NOT RECOMMENDED FOR PUBLICATION

File Name: 24a0117n.06

No. 23-1470

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KENNETH D. MITCHELL,

Defendant-Appellant.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE EASTERN

DISTRICT OF MICHIGAN

OPINION

Before: GIBBONS, BUSH, and MURPHY, Circuit Judges.

JOHN K. BUSH, Circuit Judge. A jury convicted Kenneth D. Mitchell of conspiracy to 

commit healthcare and wire fraud, healthcare fraud, falsifying records involving a federal 

investigation, and aggravated identity theft. Mitchell’s appeal primarily challenges the sufficiency 

of the evidence that he knowingly and willfully participated in the fraudulent activity. As to this 

contention, we conclude that sufficient evidence supports the convictions and affirm.

I.

A. Medicare 

Mitchell was indicted for crimes relating to Medicare. The Centers for Medicare and 

Medicaid Services (CMS) manages Medicare, which provides health insurance coverage to the 

disabled and individuals aged 65 and older. Medicare reimburses health care providers for certain 

services provided to eligible patients. To obtain lawful reimbursement under the program, a 

provider must comply with its rules and procedures. Relevant here, enrolled providers receive a 
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unique National Provider Identification (NPI) number and must use their own NPI number to file 

reimbursement claims with Medicare. Medicare reimburses for services only if they were 

medically necessary and were actually rendered to the identified patient by the provider with the 

NPI number listed on the claim. 

B. Mitchell’s Medical Background

Mitchell and his ex-wife Shazia Malik are podiatrists. They met in podiatry school, 

married in 2003, but lived apart from each other for many years. Mitchell did his medical 

residency in Michigan, while Malik maintained a podiatry practice in Montreal.

After completing his residency, Mitchell remained in Michigan and worked for a podiatrist 

named Rondy Goins. Eventually Mitchell opened his own practice, Mitchell Health Care,

followed by a second practice, Quality Foot and Ankle, several years later. Both practices 

performed the same type of podiatry services and primarily treated Medicare patients. Mitchell 

was the sole provider at both practices, and he billed Medicare using his NPI number.

The billing, however, was not without some bumps. Over the course of a decade, Mitchell 

lost his Medicare privileges on three separate occasions: in 2005, when he provided an employee 

with unauthorized access to patient information; in 2011, when he had an issue with his state 

medical license; and finally, in 2015, when he billed for patients who were deceased at the time of 

the claimed services and for patients who purportedly received home care but were actually in the 

hospital. As to the controversies in 2005 and 2011, Mitchell successfully obtained reinstatement 

on appeal of the decisions to revoke his privileges. But after the infractions in 2015, CMS denied 

Mitchell’s appeal for reconsideration and his privileges remained revoked.
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C. Alleged Fraud at Issue

In 2015, Mitchell closed his two practices and opened Urban Healthcare Group (Urban). 

He enlisted Malik, still working in Montreal, to serve as Urban’s chief executive officer while he 

operated its day-to-day operations. Mitchell prepared everything required to set up, incorporate, 

and register Urban as a company with the state. He also helped Malik become licensed to practice 

in Michigan: she acquired a social security number, received an NPI number, and enrolled in 

Medicare as the manager of Urban.

But the primary treating physician at Urban was Mitchell, not Malik. And because Mitchell

was again treating Medicare patients, he had to overcome the problem of his program privileges

being suspended. He resolved this issue by using Malik’s NPI number on Medicare reimbursement 

claims and listing her as the treating physician even though Mitchell had provided the services.

Urban’s deceptive Medicare reimbursement approach was discovered in 2017, when 

Health and Human Services (HHS) agents, as part of an unrelated investigation, surveilled Rondy 

Goins attempting to treat an Urban Medicare beneficiary. By then, Goins’s Medicare privileges 

had been revoked, and he had also lost his podiatry license. After HHS agents confronted Goins, 

he agreed to cooperate with their investigation into Urban.

HHS agents created a fictitious Medicare patient named Aaron Georges and directed Goins

to meet with Mitchell on September 27, 2017, to provide him with documentation showing that 

Goins had “treated” Georges earlier that month. As a result of that meeting, Mitchell provided 

Goins with a $750 check from Urban, with “consulting” written on the memo line. Such a payment

was not unusual. Indeed, in the preceding seven months, Urban had issued Goins nineteen checks

for his alleged treatment of Urban patients, all of which Mitchell had signed.
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Other claims that Urban submitted to Medicare included: a visit to a patient named Hideko 

Graham, whom agents prevented Goins from treating in August 2017; four claims for another 

patient, Scott Compton, which included purported treatment in October 2017, though he had died 

in July 2017; and a second visit with the fictitious Georges, which occurred on November 7, 2017. 

These submissions, and several other claims that Urban remitted to Medicare, cited Malik as the 

treating physician, even though she remained primarily in Canada, visited Urban only two to three 

days a month, and by her own admission, was not the treating physician for Urban. In fact, Malik 

testified that she only occasionally assisted Mitchell in seeing patients.

On June 7, 2018, HHS agents executed a search warrant at Urban’s office. There, they 

found several records indicating that Urban documented patients seen by Goins but sought

reimbursement from Medicare using Malik’s NPI number. A grand jury returned an indictment 

against Mitchell on June 21, 2018, charging him with one count of conspiracy to commit healthcare 

and wire fraud, and three counts of healthcare fraud. On June 28, 2018, CMS suspended Urban’s 

Medicare privileges.

On July 25, 2018, CMS sent a letter to Urban, addressed to Malik, notifying her of Urban’s 

alleged fraudulent activity. Urban responded in a letter to CMS on August 8th, asking for 

reinstatement of its Medicare privileges. Enclosed with Urban’s letter were attestations from 

facilities that Mitchell frequented, which declared that Malik provided treatment to patients 

residing in those facilities. However, Malik testified that she was not aware of either the 

suspension letter sent to her from CMS or the letter from Urban (purportedly signed by her) to 

CMS requesting reinstatement. According to Malik, she first became aware of Urban’s alleged 

fraudulent activities after she received a target letter from the government in March 2019. 
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Upon receipt of that notification, she agreed to cooperate with the government’s investigation in 

exchange for immunity.

D. Procedural History

After a trial in August 2022, a federal jury convicted Mitchell on one count of conspiracy 

to commit healthcare and wire fraud, three counts of healthcare fraud, one count of falsifying 

records involving a federal investigation, and one count of aggravated identity theft. The jury 

acquitted Mitchell on one charge of witness tampering. The district court sentenced Mitchell to

84 months’ imprisonment and ordered him to pay $949,316.47 in restitution. He timely appealed. 

II.

We review challenges to the sufficiency of evidence de novo. See United States v. Collins, 

799 F.3d 554, 589 (6th Cir. 2015). Still, the defendant “bears a very heavy burden.” Id. (quoting 

United States v. Davis, 397 F.3d 340, 344 (6th Cir. 2005)). In evaluating a sufficiency challenge, 

we must affirm a conviction if “after viewing the evidence in the light most favorable to the 

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

a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). “We do not weigh the 

evidence, assess the credibility of the witnesses, or substitute our judgment for that of the jury, and 

circumstantial evidence alone is sufficient to sustain a conviction, even if it does not remove every 

reasonable hypothesis except that of guilt[.]” United States v. Hendricks, 950 F.3d 348, 352 (6th 

Cir. 2020) (cleaned up). “This familiar standard gives full play to the responsibility of the trier of 

fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable 

inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319.

On appeal, Mitchell contends that there was insufficient evidence to support his conviction 

for conspiracy to commit healthcare and wire fraud, healthcare fraud, falsification of records, and 
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aggravated identity theft. Appellant Br. at 14–27. In addition, Mitchell argues that the court erred 

in trying the witness tampering charge with the other counts in the indictment. Id. at 28–30. We 

address each contention in turn.

III.

A. Sufficiency of the Evidence

1. Aggravated Identity Theft

Mitchell makes two sufficiency-of-the-evidence arguments regarding his conviction for 

aggravated identity theft: (1) that the indictment failed to allege that he committed an enumerated 

predicate felony as required by 18 U.S.C. § 1028A, and (2) that the government failed to prove 

that his use of another’s identity was the “crux” of his fraudulent conduct. Appellant Br. at 15–

18. These arguments on appeal, however, are different from the grounds Mitchell relied upon

below in support of his Rule 29 motion for acquittal. He therefore has waived his challenge to the 

sufficiency-of-the-evidence arguments that he now brings before this court.

“Although specificity of grounds is not required in a Rule 29 motion, where a Rule 29 

motion is made on specific grounds, all grounds not specified are waived[.]” United States v. 

Dandy, 998 F.2d 1344, 1356–57 (6th Cir. 1993) (citation omitted). For example, in United States 

v. Ramer, 883 F.3d 659 (6th Cir. 2018), we held that “a Rule 29 motion for judgment of acquittal 

that specifically raises the issue of venue will not be construed as a general challenge to the 

government’s proofs” and therefore “such a motion will waive all other grounds not specified in 

the motion.” Id. at 682 (emphasis in original). That is because the “specification of grounds in 

the motion is an indication that counsel has evaluated the record and has these particular reasons 

for his motion.” Dandy, 998 F.2d at 1357 (quoting United States v. Rivera, 388 F.2d 545, 548 (2d 

Cir. 1968)).
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In Mitchell’s Rule 29 motion before the district court, he argued that insufficient evidence 

sustained the aggravated-identity-theft conviction because there was “no testimony or evidence 

that it was Dr. Mitchell that signed the name of Dr. Malik” regarding the letter that was sent to 

CMS, seeking reinstatement of her Medicare privileges. R. 130 at PageID 1770–71. That is the 

only argument that Mitchell made regarding the aggravated-identity-theft charge. He did not 

mention, even briefly, either of the arguments that he now makes on appeal—that the indictment 

failed to allege an enumerated predicate felony or that the government failed to prove that the 

identity theft was the “crux” of his illegal conduct. Mitchell’s omissions below are fatal to his 

arguments on appeal. As made clear by the precedent cited above, when a defendant asserts

specific grounds for his Rule 29 motion, he waives all other grounds for relief. We therefore hold 

that Mitchell waived his current arguments concerning the sufficiency of the evidence on the 

aggravated-identity-theft charge.1

2. Conspiracy to Commit Healthcare and Wire Fraud

Next, Mitchell asserts that the government failed to present sufficient evidence for a 

rational juror to convict him of conspiracy to commit healthcare and wire fraud. Specifically, he 

contends that the government failed to prove that (1) either Goins or Malik knowingly joined the 

1 Mitchell makes a brief argument that the aggravated-identity-theft charge should be vacated 

because the jury was not instructed that it needed to find that the use of Malik’s name was the 

“crux” of the fraudulent conduct. Appellant Br. at 18–19. But the instruction that the court gave 

is exactly the same as the proposed instruction Mitchell offered to the court. Compare R. 112 at 

PageID 755–57, with R. 137 at PageID 2179–81. And Mitchell never objected to the instruction. 

R. 137 at PageID 2199. Accordingly, we also conclude that Mitchell waived any challenge to the 

legality of the instructions. See United States v. Wooten, 39 F. App’x 83, 89 (6th Cir. 2002) 

(“Given that the defense was jointly responsible for drafting the instruction and did not object to 

the instruction, we conclude that the defendant waived a challenge to the legality of the 

instructions.”); see also United States v. Natale, 719 F.3d 719, 729 (6th Cir. 2013).
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charged conspiracy, and (2) Mitchell had a meeting of the minds with either Goins or Malik to 

commit the substantive crimes. Appellant Br. at 22. Neither argument is persuasive.

To convict a defendant of conspiring to commit healthcare and wire fraud, the government 

must prove “(1) the existence of an agreement to violate the law; (2) knowledge and intent to join 

the conspiracy; and (3) an overt act constituting actual participation in the conspiracy.” United 

States v. Bailey, 973 F.3d 548, 564–65 (6th Cir. 2020) (quoting United States v. Hughes, 505 F.3d 

578, 593 (6th Cir. 2007)). “The agreement, intent to join it, and participation can all be inferred 

from acts done with a common purpose.” United States v. Searan, 259 F.3d 434, 442 (6th Cir. 

2001) (citation omitted). 

The evidence sufficiently demonstrated that Mitchell and Goins had a conspiratorial 

agreement to defraud Medicare. The government presented the following evidence to the jury:

• Mitchell knew Goins for years and worked for his practice in the early 

2000s;

• Before Goins and Mitchell worked together at Urban, Goins lost his medical 

license to practice podiatry in the state of Michigan, and, in 2012, had his 

Medicare billing privileges revoked; 

• Goins started seeing patients on behalf of Urban in 2016; 

• Goins submitted documentation regarding patients he treated on Urban’s 

behalf to Mitchell;

• Urban billed Medicare for patients treated by Goins using Malik’s NPI 

number; 

• From March 2016 to September 2017, Urban provided Goins with nineteen 

checks that were signed by Mitchell and worth approximately $13,000 in 

total.

To be sure, Mitchell testified that “Goins did not work for Urban.” R. 135 at PageID 1905. 

Mitchell also disputed that Goins had seen patients on behalf of Urban and that Urban had billed 

Medicare for services provided by Goins. Id.; R. 136 at PageID 2031–32. But a rational jury 

could have disbelieved Mitchell’s testimony in light of all of the other proof. See United States v. 
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Iossifov, 45 F.4th 899, 916 (6th Cir. 2022), cert. denied, 143 S. Ct. 812 (2023) (explaining that in 

considering a sufficiency-of-evidence argument, the court must give “due deference” to a jury’s 

decision to discredit a defendant’s testimony).

The evidence of Mitchell and Goins’s agreement to defraud Medicare was enough for a 

rational jury to find that the two agreed to enrich themselves by fraudulently billing Medicare for 

services Goins provided, even though he had been stripped of his medical license and had long 

been excluded from Medicare.2 We therefore hold that sufficient evidence supports Mitchell’s 

conviction for conspiracy to commit healthcare and wire fraud.

3. Healthcare Fraud

Mitchell also contends that the jury had insufficient evidence to find that he “knowingly 

and willfully” used Malik’s information to bill Medicare to commit three counts of healthcare 

fraud. Appellant Br. at 25–26. We do not find this challenge persuasive either.

Section 1347 of title 18 of the United States Code makes it a federal crime for individuals 

“in connection with the delivery of or payment for health care benefits, items, or services,” to 

“knowingly and willfully execute[] . . . a scheme or artifice” “to defraud any health care benefit 

program” or “to obtain, by means of false or fraudulent pretenses, representations, or promises” 

money from the program. 18 U.S.C. § 1347. Thus, to convict a defendant of healthcare fraud, the 

government must prove the following: the defendant “(1) knowingly devised a scheme or artifice 

to defraud a health care benefit program in connection with the delivery of or payment for health 

care benefits, items, or services; (2) executed or attempted to execute this scheme or artifice to 

2 Mitchell insists that the government cannot point to any evidence of a meeting of the minds 

between Goins and Mitchell before Goins began cooperating with the government. Appellant Br. 

at 23–24. The record reveals otherwise. Goins did not begin cooperating with the government 

until after August 14, 2017, which was well after Goins had begun seeing patients on behalf of 

Urban (in 2016) and had received checks from Mitchell (as early as March 2016).
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defraud; and (3) acted with intent to defraud.” United States v. Anderson, 67 F.4th 755, 770 (6th 

Cir. 2023) (per curiam) (citations omitted). 

“Direct evidence of fraudulent intent is not required.” Id. at 770 (citation omitted). Instead, 

circumstantial evidence may be considered to “infer intent from evidence of efforts to conceal the 

unlawful activity, from misrepresentations, from proof of knowledge, and from profits.” Id.

(quoting United States v. Persaud, 866 F.3d 371, 380 (6th Cir. 2017)). And regardless of whether 

Mitchell was actually the person who devised the fraudulent scheme, he is still guilty of healthcare 

fraud if the evidence supports that he “contributed to the execution of the scheme with the intent 

to defraud.” United States v. Hunt, 521 F.3d 636, 645 (6th Cir. 2008). 

As to the first count, the jury heard testimony from HHS Agent Tyson Howard, who stated 

that he witnessed Goins attempt to treat a patient named Graham at an Ann Arbor apartment 

complex on August 14, 2017. That treatment was later documented, and Urban submitted a claim 

to Medicare declaring that Malik—not Goins—provided the treatment to Graham. Malik 

corroborated that evidence with her testimony that she was in Canada on that day and did not 

provide the treatment to Graham.

As to the second count, the government presented evidence that included Urban’s 

reimbursement claims to Medicare for Scott Compton’s treatment, which stated that Malik 

rendered care on October 2, 2017. However, Agent Howard testified that Compton died earlier 

that year. In addition, Malik told jurors she was in Canada on that date and did not provide 

treatment to Compton.

Lastly, regarding count three, Agent Howard testified that Aaron Georges was not a real 

person. Rather, Howard invented Georges so that Goins, who was cooperating with Howard’s 

investigation, could provide a treatment record to Mitchell. Urban billed Medicare for the 
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September 7, 2017 treatment provided to the fictitious Georges, with the documentation that Goins 

gave to Mitchell. Furthermore, not only did Urban bill Medicare for the September 7th treatment, 

but even after Goins ceased communication with Mitchell. Urban also submitted a bill to Medicare 

for a second treatment to Georges on November 7, 2017. Both claims listed Malik as the provider.

Still, Mitchell asserts that the government’s evidence is not enough because “there was no 

evidence that [he] knew of [the] particular billings” underlying these counts of healthcare fraud 

and thus that he “could not have knowingly and willfully acted as to these three counts.” Appellant 

Br. at 26. However, the evidence presented to the jury was enough to support a finding that 

Mitchell was aware of and caused the claims to be submitted to Medicare unlawfully. 

As an initial matter, Mitchell prepared all of the documentation to ensure Malik was 

licensed and approved to bill Medicare. Thus, it is reasonable for the jury to conclude that in doing 

so, he became aware of the Medicare rules. Also, the jury reasonably could conclude that Mitchell 

knew the rules because he himself had been a Medicare provider for many years. And those rules 

state, in pertinent part, that (1) only the provider who is licensed to bill Medicare will do so by 

providing an NPI number, and (2) the NPI number must be that of the treating provider. There

was evidence that Urban submitted reimbursement claims to Medicare that listed Malik as the 

treating physician, even though her testimony and the other evidence demonstrate that she did not 

act as the primary provider for Urban at any point. And there was proof that Mitchell was 

responsible for the submission of claims. Specifically, David Moore, an employee of Precise 

Medical Billing—the company that submitted Urban’s claims to Medicare—told the jury that 

Mitchell personally handed the Medicare paperwork to him for submission. Those claims included 

bills where Goins was the treating physician, but Malik’s name was listed as the treating provider. 
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All of this evidence supported the jury finding that Mitchell knowingly caused the bills to be 

submitted to Medicare fraudulently. 

Thus, the trial record included sufficient evidence such that a reasonable juror could 

convict Mitchell of healthcare fraud. See Tibbs v. Florida, 457 U.S. 31, 45 n.21 (1982) (It is “[t]he 

trier of fact, not the appellate court, [who] holds ‘the responsibility . . . fairly to resolve conflicts 

in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to 

ultimate facts.’”) (quoting Jackson, 443 U.S. at 319).

4. Falsification of Records

Finally, Mitchell challenges the finding that he knowingly committed one count of 

falsification of records involving a federal investigation, in violation of 18 U.S.C. § 1519. 

Appellant Br. at 26–27. An individual is guilty of falsifying records if he “knowingly alters, 

destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document 

. . . with the intent to impede, obstruct, or influence [a federal] investigation[.]” 18 U.S.C. § 1519.

The jury heard evidence that CMS suspended Urban from billing Medicare and sent Malik 

a letter at Urban’s address notifying her of the suspension. Malik testified that she was unaware 

of the letter or the suspension. On August 8, 2018, Urban sent a letter to CMS asking for the 

suspension to be lifted. The letter was purportedly signed by Malik, but she testified that the 

signature was not hers. Further, she told the jury that she was unaware of the letter and was not

even in the United States on the date that it was mailed from a Detroit zip code. Moreover, 

enclosed with the letter were several attestation papers signed by representatives from facilities 

who stated that Malik had provided care to patients there. But it was Mitchell who personally 

requested the representatives sign the letters during a previous visit, telling the attestators that the 

letters were required to be signed just as “red tape.” R.129 at PageID 1627. 
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This proof undercuts Mitchell’s testimony that he did not write the letter. The 

countervailing proof supports the jury’s reasonable decision to discredit him and return a 

conviction. Because we “will not reweigh the evidence or second-guess the jury’s decision to 

disbelieve a witness,” United States v. Lang, 717 F. App’x 523, 546 (6th Cir. 2017), we find that 

the evidence provided to the jury, and its disbelief of Mitchell’s testimony denying involvement, 

is sufficient to conclude that Mitchell, in fact, submitted the letter to CMS, and thus violated

18 U.S.C. § 1519. See also Iossifov, 45 F.4th at 916. 

B. Witness Tampering

Mitchell contends that the district court erred in trying the witness tampering charge with 

the other charges because it was “highly prejudicial.” Appellant Br. at 28–30. Because Mitchell 

raises his misjoinder claim for the first time on appeal, we review for plain error only. United 

States v. Soto, 794 F.3d 635, 655 (6th Cir. 2015) (“[P]lain-error review applies to claims of 

misjoinder raised for the first time on appeal.”). To succeed on plain error review, Mitchell must 

show “(1) error (2) that was ‘obvious or clear,’ (3) that ‘affected [his] substantial rights[,]’ and (4) 

that ‘affected the fairness, integrity, or public reputation of the judicial proceedings.’” United 

States v. Vonner, 516 F.3d 382, 386 (6th Cir.2008) (en banc) (quoting United States v. Gardiner, 

463 F.3d 445, 459 (6th Cir. 2006)). Mitchell’s claim fails because he did not show that the alleged 

misjoinder affected his substantial rights.

We have held that when a jury acquits a defendant of an allegedly misjoined claim, this 

shows that the jury was able to make “an individualized determination of [the] defendant’s guilt 

as to each count,” such that a defendant cannot make “the requisite strong showing of prejudice 

required to warrant reversal.” Id. (internal quotations omitted); see also United States v. Bibby, 
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752 F.2d 1116, 1122 (6th Cir. 1985) (explaining that acquittal on misjoined charges is evidence 

that the defendant was not prejudiced by the joinder).

Here, Mitchell fails to show that he was prejudiced by joinder of the charges. Although 

the jury convicted him of the fraud-based charges, it acquitted him of the witness-tampering 

charge. Accordingly, we conclude that any alleged error did not affect the integrity of the 

proceedings, or Mitchell’s substantial rights, and thus Mitchell’s claim fails.

IV.

For the foregoing reasons, we AFFIRM.