IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 Nnanta Felix Ngari (Ngari), Sofjan Lamid (Lamid), Ernest

Payne (Payne), and Henry Lamont Jones (Jones) guilty under 18 U.S.C. § 1349

of conspiring to commit health care fraud in violation of 18 U.S.C. § 1347, and

guilty under 18 U.S.C. § 371 of conspiring to offer and receive kickbacks and

bribes in violation of 42 U.S.C. §§ 1320a-7b(b)(1) and 1320a-7b(b)(2)(B), in

connection with goods or services for which Medicare made payments. Jones

United States Court of Appeals

Fifth Circuit

F I L E D

March 5, 2014

Lyle W. Cayce

Clerk

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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voluntarily dismissed his appeal, but Ngari, Lamid, and Payne challenge their

convictions on various grounds. Payne additionally challenges his sentence. We

affirm. 

I

Defendants’ convictions arose out of their involvement with Unique

Medical Solution, Inc. (Unique), a supplier of power wheelchairs and other

durable medical equipment. The Government alleged that Ngari, the owner of

Unique, hired Jones, Payne, and other “recruiters” to seek out Medicare

beneficiaries to attend “health fairs.” At the health fairs, physicians, including

Lamid, wrote prescriptions for power wheelchairs that the Government

contends, and the jury found, were medically unnecessary. Using these

prescriptions, Ngari submitted claims to Medicare and then remitted to the

recruiters a portion of the payments he received. The recruiters paid the

physicians for prescribing the wheelchairs.

The jury heard testimony from Bonnie Walker-Simmons, a former

recruiter for Unique. She described the scheme and the role of each of the

defendants. She identified Lamid as one of the physicians who attended health

fairs. She said that after performing cursory examinations lasting five to ten

minutes, Lamid would write power wheelchair prescriptions for 100% of the

individuals he saw, even though many were completely ambulatory. On one

occasion, Walker-Simmons recalled, Lamid prescribed wheelchairs without

seeing the patients. The number of times that Walker-Simmons witnessed

Lamid’s activities at health fairs is unclear, but it is undisputed that Lamid saw

at least 463 patients at the fairs and did not prescribe wheelchairs for 77 of those

patients. Lamid maintains that the percentage of patients for whom he

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prescribed power chairs was not abnormally high and that in each instance, the

power chair was medically necessary. 

Walker-Simmons also identified Payne as a participant in the conspiracy,

testifying that he brought Lamid to the health fairs, paid him and the recruiters,

and took the prescriptions to Ngari at Unique. Ngari, according 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 examination,the district court admitted,

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

among Walker-Simmons, Jones, and others (the Walker-Simmons

conversation).1 Ngari, Lamid, and Payne were not parties to the conversation. 

In the phone call, Jones discussed plans to start providing wheelchairs from

companies that he formed, with the aim of no longer including Payne, Ngari, and

Ngari’s company Unique in the process of conducting health fairs at which

physicians would prescribe 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 the past in the

Unique conspiracy.

1 As Payne notes, there is substantial confusion regarding what portions ofthe recorded

conversation were admitted into evidence. Based on the record on appeal, it appears that,

while the Government initially planned to introduce the entire tape, it ultimately only

introduced the portions of the tape that were played for the jury and that the transcript only

includes these portions.

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Cynthia Brown, Ngari’s office assistant, also testified. She recounted that

both Jones and Payne delivered prescriptions to Ngari and that Payne

occasionally delivered wheelchairs to patients. To her knowledge these were the

only services the two individuals provided to Ngari. Banking records showed,

however, that Unique paid Jones $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 others. The payments for deliveries were

generally for hundreds of dollars while those for which no purpose is given were

in the thousands. With regard to Lamid’s participation, Brown testified that she

attended a health fair with Ngari, where Lamid examined patients who were

ambulatory and able to climb up steps. 

The Government also called wheelchair recipients as witnesses. Inez

Stewart, who received a power wheelchair from Unique in 2004 based on

Lamid’s prescription, testified that she could walk and that she had never used

any walking aids until 2010 when she began to use a cane. She worked as a cook

for more than six years after receiving the power chair, until the day before trial,

and stood while working. Stewart also stated that her home did not have the

ramps necessary to use the wheelchair effectively and that the individual who

delivered the chair did not show her how to use it. Weldon Bullock, who also

received a power wheelchair from Unique based on Lamid’s prescription,

testified that he regularly gardens, hunts, and takes hour-long walks for

exercise. The Government also called the primary care physicians for a number

of the recipients of power wheelchairs. These physicians testified that they did

not prescribe wheelchairs for these individuals because the patients never

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needed them. The Government provided evidence showing that Ngari delivered

about ninety of the wheelchairs.

During its case-in-chief, the Government introduced portions of testimony

that Payne and Jones had given before the grand jury. In their statements, both

individuals identified the other defendants as participants in the scheme and

described their activities. Although the admitted portions of the testimony

redacted the other defendants’ names, it was apparent from the context of the

testimony that Payne and Jones were referring to Ngari and to a physician. 

Neither Payne nor Jones testified at trial and, accordingly, were not subjected

to cross-examination.

Ngari objected to the admission of both statements on Confrontation

Clause grounds. Neither Lamid nor Payne raised an objection. The district

court overruled Ngari’s objection on the basis that the statements were those of

coconspirators. After the testimony was introduced, the district court

admonished the jury to consider the evidence only as to the declarants and not

to speculate about to whom the various redacted names referred.

Lamid testified in his own defense and denied ever receiving kickbacks or

prescribing medically unnecessary power wheelchairs. He further testified that

he had denied the requests of approximately 200 individuals for power

wheelchairs because they were not qualified to receive them. 

After the close of the evidence, each of the defendants moved for judgment

of acquittal under Federal Rule of Criminal Procedure 29. Ngari and Lamid

subsequently filed renewed motions under Rule 29 and motions for new trials

under Rule 33. The district court denied all the motions. This appeal followed.

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II

Ngari and Lamid contend that the district court’s admission of Payne’s

grand jury testimony violated their rights under the Confrontation Clause of the

Sixth Amendment. Payne joins them in asserting that the admission of Jones’s

grand jury testimony similarly violated the Sixth Amendment. 

“Alleged Confrontation Clause violations are reviewed de novo, and are

subject to harmless error analysis”2 when objection to the evidence is made at

trial. When a defendant fails to make an objection at the time of the evidence’s

admission, this court’s review is limited to plain error.

3 Ngari lodged a

contemporaneous objection to the admission of the grand jury testimony, and we

therefore review de novo the district court’s decision as to him. Payne and

Lamid did not object to the testimony at the time of its admission, and our

review as to them is limited to plain error.

The Sixth Amendment requires that a criminal defendant “be confronted

with the witnesses against him.”4 The Supreme Court has long held that this

clause prohibits the admission of a non-testifying codefendant’s out-of-court

testimony that names or incriminates the other defendants.

5 Althoughredacting

references to the codefendants may prevent a violation,6this is insufficient when

2 United States v. Cantu-Ramirez, 669 F.3d 619, 631 (5th Cir. 2012).

3 Puckett v. United States, 556 U.S. 129, 135 (2009); United States v. Cartwright, 6 F.3d

294, 300 (5th Cir. 1993).

4 U.S. CONST. amend. VI.

5 Bruton v. United States, 391 U.S. 123, 135-36 (1968).

6 Richardson v. Marsh, 481 U.S. 200, 211 (1987).

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the jury can infer from the statement that the redactions refer to codefendants.7

As to Ngari, the district court clearly erred in admitting the grand jury

testimony of Payne and Jones.

A

Payne’s and Jones’s testimony name Ngari numerous times and describe

his role in the scheme. Jones testified that Ngari would pay him for the

prescriptions he delivered after verifying thatthe potential wheelchair recipients

were Medicare beneficiaries. Although Ngari’s name is blacked out and replaced

with generic masculine pronouns, it is obvious that Payne and Jones are

referring to him. Both state or imply that “he” is the owner of the medical

supply company from which the chairs were obtained, and Ngari was the only

person identified during the trial as owning such a company. More specifically,

at one point in his grand jury testimony, 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 should not have admitted, the grand jury

testimony. The Supreme Court’s precedent in this regard is clear. We

disapprove of the Government’s improper use of such testimony in the strongest

of terms.

7 Gray v. Maryland, 523 U.S. 185, 196-97 (1998); see also United States v. Vejar-Urias,

165 F.3d 337, 340 (5th Cir. 1999) (“Where . . . it is obvious from consideration of the confession

as a whole that the redacted term was a reference to the defendant, then admission of a

codefendant’s confession that also inculpates the defendant does violate Bruton.”).

8See Vejar-Urias, 165 F.3d at 340 (holding Confrontation Clause violation existed when

it was clear from admitted confession that “someone” referred to codefendant and confession’s

statements regarding “someone” were “plainly incriminat[ing]”).

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The Government argues, nevertheless, that the error was harmless. 

Though the Government’s conduct in offering the grand jury testimony 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 out-of-court statement “may be considered harmless when,

disregarding the codefendant’s confession, there is otherwise ample evidence

against a defendant.”9 The evidence is “ample” if we are “convinced beyond a

reasonable doubt that the error was harmless in light of the other evidence

presented at trial.”10 Similarly, the erroneous admission of evidence is generally

harmless if the evidence is cumulative.11

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.12

The Government maintains thatthe admission ofthe grand jury testimony

was harmless as to Ngari since it was merely “cumulative proof” of the

“undisputed fact” that Ngari paid Jones and Payne for delivering the

prescriptions. Ngari disputes this contention, asserting that, in the absence of

the testimony, there was no “direct” evidence that he paid Jones and Payne for

the prescriptions. The record does 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 only service Jones

9

Id.

10

Id.

11 See United States v. Hall, 500 F.3d 439, 444 (5th Cir. 2007).

12 Vejar-Urias, 165 F.3d at 340.

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performed for Unique was the delivery of prescriptions and that Payne delivered

prescriptions and made wheelchair deliveries. This information, coupled with

the bank records showing that Ngari transferred to Payne and Jones tens of

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 prescriptions since Walker-Simmons specifically testified

to that fact. While Ngari asserts that the jury could have found WalkerSimmons not credible, there was no reason for the jury to doubt the veracity of

Brown’s testimony or the bank records.

Ngari insists that the grand jury testimony was harmful because it was

the primary evidence offered by the Government as to his knowledge that the

prescriptions were for unnecessary medical equipment. Payne testified that

Ngari told him it was not necessary to tell the recipients how to use the

motorized wheelchairs. This statement is cogent evidence that Ngari knew that

the recipients did not need wheelchairs. As the Government notes, “Ngari’s

defense was based on a claim of good faith—namely, that, if the power

wheelchairs he was ordering were medically unnecessary, he was unaware of it.” 

Although Payne’s statement was the most direct and compelling evidence

of Ngari’s state of mind, the Government introduced other circumstantial

evidence that establishes beyond a reasonable doubt that Ngari knew the

wheelchairs were unnecessary. The Government introduced evidence that Ngari

personally delivered ninety wheelchairs and that many recipients were

ambulatory and did not have wheelchair ramps or other equipment needed to

use the chairs in their homes. One recipient to whom Ngari delivered a

wheelchair had four or five steps leading into her home and was able to walk up

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those steps without assistance. Recipients also testified that the person who

delivered their wheelchairs did not instruct them on how to use the devices. 

Brown stated that she and Ngari attended a health fair where ambulatory

individuals without wheelchairs were waiting to see Lamid. This evidence is

sufficiently compelling to establish beyond a reasonable doubt that Ngari knew

the wheelchairs he was ordering were not necessary. There was no reasonable

probability a jury would have acquitted Ngari if the grand jury testimony had

been excluded.

B

Because Lamid failed to object to the excerpts of grand jury testimony, he

must demonstrate that the admission 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 obvious, not subject to reasonable dispute; and (3) the error affected

his substantial rights.”13 Even if he demonstrates the existence of these three

elements, this court only has discretion to remedy the district court’s error “if it

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.”14 The Government concedes that the district court committed

error and does not dispute that it was clear or obvious. It is therefore

unnecessary to reach those questions. Even assuming that these two prongs

were met, Lamid has failed to establish that the district court’s admission of the

grand jury excerpts affected his substantial rights.

13 United States v. Hebron, 684 F.3d 554, 558 (5th Cir. 2012).

14

Id.

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To show that an error affected his substantial rights, an appellant “must

demonstrate that it ‘affected the outcome of the district court proceedings.’”15

Lamid argues that the admission of the testimony altered the outcome because

it allowed the Government to “create credibility where none existed” and “to

construe in the minds of the jury that the actors at trial were, in fact, involved

in a conspiracy.” The Government responds that Lamid suffered no prejudice

because there was sufficient untainted evidence to convince a jury beyond 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 the existence of

a previously questionable conspiracy. Although Walker-Simmons’s prior false

statements and convictions might have initially led the jury to question her

honesty, the Government put forward substantial confirmatory

evidence—including Brown’s testimony that Lamid’s patients were ambulatory,

the testimony of the patients themselves as well as their treating physicians,

and the banking records that reflected payments to Payne and Jones—to

establish that Walker-Simmons was credible. This evidence was also more than

sufficient to establish that there was a conspiracy to submit claims for

unnecessary wheelchairs of which Lamid was an integral part. 

It is also doubtful that the testimony as redacted actually incriminated

Lamid. While Payne and Jones made clear references to a physician, they are

not obvious references to Lamid. The Government introduced evidence that the

conspirators also relied heavily upon Dr. Reginald Goldsby to prescribe

15 Puckett v. United States, 556 U.S. 129, 135 (2009) (quoting United States v. Olano,

507 U.S. 725, 734 (1993)).

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unnecessary wheelchairs. Aside from a single mention of New Orleans as one

physician’s place of business, there is nothing in either set of excerpts that would

have allowed the jury to conclude that Jones and Payne were speaking about

Lamid instead of Goldsby. Even Lamid’s own counsel believed that some of the

references to his client were actually references to Goldsby. Lamid has failed to

demonstrate that any error the district court made in admitting the testimony

affected his substantial rights.

Lamid also argues that the statements should not have been admitted

because they were hearsay. Because Lamid failed to object at trial, this claim

is subject to the same plain error analysis

16

ashis Confrontation Clause objection

and fails for the same reasons. 

C

Like Lamid, Payne failed to object to the admission of Jones’s testimony

and must therefore demonstrate that its admission affected his substantial

rights. Payne argues that the jury’s consideration of Jones’s testimony affected

the outcome of his case by indicating that Payne had the requisite mens rea. 

However, as the Government points out, the only segment of the admitted grand

jury testimony that references Jones is a twelve-line passage in which Jones

states that he worked with “him” and paid “him” a portion of the funds he

received from Ngari. This statement sheds no light on Payne’s mens rea, and it

is also cumulative since Payne admitted that he was paid per chair delivered. 

Moreover, there is nothing in this passage or any other segment of Jones’s

admitted testimony that indicates that “him” is a reference to Payne. Since

16 See Foradori v. Harris, 523 F.3d 477, 508 (5th Cir. 2008) (“Because [the defendant]

did not timely object to the testimony it now challenges, we review these claims for plain error

. . . .”); id. at 507 n.26 (objection not made until day after testimony introduced not timely).

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Jones’s testimony was cumulative, its admission did not affect Payne’s

substantial rights. 

We therefore 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 based on

the district court’s admission of the Walker-Simmons recorded and transcribed

telephone conversation. They assert that it is not a statement of a coconspirator

under Federal Rule of Evidence 801(d)(2)(E) and that, even if it were, its

admission violated Federal Rule of Evidence 404(b). Lamid and Payne

additionally claim that the admission of the conversation violated the

Confrontation Clause.

The Government argues that, even if erroneous, the introduction of the

Walker-Simmons conversation was harmless because it did not address whether

the prescriptions were medically necessary. The defendants respond that the

conversation “imputed . . . ‘guilty knowledge’” to them and indicated that the

payments to Lamid were kickbacks rather than compensation for travel. We

agree with the defendants that the conversation is incriminating because it

strongly suggests that the defendants were attempting to concealtheir fraud and

that Lamid was receiving kickbacks. Jones specifically states at one point that

Ngari did not pay Lamid directly because doing so 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 statements concerning the

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defendants were cumulative of evidence already in the record.17 As discussed,

the Government introduced considerable other evidence that the defendants

intended to commit fraud and to pay and receive kickbacks. Such evidence

included Walker-Simmons’s testimony that Payne paid Lamid kickbacks, that

Ngari paid Payne for prescriptions, and that Lamid at times wrote prescriptions

without seeing patients; the testimony of the wheelchair recipients and their

treating physicians that they were completely ambulatory and did not need any

walking aids; the bank records establishing that Ngari paid Payne and Jones

tens of thousands of dollars; and the evidence that Ngari personally delivered

wheelchairs to many individuals, many of whom had no difficulty walking and

whose homes were not accessible to a wheelchair. There is no reasonable

probability a jury would have acquitted the defendants in the absence of the

recorded conversation. Thus, 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. § 1349 were multiplicitous. However, since they each failed

to raise this claim before trial and none has shown cause for that failure, they

each have forfeited the claim on appeal.18

Unlike an argument regarding multiplicitous convictions, a claim that

sentences are multiplicitous “can be raised for the first time on appeal,” in which

case we review for plain error.19 Neither Lamid nor Ngari contends that the

17 See United States v. Hall, 500 F.3d 439, 444 (5th Cir. 2007).

18 See United States v. Soape, 169 F.3d 257, 265 (5th Cir. 1999).

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

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district court imposed multiplicitous sentences or asks that this court remand

for resentencing. While Payne’s primary argument concerns his convictions, he

also asks this court to remand for resentencing because “it is not possible . . . to 

determine with the requisite certainty that the sentences did not violate the

Double Jeopardy Clause.” Therefore, we review the district court’s imposition

of sentences upon Payne under both 18 U.S.C. § 371 and 18 U.S.C. § 1349 for

plain error. 

The district court sentenced Payne to two concurrent terms of fifty-five

months in prison, ordered him to pay restitution, and assessed a $100 special

assessment for each count. Although the only effect of resentencing would

therefore be to remove 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, integrity, or public reputation of [the]

judicial proceedings.”20

If the district court erred in imposing multiple sentences

and if that error was clear or obvious, we must reverse and remand for

resentencing.21

To determine whether the imposition of multiple sentences violates the

Double Jeopardy Clause of the Fifth Amendment, we employ the test articulated

in Blockburger v. United States.

22 Under that test, a single act or transaction

that violates two provisions amounts to two offenses and a defendant may be

20 United States v. Ogba, 526 F.3d 214, 237-38 (5th Cir. 2008) (alteration in original).

The concurrent sentence doctrine also does not apply because of the imposition of the special

assessment. See Ray v. United States, 481 U.S. 736, 737 (1987).

21 United States v. Hebron, 684 F.3d 554, 558 (5th Cir. 2012).

22

284 U.S. 299 (1932).

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punished under each so long as “each provision requires proof of a fact which the

other does not.”23 The Government argues that 18 U.S.C. § 371 and 18 U.S.C.

§ 1349 are two separate offenses under Blockburger since § 371 requires proof

of an overt act, which § 1349 does not, and § 1349 requires proof that the

conspirators agreed to violate a statute in Chapter 63 of Title 18, which § 371

does not. 

Payne does not dispute the Government’s contentions but instead points

to our decision in United States v. Ogba.

24

In that case, we held that the

imposition of sentences under both 42 U.S.C. § 1320-7b(b)(2)(A) (illegal

remunerations) and 18 U.S.C. § 1347 (healthcare fraud) was multiplicitous.25

We recognized that the 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) requires

proof of payment in return for a referral, which healthcare fraud does not.26

Nonetheless, we held, the analysis did “not stop here.”27In addition to

examining the statutes facially, we held that we must assess the “necessary

elements to be proved under the statutes as charged.”28 Applying this analysis,

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

23 Blockburger, 284 U.S. at 304.

24

526 F.3d 214 (5th Cir. 2008).

25 Ogba, 526 F.3d at 234-36.

26

Id. at 234.

27

Id.

28

Id. (emphasis added).

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healthcare fraud based solely on proof of his dishonest receipt of illegal

kickbacks and intent to defraud.29 Since the only difference between this finding

and that necessary to convict the defendant of illegal remuneration was the

intent to defraud, illegal remuneration was a lesser included offense and

sentencing the defendant under both statutes violated the Fifth Amendment.30

Payne argues that this case presents “virtually identical facts” as Ogba

and therefore requires the same 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

finding that Payne violated 18 U.S.C. § 371, or vice versa. The district court

instructed the jury that, in order to prove the defendants violated § 1349, the

Government was required to demonstrate that the defendants conspired “to

obtain prescriptions for medically unnecessary power wheelchairs and then use

those medically unnecessary prescriptions as a basis to submit false and

fraudulent claims to Medicare.” 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 or to receive illegal healthcare

kickbacks to provide” such prescriptions. In order to find a violation of § 1349,

the jury had to find that the defendants conspired to submit claims for medically

unnecessary wheelchairs to Medicare. The jury was not required to make such

a finding to convict the defendants under § 371. Similarly, to find a violation of

§ 371, the jury had to find that the defendants conspired to pay or receive

kickbacks. Such a finding was not required to convict under § 1349. Because,

29

Id. at 235-36.

30

Id.

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as charged, each offense required proof of a fact the other did not, the district

court did not err, plainly or otherwise, in sentencing Payne under both statutes.

V

Ngari, Lamid, and Payne assert that the Government’s evidence was

insufficient to support their convictions. As the defendants properly moved for

acquittal, our review is de novo.31 We will overturn a conviction based on

insufficiency of the evidence only if no “rational jury, viewing the evidence in the

light most favorable to the prosecution, could have found the essential elements

of the offense to be satisfied beyond a reasonable doubt.”32

The defendants argue that the evidence against them was insufficient

because it did not establish that they knowingly agreed to submit fraudulent

claims or pay or receive kickbacks in exchange for prescribing medically

unnecessary wheelchairs. These arguments are meritless. There was

substantial evidence from which a rational jury could conclude beyond a

reasonable doubt that the defendants knowingly agreed to submit medically

unnecessary claims to Medicare and to pay and receive kickbacks. Such

evidence included Walker-Simmons’s testimony that Payne paid Lamid and

Ngari paid Payne, the testimony of recipients of power wheelchairs and their

treating physicians that they did not need wheelchairs, the records showing that

Ngari and Payne personally delivered wheelchairs to individuals who were

ambulatory and unimpaired, and Payne’s own admissions that a representative

from Medicare alerted him that he may have been involved in illegal activity. 

31 United States v. Valle, 538 F.3d 341, 344 (5th Cir. 2008).

32 United States v. Jones, 664 F.3d 966, 976 (5th Cir. 2011).

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In light of this evidence as well as the other evidence 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 additionally assert that any evidence

concerning Lamid of occurrences 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 findings in relation to the statute of

limitations for clear error and its legal conclusions de novo.”33 The district

court’s determination of the admissibility of evidence is reviewed for abuse of

discretion.34

The applicable statute of limitations is five years.35 Since the indictment

was returned on April 28, 2010, the Government needed to prove that a

“conspirator committed an overt act in furtherance of the conspiracy” on or after

April 28, 2005.36 The defendants argue that the Government failed to meet this

burden because on February 17, 2005, Lamid wrote the last wheelchair

prescriptions that Unique filled, and Goldsby wrote the last prescription in April

2005 that was used by Unique to obtain Medicare payments. 

This argument is meritless. The statute of limitations does not require the

Government to prove that each conspirator engaged in an overt act in

33 United States v. Pfluger, 685 F.3d 481, 483 (5th Cir. 2012).

34 United States v. Ramirez, 145 F.3d 345, 355 (5th Cir. 1998).

35 See 18 U.S.C. § 3282(a).

36 United States v. Manges, 110 F.3d 1162, 1169 (5th Cir. 1997).

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furtherance of the conspiracy within five years before the return of the

indictment. Rather, the Government need only “allege and prove the

commission of at least one overt act by one of the conspirators.”37If a defendant

withdraws from a conspiracy, the statute of limitations begins to run when the

withdrawal occurs.38 The defendants, however, present no evidence that Lamid

withdrew from the conspiracy.

The record reveals that numerous overt acts were committed after April

28, 2005, including payments from Ngari to Payne, deliveries of unnecessary

wheelchairs prescribed by Lamid, and the receipt of funds from Medicare. The

defendants do not dispute that these were overt acts in furtherance of the

conspiracy.39 

The record supports the conclusion thatLamid personally engaged in overt

acts in furtherance of the conspiracy during the limitations period. Specifically,

evidence showed that Lamid saw patients for whom he wrote wheelchair

prescriptions filled by Unique as late as December 7, 2005. 

Even in the absence of such evidence, evidence concerning Lamid would

be admissible. “The statute of limitations is a defense to prosecution, not a rule

of evidence.”40 As long as the “prosecution is timely instituted, the statute of

37 United States v. Davis, 533 F.2d 921, 926 (5th Cir. 1976) (emphasis added).

38 United States v. Heard, 709 F.3d 413, 427 (5th Cir. 2013). 

39 Any such contention would be meritless, as this court has previously held that

acceptance and retention of fraud proceeds is an overt act in furtherance of a conspiracy. See,

e.g., United States v. Loe, 248 F.3d 449, 456-57 (5th Cir. 2001).

40 United States v. Ashdown, 509 F.2d 793, 798 (5th Cir. 1975).

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limitations has no bearing on the admissibility of evidence.”41 The district court

did not err in determining that the prosecution was timely, and the statute of

limitations did not bar the admission of any evidence concerning Lamid.

VII

When Lamid was sentenced, the district court ordered him to forfeit more

than $2.5 million and denied his motion to stay the forfeiture pending appeal. 

Lamid contends that the district court’s denial of his motion to stay was error.

Federal Rule of Criminal Procedure 32.2(d) provides that a district court

“may stay the order of forfeiture . . . to ensure that the property remains

available pending appellate review.”42 The parties agree that the decision to

grant a stay is within the district court’s discretion.

Although Rule 32.2(d) does not specify the considerations that a district

court must assess in determining whether to grant a stay of a forfeiture, courts

have generally examined the following factors: (1) the likelihood of success on

appeal; (2) whether the forfeited assets will depreciate over time; (3) the forfeited

assets’ intrinsic value to the defendant; and (4) the expense of maintaining the

forfeited property.43 The district court adopted this test in denying Lamid’s

motion. The district court did not abuse its discretion in denying a stay.

* * *

41

Id.

42 FED. R. CRIM. P. 32.2(d).

43 See, e.g., United States v. Droganes, 893 F. Supp. 2d 855, 894 (E.D. Ky. 2012); United

States v. Peters, 784 F. Supp. 2d 234, 235 (W.D.N.Y. 2011); United States v. Riedl, 214 F. Supp.

2d 1079, 1082 (D. Haw. 2001).

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For the foregoing reasons, the judgment of the district court is

AFFIRMED. 

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