PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. ADEDAYO O. ADEGBOYE, Defendant - Appellant. No. 12-6035

Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:11-CR-00030-D-1)

Perry W. Hudson, Oklahoma City, Oklahoma , for Defendant-Appellant Adedayo O. Adegboye. Amanda Maxfield Green, Assistant United St ates Attorney (Sanfo rd C. Coats, United States Attorney, with her on the briefs), Oklahoma City , Oklahoma, for PlaintiffAppellee United States of America.

Before MATHESON , EBEL , and O’BRIEN , Circuit Judges.

EBEL , Circuit Judge. FILED United States Court of Appeals Tenth Circuit 

### October 15, 2013

Elisabeth A. Shumaker Clerk of Court2 Following a joint trial with his Co-Defendant Olalekan Rufai, a jury convicted Defendant-Appellant Adedayo Adegboye of fi ve counts of aiding and abetting health care fraud, in violation of 18 U.S.C. §§ 1347 and 2. On appeal, Ad egboye argues that the

trial evidence was insufficient to establish, beyond a reasonabl e doubt, that he knowingly and willfully participated in the fraud. Having jurisdicti on under 28 U.S.C. § 1291, the panel majority affirms Adegboye’s convictions . Judge Matheson wr ites separately to

dissent.

I. BACKGROUND We incorporate the facts, procedural history, and legal background from our opinion in the related appeal of United Stat es v. Rufai, No. 12-6034, see §§ I, II.B. II. THERE WAS SUFFICIENT EVID ENCE TO SUPPORT ADEGBOYE’S CONVICTIONS Adegboye argues that the Government fa iled to present suffi cient evidence to prove beyond a reasonable doubt that he comm itted health care fraud as a principal or as

an aider and abettor. Because the Government does not contend that he is guilty as a principal, however, we focus here only on whether there was suffi cient evidence to convict him for aiding and abe tting health care fraud. Adegboye acknowledges that his business associate Joshua Ohaka committed health care fraud by submitting false claims to Medicare through Adegboye’s company, First Century Medical Supply (“First Century” ). And Adegboye does not dispute that his

acts in fact contributed to Ohaka’s health care fraud generally, which would encompass3 the incidents underlying the five substantiv e fraud counts charged against Adegboye. On appeal, Adegboye argues that the Government failed to pr esent sufficien t evidence from which a reasonable jury could ha ve found, beyond a reasonabl e doubt, that he knowingly and willfully aided Ohaka’ s fraudulent scheme. A. Relevant legal principles Our decision to affirm Adegboye’s c onvictions is grounded on two legal principles. First, we review the sufficien cy of the evidence to support Adegboye’s convictions de novo, asking “whether a reas onable jury could find [him] guilty beyond a reasonable doubt.” United States v. Anay a, --- F.3d ---, 2013 WL 4308093, at *4 (10th Cir. Aug. 16, 2013) (internal quotation mark s omitted) (alterations omitted). In making this determination, we must “consider all ev idence and reasonable inferences in the light most favorable to the government, and we ma y not weigh evidence or consider credibility of witnesses.” United States v. Renteria, 720 F.3d 1245, 1253 (10th Cir. 2013). “Rather than examining the evid ence in bits and pieces, we ev aluate the sufficiency of the evidence by considering the co llective inferences to be dr awn from the evidence as a

whole.” United States v. Ba der, 678 F.3d 858, 873 (10th Cir. 2012) (internal quotation marks omitted) (alteration omitted), cert. denied , 133 S. Ct. 355 (2012 ). “[T]he evidence, together with the reasonable inferences to be drawn therefrom, must be substantial, but it need not conclusively exclude every other reasonable hypoth esis and it need not negate all possibilities except guilt.” Un ited States v. MacKay, 715 F.3d 807, 812 (10th Cir.4 2013) (internal quotation marks omitted), pet ition for cert. filed, (U.S. Aug. 26, 2013) (No. 13-274). Second, to obtain a convic tion for aiding and abetting, the Government had to prove beyond a reasonable doubt that Adegboye “(1) willfully asso ciated himself with [Ohaka’s] criminal venture and (2) sought to make the venture succeed through some

action of his own.” United States v. Ro salez, 711 F.3d 1194, 1205 (10th Cir. 2013) (internal quotation marks omitted) (alteration om itted), petitions for cert. filed, (U.S. June 25, Aug. 9 and 26, 2013) (Nos. 13-5160, 13-5782, 13-6149). “[C]onduct of the defendant or special circumstan ces may justify the inference th at the defendant associated himself with the criminal objective.” United States v. Burks, 678 F.3d 1190, 1198 (10th Cir. 2012) (internal quotation ma rks omitted) (alteration omitted).

B. There was sufficient eviden ce to support Adegboye’s convictions for aiding and abetting Ohaka’s health care fraud 1. Joshua Ohaka’s underlying fraud Because the Government charged Adegboy e with aiding and abetting his business associate Joshua Ohaka’s health care fraud, we begin by addressing briefly Ohaka’s fraudulent scheme. Ohaka’s modus operandi was to create a durable medical equipment company; qualify that compan y as a Medicare provider; subm it false claims to Medicare through that company until Medicare becam e suspicious and be gan requiring the company to submit proof of its claims; unable to present proof, Ohaka would then create5 a new company through whic h to continue his fraud. 1 Ohaka began this scheme by using his own company, Optimed, through whic h he filed fraudulent Medicare claims from 2005 through approximately October 2006. He continued the scheme with Vitacare, a company Ohaka formed in his wife’s name in 2007, and then he used his second company, Providence, beginning in 2008. Late r, Ohaka paid Helen E tinfoh to let him use her name to operate another company, Luant a nd Odera, in 2008. Th is was likely due to the fact that, by this time, Medicare had fl agged for investigation any company that was

related to Ohaka. And Ohaka continued his fraud through First Century, a company that

he formed with Defendan ts Adegboye and Rufai in the fall of 2007. The false claims Ohaka filed through th ese companies includ ed billing Medicare for equipment that he never provided Medicare beneficiar ies, billing Medicare for more expensive equipment than the equipment he actually provided be neficiaries (i.e., providing power scooters, but billing Medicare for more e xpensive power wheelchairs), and providing beneficiaries with medical e quipment that was medically unnecessary and not prescribed for the beneficiaries by thei r doctors, as Medicare required. Often Ohaka’s companies would bill Medicare usi ng the code CR (catastrophe-related), which indicated that a Medicare beneficiary had lo st previously prescribed medical equipment during a catastrophe, such as a hurricane. By using this code, Medicare would reimburse

1 Although we refer in this opi nion only to Medicare, Medicare frequently acted through various contractors. Those contractors, fo r instance, acted on Medicare’s behalf to review applications to be a Medicare provide r, conduct site visits of applicants, process and pay provider claims for reimbursem ent, and investigate possible fraud.6 Ohaka’s company for replacing the lost medi cal equipment without first requiring proof that a doctor had prescribed the equipm ent for the Medicare beneficiary. Ohaka opened four of the five companies he used to carry out his fraud (Optimed, Vitacare, Providence and First Century) in Oklahoma, stocke d them with minimal to no inventory, and hired a very fe w employees to man the stores and company offices. The same employees often worked for several of Ohaka’s companies. Th e only real business these companies had was to file claims w ith Medicare seeking reimbursement. Ohaka carried out his fraud by, first, using “recrui ters” to obtain information from Medicare beneficiaries, who usually lived in Texas or Louisiana. Then Ohaka, who lived in Texas, would send this information to his employees in Oklahoma, direct them to use that information to prepar e the Medicare claim forms, his employees would do so and then, pursuant to Ohaka’s instructions , send the completed claim form s either back to Ohaka or to a billing company he used to bill Medicare. 2

2 Evidence indicated that Ohaka would send “recruiters” out to take orders from real Medicare beneficiaries. Even though thos e beneficiaries had ne ver been prescribed motorized scooters or wheelchai rs, the “recruiters” apparently asked the beneficiaries if they wanted a scooter or wheelchair, promis ed to deliver one, and then obtained from the beneficiaries the information needed to file a claim for reimbursement from Medicare. Sometimes Ohaka would not prov ide the beneficiaries with any equipment, but still bill Medicare. Sometimes Ohaka would provide th e beneficiary with a power scooter, but bill Medicare for a more expensive power wheelc hair. (As explained in footnote 3, infra., the five substantive counts of Medicare fraud charged against Adegboye appear to be this type of fraud.) And sometimes the benefici aries would not ask for any equipment, but Ohaka would send them a power scooter anyway and then bill Medicare.7 2. Evidence that Adegboye aided and abetted Ohaka’s fraud The specific question presented in this appeal is whether there was sufficient evidence from which a jury could find, be yond a reasonable doubt, that Adegboye knowingly and willfully aide d and abetted Ohaka’s fraud. 3 “To establish knowledge and willfulness, ‘the Government must prove that the defendant acted with knowledge that

his conduct was unlawful.’” United States v. Franklin-El, 555 F.3d 1115, 1122 (10th Cir.

3 The United States charged Adegboye with six counts. The jury acquitted Adegboye of Count 1, charging him with conspiring to commit health care fraud. The jury also convicted Adegboye on Counts 2 through 6, charging him with aiding and abetting five substantive counts of health care fraud. Br iefly summarized, the ev idence regarding each of those counts was as follows: Count 2 – On August 20 or 21, 2008, First Century provided Medicare beneficiary Mary Smallw ood with a power scooter, but charged Medicare instead for a more expensive power wheelchair, for which Medicare reimbursed First Century $3,516. Smallwood’ s doctor had not prescribed either power mobility device for Smallwood, as required for Medicare reimbursement. Count 3 – First Century billed Medicare for prov iding Medicare beneficiary Rosa Mason, on July 15, 2008, a power wheelchair, which her physic ian had not prescribed, and for which Medicare reimbursed First Century $3,516. C ount 4 – On July 15, 2008, First Century provided Medicare beneficiary Gladys Tatum with a power scooter, but billed Medicare instead for a more expensiv e power wheelchair, for which Medicare reimbursed First Century $3,516. Tatum’s doctor did not prescribe eith er power mobility device for her. Count 5 – On August 4, 2008, First Century provided Medicare beneficiary Ms. Glendale Sanders a power scooter, but billed Medica re instead for a more expensive power wheelchair, for which Medicar e reimbursed First Century $3,516. Sanders’ doctor did not prescribe either device for her. Count 6 – On May 28, 2008, First Century provided Medicare beneficiary Martha Eddington a power scooter, but billed Medicare for a more expensive power wheelchair, for which Medicare reimburse d First Century $3,516. Eddington’s doctor had not prescribed either de vice for her. Each of these beneficiaries lived in Texas or Louisiana. And in each of these case s, First Century, in billing Medicare, used the code CR, which was to be used when a Medicare beneficiary lost her medical mobility equipment due to a catastrop he such as Hurricanes Katrina, Rita, and Gustav. None of these Medicare beneficiarie s, however, had been impacted by such a catastrophe. Medicare would allow a claim of $4,000-5,000 for a power wheelchair, for which Medicare would pay approximately $3,51 6. On the other hand, Medicare would allow a claim of approximately $2,000 for a power scooter.8 2009) (quoting Bryan v. United States, 524 U. S. 184, 191-92 (1998) (internal quotation marks omitted) (emphasis omit ted).) We conclude there was sufficient evidence to support Adegboye’s convictions . More specifically, ther e was sufficien t evidence from which a reasonable jury could have found the following: 1) Adegboye knew that he and

Defendant Rufai were straw owne rs of First Century, that First Century’s only business was with Medicare and its beneficiaries, and that it was actually Ohaka who was operating the company; 2) Adegboye knew that he and Rufai were straw owners because

Ohaka wanted to hide his in volvement in First Century from Medicare; 3) Adegboye knew that Medicare was reimbursing First Cent ury hundreds of thousands of dollars for providing medical equipment to Medicare be neficiaries, and yet First Century had no inventory and no apparent means to purchase inventory; 4) Adegboye knew Medicare beneficiaries were complaining that they we re not receiving equipm ent they had ordered from First Century; 5) when Medicare began investigating First Ce ntury and throughout Medicare’s investigation, Adegboye activel y tried to cover up the fraud Ohaka was committing through First Centur y; and 6) Adegboye profited from First Century’s fraud. Considered together, this evid ence was sufficient to suppor t the jury’s ultimate finding, beyond a reasonable doubt, that Adegboye k nowingly and willfully aided and abetted

Ohaka’s fraud.9 a. Evidence that Adegboye knew th at he and Rufai were straw owners of Ohaka’s company, First Centur y, whose only business was with Medicare and its beneficiaries We begin by considering what Adegboye knew about First Century. There was evidence from which the jury could have found, beyond a re asonable doubt, that Adegboye knew that he and Rufai were straw owners of First Century and that it was Ohaka who actually ran the company. At Ohaka’s direction, Rufai incorporated First Century in September 2007, na ming Adegboye as First Centur y’s president and Rufai as its vice president. There is no indication that , in doing so, Adegboye or Rufai contributed any capital. A month later, Adegboye, who lived in Ne w York, visited Oklahoma City with Rufai. At that time, directed by Ohaka, Adegboye and Rufai opened bank accounts for First Century. There is no indication in the record as to who made any financial contribution to First Century, and in what amount, when these bank accounts were opened. Also at this time, Adegboye and Rufai, still dire cted by Ohaka, also obtained general liability insurance for First Century and began making arra ngements to lease commercial space. Adegboye wa s also present when Ohaka hired an employee, Tracina Pratcher, to work for both Ohaka’s company Vitacare and for First Century.

There was also evidence fro m which a jury could have found that Adegboye knew that First Century’s business model was to pr ovide only durable medical equipment that would be reimbursable by Medicare. Although by January 2008, First Century opened in a shopping center storefront, manned by on e employee, Pratcher, First Century had no10 inventory and never attempte d to provide equipment in any context other than to Medicare beneficiaries. Thus, although oste nsibly open in January 2008, First Century did no business until after Medicare approved it as a Medicare provider on May 20, 2008.

There was further evidence fro m which the jury could have found that Adegboye knew, not only that Ohaka wa s actually the one operating Fi rst Century, but that Ohaka was doing so in conjunction with his other comp anies. In addition to the evidence that

Ohaka hired Pratcher to work at both Ohaka’s co mpany Vitacare and at First Century, Adegboye was present wh en Ohaka directed his employees to train Pratcher on how to complete the Medicare reimbursement forms. And Ohaka had his Vitacare office manager contact Adegboye several times regard ing administrative deta ils that needed to be addressed on First Century’s behalf. Further, Adegboye and Rufai were the onl y signatories on First Century’s bank accounts, and it was only Ad egboye who wrote checks on the accounts. This put Adegboye in a position to know that First Century was incurring expenses—rent, wages, office equipment, remodeling work—but was not paying those expenses, at least not out of First Century’s bank account. In fact , Bank of America even tually closed First Century’s initial bank account due to inactivity. Not until se veral months after Medicare began reimbursing First Century, in August 2008, did Adegboye pay First Century’s rent, payroll and other overhead expenses from Fi rst Century’s new bank accounts. And once Adegboye began paying those expenses for First Century, he also wrote checks for rent, insurance and payroll for several of Ohak a’s other companies. Thus, Adegboye knew11 that he and Ohaka were ope rating First Century in conj unction with Ohaka’s other companies. From all of this evidence, then, a jury could have found that Adegboye knew, from the outset of First Century’s incorporation, th at he and Rufai were straw owners of First Century, which did business only with Medicare beneficiaries, and that Adegboye knew that it was actually Joshua Ohaka who was running First Century, and running it in conjunction with his other companies. 4 b. Evidence that Adegboye knew th at Ohaka wanted to hide from Medicare the fact that Ohaka was ac tually operating First Century

There was also evidence fro m which a reasonable juror could have found, beyond a reasonable doubt, that Adegboye knew that this business arrangement he had with Ohaka, Rufai and First Century, in which he acted as one of the straw owners of First Century, was the result of Ohaka’s desire to keep from Medicare the fact that he was actually operating First Century. It was Adegboye who completed the application for First Century to become a Medicare durable medical equipment provider. In making this application, Adegboye misrepre sented to Medicare that he alone owned and operated First Century. See Franklin-El, 555 F. 3d at 1121, 1123 (rely ing in part on the defendant’s misrepresentati ons to uphold his conviction for health care fraud).

4 Neither the defense nor the dissent disputes that a jury could have found that Adegboye knew 1) that he and Rufai were straw owners a nd 2) that it was Ohaka who was actually running First Century.12 More specifically, the Medicare applica tion required Adegboye to list “[a]ll persons who have a 5 percent or greater ownership (direct or indirect) interest” in First Century; “all officers and directors” of First Century; “[a]ll managing employees,” defined as “a general manager, business ma nager, administrator, director, or other individual who exercises operational or mana gerial control over, or who directly or indirectly conducts, the day-to -day operations” at First Century, whether or not that person is a First Century employee; and “[a]ll individuals with a partnership interest” in First Century. (Gov’t Ex. 1F, Section 6.) In response, Adegb oye falsely listed only himself, as an owner of 5% or more of Fi rst Century and as Firs t Century’s managing employee. Adegboye did not list Joshua Ohak a (or even Rufai for that matter) in any capacity. This same section of the Medica re application further inquired whether any listed person had been suspended from any federal health care pr ogram such as Medicare. A jury could have found, then, that Adeg boye misrepresented to Medicare that he, and not Ohaka, owned a nd operated First Century. Adegboye made this misrepresentation despite th e one and one-half pages of notice to Medicare billing applicants that making false representati ons in the application is a crime. The Medicare application further mandated that the applicant update any of the required information. Later, during and afte r the Medicare approval process, when Medicare twice directed Adegboye to revise First Century’s docum entation to list First Century’s office manager as a managing employee, Adeg boye still never mentioned

Ohaka.13 Further, when Medicare first began investigating First Ce ntury, in October 2008, it

asked for a number of documents and other information that would bring First Century into compliance with Medicare’s requirements. Adegboye, who assisted in providing First Century’s response to Medicare’s re quest, still did not indicate that Ohaka was involved in operating First Century. Even m onths after First Century ceased operating, Adegboye and his attorney s, in explaining to investiga ting officials why Ohaka, and not Adegboye, had possession of First Century’s records, indicated only that Ohaka was Adegboye’s friend and still never mentioned th at Ohaka played any role in operating First Century. A jury could infer from this conduct that Adegboye, from the outset of First Century’s incorporation, knowingly helped Ohaka hide from Medicare the fact that Ohaka was the one actually operating First Century. On appeal, Adegboye points out that th e documents he submitted to Medicare showed that First Century was connected with Ohaka. More specifically, as part of the application to become a Medicare provider, Adegboye provided Medi care with copies of

contracts between First Centur y and Ohaka’s company Vitacare in which Vitacare agreed to sell First Century medical equipment and to service equipment for First Century’s customers. Ohaka signed one of those contracts. Nonetheless, this fact was not enough to flag, for Medicare, Ohaka’s involvement in operating First Century. Nor does it absolve the misrep resentations Adegboye made in appl ying, on First Cent ury’s behalf, to become a Medicare provider.14 From the evidence presented at trial, then, a jury could have found, beyond a reasonable doubt, that Adeg boye knew that Ohaka did not want Medicare to know First Century was Ohaka’s company and Adegboye took action to hide that fact from

Medicare. From this evidence alone, a jury might be able to infer that Adegboye thus knew that Ohaka was committing Medicare fraud th rough First Century. But there was, in any event, still more evid ence from which a jury could in fer that Adegboye knew the specifics of Ohaka’s h ealth care fraud. c. Evidence that Adegboye knew that Medicare was reimbursing First Century for medical equipment it purportedly provided to Medicare beneficiaries, yet First Century ha d no inventory of durable medical equipment, nor any apparent mean s to purchase such inventory Although Adegboye was the straw owner of First Century, he was not completely an absentee owner. Instead, he remained involved with th e company’s operation throughout its existence. 5 Two aspects of Adegboye’s c ontinued involvement with First Century, in particular, put Adegboye in a position to know about the company’s fraudulent Medicare billing. First, after a pplying on First Century’s behalf for a Medicare billing number, Adegboye remained one of First Century contacts with Medicare. And second, Adegboye (with Rufai) was the only one with control over First

5 This fact provides a contrast between Ad egboye, whose convictions we uphold here, and his co-defendant Rufai, wh ose convictions we reverse in an accompanying opinion. There was no evidence presente d to the jury that Rufai’s involvement in First Century continued after January or perhaps March 2008, several months before Medicare approved First Century to be a Medicare provid er and, thus, several months before First Century began filing fa lse claims for reimbursement wi th Medicare. Adegboye, on the other hand, remained involv ed with First Century thro ughout its existence.15 Century’s bank accounts. Cf. United States v. Dazey, 403 F.3d 1 147, 1156, 1160 (10th Cir. 2005) (upholding fraud conviction in part because defendant controlled bank accounts of fraudulent investment company). As the person controlling Firs t Century’s bank accounts, a jury could have found, beyond a reasonable doubt, that Adegboye kne w the following: First Century never had an inventory of durable medical equipment. Nor did First Century have funds to purchase equipment. When Rufai incorporated First Century, neither Adegboye nor Rufai contributed any capital. Nor was there any evidence that First Century obtained financing or other funding to purchase inventor y from any other source. First Century’s initial bank account, opened in October 2 007, was eventually closed fo r lack of activity. And, although First Century incurred expenses during its start-up period—rent, wages, insurance, office equipment, remodeling its rented commercial space—First Century itself did not pay those expenses. Thus, in its start-up phase, First Century did not have funding to purchase inventory. When Adegboye initia lly applied for First Century to be a Medicare provider, in January 2008, Adegboye did submit agreements he had signed with two of Ohaka’s other companies, Optimed and Vit acare, extending credit to Firs t Century to facilitate its16 purchasing inventory from t hose two Ohaka companies. 6 But there is no indication that First Century ever purchased inventor y from these two Ohak a companies. During its pre-approval inspection of Firs t Century, in March 2008, Medicare’s inspector noted that First Ce ntury had little invent ory on hand, only a manual wheelchair and a walker contributed by First Century empl oyee Tracina Pratcher. Due to the lack of inventory, Medicare, before approving First Century to be a Medicare provider, requested

additional information from First Century in order to establis h that it would be able to purchase durable medical equipment to supply Medicare beneficiaries. This is because

Medicare has found that one of the telltale si gns of fraudulent billing is a company’s lack of inventory. In response to Medicare’s inquiry, Adegboye, in April 2008, provided

Medicare with a letter of credit from a no n-Ohaka company, Summit Durable Medical Equipment Co. There is no indication, howev er, that First Century purchased equipment from Summit until late September 2008. Medicare approved First Century to be a Medicare provider on May 20, 2008. First Century immediately be gan submitting claims to Medicare for reimbursement, even before it reopened its bank accounts on May 30, 2008. Yet there is no indication that

6 Medicare did not consider at least the le tter of credit from Optim ed to be valid, for purposes of First Century’s application to be a Medicare provider, because Adegboye failed to provide Medicare with a copy of th is agreement that in cluded both parties’ signatures.17 First Century had any inventory, or had yet purchased medical equipment, at this point in

time. 7 Through the next four months, from May 20 to September 30, 2008, First Century billed Medicare $1.2 million for equipment provided to 150 Medicare beneficiaries. And beginning August 1, 2008, Medicare deposited over $300,000 into First Century’s bank accounts. And yet there was no indication that First Century had ever purchased or paid for any durable medical equipment up until September 19, 2008. Adegboye’s continued involvement with First Century and his cont rol over First Century’s bank accounts placed him in a position to know this. Moreover, Adegboye physically visited Fi rst Century’s Oklahoma City storefront sometime in September 2008. It was during this same time period that Medicare, on September 22, 2008, conducted the unannou nced inspection of First Century that eventually led to that company’s downfall. During that inspection, Medicare noted that First Century had almost no i nventory at its offi ce location (one manual wheelchair), the employee manning the store did not know the name of the owner and, although Adegboye, in the application he filed on Fi rst Century’s behalf, indicated that First

7 The record contains a receipt issued by on e of Ohaka’s companies, Luant and Odera, to First Century, dated May 7, 2008. That re ceipt indicates that Fi rst Century purchased thirty-nine power wheelchairs for a sum of $39, 000, for which First Century paid cash. First Century, with Adegboye’s participati on, submitted this receipt to Medicare in November 2008, after Medicare began investig ating, among other th ings, First Century’s lack of inventory. A jury would not have ha d to credit this evidence , however, in light of contradictory evidence from First Century em ployees, particularly Florida Raines, that First Century had no inventory during this time period. See Dazey, 403 F.3d at 1160. Adegboye does not specifically rely upon this receipt, either at trial or on appeal.18 Century would keep its customer files at th e First Century storefront, there were only about ten files there, and thos e were incomplete and filled primarily with empty forms. From that evidence, a jury c ould further infer that Adegboye , because he had physically visited First Century at approximately the same time as Medicare’s inspection, was aware that First Century, in September 2008, ha d no inventory and minimal to no customer

files. From this evidence, then, a reasonable ju ry could have found, beyond a reasonable doubt, that Adegboye knew th at Ohaka was committing health care fraud through First Century, knew the essential nature of that fraud, and knowingly and willfully aided that fraud. There is, however, still more evid ence to support Adegboye’s convictions. d. Evidence that Adegboye knew First Century customers were complaining about not getting equi pment they ordered and receiving equipment that they had not ordered

There was also some evid ence that Adegboye was generally aware that First Century customers had been calling to comp lain about not receivi ng equipment they needed, and receiving equipment that they did not request. This evidence, considered with the other evidence previo usly mentioned, would further support the jury’s finding that Adegboye knew of Ohaka’s fraud an d knowingly and willf ully aided it. e. Adegboye’s efforts to c over up First Century’s fraud Perhaps the most compelli ng evidence that Adegboye knowingly and willfully aided Ohaka’s fraud was evidence that Adeg boye actively tried to cover up Ohaka’s fraud, once Medicare began investigating First Century, in the fall of 2008. See United19 States v. Verners, 53 F.3d 291, 295 (10th Ci r. 1995) (upholding conviction for aiding and abetting drug trafficking wher e, among other things, defenda nt actively attempted to conceal drugs). After Medicare ’s unannounced site visit to First Century, in September 2008, Medicare, on October 15, 2008, notified First Century that it had failed to comply, in a number of ways, with Medicare’s standard s applicable to durable medical equipment companies. One of the deficiencies Medicar e noted was that “[t]he inventory displayed during your site inspection is not sufficien t based on the amount you bill Medicare.” (Gov’t Ex. 1N at 2.) (Reca ll that First Century, betwee n May 20 and September 30, 2008, billed Medicare for over $1.2 million for medical equipment provided for Medicare beneficiaries, yet there is no evidence that First Century purchased or otherwise acquired any inventory during this same general time period.) “In order to prove compliance with this [Medicare] standard,” Medicare directed First Century “to submit all invoices for the month of June 2008, along with all credit agre ements and contracts for inventory. These credit agreements and contracts must contain all the information required by [Medicare] to be considered valid.” (Id.) Medicare ga ve First Century twenty-one days to correct

this and a number of other deficiencies in its compliance with Medi care standards. Adegboye participated in preparing First Ce ntury’s response to this notice and its attempt to correct the cited deficiencies. In response to Medicare’s direction to submit First Century’s June 2008 invoices, First Century submitted, among other documents, an

invoice from another of Ohaka’ s companies, Luant and Odera, indicating that on May 7, 2008, Luant and Odera sold First Century $39, 000 in power wheelchairs, for which First20 Century paid cash; 8 a list indicating that First Centur y had purchased over $74,000 in medical equipment from Summit between June 1 and November 7, 2008; and invoices from Summit to First Century dated between September 19 and November 6, 2008. In addition, within one week of Medica re’s October 15, 2008 notice to First Century, Adegboye wrote a ch eck on one of First Century a ccounts for $115,000, payable to one of Joshua Ohaka’s other companies, Providence, purportedly for the purchase of equipment. Adegboye himself then endorsed the check for Providen ce and deposited the

check in Providence’s account. While First Century did have contractua l relationships and letters of credit with other companies owne d and operated by Jos hua Ohaka, there is no evidence that First Century had any such relationship with Ohaka’s Providence. Nor is there any indication that First Century actually obtaine d any medical equipment from Providence. A jury could r easonably have found, beyond a reasonable doubt, that Adegboye’s thus transferring over $115,000 in funds from First Century to Providence, and his participation in submitting to Me dicare the wrong invoices, were efforts Adegboye undertook to cover up the h ealth care fraud that Ohaka was committing through First Century. The jury could, th us, have found beyond a reasonable doubt that Adegboye knew of Ohaka’s fraud and aided it.

8 As previously mentioned, the jury would not have been required to credit the veracity of this receipt, in light of cont rary testimony from Florida Rain es, who was working at First Century at this time, that First Century did not purchase any medical equipment and did not have any inventor y during this same time period. See Dazey, 403 F.3d at 1160.21 But there is still more. In October 2008, Medicare place d First Century on prepayment status, meaning Medicare would not reimburse any more claims from First Century until First Cent ury submitted to Medicare docum entation to prove each claim

submitted. When First Cent ury could not comply with Medicare’s requests for documentation of its claims, and when First Century failed to correct its noncompliance

with Medicare’s standards for durable medical equipment suppliers, Medicare, in January 2009, revoked First Century’s Medicare provider number. At that time, Medicare again requested First Century’s records. No on e, including Adegboye, responded to that request for months. In July 2009, the United States indicted Joshua Ohaka for health care fraud committed through another of his companies, Luant and Odera. In August 2009, Adegboye’s attorney sent a le tter notifying the Federal Bure au of Investigation (“FBI”) that when FBI agents in Houston seized doc uments from Ohaka, they also seized First Century’s records. Adegboye’ s attorney explained to the FBI that the reason Ohaka had First Century’s records was because Adegb oye had given those records to Ohaka for “safekeeping,” when Adegboye was in the process of moving First Century to New York. Adegboye’s attorney asked the FBI to sort through the reco rds it had seized from Ohaka and remove First Century’s records and return those to Adegboye, so he could respond to Medicare’s request for his First Century record s. Adegboye still did not reveal Ohaka’s role in operating First Century.22 Medicare apparently asked Adegboye ag ain for First Century’s records on September 16, 2009. In re sponse, Adegboye sent a sworn affidavit to Medicare, indicating the following: He owned First Ce ntury; because of financial difficulties, Adegboye decided to move First Century fro m Oklahoma City to New York; for this reason, Adegboye requested that his long-tim e friend Ohaka box Firs t Century’s files and ship them to Adegboye in Ne w York; because Ohaka lives in Texas, he first took First Century’s records to his home in Houston; wh en the FBI seized Oh aka’s files, agents seized First Century’s files, too; although Adegboye’s attorney had requested that the FBI locate First Century’s files and return thos e to Adegboye, Adegboye had not yet heard

back from the FBI. For these reasons, Adegboye asked Medi care for additional time to respond to its request for First Century’s records. Adegboye, then, continued to misrepresent that he was First Century’s ow ner and Ohaka was not involved in running the company. 9

9 This case is distinguishable from United States v. Rahseparian, 231 F.3d 1257 (10th Cir. 2000), on which the dissent relies. In Rahseparian, this Court reversed Jack Rahseparian’s convictions for mail fraud and conspiracy to comm it mail fraud, which were based solely on false exculpatory stat ements that Rahseparian made to police one and one-half years after the conclusion of a fraudulent scheme opera ted by others through a business with which Rahseparia n was tangentially involved. Id. at 1261-64. This Court concluded that Rahseparian’s after-the-fact exculpatory statements did not support the inference that he knew of the fraud at the time it was occurring. Id. at 1264. In this case, assuming Adegboye’s September 2009 after-t he-fraud affidavit was an exculpatory statement—if Adegboye had not known of Ohaka’s fraud, a more exculpatory statement might have been that it was really Ohaka who was runnin g First Century—there was, unlike in Rahseparian, additional evidence indicating Adegboye had been aware, the entire time, of Ohaka’s scheme to defraud Me dicare through First Century, and that Adegboye acted to facilita te that scheme throughout Firs t Century’s existence. Thus, a23 Even more telling, however, was that, ju st a month before Adegboye and his attorney indicated to investig ators that Ohaka was not involv ed in running First Century, Adegboye was taking a markedly different tone with Ohaka. On Ju ly 6, 2009, Adegboye

sent Ohaka an email stating the following: I know you have refused to pick my calls . No PROBLEM. But the issue of First Century is a recurring decimal, not untill [sic] we sit down and tackle the issue like matured an d responsible adults, we are only postponing the evil day. And i [sic] pray it does not get to that stage. Please go through the attached doc. [a collection notice indicating that Adegboye, as First Century’s rent guarantor, owed over $43,000 for First Century’s unpaid rent] a nd advise. They claim no key was giving [sic] to them., [sic] which you c onfirmed to be true. I will be expecting your call. (Ex. 31.) From this evidence, viewed together with the other evidence previously mentioned, a jury could find, beyond a r easonable doubt, that Adegboye knowingly and willfully aided Ohaka’s fraud, including actively trying to cover it up. f. Adegboye profited fr om First Century’s fraud Lastly, there was evidence that Adeg boye profited some from First Century’s

fraud. This evidence further su pports the jury’s finding, beyond a reasonable doubt, that Adegboye knew about Ohaka’s fra ud and willfully aided it. See Verners, 53 F.3d at 295 (upholding conviction for aiding and abetting drug traffickin g where, among other things, reasonable jury could have found that Adegboye’s Sept ember 2009 affidavit was a continuation of his efforts undertaken thr oughout the fraudulent sc heme to help Ohaka conceal from Medicare his involvement in First Century.24 evidence indicated that defendant benefitte d from drug trafficking occurring in her home). g. Viewing this evidence as a whol e, a reasonable jury could have found Adegboye guilty, beyond a re asonable doubt, of knowingly and willfully aiding and abetting Ohaka’s health care fraud Viewed in isolation, there could be innocen t explanations for at least some of these circumstances, explanations wh ich could have led a reasonable jury to find that Ohaka had duped Adegboye into unknowingly bei ng the straw owner of a company through which Ohaka was defrauding Medicare. But viewing the evidence as a whole, a reasonable jury could also have found that Adegboye knew all along that Ohaka was defrauding Medicare through Fi rst Century, that Adegboye knowingly and willfully associated himself with that venture, and th at Adegboye took action to help the venture

succeed. That is sufficient ev idence for a reasonable jury to find beyond a reasonable doubt that Adegboye aided and abetted the five substantive fraud counts charged against

him. 10 See United States v. Phillips, 543 F. 3d 1197, 1210 (10th Ci r. 2008) (affirming aiding-and-abetting convictions wh ere, “[e]ven if none of the[ ] facts, taken alone, would be sufficient proof to uphold [the defendant’s] convictions, the combination” of facts supported by the evidence was suffi cient to uphold the convictions).

10 We do not read Adegboye’s brief to make a separate argument that his convictions were the result of jury confusion and mistake. But, to the extent he is making such an argument, we reject that contention as well. In response to the jury ’s notes sent to the trial court during the jury’s deliberations, the c ourt gave jurors additi onal instructions that cleared up any confusion.25 III. CONCLUSION The question of whether there was suffici ent evidence to su pport the jury’s finding, beyond a reasonable doubt, that Ad egboye aided and abetted Ohaka’s fraud is a close one. But the jury found that Ade gboye knew about Ohaka’s fraudulent scheme, willfully associated himself with that scheme , and acted to aid that scheme’s success. Because the Government presented sufficien t evidence from whic h a reasonable jury could have reached that finding, beyond a reasonable doubt, we AFFIRM Adegboye’s

convictions.12-6035, United States v. Adegboye Judge MATHESON , dissenting 1 The majority correctly conc ludes the sufficiency of the evidence issue “is a close one.” Maj. Op. at 24. The Government pr esented substantial evidence that Medicare fraud occurred at First Century. In the related appeal of United States v. Rufai , No. 12- 6034, we concluded that the Government proved M r. Ohaka knowingly committed Medicare fraud and Mr. Rufai and Mr. Adegboye performed functions at First Century that enabled Mr. Ohaka to do so. But provin g what happened is not the same as proving knowledge. In Rufai , we held the evidence was insufficient to prove that Mr. Rufai knowingly aided and abetted health care fraud. A lthough Mr. Adegboye’s case is a closer one, I would hold the same here. The Go vernment’s strong case against unindicted Medicare defrauder Mr. Ohaka should not be improperly imputed to others.

The critical issue is whether Mr. Ade gboye knew about the fraudulent Medicare billing scheme at First Centur y and intended to defraud Medicare. At trial, the Government presented no direct evidence of Mr. Adegboye’s knowledge and intent, so

the issue is whether th e jury could reasonably have infe rred knowledge and intent beyond a reasonable doubt based upon the circumstantial evidence. See United States v. Rahseparian , 231 F.3d 1257, 1262 (10th Cir. 2000).

1 This dissenting opinion incorporates by refe rence the discussion of facts, procedural history, and legal background from Sections I.A., I.B., II.A. (ex cept II.A.3.), II.B., and II.C.1. from this court’s unanimous opinion in the related appeal of United States v. Rufai , No. 12-6034.2 A. Circumstantial Evidence After careful review of the record, I believe the circumstantial evidence relevant to the central question of Mr. Ad egboye’s knowledge and inte nt falls into the following categories: (1) Mr. Ohaka’s role in managing First Century and committing Medicare fraud; (2) Mr. Adegboye’s role in setting up and maintainin g First Century as a straw owner scheme; (3) Mr. Adegboy e’s role in securing Medi care billing approval; (4) Mr. Adegboye’s role in managi ng First Century; and (5) Mr. Adegboye’s affidavit to Medicare, submitted after Mr. Ohaka had been in dicted for health care fraud in Texas, omitting Mr. Ohaka’s role in First Century. 2 Mr. Ohaka’s role at First Century 1. Mr. Ohaka recruited Mr. Rufai and Mr. Adeg boye and directed them in setting up the company. Testimony of First Century and Vitacare empl oyees established that Mr. Ohaka played the dominant role in Firs t Century’s management, including from May 2008 to September 2008 when First Century was submitting false bills to Medicare. Although Mr. Adegboye was p resent at some hiring interviews (for employees who initially worked at Mr. Ohaka’s other DME companies and later at First Century), Mr. Ohaka hired the employees and decided who would work at each of the DME companies, including First Century. He decided whic h company would pay the employees and what

2 The majority opinion points to other evidence that it des cribes as evidence of a “cover up.” For reasons I explain below, this evid ence does not support conclusions about Mr. Adegboye’s knowledge.3 work they would do. He also monitored whether bills had been paid and whether First Century had renewed its state permits. He received First Century’s email correspondence from the NSC and forwarded it to Mr. Adegboye. Mr. Ohaka procured the Medicare customers, directed the employees in filli ng out the Medicare pape rwork, and decided whether First Century or one of his other companies would submit the claims. Mr. Ohaka’s DME company employees consider ed him to be the manager and/or owner of First Century. Ms. Pratcher, a Vitacare and First Century employee, testified that Messrs. Ohaka, Rufai, and Adegboye were partners in the medical supply business, including Vitacare and First Cent ury, with Mr. Ohaka as the senior partner. She testified

that she called Mr. Ohaka with questions or problems when ever she could not get in touch with Mr. Rufai or Mr. Adegboye. Ms. Rinker testified that she had assumed Mr. Ohaka was an owner of First Century, and becaus e of this belief she to ld inspectors at the March 2008 site inspection that First Cent ury’s owner had other DME companies. She

further testified that Mr. Ohaka was her first point of contact for Fi rst Century business, that First Century and Mr. Ohaka’s other bu sinesses were run the same way, and that “[t]hings were always jumbled in betwee n the businesses.” Trial Tr. at 227.

Mr. Ohaka called the shots at First Cent ury. Employees recognized him as the owner and lead manager. It is reasonable to conclude that Mr. Adegboye regarded Mr. Ohaka similarly, that he kne w Mr. Ohaka controlled what happened at the company. Without more proof, however, it does not follow Mr. Adegboye knew everything that Mr. Ohaka did, including submission of false billing claims to Medicare.4 Straw owner scheme 2. Mr. Adegboye’s actions to set up and main tain First Century from September 2007 until January 2009 support a finding that he knew he was a straw owner. The Government presented substantial evidence th at Mr. Adegboye and Mr. Rufai acted as straw owners at First Century while Mr. Ohaka managed the company behind the scenes. Mr. Adegboye’s name was listed on all First Ce ntury legal documents: articles of incorporation, bank accounts , service agreements, purchase agreements, leases, insurance contracts, and Medicare application materials. Mr. Ohaka’s name did not appear on any

of these documents. Although silent business p artners are not uncommon in la wful enterprises, a jury

could conclude that the straw owner scheme established for First Century raised a red flag to Mr. Adegboye that “ something was amiss” at First Century. See United States v.

Lovern , 590 F.3d 1095, 1106 (10th Ci r. 2009). But knowing th at something was amiss is not sufficient to conclude that Mr. Adegboy e knew Mr. Ohaka was planning to or did

submit false bills for Medicare reimbursement. See id. (reversing conviction for insufficient evidence). Medicare billing approval 3. From January 2008 to Ma y 2008, Mr. Adegboye partic ipated in securing Medicare billing approval for First Century. On January 8, he si gned and submitted First Century’s enrollment application material s to bill Medicare. The application warned of criminal penalties for providing false info rmation. It also warned that “payment of a claim by5 Medicare is conditioned upon the claim and th e underlying transaction complying with [Medicare] laws, regulations, and program inst ructions” and that the Medicare provider could not “submit claims with deliberate ignora nce or reckless disregard of their truth or falsity.” Government Trial Ex. # 1F, Aplee. Suppl. Appx. at 61. In Section 6 of the application, Mr. Adegboye was required to lis t any individuals with a five percent or greater ownership, anyone with a partnershi p interest, and all managing employees. In the initial application, Mr. Adegboy e listed only himself as an owner and managing employee, which was consistent with the virtual absence of business activity at First Century during the peri od of pre-Medicare approval, 3 but inconsistent with Mr. Ohaka’s assistance in setting up First Century. Mr. Adegboye attached to the application a letter of credit signed by Mr. Ohaka. Despite a continuing duty to update the application, he never listed Mr. Ohaka as an owner or managing employee, 4 even though a jury could reasonably infer that Mr. Ad egboye knew Mr. Ohaka was managing First Century as a Medicare reimbursement busine ss. On the enrollm ent materials, Mr.

3 Ms. Raines testified that when she worked at First Century, before it was approved to bill Medicare, First Century only sold some scrubs. Nothing in the record indicates any other non-Medicare sales at First Century.

4 He certified that he would notify the NSC of any changes to the information in the application within 30 days. This requirement was reinforced after the March and September 2008 site inspections, when the NSC discovered first Ms . Rinker and later Ms. Unsell at the store and inform ed Mr. Adegboye that he sh ould list them as managing employees. He did so as to Ms. Rinker but listed Ms. Unsell as a “delegated official,” someone with “the authority to [make] changes and updates to the” Medicare application. A delegated official must be listed elsewhere in the application as an owner or managing employee.6 Adegboye directed that all email correspondence from Medi care be sent to an email address belonging to Mr . Ohaka, one that did not identify Mr. Ohaka as the recipient. I address below whether Mr. Adegboye’s handling of the Medi care application is “enough to transform the government’s weak evidence . . . into proof [of knowledge] beyond a reasonable doubt.” United States v. Leos-Quijada , 107 F.3d 786, 795 (10th Cir. 1997) (reversing for in sufficient evidence)

. Mr. Adegboye’s role at First Century 4. Mr. Adegboye functioned as a straw ow ner and was mostly in New York and absent from the First Century o ffice in Oklahoma. He visited occasionally and stayed in touch by telephone and email, but the record lacks evidence that he visited during the time that First Century submitte d the false bills to Medicare un derlying the charges in the indictment. He helped run the business by paying bills, 5 responding to issues raised by employees, and communicating with Mr. Ohaka. He also withdrew funds from the First Century bank account for personal use. In addition to su bmitting applica tion paperwork to Medicare, he was responsible for submitti ng First Century’s requi red filings to state

authorities. 6 Ms. Rinker testified that she told Mr . Adegboye that customers complained

5 Mr. Adegboye wrote checks from the First Century account for th e rent of Luant, Optimed, Providence, and Vit acare and for Ms. Rinker’s salary , as well as a check to Harco Heating and Air for s ervices provided to Vitacare. Although a federal agent testified that there was no evidence First Century purchased supp lies from Providence, First Century sent $56,000 via wire transfers to an acc ount held by Providence.

6 On May 11, 2008, Mr. Ohaka emailed Mr. Ad egboye to tell him th at First Century had not submitted a renewal appli cation required by the Oklahoma state health authority.7 of not receiving their equipment or receivi ng equipment they di d not order. The Government argues th at Mr. Adegboye’s First Ce ntury activities permit an

inference that he knew about h ealth care fraud because it woul d be unusual not to have such knowledge with his level of involvement. This argumen t goes too far. For example,

Ms. Rinker was even more involved in runni ng Mr. Ohaka’s businesses, including First Century, and she at most had a suspici on that Mr. Ohaka was committing health care

fraud. See Rahseparian , 231 F.3d at 1264 (noting that “suspicion is insufficient to support an inference that [an individual] in tended to join” a criminal scheme). The majority opinion emphasizes that Mr . Adegboye was told that customers had complained about not receivi ng equipment. The problem , however, is that the Government did not present evidence that Mr. Adegboye knew anything about the

volume of complaints. All businesses receive at least some cust omer complaints, and First Century was a new business that wa s just establishing its operations. The Government did not show that Mr. Adeg boye knew enough about the complaints to determine they were a result of fraud instead of something mo re benign, such as slow or disorganized opera tional processes. False exculpatory stat ements to Medicare 5. First Century ceased operations in January 2009. Mr. Ohaka was indicted in July 2009. At trial the Government presented an affidavit Mr. Adegboye sent to Medicare in September 2009 that understated Mr . Ohaka’s role at First Century.

After-the-fact statements to hide on e’s involvement in illegal activity “are8 admissible to prove circumstantially cons ciousness of guilt or unlawful intent.” United

States v. Davis , 437 F.3d 989, 99 6 (10th Cir. 2006); see also United States v. Bailey , 327 F.3d 1130, 1140 (10th Cir. 2 003) (stating that “[i]ntent ma y be inferred from evidence that the defendant attempted to conceal activity,” from misrepresentations, and from knowingly making false statements). But su ch evidence has low pr obative value under our precedent.

Our decision in Rahseparian , 231 F.3d 1257, is inst ructive. We reversed defendant Jack Rahseparian’s convictions for money laundering, mail fraud, and conspiracy to commit mail fraud because the ev idence was insufficien t to show criminal

intent. Id. at 1260. The case concerned Genesi s Marketing, a telemarketing business through which sons Ardie a nd Steve defrauded customers by failing to deliver products and prizes to them. Id. The customers sent checks to a mailbox. Id. at 1261. Mr. Rahseparian retrieved the ch ecks and deposited them in three bank accounts, two belonging to his business, and one established in his and Steve’s names. Id. He called Ardie almost every day to ask about how ma ny checks to expect and the dollar amount.

Id. Although Mr. Rahseparian facilitated the fraud by accepting and depositing the checks, and although he had frequent contact with his son, we held this was not enough to prove intent. The Government relied prim arily on false exculpatory statements Mr. Rahseparian made to law enforcement office rs when they first asked him about the source of the deposited funds. Id. He denied knowing anything about Genesis, the9 mailbox, and the joint bank account, and stated falsely that he cashed Genesis checks for someone for whom he did catering events. Id. We said there was “no evidence [M r. Rahseparian] was aware of the misrepresentations being made to customers, or that they were not receiving their products or prizes.” Id . at 1263. We also said the “[f] alse exculpatory statements cannot by themselves prove the government’s case.” Id . The statements did “clearly support an

inference that by then [he] had a suspicion of criminal activity.” Id . at 1264. “[E]ven if [he] were suspicious of his sons’ activities at the time he was depositing their checks, such a suspicion is insufficien t to support an inference that he intended to join known criminal activity.” Id

. In his affidavit to Medicare explaining th at he had asked the FBI to return First Century documents to him so that he could turn them over to Medicare, Mr. Adegboye

described Mr. Ohaka as a “close friend” but falsely implied Mr. Oh aka had nothing to do with First Century. By this time, Mr. Adeg boye knew that Mr. Ohak a had been indicted

in Texas for health care fraud and therefore ha d reason to conceal that he was in business with Mr. Ohaka at First Century. Does this evidence show that Mr. Adegboye knew

about Mr. Ohaka’s health care fraud at First Century when it occurred? Rahseparian teaches that false exculpatory statements made months after the alleged criminal activity ceased have limited probative va lue to show su ch knowledge. Although we have recognized that false exculpatory stat ements can be evidence of consciousness of guilt, see United States v. Caldwell , 560 F.3d 1214, 1220 (10th Cir.10 2009) (stating “the jury could infer Mrs. Caldwell’s guilty knowledge [of events taking place over three years before] if they di sbelieved her exculp atory testimony”); Davis , 437 F.3d at 996 (stating “false exculpatory statem ents [made eight days after a bank robbery to an FBI agent investiga ting it]. . . are admissible to prove circumstantially consciousness of guilt or unlawful intent”), such statements do not necessarily indicate knowledge of criminal activ ity at the time it occurred. Rather, as we noted in Rahseparian , such statements may indicate no more than an after-the-fact realization that the declarant, unbeknownst to him, may have been involved earlier in illegal activity, with the accompanying desire to distance himself from suspic ion as much as possible. 231 F.3d at 1264. Mr. Adegboy e’s affidavit misstated Mr. Ohak a’s role at First Century, but it came almost a year after the fraudulent activity had ceased. It may show that Mr. Adegboye knew about the Medicare fraud “ by then ,” id ., and that he may have been suspicious 12 months earlier, but it is not en ough to support an in ference of knowledge about the fraudulent billing when it was occurring. The majority opinion suggests that ev idence in the reco rd shows that Mr. Adegboye made efforts to “cover up” Firs t Century’s fraud. But apart from Mr. Adegboye’s Medicare affidavit discussed above , the evidence the majority cites does not demonstrate a cover up and does not go to Mr. Adegboye’s knowledge. For example, after Medicare informed First Century that its inventory was too low, Mr. Adegboye provided Medicare with invoices indicating th at First Century had purchased inventory from other companies, including an invoice for $115,000 from Pr ovidence, which was11 owned by Mr. Ohaka. Mr. Adegboye wrote a check from First Century’s account in the amount of $115,000 and deposited it di rectly into Providence’s account. The majority infers from th is that Mr. Adegboye was c overing up First Century’s fraud. This inference might be reasonable if Mr. Adegboye had not actually delivered the funds to Providence, but he did so. The infe rence might also be reasonable if there was evidence Mr. Adegboye knew that Providence would not ultimat ely deliver th e inventory,

but there was no such evidence. Mr. Adegboye was in Ne w York, and everyone agrees he had little involvement in First Century’s op erations. These facts simply do not tell us anything about Mr. Adegboye’s knowledge of the fraud.

B. Totality of the Circumstances “Sufficiency of the eviden ce determinations are made by assessing the totality of

the circumstances in the individual case.” Torres v. Mullin , 317 F.3d 1145, 1164 (10th Cir. 2003). The Government’s evidence painted a picture of Mr. Adegboye as a mostly absentee participant in a busine ss for which he allowed his name to be used as a principal but in which Mr. Ohaka was in charge and actively managed operations. A jury could infer that Mr. Adegboye knew that (1) he was a straw ow ner and that Mr. Ohaka was running First Century; (2) Fi rst Century’s business served only Medicare beneficiaries; (3) First Century depended on Medicare reim bursements for its revenue; (4) Medicare had found deficiencies in its operations; (5) he misrepresented the true ownership and management of First Century to Medicar e when First Century was seeking and maintaining Medicare enrollment approval and (6 ) later when he submitted an affidavit to12 Medicare after operations had ceased; and (7) customers had complained about not receiving equipment. The Government also presented evidence that, while Mr. Ohaka and First Century were commit ting Medicare fraud, Mr. Ade gboye paid bills, withdrew funds, and interacted with First Cent ury employees, Mr. Rufai, and Mr. Ohaka. 7 Of the foregoing, the Government’s cas e turns mostly on how Mr. Adegboye handled the application to enroll First Cent ury as a Medicare pr ovider. He listed only himself on the original application. Late r he added Ms. Rinker and Ms. Unsell when Medicare inspectors told him to do so. Even though the enrollmen t form called for identification of managing employees and for updating the form, and even though Mr. Adegboye knew that Mr. Ohaka was managing First Century, Mr. Adegboye never listed Mr. Ohaka (Mr. Ohaka’s name did appear on an attachment to the original application). But even if a jury could reasonably infer that Mr. Adegboye k nowingly concealed Mr. Ohaka’s identity from Medicare, could it furthe r infer that Mr. Adeg boye knew that Mr. Ohaka was falsely billing Medica re? The issue is very close, and the needed inference

itself rests on an inference. This is where the two key parts of the sta ndard of review come into play. The first

7 On July 6, 2009, well after First Century’s billing privileges had been revoked and just before Mr. Ohaka was indicted, Mr. Adegboye emailed Mr. Ohaka (copy to Mr. Rufai) a letter from the attorneys of Fi rst Century’s landlords about de bts First Century owed. Mr. Adegboye told Mr. Ohaka that they needed to “sit down a nd tackle the issue like matured [sic] and responsible adults,” or they were “only postponing the evil day.” Government Trial Ex. # 31, Aplee. Suppl. Appx. at 586. This email may indicate that Mr. Adegboye expected Mr. Ohaka to help wi th First Century’s rent, but it does little or nothing to show that Mr. Adegboye knew of Mr. Oh aka’s fraudulent billing scheme.13 part asks what a reasonable jury could fi nd about Mr. Adegboye ’s knowledge. A reasonable jury could find by inference that Mr. Adegboye knowingly concealed Mr.

Ohaka’s name on the Medicare enrollment form s. From this inference and the other evidence, a reasonable jury co uld suspect and also possibl y infer that Mr. Adegboye knew about Mr. Ohaka’s submitting false bills to Medicare. Th e second part of review asks whether a reasonable jury could draw this second inference beyond a reasonable

doubt. An affirmativ e answer would establish the rema ining essential element of the aiding and abetting offense—th at Mr. Adegboye knew abou t Mr. Ohaka’s false billing scheme. The Government must present substan tial evidence that a ju ry could draw this

inference from the Medicare enro llment inference. Based on review and analysis of the record, and viewed in the light most favorab le to the Government, the Government fell

short. Adding the straw ownership scheme, cust omer complaints, a nd other evidence does not strengthen the Medicare application ev idence as a basis to infer Mr. Adegboye’s knowledge of false billing, no r does it solve the problem that his activity in the business

lacked an evidentia ry connection to the Medicare billing. 8 His affidavit downplaying Mr. Ohaka’s role in First Century may suppor t consciousness of Medicare fraud when he

8 The customer complain t evidence is based on Ms. Rinke r’s testimony, which fails to establish the number and types of complaints, what Mr. Ohaka told Ms. Rinker to tell Mr. Adegboye, what she actually told him, or how the comp laints differed from delivery miscues that product supply businesses typically face, especially in the starting months of a new business. And she ultimately testif ied that she did not tell him about any “particular” complaints. Trial T r. at 226, 249-50, 308-09, 312.14 signed it, but the affidavit statements were made after Mr. Adegboye knew about Mr.

Ohaka’s indictment for health care fraud in Te xas and about one year after First Century

last billed Medicare.

This case is similar to Rahseparian . In that case, we said the government’s evidence – that Mr. Rahseparia n (1) served as the contact for the Genesis Marketing mailbox, (2) conducted Genesis’s banking th rough his own personal business accounts, thereby commingling funds and making them more difficult to trace, (3 ) talked daily with his son about incoming checks, (4) purchased “lead sheets” for Genesis using a cashier’s check rather than a business check, and (5 ) made false exculpatory statements to investigators months after the alleged fraud en ded – was insufficient for a reasonable jury

to find that he knew Genesis was committing telemarketing fraud. Like Mr. Rahseparian, Mr. Adegboye made false exculpatory statements to the government months (about a year) after the fraudulent activity had ended. The Rahseparian court said that the false exculpatory st atements alone were insufficient. I

would reach the same conclusion about M r. Adegboye’s affidavit, which was less incriminating than Mr. Rash eparian’s statements to investigators. As in Rahseparian , the prosecution presented evidence in additio n to Mr. Adegboye’s false exculpatory statement. Although that evidence may have been a bit stronger than in Rahseparian – the Medicare billing approval evidence in particular – it was, as in Rahseparian , insufficient to infer knowledge of the alleged billing fraud beyond a reasonable doubt.15 Mr. Ohaka recruited Mr. Adegboye and Mr. Ru fai to be the front men for his fraudulent business. It is possible that Mr. Adegboye was duped into thinking he had been given a legitimate business opportunity and later may have suspected the business was illicit in some way, especially after Mr. Ohaka had be en indicted. On the other hand, as the indictment alleged, he may have been aware of Mr. Ohaka’s billing scheme and First Century’s fraudulent Medicare claims at the tim e of the criminal activ ity. But if the latter is true, the Government did not prove it beyond a reasonable doubt, directly or circumstantially. Mindful of the standard of review that applies to a sufficiency of the evidence challenge, I would reverse Mr. Adeg boye’s conviction for aiding and abetting

health care fraud. 9

9 After arguing that the eviden ce was insufficien t to support his conviction, Mr. Adegboye contends that the only explanation for his aiding and abetting convictions and his acquittal for conspiracy is th at the jury was confused and mistaken on the law. This argument appears to attempt to reinforce M r. Adegboye’s insufficien cy of the evidence argument rather than stand as a separate issue. In particular, he argues that the jury held him strictly liable for the actions of First Century because he was responsible for its dealings as its owner and becau se he signed the Medicare a pplications. Because I would hold that the evidence was in sufficient, the court need not reach this argument.