United States Court of Appeals

for the Fifth Circuit

No. 19-20797

United States of America, 

Plaintiff—Appellee,

versus

Dayakar Moparty; Harcharan Singh Narang, 

Defendants—Appellants.

Appeal from the United States District Court 

for the Southern District of Texas

USDC 4:17-CR-290-3

Before Jones, Southwick, and Costa, Circuit Judges.

Edith H. Jones, Circuit Judge:

Dr. Harcharan Singh Narang and Dayakar Moparty were convicted of 

health care fraud, conspiracy to commit health care fraud, and money 

laundering. They both assert alleged errors in the trial and sentencing. 

Moparty further challenges the sufficiency of the evidence supporting his

convictions. Some inexcusable trial errors were committed or permitted by 

the government, which counsel on appeal explained as the reason for an 

incredibly long (132-page) appellate brief: the government wanted to make 

abundantly clear that the errors were “harmless.” Nonetheless, we 

AFFIRM.

United States Court of Appeals

Fifth Circuit

FILED

August 23, 2021

Lyle W. Cayce

Clerk

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I. BACKGROUND

This direct criminal appeal stems from various federal health care 

fraud convictions. On May 17, 2017, a grand jury indicted Narang, 

Dr. Gurnaib Singh Sidhu, and Moparty on one count of Conspiracy to 

Commit Health Care Fraud in violation of 18 U.S.C. § 1349 and seventeen 

counts of Health Care Fraud in violation of 18 U.S.C. § 1347. It further 

indicted Narang and Moparty on three counts of Engaging in Monetary 

Transactions in Property Derived from Specified Unlawful Activity in 

violation of 18 U.S.C. § 1957.

Narang is an internist who practiced at his self-owned clinic, North 

Cypress Clinical Associates, P.A. (“North Cypress”) in Cypress, Texas. 

Sidhu also practiced as an internist and was employed by Narang, primarily 

at the second North Cypress office.1

 Moparty co-owned Red Oak Hospital 

(“ROH”) and served as an administrator for Spring Klein Surgical Hospital 

DBA Trinity Health Network (“Trinity” or “Spring Klein”). Trinity 

provided staffing and administrative services to a number of health care 

entities including Cleveland Regional Medical Center (“CRMC”), 2920 ER, 

2920 Open MRI Digital Imaging, ROH, and Cleveland Imaging and Surgical 

Hospital DBA Doctor’s Diagnostic Hospital (“DDH”).

The indictment alleged that Narang, Sidhu, and Moparty conspired 

to and executed a scheme where Narang and Sidhu ordered unnecessary 

medical tests for patients and then authorized Moparty to bill for these tests 

through ROH at the higher hospital rate even though these patients were 

seen and treated at Narang’s North Cypress office. Further, when insurers 

denied claims originating from ROH, Moparty would resubmit them from 

1 Sidhu is not a party to this appeal. He entered into a plea agreement with the 

government prior to trial and later succumbed to cancer.

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another entity associated with Trinity. The indictment alleged that this 

scheme resulted in fraudulent billing of over $20 million to Blue Cross Blue 

Shield, Aetna, and Cigna. Those companies paid Moparty at least $3.2 

million in reimbursement for those claims which he allegedly split with 

Narang through a series of financial transactions.

An eight-day jury trial began on February 11, 2019.

A. The Government’s Case-in-Chief

At trial, the government introduced extensive testimony to 

demonstrate how the scheme operated. As the government describes, the 

scheme had three key parts: (1) a patient intake and testing component; (2) a 

billing component; and (3) a financial distribution component.

1. Patient Testing

In 2013, Forever Fit Wellness Center, PLLC (“Forever Fit”), a 

“medi-spa”—owned by Narang’s wife Ranjit Kaur—that shared office 

space with North Cypress, began offering coupons for “Lipotropix weightloss shots” on Groupon. The coupon offered weekly injections but required 

the purchaser to perform a 30-minute consultation with a medical 

professional prior to beginning the regimen. At trial, four women who 

purchased these coupons and Rikesha Burton, Narang’s former medical 

assistant, testified about the process. Upon arrival at Forever Fit, the 

patients were asked to fill out medical and personal history forms. After 

completing these forms and undergoing a vitals check, the patients were seen 

by Narang. During the consultation, Narang would ask wide-ranging 

questions related to dizziness, headaches, backaches, or other generic 

ailments. Even though these women indicated they were in relatively good 

health and that the weight loss shot was the primary reason for the visit, 

Narang’s open-ended questioning elicited affirmative answers from the 

patients.

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Narang then persuaded the patients to undergo brief testing at North 

Cypress and explained that their insurance would cover any costs and they 

would not pay anything.2 Narang would then typically order cardiac and/or 

abdominal ultrasounds, ENGs, nerve conduction tests, electromyography 

tests, allergy tests, and artery and/or vein doppler tests. Approximately 80–

90% of Groupon patients with insurance received this battery of additional 

tests—all patients getting the injections were required to have an EKG 

performed. Burton testified that she and other medical assistants sometimes 

warned Groupon patients that they were not obligated to undergo additional 

testing. Burton also testified she was later reprimanded for doing this. After 

Narang ordered the tests, the testing orders were typically approved under

Sidhu’s name although he did not see the patients. The tests were then 

performed at the North Cypress location.

This same pattern also occurred with patients who visited Narang for 

medical treatment unrelated to the Groupon injections. One patient in acute 

pain sought medication for an ulcer. She saw Narang and received an 

echocardiogram and nerve conduction velocity test despite a lack of 

underlying symptoms that would warrant those tests.

The government presented four expert witnesses who testified 

regarding the medical necessity of the testing ordered by Narang. First, 

Dr. Richard Gans, a vestibular and balance disorder specialist, reviewed a 

sample of 29 patient files. He found that key data were often missing, such 

as calibrations results and the actual test recordings, rendering the test results 

useless.

Second, Dr. Rubina Wahid, an allergy and immunology specialist, 

examined 33 patient charts and found no conclusive indicators that would 

2 Patients without insurance were not encouraged to do any additional testing.

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warrant allergy testing. Further, Dr. Wahid noted that tests had been 

improperly performed and recorded, and the files were missing detailed 

patient histories, assessments, plans, discussions of results, and follow-ups. 

Finally, Dr. Wahid testified that the patients presenting for weight loss 

injections were documented to have a variety of maladies and received a 

“battery of tests.”

Next, Dr. Peter Grant, an internist with an expertise in 

electrodiagnostic medicine, reviewed tests for 68 patients and determined 

that 83–94% of the tests were not medically necessary. Further, Dr. Grant 

found the tests were “fraught with errors and inaccuracies” and 

approximately 80% of the tests were “worthless.”

Finally, Dr. Michael Bungo, a cardiologist, reviewed 40 patient files. 

The majority of the files he reviewed were 30–68-year-old females with low 

statistical probability of cardiovascular disease. He disparaged the idea that 

many patients would exhibit the very same array of symptoms3 as “so 

medically improbable that it bordered on impossible” and that he didn’t 

“have 40 people in thousands of patients that all present with the 

constellation of symptoms that are identical.” Further, Dr. Bungo observed 

that analysis of the patients by Narang was lacking, appropriate tests were not 

ordered, doctor’s notes were missing or contradictory when present, and 

testing was unrelated to patient symptoms.

Additionally, the government called Dr. Aditya Samal, a boardcertified cardiologist, as a fact witness. Narang had hired Dr. Samal to read 

echocardiograms and vascular studies. Narang sent Samal approximately 

800 studies in one year, a number that Samal noted was unusually high. 

3 Symptoms included chest pain, swelling of the ankles, dizziness, runny nose, calf 

cramping, and palpitations.

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Further, Dr. Samal explained that the quality of the tests fell below 

appropriate medical standards—some had been done months earlier and 

most were medically unnecessary based on the patient’s symptoms, age, and 

sex. This reflected a pattern of “low quality, inappropriate studies” and 

caused Samal to end the arrangement.

2. Billing Practices

The crux of the government’s argument was that Narang and 

Moparty executed a “pass-through billing scheme” where services are 

rendered at one location, but the bills are submitted from a different place at 

a higher rate. Central to this theory was the testimony of Keon Warren, 

Moparty’s billing director.4 Warren testified that in 2012 he met with 

Moparty, Narang, and Kaur—Moparty explained that they were going to be 

billing for Narang’s office which would function as “an extension of the 

hospital, part of the HOPD [hospital outpatient department].” Pursuant to 

this arrangement, Warren “would get directions . . . as to what we were going 

to bill” and “receive the emails, what’s going to be on them, what we’re 

going to be billed, and so forth.” These emails included the patients’ 

demographics, their forms and signatures, insurance information, tests, and 

billing codes—all the information needed to generate the bills. Warren would 

then prepare the claims to bill the patients’ insurance companies.

Moparty was copied on these emails and provided Warren instruction. 

Initially, the tests were billed through DDH, beginning during the summer of 

2012. Then in late 2012, billing shifted over to 2920 ER (or Trinity 

Healthcare as it was also known) after it received a freestanding emergency 

center license. Finally, in March 2013 billing shifted again to ROH. Moparty 

4 Warren’s signature line indicates that he worked for Trinity Healthcare, ROH, 

and 2920 ER LLC.

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informed Warren that Narang’s office was going to be an extension of ROH 

and showed him an email representing this. Thereafter, all billing flowed 

through ROH. Warren would generate billing amounts based off the 

Medicare rates and “what [he] knew about markup.” These were all billed 

at a hospital rate.

Occasionally, insurance companies would deny ROH claims. When 

this occurred, Warren would consult Moparty and then rebill the claim 

through CRMC. On one occasion, after the rebilled claim was rejected again, 

Moparty instructed Warren to submit it a third time through 2920 MRI. This 

practice of “rebilling” started happening in 2013 when initial billing was 

shifted to ROH.

After receiving a claim from ROH or similar entity, the insurance 

companies typically prepare an explanation of benefits (“EOB”) for the 

patient which details the services received, the entity that performed them, 

and the amount billed to the insurance company. Upon receiving EOBs after 

visits to North Cypress, patients saw exorbitant prices billed from entities 

they had no recollection visiting. One patient’s EOB reflected thousands of 

dollars of billing from CRMC and ROH, but the patient had no knowledge of 

those entities’ involvement. That patient was certain that no paperwork had 

indicated ROH and there was nothing at the North Cypress office to 

demonstrate affiliation with ROH or CRMC. Other patients also expressed 

surprise at seeing Sidhu’s name listed on their EOB after only seeing Narang. 

The patients uniformly discovered that their insurance companies had been 

billed for tests they never received, and their medical files noted symptoms 

they denied having.

Three fact witnesses representing the major insurance companies

testified for the government. These individuals provided context on general 

insurance billing practices. Generally, when a physician submits a claim, the 

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location of the place of service must be disclosed. However, when a facility, 

such as ROH, submits a claim, a different form is used which does not 

indicate the location—that information would only be available if the 

insurance company requested the patient files. These witnesses testified that 

their respective insurance companies would not pay claims that erroneously 

indicated that they were performed at a hospital or were medically 

unnecessary. The amount the insurance company will pay for a given service 

is typically dependent on who provided it, where it was provided, and 

whether the provider is inside or outside of the company’s provider network. 

Though Narang and North Cypress were in-network for these insurers, ROH 

was not. This resulted in drastically higher billing rates.

For example, on one set of claims, ROH was eligible to receive 

$34,359.50 compared to $3164.32 that Narang could have submitted under 

his network agreement. Similarly, another patient’s claims were billed at 

nearly $37,000 compared to the Narang’s rate of $1400. By billing these 

claims through ROH, rates were inflated up to 25x higher than if Narang had 

billed directly for the tests. One patient’s hour-long visit to Narang resulted 

in a bill of $800,000 from ROH to Blue Cross Blue Shield.5

 In total, ROH 

and other Moparty entities6 billed over $20 million to Aetna, Cigna, and Blue 

Cross Blue Shield and received approximately $3.2 million.

3. Financial Distribution

The final aspect of the schemewas described byAgent Lammons, who 

had 14 years of experience investigating health care fraud. Lammons testified 

that the insurance and billing records corroborated the pass-through billing 

5 ROH later claimed that a “billing error” was the cause.

6 These entities included: CRMC, ROH, 2920 MRI, DDH, 2920 ER, and Spring 

Klein/Trinity.

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testimony of the other witnesses. Similarly, the data reflected instances of 

“rebilling” as described by Warren. Lammons explained that the common 

thread through this scheme was Moparty’s ownership in these various 

entities.7

 Money that flowed in from Moparty’s various entities ended up 

with Trinity. Lammons described it as “an account that collects money from 

all sorts of places”—a shell company. From there, money was transferred to 

a series of entities related to Narang and his wife. Roughly 85% of the money 

received by ROH for Narang’s patients was represented in payments from 

Trinity to those entities.

Kathleen Anderson, an FBI forensic accountant, testified and 

explained how specific sums of money moved through the accounts from 

Moparty’s entities to those controlled by Narang and Kaur. Anderson 

specifically traced the transactions related to the three money laundering 

counts: funds moved from 2920 ER and Cleveland Imaging through Spring 

Klein to an LLC owned by Narang (Count 19); funds moved from 2920 ER 

through Spring Klein to a corporation owned by Narang (Count 20); and 

funds moved from 2920 ER through Spring Klein to another LLC owned by 

Narang (Count 21).

At the close of the government’s case, both defendants moved for 

judgments of acquittal. Further, they both moved for mistrials based on two 

references to Sidhu’s guilty plea. The district court denied the motion for 

acquittal but took the motion for mistrial under advisement.

7 Moparty did not own DDH but “he exerted a lot of control in the operation of 

that facility” and DDH had paid Moparty over $17 million between 2011 and 2012. 

Lammons testified, supported by documentary evidence, that Moparty did have ownership 

interests in CRMC, ROH, 2920 MRI, 2920 ER, and Spring Klein/Trinity.

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B. Defense Case

For his defense, Narang called four witnesses. First, Sean Coffey, a 

medical equipment distributor, rebutted testimony by Dr. Gans that Narang 

lacked sufficient equipment to perform certain tests. Second, Kershaw 

Kumbatta, a certified public account, testified that it was good business 

practice to have separate accounts associated with different business entities 

and he had advised Narang and Kaur to set up different accounts for their 

various entities. Next, Narang called his long-time medical technician 

Edward Castillo. Castillo testified that North Cypress had a sign about “Red 

Oak or Trinity” and that “we’re working together.” He thought the 

arrangement lasted six months and the sign was present most of that time. 

He further testified that he “perform[ed] tests as a technician for Red Oak.” 

Finally, Neena Satia, Narang’s receptionist since 2003, testified that North 

Cypress was clearly associated with ROH and denied that anybody had 

manipulated patient forms.

For his part, Moparty called one witness and then testified himself. 

First, Dilip Amin, Moparty’s real estate attorney, testified as to the validity 

of three one-page contracts documenting real estate transactions between 

Moparty’s entities and Narang’s totaling over $9 million. According to 

Amin, it was “not unusual” for the “Old British India” community “to not 

rely on lawyers for the initial buying and selling of property.” He further 

dismissed the misspelling of Moparty’s name (spelled Moparti) as a “not 

uncommon” translation error.

Next Moparty testified and explained that Spring Klein functioned as 

a staffing company, which provided CRMC, 2920 ER, and ROH with 

employees and management. Further, he testified that ROH included the 

clinic supposedly associated with Narang at North Cypress. Pursuant to this 

structure, Moparty stated that Spring Klein would collect and distribute 

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money as appropriate. Moparty denied any ownership interest in ROH, 

CRMC, and 2920 ER. Moparty explained the real estate transactions as 

efforts by ROH and 2920 ER to expand into the Spring, Texas area to 

coincide with Exxon’s move to that location. He said he had researched how 

he could open an outpatient facility in Narang’s office (which he claims was 

Narang’s or Kaur’s idea); the research entailed reading the Texas 

Department of Health and Human Services website and emailing the Texas 

Department of State Health Services.8

Moparty testified that ROH had leased office space from North 

Cypress to perform ambulatory testing and he emailed North Cypress to put 

up signage and have the staff wear badges identifying ROH. Moparty claimed

he hired Kaur to help with business development and she purportedly signed 

a program management agreement which placed her in charge of the ROH 

outpatient clinic.9 He alleges that Kaur hired and employed all technicians, 

but no ROH employees worked at North Cypress. Moparty flatly denied that 

he intended to violate the law, conspire with Narang, or launder money.10 At 

the close of the defense case, Moparty renewed his motion for a judgment of 

acquittal and the court again denied it. 

The jury convicted Narang and Moparty on all counts.

8 Moparty insists that he received “authorization from the Department of Health” 

through a series of emails. But instead those emails “very strongly recommend[ed]” that 

Moparty obtain legal counsel and refused to provide a legal opinion on the validity of the 

proposed agreement. Moparty further denied that he needed a separate license to operate 

the HOPD.

9 Lammons noted that the “flow of money” to Kaur was not consistent with the 

agreed upon amount in her contract.

10 The government contends that Moparty was frequently evasive or 

nonresponsive to its questions.

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C. Post-verdict Proceedings

The defendants’ joint motion for mistrial principally argued that the 

government’s two references to Sidhu’s guilty plea prejudicially affected 

their right to a fair trial. The first reference was deliberately voiced during 

the opening statement when the government counsel said that Sidhu “is a 

co-conspirator in this case” but he “is not in this trial because he already pled 

guilty.” The second came during the questioning of Lammons.11 There, the 

government’s counsel inquired, “we haven’t talked a lot about Dr. Sidhu yet. 

. . . Why is that?” Lammons answered: “He’s already pled guilty.” Further, 

they argued that Dr. Grant impermissibly referenced a conviction of one of 

the specialists used by Narang to evaluate diagnostic tests and that the 

government misled them about Grant’s prior experience as an expert 

witness.12

The district court noted that the defendants did not object to the first 

reference but did object to the second, and the court sustained the objection 

and immediately issued a limiting instruction.13 Further, the court noted that 

it had rejected the confrontation clause challenge because the defendants had 

the ability to subpoena Sidhu if the government didn’t call him. The court 

11 The government had previously represented to the court that Sidhu was not 

going to be called as a witness.

12 When asked about the doctors supervising Narang’s technicians, Grant 

responded: “Dr. Ahmed, as I googled his name, I found that he’s a convicted felon for 

health care fraud in January of 2017.”

13 “Dr. Sidhu is not here. He plead [sic] guilty. The fact that he’s guilty it not 

evidence that any other person is guilty of wrongdoing. His case was considered separately, 

and you’re not to draw any adverse inference from the fact that Dr. Sidhu may believe he 

is guilty. It’s not relevant to this case. These defendants are presumed to be innocent. The 

fact that somebody else may be guilty does not in any way affect the presumption of 

innocence that cloaks them and remains with them until such time, if ever, that the 

government can prove these defendants guilty of anything.”

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then considered the introduction of Sidhu’s plea under the factors articulated 

in United States v. King, 505 F.2d 602, 608 (5th Cir. 1974) (explaining that 

four factors are relevant: (1) the presence or absence of a limiting instruction; 

(2) whether there was a proper evidentiary purpose for the introduction of 

the plea; (3) whether the plea was improperly emphasized or used as 

substantive evidence of guilt; and (4) whether introduction of the plea was 

invited by defense counsel).

The court acknowledged that neither party contested that the plea had 

not been invited, and then proceeded to weigh the remaining factors. The 

court noted that while there was not a proper evidentiary purpose for the 

second reference,14 the first two factors weighed strongly in favor of the 

government and any error was “harmless beyond a reasonable doubt.” The 

court found that “[t]he admissible evidence presented to the jury 

‘overwhelmingly eclipses the two [brief] mentions of Sidhu’s plea.’”

Finally, the court found no error relating to Dr. Grant’s testimony. 

The court noted that the defendants were in possession of Dr. Grant’s expert 

report which stated that he had previously testified for the government as an 

expert.15 Second, the court determined that while Grant’s statement was not 

proper impeachment evidence and lacked any proper evidentiary purpose, it 

14 “The court concludes that there is no indication that either of the challenged 

statements were made in bad faith. While the government arguably had a legitimate 

purpose for referencing Dr. Sidhu’s plea in its opening statement, the government can 

point to no proper purpose for Agent Lammons’ testimony. The dubious purpose of at 

least one of the challenged statements weighs slightly in favor of granting Defendants’ 

Motion.”

15 The court also agreed with the government that there was no prejudice because 

neither Dr. Grant nor the government were in possession of any transcripts of that prior 

testimony.

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was harmless, nonetheless. Accordingly, the district court denied the motion 

on all grounds.

D. Sentencing

The Presentence Report (PSR) for Moparty calculated a total offense 

level of 38 and a guideline range of 235–293 months. Moparty prevailed on 

his objections to the total loss amount and Government health care program 

enhancement. The court denied Moparty’s objection to the abuse of trust 

enhancement, U.S.S.G. § 3B1.3. These rulings resulted in a new total offense 

level of 31 and a guideline range of 108–135 months. The court sentenced 

Moparty to 108 months imprisonment, three years of supervised release, and

joint and several liability with Narang for $2,621,999.04 in restitution.

Narang’s PSR calculated his total offense level at 39 with a guideline 

range 262–327 months. Like Moparty, Narang prevailed on his loss amount 

and Government health care program objections. However, the court 

overruled Narang’s objection to the “10 or more victims” enhancement, 

U.S.S.G. § 2B1.1(b)(2)(A)(i), and the “use of any means of identification to 

produce or obtain another means of identification” enhancement, U.S.S.G. 

§ 2B1.1(b)(11)(C)(i). Based on these rulings, the new offense level was 32 

and the guideline range was 121–151 months. After discussing the 18 U.S.C. 

§ 3553(a) sentencing factors, the court sentenced Narang to 121 months in 

custody and $2,621,999.04 in restitution. Both defendants timely appealed.

II. DISCUSSION

The defendants raise a litany of issues on appeal. Specifically: 

(1) Moparty and Narang challenge the district court’s denial of their mistrial 

motion; (2) Moparty claims Anderson impermissibly testified on the 

ultimate issue of criminal intent; (3) Moparty claims the district court erred 

in allowing the insurance company representatives to testify as experts; 

(4) Moparty challenges the sufficiency of the evidence supporting his 

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convictions; (5) Moparty claims that cumulative government errors violated 

his right to a fair trial; (6) Moparty challenges one sentencing enhancement;

and (7) Narang challenges two sentencing enhancements.

A. Mistrial

Both Narang and Moparty argue that the district court erred in 

denying their motion for a mistrial. Specifically, they claim that the 

government’s two references to Sidhu’s guilty plea and Dr. Grant’s 

testimony relating to Dr. Ahmed’s prior conviction substantially prejudiced 

their right to a fair trial, warranting a mistrial. Both defendants objected to 

Agent Lammons’s testimony on Sidhu’s guilty plea. They both also objected 

to Grant’s testimony. However, neither objected to the government’s 

opening statement reference to Sidhu’s plea.

This court reviews a denial of a motion for mistrial for abuse of 

discretion.16 United States v. Velasquez, 881 F.3d 314, 343 (5th Cir. 2018). “If 

a defendant moves for a mistrial on the grounds that the jury heard prejudicial 

testimony, ‘a new trial is required only if there is a significant possibility that 

the prejudicial evidence has a substantial impact upon the jury verdict, 

viewed in light of the entire record.’” United States v. Zamora, 661 F.3d 200, 

211 (5th Cir. 2011) (quoting United States v. Paul, 142 F.3d 836, 844 (5th Cir. 

1998)). This court gives “great weight to the trial court’s assessment of the 

16 The government argues that since neither party objected to the opening 

statement, that statement should be reviewed for plain error only. See United States v. 

Sanders, 952 F.3d 263, 281 (5th Cir. 2020) (“[W]here counsel does not object 

contemporaneously to the actions that form the basis for the mistrial motion, plain error 

review follows.”). It is not clear that Sanderssquarely applies to the present situation where 

the government made the same error twice and one occasion was properly objected to. 

Further, had the government called Sidhu to testify, referencing his plea in the opening 

statement would have been a permissible action. Ultimately, the standard of review is not 

determinative because this claim falters under either standard.

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prejudicial effect of the evidence” and “prejudice may be rendered harmless 

by a curative instruction.” United States v. Valles, 484 F.3d 745, 756 (5th Cir. 

2007).

1. Dr. Sidhu’s Guilty Plea

“Defendants are entitled to have questions of guilt based on the 

evidence against them, not on whether a government witness or a 

codefendant has plead guilty to the same charge.” United States v. Delgado, 

401 F.3d 290, 299 (5th Cir. 2005) (citations and quotations omitted). But, in 

“some circumstances the government might have a legitimate evidentiary 

reason for bringing out testimony relating to its witnesses’ prior convictions, 

even when those convictions are for charges similar or identical to those upon 

which the defendant is being charged.” United States v. Fleetwood, 528 F.2d 

528, 532 (5th Cir. 1976). When considering the effect of a co-conspirator’s 

guilty plea, the court looks to four factors: “1) the presence or absence of a 

limiting instruction; 2) whether there was a proper evidentiary purpose for 

introduction of the guilty plea; 3) whether the plea was improperly 

emphasized or used as substantive evidence of guilt; and 4) whether the 

introduction of the plea was invited by defense counsel.” United States v. 

Murray, 988 F.2d 518, 523 (5th Cir. 1993). As noted, the introduction of the 

plea was not invited by defense counsel, so the focus is on the remaining three 

factors.

The court provided its first limiting instruction relating to Sidhu’s 

guilty plea immediately after the defendants objected to Lammons’s 

testimony. The second instruction was agreed on by the parties and given at 

the close of evidence.

17 “The ‘almost invariable assumption’ is that jurors 

17 “You have heard that Dr. Sidhu pled guilty to a crime. Do not consider his plea 

as any evidence of guilt. It is not. Dr. Sidhu’s decision to plead guilty was a personal 

decision. Disregard Dr. Sidhu’s guilty plea completely when considering DR. NARANG 

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follow such instructions.” United States v. Ramos-Cardenas, 524 F.3d 600, 

611 (5th Cir. 2008) (quoting Richardson v. Marsh, 481 U.S. 200, 206, 

107 S. Ct. 1702, 1707 (1987)). To overcome this presumption, there must be 

an “‘overwhelming probability’ that the jury will be unable to follow the 

court’s instruction . . . and a strong likelihood that the effect of the evidence 

would be ‘devastating’ to the defendant.” Greer v. Miller, 483 U.S. 756, 766 

n.8, 107 S. Ct. 3102, 3109 n.8 (1987) (citations omitted).

Narang and Moparty argue that this case presents “aggravating 

circumstances” such that the court’s limiting instructions were unable to 

cure the prejudice. See United States v. Baete, 414 F.2d 782, 783–84 (5th Cir. 

1969) (“There may be aggravated circumstances in which the strongest 

corrective instruction would be insufficient, as, for example, when the guilty 

plea of one codefendant necessarily implicates another or others.”). They 

premise this argument entirely on the fact that the government mentioned 

Sidhu not once, but twice. Standing alone, this is insufficient to upset the 

“general rule.” See Ramos-Cardenas, 524 F.3d at 611–12 (“If we are to 

assume that the jury . . . was able to follow the district court’s instructions 

and disregard the fact that three defendants had already admitted their guilt 

in one form or another, we see no reason not to assume that the jury was also 

able to disregard the fact that a fourth defendant had pleaded guilty.”).

Next, the district court correctly concluded that the second 

introduction of Sidhu’s plea lacked a proper evidentiary purpose. While the 

government could preemptively introduce the plea to thwart a defense 

strategy of painting Sidhu as the primary culprit, see United States v. Valley, 

or DR. MOPARTY’S guilt or innocence. As I instructed you during the trial, Dr. Sidhu’s 

guilty plea is not to be considered by you in any way as you decide whether the government 

has met its burden to prove beyond a reasonable doubt that DR. NARANG or DAYAKAR 

MOPARTY committed the crimes alleged in the indictment.”

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928 F.2d 130, 133 (5th Cir. 1991), or to negate expected impeachment efforts, 

see United States v. Borchardt, 698 F.2d 697, 701 (5th Cir. 1983), by the time 

of Lammons’s testimony, it was clear that the government did not intend to 

call Sidhu nor did the defense strategy rely on his plea. This factor leans 

toward the defendants.

Finally, the district court determined that neither reference was 

improperly emphasized or offered as substantive evidence. Both statements 

were made in the course of explaining why Sidhu, a frequently discussed 

participant in the scheme, was not present at the trial. Further, the jury was 

instructed that an opening statement is only a preview, not evidence. The 

second reference to Sidhu’s guilty plea was immediately followed by a 

limiting instruction. The district court, in light of its eight-day trial, found no 

bad faith by the government. This factor weighs in favor of the government.

In sum, the first and third factors favor the government while the 

second and fourth favor the defendants. On balance, given the strength of 

the curative instructions, the factors lean toward denying the motion for 

mistrial. In addition, the district court assessed the prejudicial effect of 

statements “in the context of other evidence presented in order to determine 

whether its admission was harmless beyond a reasonable doubt.” Arizona v. 

Fulminante, 499 U.S. 279, 308, 111 S. Ct. 1246, 1264 (1991). Here, the court 

found that the admissible evidence “overwhelming eclipse[d]” the two 

references to Sidhu’s plea. The district court did not abuse its discretion in 

denying the motion for mistrial as to Sidhu’s pleas.18

18 Additionally, Narang argues that referencing Sidhu’s plea violated the 

Confrontation Clause. “This court reviews claims of Sixth Amendment Confrontation 

Clause violations de novo and subject to a harmless-error analysis.” United States v. Gentry, 

941 F.3d 767, 781 (5th Cir. 2019). To establish a Confrontation Clause violation, “the 

defendant need only show that ‘a reasonable jury might have received a significantly 

different impression of the witness’s credibility had defense counsel been permitted to 

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2. Dr. Ahmed’s Health Care Fraud Conviction

Dr. Grant, after being asked if he knew the doctor who supervised 

Narang’s technicians for Narang, stated: “Dr. Ahmed, as I Googled his 

name, I found that he’s a convicted felon for health care fraud in January of 

2017. Probably in this exact building is where that happened.” The court 

sustained the objection and immediately issued two curative instructions, 

stating first “[t]he jury will disregard the fact that Dr. Ahmed had a 

conviction” and also “[t]he jury is instructed there’s no evidence Dr. Narang

[or Moparty] knew of the conviction.”

Considering the motion for mistrial, the district court concluded that 

Grant’s statement lacked any proper evidentiary or impeachment purpose. 

We agree. But the error was harmless because introduction of an unrelated 

conviction did not prejudice the defense—especially in light of the curative 

instructions. See United States v. Williams, 620 F.3d 483, 492 (5th Cir. 2010) 

(“[R]eversal is not required unless there is a ‘reasonable possibility that the 

improperly admitted evidence contributed to the conviction.’” (citation 

omitted)); see also United States v. Medina-Arellano, 569 F.2d 349, 357 (5th 

Cir. 1978) (“Knowledge by the jury of a [conviction] to unrelated crimes did 

not hurt the defense’s position.”).

pursue his proposed line of cross-examination.’” United States v. Templeton, 624 F.3d 215, 

223 (5th Cir. 2010). Because Lammons’s testimony referencing the guilty plea was 

excluded, the right to cross-examination was not implicated. See Davis v. Alaska, 415 U.S. 

308, 315–16, 94 S. Ct. 1105, 1110 (1974) (explaining that the “primary interest” the 

Confrontation Clause secures is “the right of cross-examination”).

Narang further claims that the court impermissibly shifted the burden to him when 

it stated that he had the power to subpoena Sidhu. He seeks support in United States v. 

Bennett, 874 F.3d 236, 251 (5th Cir. 2017). That case involved comments reflecting a 

defendant’s failure to offer exculpatory evidence. It is irrelevant to a Confrontation Clause 

claim. Here, the court, not the prosecution, merely noted that Narang could call Sidhu if 

he wished.

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B. Testimony by Anderson

Moparty argues that Anderson impermissibly testified on the ultimate 

issue of criminal intent when she labeled various transactions by Moparty as 

“money laundering.”19 He describes this as a “calculated effort” by the 

government “to extract opinion testimony from an agent.” Further, he 

argues that Anderson was not presented as an expert witness and challenges

the government’s repeated references to the “money laundering counts.” 

Moparty, however, did not object at trial to this testimony.

This court reviews unobjected-to testimony for plain error. United 

States v. Coffman, 969 F.3d 186, 189 (5th Cir. 2020). “There are four steps 

to [the] plain-error analysis: whether (1) an error that was (2) clear or 

obvious (3) affects the defendant’s substantial rights, and if there was such 

an error, [the court has] discretion to remedy (4) if the error ‘seriously 

affect[ed] the fairness, integrity or public reputation of judicial 

proceedings.’” Id. (quoting United States v. Olano, 507 U.S. 725, 732, 734, 

113 S. Ct. 1770, 1777–79 (1993)).

While portions of Anderson’s testimony may have approached the 

line of permissible statements,20 this claim can be resolved on the third and 

fourth prongs of plain error. The challenged statements represent three 

19 He also challenges Lammons’s testimony describing Trinity as a “shell 

company” and Grant’s description of a particular factual scenario as “fraudulent.”

20 Particularly troubling are Anderson’s describing certain transactions as “money 

laundering” and opining on the motivation for structuring the transactions in that manner. 

See United States v. Setser, 568 F.3d 482, 494–95 (5th Cir. 2009) (acknowledging error in 

allowing a witness to testify that certain activities constituted “security fraud” or a “Ponzi 

scheme” but finding it harmless). But see United States v. Evans, 892 F.3d 692, 715 (5th 

Cir. 2018) (“[U]nder Rule 701, a lay witness may state his ultimate opinion, provided that 

opinion is ‘based on personal perception,’ ‘one that a normal person would form from 

those perceptions,’ and ‘helpful to the jury.’” (citation omitted)).

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snippets of testimony among a substantial number of documents and 

testimony from multiple witnesses. As this court stated in United States v. 

Lucas, “[g]iven the overwhelming quantum of evidence used to convict, any 

error did not affect [the defendant’s] substantial rights under the third prong 

of plain-error review and, in any event, under the fourth prong, the putative 

error would not ‘seriously affect[] the fairness, integrity, or public reputation 

of the proceedings.’” (citation omitted)). Lucas, 849 F.3d 638, 646 (5th Cir. 

2017).

C. Expert Testimony from Insurance Representatives

Moparty objects to aspects of the three insurance representatives’ 

testimony, as he insists that the government elicited expert opinions without 

qualifying the witnesses or providing notice that they would offer expert 

testimony.21

If, after a timely trial objection, “a district court’s determination as to 

the admissibility of evidence is questioned on appeal, [the] applicable 

standard of review is abuse of discretion.” United States v. O’Keefe, 426 F.3d 

274, 280 (5th Cir. 2005). But under the harmless error standard, the court 

will not reverse “[u]nless there is a reasonable possibility that the improperly 

admitted evidence contributed to the conviction.” United States v. MendozaMedina, 346 F.3d 121, 127 (5th Cir. 2003). If there was no objection, review 

is for plain error. See Coffman, 969 F.3d at 189. Moparty preserved at trial 

his objections to certain statements by the Aetna and Blue Cross Blue Shield 

witnesses, but he objected to none of the Cigna representative’s testimony. 

21 He objected to statements made by the Aetna and Blue Cross Blue Shield 

representatives. But as the government notes, much of the testimony went unobjected—

including all testimony from the Cigna representative.

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However, it is unnecessary to parse the record statement by statement

because Moparty’s argument fails under the abuse of discretion standard.

“Rule 701 does not exclude testimony by corporate officers or 

business owners on matters that relate to their business affairs, such as 

industry practices and pricing.” Nat’l Hispanic Circus, Inc. v. Rex Trucking, 

Inc., 414 F.3d 546, 551–52 (5th Cir. 2005); see also United States v. Kerley, 

784 F.3d 327, 337 (6th Cir. 2015) (“In a number of decisions from other 

circuits, courts have permitted witnesses to give lay opinion testimony about 

a business’s policies, practices, or procedures, based on an after-the-fact 

review or analysis of documents or facts, if the witness’s testimony derived 

from personal knowledge gained through participation in the business’s dayto-day affairs.” (collecting cases)).

Here, the challenged testimony largely related to the procedures, 

policy terms, and fraud prevention protections at each insurance company. 

For example, the Blue Cross Blue Shield witness addressed how the company 

would handle various situations, how it interpreted terms and policies, and 

how their policies compared to those of the industry. Similarly, the Aetna 

representative’s testimony focused on Aetna’s policies and practices. These 

witnesses’ admissible testimony “provided factual information about the 

circumstances of the case.” United States v. McMillan, 600 F.3d 434, 456 

(5th Cir. 2010). To whatever small extent limited aspects of this testimony 

crept beyond the permissible bounds for a lay witness, there is no reasonable 

basis to find, in the context of the entire trial, that such testimony affected

the verdict. Id.

D. Sufficiency of the Evidence

Moparty challenges the sufficiency of evidence supporting all twentyone of his convictions. Specifically, he claims that the government failed to 

establish the prerequisite agreement on the conspiracy charge; failed to 

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establish that he had knowledge that the medical testing was unnecessary and 

inadequate; and failed to refute that Moparty attempted to legally set up an 

HOPD. According to Moparty, this means the government failed to establish 

that he knowingly or willingly participated in a conspiracy to commit health 

care fraud. Further, Moparty argues that since the government failed to 

prove his intent relevant to the conspiracy count, it failed to prove his intent 

to commit the counts of substantive health care fraud. Finally, he claims the 

money-laundering counts fail because they depend on the substantive fraud 

counts. Moparty timely moved for a judgment of acquittal, preserving these 

challenges.

This court reviews “challenges to the sufficiency of the evidence de 

novo, applying the same standard as applied by the district court: could a 

rational jury find that all elements of the crime were proved beyond a 

reasonable doubt?” United States v. Chapman, 851 F.3d 363, 376 (5th Cir. 

2017). Review is “highly deferential to the verdict.” United States v. 

Beacham, 774 F.3d 267, 272 (5th Cir. 2014). The court “‘search[es] the 

record for evidence . . . support[ing] the convictions beyond a reasonable 

doubt’ and review[s] the evidence ‘in the light most favorable to the verdict, 

accepting all credibility choices and reasonable inferences made by the 

jury.’” Chapman, 851 F.3d at 376 (citations omitted).

“[A] defendant seeking reversal on the basis of insufficient evidence 

swims upstream.” United States v. Mulderig, 120 F.3d 534, 546 (5th Cir. 

1997). The “conviction will be affirmed if ‘any rational trier of fact could 

have found the essential elements of the crime beyond a reasonable doubt.’” 

United States v. Gonzalez, 907 F.3d 869, 873 (5th Cir. 2018) (citation omitted 

and emphasis in original). “Though the government cannot obtain a 

conviction by piling ‘inference upon inference,’ the defendants cannot obtain 

an acquittal simply by ignoring inferences that can logically be drawn from 

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the totality of the evidence.” United States v. Martinez, 921 F.3d 452, 466 

(5th Cir. 2019) (citation omitted).

1. Conspiracy Conviction

“The elements of healthcare-fraud conspiracy are (1) the existence of 

an agreement between two or more people to pursue the offense of fraud; 

(2) knowledge of the agreement; and (3) voluntary participation.” United 

States v. Emordi, 959 F.3d 644, 650 (5th Cir. 2020). “‘An agreement may be 

inferred from concert of action, voluntary participation may be inferred from 

a collocation of circumstances, and knowledge may be inferred from 

surrounding circumstances.’” United States v. Daniel, 933 F.3d 370, 377 (5th 

Cir. 2019) (quoting United States v. Bieganowski, 313 F.3d 264, 277 (5th Cir. 

2002)). The agreement may be silent and informal, and the government can 

use either direct or circumstantial evidence to prove it. United States v. 

Barson, 845 F.3d 159, 163–64 (5th Cir. 2016).

Moparty doesn’t disagree that he and Narang had an agreement to 

process patient bills through ROH. Thus, this case boils down to whether 

that agreement had a fraudulent purpose or was a legitimate business 

arrangement in which Moparty innocently benefitted from Narang’s fraud. 

The government presented two theories of fraud: one relating to the medical 

necessity and adequacy of the procedures performed, and another focused on 

how the procedures were billed. Moparty argues that Dr. Bungo’s testimony

demonstrates that Moparty lacked the necessary training to determine 

whether any particular test was necessary. He misconstrues the inquiry, 

however, because the government could bear its burden against him with 

evidence on the fraudulent billing practices alone.

There was substantial evidence that Moparty and Narang agreed to 

process insurance reimbursement claims through ROH instead of North 

Cypress; that rejected claims were resubmitted through other entities 

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controlled by Moparty; and that millions of dollars flowed out of Trinity, in 

the form of rent and suspect real estate deals, and landed in the accounts of 

various entities owned by Narang and his wife. The government 

demonstrated that Moparty had specific knowledge of all of the billing 

through emails sent by Warren. 

In contrast, Moparty asserts that he was attempting to run a legitimate 

HOPD and any payments to Narang represent “mere association,” the 

evidence of legitimate transactions. Ultimately, the jury was left largely with 

a credibility determination. That Moparty was aware of the ROH’s billing 

practices is beyond dispute. As to whether he had the requisite intent to 

conspire to commit fraud, part of the answer turns on whether the jury 

believed Moparty’s efforts to establish an HOPD in the North Cypress office. 

The emails submitted by the government demonstrate that Moparty did not 

receive authorization, and he was instead advised repeatedly to obtain 

counsel. This, coupled with Moparty’s authorization of “rebilling” rejected 

claims and his suspicious explanations for the large sums of money 

transferred to Narang’s entities, could lead a rational jury to conclude that he

failed to organize a legitimate HOPD, and he and Narang conspired to 

commit health care fraud.

2. Substantive Health Care Fraud

Principally, Moparty repeats his arguments on the conspiracy count

that the evidence also fails to establish his criminal intent to commit 

substantive health care fraud. To establish health care fraud, the government 

must prove that Moparty “‘knowingly and willfully execute[d], or 

attempt[ed] 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 

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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) (citation 

omitted). “It is enough for criminal liability if a defendant ‘associates with 

the criminal activity, participates in it, and acts to help it succeed.’”22 

Martinez, 921 F.3d at 472 (quoting United States v. Delagarza-Villarreal, 

141 F.3d 133, 140 (5th Cir. 1997)).

As detailed above, Moparty’s actions were the key to the second 

aspect of the scheme, billing Narang’s services and tests at the higher 

hospital or out-of-network rates. The government presented seventeen 

submitted claims, all of which reflected these grounds for overbilling. 

Whether Moparty “knowingly and willingly” defrauded the insurance 

companies was a quintessential jury question. Based on the evidence 

presented, a rational fact finder could conclude that Moparty knew he was 

not operating a legal HOPD and otherwise knew the amounts billed were 

contrived to be illegally high.

3. Money Laundering

To sustain a conviction under 18 U.S.C. § 1957, the government must 

prove three elements: “(1) property valued at more than $10,000 that was 

derived from a specified unlawful activity, (2) the defendant’s engagement in 

a financial transaction with the property, and (3) the defendant’s knowledge 

that the property was derived from unlawful activity.” United States v. Fuchs, 

467 F.3d 889, 907 (5th Cir. 2006). Health care fraud is a qualifying unlawful 

activity. See Martinez, 921 F.3d at 476–77. Moparty argues that “since the 

evidence was legally insufficient to prove [his] participation in the . . . 

22 The “[g]overnment must first ‘prove that someone committed the underlying 

substantive offense.’” United States v. Rufai, 732 F.3d 1175, 1190 (10th Cir. 2013). Here, 

the government proved that Narang committed substantive health care fraud—he does not 

challenge the sufficiency of his conviction on appeal.

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conspiracy and . . . [the] scheme to defraud a health care benefit program, the 

convictions for money laundering should be reversed” because he lacked the 

requisite knowledge of the underlying illegality. Because his predicate 

arguments fail, so does this one.

E. Cumulative Error

Moparty argues that the government violated his right to a fair trial 

through repeated misconduct including: (1) references to health care 

convictions of two people who didn’t testify; (2) impermissible witness 

testimony; (3) prejudicial comments referencing the “dark web,” 

“kickbacks,” and the transmission of confidential patient information to a 

third-party billing company in India. According to Moparty, “[t]he 

cumulative prejudicial effect of these repeated acts of misconduct by 

prosecutors and government witnesses rendered impossible the jury’s ability 

to fairly review the evidence and return a just verdict.”

“[T]he cumulative error doctrine . . . provides that an aggregation of 

non-reversible errors (i.e., plain errors failing to necessitate reversal and 

harmless errors) can yield a denial of the constitutional right to a fair trial, 

which calls for reversal.” United States v. Delgado, 672 F.3d 320, 343–44 (5th 

Cir. 2012) (en banc) (alteration in original and citation omitted). Reversal 

under the doctrine is rarely necessary—“‘the possibility of cumulative error 

is often acknowledged but practically never found persuasive.’” Id. at 344 

(quoting Derden v. McNeel, 978 F.2d 1453, 1456 (5th Cir. 1992) (en banc)). 

Instead, reversal is only justified “in the unusual case in which synergistic or 

repetitive error violates the defendant’s constitutional right to a fair trial.” 

Id. “[A]pplication is especially uncommon where . . . the government 

presents substantial evidence of guilt.” Id.

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Moparty relies on Yates v. Evatt, 500 U.S. 391, 111 S. Ct. 1884 (1991),

and United States v. Riddle, 103 F.3d 423 (5th Cir. 1997),23 neither of which is

directly applicable. Yates involved jury instructions that applied an 

unconstitutional presumption, and the Court reversed the Supreme Court of 

South Carolina on its application of harmless error review. Yates, 500 U.S. 

at 402–07, 111 S. Ct. at 1892–95. That case says nothing about cumulative 

error which is premised on the repetition of individually harmless errors. 

Riddle involved testimony and evidence far outside the scope of the trial, 

prejudicial documents admitted into evidence, and the erroneous exclusion 

of the defendant’s expert. Riddle, 103 F.3d at 428–35. The court reasoned 

that, had those rulings come out differently, it would have been “a very 

different trial.” Id. at 434.

The same cannot be said here. Any mistakes must be measured 

against the weight of the evidence presented. See United States v. Neal, 

27 F.3d 1035, 1051–52 (5th Cir. 1994) (sometimes “the cumulative effect of 

several incidents of improper argument or misconduct may require reversal, 

even though no single one of the incidents, considered alone, would warrant 

such a result,” but here, “we are not persuaded, in light of the substantial 

evidence of guilt adduced at trial, that the Defendants are entitled to reversal 

on the basis of cumulative error”). Moparty never objected to the jury 

instructions and there is no evidence the jury failed to follow them. The 

government offered hundreds of pages of documentary evidence and 

testimony from patients, employees, medical experts, industry 

representatives, and investigating agents. Moparty’s claimed errors lack the 

23 Moparty also relies on an unpublished, nonprecedential opinion of this court. 

United States v. Houston, 481 F. App’x 188 (5th Cir. 2012). We allude to such opinions at 

most as persuasive, but Houston fails even that low bar because it involved more numerous 

and serious trial errors, which led to “confusion and prejudice that reached to the heart of 

the case—the identity of the perpetrator.” Id. at 195.

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“synergistic” nature such that if none had occurred, he would have had “a 

very different trial.” Riddle, 103 F.3d at 434.

F. Moparty’s Sentencing

On appeal, Moparty argues that the district court erred in applying a 

two-level enhancement under U.S.S.G. § 3B1.3. That section applies “[i]f 

the defendant abused a position of public or private trust, or used a special 

skill, in a manner thatsignificantly facilitated the commission or concealment 

of the offense.” U.S.S.G. § 3B1.3. Moparty preserved the issue. For 

preserved challenges, this court reviews the district courts application of the 

Guidelines de novo and its factual findings for clear error. United States v. 

Suchowolski, 838 F.3d 530, 532 (5th Cir. 2016). If the district court erred, the 

analysis shifts to whether the error was harmless. United States v. Halverson, 

897 F.3d 645, 652 (5th Cir. 2018).

The abuse of trust enhancement is “a sophisticated factual 

determination” that this court reviews for clear error. United States v. Miller, 

607 F.3d 144, 148 (5th Cir. 2010). The enhancement is appropriate if 

(1) “the defendant occupies a position of trust” and (2) “the defendant 

abused her position in a manner that significantly facilitated the commission 

or concealment of the offense.” United States v. Kay, 513 F.3d 432, 459 (5th 

Cir. 2007). “A position of trust is characterized by (1) professional or 

managerial discretion (i.e., substantial discretionary judgment that is 

ordinarily given considerable deference), and (2) minimal supervision.” 

United States v. Ollison, 555 F.3d 152, 166 (5th Cir. 2009). This court will 

uphold the district court’s finding “as long as it is plausible in light of the 

record as a whole.” United States v. Ekanem, 555 F.3d 172, 175 (5th Cir. 

2009).

Moparty rests his argument on the first prong—that he did not occupy 

a position of trust because he is not the owner of a hospital and the 

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government failed to meet its burden to prove the enhancement. He claims 

that according to trial testimony, his brother Roy Moparty was the sole 

owner. But, as the government points out, Moparty represented that he 

owned 50% in the signed licensing application and only his email address was 

listed. In fact, they were both signatories on ROH’s bank account. And

Lammons testified that Moparty had a financial interest in and significant 

control over ROH. Moparty’s ownership position is a plausible view of the 

record.

Moparty’s management position was thus excluded from close 

supervision, and it enabled him to direct Warren to bill for testing performed 

at North Cypress and “rebill” denied claims through other Moparty entities. 

Moparty’s managerial authority placed him in “a superior position . . . to 

commit the offense.” Kay, 513 F.3d at 459. The district court did not err in 

applying the enhancement.

G. Narang’s Sentencing

Narang argues that the district court erred in applying two sentencing 

enhancements. Section § 2B1.1(b)(2)(A)(i) adds two levels to the base 

offense level if the offense involved ten or more victims. U.S.S.G. 

§ 2B1.1(b)(2)(A)(i). Section 2B1.1(b)(11)(C)(i) adds another two levels if the 

offense involved “the unauthorized transfer or use of any means of 

identification unlawfully to produce or obtain any other means of 

identification.” U.S.S.G. § 2B1.1(b)(11)(C)(i). Narang filed written 

objections to both enhancements.

1. Ten or More Victims—§ 2B1.1(b)(2)(A)(i)

Narang argues that this enhancement is inapplicable because the only 

“victims” are the three insurance companies—Aetna, Blue Cross Blue 

Shield, and Cigna. Narang’s argument runs headlong into this circuit’s 

precedent. In United States v. Barson, this court concluded that the 

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enhancement applied because Medicare beneficiaries with falsely claimed 

benefits counted as “victims” since Application Note 4(E) defines a 

“victim” as “any individual whose means of identification was used 

unlawfully or without authority.” 845 F.3d 159, 167 (5th Cir. 2016) (quoting 

U.S.S.G. § 2B1.1 cmt. n.4(E)).24 The only meaningful distinction here is that 

the benefits were paid by private insurance companies rather than Medicare. 

Application Note 4(E) applies to all cases, not just government health care 

programs, “involving means of identification.”25 U.S.S.G. § 2B1.1 cmt. 

n.4(E). Since Narang used the patient’s “means of identification” to 

generate the fraudulent claims, precedent forecloses this argument.

2. Means of Identification—§ 2B1.1(b)(11)(C)(i)

Narang argues that “[t]he enhancement’s language does not call for a 

two-level increase merely because the offense involves a ‘means of 

identification’ from which another ‘means of identification’ is 

unintentionally or tangentially created.” Again, this argument is foreclosed 

by circuit precedent. In United States v. Kalu, this court held that using a 

beneficiary’s Medicare information to generate a fraudulent health care claim 

satisfied the enhancement because the initial “means of identification” usage 

(the Medicare information) produced another means of identification—the 

Medicare claim number which “is unique and inextricably tied to a particular 

Medicare beneficiary.” 936 F.3d 678, 681–82 (5th Cir. 2020). Here, each 

24 But see Barson, 845 F.3d at 168–170 (Jones, J., concurring in part and dissenting 

in part) (arguing that this enhancement and Application Note 4(E) are not applicable in 

these circumstances under the plain meaning of “victims” and the purpose of the 2009 

update to the Guidelines).

25 “Means of identification” is defined as “any name or number that may be used, 

alone or in conjunction with any other information, to identify a specific individual.” See 

U.S.S.G. § 2B1.1 cmt. n.1 (incorporating the quoted definition by cross-reference to 

18 U.S.C. § 1028).

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patient’s personal information was used to generate a unique health care 

claim.26 Accordingly, Kalu’s reasoning extends to the facts presented here.

III. CONCLUSION

Thoughwe find no reversible error underthe King factors or otherwise, 

we do not condone the government’s conduct in this case. Throughout the 

course of the trial, the government, at best, was careless in the testimony it 

elicited from its witnesses, its missteps salvaged only by the district court’s

repeated and forceful curative instructions. Even though the trial court 

found no bad faith, such heedless behavior is unacceptable. With this said, 

we find no reversible error of fact or law.

AFFIRMED.

26 Though Kalu involved Medicare rather than private insurance, Kalu approvingly 

discussed United States v. Gonzalez, 644 F. App’x 456 (6th Cir. 2016) (unpublished), which 

did involve private insurance. See Kalu, 936 F.3d at 682 (reciting the Gonzalez analysis and 

stating “[w]e see no reason to disagree”).

Case: 19-20797 Document: 00515989992 Page: 32 Date Filed: 08/23/2021