck. Counts Nineteen through Twenty-One (Violation of 18 U.S.C.

§ 1957(a) and 2) charged Iffy. Count Twenty-Two, Obstruction of Criminal Investigation of

Health Care Offense (Violation of 18 U.S.C. § 1518), charged Antoon. Count Twenty-Three,

Alteration or Falsification of Records in Federal Investigation (Violation of 18 U.S.C. § 1519)

charged Antoon. Count Twenty-Four, Endeavor to Influence a Grand Jury (Violation of 18

U.S.C. § 1503), charged Antoon. 

2

found Defendants guilty on all counts, which included health care fraud, paying

and receiving illegal kickbacks, engaging in monetary transactions with

illegally-obtained property, alteration or falsification of records, endeavoring to

influence a grand jury, and conspiracy to commit health care fraud, paying and

receiving illegal remuneration, and illegal monetary transaction.1 Defendants

all appealed.

I 

The jury could have concluded the following beyond a reasonable doubt.

Chuck and Iffy Ogba, with the help of doctors and recruiters, carried out a

scheme to profit from the regulations of Medicare. Medicare’s “Part B”

regulations allow Medicare to reimburse suppliers of certain types of DME, such

as wheelchairs, for the equipment that they provide to Medicare patients.

Chuck set up a corporation called Universal Health Services, Inc. (“Universal”),

an approved Medicare supplier located in Dallas, Texas. The brothers later set

up a second business, Apex Medical Services (“Apex”), to provide wheelchairs to

Medicare beneficiaries in Magnolia, Arkansas and the surrounding area. Apex

was not an approved independent supplier of DME so it submitted its claims for
No. 06-10519

2 At trial, the parties disputed whether doctors received payments for all referrals or

only for referrals of patients whose claims were not denied by Medicare. 

3 This form used to be called an HCFA 1500 (for the Healthcare Financing

Administration) and is still commonly referred to by its former name. The HCFA is now called

the Centers for Medicare and Medicaid Services (“CMS”). 

3

Medicare reimbursement through UHS. Iffy worked for both of Chuck’s

companies. 

The brothers hired Rhonda Lambert Smith and other recruiters to help

them sell wheelchairs. Smith sought out individuals who might need

wheelchairs, referring them to Dr. David Antoon in Magnolia and Dr. Lloyd

McGriff in Dallas, and other doctors. These referrals were made in order to

obtain certification that the patients needed expensive electric wheelchairs

called “K0011 power wheelchairs”(“K-11s”). The doctors in turn sent wheelchair

prescriptions to UHS/Apex. The brothers paid the doctors an average of $200 for

every referred patient for whom Medicare approved a wheelchair.2

Medicare required two forms from suppliers of chairs, a CMS3 1500 and

a Certificate of Medical Necessity (“CMN”). The CMS 1500 form requires

identification of the patient who will be receiving the equipment, the reason for

the patient’s receipt ofthe equipment, supplier identification, and identification

of the referring doctor. Doctors and suppliers prepare the CMN. This form has

four parts. Part A, filled out by the equipment supplier, contains identifying

information such as the patient’s name and address,the supplier’s identification

number, and the treating physician authorizing the equipment. Part B,

completed by the physician, describes the length of time during which the

patient will need the equipment, diagnosis codes describing why the patient

needs the equipment, the physical constraints of the patient demonstrating

wheelchair necessity, such as weak upper extremities and the inability to
No. 06-10519

4 The physical requirements are that the patient requires a wheelchair to move around,

has “quadriplegia” or similar serious maladies, has “severe weakness ofthe upper extremities”

due to a neurologic or other disease, and is “unable to operate any type of manual wheelchair.”

5 Specifically, the provision states, “I certify that I am the treating physician identified

in Section A of this form. I have received Sections A, B and C of the Certificate of Medical

Necessity (including charges for items ordered). Any statement on my letterhead attached

hereto, has been reviewed and signed by me. I certify that the medical necessity information

in Section B is true, accurate and complete, to the best of my knowledge, and I understand that

any falsification, omission, or concealment of material fact in that section may subject me to

civil or criminal liability.”

6 42 U.S.C. § 1320a-7b(b)(2) provides criminal penalties for “whoever 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--(A) 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 . . .”

4

operate manual wheelchairs,4 and the hours per day that the patient will spend

in the chair. Part C, completed by the supplier, describes the type of equipment

prescribed and its costs. Doctors signing the CMN verify in its Section D that

they have reviewed Parts A through C and the charges for the equipment

ordered for the patient, that all information is true, and that they will be subject

to criminal and civil liability for any falsification.5

Under the Ogba brothers’ plan, lasting from approximately 2002 through

2004, the brothers recruited patients and sent these patients to “company”

physicians who regularly sent wheelchair prescriptions to UHS/Apex. The

physicians signed off on Part D of the form before Part C was filled out, thus

“approving” equipment and charges for equipment not yet provided, and sent the

forms to UHS/Apex. UHS then sent equipment reimbursement requests to

Palmetto GBA, the Texas administrator of Medicare Part B that provided

reimbursement for wheelchair suppliers. The brothers received more than $4.8

million in Medicare reimbursement. 

In addition to paying for wheelchair prescriptions,6the Ogba brothers,

through UHS, entered false delivery dates on the form – typically the date ofthe
No. 06-10519

7 42 U.S.C. § 1320a-7b(b)(1) provides criminal penalties for “(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--(A) 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 . . .” 

5

wheelchair recipient’s visit to the doctor for a wheelchair prescription – and

requested reimbursement for wheelchairs before they were supplied. The

brothers added accessories to doctors’ prescriptions, and requested

reimbursement for 100% of the cost of the wheelchairs, violating a requirement

that patients pay 20% in coinsurance. Finally, although nearly all of UHS’s

reimbursement claims were for K-11 wheelchairs, the brothers often gave

patients less expensive equipment, such as scooters, or failed to deliver any

equipment. In some cases, they delivered equipment and then took it back,

claiming that it needed to be repaired. The brothers deposited their illegallyderived profits in several domestic and foreign bank accounts. 

Antoon, in signing the CMNs, falsely certified that he was patients’

treating doctor. By its section D, he certified that the equipment purchased, as

indicated in Section C, matched the equipment prescribed, whereas Section C

had not yet been completed. He charged Medicare for his visits with wheelchair

patients, and he received illegal payments from the Ogba brothers.7 He also

certified that patients needed K-11s when they did not need them. 

Antoon recorded his meetings with the wheelchair patients as

appointments in his computer system, only after he was subpoenaed by the

Grand Jury. He then told an employee to record the appointments in the

computer, back-date them, and prepare questionnaires and letters to fill in

wheelchair patients’ files. Antoon explained that he had ordered the filling in

of appointments in response to a request by the prosecutor that the entries be

reduced to an electronic format. 
No. 06-10519

8 Not all Defendants were included in all counts. See supra note 1. 

6

Recruiter Smith testified that she paid Antoon for each CMN that he

signed, but in other testimony stated that she did not reimburse Antoon for the

patients whose wheelchair claims were rejected by Medicare. The Government’s

evidence included a tape recording of one of these payment sessions. At trial,

Smith described the recording, indicating that she and Antoon were counting the

money for each patient whose prescription was fulfilled and deducting any

denied claims. Antoon testified that the payments were for time blocked out for

his office visits with potential wheelchair recipients, not for signing CMNs. He

also testified that Smith paid him for every CMN he signed, not just for CMNs

that resulted in Medicare approvals, urging that this shows that he did not

intend to receive illegal kickbacks. 

Recruiter Smith and Dr. McGriff entered into plea agreements and

testified for the Government. Dr. McGriff also signed a plea agreement and

testified. A jury convicted the Defendants8for healthcare fraud; paying and

receiving illegal remuneration and aiding and abetting; engaging in monetary

transactions with property derived from unlawful activity; obstruction of a

criminal investigation; alteration/falsification of documents; endeavor to

influence a Grand Jury; and conspiracy to commit health care fraud, paying and

receiving illegal remuneration (“health care kickback”), and illegal monetary

transaction. Antoon and the Ogba brothers appealed. We address Antoon’s

claims first, followed by the Ogba brothers’ claims. 

II 

Antoon alleges three errors with respect to Rhonda Smith’s testimony.

First, he argues that the court abused its discretion in refusing to provide

Defendants with a copy of the colloquy between Smith and the judge. Second,

he contests the court’s refusal to admit an e-mail about Smith into evidence.
No. 06-10519

9 Smith, in the colloquy with the judge, made several statements suggesting that she

was afraid of the prosecution. Near the beginning of the colloquy she said, “And I feel Bill

[McMurrey, one ofthe prosecutors]threatened me. . . . By telling them [the Office ofthe Public

Defender] that if I go to the [mental] hospital, that he was going to make sure I get a

competency examination compliments of the federal prison system.” Later she said, “If I said

something they [the Government] didn’t agree with, you know, I felt intimidated. . . . I just

7

Finally, he argues that the case should be reversed due to “cumulative errors”

regarding Smith’s testimony. Antoon’s attorney objected to the court’s rulings

that he challenges on appeal. 

Soon after her direct examination had begun, Smith asked to speak with

the judge in private. Smith provided the judge with an e-mail from a head

Federal Defender to an Assistant Federal Defender – an attorney working on

Smith’s case at the time. It indicated that the prosecution was concerned that

Rhonda’s sister wanted Rhonda to be in a mental institution and that Rhonda

was now claiming that she was not guilty despite having pled guilty. The e-mail

also indicated that the prosecutor “will see that she gets a competency exam

compliments of the fed. prison system if she checks herself in anywhere,”

suggesting that the Government would threaten Rhonda with more

recommended prison time if she checked into a mental institution. The response

stated,

She is a special case, that’s for sure. I wasn’t aware that she is now

claiming she’s not guilty. I talked with her very briefly this

afternoon . . . . She mentioned that she needed to go back into the

hospital. Her psych records from the 1970’s indicate that she was

feigning symptoms of schizophrenia in order to excuse her behavior.

. . .

In Smith’s colloquy with the court about the e-mail, she expressed various

concerns to the judge, suggesting that she was on drugs when she signed the

guilty plea, that she felt threatened by the prosecution, that her attorneys were

not competent, and thatthe Government’s practice cross-examination, where an

attorney asked questions that the Defense was likely to raise, scared her.9 The
No. 06-10519

would ask questions, like yesterday I asked Ms. Priest [one of the prosecutors] about

attorney/client privilege, and she told me that was a strong allegation and that why would you

want to have three people that is against you, and I need to choose my battles wisely.” She

again brought up the mental hospital issue, stating, “And he [Bill McMurrey] mentioned

something about having to get a competency examination. . . . after [I pled guilty].” The judge

asked, “So you thought you were going to be put in prison to get examined? That is the threat

that you took from that?” to which Smith responded, “Yes, sir. I took that they didn’t want me

taking my medication any longer.” She also said that “when being questioned Mr. McMurrey

[one of the Government’s attorneys] came in to pretend like he was the Defendants’ attorney

. . . and then he got to my mental health, and he said that he was telling me I don’t have a

problem. . . . When he was doing the questioning saying what the people might ask me, instead

of just saying, ‘Don’t tell them you got a mental health problem,’ you know, being direct about

it, it was just putting it in other ways and how for me to answer better.” Furthermore, she told

the judge that a week before trial, when she “was being kind of difficult” and claimed that she

had never seen the plea agreement, Agent Meadows told her, “‘Well, I hope you know you just

added three more years to your sentence.’” Finally, she stated that she was scared of what the

Defense would ask her based on the e-mail, “Like if I felt threatened or intimidated by the

Prosecution. . . . I felt that if I answered it and it was against the Prosecution, then that is not

helping.”

10 The judge explained to Smith that she had to testify truthfully, and that “[u]ltimately

the judge will make [the sentencing] decision.” The judge concluded,

It seems to me like you are still having a little bit of concern about being up here

testifying, so the only thing I want to advise you of, you have the right not to be

here. That is a decision you need to make, but you need to make it after talking

to your attorney and then make that decision. And you understand the

consequences, because I think you understand full well what is going on, and

that is you signed an agreement with the Government and they are expecting

some help from you. You gave them some help because you talked to them, and

that is part of the help they wanted, but I am sure part of the agreement was

also you come to court and testify. But you don’t have to go through with it if

you decide it is not in your best interest or you decide for some other reason you

don’t want to do that.

8

judge reminded Smith that she did not have to testify and asked her if she had

not wanted to enter a guilty plea when she did so.10

Smith stated that she did want to testify and that she had intended to plead

guilty. 

A court reporter took down the conversation. Antoon’s attorney requested

a copy of the transcript of the colloquy. The judge indicated that he wanted to
No. 06-10519

9

hear Smith’s testimony again before responding. The next day, the judge

concluded,

This [the colloquy] is not information that the Government has, so

I don’t think – You can cross examine her, but I don’t want you cross

examining her on what you [sic] she told me yesterday. It went to

a different issue and I don’t think it is anything that is proper for

you to inquire into. If I thought it was appropriate I would let you

have it, but it is not. 

The court overruled Ogba’s attorney’s complaintthatthe failure to provide

the colloquy to the parties violated “the right to confront and cross examine the

witness and effective assistance rule.” In refusing to admit the e-mail as

substantive evidence, the court questioned its relevance and found that it was

hearsay and work product. The judge stated, “you are trying to show she has a

motive to testify in favor of the Government. . . . you have already got that out

to the jury. . . . She told me she didn’t get this email until June. Obviously it

didn’t impact her plea of guilty at all. . . . Why she thinks she has to testify, that

is fair game [for cross examination] in terms of the Government.” When the

Defense again tried to introduce the e-mail as an exhibit, the court stated, “I

think it is hearsay and work product. I don’t know what makes it admissible

that takes it out of the hearsay context.” The judge also considered and

appeared to acceptthe Government’s argumentthatthe e-mail was protected by

the attorney-client privilege, a privilege that Antoon points out may not be

invoked by a third party, but it based its ruling on hearsay and lack of relevance.

Defendants argue thatthe e-mail is not hearsay because it was not offered

for the truth of the matter asserted, but rather “to show the jury what Ms. Smith

had seen, and to illustrate to the jury why Ms. Smith would have a motive to

please the government by testifying less than truthfully.” Although the e-mail

may not have been offered for the truth of the matter asserted, the court did not

abuse its discretion in finding thatthe e-mail was not relevant, as Smith saw the
No. 06-10519

11 Antoon cites United States v. Jackson, 978 F.2d 903, 909 (5th Cir. 1992) and its

holding that “ a defendant ordinarily has a right to exculpatory or impeachment material that

is contained in the presentence reports of his co-defendants.” The Government argues that

because the Government did not have possession of the colloquy, Brady does not apply.

Although Brady does not apply in the traditional sense because the Government did not have

possession of exculpatory information that it should have disclosed to the defense, Antoon is

correct in arguing that Jackson applied Brady to material in the court’s possession and held

that, for a presentence report, “the district court should examine the report in camera and

release any exculpatory or impeachment material to the defendant while protecting the

confidentiality of the rest of the report.” Id. Although the material in this case was of course

not a presentence report, it was information related to a co-defendant in the case. The court

examined the material in camera and concluded “I don’t think it is anything that is proper for

you to inquire into.” 

10

e-mail after she had signed her plea. Although seeing the e-mail might have

affected her motive to please the government, the court allowed the defense to

cross examine Rhonda about her reaction to seeing the e-mail and how the email affected her motive to testify, stating, “She already made her plea and

factual resume and that agreement was before this email, so whatever happened

there happened, and whatever has happened since then, whatever the motive

you can get into that, but this letter just doesn’t have anything to do with that

plea and being coerced back at that time.”

Antoon argues that we should review de novo the district court’s refusal

to provide the colloquy to the parties, as this was exculpatory Brady material,11

and review for an abuse of discretion the court’s refusal to admit the e-mail as

substantive evidence. Antoon likens Smith’s colloquy to a presentence report

containing exculpatory information, including Smith’s evidence that “[s]he had

a long history of mental illness,”“her guilty plea had been involuntary,”“she was

not guilty of healthcare fraud,” “[s]he only pleaded to escape immediate

incarceration,” [t]he prosecutors encouraged her to be untruthful about her

history of mental illness,” and “[t]he government would cause her sentence to

increase if she testified truthfully.” Even if on de novo review this information

were Brady material, the court did not err in refusing to provide it. As in
No. 06-10519

12 Jackson, 978 F.2d at 909. 

13 Id. 

14 When arguing for the admission of the e-mail, Antoon’s attorney stated, “[W]e think

it does explain her motivation for testifying that she is fearful of the Government, she is afraid

her own lawyer is selling her down the river . . .” Antoon’s attorney had identical information,

from the videotape, before trial and revealed this information on cross. On cross, Antoon’s

attorney asked Smith, “Now, toward the end of your conversation with Mr. Martin, did you .

. . express to him a concern that you were going to be arrested again and thrown in jail?” Yes.”

“And in fact that is exactly what happened to you, wasn’t it?” “Yes.” “I mean, you are in jail

right now, aren’t you, Ms. Smith?” “Yes.” “And at the end of the conservation [on the

videotape] did you express a concern, a fear about the fact that your lawyer you felt like was

selling you down the river, essentially?” and Smith responded, “Yes.” 

11

Jackson, the defendants “already had access”12 to information that was nearly

identical to the information in the colloquy and e-mail, and it said nothing of

Antoon’s culpability or motives; it was “favorable”13 to Antoon only because it

spoke to Smith’s credibility and her motivations to testify, all of which were

revealed on cross.

Antoon concedes that much of what Smith said to the judge in private

came out on cross examination, but he argues that a material portion of this

discussion was not revealed on cross: she was afraid that if she testified

truthfully, the government would increase her sentence. We cannot agree. The

key components of both the e-mail and the colloquy that were relevantto Smith’s

credibility as a witness and were potentially exculpatory, including her fear of

a higher sentence for failing to testify consistently with the Government’s

theory, were disclosed in her testimony before the jury. Furthermore, prior to

trial, the defense was aware of concerns nearly identical to those discussed in

the e-mail and the colloquy. As discussed below, the defense had a videotape of

a discussion that Smith had with her landlord, wherein she expressed concerns

that if she testified truthfully, her sentence would increase. The videotape also

had information that raised the same credibility issues as those allegedly

contained in the e-mail.14
No. 06-10519

12

On cross, the defense elicited Smith’s claims that she was not familiar

with the text of the factual resume that she signed, that the Government had

arrested her in a mental institution, that her attorney said that she had “no

choice butto plead guilty,” that she believed she was not guilty, and Smith’s fear

that if she testified inconsistently with the Government’s theory or indicated

that she feltthreatened by the Government,the Government would increase her

sentence. 

Ogba’s attorney asked Smith, “Now, you entered a plea agreement with

the Government in this case, and that was after they came and arrested you in

the mental health facility and brought you back in custody to Dallas. Is that

right?” She replied, “Yes.” Antoon’s attorney asked Smith, “So you met with the

Prosecution to discuss your testimony almost every day since you said the 2nd

of October, ma’am. Is that correct?” Smith responded that she did, and that she

met with them “[a]bout six hours each day. . . . For three, four times a week;

three – At least four at the most.” Antoon’s attorney then asked, “And so that

the jury clearly understands this, this is something that you had agreed to do as

part of your plea agreement with the Government. Correct? . . . Meeting with

the Government and cooperating with the Government was something that was

part of your plea agreement when you pled guilty. Correct?” to which Smith

responded in the affirmative. “And in fact, Ms. Smith, part of your plea bargain

with the Government was that if you cooperate with the Government, that they

may go to the judge and file a motion so that you can get less time in the

penitentiary. Correct?” “Yeah, that is what it says.” “And in fact, your

sentencing has been postponed so that your sentencing will occur after you

testify in this courtroom before this jury. Isn’t that correct?” Yes.” Antoon’s

attorney then asked, “So you agree to plead guilty, you agree to cooperate with

the Government, and the next day you are released from jail. Is that correct, Ms.

Smith?” “Honestly I cannot say I agreed to do anything. I did what I was told to
No. 06-10519

15 Emphasis added.

16 Emphasis added.

13

do.” “So the jury understands that, you did what you were told to do. Your

lawyer told you to plead guilty. Correct?” “Yes.” “And in fact, Ms. Smith, isn’t

that the only reason that you pled guilty?” “Yes.” “And in fact, isn’t it true that

you don’t believe you are guilty of these charges?” “Yes.” Later, Antoon’s

attorney asked Smith if she had told someone at church that Smith was “being

made to tell lies in a case that you were involved in as a witness.” Smith

responded that she hadn’t, but that she told the woman “that I was very

uncomfortable with the Government because I felt that I had been threatened.

I was refused to continue my mental health treatment as the judge had ordered

me to do.”15

Smith’s testimony about a videotaped conversation that she had with her

landlord also disclosed her belief that her attorney, “and his investigator, too,”

wanted her to testify “[t]hat I paid them [doctors that I worked with] money for

CMNs instead of appointments. They want me to testify that this was a scam,

and each person participated in it from the beginning willingly, knowing this

was a scam, and that way we was aiding and abetting each other to defraud the

government and pay me back my [sic] paying illegal kickbacks to the doctor.”

Smith acknowledged that she had responded affirmatively to her landlord’s

statement that “they got you to plead guilty and they said that they would be

easy on you if you would cooperate with them, and your attorney told them they

[sic] [you] had to tell them what they wanted to hear whether it was the truth or

not.”16 And finally, she acknowledged that she said, “[w]hen I was in jail and my

attorney came up there, I said, ‘That is what they told me to say. If you plead

guilty, you have to be willing to tell them everything they want to hear. You

cannot say, ‘Yeah, I paid the doctor money but I didn’t know it was illegal, or I
No. 06-10519

17 Emphasis added. 

14

paid the doctor for patient/doctor appointments and not CMNs.’ So basically

what they’re wanting me to say is I paid for CMNs and not appointments.”

Finally, she acknowledged that in response to her landlord’s question, “Bill

McMurrey was trying to get you to say stuff that you don’t think was the truth?

He wanted you to say it the way he wanted it rather than the way you wanted

to say it?” Smith stated, “This is what they did. They said, they kept

‘–something –’ [asking] me did Doctor Antoon get paid for every patient he saw

and I kept saying yes.” 

Ogba’s attorney asked similar questions of Smith. He asked, “And then

when you would do something or say something or communicate with your

attorney and have your attorney pass things on to the Government that maybe

didn’t go their way, was there a complete difference on how you were handled

and treated?,” to which Smith responded, “Yes.” “You would get locked up,

threatened, all sorts of things would happen to you when you didn’t do things the

way they wanted you to?” “Yes.”17

These trial events make plain that the court did not err in refusing to

disclose the contents of the colloquy to either party and did not abuse its

discretion in failing to admit the e-mail into substantive evidence. 

Antoon further argues that the court abused its discretion in permitting

the Government’s case agent Meadows to use a summary chart that showed a

conspiracy between Smith and Antoon. He argues that “the government

assumed that Rhonda Smith and Dr. Antoon had conspired together, when, in

fact, the testimony concerning this issue was at best contradictory.” We are not

persuaded.

[A]llowing the use of charts as “‘pedagogical’ devices intended to

present the government’s version of the case” is within the bounds

of the trial court’s discretion to control the presentation of evidence
No. 06-10519

18 United States v. Taylor, 210 F.3d 311, 315 (5th Cir. 2000). 

19 The instructions also made it clear that the jury had to find specific proof to convict

Antoon for conspiracy, stating, 

For you to find a defendant guilty of this crime [conspiracy], you must be

convinced that the government has proved each of the following beyond a

reasonable doubt: 

First: That the defendant and at least one other person made an agreement to

commit the crime of health care fraud, pay or receive remuneration to induce

patient referrals, or engage in illegal monetary transactions as charged in the

indictment;

Second: That the defendant knew the unlawful purpose of the agreement and

joined in it willfully, that is, with the intentto further the unlawful purpose; and

Third: That one of the conspirators during the existence of the conspiracy

knowingly committed at least one of the overt acts described in the indictment,

in order to accomplish some object or purpose of the conspiracy. . . . Mere

presence at the scene of an event, even with knowledge that a crime is being

committed, or the mere fact that certain persons may have associated with each

other, and may have assembled together and discussed common aims and

interests, does not necessarily establish proof of the existence of a conspiracy.

15

under Rule 611(a). Such demonstrative aids typically are

permissible to assist the jury in evaluating the evidence, provided

the jury is forewarned that the charts are not independent

evidence.18

The court in its general instructions to the jury explained that charts are not

evidence, stating,

Certain charts and summaries have been shown to you solely to

help explain the facts disclosed by the books, records, and other

documents which are evidence in this case. These charts and

summaries are not evidence or proof of any facts. You should

determine the facts from the evidence.19
No. 06-10519

20 Taylor, 210 F.3d at 315. 

21 Antoon also points to testimony that indicates an agreement but argues that “[o]n

cross-examination . . . Smith began to sing a different tune.” The existence of conflicting

testimony may weaken the strength ofthe evidence but does notindicate thatthe Government

failed to produce evidence of the underlying facts summarized in the chart. Furthermore, the

recording of Smith and Antoon’s payment session spoke for itself, although Smith’s description

of the recording of course influenced the jury’s interpretation of that meeting. 

16

Summary charts are properly admitted only if “they accurately reflect the

underlying records or testimony, particularly when they are based, in part, on

the government’s factual assumptions.”20

The Government’s “organizational chart” summarized, among other items,

the dates ofthe doctors’ involvementin the scheme, Antoon’s billing history, and

total amounts of money transferred between the co-defendants and the doctor.

It had dotted lines indicating agreements and money transfers between Antoon

and other co-defendants in the case. Meadows referred to the chart while

testifying, stating,

This line indicates money going directly from Chuck Ogba to Doctor

Antoon, as well as a handshake agreement . . . You have got the

dotted line represented from Iffy Ogba and Doctor Antoon, and that

represents basically the fact . . . the agreement that Doctor Antoon

had was an agreement with Apex Medical Services . . . . You have

got Rhonda Smith down here. . . . Rhonda Smith and Doctor Antoon

had an agreement. . . . And then you have got the money line where

Rhonda Smith paid money to Doctor Antoon.

The government presented sufficient underlying evidence to prove the

existence of an agreement between Antoon and Smith, including a recording of

Antoon and Smith discussing payments for signed CMNs, and Smith’s testimony

about a meeting with Chuck, Antoon, and Smith, where Smith asked how she

should pay Antoon and the parties agreed that she would pretend that the

payments were charitable contributions.21
No. 06-10519

22 Antoon’s attorney asked the agent, for example, “Now, after Doctor Antoon told you

that Rhonda Lambert had approached him at church and was trying to once again get him to

17

Attorneys’ questions relating to the chart and to the agent’s summary

testimony also tested the chart’s accuracy and made it clear that the chart was

a summary, not evidence. Iffy’s attorney on cross examination questioned the

validity of the agent’s conclusions as follows:

Q. Well, let’s talk about this . . . where you . . . have a handshake

agreement between Iffy and Doctor Antoon. . . . And you stated the

reason you did so is because Iffy owned Apex.

A. Yes, sir, and an understanding was reached between Doctor

Antoon and Apex.

Q. Well, you knew that the person who ran Apex was Rhonda

Lambert Smith? 

A. I knew she ran it for Chuck and Iffy.

* * * 

Q. You don’t have any evidence that Iffy even knew Doctor Antoon,

number one. Isn’t that true?

A. Iffy had an understanding with Dr. Antoon.

Q. Agent Meadows, did Iffy Ogba ever meet Doctor Antoon?

A. I believe he went down to meet with him on the first occasion, but

I don’t think that they ever met.

Q. Okay. . . . They never met, did they?

A. Not to my knowledge.

Antoon’s attorney did not question Meadows about the chart but

extensively cross-examined him on his conclusions about Antoon’s alleged

transactions and meetings with Smith and other of UHS’s recruiters.22 The jury
No. 06-10519

evaluate these patients, did he indicate to you that he agreed to see those patients?” “Yes, sir.”

“And did he tell you that he had to block off time to try to see the patients?” “Yes, sir.” “Do you

recall whether or not Doctor Antoon told you that he had insisted that Rhonda Lambert screen

these patients to make sure they had . . . a medical necessity for a power wheelchair?” “Yes,

sir.” 

23 See, e.g., United States v. Pryor, 483 F.3d 309, 312 (5th Cir. 2007) (“Confrontation

Clause objections that were properly raised at trial are reviewed de novo, subject to harmless

error analysis.” (quotations omitted)). 

18

instructions and the cross examination in this case made it clear that the chart

and the agent’s summary testimony were a summary and nothing more. The

court’s admission of the evidence was not an abuse of discretion. 

Antoon argues thatthe cumulative “errors” ofthe court’s failure to provide

the plea colloquy or admit the e-mail into evidence, as well as its admission of

a summary chart showing a conspiracy between Smith and Antoon, require

reversal. As we have found none of these to be errors, we are not persuaded. We

now move to the Confrontation Clause violation arising from Meadows’

testimony.

III

Antoon urges that the trial court abused its discretion in admitting Agent

Meadows’ hearsay evidence about statements that wheelchair recipients made

to him as a violation of the Confrontation Clause; he preserved his argument by

objecting at trial. The Government agrees that it violated the Confrontation

Clause, but argues that the violation was harmless error.23

In arguing that the error surpassed the “harmless” threshold, Antoon

alleges that “the significance of this error is compounded by the fact that Dr.

Antoon was, in effect, fighting with ‘both hands tied behind his back’” because

the trial was in Dallas, and he could not bring in sick and elderly patients from

Arkansas to testify that they needed the wheelchairs prescribed by Antoon. At

oral argument, Antoon’s attorney emphasized that the evidence was a core

component of the government’s case against Antoon, since the Government only
No. 06-10519

24 United States v. Bell, 367 F.3d 452, 468 (5th Cir. 2004) (quoting United States v.

Vejar-Urias, 165 F.3d 337, 340 (5th Cir. 1999)). 

19

presented two witnesses, out of a total of approximately 71 potential witnesses,

who testified that they could walk and had never owned a wheelchair yet had

received wheelchair prescriptions from Antoon. The Government argued in

response that Antoon’s prescription of medically unnecessary wheelchairs was

not the heart of its case, and that it brought in only two witnesses to testify

about Dr. Antoon because all ofthe counts in the indictment were based on those

witnesses. The core of its case, argued the Government, was that Antoon

received kickbacks for prescribing wheelchairs, and that the brothers paid him

only when his prescriptions were successful. The Government argued that the

fact that Antoon may have prescribed wheelchairs to patients who did not need

them was ancillary to its case and unnecessary for a conviction. 

We must “‘be convinced beyond a reasonable doubt that the error was

harmless in light of the other evidence presented at trial.’”24 The evidence that

Antoon prescribed electric wheelchairs to patients who didn’t need them

supported the fraud counts, but a jury could have convicted Antoon without it.

The core ofthe Government’s case was its argumentthat Antoon received illegal

kickbacks, and the strongest evidence supporting its case was Smith’s recording

of a payment session with Antoon. This is the beginning, not the end, of our

inquiry.

In its opening argument, the Government focused on Antoon’s and other

doctors’ receiving payments only for CMNs that resulted in wheelchair orders,

stating,

Now, the doctors knew that they weren’t supposed to be accepting

kickbacks, because, you see, if a doctor can submit a claim to

Medicare, they have to go through a process and paperwork where

they are specifically told, “Hey, here is what a kickback is and you

can’t accept it.” There is evidence that the doctors in this scheme,

Dr. Lloyd McGriff and Dr. Patrick Antoon, had seen those forms
No. 06-10519

20

because they couldn’t have gotten the Medicare number without it.

Nevertheless, they accepted cash kickbacks for the certificates of

medical necessity that they signed. . . . Let’s talk about what

happened if Medicare denied a claim. It might be that a Medicare

beneficiary had already received a wheelchair from another one of

those scams. What happened? . . . The doctor had to give his

kickback back to Chuck and Iffy. Because, you see, Chuck and Iffy

weren’t making any money if Medicare didn’t pay, so the doctors,

the recruiters, they all had to give their money back.

The Government also focused on the CMN kickbacks in close, arguing,

I want to talk a little bit now about healthcare fraud. . . . First and

foremost was the paying and receiving of illegal kickbacks that allowed

Medicare to have to pay for these fraudulent K-11 power wheelchairs. You

are going to hear that the kickback is an independent criminal offense. .

. . But it is also healthcare fraud. . . . Because Medicare would not have

paid outthese claims if it had known about the kickbacks or the payments

Doctor Antoon and Doctor McGriff were receiving. . . .You heard Rhonda

Smith testify that she paid Doctor Antoon cash in his private office with

no one else around. . . . Also, ladies and gentlemen, listen to the tape.

That is probably the best single piece of evidence the Government has to

show that Doctor Antoon was taking these cash payments for and only for

to induce referrals. . . . And it wasn’t for every single CMN and every

patient that was signed. It was a give and take process, . . . Pay the cash,

you pay for the CMN, and you deduct for those claims that Medicare did

not pay. 

That said, the Government also relied on evidence that Antoon signed off

on CMNs when wheelchairs were not medically necessary. As Antoon points

out, the Government argued in closing,

Most of the provisions here to [sic] crimes for which these

Defendants have been charged with involve knowingly and willfully.

Knowingly is just intentionally. It is not by mistake or accident. .

. . What intentionally means is basically to voluntarily and

purposefully with some sort of specific intent to commit fraud;

basically some act – doing something to disregard the law or to do

something the law forbids. An example, as I just gave you involving

Doctor Antoon–the lying, misrepresenting on the CMN saying these

patients needed wheelchairs when they really didn’t. Excuse me.
No. 06-10519

25 The Government also relied on the evidence of prescriptions of unnecessary

wheelchairs to support its requested deliberate ignorance instruction, although the court did

not accept this rationale for the instruction. See infra note 29. 

26 For example, Meadows testified, “Exhibit No. 159 is a photograph of Gloria Harrison.

She is a resident of Arkansas and I believe one of Doctor Antoon’s regular patients. I know he

was the prescribing physician for a K-11 power wheelchair. . . Medicare paid Universal Health

Services for a K-11 power wheelchair. She received a scooter.” The Government attorney

stated, “there appears to be some wrapping still on the piece of equipment.” Meadows replied,

“Yes, sir. It is the wrapping that the wheelchair is delivered in.” For Exhibit 162, Meadows

testified that Viola Brown made one visit to Antoon and received a prescription for a K-11,

which Medicare paid UHS for. He showed a picture of her with a scooter, and with a K-11 in

her closet. Meadows testified that Betty Henderson, who received a prescription for a K-11

from Antoon, was by his observation “ambulatory.” Exhibit 166 was another picture of a K-11

in its plastic wrapping in a storage shed. Meadows testified that Antoon prescribed the

wheelchair to Ethel Walker, and that he saw her walk “from her front porch over to her storage

building.” Exhibit 168 was a photograph of Cozetta Williams’ power scooter. Meadows

testified that Antoon had prescribed a K-11 for Williams, and responded “yes” to the question

of whether she appeared “to be ambulatory.” He testified that A.C. Grissom, for whom Antoon

prescribed a K-11, did not have a wheelchair ramp into his residence and that “[h]e was

ambulatory.” He also showed a picture of a dumbbell owned by Mr. Grissom and a photo of

Mr. Grissom’s K-11, with “plastic on it” and “some bedding stacked up on it.” He showed a

photo of Eugene Lee, another patient for whom Antoon prescribed a K-11, standing on the

steps by his home. He testified that the home had no wheelchair ramp and that “he was

ambulatory.” 

21

Not needing wheelchairs, but saying they used wheelchairs when

they really didn’t tell Doctor Antoon that.25

Two elements of the case persuade us beyond a reasonable doubt that the

Government’s Confrontation Clause violation was harmless error. First, even

for the portion of the case involving Antoon’s prescription of unnecessary

wheelchairs, the Government presented overwhelming non-hearsay evidence

that unnecessary prescriptions occurred. Meadows testified that he observed

twelve patients who did not appear to require a wheelchair but had received a

wheelchair prescription from Antoon, and he presented photographs of these

patients and their wheelchairs or scooters, several of which were still in their

plastic wrapping.26 Furthermore, the indictment counts against Antoon were

based on two patients, Lee Otis Burks and Floyd McGhee. McGhee verified on
No. 06-10519

27 Antoon argues that Smith lied, but Antoon’s attorney cross-examined Smith

thoroughly on Smith’s description of the recording and numerous factors that may have

affected Smith’s credibility; the jury had plenty of evidence from both sides to determine

Smith’s credibility and to weigh her testimony accordingly. 

22

direct that the questionnaire in Antoon’s patient file on McGhee indicated that

McGhee had told Antoon that he had used a wheelchair. McGhee stated on

redirect, “But I don’t use a wheelchair. I never have had a wheelchair – When

I went to him I had never sat in a wheelchair, less own one.” Lee Otis Burks

testified that when he goes to the store, “I drive my car or walk” and that he had

never used a wheelchair, manual or motorized. Antoon prescribed K-11’s for

Burks and McGhee. 

Second, the Government presented other non-hearsay evidence of

healthcare fraud, receipt of illegal payments, and intent to do both, which was

unrelated to Antoon’s prescribing electric wheelchairs for patients who were

ambulatory. The Government presented evidence that Antoon billed Medicare

for the visits where he prescribed wheelchairs, in addition to receiving money

from Universal. With respect to the payments Antoon received from Universal,

the Government played a recording of Smith counting out cash for Antoon,

where Smith explained that they counted the patients for whom $200 would be

paid and the CMNs for which Universal would not reimburse Antoon because

Medicare had denied the claims. Smith also testified that at a meeting with

Chuck and Antoon, after Antoon had refused to do business with Universal/Apex

but had agreed to start up again, she asked “How do I pay Dr. Antoon. . . . ‘I

asked . . . do I go to the office and pay at the front desk?’ And Doctor Antoon

kind of looked at Chuck, and Chuck said to go say it is a charitable donation or

something to that effect.” The Government attorney asked, “Okay. Now, this

bit about ‘here is your cash for charity,’ is that what you were supposed to say?”

Smith responded, “Yes.” “Would you do that when you went in to pay Doctor

Antoon?” “Several times.” 27 In light of the non-hearsay evidence presented at
No. 06-10519

28 See United States v. Nguyen, 493 F.3d 613, 619 (5th Cir. 2007). 

29 The court rejected the Government’s theory for the deliberate ignorance instruction.

The Government’s attorney argued that “there is a deliberate ignorance on Doctor Antoon’s

part that it is clearly obvious that these people didn’t need wheelchairs, but he is signing on

the prescriptions.” 

23

trial on health care fraud, we are convinced beyond a reasonable doubt that the

Confrontation Clause error was harmless. 

IV 

Antoon argues that the court erred in giving a deliberate ignorance

instruction to the jury. The instruction stated,

The government may prove that a defendant acted “knowingly” by

proving, beyond a reasonable doubt that a defendant deliberately

closed his eyes to what would otherwise have been obvious to him.

No one can avoid responsibility for a crime by deliberately ignoring

what is obvious. A finding beyond a reasonable doubt of an intent

of a defendant to avoid knowledge or enlightenment would permit

the jury to find knowledge. Stated another way, a person’s

knowledge of a particular fact may be shown from a deliberate or

intentional ignorance or deliberate or intentional blindness to the

existence of that fact. It is, of course, entirely up to you as to

whether you find any deliberate ignorance or deliberate closing of

the eyes and any inferences to be drawn from any such evidence.

You may not conclude that a defendant had knowledge, however,

from proof of a mistake, negligence, carelessness, or a belief in an

inaccurate proposition.

Antoon objected to the instruction, so we review for an abuse of

discretion.28 The court overruled the objection, finding that Antoon had a

“contract with Medicare that says you can’t collect anymore [sic] than your

deductible and your copay, and he collected.”29 “While a ‘deliberate ignorance’

instruction should rarely be given, a deliberate ignorance instruction is justified

where ‘the evidence shows (1) subjective awareness of a high probability of the
No. 06-10519

30 Nguyen, 493 F.3d at 619 (quoting United States v. Threadgill, 172 F.3d 357, 368 (5th

Cir. 1999)). 

31 Id. (quoting United States v. Lara-Velasquez, 919 F.2d 946, 952 (5th Cir. 1990)). 

32 Id. at 620. 

24

existence of illegal conduct and (2) purposeful contrivance to avoid learning of

the illegal conduct.’”30

To show subjective awareness,the Government must“‘present[] facts that

support an inference that the particular defendant subjectively knew his act to

be illegal.’”31“Suspicious and erratic behavior may be sufficient to infer

subjective awareness of illegal conduct.”32 The Government presented sufficient

evidence to show that Antoon knew that his behavior was illegal. For a time,

Antoon stopped working for the brothers. Rhonda testified that Antoon stopped

doing business with Apex in March 2003 because he “did not feel comfortable

doing business” with Apex. Chuck then met with Antoon and Rhonda, and

Antoon agreed to re-commence business. As we have discussed, Rhonda testified

that when she asked how she should pay Antoon, “Doctor Antoon kind of looked

at Chuck, and Chuck said to go say it is a charitable donation or something to

that effect.” Rhonda also explained that at the meeting, it was agreed that “[i]f

Doctor Antoon approved a patient for a motorized wheelchair, if Medicare

ultimately denied the claim,that he would be responsible for having that money

put back.” Rhonda testified that she paid Antoon on Thursdays and Fridays in

cash and picked up his CMNs when she paid him, and that “I would go in and

he would have the list of names, and he had the CMNs, and he would give those

to me, call out the names, count them, and then get paid.” 

Antoon argues that he thought the kickbacks for referrals were legal

because an attorney (Frances Crumpler) had advised him, and an administrative

court had agreed, that Antoon could refer Medicare patients to a clinic in which

he had an ownership interest; because he served a rural area, he was exempt
No. 06-10519

33 Id. at 619 (quotations omitted). 

34 Id. at 621. 

25

from certain Medicare regulations that prevented self-referrals. But Crumpler’s

advice related to Antoon’s referrals to a clinic, not to his activities with the Ogba

brothers. Crumpler testified that he gave Antoon general legal advice from timeto-time, but that he did not remember Antoon, in his legal questions,

“mentioning any of the parties that are here present today.” Crumpler never

informed Antoon that receiving Medicare payments for seeing patients to

prescribe a wheelchair and referring them to the Ogba brothers’ supply

company, or receiving payments from the Ogba brothers for signing CMNs, was

legal. 

Even if Crumpler had provided this advice, Antoon, in signing his provider

contract with Medicare, agreed that he could not collect “from the beneficiary or

other person or organization for covered services more than the applicable

deductible or coinsurance.” Evidence at trial showed that Antoon billed

Medicare for the visits where he signed CMNs. Diane Thornton, Antoon’s

insurance coordinator, testified that Antoon billed Medicare “[a]round $107

approximately” for most wheelchair patients. 

The Government also provided evidence to supportthe second prong ofthe

test for deliberate ignorance, a “purposeful contrivance to avoid learning of the

illegal conduct.”33 “Circumstantial evidence can be provided as evidence of

purposeful contrivance.”34 As the Government argues in its brief, the court

asked Crumpler, 

[W]as there ever any question, then, or seeking of advice from you

in terms of, “Yes, I am seeing these patients, and I am charging

them, and I am submitting that to Medicare; but besides that, I am

getting paid something from these recruiters or these DMEs. Can

I accept that money?” 
No. 06-10519

35 United States v. Lara-Velasquez, 919 F.2d 946, 951 (5th Cir. 1990). 

26

After several similar questions, Crumpler responded that Antoon had not asked

him this, stating, “Not in the specific context that we have discussed today, no,

sir.” Although Antoon claimed to have consulted with Crumpler regarding the

legality of his actions, he never told his attorney that he was getting kickbacks

for signing CMNs or billing Medicare for the CMN visits, or asked if these

activities were legal. Nor did he tell his insurance coordinator that he had an

agreement with a DME supplier or that he was receiving payments from the

supplier. Instead, the Government presented evidence that he recorded his

wheelchair visits in a notebook, which he provided to the coordinator only after

he was subpoenaed. 

Antoon argues thatthe instruction should not have been given on the basis

that Antoon prescribed unnecessary wheelchairs, or on the basis that he should

have known that he could not receive payments from Universal. The court, in

adopting the instruction at the charge conference, did not base adoption on

either of these theories but rather on the theory that Antoon knew that he could

not charge Medicare for visits with wheelchair patients but did so anyway. Even

if the instruction were based on the alternative theories of unnecessary

prescriptions or kickbacks from Universal, the Government showed sufficient

evidence of a “conscious action of the defendant”35 to disregard the truth. As we

have discussed, the forms that Antoon signed laid out the medical conditions

necessary for prescriptions of wheelchairs. One wheelchair recipient testified

that Antoon lied in his records and indicated that the recipient had previously

owned a wheelchair, and both recipients testified that they had never owned a

wheelchair;the form prohibits prescription of wheelchairs to patients who do not

“require and use a wheelchair to move around in their residences.” In signing

these forms and certifying their truth, Antoon would have had to deliberately
No. 06-10519

36 United States v. Dixon, 273 F.3d 636, 642 (5th Cir. 2001). 

27

ignore the requirements for prescribing a wheelchair. With respect to kickbacks

from UHS, the agreement that Antoon entered with Medicare indicated that he

could not receive payments, other than co-insurance or deductibles, for the

prescription of wheelchairs from an “other person or organization,” a category

that applies to Universal. As with the wheelchair prescriptions, in signing the

agreement, Antoon would have had to deliberately ignore the clear prohibition

against receiving payments other than co-insurance or deductibles. The

Government met its burden of showing Antoon’s subjective awareness of

illegality and a “purposeful contrivance” to avoid learning whether his conduct

was illegal. Ignorance of these texts shows a conscious effort to avoid the truth.

Finally, Antoon argues thatthe instructions might have confused the jury

and “likely gave the jury the erroneous impression that it was appropriate to

find Dr. Antoon guilty if he ‘should have known’ that he was precluded from

receiving the $200 paymentfrom the durable medical equipment provider.” The

instructions warned the jury against this type of finding, stating, “You may not

conclude that a defendant had knowledge, however, from proof of a mistake,

negligence, carelessness, or a belief in an inaccurate proposition.” Elsewhere,

in the illegal remuneration count, the instructions required that the “defendant

acted knowingly and willfully when he received . . . [the] remuneration.” The

court did not abuse its discretion in giving the deliberate ignorance instruction.

V

Antoon argues that his convictions under the health care fraud and illegal

remuneration statutes are multiplicitous. “A claim that convictions are

multiplicitous cannot be raised for the first time on appeal; such a claim must

be raised by motion before trial.”36 Antoon failed to object to the indictment as
No. 06-10519

37 Id. 

38 Whalen v. United States, 445 U.S. 684, 688 (1980) (quoting North Carolina v. Pearce,

395 U.S. 711, 717 (1969)). 

39 Id. at 688-89.

40 Hudson v. United States, 522 U.S. 93, 101 (1997).

41 Id. at 99 (quoting Helvering v. Mitchell, 303 U.S. 391, 399 (1938)).

42 Missouri v. Hunter, 459 U.S. 359, 367 (1983) (emphasis omitted) (quoting Albernaz

v. United States, 450 U.S. 333, 340 (1981)). We find no language in the statutes or their

legislative history suggesting an intent to allow conviction for illegal remuneration and health

care fraud based on a charge of illegal remuneration arising from one act. If anything, the

legislative history suggests that receipt of illegal remuneration is a subset of healthcare fraud,

as it appears under the section entitled “Application of Certain Health Antifraud and Abuse

Sanctions to Fraud and Abuse Against Federal Health Care Programs.” P.L. 104-191, 1996

H.R. 3103 at 1999. In the few federal appellate cases that have addressed convictions and

sentencing for health care fraud and illegal remuneration, the health care fraud was based on

charges other than illegal remuneration, including submission of Medicare and Medicaid

claims for services that were “not covered, not ordered by a physician, not provided by qualified

persons, and/or not provided at all,” United States v. Jackson, 220 Fed. Appx. 317, 322 (5th Cir.

2007) (unpublished), cert. denied, 128 S.Ct. 122 (2007); inflated cost reports, United States v.

Miles, 360 F.3d 472, 475 (5th Cir. 2004); United States v. Hamilton, 440 F.3d 693, 695 (5th Cir.

2006) (per curiam); and charging Medicare for unnecessary therapy, United States v. Goli, 69

Fed. Appx. 338, 338 (8th Cir. 2003) (unpublished). 

28

multiplicitous before trial and forfeited the claim. Antoon did not object to his

sentence as multiplicitous during sentencing, so we review for plain error.37

A challenge to multiplicity invokes the Double Jeopardy Cause, which

protects “‘against multiple punishments for the same offense,’”38 where Congress

has not authorized cumulative punishment for one offense.39 For double

jeopardy to attach, the “successive punishment at issue” must be a “‘criminal’

punishment,” as determined by the face ofthe statute,40 as “[t]he Clause protects

only against the imposition of multiple criminal punishments for the same

offense.”41

Where, as here, there is not a “clear indication” of legislative intent to

permit cumulative punishment for one offense under two separate statutes,42
No. 06-10519

43 Blockburger v. United States, 284 U.S. 299, 304 (1932) (citing Gavieres v. United

States, 220 U.S. 338, 342 (1911)). 

44 Hunter, 459 U.S. at 367 (quoting Albernaz, 450 U.S. at 340). 

29

and the punishments are criminal, we apply the Blockburger test. Under

Blockburger, 

where the same act or transaction constitutes a violation of two

distinct statutory provisions, the test to be applied to determine

whether there are two offenses or only one, is whether each

provision requires proof of a fact which the other does not.43

Blockburger is a “‘rule of statutory construction,’”44 so we must look to the

text ofthe statutes. The two statutes at issue address illegal remunerations and

health care fraud. 42 U.S.C. § 1320a-7b(b)(2)(A) provides criminal penalties for

(b) Illegal remunerations.

(1) 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--

(A) 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.

18 U.S.C. § 1347 (healthcare fraud) provides,

Whoever knowingly and willfully executes, or attempts 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, shall be fined under this title or

imprisoned not more than 10 years, or both.
No. 06-10519

45 See Blockburger, 284 U.S. at 304. 

46 220 U.S. at 342. 

47 Id. 

30

On their face, the statutes each require proof of an additional fact that the

other does not. Illegal remuneration does not require fraud or falsity; a

defendant could be honest about accepting illegal remunerations. Health care

fraud, on the other hand, requires fraud or falsity but does not require payment

in return for a referral. An individual could commit health care fraud in

numerous ways, as the Government argued at trial: receiving illegal kickbacks,

receiving payments from Medicare in addition to coinsurance and deductibles

after having agreed not to do so, prescribing wheelchairs that are not medically

necessary while certifying that they are necessary, and a doctor’s certification

that he is the patient’s regular provider, while in fact he has seen the patient

only once for a wheelchair prescription. In short, health care fraud requires

some type of deceit, while illegal remuneration does not. Illegal remuneration

requires kickbacks for referrals, whereas healthcare fraud, depending on how it

is charged, does not. 

But we may not stop here. Under Blockburger we must look to the proof

required for each necessary element of each offense in the case. In Gavieres v.

United States, the Court, applying the testlater adopted in Blockburger,

45 asked

not only whether each statute required proof of an additional fact that the other

did not, but also whether “the offenses charged [under the statute], and of which

a conviction has been had in the municipal court and in the Court of First

Instance, [were] identifical [sic],”46 looking to the “charge contained in the

record.”47 The Court followed a similar path in Whalen, where a defendant was

charged with rape and felony murder. The Government argued that the felony
No. 06-10519

48 445 U.S. at 694 (emphasis added). 

31

murder statute, on its face, did not necessarily require proof of rape: a murder

committed in the course of robbery, kidnapping, or arson, for example, is a felony

murder. As a result, the Government argued, conviction for rape required proof

of an additional fact not required for felony murder. The Court rejected this

argument, looking specifically to the necessary elements to be proved under the

statutes as charged and holding that,

Where the offense to be proved does not include proof of a rape -- for

example, where the offense is a killing in the perpetration of a

robbery -- the offense is of course different from the offense of rape

. . . . In the present case, however, proof of rape is a necessary

element of proof of the felony murder, and we are unpersuaded that

this case should be treated differently from other cases in which one

criminal offense requires proof of every element of another offense.48

Thus, if Antoon’s healthcare fraud conviction were based entirely on proof of his

receipt of kickbacks, which he did dishonestly, then a conviction for illegal

remuneration is a lesser included offense of healthcare fraud; building from the

illegal remuneration conviction, the only additional element necessary for the

health care fraud conviction is fraud or falsity. But if a jury convicted Antoon

for other types of fraud, unrelated to illegal remuneration, and the court

sentenced Antoon based on that conviction, there is no double jeopardy.

This case differs from Whalen because there, the Government did not

charge the defendant under multiple theories of felony murder, such as rape,

arson, and kidnapping. Its charges rested only on murder in the course of a

rape. But Whalen’s holding applies, as we will explain. The jury charge in the

present case included multiple theories of health care fraud, requiring the jury

to find beyond a reasonable doubt, in order to convict Antoon of health care

fraud,
No. 06-10519

49 Emphasis added. 

32

First: That . . . there was a scheme or artifice to either: a) defraud

a health care benefit program; or (b) obtain, based on false or

fraudulent pretenses, representations, or promises, money or

property under the custody or control of a health care benefit

program;

Second: That the defendants knowingly and willfully devised or

participated in the scheme or artifice with knowledge of its

fraudulent nature and with specific intent to defraud, or that the

defendant knowingly and intentionally aided and abetted others in

the scheme; and 

Third: That the scheme was conducted in connection with the

delivery of, or payment for, health care benefits, items, or services.

. . .

the indictment also alleges that the scheme to defraud Medicare or

to obtain money by false or fraudulent pretenses was committed by

one or more of the following methods:49

(a) paying or receiving illegal remuneration for the referrals of

prescriptions and orders of K0011 power wheelchairs for Medicare

beneficiaries;

(b) submitting claims to Medicare seeking reimbursement for the

expense of K0011 power wheelchairs and accessories that were

inappropriate, in that the power wheelchairs and/or accessories

were not medically necessary;

(c) submitting claims to Medicare seeking reimbursement for the

expense of K0011 power wheelchairs and accessories that were not

furnished or provided to Medicare beneficiaries;

(d) concealing the submission of fraudulent Medicare claims, the

receipt and transfer of fraudulently obtained proceeds; and 

(e) diverting the fraudulently obtained proceeds for their personal

use and benefit. Your determination as to which, if any, of these

methods the government has proved beyond a reasonable doubt

must be unanimous. That is, to reach a verdict of guilty all of you

must agree that the government has proved at least one of the
No. 06-10519

50 Emphasis added. 

33

methods alleged beyond a reasonable doubt as to each defendant.50

Count Sixteen of the jury charge – the receipt of illegal remuneration

count – required the jury to find, in order to convict Antoon, that the

Government had proved beyond a reasonable doubt,

First: The defendant received a remuneration (including any

kickback, bribe, or rebate), as described in the indictment;

Second: The defendant acted knowingly and willfully when he

received that remuneration; and 

Third: That one purpose of receiving the remuneration was to

induce the recipient to refer an individual for the furnishing or

arranging for the furnishing of any item or service for which

payment may be made in whole or part by a Federal health care

program.

If the jury unanimously agreed, under the health care fraud count, that the

Government had only proved part (a) of the charge (paying or receiving illegal

remunerations) for Antoon and not the other theories of health care fraud, then

Antoon’s sentencing, under a conviction for illegal remuneration and health care

fraud – illegal remuneration coupled with the specific intent to defraud –

violated the Double Jeopardy Clause. Illegal remuneration is a lesser included

offense of health care fraud that involves a charge of illegal remuneration

committed with a specific intent to defraud. Although part (a) of the health care

fraud count does not specify that, in order to pay or receive illegal remuneration,

the defendant must have acted knowingly and willfully, the fact that part (a)

uses the term “illegal remuneration” indicates that the defendant must have

received illegal remuneration as defined by the remainder of the charge, thus

including a requirement that the receipt of the remuneration was knowing and

willful and done with the purpose of inducing a recipient to refer an individual.
No. 06-10519

51 See, e.g., Griffin v. United States, 502 U.S. 46, 53 (1991) (“[W]here a provision of the

Constitution forbids conviction on a particular ground,the constitutional guarantee is violated

by a general verdict that may have rested on that ground.”); United States v. Verbitskaya, 406

F.3d 1324, 1332 (11th Cir. 2005) (“‘if the jury was instructed that it could rely on any of two

or more independent grounds, and one of those grounds is [legally] insufficient, because the

verdict may have rested exclusively on the insufficient ground’ reversal is required” (quoting

Zant v. Stephens, 462 U.S. 862, 881 (1983)). 

52 Concurrent sentences imposed for a conviction on the offense and the lesser offense

are a “cumulative punishment” that violates the double jeopardy clause. Rutledge v. United

States, 517 U.S. 292, 301-02 (1996). 

34

The jury communicated its verdict through a general verdict form; the

form does not indicate which of the health care fraud theories the jury

unanimously agreed upon. The Government has argued that kickbacks (illegal

remuneration) were the core of its case, and that its strongest evidence was the

recording of Antoon receiving kickbacks for signing CMNs. The jury may have

based its healthcare fraud verdict only on the illegal remuneration theory, and

no others. Without knowledge of the jury’s unanimous agreement as to which

portion of the health care fraud theory the Government proved beyond a

reasonable doubt, we cannot with the requisite certainty say that Antoon’s

sentence for health care fraud and illegal kickbacks did not violate the Double

Jeopardy Clause. Because a sentence based on a conviction on one theory of

healthcare fraud (illegal remuneration plus fraud) and a conviction for illegal

remuneration, violates the Double Jeopardy Clause, we need not consider the

other, non-multiplicitous theories of health care fraud underlying the general

verdict.51 Antoon’s sentence of 54 months in prison for healthcare fraud and 54

concurrent months for illegal remuneration is multiplicitous and constitutes

plain error.52 But our inquiry does not end here. An appellate court may not

correct an error that the defendant failed to raise in the district court unless

there is “‘(1) error, (2) that is plain, and (3) that affects substantial rights.’” “‘If

all three conditions are met an appellate court may then exercise its discretion
No. 06-10519

53 United States v. Hoover, 467 F.3d 496, 499 (5th Cir. 2006) (quoting United States v.

Cotton, 535 U.S. 625, 631-32 (2002)).

54 United States v. Villarreal, 253 F.3d 831, 837 (5th Cir. 2001). 

55 See United States v. Gricco, 277 F.3d 339, 351 (3d Cir. 2002) (“We find it unnecessary

in this case to decide whether the district court committed [Blockburger] error in entering

judgments of conviction and imposing sentences on both offenses. . . . The sentences imposed

. . . are concurrent . . . and thus . . . do not increase the length of their incarceration. The only

immediate practical effects of the concurrent sentences . . . are special assessments totaling

$700 for each defendant.”); United States v. Roberts, 262 F.3d 286, 292-94 (4th Cir. 2001)

(holding that “the Sentencing Guidelines stacking rules would have required the district court

to impose consecutive sentencesuponthese defendants that grossly exceeded,inthe aggregate,

the span of the concurrent life sentences that were actually imposed. . . . Roberts and

Covington have not met their burden of showing that the asserted error affected their

substantial rights”).

56 See United States v. Husain, No. 99-21151, 2000 WL 1901408, at *6 (5th Cir. Dec. 5,

2000) (unpublished) (finding that “assuming Husain has shown plain error, it does not appear

that he has shown that his substantial rights were violated in light of the fact that the district

court sentenced him to a term of seventy-one months on each of the five separate felony

convictions - all to run concurrently”).

57 See Ray v. United States, 481 U.S. 736, 737 (1987) (per curiam) (where “the District

Court imposed a $50 assessment on each count, in addition to the concurrent prison and parole

terms, for a total of $150,” the Court held that “[s]ince petitioner’s liability to pay this total

depends on the validity of each of his three convictions, the sentences are not concurrent”); see

35

to notice a forfeited error but only if (4) the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings.’”53

“A defendant’s substantial rights are affected if the error affected the

outcome of the trial court proceedings.”54 The district court included all of the

counts for which the jury convicted Antoon in rendering the 54-month sentence,

which included a $100 special assessment for each count. On remand, Antoon

will receive a different sentence – albeit for the same amount of prison time –

and a slightly lower assessment of fees. Two other circuits have taken a

different tact to error arising from concurrent sentences.55 We have suggested

the same in an unpublished opinion with different facts.56 But sentences with

special assessments imposed for individual counts are not in fact “concurrent,”

no matter how small the special assessments.57 Nor do we take lightly the
No. 06-10519

also Dixon, 273 F.3d at 641-42 (citing United States v. Soape, 169 F.3d 257, 266 n.4 (5th Cir.

1999) (where the district court imposed concurrent sentences and a $100 special assessment

for each count, the sentences were not concurrent). 

58 See, e.g., Benton v. Maryland, 395 U.S. 784, 790-91 (1969) (quoting Sibron v. New

York, 392 U.S. 40, 55 (1968)) (observing that the “concurrent sentence rule may have some

continuing validity as a rule of judicial convenience” but discussing the “‘the obvious fact of life

that most criminal convictions do in fact entail adverse collateral legal consequences,’” and

citing, among other examples, state sentencing enhancements based onprior concurrentfelony

convictions); United States v. Zalapa, 509 F.3d 1060, 1065 (9th Cir. 2007) (finding that

“multiplicious convictions and sentences carry with them significant potential for collateral

consequences” and affect substantial rights and the fairness or integrity of the proceedings).

Nor are the sentences technically concurrent. 

59 United States v. Fortenberry, 914 F.2d 671, 673 (5th Cir. 1990) (quoting United States

v. Graves, 669 F.2d 964, 971 (5th Cir.1982)).

36

collateral effects of sentences, whether concurrent or consecutive.58 More

importantly, the sentence violates double jeopardy. And multiplying offenses

from conductin violation ofthe prohibition of double jeopardy hands prosecutors

undue leverage in plea negotiation, frustrating evenhandedness in sentencing

and raising the price of trial for accused persons. Failing to remedy a clear

violation of a core constitutional principle would be error “so obvious that our

failure to notice it would seriously affect the fairness, integrity, or public

reputation of [the] judicial proceedings and result in a miscarriage of justice.”59

VI

We now turn to Iffy and Chuck’s arguments. The Ogba brothers argue

that the indictment is void because “the Constitution for the United States does

not authorize the Executive . . . to prosecute any . . . offense which is alleged to

be criminal unless the said Act is found in the [e]numerations of the

constitution.” They failed to raise this objection before or during trial but only

objected to the indictment on the grounds of vagueness and multiplicity, claims

that they do not raise here, so plain error review applies. The superseding

indictment charged the brothers under 18 U.S.C. § 1347 for healthcare fraud; 42
No. 06-10519

60 United States v. Hickman, 331 F.3d 439, 443 (5th Cir. 2003). 

61 Summit Health v. Pinhas, 500 U.S. 322, 327 (1991). 

62 See United States v. Lopez, 514 U.S. 549 (1995). 

37

U.S.C. § 1320a-7b(b)(2)(A)) for illegal remuneration/money laundering; and for

conspiracy to violate both statutes.

We have held that “it cannot seriously be contended that . . . [Medicare

and Medicaid] do not affect commerce.”60 The provision of medical services

“affects interstate commerce because both physicians and hospitals serve

nonresident patients and receive reimbursement through Medicare payments,”61

and the regulated activity in this case substantially affects commerce62 and is

linked to interstate commerce. 

The indictment alleged that Medicare “was administered by the Centers

for Medicare and Medicaid Services, . . . an agency of the United States

Department of Health and Human Services,” and that 

[i]n Texas, Medicare Part B was administered by Palmetto GBA,

which entered into a contract with the United States Department of

Health and Human Services and HCFA [the “Health Care

Financing Administration”] to serve as the entity . . . that received,

processed, and paid Medicare claims for DME, including, but not

limited to, those relating to power wheelchairs and accessories. 

The indictment also alleged that “Universal directed all Medicare

reimbursement payments to be mailed to . . . Dallas, Texas,” that Antoon

“practiced medicine . . . in Magnolia, Arkansas,” and that Chuck Ogba caused

funds to be transferred to El Dorado, Arkansas, to pay Antoon. These activities

all related to the fraudulent conduct charged under the health care fraud

statute, as the Government alleged that Defendants illegally requested

reimbursement from Palmetto for improper prescriptions, for equipment that

they did not deliver, and for “concealing the submission of fraudulent Medicare
No. 06-10519

63 United States v. Meshack, 225 F.3d 556, 572 (5th Cir. 2000) (finding that money

laundering has a substantial effect on interstate commerce). 

38

claims,” among others. The evidence presented at trial supported these

allegations, showing the movement of money, prescriptions for wheelchairs,

recruiters, and requests for reimbursement across state lines. Although

Universal operated out of Texas and sent reimbursement requests to Palmetto,

a Texas branch of a federal agency, some prescriptions for wheelchairs were

faxed from Arkansas to Texas, and Chuck wired some ofthe funds to pay Antoon

and Arkansas recruiters from Texas to Arkansas. Furthermore, Chuck traveled

to Arkansas to convince Antoon to re-commence work for the brothers. One

brother testified that he traveled to Arkansas “three or four” times to manage

the business. 

The illegal remuneration statute, like the money laundering statute,

“regulates conduct that, in the aggregate, has a substantial effect on interstate

commerce”63 and is linked to interstate commerce. The nexus between the

activity regulated and interstate commerce arises because the money illegally

obtained was allegedly the product of interstate transactions and oftransferring

money between states to pay Antoon, recruiters, and other doctors. As we have

discussed, these activities involved sending reimbursement claims and CMNs

between Arkansas and Texas to a government agency in Texas that contracts

with the federal Centers for Medicare and Medicaid Services, formerly the

Health Care Financing Administration. Congress had the power to enact the

Health Care Fraud and Illegal Remuneration statutes under the Commerce

Clause ofthe Constitution, and offenses charged under these statutes do not fall

outside of Congress’s constitutionally-granted powers. 

VII

The brothers moved to dismiss the indictment“for failure to state a federal

offense [and] for lack of federal jurisdiction.” The brothers now argue that the
No. 06-10519

39

district court erred by continuing to hear the case despite this motion, alleging

that the court “had a duty to stop all court proceedings, upon the challenge of

Constitutional Jurisdiction” but failed to do so. They also argue that the judge

had a “duty ‘to show and prove that the offenses alleged to have been committed

were 1) secured, 2) protected, or 3) prohibited, by the enumeration found in the

United States Constitution.” In sum, defendants reassert their argument that

the indictment failed to allege an offense enumerated in the Constitution. They

expand this argument by concluding that the judge lacked jurisdiction to hear

the case. 

As we have discussed, the health care fraud and illegal remuneration

statutes fall well within Congress’s powers under the Commerce Clause, and the

indictment alleged criminal violations of federal statutes. The district court had

jurisdiction to hear the case.

VIII

Three ofthe district court’s amended pretrial orders set dates for the filing

of pretrial materials and threatened penalties for the failure to timely file,

stating, “SANCTIONS will be imposed if these pretrial requirements are not

met. If the Government does not timely file the pretrial material, the case will

be dismissed.” The Ogba brothers argue that the Government failed to submit

its pretrial materials in time, and that “it is undisputable that the case was

dismissed by Order of the Court.” The brothers do not point to an order

dismissing the case, as none existed; they argue that since the amended pretrial

scheduling orders threatened dismissal for untimely filing, the Government’s

untimely filing led to automatic dismissal of the case and that the “Appellants

have been acquitted by three [pretrial scheduling] Orders” of the court. To the

contrary, the brothers filed motions to dismiss the case on the grounds that the
No. 06-10519

64 Minute Order, Motion Hearing and Pretrial Conference (Apr. 5, 2005). 

65 See Neeley v. Bankers Trust Co., 757 F.2d 621, 630 (5th Cir. 1985)). The Ogba

brothers make no mention of any pre-trial motion regarding multiplicity in their brief, nor do

they adopt any of Antoon’s arguments. 

40

Government failed to comply with the amended pretrial order, and the court

denied those motions.64

The district court did not dismiss the case. 

IX

The brothers, in their pro se appeal, failto raise the multiplicity argument

and have therefore abandoned it.65In light of our multiplicity finding for

Antoon’s sentence, this is an unfortunate result but one that we must abide by.

We therefore AFFIRM in part and REVERSE in part, remanding to the

district court for resentencing in light of this opinion.