United States v. Kennedy Igbokwe ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-1513
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United States of America, *
*
Plaintiff - Appellee, *
*
v. * Appeal from the United States
* District Court for the Western
* District of Missouri.
Kennedy Igbokwe, *
*
Defendant - Appellant. *
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Submitted: January 16, 2008
Filed: March 3, 2008
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Before LOKEN, Chief Judge, MURPHY, Circuit Judge, and JARVEY,1 District
Judge.
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MURPHY, Circuit Judge.
Kennedy Igbokwe was convicted in the district court2 of one count of health
care fraud in violation of 18 U.S.C. § 1347, nineteen counts of currency structuring
1
The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa, sitting by designation.
2
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri, presiding.
in violation of 31 U.S.C. § 5324, and four counts of money laundering in violation of
18 U.S.C. § 1957. He was sentenced to a prison term of 63 months. Igbokwe appeals,
attacking his convictions for health care fraud and money laundering on the basis of
insufficient evidence and his sentence on the basis that the district court erred in
calculating the loss for his health care fraud conviction. We affirm.
Igbokwe solely owned, controlled, and operated Cardinal Healthcare, Inc., a
durable medical equipment supply company, through which he defrauded Medicare
by billing it for expensive power wheelchairs while providing substantially cheaper
motorized scooters to beneficiaries. The evidence established that such "upcoding"
occurred in 129 separate instances, causing Medicare to lose $2,200 on each
wheelchair and a total of $283,800. With the help of two physician codefendants,
Igbokwe also submitted fraudulent certificates of medical necessity to Medicare for
individuals who often did not qualify for any type of wheelchair or scooter. Igbokwe's
codefendants admitted in their guilty pleas that at least half of the 423 claims
submitted by Cardinal Healthcare, which totaled more than $2.5 million, were based
on fraudulent certificates of medical necessity, producing an intended loss of more
than $1.25 million. Since Medicare paid Cardinal Healthcare over $1.5 million for
power wheelchair claims, the district court consequently imposed a restitution order
of $750,000 for actual loss. The funds received from Medicare were deposited into
Cardinal Healthcare bank accounts under Igbokwe’s exclusive control, from which
he initiated wire transfers with amounts exceeding $10,000 on four occasions; these
wire transfers were the basis for his money laundering convictions. Igbokwe also
engaged in currency structuring by withdrawing cash amounts of less than $10,000
nineteen times in an attempt to circumvent currency transaction reporting
requirements.
Igbokwe argues on appeal that his convictions for health care fraud and money
laundering were not supported by sufficient evidence. We review de novo whether
the evidence was sufficient to justify Igbokwe's convictions and draw all reasonable
inferences in the light most favorable to the verdict. See United States v. Spears, 454
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F.3d 830, 832 (8th Cir. 2006). To prove the health care fraud charges, the government
produced evidence showing that Medicare reimbursed Cardinal Healthcare for the
expensive power wheelchairs even though the beneficiaries only received scooters.
Witness testimony described fraudulent efforts by Igbokwe such as "recruiting"
beneficiaries and established that significant funds deposited into Cardinal
Healthcare's checking account were withdrawn as untraceable cash. Evidence in
support of his money laundering conviction showed that Igbokwe knowingly made
wire transfers of more than $10,000, based on funds Cardinal Healthcare had
fraudulently received from Medicare for power wheelchairs. In light of all the
evidence, it was not unreasonable for the jury to find Igbokwe guilty of health care
fraud and money laundering. See United States v. Jara, 474 F.3d 1018, 1021 (8th Cir.
2007) (verdict may only be reversed on appeal if no reasonable jury could have found
the accused guilty).
Igbokwe also submits that the district court incorrectly calculated the loss for
the health care fraud conviction. We apply de novo review to the district court's
application of the federal sentencing guidelines. United States v. Mashek, 406 F.3d
1012, 1016 (8th Cir. 2005). The district court adopted the presentencing report and
grouped the health care fraud, money laundering, and currency structuring convictions
under U.S.S.G. § 3D1.2(d). The currency structuring convictions were assigned
offense level 24, exceeding the offense levels for the other counts, which became
irrelevant for sentencing calculation purposes under the grouping rules. See United
States v. Mooney, 425 F.3d 1093, 1097-98 (8th Cir. 2005) (en banc) (count producing
highest offense level establishes offense level for group); see also U.S.S.G. § 3D1.3.
With his criminal history category I, Igbokwe's resulting guideline range for offense
level 24 was 51-63 months. His sentence of 63 months was within that range.
Igbokwe's argument that the district court erred in arriving at the loss amount
on the health care fraud conviction is unavailing. Because his sentence was based on
Igbokwe's currency structuring conviction under the guideline grouping rules rather
than on his health care fraud conviction, any error in calculating the loss for the health
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care fraud conviction would have been harmless. See United States v. Watkins, 486
F.3d 458, 470 (8th Cir. 2007), vacated on other grounds by --- S.Ct.---, 2008 WL
59282 (allegedly erroneous sentencing computation that has no effect on defendant's
sentence is moot).
Accordingly, we affirm the judgment of the district court.
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