NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        MAY 2 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-50208

                Plaintiff-Appellee,
                                                D.C. No.
 v.                                             2:13-cr-00220-DMG-1

QUEEN ANIEZE-SMITH,
                                                MEMORANDUM*
                Defendant-Appellant.


UNITED STATES OF AMERICA,                       No.    16-50204

                Plaintiff-Appellee,             D.C. No.
                                                2:13-cr-00220-DMG-2
 v.

ABDUL KING GARBA,

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Central District of California
                     Dolly M. Gee, District Judge, Presiding

                     Argued and Submitted February 4, 2019*
                              Pasadena, California



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: GOULD and NGUYEN, Circuit Judges, and BENITEZ,** District Judge.

      Defendant-Appellants Queen Anieze-Smith and Abdul King Garba were

each convicted on five counts of health care fraud in violation of 18 U.S.C. § 1347.

In this consolidated appeal, Defendant-Appellants challenge the sufficiency of the

evidence to support their convictions and various evidentiary rulings of the district

court. Anieze-Smith also individually challenges the district court’s restitution

order, which we address in a concurrently-filed opinion.

1.    There was sufficient evidence to support Defendant-Appellants’ convictions.

The court reviews the sufficiency of the evidence in the light most favorable to the

prosecution to determine whether any reasonable trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,

, 319 (1979). Viewed in the light most favorable to the prosecution,

the evidence is sufficient to support Defendant-Appellants’ convictions on all

counts charged. The evidence shows that Defendant-Appellants, through their

joint business, ITC, obtained patients from a select group of doctors, some of

whom worked at compromised clinics. Defendant-Appellants filled almost

exclusively power wheelchair prescriptions and did so regardless of whether the

patient’s medical file had indicated that a power wheelchair was medically



      **
            The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.

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necessary. The evidence also shows that Defendant-Appellants delivered power

wheelchairs without conducting home assessments, billed for power wheelchairs

before they were delivered, or in some cases received fewer prescriptions for and

purchased fewer power wheelchairs than the number of power wheelchair claims

that they submitted to Medicare for reimbursement. Taken together, this evidence

is sufficient to support Defendant-Appellants’ convictions for health care fraud.

2.    The district court did not err in admitting Special Agent Kuntz’s (“SA

Kuntz”) expert opinion testimony. SA Kuntz’s testimony was relevant to help the

jury understand the overall fraudulent scheme alleged, see United States v. Loftis,

, 1177 (9th Cir. 2016) (noting that, where a fraudulent scheme is an

element of the offense charged, the government may present evidence establishing

the fraudulent scheme as a whole), and helpful to the jury to explain the modus

operandi of fraudulent durable medical equipment supply schemes, see United

States v. Johnson, 

, 1202 (9th Cir. 1984). The challenged testimony

here did not raise the same concerns as those raised by certain drug courier profile

testimony. See United States v. Gil, 

, 1422 (9th Cir. 1995).

Defendant-Appellants’ argument that SA Kuntz’s testimony was unreliable goes to

the weight, and not to the admissibility, of SA Kuntz’s testimony. See United

States v. Hankey, 

, 1169 (9th Cir. 2000); United States v. Garcia, 

, 890 (9th Cir. 1993).


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3.    The district court did not abuse its discretion in admitting the Medicare

overpayment letters. The existence of a fraudulent scheme is an element of the

health care offenses charged. See 18 U.S.C. § 1347. Although the five counts

charged all involve executions of the scheme that occurred in 2008, the indictment

alleges that the fraudulent scheme ran from 2006 to 2009. Evidence of the

Medicare overpayment letters sent in 2009 is therefore admissible for the non-

hearsay purpose of showing that Defendant-Appellants were on notice of their

problematic billing practices during the course of the fraudulent scheme.

4.    The district court did not abuse its discretion in admitting summary charts

that were prepared by Special Agent Nathenson (“SA Nathenson”). The charts

were admissible under Federal Rule of Evidence 1006 because they summarized

thousands of pages of relevant documents, and Defendant-Appellants do not

dispute that the underlying documents were made available to them. That SA

Nathenson was not an accountant does not affect the charts’ admissibility. See

United States v. Aubrey, 

, 1129 (9th Cir. 2015). Anieze-Smith’s

argument that the charts violated Rule 403 fails because she cannot show that their

probative value was substantially outweighed by the risk of prejudice. Anieze-

Smith’s remaining arguments as to foundation, hearsay, the Confrontation Clause,

relevance, and character evidence are abandoned. See Acosta-Huerta v. Estelle, 

, 144 (9th Cir. 1992).


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5.    The district court also did not abuse its discretion in admitting evidence of

fraud at certain clinics that referred patients to ITC. The evidence of fraud at the

clinics was inextricably intertwined with the conduct charged because it was

necessary to explain the government’s theory of the case—namely, how ITC

obtained prescriptions for the unnecessary power wheelchairs, why ITC should

have been on notice that the power wheelchairs were unnecessary, and where

ITC’s large unaccounted-for cash withdrawals may have been going. See United

States v. DeGeorge, 

, 1220 (9th Cir. 2004).

6.    The district court did not err in denying Anieze-Smith’s motion to dismiss

the indictment based on alleged misconduct during the grand jury proceedings.

Any alleged mistake in connection with the grand jury’s charging decision is

rendered harmless beyond a reasonable doubt by the petit jury’s guilty verdict. See

United States v. Bingham, 

 (9th Cir. 2011). The court’s review on

appeal is limited to specific structural errors, which Anieze-Smith does not allege

here. Id. Even assuming arguendo that the district court erred in not dismissing

the indictment, the error was harmless.

7.    Defendant-Appellants’ cumulative error argument fails because Defendant-

Appellants have not established that the district court committed any error. See

United States v. Necoechea, 

, 1282 (9th Cir. 1993).

AFFIRMED.


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