### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-30106

UNITED STATES OF AMERICA, Plaintiff–Appellee,

v. NNANTA FELIX NGARI; ERNEST PAYNE; SOFJAN LAMID, Defendants–Appellants.

Appeals from the United States District Court for the Middle District of Louisiana USDC No. 3:10-CR-60-1

Before HIGGINBOTHAM, OWEN, and HIGGINSON, Circuit Judges. PER CURIAM: * A jury found N nanta Fel i x N g a r i (Ngari), Sofjan Lamid (Lamid), Ernest Payne (Payne), and Henry Lamont Jones (Jones) guilty under 18 U.S.C. § 1349 of con s p i ring t o commit health care fraud in violation of 18 U.S.C. § 1347, and guilty under 18 U .S.C. § 3 7 1 of conspiring to offer and receive kickbacks and bribes in violation of 42 U.S.C. §§ 1320a-7b(b)(1) and 1 320a-7b(b ) ( 2 ) ( B ) , in connection with g oods or s ervices for w h i c h M e dicare made payments. Jones U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D March 5, 2014 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-30106 Document: 00512550333 Page: 1 Date Filed: 03/05/2014No. 12-30106

voluntarily dismissed his a ppeal, but Ngari, Lamid, and Payne challenge their convictions on various grounds. Payne additionally challenges his sentence. We affirm. I D e f e n dants’ convictions arose out of their involvement with Unique Medical Solution, Inc. (Unique), a supplier of power wheelcha i r s a n d other durable medical e q uipment. The Government alleged t hat Ngari, the owner of Unique, hired Jones, Payne, and other “recruiters” t o seek out M edicare beneficiaries t o attend “health fairs.” At the health fairs, physicians, including Lamid, wrote p r e scriptions for p ower w heelchairs that the G overnment contends, and the jury found, were m edica l l y u n n ecessary. Using these prescriptions, Ngari submitted claims t o M e d i care and then remitted to the recruiters a p o r t i o n of the payments he r eceived. The recruiters paid the physicians for prescribing the wheelchairs. The j ury heard testimony from Bonnie W a lker-Simmons, a former recruiter for U n i q ue. She described the scheme and the r ole of each of the defendants. She identified Lamid as o ne of t he p h ysicians who attended health fairs. S he said that after performing cursory examinations lasting five to ten minutes, Lamid would write power wheelchair prescriptio n s for 100% of the individuals he saw, even tho u g h m any were c ompletely ambulatory. On one occasion, Walker-Simmons recalled, Lamid prescribed wheelchairs without seeing the patients. T he number of times that Walker-Simmons w itnessed Lamid’s activities a t health fairs is unclear, but it is u ndisputed t hat Lamid saw at least 463 patients at the fairs and did not p rescribe wheelchairs for 77 of those patients. Lamid mai n t ains that the percentage of patients for whom he

2 Case: 12-30106 Document: 00512550333 Page: 2 Date Filed: 03/05/2014No. 12-30106

prescribed power chairs was not abnormally high a nd t hat i n each instance, the power chair was medically necessary. Walker-Simmons also identified Payne as a participant in the conspiracy, testifying that he brought L amid to the h ealth fairs, p aid him and the recruiters, and took the p rescriptions to Ngari at Unique. Ngari, a ccor d ing to WalkerSimmons, would then pay Payne as well as Jones for the prescriptions and other paperwork. On cross-examination, the defendants established that WalkerSimmons had previously lied to the grand jury, had been convicted of multiple felonies, and was cooperating with the Government in exchange for leniency. During Walker-Simmons’s direct examin a t i o n , t h e di s t r i c t c o u r t a dmitted,

over defendants’ objections, portions of a recorded conversation from June 2005

a m o n g W a l k e r - S i m m o n s , J o n e s , a n d o t h e r s ( t h e W a l k e r - S i m m o n s conversation). 1 Ngari, Lamid, and Payne were not parties to the conversation. In the phone call, J one s discussed plans to start providing wheelchairs from companies that he formed, with the aim of no longer including P ayne, Ngari, and Ngari’s company U nique in the process of conducting health f a i r s a t which physicians would p rescribe unnecessary power chairs. Although none of the speakers identifies Ngari, Payne, or Lamid as potential participants in this scheme, they discuss the roles each defendant had played in t h e past in the Unique conspiracy.

1 As Payne notes , there is s ubs tantial conf us ion regard ing w hat p ortions of the record ed convers ation w ere ad m itted into evid ence. Bas ed on the record on ap p eal, it ap p e a rs that,
w hile the G overnm ent initially p lanned t o introd uce the entire tap e, it ultim ately only introd uced the p ortions of the tap e that w ere played f or the jury and that the trans crip t only includ es thes e p ortions

. 3 Case: 12-30106 Document: 00512550333 Page: 3 Date Filed: 03/05/2014No. 12-30106

Cynthia Brown, Ngari’s office assistant, also testified. S he recounted that both J ones and P ayne delivere d prescriptions to Ngari and that Payne occasionally delivered wheelchairs to patients. To her knowledge these w ere the only services the two individuals provided to Ngari. Banking r e cords showed, however, that Unique p aid J ones $107,825 and Payne more than $60,000. The records regarding payments to Payne specify that some were for deliveries but do not indicate the purpose of the o t h e r s . The payments for d eliveries were generally f

or h undreds of dollars while those for which no p urpose is given were in the thousands. Wi th regard to Lamid’s p a rticipation, Brown testified that she attended a health fair with Ngari, w here Lamid examined patients who were ambulatory and able to climb up steps. The Government also called wheelchair recipients as witnesse s . Inez Stewart, who received a power wheelchair from U n ique i n 2 004 ba s e d on Lamid’s prescription, testified that she could walk and t hat she had never used any walking aids until 2010 when she began t o use a cane. She w orked as a cook for more than six years after receiving the power chair, until the day before trial, and stood while w orking. Stewart a l so stated t hat her home d id n ot have t h e ramps necessary to use the wheelchair effectively and that the i n d ividual who delivered the c h a i r d id not show her how to use it. Weldon Bullock, who also received a power wheelchair from Unique based on Lamid’s p r escription, test i f i ed that he regularly gardens, hunts, and takes hour-long walks for exercise. The Government also called the primary care p hysicians for a number of the r ecipients of power wheelchairs. These physicians testified that they did not prescribe wheelchairs for these individuals because the p atien t s n e ver

4 Case: 12-30106 Document: 00512550333 Page: 4 Date Filed: 03/05/2014No. 12-30106

needed t hem. The Government provided evidence s howing that Ngari delivered about ninety of the wheelchairs. During its case-in-chief, the Government introduced p ortions of t estimony that Payne and Jones had given before the grand jury. In their statements, both i n d i v i d uals i dentified the other defendants as participants in the scheme and described their activities. Although the admitted portions of the test i mony
re d a c t e d the other defendants’ names, it w as a pparent from t he context of the test i m o n y t h a t Payne and Jones were referring to Ngari and t o a physician. Neither Payne nor Jones t estified at trial and, accordingly, were not subjected to cross-examination. Ngari objected to t he admission of both statements on C o n frontation Clause grounds. Neither Lamid n or Payne raised an objection. T h e d i s t rict court overruled Ngari’s objection on the basis that the statements w ere those of

coco n s pirators. After t he testimony was introduced, the district court admonished the jury to c onsider the evidence only as t o the d e clarants and not to speculate about to whom the various redacted names referred. Lamid testified in h is own defense and denied e ver r e ceiving kickbacks or prescribing medically unnecessary power wheelchairs. He f urther testified that he h ad denied the requests of approximately 2 00 ind i viduals for power wheelchairs because they were not qualified to receive them. After the close of the evidence, each of t h e defendants moved f or judgment of acquittal under Federal Rule of Criminal Procedure 29. Ngari and Lamid subsequently filed r e n e w e d motions under Rule 29 and motions for new trials under Rule 33. The district court denied all the motions. T his appeal followed.

5 Case: 12-30106 Document: 00512550333 Page: 5 Date Filed: 03/05/2014No. 12-30106 II Ngari and Lamid c ontend that the district court’s a d m i s s ion of Payne’s grand jury testimony vi olated their rights under the Confrontation C lause of the Sixth Amendment. Payne joins them in a sserting that the admission of Jones’s grand jury testimony similarly violated the Sixth Amendment. “Alleged C onfrontation Clause violations are reviewed d e n o v o , and are subject to harmless error analysis” 2 when obje c t i o n t o the evidence is made at trial. When a defendant fails to make an o bjection at t he t ime of the evidence’s admission, this court’s review is limited to plain e r r o r . 3 Ngari l odged a contemporaneous objection to the admission of the grand jury testimony, and we therefore review de novo the district court’s decisi o n a s t o him. Payne and L a m id did n ot object t o the testimony at the time of its a dmission , a n d o u r review as to them is limited to plain error. The Sixth Amendment requires that a c riminal defendant “be confronted with the witnesses against him.” 4 The Supreme Court has long held t h at this clause prohibits the admission of a non-testifying c o d e f endant’s out-of-court t estimony that names or incriminates the other d efe n d a n t s . 5 Al t h o u gh r e d a c t i n g references to the codefendants may prevent a violation, 6 this is insufficient when

2 U ni ted Sta tes v . Ca ntu- Ra m i rez , 669 F. 3d 619, 631 ( 5th Cir. 2012)

.
3 Puckett v . Uni t ed Sta tes , 556 U

. S. 129, 135 ( 2009) ; U ni ted Sta t es v . Ca rtw right , 6 F

. 3d 294, 300 ( 5th C ir. 1993)

.

4 U

. S. C ON ST

. am end

. VI.

5 Bruton v . U

ni ted Sta tes , 391 U

. S. 123, 135- 36 ( 1968)

.
6 Ri cha rdson v . M

a rsh , 481 U

. S. 200, 211 ( 1987)

.

6 Case: 12-30106 Document: 00512550333 Page: 6 Date Filed: 03/05/2014No. 12-30106

the jury can i nfer from t he statement that the redactions refer to c odefendants. 7 As t o Ngari, the district court clearly e rred in a d m itting the grand jury testimony of Payne and Jones. A Payne’s and Jones’s testimony n ame Ngari numerous times and describe his role in the schem e . J ones testified that Ngari w ould pay him for the
p r e scriptions he delivered a fter verifyin g th a t t h e p o t e n t i a l w h e e l c h a i r r e c i p i e n t s
were Medicare beneficiaries. Although N gari’s name is b lacked out and replaced with generic masculine p ronouns , it is obvious that Payne and Jones are referring t o h i m. Both state or imply t hat “he” is the owner of the medical supply company from which the chairs were obtained, and Ngari w as t h e o n l y person identified during the t rial as owning such a company. More specifically, at one point in his gran d j u r y t e s timony, Payne states that he took the prescriptions to “Unique.” As the Government forthrightly concedes, the district court erred in admitting the grand jury testimony. 8 The Government should not have offered, and the district court s hould not h a ve admitted, t he grand jury testimony. The Supreme C ourt’s precedent i n this r e gard is clear. We disapprove of t he Government’s improper use of such testimony in the strongest of terms.

7 G ra y v. M a ryl a nd , 523 U

. S. 185, 196- 97 ( 1998) ; see a lso Uni ted Sta tes v . V eja r- U ri a s , 165 F. 3d 337, 340 ( 5th Cir. 1999) ( “Where

. . . it is obvious f rom cons id eration of the conf es s ion as a whole that the red acted term w as a ref erence to the d ef

end a n t, then ad m is s ion of a cod ef end ant’s conf

es s ion that als o inculp ates the d ef end ant d oes violate Bruton

. ”)

.
8 See V eja r- U ri a s , 165 F. 3d at 340 (hold i n g Conf rontation Claus e violation exis ted w hen it w as clear f

rom ad m itted conf

es s ion that “s om eone” ref erred to cod ef

end ant and conf

es s ion’s s tatem ents regard ing “s om eone” w ere “p lainly incrim inat[ ing] ”)

. 7 Case: 12-30106 Document: 00512550333 Page: 7 Date Filed: 03/05/2014No. 12-30106

The Government argues, nevertheless, t h at t h e error was harmless. Though the Government’s conduct in offering the grand jury t estimony was highly improper, admitting the evidence was not structural error and does not require automatic reversal. The erroneous admission of a non-testifying codefendant’s o ut-of-court statement “may be considered harmless when, disregarding the codefendant’s confession, there is otherwise ample e vi d e n ce ag a i n s t a defendant.” 9 T he evidence is “ample” if w e are “convinced b eyond a reasonable doubt that the error was harm l e s s i n light of the other evidence presented at trial.” 1 0 Similarly, the erroneous admission of e vidence i s generally harmless if the evidence is cumulative. 1 1 If, by contrast, “there was a reasonable probability that the defendants would be acquitted” in the absence of the error, we must reverse the conviction. 1 2 The Government maintains t h a t t h e a d m i s s i o n o f t h e gr a n d jury t estimony

was harmless as to N gari since it was merely “cumulative proo f ” o f t he “undisputed fact” that Ngari p a i d Jones and Payne for delivering the prescriptions. Ngari disputes this contention, asserting that, in the absence of the testimony, t here was no “direct” e vidence that he paid Jones and Payne for the prescriptions. The r e c o r d d oes not support Ngari’s position. There is substantial, uncontroverted evidence that Ngari paid both Jones and Payne for the prescriptions. This includes Brown’s testimony that the o nly service Jones

9 Id.

1 0 Id.

1 1 See U ni ted Sta tes v . H

a ll , 500 F. 3d 439, 444 ( 5th Cir. 2007)

.
1 2 V eja r- U ri a s , 165 F. 3d at 340. 8 Case: 12-30106 Document: 00512550333 Page: 8 Date Filed: 03/05/2014No. 12-30106

performed for U nique was the delivery of prescriptions and that Payne delivered prescriptions a nd made wheelchair d eliveries. This information, coupled with t h e b a n k records showing that Ngari transferred to Payne and Jones tens o f thousands of dollars, is compelling evidence that Ngari paid both individuals for the prescriptions they delivered. There is also direct evidence that Ngari paid Jones and Payne for p rescriptions since Walker-Simmons specifically testified to t hat fact. While Ngari asserts that the jury could have found Wal k erSimmons not credible, there was no reason for t he jury to doubt the veracity of Brown’s testimony or the bank records. Ngari insists t hat the grand jury testimony w as h armful b e c a u s e it was the p r imary evidence o ffered by the Government a s to his knowledge that the prescriptions were for unnecessary medical equipment. P ayne tes tified that Ngari told him it was not necessary to tell the recipients h ow to use the motorized wheelchairs. T his statement is c ogent evidence that Ngari knew that the recipients did not need wheelchairs. As the Government notes, “Ngari’s defense was based on a c laim of g ood f aith—namely, that, if the power wheelchairs he was ordering were medically unnecessary, he was unaware of it.” Although Payne’s statement w a s the most direct and compelling evidence of Ngari’s state of mind, the Government i ntroduced o t h e r circumstantial evidence t hat establishes beyond a reasonable doubt that Ngari knew the wheelchair s w e r e u n n e c e s s a ry . T h e G o v e r n m ent introduced evidence that Ngari personally delivered n i nety wheelchairs and that many recipients were ambulatory and did not hav e wheelchair ramps or o ther e quipment needed to

use the chairs in thei r homes. One r e cipient to w hom Ngari delivered a wheelchair had four or five s teps leading into h er h ome and was able to walk up

9 Case: 12-30106 Document: 00512550333 Page: 9 Date Filed: 03/05/2014No. 12-30106

those steps without assistance. Recipients also testi f i e d t h a t t he person who delivered their wheelchairs did not instruct them o n h ow t o use the devices. Brown stated that she and Ngari attended a health fair where ambulatory individuals without wheelchairs were waiting to see Lamid. This e v i d e nce is sufficiently compelling to e stablish beyond a reasonable doubt that Ngari knew the wheelchairs he w as ordering were not necessary. T here was no reasonable
pr o b a b i l i t y a j ury would have acquitted Ngari i f the grand jury testimony had been excluded. B Because L amid failed to object to the excerpts o f grand jury testimony, he must demonstrate that the a dmission of the transcripts was plain error. To meet this high bar, Lamid “must show that (1) there is error; (2) the error was clear and o bvious, not subject to reasonable d ispute; and ( 3) t he error affected his substantial rights.” 1 3 Even if he demonstrates t h e existence of t h ese three elements, this court only has discretion to remedy the district court’s error “if it seriously aff

ects the fairness, integrity, or public reputation of judicial proceedings.” 1 4 The G overnment concedes t ha t the district court committed

error a n d d o e s n ot dispute that it was clear or obvious. It is therefore unnecessary to reach those q uestions. E ven assuming that the s e t w o p r ongs
were met, Lamid has failed to establish that t he district court’s admission of the grand jury excerpts affected his substantial rights.

1 3 U ni ted Sta tes v . H

ebron , 684 F. 3d 554, 558 ( 5th Cir. 2012)

.
1 4 Id. 10 Case: 12-30106 Document: 00512550333 Page: 10 Date Filed: 03/05/2014No. 12-30106

To show that an error a ffected his substantial rights, an appellant “must demonstrate that it ‘affected the outcome of the district court proceedings.’” 1 5 Lamid argues that the admission of the testimony altered t he outcome because it allowed the Government to “create credibility w here none e xis t e d” a n d “to construe in the minds of the jury that the actors at trial were, in fact, i nvolved in a conspiracy.” The Gover n m e n t r esponds t hat Lamid suffered n o prejudice b e c a u s e there w a s sufficient untainted evidence to c onvince a jury b eyon d a reasonable doubt that Lamid knowingly prescribed unnecessary wheelchairs. The record does not support Lamid’s assertions that Payne’s and Jones’s testimony created credibility where none existed or established t h e existence of

a previously q uestionable conspiracy. Although Walker-Simmons’s prior false statements and c o n v i ctions m ight have initially led the j ury to q uestion her h o n e s t y , t h e G o v e r n m e n t p u t fo r w a r d s u b s t a n t i a l c o n f i r m a t o r y evidence—including Brown’s testimony that Lamid’s patients were a mbulatory, the testimony of the patients the m s e l ves as w ell as their t reating physicians, and the banking record s t h a t r eflected p ayments to Payne and Jones—to establish that Walker-Simmons was credible. This evidence was also more than

s u fficient to establish that there was a c o nspiracy to submit claims for unnecessary wheelchairs of which Lamid was an integral part. It is also doubtful that the t e s t i m ony as r e dacted actually incriminated Lamid. While Payne and Jones made clear references to a physician, they are not obvious references to Lamid. The Government introduced e vidence that the conspirators also r elied heavily upon Dr. R e ginald Goldsby to p rescribe

1 5 Puckett v . U

ni ted Sta tes , 556 U

. S. 129, 135 ( 2009) ( quoting U ni ted Sta tes v . O l a no , 507 U

. S. 725, 734 ( 1993) )

. 11 Case: 12-30106 Document: 00512550333 Page: 11 Date Filed: 03/05/2014No. 12-30106

unnecessary wheelchairs. Aside from a single mention o f New Orleans as one physician’s place of business, there is nothing in either set of excerpts that would h a v e allowed the jury to conclude that Jones and P ayne were speaking abou t Lamid instead of Goldsby. Even Lamid’s own counsel believed that some of the references to his client were actually references to G oldsby. L amid h as failed to demonstrate t hat a ny error the district court made in admitting t h e t estimony affected his substantial rights. Lamid als o a r g ues that the statements should not have been admitted bec a u s e they were hearsay. Because Lamid failed to object at trial, t his claim is subject to the same p lain error analy s i s 1 6 a s his C onfrontation Clause o bjection and fails for the same reasons. C Like Lamid, P ayne failed t o object to the admission of Jones’s t estimony and must therefore d emonstrate that its admission affec t e d his substantial rights. Payne argues that the jury’s consideration of Jones’s t e stimony affected the outcome of his case b y ind i c a t i n g t h a t Payne had t he requisite mens rea. However, as the Government points out, the only segment of the admitted grand jury testimony that references Jones i s a twelve-line passage i n which Jones states that he worked with “him” and p aid “him” a porti o n o f t h e f unds he received from Ngari. This statement sheds no light on Payne’s mens rea, and it is also cumulati v e s i n c e Payne admitted that he was paid per chair delivered. Moreover, there is nothing in this passage or a ny o t h e r s e gment of Jones’s admitted testimon y t h a t i n dicates that “him” is a reference to Payne. Since

1 6 See Fora dori v . Ha rri s , 523 F. 3d 477, 508 ( 5th Cir. 2008) ( “Becaus e [ the d ef end ant] d id not tim ely object to the tes tim ony it now challenges , w e review thes e claim s f or p lain error

. . . . ”) ; i d. at 507 n. 26 ( objection not m ad e until day af ter tes tim ony introd uced not tim ely)

. 12 Case: 12-30106 Document: 00512550333 Page: 12 Date Filed: 03/05/2014No. 12-30106

J o n e s’s testimony was cumulative, its admission d id not a ffect Pay n e ’ s substantial rights. We the r e f

o r e conclude that the district court did not commit reversible error in admitting the grand jury testimony of Payne and Jones. III Ngari, Lamid, and Payne also seek reversal of their convictions b ased on the d istrict court’s admission of the Walker-Simmons recorded a nd transcribed telephone conversation. They assert that it is not a statement of a coconspirator under Federal Rule of Evidence 801(d)(2)(E) and th a t , e v e n if it were, its admission vio l ated Federal Rule of Evidence 404(b). Lamid and Payne additionally c laim that the admission of t he conversation violated the Confrontation Clause. The Gove r n m ent argues that, even if erroneous, the introduction of the W a lker-Simmons c onversation was harmless because it did not address whether the p r escriptions were medically necessary. The defendants respo n d t h at the conversation “imputed

. . . ‘guilty knowledge’” to them and i ndicated t hat the payments to Lamid were kickbacks r ather than compensation for travel. We agree with the defendants that the conversation is incriminating because it

s t rongly suggests that the defendants were attempting to co n c e a l t h e i r f r a u d a n d that Lamid was r eceiving kickbacks. J ones specifically states at one p oint that Ngari did not pay Lamid d i r e c t l y because doing s o would be considered kickbacks and would make both liable for fraud. Nonetheless, even assuming arguendo that the admission of the conversation was error, it was harmless since the s tatements co n c e r n i n g the

13 Case: 12-30106 Document: 00512550333 Page: 13 Date Filed: 03/05/2014No. 12-30106

defendants were cumulative of evidence already in the record. 1 7 As discussed, the Government introduced considerable other evide n ce that the defendants intended to commit fraud a n d to pay and receive kickbacks. S uch evidence included Walker-Simmons’s testimony that Payne paid Lamid kickbacks, that Ngari paid Payne for prescriptions, and that L amid at times wrote prescriptions without seeing patients; the testimony o f the w heelchair recipients and their treating physicians that they were c ompletely ambulatory and did not n eed any walking aids; the bank r ecords establish i n g t h a t Ngari paid Payne and Jones tens of t housands of dollars; a nd the evid e n c e t h a t Ngari personally delivered wheelchairs to many individuals, many o f whom had n o difficulty walking and whose homes wer e n o t accessible to a wheelchair. There is no reasonable probability a ju r y w o u l d have acquitted the d efendants i n the absence of the recorded conversation. T h us, the admission of the conversation was not reversible error. IV Ngari, Lamid, and Payne contend that their convictions under 18 U.S.C. § 371 and 18 U.S.C. § 1 349 were multiplicitous. However, since they each failed to raise this claim befor e t rial and none has shown cause for that failure, they each have forfeited the claim on appeal. 1 8 Unlike an argument regarding multipli c i t o u s convictions, a c laim that sentences are multiplicitous “ can be raised for the first time on appeal,” in which

case we review for plain error. 1 9 Neither Lamid no r N g a r i contends that the

1 7 See U ni ted Sta tes v . H

a ll , 500 F. 3d 439, 444 ( 5th Cir. 2007)

.
1 8 See U ni ted Sta tes v . Soa

p e , 169 F. 3d 257, 265 ( 5th Cir. 1999)

.
1 9 U ni ted Sta tes v . D i xon , 273 F. 3d 636, 642 ( 5th Cir. 2001)

. 14 Case: 12-30106 Document: 00512550333 Page: 14 Date Filed: 03/05/2014No. 12-30106

district court imposed multiplicitous sentences or ask s t h a t t his court remand for resentencing. Wh ile P ayne’s primary argument c oncerns his convictions, he also asks this court t o remand for resentencing because “ i t is not possible

. . . to determine with t he r equisite certaint y t h at the sentences did not violate the Double Jeopardy Clause.” Therefore, we r eview t h e district court’s imposition of sentences u pon Payne u nde r b o t h 1 8 U

. S.C. § 371 and 18 U.S.C. § 1 349 for plain error. The distri c t court sentenced P ayne to two concurrent terms of fifty-five mont h s i n p r i son, ordered him to pay restitution, and a ssessed a $100 special assessment for each c o u nt. Although the only effect of r esentencing would therefore be to r emove one of the $100 special assessments, we have previously held that imposition of multiplicitous special assessments affects a defendant’s substantial rights and the “fairness , i ntegrity, or public reputation of [the] judicial proceedings.” 2 0 If the district court erred in imposing multiple sentences and if that error w as clear or obvious, w e mu s t r e v e r s e and remand for resentencing. 2 1 To determine w hether the i mposition of m ultiple sentences violates the Double Jeopardy Clause of the Fifth A mendment, w e employ the test articulated in Blockburger v. U

nited S tates

. 2 2 Under that test, a singl e a c t or t ransaction that violates two provisions a mounts to t w o offenses and a defendant may be

2 0 U ni ted Sta tes v . O

gba , 526 F. 3d 214, 237- 38 (5th Cir. 2008) ( alteration in original)

. The concurrent sentence d octrine als o d oes not ap p ly becaus e of the im p os ition of the s p ecial as s es s m ent. See Ra

y v . U ni ted S t a tes , 481 U

. S. 736, 737 ( 1987)

.
2 1 U ni ted Sta tes v . H

ebron , 684 F. 3d 554, 558 ( 5th Cir. 2012)

.
2 2 284 U

. S. 299 (1932)

. 15 Case: 12-30106 Document: 00512550333 Page: 15 Date Filed: 03/05/2014No. 12-30106

punished under each so long as “each provision requires proof of a fact which the other does not.” 2 3 The Government argues that 18 U.S.C. § 3 7 1 and 18 U.S.C. § 1 3 4 9 are two separate offenses under Blockburger since § 371 requires proo f of an overt act, which § 1349 d oes not, a nd § 1 349 r equires proof t hat the conspirators agreed to violate a statute in Chapter 63 of Title 18, w hich § 371 does not. Payne does not dispute the Government’s contentions but instead points to our decision in United S tates v. O gba

. 2 4 I n t h a t case, we held t hat the imposition of sentences under both 42 U.S.C. § 1320-7b(b)(2)(A) (illegal remuneration s ) a n d 18 U.S.C. § 1347 (healthcare f raud) was multiplicitous. 2 5 We recognized that t he two statutes each facially “require proof of an additional fact that the other does not”: a violation of § 1347 requires proof of fraud, which illegal remuneration does not, while a violation of § 1320-7b(b)(2)(A) r e q uires proof of payment in r eturn for a referral, which h e a l t h care fraud does not. 2 6 Nonetheless, we held, the analysis did “ not stop here.” 2 7 I n addition to examining the st a t u t e s f a cially, we held t hat we must a ssess the “necessary elements to be proved under t he statutes as charged .” 2 8 Applying t his analysis,

we h eld that, as charged, the jury could have found the defendant guilty of

2 3 Bl ockburger , 284 U. S. at 304.

2 4 526 F. 3d214 ( 5th Cir. 2008)

.
2 5 O gba , 526 F. 3d at 234- 36.

2 6 Id. at 234.

2 7 Id.

2 8 Id. ( em p has is ad d ed)

. 16 Case: 12-30106 Document: 00512550333 Page: 16 Date Filed: 03/05/2014No. 12-30106

healthcare fraud based solely on proof of h is dishonest receipt of illegal kickbacks and intent to defraud. 2 9 Since the only difference between this finding and that necessary to convict the defendant of illegal remuneration was the i n t e n t to defraud, illegal remuneration w as a lesser included offense an d sentencing the defendant under both statutes violated the Fifth Amendment. 3 0 Payne argues that this case presents “virtually identica l facts” as Ogba and t herefore requires the s ame result. This is not the case. Unlike Ogba , the jury in this case could not have found a violation of 18 U.S.C. § 1349 simply by findin g t h a t Payne violated 1 8 U.S.C. § 371, or vice versa. The district court instructed the jury that, in order to pro v e the defendants violated § 1349, the Government was req u i r e d to demonstrate that the defendants c onspired “to obtain p r escriptions for medically u nnecessary power wheelchairs a nd t hen use those medically unnecessary p rescriptions as a basis to submit false and fraudulent claims to M e d i c a r e . ” The jury was instructed that to prove a violation of § 371, the Government was required to show that the defendants “conspir[ed]

. . . to pay illegal healthcare kickbacks to obtain prescriptions for medically unnecessary power wheelchairs o r to receive illegal healthcare kickbacks to provide” such prescriptions. I n order to find a violation o f § 1349, the jury had to find that the defendants conspired to submit claims for medically unnecessary wheelchairs to Medicare. The jury w as not required to make such

a finding to convict the defendants under § 371. Similarly, to find a violation of § 3 71, the jury had t o f ind that the defendants conspired to pay or receive kickbacks. S u ch a finding was not required to convict under § 1349. Because,

2 9 Id. at 235- 36.

3 0 Id. 17 Case: 12-30106 Document: 00512550333 Page: 17 Date Filed: 03/05/2014No. 12-30106

a s c h a r g ed, each offense required proof of a fact the other did not, the distr i c t court did not err, plainly or o therwise, in sentencing Payne under both statutes. V Ngari, Lamid, and Payne assert that t h e Government’s evidence was insufficient to support their convictions. As the defendants properly moved for acquittal, our review is de novo. 3 1 We will overturn a conviction based on insufficiency of t he evidence only if n o “rational jury, viewing the evidence in the light m ost favorable to t he prosecution, could have f ound the essential elements of the offense to be satisfied beyond a reasonable doubt.” 3 2 The defendant s argue that the e vidence against them was insufficient because it did n ot establish that they knowingly ag r e e d to submit fraudulent claims or pay or receive kickbacks in e xchange for prescribing m e d i c a l l y unnecessary wheelchairs. Thes e arguments are meritless. There was subs t a ntial evidence from which a rational jury could conclude beyond a reasonable d o u b t that the d efendants knowingly agreed to submit medically unnecessary claims to Medicare and to pay and receive kickbacks. Such evidence included Walker-Simmons’s testimony that Payne p a id L amid and Ngari paid Payne, the testimony o f recip i e n t s of p ower wheelchairs and their treating physicians that they did not need wheelchairs, the records showing that Ngari and Payne personally deli v e r ed wheelchairs to individuals who were ambulatory and u nimpaired, and Payne’s own admissions that a representative from Medicare alerted him that he may have been involved i n i l l e g a l activity.

3 1 U ni ted Sta tes v . V

a l le , 538 F .3d 341, 344 ( 5th Cir. 2008)

.
3 2 U ni ted Sta tes v . Jones , 664 F. 3d 966, 976 (5th Cir. 2011)

. 18 Case: 12-30106 Document: 00512550333 Page: 18 Date Filed: 03/05/2014No. 12-30106

In light of this evidence as well as the other e vidence discussed, the evidence was sufficient to support the convictions. VI Ngari, Lamid, and Payne argue that the Government failed to prosecute within the statute of limitations. They additio n a l l y assert t hat any evidence concerning Lamid of occurren c e s more than five years before the date of the indictment was inadmissible under Federal Rule of Evidence 404(b). We review “the district court’s fact fin d i n g s in r elation t o the statute of limi t a t ions for clear error and its legal conclusions de novo .” 3 3 T he district court’s determination of the admissibili t y of evidence is reviewed for abuse of discretion. 3 4 The applicable statute of limitations is five years. 3 5 Since the indictment

w a s returned o n April 28, 2010, the Government needed to prove t h a t a “conspirator committed an overt a ct in furtherance of the c onspiracy” on or after April 28, 2005. 3 6 The defendants argue that the G overnment failed to m eet this burden b ecause on Fe b r u ary 17, 2005, Lamid wrote the last wheelchair prescriptions t hat Unique filled, and Goldsby wrote t he last prescription in April 2005 that was used by Unique to obtain Medicare payments. This argument is meritless. T he s tatute of limitations does not require the Government to prove t hat each conspirator engag e d in an overt act in

3 3 U ni ted Sta tes v . Pf

l uger , 685 F. 3d 481, 483 ( 5th Cir. 2012)

.
3 4 U ni ted Sta tes v . Ra m i rez , 145 F .3d 345, 355 ( 5th Cir. 1998)

.
3 5 See 18 U

. S. C. § 3282( a)

.
3 6 U ni ted Sta tes v . M

a nges , 110 F. 3d 1162, 1169 ( 5th C ir. 1997)

.

19 Case: 12-30106 Document: 00512550333 Page: 19 Date Filed: 03/05/2014No. 12-30106

furtherance o f the c onsp i r a c y within five y ears before the return of the indictment. Rather, t he G overnment need only “allege a n d prove the commission of at least one overt act by one of the conspirators.” 3 7 If a defendant withdraws from a c onspiracy, the statute of limitations begins to run when the withdrawal occurs. 3 8 The defendants, h owever, present no evidence t hat Lamid withdrew from the conspiracy. The record reveals t hat numerous overt acts were c ommitted after April 28, 2005, including payments from Ngari to P a yne, deliveries of unnecessary wheelchairs prescribed by Lamid, and the r eceipt of funds from Medicare. The defendants d o not dispute that t hese were overt acts in furtherance of the conspiracy. 3 9 The record suppo r t s th e c o n c l u s i o n t h a t L a m id personally engaged in overt acts i n furtherance of the conspiracy d uring the limitations period. Specifically, evidence showed that Lamid saw patients f o r whom he wrote wheelchair prescriptions filled by Unique as late as December 7, 2005. Even in the absence o f s u c h evidence, evidence concerning Lamid would be a dmissible. “ The statute of limitations i s a defense t o prosecution, not a rule of evidence.” 4 0 As long a s the “prosecution is t i m e ly instituted, the s tatute of

3 7 U ni ted Sta tes v . D a v is , 533 F. 2d 921, 926 ( 5th C ir. 1976) ( em p has is ad ded)

.
3 8 U ni ted Sta tes v . H

ea rd , 709 F. 3d 413, 427 (5th Cir. 2013)

.
3 9 A n y s u c h contention w ould be m eritles s , as this court has p revious ly held that accep tance and retention of f raud p roceed s is an overt act in f urtherance of a cons p iracy. See, e. g
. , U ni ted Sta t es v . Loe , 248 F

. 3d 449, 456- 57 ( 5th Cir. 2001)

.
4 0 U ni ted Sta tes v . A shdow n , 509 F. 2d793, 798 ( 5th Cir. 1975)

. 20 Case: 12-30106 Document: 00512550333 Page: 20 Date Filed: 03/05/2014No. 12-30106

limitations has no bearing on the admissibility of evidence.” 4 1 The district court did not err i n d e t e r m i n i ng that the prosecution w as timely, and the statute of limitations did not bar the admission of any evidence concerning Lamid. VII When L amid was sentenced, the district court ordered him to forfeit more than $2.5 million and denied his motion to stay t he forfeiture p e nding appeal. Lamid contends that the district court’s denial of his motion to stay was error. Federal Rule of C riminal P rocedure 3 2.2(d) provides that a d i strict court “may stay t h e o r d e r of forfeiture

. . . to ensure t hat the property remains

a v a ilable pending appellate review.” 4 2 The parties agree that the decision to grant a stay is within the district court’s discretion. Although Rule 3 2.2(d) does not specify the considerations that a district court must a ssess in determining whether to grant a stay of a forfeiture, courts have generally examine d t h e following factors: (1) the likelihood of s uccess on appeal; (2) whether the forfeited a ssets w ill depreciate over time; (3) the f orfeited assets’ intrinsic value to the defendant; and (4) the expense of maintaining the forfeited property. 4 3 The dis t r i c t c o urt adopted this t est in denying Lamid’s motion. The district court did not abuse its discretion in denying a stay. * * *

4 1 Id.

4 2 F E D

. R. C R I M

. P. 32. 2( d)

.
4 3 See, e. g. , U

ni ted Sta tes v . D roga nes , 893 F

. Sup p. 2d 855, 894 ( E. D. Ky. 2012) ; U ni ted Sta tes v . Peters , 784 F. Sup p . 2d 234, 235 (W. D

. N

. Y

. 2011) ; U ni ted Sta tes v . Ri edl , 214 F. Sup p . 2d 1079, 1082 ( D

. H aw . 2001)

. 21 Case: 12-30106 Document: 00512550333 Page: 21 Date Filed: 03/05/2014No. 12-30106

F o r t h e foregoing reasons, the judgment of the d istrict court is AFFIRMED.

22 Case: 12-30106 Document: 00512550333 Page: 22 Date Filed: 03/05/2014