United States v. Zafar Mehmood ( 2018 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 18a0346n.06
Nos. 16-2639/2641/2649
UNITED STATES COURTS OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA, ) Jul 13, 2018
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
ZAFAR MEHMOOD (16-2639/2641); BADAR ) COURT FOR THE EASTERN
AHMADANI (16-2649), ) DISTRICT OF MICHIGAN
)
Defendants-Appellants. )
)
BEFORE: MERRITT, WHITE, and DONALD, Circuit Judges.
HELENE N. WHITE, Circuit Judge. A jury convicted Defendants Zafar Mehmood and
Badar Ahmadani (“Defendants”) of conspiracy to commit health-care fraud and conspiracy to pay
and receive kickbacks, and Mehmood of health-care fraud, conspiracy to commit money
laundering, money laundering, and obstruction of justice. The district court sentenced both
Defendants to below-Guidelines terms of imprisonment and ordered them to pay approximately
$40 million in restitution. On appeal, Defendants raise several challenges to their convictions and
sentences. We AFFIRM their convictions, VACATE their sentences, and REMAND for
resentencing.
Nos. 16-2639/2641/2649, Unites States v. Mehmood et al.
I. BACKGROUND
From 2006 to 2011, Mehmood, Ahmadani, and others ran a number of home-health-care
companies that purported to provide physical therapy to home-bound Medicare beneficiaries.1 In
reality, the companies were engaged in a scheme to defraud Medicare.
The government presented evidence that Defendants and their co-conspirators hired and
paid recruiters to use bribes, including cash and prescriptions for narcotics, to induce Medicare-
eligible persons to sign up for in-home physical-therapy services with Defendants’ companies.
Defendants and their employees then created fake patient records with fabricated medical
information to make it appear as if the patients needed and received physical therapy. The
companies then submitted claims to Medicare for health-care services that were either not provided
to the beneficiaries or were not medically necessary. In total, Defendants’ companies submitted
$47,219,535.47 in Medicare claims, and Medicare paid $40,488,106.98 on those claims.
Mehmood also controlled Exclusive Rehab Services, Inc. (Exclusive) and New Light
Physical Therapy and Rehab, Inc. (New Light), which purported to provide staffing services to
Mehmood’s and Ahmadani’s health-care agencies. The government asserted that Exclusive and
New Light were shell companies used to launder the proceeds of the fraud for payment of
kickbacks and Mehmood’s personal use. The nominal owner of Exclusive was Mohammed Alam,
a janitor at one of Mehmood’s businesses; Mehmood’s wife was the owner of New Light.
Law enforcement eventually caught up with the scheme and executed search warrants at
Defendants’ health-care agencies on November 3, 2011. On April 24, 2012, a grand jury returned
an indictment against Mehmood and Ahmadani. Count 1 of the indictment charged Mehmood and
1
The companies included Access Care Home Health Care, Inc. (Access), All State Home Health Care, Inc.
(All State), Patient Care Home Care, Inc. (Patient), and Hands on Healing Home Care, Inc. (Hands on Healing or
“HOH”). Mehmood was the owner and president of Access, Patient, and All State, and co-owned HOH with
Ahmadani.
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Ahmadani with conspiracy to commit health-care fraud, in violation of 18 U.S.C. § 1349; Counts
2 through 5 charged Mehmood with health-care fraud, in violation of 18 U.S.C. §§ 1347 and 2;
Count 6 charged Mehmood and Ahmadani with conspiracy to pay and receive health-care
kickbacks, in violation of 18 U.S.C. § 371; Count 7 charged Mehmood with conspiracy to commit
money laundering, in violation of 18 U.S.C. § 1956(h); and Counts 8 and 9 charged Mehmood
with money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i) and 2. On December 16,
2014, a grand jury returned a separate indictment against Mehmood, charging him with two counts
of obstruction of justice, in violation of 18 U.S.C. §§ 1512 and 2, based on Mehmood’s removing
incriminating documents from the Detroit office of the U.S. Department of Health and Human
Services.
A jury found both defendants guilty of all charges. The district court sentenced Mehmood
to 360 months’ imprisonment, below the Guidelines-recommended term of 155 years, and
Ahmadani to 96 months’ imprisonment, below the Guidelines-recommended term of 180 months.2
Both were also ordered to pay approximately $40 million in joint and several restitution.3
2
As Mehmood’s PSR explains,“based upon a total offense level of 43 and a criminal history category of I,”
Mehmood’s “guidelines imprisonment range is life. However, as none of the counts of conviction carry a life statutory
penalty, the guideline range becomes 155 years.” (R. 13-1 at 19.) As to Ahmadani, his PSR explains that “[b]ased
upon a total offense level of 37 and a criminal history category of I, [Ahmadani’s] guideline imprisonment range is
210 to 262 months. However, the combined statutorily authorized maximum sentences are less than the minimum of
the applicable guideline range; therefore, the guideline term of imprisonment is 180 months.” (R. 14-1 at 14-15.)
3
Specifically, Mehmood was ordered to pay $40,488,106.98, (R. 285, PID 5374), while Ahmadani was
ordered to pay $38,150,113.64, (R. 298, PID 5507). The district court did not give a reason for the discrepancy.
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II. DISCUSSION
A. Mehmood - Violation of the Court Interpreters Act
Mehmood first argues that the district court violated the Court Interpreters Act (“CIA”),
28 U.S.C. § 1827,4 by proceeding with the trial in the absence of a previously appointed interpreter
without a valid waiver of Mehmood’s right to an interpreter, thus denying him a fair trial.
During a pre-trial status conference, the district judge initially assigned to the case noted
that Mehmood “does not speak English as a first language” and “does not express himself precisely
in English.” (R. 127, PID 1130.) The successor judge appointed an interpreter for Mehmood
based on the previous judge’s remarks. On the fourth day of the trial, however, the judge
questioned the need for the interpreter because she had not “seen any words interpreted.” (R. 317,
PID 8299.) Mehmood’s counsel responded: “I’m sensitive to the court’s concern. I’ll address that
after I confer with [Mehmood] and report to the court.” (Id. at 8300.) The following day, the
judge asked Mehmood’s counsel at sidebar if Mehmood “waive[s] the interpreter.” (R. 318, PID
8352.) Mehmood’s counsel responded, “for now, your Honor, we are good without an interpreter.”
(Id.) The remainder of the trial continued without an interpreter.
Although Mehmood’s failure to object to the absence of an interpreter triggers plain-error
review, United States v. Markarian, 967 F.2d 1098, 1104 (6th Cir. 1992),5 he asks us to review the
issue de novo because it implicates “[t]he district court’s compliance with the statutory procedure
4
The CIA states that a party may waive the right to an interpreter “only if” the waiver has been made
“expressly by [the party] on the record,” “after opportunity to consult with counsel,” and “after the presiding judicial
officer has explained to such individual . . . the nature and effect of the waiver.” 28 U.S.C. § 1827(f)(1).
5
See also United States v. Lulseged, 688 F. App’x 719, 722 (11th Cir. 2017) (reviewing for plain error a
defendant’s failure to object to the district court’s decision not to appoint an interpreter); United States v. Rodriguez,
211 F. App’x 467, 469 (6th Cir. 2006) (reviewing for plain error where defendant failed to object to the absence of an
interpreter); United States v. Garcia-Perez, 190 F. App’x 461, 470 (6th Cir. 2006) (reviewing for plain error because
defendant failed to object to the interpreter he received); United States v. Camejo, 333 F.3d 669, 672 (6th Cir. 2003)
(reviewing for plain error where defendant failed to object to alleged translation errors).
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for accepting a waiver of the defendant’s right to utilize an interpreter.” (Mehmood Br. at 18.) 6
Mehmood cites United States v. Murguia-Rodriguez, 815 F.3d 566 (9th Cir. 2016) for support, but
the case is of no help to him. In Murguia-Rodriguez, the Ninth Circuit held that plain-error review
did not apply to a district court’s error in proceeding with sentencing without first obtaining a valid
waiver of the defendant’s right to an interpreter because the government failed to request—and
thus waived its right to—plain-error review. Id. at 574-75. That is not the case here. Thus, we
review Mehmood’s claim for plain error.
Plain-error review involves four steps.
First, there must be an error or defect—some sort of [d]eviation from a legal rule—
that has not been intentionally relinquished or abandoned, i.e., affirmatively
waived, by the appellant. Second, the legal error must be clear or obvious, rather
than subject to reasonable dispute. Third, the error must have affected the
appellant’s substantial rights, which in the ordinary case means he must
demonstrate that it affected the outcome of the district court proceedings. Fourth
and finally, if the above three prongs are satisfied, the court of appeals has the
discretion to remedy the error—discretion which ought to be exercised only if the
error seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.
Puckett v. United States, 556 U.S. 129, 135 (2009) (alterations in original) (internal citations and
quotation marks omitted).
Although it is well-settled that the defendant, not the government, bears the burden of
demonstrating plain error, United States v. Olano, 507 U.S. 725, 734-35 (1993), Mehmood argues
that we should “refuse[] to place the onus on the defendant to prove plain error on the basis of a
silent appellate record.” (Mehmood Reply Br. at 6.) Instead, relying on United States v. Tapia,
631 F.2d 1207, 1210 (5th Cir. 1980), he urges us to remand for a new trial or “remand to the district
court for a hearing to determine whether the absence of an interpreter inhibited [the defendant’s]
6
Mehmood also argues that the district court’s failure to comply with the statutory procedures for waiver is
“indefensible” and necessitates “a reversal of Mehmood’s convictions, and a remand for a new trial.” (Mehmood Br.
at 24.)
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comprehension of the proceedings, or whether such failure prevented him from assisting his
counsel.” (Mehmood Br. at 6 (internal citation marks and citation omitted).) To be sure, in Tapia,
the Fifth Circuit did remand for a hearing to determine whether the absence of an interpreter
“inhibited [the defendant’s] comprehension of the proceedings,” 631 F.2d at 1210; however, Tapia
did not involve plain-error review, and the case predates the Supreme Court’s clear admonition
that “[w]hen an appellate court considers error that qualifies as plain, the tables are turned on
demonstrating the substantiality of any effect on a defendant’s rights: the defendant who sat silent
at trial has the burden to show that his ‘substantial rights’ were affected.” United States v. Vonn,
535 U.S. 55, 62 (2002) (citation omitted). We, therefore, review for plain error.
Pursuant to the CIA, a party may waive the right to an interpreter “only if” the waiver has
been made “expressly by [the party] on the record,” “after opportunity to consult with counsel,”
and “after the presiding judicial officer has explained to such individual . . . the nature and effect
of the waiver.” 28 U.S.C. § 1827(f)(1). Only then may the presiding judicial officer approve the
waiver. Id. Here, the district court failed to comply with the clear language of the CIA by
accepting the waiver from Mehmood’s counsel at sidebar instead of from Mehmood on the record,
and by failing to explain to Mehmood the nature and effect of the waiver. Thus, the district court
erred.
Further, because the district court failed to effectuate the protections enshrined in the clear
and unambiguous language of the CIA, the error was plain. See In re Sealed Case, 573 F.3d 844,
851 (D.C. Cir. 2009) (district court’s failure to comply with statute prohibiting courts from
considering rehabilitative goals in sentencing was plain error because the statute “speaks with
absolute clarity”); United States v. Molina, 356 F.3d 269, 276 (2d Cir. 2004) (district court’s failure
to state reasons for a sentence enhancement it imposed was plain error because it “did not satisfy
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th[e] unambiguous [statutory] mandate” to “state in open court the reasons for the imposition of
the particular sentence”); see also United States v. Merlos, 8 F.3d 48, 51 (D.C. Cir. 1993)
(explaining that an error can be plain if it violates an “absolutely clear” legal norm, “for example,
because of the clarity of a statutory provision”).
The third prong of plain-error review—whether the error affected the defendant’s
substantial rights—“means that the error must have been prejudicial: It must have affected the
outcome of the district court proceedings.” Olano, 507 U.S. at 734. “A defendant must thus satisfy
the judgment of the reviewing court, informed by the entire record, that the probability of a
different result is sufficient to undermine confidence in the outcome of the proceeding.” United
States v. Dominguez Benitez, 542 U.S. 74, 83 (2004) (citation and internal quotation marks
omitted).
Here, there is no evidence in the record that the absence of an interpreter affected
Mehmood’s understanding of the proceedings. At no point did Mehmood indicate to the district
court that the absence of an interpreter “inhibit[ed] [his] comprehension of the proceedings or
communication with counsel or the presiding judicial officer,” 28 U.S.C. § 1827(d)(1), nor did he
raise the issue in his motion for acquittal or new trial. On appeal, Mehmood does not point to any
difficulties communicating with his counsel or inability to understand the proceedings.
In contrast, the record demonstrates that Mehmood was able to successfully convey in
English his many objections and arguments to the district court at sentencing after he rejected the
assistance of an interpreter and waived his right to an attorney. The probation officer who
interviewed Mehmood also reported no difficulty communicating with him, noting that Mehmood
was fluent in both English and Punjabi. Thus, Mehmood has not carried his burden to demonstrate
plain error because he has failed to demonstrate any effect on his substantial rights.
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B. Mehmood - Sufficiency of the Evidence
Mehmood next argues that the district court erred in denying his motion for acquittal
because his convictions of money laundering, conspiracy to commit money laundering, and
obstruction of justice were not supported by sufficient evidence. Specifically, he argues that:
(1) “the government failed to produce sufficient evidence that the animating purpose of the bank
transactions was concealment for a prohibited purpose under the money laundering statute rather
than mere facilitation of the underlying health care fraud violations”; and (2) “the government
failed to produce sufficient evidence to prove that Mehmood concealed patient files for the purpose
of obstructing his prosecution for health care fraud.” (Mehmood Br. at 25, 29.)
We review de novo the denial of a motion for acquittal. United States v. Graham, 622 F.3d
445, 448 (6th Cir. 2010). When considering a challenge to the sufficiency of the evidence, “the
relevant question is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). “All reasonable inferences
and resolutions of credibility are made in the jury’s favor.” United States v. Tragas, 727 F.3d 610,
617 (6th Cir. 2013) (citation omitted). We may not “weigh the evidence presented, consider the
credibility of witnesses, or substitute our judgment for that of the jury.” United States v. M/G
Transp. Servs., Inc., 173 F.3d 584, 588-89 (6th Cir. 1999) (citation omitted).
1. Money Laundering
To find Mehmood guilty of money laundering, the jury was required to find beyond a
reasonable doubt that Mehmood engaged in “a financial transaction . . . involv[ing] proceeds from
specified unlawful activity” “knowing that the transaction is designed in whole or in part to conceal
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or disguise the nature, the location, the source, the ownership, or the control of the proceeds.”
18 U.S.C. § 1956(a)(1)(B)(1).7
Mehmood argues that the financial transactions at issue—executing and cashing two
checks drawn on Exclusive’s bank account, pre-signed by Alam, and made out and delivered by
Mehmood to his intermediary, Tausif Rahman, for payment of kickbacks to recruiters and for
Mehmood’s personal use—were not “designed to conceal.” Rather, he argues, the transactions
merely furthered the underlying fraud scheme, and the government failed to present sufficient
evidence that concealment was one of the purposes that drove Mehmood to engage in the
transactions in the first place.
Mehmood is correct that to prove money laundering, “it is not enough for the government
to prove merely that a transaction had a concealing effect,” or “that the transaction was structured
to conceal the nature of illicit funds.” United States v. Faulkenberry, 614 F.3d 573, 586 (6th Cir.
2010). “Concealment—even deliberate concealment—as mere facilitation of some other purpose
[e.g., fraud], is not enough to convict. . . . What is required, rather, is that concealment be an
animating purpose of the transaction.” Id. We conclude that the evidence, viewed in the light
most favorable to the government, was sufficient for the jury to find that concealment was an
animating purpose of Mehmood’s transactions.
As Mehmood concedes, his “businesses could not make the payments directly to the
marketers due to the anti-kickback provisions of federal law.” (Mehmood Br. at 28.) Instead, to
circumvent the law, the payments were made indirectly through Mehmood’s shell company.
A rational juror could thus infer that Mehmood set up the shell company and structured the
transactions to avoid being directly linked to the payments and evade detection, and that
7
The Supreme Court has held that the word “designed” requires proof of a purpose. Cuellar v. United States,
553 U.S. 550, 563-64 (2008).
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Mehmood’s animating purpose was “to cleanse the funds of their fraudulent taint.” United States
v. Patel, 651 F. App’x 468, 473 (6th Cir. 2016). And because “purpose and structure are often
related[,]” Cuellar, 128 S. Ct. at 2004, “proof that a transaction was structured to conceal a listed
attribute[8] of the funds can yield an inference that concealment was a purpose of the transaction.”
Faulkenberry, 614 F.3d at 586 (citation omitted).
Additionally, because Mehmood kept some of the money for his personal use, facilitation
of the health-care fraud was not the only purpose of the transactions. Concealment need not be
the only or dominant purpose of the transaction; the statute requires only that the transaction be
designed “in whole or in part” to conceal. 18 U.S.C. § 1956(a)(1)(B). Here, Rahman testified that
Mehmood directed him to cash the two checks at issue and return a portion of the money to
Mehmood.9 Thus, viewing the evidence in the light most favorable to the prosecution, we conclude
that there was sufficient evidence that concealment was, at least partially, an animating purpose
for conducting the transactions rather than merely a mechanism used solely to facilitate the health-
care fraud.
8
“Listed attribute” refers to the nature, the location, the source, the ownership, or the control of the proceeds.
Cuellar, 553 U.S. at 559.
9
Q. All right. This check is written out to you?
A. Yes.
Q. Do you know whether this money was for you?
A. No.
Q. What was this money for, to your recollection?
A. I actually had this check deposited into my account and I gave the cash to Mr. Zafar Mehmood.
Q. And why did you do that?
A. I was told by Mr. Mehmood.
...
Q. If we could look at the check. What is that?
A. That’s the check written to me in the amount of $5,000.
...
Q. And what were your instructions for Mr. Mehmood to do with it?
A. To use it for the marketing.
Q. Or for him?
A. Or for him.
(R. 319, PID 8579-82.)
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2. Obstruction of Justice
To find Mehmood guilty of obstructing justice, the jury was required to find beyond a
reasonable doubt that Mehmood (1) “altered, destroyed, mutilated, or concealed a record,
document, or other object;” (2) “acted knowingly;” (3) “acted corruptly;” and (4) “acted with the
intent to impair the record, document, or object’s integrity or availability for use in an official
proceeding.” 18 U.S.C. § 1512(c)(1).
The government presented evidence that although Mehmood was detained pending trial he
was granted temporary release from custody to accompany his attorneys to the office of the U.S.
Department of Health and Human Services (“HHS”) in Detroit to prepare for trial and review
original patient records and other materials seized from Mehmood’s companies. HHS discovered
that certain incriminating, original pages were missing following Mehmood’s three visits and law
enforcement found these pages in Mehmood’s cell upon executing a search warrant.
At trial, the government presented evidence that the original patient files had been scanned
by the government prior to Mehmood’s examination of those files at HHS. The government
argued: “we’re able to take both what was left after Mehmood’s visit [to HHS,][(Ex. 352)], as well
as the documents that were seized from Mr. Mehmood’s cell[, (Ex. 350A)], and if we put them
together, they match exactly” to the scan of the original records produced before Mehmood’s visit
to HHS, (Ex. 351). (R. 322, PID 9340.) Specifically, the government focused on the file of Janie
Drake, comparing a scanned version of the Drake file made before Mehmood’s visit, to a version
of the original Drake file scanned immediately after Mehmood’s visit, (Ex. 352), to reveal the
missing pages. The missing pages, (Ex. 350A), were later found in Mehmood’s cell.
Mehmood now seizes on the government’s argument at trial that the pre- and post-HHS-
visit scans “match[ed] exactly.” (R. 322, PID 9340.) He argues that because the two scans contain
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certain dissimilarities, they do not “match exactly,” and thus Exhibit 351 cannot be a reliable
representation of the contents of the Drake file as originally seized. (Mehmood Br. at 34 (“In light
of the dissimilarities . . . , the case agent’s testimony that Exhibit 351 is a scanned duplicate of the
original Drake file viewed by Mehmood at the HHS field office ‘defies physical realities’ and
‘contradicts indisputable physical facts.’” (citing United States v. Farley, 2 F.3d 645, 652 (6th Cir.
1993)).) Stated differently, Mehmood argues that the dissimilarities prove that “Exhibit 351 and
Exhibit 352 . . . were not created from the same physical document,” (Mehmood Reply Br. at 15),
and thus Exhibit 351 “should be excluded from this Court’s review of the sufficiency of the
evidence.” (Mehmood Br. at 34.)10
Mehmood’s argument fails. First, the complained-of dissimilarities are minute: stray pen
marks, additional or misaligned punch holes, additional staple marks or staple marks in different
locations, a speck of dust or stray piece of lint, or slight discoloration or stains. Mehmood
identifies no substantive differences between the two scans. And the differences he does point to
do not make Exhibit 351 inherently unreliable because the scans were made of the originals at
different times and after they were reviewed and handled.
Second, Mehmood did not make this argument to the jury, did not explore the alleged
dissimilarities at trial, and did not raise the issue in his motion for acquittal. He never argued, as
he does now, that certain dissimilarities undermined the authenticity of the exhibit. Instead, he
asks that we draw our own conclusions about the scans and “give no weight to this evidence
because it is irreconcilable with the physical facts.” (Mehmood Reply Br. at 10.) We decline to
entertain Mehmood’s argument about the alleged dissimilarities because “it is the responsibility of
the jury—not the court—to decide what conclusions should be drawn from evidence admitted at
10
Mehmood also separately argues that the district court abused its discretion in admitting Exhibit 351,
addressed infra.
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trial.” Cavazos v. Smith, 565 U.S. 1, 2 (2011). “[T]he court cannot substitute its judgment of the
evidence or the facts for that of the jury, since ascertaining the facts is within the exclusive province
of the latter.” 9B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2524
(4th ed.); see also United States v. M/G Transp. Servs., Inc., 173 F.3d 584, 588-89 (6th Cir. 1999).11
Mehmood also points to other evidence he argues undermines his obstruction conviction,
such as testimony that: (1) neither Mehmood’s attorney nor the HHS agents saw Mehmood take
any patient files from the HHS office; (2) “Medicaid providers may have legitimate business
reasons to create multiple copies of a patient file”; and (3) Mehmood’s attorneys had given him
copies of patient records that he kept in his cell. (Mehmood Br. at 34-35.) But the jury heard this
testimony and chose to give it little weight. Instead, the jury permissibly credited the testimony
of the FBI agent who executed the search of Mehmood’s cell and who testified that the pages
recovered from Mehmood’s cell were the missing originals because “the paper was indented as if
being pressed by a point of . . . a pen,” and because they contained an original, handwritten “sticky
note” attached to the documents, as opposed to a photocopy of the note, and, thus, the recovered
pages could not have been copies given to Mehmood by his attorneys or made at Mehmood’s
companies before his arrest. (R. 323, PID 9504-06; 9509-10.)
Thus, we conclude that the evidence was sufficient for the jury to find beyond a reasonable
doubt that Mehmood attempted to obstruct justice by removing certain incriminating patient files
from HHS.
11
Mehmood relies on a Sixth Circuit case stating that “[w]here testimony is patently incredible or defies
physical realities, it may be rejected by the court, despite the jury’s evaluation.” United States v. Farley, 2 F.3d 645,
652 (6th Cir. 1993). But as Farley explained, “[t]he exception is an extremely narrow one . . . and can be invoked
only where the testimony contradicts indisputable physical facts or laws.” Id. (citation omitted). The testimony of an
HHS agent that Exhibit 351 was scanned before Mehmood’s visit is not contrary to any indisputable facts. And the
agent did not testify that the two scans “match exactly” – that was argued by the government. Thus, no exceptional
circumstances exist to reject the testimony of the agent. The fact that the post-visit version contains some insignificant
dissimilarities is not inconsistent with the HHS agent’s testimony that Exhibit 351 is a scanned duplicate of the original
Drake file.
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C. Mehmood - Admission of Exhibit 351
Next, Mehmood argues that the district court abused its discretion in admitting Exhibit 351
because the exhibit was not properly authenticated and the government failed to establish a proper
chain of custody.
We review the district court’s evidentiary rulings for an abuse of discretion, which occurs
when the district court “relies on clearly erroneous findings of fact, improperly applies the law, or
employs an erroneous legal standard,” Griffin v. Finkbeiner, 689 F.3d 584, 592 (6th Cir. 2012)
(internal quotation marks omitted), or “when we are firmly convinced that a mistake has been
made, i.e., when we are left with a definite and firm conviction that the trial court committed a
clear error of judgment.” United States v. Heavrin, 330 F.3d 723, 727 (6th Cir. 2003) (citation
omitted).
“To satisfy the requirement of authenticating or identifying an item of evidence, the
proponent must produce evidence sufficient to support a finding that the item is what the proponent
claims it is.” Fed. R. Evid. 901. Similarly, “[t]o establish a chain of custody sufficient to make
evidence admissible, the proponent need only prove a rational basis from which to conclude that
the evidence is what the party claims it to be.” United States v. Rawlins, 606 F.3d 73, 82 (3d Cir.
2010) (internal quotation marks omitted). See also 2 McCormick On Evid. § 213 (7th ed.) (“The
standard of proof requires only evidence from which the trier could reasonably believe that an item
still is what the proponent claims it to be.”). The possibility of misidentification or alteration must
be “eliminated, not absolutely, but as a matter of reasonable probability.” United States v. Allen,
106 F.3d 695, 700 (6th Cir. 1997) (citation omitted).
Here, Exhibit 351 was authenticated by HHS agent James Grzeszczak, who testified how
the patient records were obtained, maintained, and tracked, and that they had been scanned before
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Mehmood’s visit to the HHS, a copy produced to the defense in discovery, and the originals viewed
by the defense at HHS. Mehmood, however, calls into question the authenticity of the exhibit
because of the minimal differences between the two scans. But “foundational requirements are
essentially requirements of logic, and not rules of art. Thus, even an altered item of real evidence
may still be admissible if the pertinent features which make it probative remain unchanged.”
2 McCormick On Evid. § 213 (7th ed.). Here, aside from the minor dissimilarities, the pertinent
features of the files remained unchanged. As caselaw makes clear, Mehmood must do more than
“merely rais[e] the possibility of tampering or misidentification . . . to render evidence
inadmissible.” United States v. Combs, 369 F.3d 925, 938 (6th Cir. 2004) (citation omitted). And,
as discussed, those dissimilarities were not brought to the district court’s attention.
Mehmood next argues that “[t]here was a total failure to establish a chain of custody for
Exhibit 351,” because “[d]uring cross-examination, the case agent was unable to provide even
basic information regarding the source document used to prepare the duplicate, the date on which
it was scanned, or the identity of the individual who did the scanning.” (Mehmood Br. at 38.) But
“challenges to the chain of custody go to the weight of evidence, not its admissibility.” Combs,
369 F.3d at 938 (citation omitted). And “[w]here there is no evidence indicating that tampering
with the exhibits occurred, courts presume public officers have discharged their duties properly.”
Allen, 106 F.3d at 700. Further, Mehmood misunderstands both the applicable evidentiary
standard and the role of the judge. “Rule 901 does not erect a particularly high hurdle, and the
proponent of the evidence is not required to rule out all possibilities inconsistent with authenticity,
or to prove beyond any doubt that the evidence is what it purports to be.” United States v. Dhinsa,
243 F.3d 635, 658 (2d Cir. 2001). “The authenticity of an exhibit is not a question of the
application of a technical rule of evidence. It goes to genuineness and conditional relevance . . . .
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Nos. 16-2639/2641/2649, Unites States v. Mehmood et al.
Thus, the function of the judge is to ensure that there is sufficient evidence of authenticity, and the
ultimate determination of whether to believe that evidence is left for the jury.” 2 McCormick On
Evid. § 212 n.19 (7th ed.).
Thus, the district court did not abuse its discretion in admitting Exhibit 351.
D. Mehmood - Guidelines Calculation
Mehmood next argues that his 360-month sentence is procedurally unreasonable because
the district court erroneously calculated his advisory Guideline imprisonment range. Specifically,
Mehmood argues that the district court: (1) erroneously applied an excessive-loss enhancement;
(2) violated a double-counting prohibition against overlapping sophisticated-means and
sophisticated-laundering enhancements; (3) erroneously applied a second obstruction-of-justice
enhancement; and (4) violated the Ex Post Facto Clause of Art. 1, § 10 of the U.S. Constitution
by imposing a health-care-fraud enhancement.
We review sentences for procedural and substantive reasonableness under an abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). The district court’s conclusions
of law are reviewed de novo, while its findings of fact are reviewed for clear error. United States
v. Moon, 513 F.3d 527, 539-40 (6th Cir. 2008).
1. Loss Enhancement
Under the Guidelines, a defendant’s offense level is adjusted according to the amount of
loss12 involved in the offense. U.S.S.G. § 2B1.1(b)(1). Where, as here, the district court
determines that the loss is more than $25,000,000 but less than $65,000,000, the base offense level
is increased by 22 levels. Id. § 2B1.1(b)(1)(L). Mehmood challenges that finding and argues that
12
The amount of loss “is the greater of actual or intended loss.” U.S.S.G. § 2B1.1 cmt. n.3(A). “Actual loss”
is “the reasonably foreseeable pecuniary harm” resulting from the offense. Id. § 2B1.1 cmt. n.3(A)(i). “Intended loss”
is the pecuniary harm that was intended to result from the offense, even if “impossible or unlikely to occur.” Id.
§ 2B1.1 cmt. n.3(A)(ii).
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Nos. 16-2639/2641/2649, Unites States v. Mehmood et al.
the district court erred when it “use[d] the gross amount of Medicare claims, rather than the net
gain . . . to calculate the loss.”13 (Mehmood Br. at 44.)
We review the district court’s fact findings regarding loss for clear error and its
methodology for calculating loss de novo. United States v. McCarty, 628 F.3d 284, 290 (6th Cir.
2010). The district court is to determine the amount of loss by a preponderance of the evidence.
United States v. Triana, 468 F.3d 308, 320, 321 (6th Cir. 2006) (citation omitted). In cases
involving fraud, the district court “need only make a reasonable estimate of the loss. The
sentencing judge is in a unique position to assess the evidence and estimate the loss based upon
that evidence. For this reason, the [district] court’s loss determination is entitled to appropriate
deference.” U.S.S.G. § 2B1.1, cmt. n. 3(C). Further,
[i]n a case in which the defendant is convicted of a Federal health care offense
involving a Government health care program, the aggregate dollar amount of
fraudulent bills submitted to the Government health care program shall constitute
prima facie evidence of the amount of the intended loss, i.e., is evidence sufficient
to establish the amount of the intended loss, if not rebutted.
U.S.S.G. § 2B1.1, cmt. n.3(F)(viii).
Here, the district court took a different approach in concluding that the full amount of gross
billings submitted by Mehmood’s companies between 2006 and 2011—$47,219,535.47—
constituted loss for sentencing purposes. (R. 279, 5163-70; 5193-94.) The district court
determined that none of Mehmood’s claims were legitimate—and thus could not be offset against
13
Mehmood relies on two cases that are of no help. He first relies on United States v. Fowler, 819 F.3d 298,
307 (6th Cir. 2016), but Fowler involved loss calculation for the purposes of restitution, not for sentencing purposes.
Mehmood also relies on United States v. White, 492 F.3d 380 (6th Cir. 2007), in arguing that “the net-gain method for
calculating loss applies in instances where the defendant is convicted of violating a Medicare rule despite having
certified that he would comply with the rules.” (Mehmood Br. at 45.) But White does not stand for that proposition.
The case held only that courts should, “to the extent practicable, adopt the ‘net gain’ method for calculating loss where
a party is convicted of Medicare fraud due to violations of [Medicare’s] ‘related party’ rule” – a rule not at issue here.
White, 492 F.3d at 417. And the Guidelines clearly state that [t]he court shall use the gain that resulted from the
offense as an alternative measure of loss only if there is a loss but it reasonably cannot be determined.” U.S.S.G.
2B1.1, cmt. 3(B).
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Nos. 16-2639/2641/2649, Unites States v. Mehmood et al.
the aggregate billings—because Mehmood obtained access to the Medicare program by certifying
that he would not engage in kickbacks “without any intention of living up to” that promise.
(R. 279, PID 5164.) Indeed, testimony at trial established that Medicare would not have paid any
of Mehmood’s claims, including any legitimate ones, if Mehmood had disclosed his fraudulent
scheme.
However, this approach is unsupported. The Eleventh Circuit has expressly rejected loss
calculations based solely on a defendant’s false representations to Medicare about the defendant’s
intent to follow Medicare’s anti-kickback rules, and we do as well. United States v. Medina,
485 F.3d 1291, 1304 (11th Cir. 2007) (“Even though [the government’s Medicare witness]
testified that Medicare would not pay a claim if they knew parties were receiving kickbacks, this
is not sufficient to establish a loss to Medicare.”). As the Guidelines state, “the aggregate dollar
amount of fraudulent bills submitted to the Government health care program shall constitute prima
facie evidence of the amount of the intended loss.” U.S.S.G. § 2B1.1, cmt. n.3(F)(viii) (emphasis
added). Thus, to calculate loss for sentencing purposes, the value of any legitimate claims, if
established, must be offset against the aggregate billings.
Here, the defense elicited testimony from multiple therapists, nurses, and counselors
regarding legitimate medical services rendered to home-bound patients.14 The district court,
however, failed to consider that testimony; instead, it relied on its belief that Mehmood’s
fraudulent representations to Medicare allowed it to count all claims as losses without first
considering whether any medical services claimed were legitimate.
The government defends the district court’s error as harmless. To be sure, to qualify for a
lower offense level, Mehmood would have to show that the district court’s loss finding was wrong
14
Even the government’s main witness, Rahman, testified that not all services were illegitimate.
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by at least $15 million. See U.S.S.G. § 2B1.1(b)(1)(K). However, “[a]n error with respect to the
loss calculation is a procedural infirmity that typically requires remand.” United States v.
Warshak, 631 F.3d 266, 328 (6th Cir. 2010) (citing Gall v. United States, 552 U.S. 38, 51 (2007)).
Here, we cannot say that the error is clearly harmless.
2. Obstruction-of-Justice Enhancements
Mehmood next argues that the district court erred when it applied a two-level enhancement
for obstruction of justice under U.S.S.G. § 3C1.1 and a three-level enhancement under § 3C1.3 for
committing an offense while on release. The government concedes that the application of both
enhancements was error, and that the district court should not have applied § 3C1.3. Thus, on
remand for resentencing, the district court must recalculate Mehmood’s offense level without the
§ 3C1.3 enhancement.
3. Ex Post Facto Violation
Mehmood next argues that the district court’s use of a 2011 Guidelines manual at
sentencing constituted an ex post facto violation because that manual included an enhancement
under § 2B1.1(b)(7)(iii) for defrauding a government health-care program in an amount exceeding
$20 million that was added after Mehmood’s conspiracy concluded.
We review ex post facto challenges de novo. United States v. VanHoose, 437 F.3d 497,
500 (6th Cir. 2006). Generally, courts apply the Guidelines in effect at the time a defendant is
sentenced. Huff v. United States, 734 F.3d 600, 608 (6th Cir. 2013). However, “if the court
determines that use of the Guidelines Manual in effect on the date that the defendant is sentenced
would violate the Ex Post Facto Clause of the United States Constitution, the court shall use the
Guidelines Manual in effect on the date that the offense of conviction was committed.” U.S.S.G.
§ 1B.1.11(b)(1). “[A] violation of the Ex Post Facto Clause occurs ‘when a defendant is sentenced
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Nos. 16-2639/2641/2649, Unites States v. Mehmood et al.
under Guidelines promulgated after he committed his criminal acts and the new version provides
a higher applicable Guidelines range than the version in place at the time of the offense.’” Huff,
734 F.3d at 608 (quoting Peugh v. United States, 133 S. Ct. 2072, 2078 (2013)).
The effective date of the § 2B1.1(b)(7)(iii) enhancement was November 1, 2011, when the
2011 Guidelines manual went into effect. Mehmood’s indictment for health-care-fraud and
money-laundering conspiracies, returned on November 1, 2011, stated that the conspiracies ended
“in or around November 2011.” (R. 42, PID 350, 353.) Mehmood was arrested on November 3,
2011.
At sentencing, the district court held that the 201115 Guidelines manual applied because
“[t]o avoid this, Mr. Mehmood would have had to affirmatively withdraw from the conspiracy.
Now, he was arrested on November 3rd of 2011, which was after the effective date of the 2011
guidelines. And there’s no evidence that Mr. Mehmood affirmatively withdrew whatsoever from
the health care fraud conspiracy.” (R. 279, PID 5202.) Mehmood argues, however, that “[s]ince
there was no proof that the conspiracy was still in existence on the date the 4-level health care
fraud enhancement went into effect, the burden never shifted to Mehmood to prove that he
withdrew from the conspiracy.” (Mehmood Reply Br. at 22.) Mehmood’s argument finds no
support in caselaw.
Because “conspiracy is a continuing offense, a defendant who has joined a conspiracy
continues to violate the law through every moment of the conspiracy’s existence.” Smith v. United
States, 568 U.S. 106, 111 (2013) (internal quotation marks and citations omitted). Thus, a
defendant who is convicted of a conspiracy that began before, but continued after, a Guidelines
amendment became effective may be sentenced based on the amendment without triggering any
15
There was some dispute whether to use the 2011 or 2015 manual, but that is irrelevant here because both
manuals contain the enhancement at issue.
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Nos. 16-2639/2641/2649, Unites States v. Mehmood et al.
ex post facto concerns. United States v. Aviles, 518 F.3d 1228, 1230 (11th Cir. 2008).
“A defendant may escape the more severe amended penalty by withdrawing from the conspiracy
prior to the effective date of the amend[ed Guidelines].” Id. at 1232; see also United States v.
Romans, 823 F.3d 299, 320 (5th Cir. 2016); United States v. Vallone, 752 F.3d 690, 696 (7th Cir.
2014). To establish withdrawal from conspiracy, “a defendant must show that he or she took
affirmative action to defeat or disavow the purpose of the conspiracy.” United States v. Lash, 937
F.2d 1077, 1083 (6th Cir. 1991).
The defendant knows what steps, if any, he took to dissociate from his confederates.
He can testify to his act of withdrawal or direct the court to other evidence
substantiating his claim. It would be nearly impossible for the Government to prove
the negative that an act of withdrawal never happened.
Smith, 568 U.S. at 113 (internal citation, quotation marks, and alterations omitted).
Here, Mehmood did not argue or present any evidence at sentencing that he took
affirmative steps to disavow or defeat the purpose of the conspiracy prior to the effective date of
the enhancement at issue.16 Because Mehmood has not carried his burden of proving that he had
withdrawn from the conspiracy before the amended Guidelines went into effect, we reject his ex
post facto challenge.
4. Sophisticated-Means and Sophisticated-Laundering Enhancements
Mehmood argues that the district court impermissibly double-counted when it applied a
two-level enhancement for “sophisticated laundering” under U.S.S.G. § 2S1.1(b)(3) and a two-
16
In fact, the evidence seized during the search of Mehmood’s businesses on November 3, 2011, suggests
that the conspiracy continued until Mehmood’s arrest. For example, photographs of Mehmood’s offices taken during
the search on November 3, 2011 show that Mehmood continued to employ the same means to avoid detection. In any
event, Mehmood does not challenge the sufficiency of the evidence of his health-care-conspiracy conviction and he
did not present any evidence at trial that he had withdrawn from the conspiracy, despite having the burden to establish
this defense. Smith, 568 U.S. at 110-13.
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Nos. 16-2639/2641/2649, Unites States v. Mehmood et al.
level enhancement for a fraudulent scheme involving “sophisticated means” under U.S.S.G.
§ 2B1.1(b)(10)(C).
Although Mehmood failed to preserve this claim below, the government does not assert
forfeiture or waiver. The Guidelines provide that the application of both enhancements is improper
when the same conduct forms the basis of each enhancement. U.S.S.G. § 2S1.1, n.5(B).17 On
resentencing, the district court should address the propriety of the dual enhancement under the
Guideline.
E. Mehmood - Restitution and Forfeiture
Finally, Mehmood argues that the district court’s restitution and forfeiture orders are
erroneous because they rest on an erroneous loss determination.
The district court ordered Mehmood to pay $40,488,106.98 in restitution and ordered
forfeiture in that amount, relying on the calculations of loss under the Guidelines. Although
restitution and loss are not one and the same, it is permissible for the district court to base its order
of restitution on the actual loss calculated for the purpose of sentencing. United States v. Boring,
557 F.3d 707, 713 (6th Cir. 2009); United States v. Finkley, 324 F.3d 401, 404 (6th Cir. 2003).
However, because we conclude that the district court erred in calculating loss, we also remand for
recalculation of the amount of restitution and forfeiture. See United States v. Stein, 846 F.3d 1135,
1153 (11th Cir.), cert. denied, 138 S. Ct. 556 (2017) (remanding for recalculation of both loss and
restitution where the district court based its restitution order on an erroneous calculation of the
actual loss figure); United States v. Radziszewski, 474 F.3d 480, 487 (7th Cir. 2007) (same).
17
Note 5(B) states:
If subsection (b)(3) applies, and the conduct that forms the basis for an enhancement under the
guideline applicable to the underlying offense is the only conduct that forms the basis for application
of subsection (b)(3) of this guideline, do not apply subsection (b)(3) of this guideline.
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F. Ahmadani - Motion for Severance
Ahmadani first argues that the district court erred by not severing Defendants’ trials.
However, Ahmadani never asked to be tried separately from Mehmood. Rather, he unsuccessfully
sought to have Mehmood’s obstruction charge severed from his and Mehmood’s joint health-care-
fraud trial. Ahmadani now argues for the first time that he and Mehmood should not have been
tried together at all. Because that argument was not preserved below, we review it for plain error.
Federal Rule of Criminal Procedure 8(b) allows for the joinder of defendants who “are
alleged to have participated in the same act or transaction, or in the same series of acts or
transactions, constituting an offense.” The Supreme Court has commented that Rule 8(b) is meant
“to promote economy and efficiency and to avoid a multiplicity of trials.” Zafiro v. United States,
506 U.S. 534, 540 (1993) (citation omitted). Even when joinder is proper, however, a court may
“order separate trials of counts, sever the defendants’ trials, or provide any other relief that justice
requires,” if a joint trial “appears to prejudice a defendant or the government.” Fed. R. Crim. P.
14(a). Severance is only required if there is “a serious risk that a joint trial would compromise a
specific trial right of one of the defendants, or prevent the jury from making a reliable judgment
about guilt or innocence.” Zafiro, 506 U.S. at 539. But it is “well settled that defendants are not
entitled to severance merely because they may have a better chance of acquittal in separate trials.”
Id. at 540.
Here, Ahmadani fails to show “specific and compelling prejudice that would mislead and
confuse the jury in the absence of a separate trial.” Walls, 293 F.3d at 966. First, except for
witnesses testifying about Mehmood’s obstruction of justice, Ahmadani fails to point to any
testimony that would have been excluded at his separate trial. Second, a spillover of evidence does
not require severance, Lopez, 309 F.3d, at 971, and may be cured by limiting instructions. Zafiro,
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Nos. 16-2639/2641/2649, Unites States v. Mehmood et al.
506 U.S. at 539. The district court specifically instructed the jury that the obstruction charge did
not relate to Ahmadani. (R. 323, PID 9442 (“You can only consider this testimony against
Defendant Zafar Mehmood. You cannot consider it in any way against Defendant Badar
Ahmadani.”).) The district court, and the government as well, repeated this instruction several
times, and “juries are presumed to follow their instructions.” Zafiro, 506 U.S. at 540 (citation
omitted). Third, Ahmadani does not argue that any particular testimony was so confusing that “a
jury could [not] reasonably be expected to sort out the evidence.” United States v. Crotinger,
928 F.2d 203, 206 (6th Cir. 1991). And, in any case, any confusion “must be balanced against
society’s interest in speedy and efficient trials.” Walls, 293 F.3d at 967. Fourth, even if Ahmadani
can show some prejudice given that Mehmood attempted to obstruct justice by stealing records of
Ahmadani’s patient, “Rule 14 does not require severance even if prejudice is shown; rather, it
leaves the tailoring of the relief to be granted, if any, to the district court’s sound discretion.”
Zafiro, 506 U.S. at 538-39.
Thus, we conclude that the district court did not plainly err when it joined Mehmood’s and
Ahmadani’s trials.
G. Ahmadani - Confrontation Clause
Ahmadani next argues that admitting statements Mehmood made during an interview with
law enforcement violated Ahmadani’s Confrontation Clause rights under Bruton v. United States,
391 U.S. 123 (1968), because those statements implicated Ahmadani.
We review de novo claims that the admission of evidence violated the Confrontation
Clause. United States v. Johnson, 581 F.3d 320, 325 (6th Cir. 2009). In Bruton, the Supreme
Court held that “[a]n accused is deprived of his rights under the Confrontation Clause when the
confession of a nontestifying codefendant that implicates the accused is introduced into evidence
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Nos. 16-2639/2641/2649, Unites States v. Mehmood et al.
at their joint trial . . . even if the jury is instructed to consider the confession only as evidence
against the codefendant.” United States v. Cope, 312 F.3d 757, 780-81 (6th Cir. 2002) (citing
Bruton, 391 U.S. at 137).18 Bruton was later refined by Richardson v. Marsh, 481 U.S. 200, 208
(1987), which limited Bruton’s reach to statements that expressly implicate the co-defendant and
are “incriminating on [their] face,” as opposed to statements “requiring linkages.”
Here, concerned about potential Bruton violations, the district court ordered that
Mehmood’s statements be redacted to eliminate any reference to Ahmadani or the company he co-
owned, HOH. Ahmadani, however, argues that “[t]he statements by Mehmood [were] clearly
accusatory as to Ahmadani, even without mentioning Ahmadani’s name or HOH.” (Ahmadani
Br. at 28.) But he does not point to any specific admitted statements, nor does he develop his
argument any further. Our independent review of the trial testimony regarding Mehmood’s
interview with law enforcement does not reveal any statements that expressly implicated
Ahmadani or were incriminating on their face.
Ahmadani also argues that the district court erred when it admitted some, but not all, of the
statements Ahmadani made during his interview with law enforcement. Ahmadani claims that the
district court should have allowed the remaining statements under the completeness rule of Federal
Rule of Evidence 106 because his statements were “exculpatory.” (Ahmadani Br. at 28.) Although
“[o]ut-of-court statements made by a party-opponent are an exception to the general hearsay rule,”
“[t]his hearsay exception does not . . . extend to a party’s attempt to introduce his or her own
statements through the testimony of other witnesses.” United States v. Ford, 761 F.3d 641, 651-
52 (6th Cir. 2014) (citation and quotations marks omitted). “Precluding a defendant from eliciting
18
Because Bruton is premised on the Confrontation Clause, it applies only to testimonial statements. United
States v. Arnold, 486 F.3d 177, 192-93 (6th Cir. 2007) (en banc). Here, the government does not argue that the
statements were nontestimonial.
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Nos. 16-2639/2641/2649, Unites States v. Mehmood et al.
inadmissible hearsay statements does not violate the Confrontation Clause.” Id. at 652. And
“[e]xculpatory hearsay may not come in solely on the basis of completeness.” United States v.
Adams, 722 F.3d 788, 826 (6th Cir. 2013). Further, although the statements Ahmadani sought to
add were exculpatory, their omission did not render the testimony misleading or unfair.
Thus, Ahmadani’s Confrontation Clause and Rule 106 challenges lack merit.
H. Ahmadani - Loss Calculation
Ahmadani next argues that the amount of loss attributable to him—$38,150,113.64—and
the resulting twenty-two-level enhancement were erroneous because his liability should be limited
to the claims Medicare paid to HOH and only for the period in which he was listed as the co-owner
of HOH.19
We review the method used to calculate loss de novo and any factual determinations for
clear error. United States v. Wendlandt, 714 F.3d 388, 393 (6th Cir. 2013).
The jury found Mehmood and Ahmadani guilty of conspiracy to commit health-care fraud
and conspiracy to offer, pay, solicit, and receive kickbacks. Thus, as Mehmood’s co-conspirator,
pursuant to U.S.S.G. § 1B1.3(a)(1)(B), Ahmadani’s Guideline range was to be determined in part
based on:
all acts and omissions of [Mehmood] that were: (i) within the scope of the jointly
undertaken criminal activity, (ii) in furtherance of that criminal activity, and
(iii) reasonably foreseeable in connection with that criminal activity; that occurred
during the commission of the offense of conviction, in preparation for that offense,
or in the course of attempting to avoid detection or responsibility for that offense[.]
Application Note Three to U.S.S.G. § 1B1.3 sets out a test that must be satisfied before a
defendant is held accountable for the conduct of others. First, the district court must make
particularized findings about “the scope of the defendant’s agreement.” United States v. Campbell,
At most, he argues, he should be responsible for $6,723,828 – the total amount in claims paid by Medicare
19
to HOH during Ahmadani’s co-ownership of HOH from 2007 to 2008.
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Nos. 16-2639/2641/2649, Unites States v. Mehmood et al.
279 F.3d 392, 400 (6th Cir. 2002); U.S.S.G. § 1B1.3(a)(1)(B) & cmt. n.3. This finding
“differentiate[s] between co-conspirators’ varying degrees of culpability.” Campbell, 279 F.3d at
400. The district court may consider “any explicit agreement or implicit agreement fairly inferred
from the conduct of the defendant and others,” U.S.S.G. § 1B1.3 cmt. n.3(B), but mere
“aware[ness] of the scope of the overall operation” is insufficient, Campbell, 279 F.3d at 400.
Second, the district court must make particularized findings about “the foreseeability of [the] co-
conspirators’ conduct.” Id. Only conduct reasonably foreseeable to the particular defendant may
be attributed to him. United States v. Orlando, 281 F.3d 586, 600 (6th Cir. 2002). Finally, even
if the defendant could reasonably foresee conduct in furtherance of the conspiracy, the loss from
that conduct will only be attributed to the defendant if the conduct falls within the scope of his
particular agreement. Campbell, 279 F.3d at 400.
Here, the district court failed to make a finding that Mehmood’s conduct was reasonably
foreseeable to Ahmadani and failed to make particularized findings with respect to the scope of
Ahmadani’s agreement, as required by Campbell and the relevant Guidelines Application Note.
Ahmadani did not object to the district court’s failure to abide by the above-mentioned
authority, nor does he object to it on appeal. Instead, the parties and the district court reasoned
that United States v. Shannon, 803 F.3d 778 (6th Cir. 2015) provides the appropriate framework.
But Shannon, which applied § 1B1.3(a)(2), has no application here. There, the defendant objected
to the district court’s reliance on the defendant’s own relevant conduct in calculating the loss, not
on the acts of a co-conspirator. The Guidelines are clear, however, that “in the case of a jointly
undertaken criminal activity,” the analysis begins with § 1B1.3(a)(1)(B). Thus, we review for, and
find, plain error. We remand for resentencing with instructions that the district court apply the
proper framework for analyzing the attribution of a co-conspirator’s conduct in calculating loss.
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Nos. 16-2639/2641/2649, Unites States v. Mehmood et al.
See, e.g., United States v. Harris, 636 F. App’x 922, 927 (6th Cir. 2016); United States v. Sullins,
529 F. App’x 584, 588 (6th Cir. 2013); United States v. Elias, 107 F. App’x 634, 637 (6th Cir.
2004); Campbell, 279 F.3d at 400.
I. Ahmadani - Ineffective Assistance of Counsel
Finally, Ahmadani argues that his conviction should be set aside because of his trial
counsel’s ineffective assistance. Specifically, he argues that his attorney failed to challenge the
joinder of the trials and “failed to make an appropriate argument at sentencing relating to the
amount of loss.” (Ahmadani Br. at 29.)
However, this court has “adopted a general rule that a defendant may not raise ineffective
assistance of counsel claims for the first time on direct appeal.” United States v. Ferguson,
669 F.3d 756, 762 (6th Cir. 2012) (citation, quotations marks, and alterations omitted)). And
Ahmadani fails to explain why this case presents the “rare instance[]” in which a defendant can
pursue a claim for ineffective assistance on direct appeal.20 United States v. Yisrael, 355 F. App’x
933, 934 (6th Cir. 2009).
Thus, we decline to rule on Ahmadani’s ineffective-assistance claim.
III. CONCLUSION
We AFFIRM Defendants’ convictions, VACATE their sentences, and REMAND for
resentencing.
20
Further, Ahmadani’s ineffective-assistance claim based on his counsel’s “fail[ure] to make an appropriate
argument at sentencing relating to the amount of loss” is moot in light of our remand for resentencing.
-28-