United States v. Ewuzie ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-51018
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EMMANUEL EWUZIE; DANIEL ORHIUNU,
Defendants-Appellants.
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Appeals from the United States District Court
for the Western District of Texas
(SA-00-CR-290-3)
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August 8, 2002
Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Emmanuel Ewuzie appeals his conviction and
sentence for scheming to commit health care fraud and aiding and
abetting, in violation of 18 U.S.C. §§ 2, 1347. He argues that the
evidence was insufficient to support his conviction and that the
district court erred in calculating the amount of loss suffered by
Medicare. Through counsel, Defendant-Appellant Daniel Orhiunu
appeals the district court’s decision to sentence him in absentia.
We AFFIRM.
*
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this opinion should not be published and is not precedent except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.
Ewuzie argues that the evidence failed to demonstrate that he
knowingly or wilfully submitted a false cost report to Medicare.
We must determine whether, viewing the evidence and the inferences
that may be drawn from it in the light most favorable to the
verdict, a rational jury could have found the essential elements of
the offense beyond a reasonable doubt. See United States v.
Charroux, 3 F.3d 827, 830-31 (5th Cir. 1993). The evidence need
not exclude every reasonable hypothesis of innocence or be wholly
inconsistent with every conclusion except that of guilt, and this
court will accept all credibility choices that tend to support the
verdict. United States v. Pofahl, 990 F.2d 1456, 1467 (5th Cir.
1993). The intent to defraud may be proven by circumstantial
evidence. See United States v. Ismoila, 100 F.3d 380, 389 (5th
Cir. 1996).
The record is replete with evidence from which the jury could
reasonably have inferred that Ewuzie acted knowingly and willfully.
For example, after Ginger Wilson explained to Ewuzie that Classic
owed $55,000 back to Medicare, Ewuzie retained Yap, who calculated
that Medicare owed Ewuzie $5,525. Even accepting Ewuzie’s
assertion that he did not know how a cost report was prepared, it
was not unreasonable for the jury to assume that Ewuzie had
knowledge that the report was inaccurate given the huge
discrepancies between the two figures. Moreover, Ewuzie’s
discussions with Wilson reflect that he had a working understanding
of the items on the trial balances, and that he sought to
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reclassify items to avoid repayment to Medicare. The jury could
also reasonably infer that, as owner of the company, Ewuzie surely
knew that he did not give his employees bonuses totaling $70,000,
as reflected in the fraudulent cost report. Ewuzie’s argument that
the evidence was insufficient is without merit.
Ewuzie also argues that the district court erred in
determining that the loss to Medicare was $213,200.17, resulting in
an eight-level increase in his offense level. See U.S.S.G. §
2F1.1(b)(1)(I)(loss of more than $200,000 resulting in eight-level
increase). He argues that this loss amount was improper, as there
was no shown relationship between the impact figure and the actual
loss to the government. Ewuzie also challenges the calculations of
FBI Agent Whitworth because he was not an accountant and had no
experience in Medicare reimbursement. The district court rejected
Ewuzie’s objection to the eight-level increase, concluding that the
amount calculated was appropriate because it included the
overpayment and tentative settlement by Medicare.
The district court’s determination of the amount of loss for
sentencing purposes is a factual finding, which we review for clear
error. See United States v. Peterson, 101 F.3d 375, 384 (5th Cir.
1996); United States v. Narviz-Guerra, 148 F.3d 530, 540 (5th Cir.
1998). The amount of loss need not be determined with precision as
long as it is reasonable given the available information. See
U.S.S.G. § 2F1.1, comment. (n.9).
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After the filing of the false cost report, which claimed
$190,000 in non-reimbursable expenses, Classic sought an additional
refund of $5,225.11, for a total loss of over $213,000. Thus,
regardless of Ewuzie’s assertions to the contrary, Whitworth
established that the Medicare suffered an actual loss of such
amount. Ewuzie has not demonstrated clear error.
Through counsel, Orhiunu argues that the district court erred
by sentencing him in absentia after he failed to appear at the
sentencing hearing. Counsel argues that to sentence a defendant in
absentia, the defendant’s failure to appear must be found to be
voluntary, insisting that the record in this case does not support
such a finding. Although he argues that the district court’s
determination that Orhiunu was a fugitive is unsupported by the
record, Orhiunu’s counsel does not assert that Orhiunu has since
been located; neither does he provide any explanation for Orhiunu’s
disappearance. Although we decline to dismiss Orhiunu’s appeal, we
perceive no error in the district court’s decision to sentence him
in absentia and therefore affirm.
Under Fed. R. Crim. P. 43(b)(2), the defendant will be
considered to have waived the right to be present whenever he is
initially present at trial and thereafter is “is voluntarily absent
at the imposition of sentence[.]” The rule is intended to cover
the situation in which a defendant voluntarily flees before
sentence is imposed. Id., advisory comm. note (1995). An absence
is voluntary if the defendant knows that the proceedings are taking
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place and does not attend. See Crosby v. United States, 506 U.S.
255, 259-30 (1993).
The district court’s determination that Orhiunu had
voluntarily absented himself was not unreasonable. The district
court had advised Orhiunu that sentencing would take place in
August. The court had before it evidence that Orhiunu failed to
report to Pretrial Services as required. In addition, the court
extended the sentencing date for one week for the specific purpose
of finding Orhiunu; however, such effort was unavailing. Under
such circumstances, it cannot be said that the district court erred
in concluding that Orhiunu had voluntarily absented himself from
the sentencing proceeding.
The judgments of conviction and the sentences imposed by the
district court are, in all respects,
AFFIRMED.
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