Case: 19-20797 Document: 00515989992 Page: 1 Date Filed: 08/23/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 23, 2021
No. 19-20797
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Dayakar Moparty; Harcharan Singh Narang,
Defendants—Appellants.
Appeal from the United States District Court
for the Southern District of Texas
USDC 4:17-CR-290-3
Before Jones, Southwick, and Costa, Circuit Judges.
Edith H. Jones, Circuit Judge:
Dr. Harcharan Singh Narang and Dayakar Moparty were convicted of
health care fraud, conspiracy to commit health care fraud, and money
laundering. They both assert alleged errors in the trial and sentencing.
Moparty further challenges the sufficiency of the evidence supporting his
convictions. Some inexcusable trial errors were committed or permitted by
the government, which counsel on appeal explained as the reason for an
incredibly long (132-page) appellate brief: the government wanted to make
abundantly clear that the errors were “harmless.” Nonetheless, we
AFFIRM.
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I. BACKGROUND
This direct criminal appeal stems from various federal health care
fraud convictions. On May 17, 2017, a grand jury indicted Narang,
Dr. Gurnaib Singh Sidhu, and Moparty on one count of Conspiracy to
Commit Health Care Fraud in violation of 18 U.S.C. § 1349 and seventeen
counts of Health Care Fraud in violation of
18 U.S.C. § 1347. It further
indicted Narang and Moparty on three counts of Engaging in Monetary
Transactions in Property Derived from Specified Unlawful Activity in
violation of
18 U.S.C. § 1957.
Narang is an internist who practiced at his self-owned clinic, North
Cypress Clinical Associates, P.A. (“North Cypress”) in Cypress, Texas.
Sidhu also practiced as an internist and was employed by Narang, primarily
at the second North Cypress office. 1 Moparty co-owned Red Oak Hospital
(“ROH”) and served as an administrator for Spring Klein Surgical Hospital
DBA Trinity Health Network (“Trinity” or “Spring Klein”). Trinity
provided staffing and administrative services to a number of health care
entities including Cleveland Regional Medical Center (“CRMC”), 2920 ER,
2920 Open MRI Digital Imaging, ROH, and Cleveland Imaging and Surgical
Hospital DBA Doctor’s Diagnostic Hospital (“DDH”).
The indictment alleged that Narang, Sidhu, and Moparty conspired
to and executed a scheme where Narang and Sidhu ordered unnecessary
medical tests for patients and then authorized Moparty to bill for these tests
through ROH at the higher hospital rate even though these patients were
seen and treated at Narang’s North Cypress office. Further, when insurers
denied claims originating from ROH, Moparty would resubmit them from
1
Sidhu is not a party to this appeal. He entered into a plea agreement with the
government prior to trial and later succumbed to cancer.
2
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another entity associated with Trinity. The indictment alleged that this
scheme resulted in fraudulent billing of over $20 million to Blue Cross Blue
Shield, Aetna, and Cigna. Those companies paid Moparty at least $3.2
million in reimbursement for those claims which he allegedly split with
Narang through a series of financial transactions.
An eight-day jury trial began on February 11, 2019.
A. The Government’s Case-in-Chief
At trial, the government introduced extensive testimony to
demonstrate how the scheme operated. As the government describes, the
scheme had three key parts: (1) a patient intake and testing component; (2) a
billing component; and (3) a financial distribution component.
1. Patient Testing
In 2013, Forever Fit Wellness Center, PLLC (“Forever Fit”), a
“medi-spa”—owned by Narang’s wife Ranjit Kaur—that shared office
space with North Cypress, began offering coupons for “Lipotropix weightloss shots” on Groupon. The coupon offered weekly injections but required
the purchaser to perform a 30-minute consultation with a medical
professional prior to beginning the regimen. At trial, four women who
purchased these coupons and Rikesha Burton, Narang’s former medical
assistant, testified about the process. Upon arrival at Forever Fit, the
patients were asked to fill out medical and personal history forms. After
completing these forms and undergoing a vitals check, the patients were seen
by Narang. During the consultation, Narang would ask wide-ranging
questions related to dizziness, headaches, backaches, or other generic
ailments. Even though these women indicated they were in relatively good
health and that the weight loss shot was the primary reason for the visit,
Narang’s open-ended questioning elicited affirmative answers from the
patients.
3
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Narang then persuaded the patients to undergo brief testing at North
Cypress and explained that their insurance would cover any costs and they
would not pay anything. 2 Narang would then typically order cardiac and/or
abdominal ultrasounds, ENGs, nerve conduction tests, electromyography
tests, allergy tests, and artery and/or vein doppler tests. Approximately 80–
90% of Groupon patients with insurance received this battery of additional
tests—all patients getting the injections were required to have an EKG
performed. Burton testified that she and other medical assistants sometimes
warned Groupon patients that they were not obligated to undergo additional
testing. Burton also testified she was later reprimanded for doing this. After
Narang ordered the tests, the testing orders were typically approved under
Sidhu’s name although he did not see the patients. The tests were then
performed at the North Cypress location.
This same pattern also occurred with patients who visited Narang for
medical treatment unrelated to the Groupon injections. One patient in acute
pain sought medication for an ulcer. She saw Narang and received an
echocardiogram and nerve conduction velocity test despite a lack of
underlying symptoms that would warrant those tests.
The government presented four expert witnesses who testified
regarding the medical necessity of the testing ordered by Narang. First,
Dr. Richard Gans, a vestibular and balance disorder specialist, reviewed a
sample of 29 patient files. He found that key data were often missing, such
as calibrations results and the actual test recordings, rendering the test results
useless.
Second, Dr. Rubina Wahid, an allergy and immunology specialist,
examined 33 patient charts and found no conclusive indicators that would
2
Patients without insurance were not encouraged to do any additional testing.
4
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warrant allergy testing. Further, Dr. Wahid noted that tests had been
improperly performed and recorded, and the files were missing detailed
patient histories, assessments, plans, discussions of results, and follow-ups.
Finally, Dr. Wahid testified that the patients presenting for weight loss
injections were documented to have a variety of maladies and received a
“battery of tests.”
Next, Dr. Peter Grant, an internist with an expertise in
electrodiagnostic medicine, reviewed tests for 68 patients and determined
that 83–94% of the tests were not medically necessary. Further, Dr. Grant
found the tests were “fraught with errors and inaccuracies” and
approximately 80% of the tests were “worthless.”
Finally, Dr. Michael Bungo, a cardiologist, reviewed 40 patient files.
The majority of the files he reviewed were 30–68-year-old females with low
statistical probability of cardiovascular disease. He disparaged the idea that
many patients would exhibit the very same array of symptoms 3 as “so
medically improbable that it bordered on impossible” and that he didn’t
“have 40 people in thousands of patients that all present with the
constellation of symptoms that are identical.” Further, Dr. Bungo observed
that analysis of the patients by Narang was lacking, appropriate tests were not
ordered, doctor’s notes were missing or contradictory when present, and
testing was unrelated to patient symptoms.
Additionally, the government called Dr. Aditya Samal, a boardcertified cardiologist, as a fact witness. Narang had hired Dr. Samal to read
echocardiograms and vascular studies. Narang sent Samal approximately
800 studies in one year, a number that Samal noted was unusually high.
3
Symptoms included chest pain, swelling of the ankles, dizziness, runny nose, calf
cramping, and palpitations.
5
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Further, Dr. Samal explained that the quality of the tests fell below
appropriate medical standards—some had been done months earlier and
most were medically unnecessary based on the patient’s symptoms, age, and
sex. This reflected a pattern of “low quality, inappropriate studies” and
caused Samal to end the arrangement.
2. Billing Practices
The crux of the government’s argument was that Narang and
Moparty executed a “pass-through billing scheme” where services are
rendered at one location, but the bills are submitted from a different place at
a higher rate. Central to this theory was the testimony of Keon Warren,
Moparty’s billing director. 4 Warren testified that in 2012 he met with
Moparty, Narang, and Kaur—Moparty explained that they were going to be
billing for Narang’s office which would function as “an extension of the
hospital, part of the HOPD [hospital outpatient department].” Pursuant to
this arrangement, Warren “would get directions . . . as to what we were going
to bill” and “receive the emails, what’s going to be on them, what we’re
going to be billed, and so forth.” These emails included the patients’
demographics, their forms and signatures, insurance information, tests, and
billing codes—all the information needed to generate the bills. Warren would
then prepare the claims to bill the patients’ insurance companies.
Moparty was copied on these emails and provided Warren instruction.
Initially, the tests were billed through DDH, beginning during the summer of
2012. Then in late 2012, billing shifted over to 2920 ER (or Trinity
Healthcare as it was also known) after it received a freestanding emergency
center license. Finally, in March 2013 billing shifted again to ROH. Moparty
4
Warren’s signature line indicates that he worked for Trinity Healthcare, ROH,
and 2920 ER LLC.
6
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informed Warren that Narang’s office was going to be an extension of ROH
and showed him an email representing this. Thereafter, all billing flowed
through ROH. Warren would generate billing amounts based off the
Medicare rates and “what [he] knew about markup.” These were all billed
at a hospital rate.
Occasionally, insurance companies would deny ROH claims. When
this occurred, Warren would consult Moparty and then rebill the claim
through CRMC. On one occasion, after the rebilled claim was rejected again,
Moparty instructed Warren to submit it a third time through 2920 MRI. This
practice of “rebilling” started happening in 2013 when initial billing was
shifted to ROH.
After receiving a claim from ROH or similar entity, the insurance
companies typically prepare an explanation of benefits (“EOB”) for the
patient which details the services received, the entity that performed them,
and the amount billed to the insurance company. Upon receiving EOBs after
visits to North Cypress, patients saw exorbitant prices billed from entities
they had no recollection visiting. One patient’s EOB reflected thousands of
dollars of billing from CRMC and ROH, but the patient had no knowledge of
those entities’ involvement. That patient was certain that no paperwork had
indicated ROH and there was nothing at the North Cypress office to
demonstrate affiliation with ROH or CRMC. Other patients also expressed
surprise at seeing Sidhu’s name listed on their EOB after only seeing Narang.
The patients uniformly discovered that their insurance companies had been
billed for tests they never received, and their medical files noted symptoms
they denied having.
Three fact witnesses representing the major insurance companies
testified for the government. These individuals provided context on general
insurance billing practices. Generally, when a physician submits a claim, the
7
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location of the place of service must be disclosed. However, when a facility,
such as ROH, submits a claim, a different form is used which does not
indicate the location—that information would only be available if the
insurance company requested the patient files. These witnesses testified that
their respective insurance companies would not pay claims that erroneously
indicated that they were performed at a hospital or were medically
unnecessary. The amount the insurance company will pay for a given service
is typically dependent on who provided it, where it was provided, and
whether the provider is inside or outside of the company’s provider network.
Though Narang and North Cypress were in-network for these insurers, ROH
was not. This resulted in drastically higher billing rates.
For example, on one set of claims, ROH was eligible to receive
$34,359.50 compared to $3164.32 that Narang could have submitted under
his network agreement. Similarly, another patient’s claims were billed at
nearly $37,000 compared to the Narang’s rate of $1400. By billing these
claims through ROH, rates were inflated up to 25x higher than if Narang had
billed directly for the tests. One patient’s hour-long visit to Narang resulted
in a bill of $800,000 from ROH to Blue Cross Blue Shield. 5 In total, ROH
and other Moparty entities 6 billed over $20 million to Aetna, Cigna, and Blue
Cross Blue Shield and received approximately $3.2 million.
3. Financial Distribution
The final aspect of the scheme was described by Agent Lammons, who
had 14 years of experience investigating health care fraud. Lammons testified
that the insurance and billing records corroborated the pass-through billing
5
ROH later claimed that a “billing error” was the cause.
6
These entities included: CRMC, ROH, 2920 MRI, DDH, 2920 ER, and Spring
Klein/Trinity.
8
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testimony of the other witnesses. Similarly, the data reflected instances of
“rebilling” as described by Warren. Lammons explained that the common
thread through this scheme was Moparty’s ownership in these various
entities. 7 Money that flowed in from Moparty’s various entities ended up
with Trinity. Lammons described it as “an account that collects money from
all sorts of places”—a shell company. From there, money was transferred to
a series of entities related to Narang and his wife. Roughly 85% of the money
received by ROH for Narang’s patients was represented in payments from
Trinity to those entities.
Kathleen Anderson, an FBI forensic accountant, testified and
explained how specific sums of money moved through the accounts from
Moparty’s entities to those controlled by Narang and Kaur. Anderson
specifically traced the transactions related to the three money laundering
counts: funds moved from 2920 ER and Cleveland Imaging through Spring
Klein to an LLC owned by Narang (Count 19); funds moved from 2920 ER
through Spring Klein to a corporation owned by Narang (Count 20); and
funds moved from 2920 ER through Spring Klein to another LLC owned by
Narang (Count 21).
At the close of the government’s case, both defendants moved for
judgments of acquittal. Further, they both moved for mistrials based on two
references to Sidhu’s guilty plea. The district court denied the motion for
acquittal but took the motion for mistrial under advisement.
7
Moparty did not own DDH but “he exerted a lot of control in the operation of
that facility” and DDH had paid Moparty over $17 million between 2011 and 2012.
Lammons testified, supported by documentary evidence, that Moparty did have ownership
interests in CRMC, ROH, 2920 MRI, 2920 ER, and Spring Klein/Trinity.
9
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B. Defense Case
For his defense, Narang called four witnesses. First, Sean Coffey, a
medical equipment distributor, rebutted testimony by Dr. Gans that Narang
lacked sufficient equipment to perform certain tests. Second, Kershaw
Kumbatta, a certified public account, testified that it was good business
practice to have separate accounts associated with different business entities
and he had advised Narang and Kaur to set up different accounts for their
various entities. Next, Narang called his long-time medical technician
Edward Castillo. Castillo testified that North Cypress had a sign about “Red
Oak or Trinity” and that “we’re working together.” He thought the
arrangement lasted six months and the sign was present most of that time.
He further testified that he “perform[ed] tests as a technician for Red Oak.”
Finally, Neena Satia, Narang’s receptionist since 2003, testified that North
Cypress was clearly associated with ROH and denied that anybody had
manipulated patient forms.
For his part, Moparty called one witness and then testified himself.
First, Dilip Amin, Moparty’s real estate attorney, testified as to the validity
of three one-page contracts documenting real estate transactions between
Moparty’s entities and Narang’s totaling over $9 million. According to
Amin, it was “not unusual” for the “Old British India” community “to not
rely on lawyers for the initial buying and selling of property.” He further
dismissed the misspelling of Moparty’s name (spelled Moparti) as a “not
uncommon” translation error.
Next Moparty testified and explained that Spring Klein functioned as
a staffing company, which provided CRMC, 2920 ER, and ROH with
employees and management. Further, he testified that ROH included the
clinic supposedly associated with Narang at North Cypress. Pursuant to this
structure, Moparty stated that Spring Klein would collect and distribute
10
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money as appropriate. Moparty denied any ownership interest in ROH,
CRMC, and 2920 ER. Moparty explained the real estate transactions as
efforts by ROH and 2920 ER to expand into the Spring, Texas area to
coincide with Exxon’s move to that location. He said he had researched how
he could open an outpatient facility in Narang’s office (which he claims was
Narang’s or Kaur’s idea); the research entailed reading the Texas
Department of Health and Human Services website and emailing the Texas
Department of State Health Services. 8
Moparty testified that ROH had leased office space from North
Cypress to perform ambulatory testing and he emailed North Cypress to put
up signage and have the staff wear badges identifying ROH. Moparty claimed
he hired Kaur to help with business development and she purportedly signed
a program management agreement which placed her in charge of the ROH
outpatient clinic. 9 He alleges that Kaur hired and employed all technicians,
but no ROH employees worked at North Cypress. Moparty flatly denied that
he intended to violate the law, conspire with Narang, or launder money. 10 At
the close of the defense case, Moparty renewed his motion for a judgment of
acquittal and the court again denied it.
The jury convicted Narang and Moparty on all counts.
8
Moparty insists that he received “authorization from the Department of Health”
through a series of emails. But instead those emails “very strongly recommend[ed]” that
Moparty obtain legal counsel and refused to provide a legal opinion on the validity of the
proposed agreement. Moparty further denied that he needed a separate license to operate
the HOPD.
9
Lammons noted that the “flow of money” to Kaur was not consistent with the
agreed upon amount in her contract.
10
The government contends that Moparty was frequently evasive or
nonresponsive to its questions.
11
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C. Post-verdict Proceedings
The defendants’ joint motion for mistrial principally argued that the
government’s two references to Sidhu’s guilty plea prejudicially affected
their right to a fair trial. The first reference was deliberately voiced during
the opening statement when the government counsel said that Sidhu “is a
co-conspirator in this case” but he “is not in this trial because he already pled
guilty.” The second came during the questioning of Lammons. 11 There, the
government’s counsel inquired, “we haven’t talked a lot about Dr. Sidhu yet.
. . . Why is that?” Lammons answered: “He’s already pled guilty.” Further,
they argued that Dr. Grant impermissibly referenced a conviction of one of
the specialists used by Narang to evaluate diagnostic tests and that the
government misled them about Grant’s prior experience as an expert
witness. 12
The district court noted that the defendants did not object to the first
reference but did object to the second, and the court sustained the objection
and immediately issued a limiting instruction. 13 Further, the court noted that
it had rejected the confrontation clause challenge because the defendants had
the ability to subpoena Sidhu if the government didn’t call him. The court
11
The government had previously represented to the court that Sidhu was not
going to be called as a witness.
12
When asked about the doctors supervising Narang’s technicians, Grant
responded: “Dr. Ahmed, as I googled his name, I found that he’s a convicted felon for
health care fraud in January of 2017.”
13
“Dr. Sidhu is not here. He plead [sic] guilty. The fact that he’s guilty it not
evidence that any other person is guilty of wrongdoing. His case was considered separately,
and you’re not to draw any adverse inference from the fact that Dr. Sidhu may believe he
is guilty. It’s not relevant to this case. These defendants are presumed to be innocent. The
fact that somebody else may be guilty does not in any way affect the presumption of
innocence that cloaks them and remains with them until such time, if ever, that the
government can prove these defendants guilty of anything.”
12
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then considered the introduction of Sidhu’s plea under the factors articulated
in United States v. King, 505 F.2d 602, 608 (5th Cir. 1974) (explaining that
four factors are relevant: (1) the presence or absence of a limiting instruction;
(2) whether there was a proper evidentiary purpose for the introduction of
the plea; (3) whether the plea was improperly emphasized or used as
substantive evidence of guilt; and (4) whether introduction of the plea was
invited by defense counsel).
The court acknowledged that neither party contested that the plea had
not been invited, and then proceeded to weigh the remaining factors. The
court noted that while there was not a proper evidentiary purpose for the
second reference, 14 the first two factors weighed strongly in favor of the
government and any error was “harmless beyond a reasonable doubt.” The
court found that “[t]he admissible evidence presented to the jury
‘overwhelmingly eclipses the two [brief] mentions of Sidhu’s plea.’”
Finally, the court found no error relating to Dr. Grant’s testimony.
The court noted that the defendants were in possession of Dr. Grant’s expert
report which stated that he had previously testified for the government as an
expert. 15 Second, the court determined that while Grant’s statement was not
proper impeachment evidence and lacked any proper evidentiary purpose, it
14
“The court concludes that there is no indication that either of the challenged
statements were made in bad faith. While the government arguably had a legitimate
purpose for referencing Dr. Sidhu’s plea in its opening statement, the government can
point to no proper purpose for Agent Lammons’ testimony. The dubious purpose of at
least one of the challenged statements weighs slightly in favor of granting Defendants’
Motion.”
15
The court also agreed with the government that there was no prejudice because
neither Dr. Grant nor the government were in possession of any transcripts of that prior
testimony.
13
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was harmless, nonetheless. Accordingly, the district court denied the motion
on all grounds.
D. Sentencing
The Presentence Report (PSR) for Moparty calculated a total offense
level of 38 and a guideline range of 235–293 months. Moparty prevailed on
his objections to the total loss amount and Government health care program
enhancement. The court denied Moparty’s objection to the abuse of trust
enhancement, U.S.S.G. § 3B1.3. These rulings resulted in a new total offense
level of 31 and a guideline range of 108–135 months. The court sentenced
Moparty to 108 months imprisonment, three years of supervised release, and
joint and several liability with Narang for $2,621,999.04 in restitution.
Narang’s PSR calculated his total offense level at 39 with a guideline
range 262–327 months. Like Moparty, Narang prevailed on his loss amount
and Government health care program objections. However, the court
overruled Narang’s objection to the “10 or more victims” enhancement,
U.S.S.G. § 2B1.1(b)(2)(A)(i), and the “use of any means of identification to
produce or obtain another means of identification” enhancement, U.S.S.G.
§ 2B1.1(b)(11)(C)(i). Based on these rulings, the new offense level was 32
and the guideline range was 121–151 months. After discussing the 18 U.S.C.
§ 3553(a) sentencing factors, the court sentenced Narang to 121 months in
custody and $2,621,999.04 in restitution. Both defendants timely appealed.
II. DISCUSSION
The defendants raise a litany of issues on appeal. Specifically:
(1) Moparty and Narang challenge the district court’s denial of their mistrial
motion; (2) Moparty claims Anderson impermissibly testified on the
ultimate issue of criminal intent; (3) Moparty claims the district court erred
in allowing the insurance company representatives to testify as experts;
(4) Moparty challenges the sufficiency of the evidence supporting his
14
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convictions; (5) Moparty claims that cumulative government errors violated
his right to a fair trial; (6) Moparty challenges one sentencing enhancement;
and (7) Narang challenges two sentencing enhancements.
A. Mistrial
Both Narang and Moparty argue that the district court erred in
denying their motion for a mistrial. Specifically, they claim that the
government’s two references to Sidhu’s guilty plea and Dr. Grant’s
testimony relating to Dr. Ahmed’s prior conviction substantially prejudiced
their right to a fair trial, warranting a mistrial. Both defendants objected to
Agent Lammons’s testimony on Sidhu’s guilty plea. They both also objected
to Grant’s testimony. However, neither objected to the government’s
opening statement reference to Sidhu’s plea.
This court reviews a denial of a motion for mistrial for abuse of
discretion. 16 United States v. Velasquez, 881 F.3d 314, 343 (5th Cir. 2018). “If
a defendant moves for a mistrial on the grounds that the jury heard prejudicial
testimony, ‘a new trial is required only if there is a significant possibility that
the prejudicial evidence has a substantial impact upon the jury verdict,
viewed in light of the entire record.’” United States v. Zamora,
661 F.3d 200,
211 (5th Cir. 2011) (quoting United States v. Paul,
142 F.3d 836, 844 (5th Cir.
1998)). This court gives “great weight to the trial court’s assessment of the
16
The government argues that since neither party objected to the opening
statement, that statement should be reviewed for plain error only. See United States v.
Sanders, 952 F.3d 263, 281 (5th Cir. 2020) (“[W]here counsel does not object
contemporaneously to the actions that form the basis for the mistrial motion, plain error
review follows.”). It is not clear that Sanders squarely applies to the present situation where
the government made the same error twice and one occasion was properly objected to.
Further, had the government called Sidhu to testify, referencing his plea in the opening
statement would have been a permissible action. Ultimately, the standard of review is not
determinative because this claim falters under either standard.
15
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prejudicial effect of the evidence” and “prejudice may be rendered harmless
by a curative instruction.” United States v. Valles, 484 F.3d 745, 756 (5th Cir.
2007).
1. Dr. Sidhu’s Guilty Plea
“Defendants are entitled to have questions of guilt based on the
evidence against them, not on whether a government witness or a
codefendant has plead guilty to the same charge.” United States v. Delgado,
401 F.3d 290, 299 (5th Cir. 2005) (citations and quotations omitted). But, in
“some circumstances the government might have a legitimate evidentiary
reason for bringing out testimony relating to its witnesses’ prior convictions,
even when those convictions are for charges similar or identical to those upon
which the defendant is being charged.” United States v. Fleetwood,
528 F.2d
528, 532 (5th Cir. 1976). When considering the effect of a co-conspirator’s
guilty plea, the court looks to four factors: “1) the presence or absence of a
limiting instruction; 2) whether there was a proper evidentiary purpose for
introduction of the guilty plea; 3) whether the plea was improperly
emphasized or used as substantive evidence of guilt; and 4) whether the
introduction of the plea was invited by defense counsel.” United States v.
Murray,
988 F.2d 518, 523 (5th Cir. 1993). As noted, the introduction of the
plea was not invited by defense counsel, so the focus is on the remaining three
factors.
The court provided its first limiting instruction relating to Sidhu’s
guilty plea immediately after the defendants objected to Lammons’s
testimony. The second instruction was agreed on by the parties and given at
the close of evidence. 17 “The ‘almost invariable assumption’ is that jurors
17
“You have heard that Dr. Sidhu pled guilty to a crime. Do not consider his plea
as any evidence of guilt. It is not. Dr. Sidhu’s decision to plead guilty was a personal
decision. Disregard Dr. Sidhu’s guilty plea completely when considering DR. NARANG
16
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follow such instructions.” United States v. Ramos-Cardenas, 524 F.3d 600,
611 (5th Cir. 2008) (quoting Richardson v. Marsh,
481 U.S. 200, 206,
107 S. Ct. 1702, 1707 (1987)). To overcome this presumption, there must be
an “‘overwhelming probability’ that the jury will be unable to follow the
court’s instruction . . . and a strong likelihood that the effect of the evidence
would be ‘devastating’ to the defendant.” Greer v. Miller,
483 U.S. 756, 766
n.8,
107 S. Ct. 3102, 3109 n.8 (1987) (citations omitted).
Narang and Moparty argue that this case presents “aggravating
circumstances” such that the court’s limiting instructions were unable to
cure the prejudice. See United States v. Baete, 414 F.2d 782, 783–84 (5th Cir.
1969) (“There may be aggravated circumstances in which the strongest
corrective instruction would be insufficient, as, for example, when the guilty
plea of one codefendant necessarily implicates another or others.”). They
premise this argument entirely on the fact that the government mentioned
Sidhu not once, but twice. Standing alone, this is insufficient to upset the
“general rule.” See Ramos-Cardenas, 524 F.3d at 611–12 (“If we are to
assume that the jury . . . was able to follow the district court’s instructions
and disregard the fact that three defendants had already admitted their guilt
in one form or another, we see no reason not to assume that the jury was also
able to disregard the fact that a fourth defendant had pleaded guilty.”).
Next, the district court correctly concluded that the second
introduction of Sidhu’s plea lacked a proper evidentiary purpose. While the
government could preemptively introduce the plea to thwart a defense
strategy of painting Sidhu as the primary culprit, see United States v. Valley,
or DR. MOPARTY’S guilt or innocence. As I instructed you during the trial, Dr. Sidhu’s
guilty plea is not to be considered by you in any way as you decide whether the government
has met its burden to prove beyond a reasonable doubt that DR. NARANG or DAYAKAR
MOPARTY committed the crimes alleged in the indictment.”
17
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No. 19-20797
928 F.2d 130, 133 (5th Cir. 1991), or to negate expected impeachment efforts,
see United States v. Borchardt,
698 F.2d 697, 701 (5th Cir. 1983), by the time
of Lammons’s testimony, it was clear that the government did not intend to
call Sidhu nor did the defense strategy rely on his plea. This factor leans
toward the defendants.
Finally, the district court determined that neither reference was
improperly emphasized or offered as substantive evidence. Both statements
were made in the course of explaining why Sidhu, a frequently discussed
participant in the scheme, was not present at the trial. Further, the jury was
instructed that an opening statement is only a preview, not evidence. The
second reference to Sidhu’s guilty plea was immediately followed by a
limiting instruction. The district court, in light of its eight-day trial, found no
bad faith by the government. This factor weighs in favor of the government.
In sum, the first and third factors favor the government while the
second and fourth favor the defendants. On balance, given the strength of
the curative instructions, the factors lean toward denying the motion for
mistrial. In addition, the district court assessed the prejudicial effect of
statements “in the context of other evidence presented in order to determine
whether its admission was harmless beyond a reasonable doubt.” Arizona v.
Fulminante, 499 U.S. 279, 308,
111 S. Ct. 1246, 1264 (1991). Here, the court
found that the admissible evidence “overwhelming eclipse[d]” the two
references to Sidhu’s plea. The district court did not abuse its discretion in
denying the motion for mistrial as to Sidhu’s pleas. 18
18
Additionally, Narang argues that referencing Sidhu’s plea violated the
Confrontation Clause. “This court reviews claims of Sixth Amendment Confrontation
Clause violations de novo and subject to a harmless-error analysis.” United States v. Gentry,
941 F.3d 767, 781 (5th Cir. 2019). To establish a Confrontation Clause violation, “the
defendant need only show that ‘a reasonable jury might have received a significantly
different impression of the witness’s credibility had defense counsel been permitted to
18
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No. 19-20797
2. Dr. Ahmed’s Health Care Fraud Conviction
Dr. Grant, after being asked if he knew the doctor who supervised
Narang’s technicians for Narang, stated: “Dr. Ahmed, as I Googled his
name, I found that he’s a convicted felon for health care fraud in January of
2017. Probably in this exact building is where that happened.” The court
sustained the objection and immediately issued two curative instructions,
stating first “[t]he jury will disregard the fact that Dr. Ahmed had a
conviction” and also “[t]he jury is instructed there’s no evidence Dr. Narang
[or Moparty] knew of the conviction.”
Considering the motion for mistrial, the district court concluded that
Grant’s statement lacked any proper evidentiary or impeachment purpose.
We agree. But the error was harmless because introduction of an unrelated
conviction did not prejudice the defense—especially in light of the curative
instructions. See United States v. Williams, 620 F.3d 483, 492 (5th Cir. 2010)
(“[R]eversal is not required unless there is a ‘reasonable possibility that the
improperly admitted evidence contributed to the conviction.’” (citation
omitted)); see also United States v. Medina-Arellano,
569 F.2d 349, 357 (5th
Cir. 1978) (“Knowledge by the jury of a [conviction] to unrelated crimes did
not hurt the defense’s position.”).
pursue his proposed line of cross-examination.’” United States v. Templeton,
624 F.3d 215,
223 (5th Cir. 2010). Because Lammons’s testimony referencing the guilty plea was
excluded, the right to cross-examination was not implicated. See Davis v. Alaska,
415 U.S.
308, 315–16,
94 S. Ct. 1105, 1110 (1974) (explaining that the “primary interest” the
Confrontation Clause secures is “the right of cross-examination”).
Narang further claims that the court impermissibly shifted the burden to him when
it stated that he had the power to subpoena Sidhu. He seeks support in United States v.
Bennett, 874 F.3d 236, 251 (5th Cir. 2017). That case involved comments reflecting a
defendant’s failure to offer exculpatory evidence. It is irrelevant to a Confrontation Clause
claim. Here, the court, not the prosecution, merely noted that Narang could call Sidhu if
he wished.
19
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No. 19-20797
B. Testimony by Anderson
Moparty argues that Anderson impermissibly testified on the ultimate
issue of criminal intent when she labeled various transactions by Moparty as
“money laundering.” 19 He describes this as a “calculated effort” by the
government “to extract opinion testimony from an agent.” Further, he
argues that Anderson was not presented as an expert witness and challenges
the government’s repeated references to the “money laundering counts.”
Moparty, however, did not object at trial to this testimony.
This court reviews unobjected-to testimony for plain error. United
States v. Coffman, 969 F.3d 186, 189 (5th Cir. 2020). “There are four steps
to [the] plain-error analysis: whether (1) an error that was (2) clear or
obvious (3) affects the defendant’s substantial rights, and if there was such
an error, [the court has] discretion to remedy (4) if the error ‘seriously
affect[ed] the fairness, integrity or public reputation of judicial
proceedings.’”
Id. (quoting United States v. Olano,
507 U.S. 725, 732, 734,
113 S. Ct. 1770, 1777–79 (1993)).
While portions of Anderson’s testimony may have approached the
line of permissible statements, 20 this claim can be resolved on the third and
fourth prongs of plain error. The challenged statements represent three
19
He also challenges Lammons’s testimony describing Trinity as a “shell
company” and Grant’s description of a particular factual scenario as “fraudulent.”
20
Particularly troubling are Anderson’s describing certain transactions as “money
laundering” and opining on the motivation for structuring the transactions in that manner.
See United States v. Setser, 568 F.3d 482, 494–95 (5th Cir. 2009) (acknowledging error in
allowing a witness to testify that certain activities constituted “security fraud” or a “Ponzi
scheme” but finding it harmless). But see United States v. Evans,
892 F.3d 692, 715 (5th
Cir. 2018) (“[U]nder Rule 701, a lay witness may state his ultimate opinion, provided that
opinion is ‘based on personal perception,’ ‘one that a normal person would form from
those perceptions,’ and ‘helpful to the jury.’” (citation omitted)).
20
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No. 19-20797
snippets of testimony among a substantial number of documents and
testimony from multiple witnesses. As this court stated in United States v.
Lucas, “[g]iven the overwhelming quantum of evidence used to convict, any
error did not affect [the defendant’s] substantial rights under the third prong
of plain-error review and, in any event, under the fourth prong, the putative
error would not ‘seriously affect[] the fairness, integrity, or public reputation
of the proceedings.’” (citation omitted)). Lucas, 849 F.3d 638, 646 (5th Cir.
2017).
C. Expert Testimony from Insurance Representatives
Moparty objects to aspects of the three insurance representatives’
testimony, as he insists that the government elicited expert opinions without
qualifying the witnesses or providing notice that they would offer expert
testimony. 21
If, after a timely trial objection, “a district court’s determination as to
the admissibility of evidence is questioned on appeal, [the] applicable
standard of review is abuse of discretion.” United States v. O’Keefe, 426 F.3d
274, 280 (5th Cir. 2005). But under the harmless error standard, the court
will not reverse “[u]nless there is a reasonable possibility that the improperly
admitted evidence contributed to the conviction.” United States v. Mendoza-Medina,
346 F.3d 121, 127 (5th Cir. 2003). If there was no objection, review
is for plain error. See Coffman,
969 F.3d at 189. Moparty preserved at trial
his objections to certain statements by the Aetna and Blue Cross Blue Shield
witnesses, but he objected to none of the Cigna representative’s testimony.
21
He objected to statements made by the Aetna and Blue Cross Blue Shield
representatives. But as the government notes, much of the testimony went unobjected—
including all testimony from the Cigna representative.
21
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No. 19-20797
However, it is unnecessary to parse the record statement by statement
because Moparty’s argument fails under the abuse of discretion standard.
“Rule 701 does not exclude testimony by corporate officers or
business owners on matters that relate to their business affairs, such as
industry practices and pricing.” Nat’l Hispanic Circus, Inc. v. Rex Trucking,
Inc., 414 F.3d 546, 551–52 (5th Cir. 2005); see also United States v. Kerley,
784 F.3d 327, 337 (6th Cir. 2015) (“In a number of decisions from other
circuits, courts have permitted witnesses to give lay opinion testimony about
a business’s policies, practices, or procedures, based on an after-the-fact
review or analysis of documents or facts, if the witness’s testimony derived
from personal knowledge gained through participation in the business’s day- to-day affairs.” (collecting cases)).
Here, the challenged testimony largely related to the procedures,
policy terms, and fraud prevention protections at each insurance company.
For example, the Blue Cross Blue Shield witness addressed how the company
would handle various situations, how it interpreted terms and policies, and
how their policies compared to those of the industry. Similarly, the Aetna
representative’s testimony focused on Aetna’s policies and practices. These
witnesses’ admissible testimony “provided factual information about the
circumstances of the case.” United States v. McMillan, 600 F.3d 434, 456
(5th Cir. 2010). To whatever small extent limited aspects of this testimony
crept beyond the permissible bounds for a lay witness, there is no reasonable
basis to find, in the context of the entire trial, that such testimony affected
the verdict.
Id.
D. Sufficiency of the Evidence
Moparty challenges the sufficiency of evidence supporting all twentyone of his convictions. Specifically, he claims that the government failed to
establish the prerequisite agreement on the conspiracy charge; failed to
22
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No. 19-20797
establish that he had knowledge that the medical testing was unnecessary and
inadequate; and failed to refute that Moparty attempted to legally set up an
HOPD. According to Moparty, this means the government failed to establish
that he knowingly or willingly participated in a conspiracy to commit health
care fraud. Further, Moparty argues that since the government failed to
prove his intent relevant to the conspiracy count, it failed to prove his intent
to commit the counts of substantive health care fraud. Finally, he claims the
money-laundering counts fail because they depend on the substantive fraud
counts. Moparty timely moved for a judgment of acquittal, preserving these
challenges.
This court reviews “challenges to the sufficiency of the evidence de
novo, applying the same standard as applied by the district court: could a
rational jury find that all elements of the crime were proved beyond a
reasonable doubt?” United States v. Chapman, 851 F.3d 363, 376 (5th Cir.
2017). Review is “highly deferential to the verdict.” United States v.
Beacham,
774 F.3d 267, 272 (5th Cir. 2014). The court “‘search[es] the
record for evidence . . . support[ing] the convictions beyond a reasonable
doubt’ and review[s] the evidence ‘in the light most favorable to the verdict,
accepting all credibility choices and reasonable inferences made by the
jury.’” Chapman,
851 F.3d at 376 (citations omitted).
“[A] defendant seeking reversal on the basis of insufficient evidence
swims upstream.” United States v. Mulderig, 120 F.3d 534, 546 (5th Cir.
1997). The “conviction will be affirmed if ‘any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.’”
United States v. Gonzalez,
907 F.3d 869, 873 (5th Cir. 2018) (citation omitted
and emphasis in original). “Though the government cannot obtain a
conviction by piling ‘inference upon inference,’ the defendants cannot obtain
an acquittal simply by ignoring inferences that can logically be drawn from
23
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No. 19-20797
the totality of the evidence.” United States v. Martinez, 921 F.3d 452, 466
(5th Cir. 2019) (citation omitted).
1. Conspiracy Conviction
“The elements of healthcare-fraud conspiracy are (1) the existence of
an agreement between two or more people to pursue the offense of fraud;
(2) knowledge of the agreement; and (3) voluntary participation.” United
States v. Emordi, 959 F.3d 644, 650 (5th Cir. 2020). “‘An agreement may be
inferred from concert of action, voluntary participation may be inferred from
a collocation of circumstances, and knowledge may be inferred from
surrounding circumstances.’” United States v. Daniel,
933 F.3d 370, 377 (5th
Cir. 2019) (quoting United States v. Bieganowski,
313 F.3d 264, 277 (5th Cir.
2002)). The agreement may be silent and informal, and the government can
use either direct or circumstantial evidence to prove it. United States v.
Barson,
845 F.3d 159, 163–64 (5th Cir. 2016).
Moparty doesn’t disagree that he and Narang had an agreement to
process patient bills through ROH. Thus, this case boils down to whether
that agreement had a fraudulent purpose or was a legitimate business
arrangement in which Moparty innocently benefitted from Narang’s fraud.
The government presented two theories of fraud: one relating to the medical
necessity and adequacy of the procedures performed, and another focused on
how the procedures were billed. Moparty argues that Dr. Bungo’s testimony
demonstrates that Moparty lacked the necessary training to determine
whether any particular test was necessary. He misconstrues the inquiry,
however, because the government could bear its burden against him with
evidence on the fraudulent billing practices alone.
There was substantial evidence that Moparty and Narang agreed to
process insurance reimbursement claims through ROH instead of North
Cypress; that rejected claims were resubmitted through other entities
24
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No. 19-20797
controlled by Moparty; and that millions of dollars flowed out of Trinity, in
the form of rent and suspect real estate deals, and landed in the accounts of
various entities owned by Narang and his wife. The government
demonstrated that Moparty had specific knowledge of all of the billing
through emails sent by Warren.
In contrast, Moparty asserts that he was attempting to run a legitimate
HOPD and any payments to Narang represent “mere association,” the
evidence of legitimate transactions. Ultimately, the jury was left largely with
a credibility determination. That Moparty was aware of the ROH’s billing
practices is beyond dispute. As to whether he had the requisite intent to
conspire to commit fraud, part of the answer turns on whether the jury
believed Moparty’s efforts to establish an HOPD in the North Cypress office.
The emails submitted by the government demonstrate that Moparty did not
receive authorization, and he was instead advised repeatedly to obtain
counsel. This, coupled with Moparty’s authorization of “rebilling” rejected
claims and his suspicious explanations for the large sums of money
transferred to Narang’s entities, could lead a rational jury to conclude that he
failed to organize a legitimate HOPD, and he and Narang conspired to
commit health care fraud.
2. Substantive Health Care Fraud
Principally, Moparty repeats his arguments on the conspiracy count
that the evidence also fails to establish his criminal intent to commit
substantive health care fraud. To establish health care fraud, the government
must prove that Moparty “‘knowingly and willfully execute[d], or
attempt[ed] to execute, a scheme or artifice—(1) to defraud any health care
benefit program; or (2) to obtain, by means of false or fraudulent pretenses,
representations, or promises, any of the money or property owned by, or
under the custody or control of, any health care benefit program, in
25
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No. 19-20797
connection with the delivery of or payment for health care benefits, items, or
services.’” United States v. Willett, 751 F.3d 335, 339 (5th Cir. 2014) (citation
omitted). “It is enough for criminal liability if a defendant ‘associates with
the criminal activity, participates in it, and acts to help it succeed.’” 22
Martinez,
921 F.3d at 472 (quoting United States v. Delagarza-Villarreal,
141 F.3d 133, 140 (5th Cir. 1997)).
As detailed above, Moparty’s actions were the key to the second
aspect of the scheme, billing Narang’s services and tests at the higher
hospital or out-of-network rates. The government presented seventeen
submitted claims, all of which reflected these grounds for overbilling.
Whether Moparty “knowingly and willingly” defrauded the insurance
companies was a quintessential jury question. Based on the evidence
presented, a rational fact finder could conclude that Moparty knew he was
not operating a legal HOPD and otherwise knew the amounts billed were
contrived to be illegally high.
3. Money Laundering
To sustain a conviction under 18 U.S.C. § 1957, the government must
prove three elements: “(1) property valued at more than $10,000 that was
derived from a specified unlawful activity, (2) the defendant’s engagement in
a financial transaction with the property, and (3) the defendant’s knowledge
that the property was derived from unlawful activity.” United States v. Fuchs,
467 F.3d 889, 907 (5th Cir. 2006). Health care fraud is a qualifying unlawful
activity. See Martinez, 921 F.3d at 476–77. Moparty argues that “since the
evidence was legally insufficient to prove [his] participation in the . . .
22
The “[g]overnment must first ‘prove that someone committed the underlying
substantive offense.’” United States v. Rufai, 732 F.3d 1175, 1190 (10th Cir. 2013). Here,
the government proved that Narang committed substantive health care fraud—he does not
challenge the sufficiency of his conviction on appeal.
26
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No. 19-20797
conspiracy and . . . [the] scheme to defraud a health care benefit program, the
convictions for money laundering should be reversed” because he lacked the
requisite knowledge of the underlying illegality. Because his predicate
arguments fail, so does this one.
E. Cumulative Error
Moparty argues that the government violated his right to a fair trial
through repeated misconduct including: (1) references to health care
convictions of two people who didn’t testify; (2) impermissible witness
testimony; (3) prejudicial comments referencing the “dark web,”
“kickbacks,” and the transmission of confidential patient information to a
third-party billing company in India. According to Moparty, “[t]he
cumulative prejudicial effect of these repeated acts of misconduct by
prosecutors and government witnesses rendered impossible the jury’s ability
to fairly review the evidence and return a just verdict.”
“[T]he cumulative error doctrine . . . provides that an aggregation of
non-reversible errors (i.e., plain errors failing to necessitate reversal and
harmless errors) can yield a denial of the constitutional right to a fair trial,
which calls for reversal.” United States v. Delgado, 672 F.3d 320, 343–44 (5th
Cir. 2012) (en banc) (alteration in original and citation omitted). Reversal
under the doctrine is rarely necessary—“‘the possibility of cumulative error
is often acknowledged but practically never found persuasive.’”
Id. at 344
(quoting Derden v. McNeel,
978 F.2d 1453, 1456 (5th Cir. 1992) (en banc)).
Instead, reversal is only justified “in the unusual case in which synergistic or
repetitive error violates the defendant’s constitutional right to a fair trial.”
Id. “[A]pplication is especially uncommon where . . . the government
presents substantial evidence of guilt.”
Id.
27
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No. 19-20797
Moparty relies on Yates v. Evatt, 500 U.S. 391,
111 S. Ct. 1884 (1991),
and United States v. Riddle,
103 F.3d 423 (5th Cir. 1997), 23 neither of which is
directly applicable. Yates involved jury instructions that applied an
unconstitutional presumption, and the Court reversed the Supreme Court of
South Carolina on its application of harmless error review. Yates, 500 U.S.
at 402–07, 111 S. Ct. at 1892–95. That case says nothing about cumulative
error which is premised on the repetition of individually harmless errors.
Riddle involved testimony and evidence far outside the scope of the trial,
prejudicial documents admitted into evidence, and the erroneous exclusion
of the defendant’s expert. Riddle, 103 F.3d at 428–35. The court reasoned
that, had those rulings come out differently, it would have been “a very
different trial.”
Id. at 434.
The same cannot be said here. Any mistakes must be measured
against the weight of the evidence presented. See United States v. Neal,
27 F.3d 1035, 1051–52 (5th Cir. 1994) (sometimes “the cumulative effect of
several incidents of improper argument or misconduct may require reversal,
even though no single one of the incidents, considered alone, would warrant
such a result,” but here, “we are not persuaded, in light of the substantial
evidence of guilt adduced at trial, that the Defendants are entitled to reversal
on the basis of cumulative error”). Moparty never objected to the jury
instructions and there is no evidence the jury failed to follow them. The
government offered hundreds of pages of documentary evidence and
testimony from patients, employees, medical experts, industry
representatives, and investigating agents. Moparty’s claimed errors lack the
23
Moparty also relies on an unpublished, nonprecedential opinion of this court.
United States v. Houston, 481 F. App’x 188 (5th Cir. 2012). We allude to such opinions at
most as persuasive, but Houston fails even that low bar because it involved more numerous
and serious trial errors, which led to “confusion and prejudice that reached to the heart of
the case—the identity of the perpetrator.”
Id. at 195.
28
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No. 19-20797
“synergistic” nature such that if none had occurred, he would have had “a
very different trial.” Riddle, 103 F.3d at 434.
F. Moparty’s Sentencing
On appeal, Moparty argues that the district court erred in applying a
two-level enhancement under U.S.S.G. § 3B1.3. That section applies “[i]f
the defendant abused a position of public or private trust, or used a special
skill, in a manner that significantly facilitated the commission or concealment
of the offense.” U.S.S.G. § 3B1.3. Moparty preserved the issue. For
preserved challenges, this court reviews the district courts application of the
Guidelines de novo and its factual findings for clear error. United States v.
Suchowolski, 838 F.3d 530, 532 (5th Cir. 2016). If the district court erred, the
analysis shifts to whether the error was harmless. United States v. Halverson,
897 F.3d 645, 652 (5th Cir. 2018).
The abuse of trust enhancement is “a sophisticated factual
determination” that this court reviews for clear error. United States v. Miller,
607 F.3d 144, 148 (5th Cir. 2010). The enhancement is appropriate if
(1) “the defendant occupies a position of trust” and (2) “the defendant
abused her position in a manner that significantly facilitated the commission
or concealment of the offense.” United States v. Kay,
513 F.3d 432, 459 (5th
Cir. 2007). “A position of trust is characterized by (1) professional or
managerial discretion (i.e., substantial discretionary judgment that is
ordinarily given considerable deference), and (2) minimal supervision.”
United States v. Ollison,
555 F.3d 152, 166 (5th Cir. 2009). This court will
uphold the district court’s finding “as long as it is plausible in light of the
record as a whole.” United States v. Ekanem,
555 F.3d 172, 175 (5th Cir.
2009).
Moparty rests his argument on the first prong—that he did not occupy
a position of trust because he is not the owner of a hospital and the
29
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No. 19-20797
government failed to meet its burden to prove the enhancement. He claims
that according to trial testimony, his brother Roy Moparty was the sole
owner. But, as the government points out, Moparty represented that he
owned 50% in the signed licensing application and only his email address was
listed. In fact, they were both signatories on ROH’s bank account. And
Lammons testified that Moparty had a financial interest in and significant
control over ROH. Moparty’s ownership position is a plausible view of the
record.
Moparty’s management position was thus excluded from close
supervision, and it enabled him to direct Warren to bill for testing performed
at North Cypress and “rebill” denied claims through other Moparty entities.
Moparty’s managerial authority placed him in “a superior position . . . to
commit the offense.” Kay, 513 F.3d at 459. The district court did not err in
applying the enhancement.
G. Narang’s Sentencing
Narang argues that the district court erred in applying two sentencing
enhancements. Section § 2B1.1(b)(2)(A)(i) adds two levels to the base
offense level if the offense involved ten or more victims. U.S.S.G.
§ 2B1.1(b)(2)(A)(i). Section 2B1.1(b)(11)(C)(i) adds another two levels if the
offense involved “the unauthorized transfer or use of any means of
identification unlawfully to produce or obtain any other means of
identification.” U.S.S.G. § 2B1.1(b)(11)(C)(i). Narang filed written
objections to both enhancements.
1. Ten or More Victims—§ 2B1.1(b)(2)(A)(i)
Narang argues that this enhancement is inapplicable because the only
“victims” are the three insurance companies—Aetna, Blue Cross Blue
Shield, and Cigna. Narang’s argument runs headlong into this circuit’s
precedent. In United States v. Barson, this court concluded that the
30
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No. 19-20797
enhancement applied because Medicare beneficiaries with falsely claimed
benefits counted as “victims” since Application Note 4(E) defines a
“victim” as “any individual whose means of identification was used
unlawfully or without authority.” 845 F.3d 159, 167 (5th Cir. 2016) (quoting
U.S.S.G. § 2B1.1 cmt. n.4(E)). 24 The only meaningful distinction here is that
the benefits were paid by private insurance companies rather than Medicare.
Application Note 4(E) applies to all cases, not just government health care
programs, “involving means of identification.” 25 U.S.S.G. § 2B1.1 cmt.
n.4(E). Since Narang used the patient’s “means of identification” to
generate the fraudulent claims, precedent forecloses this argument.
2. Means of Identification—§ 2B1.1(b)(11)(C)(i)
Narang argues that “[t]he enhancement’s language does not call for a
two-level increase merely because the offense involves a ‘means of
identification’ from which another ‘means of identification’ is
unintentionally or tangentially created.” Again, this argument is foreclosed
by circuit precedent. In United States v. Kalu, this court held that using a
beneficiary’s Medicare information to generate a fraudulent health care claim
satisfied the enhancement because the initial “means of identification” usage
(the Medicare information) produced another means of identification—the
Medicare claim number which “is unique and inextricably tied to a particular
Medicare beneficiary.” 936 F.3d 678, 681–82 (5th Cir. 2020). Here, each
24
But see Barson, 845 F.3d at 168–170 (Jones, J., concurring in part and dissenting
in part) (arguing that this enhancement and Application Note 4(E) are not applicable in
these circumstances under the plain meaning of “victims” and the purpose of the 2009
update to the Guidelines).
25
“Means of identification” is defined as “any name or number that may be used,
alone or in conjunction with any other information, to identify a specific individual.” See
U.S.S.G. § 2B1.1 cmt. n.1 (incorporating the quoted definition by cross-reference to
18 U.S.C. § 1028).
31
Case: 19-20797 Document: 00515989992 Page: 32 Date Filed: 08/23/2021
No. 19-20797
patient’s personal information was used to generate a unique health care
claim. 26 Accordingly, Kalu’s reasoning extends to the facts presented here.
III. CONCLUSION
Though we find no reversible error under the King factors or otherwise,
we do not condone the government’s conduct in this case. Throughout the
course of the trial, the government, at best, was careless in the testimony it
elicited from its witnesses, its missteps salvaged only by the district court’s
repeated and forceful curative instructions. Even though the trial court
found no bad faith, such heedless behavior is unacceptable. With this said,
we find no reversible error of fact or law.
AFFIRMED.
26
Though Kalu involved Medicare rather than private insurance, Kalu approvingly
discussed United States v. Gonzalez, 644 F. App’x 456 (6th Cir. 2016) (unpublished), which
did involve private insurance. See Kalu,
936 F.3d at 682 (reciting the Gonzalez analysis and
stating “[w]e see no reason to disagree”).
32
