United States v. Elseddig Musa ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 1 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10174
Plaintiff-Appellee,
D.C. No.
v. 2:15-cr-01265-DLR-1
ELSEDDIG ELMARIOUD MUSA,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Submitted July 12, 2018**
San Francisco, California
Before: GRABER and HURWITZ, Circuit Judges, and LEMELLE,*** Senior
District Judge.
Elseddig Musa appeals his convictions and sentence for health care fraud
and aggravated identity theft in violation of 18 U.S.C. §§ 1349 and 1028A. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Ivan L.R. Lemelle, Senior United States District Judge
for the Eastern District of Louisiana, sitting by designation.
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have jurisdiction under 28 U.S.C. § 1291. We affirm Musa’s convictions, vacate
his sentence, and remand for resentencing.
Musa operated a company that provided non-emergency medical
transportation for members of Arizona’s Medicaid program, the Arizona Health
Care Cost Containment System (AHCCCS). When Musa’s company provided
transportation to an AHCCCS member, Musa submitted a reimbursement claim
containing the member’s AHCCCS identification number. After August 2013,
Musa was also required to submit a standardized trip form with each claim.
An AHCCCS audit revealed that Musa had submitted a large number of
“unmatched” claims. A claim is “unmatched” if there is no corresponding claim
for a medical service, such as a doctor’s appointment, for the member on the day of
transportation. Musa was ultimately indicted on 35 counts of health care fraud for
submitting claims for “medical transports that never occurred” and four counts of
aggravated identity theft for using AHCCCS identification numbers in the
commission of health care fraud.
1. The district court did not plainly err in denying Musa’s motion for
acquittal. Musa argues that the Government offered insufficient evidence of his
knowing fraud against AHCCCS. The evidence showed that Musa had no
documentation for the 35 reimbursement claims charged in the indictment, could
point to no evidence these claims were legitimate, conceded he submitted claims
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for more transports than his company could have provided, and the volume of
Musa’s claims fell after AHCCCS required more stringent documentation. Musa
also testified that he knowingly submitted inaccurate claims.
Viewing this evidence in the light most favorable to the prosecution, see
United States v. Nevils, 598 F.3d 1158, 1163-64 (9th Cir. 2010) (en banc), a
rational trier of fact could reasonably infer that Musa knowingly defrauded
AHCCCS, see United States v. Sullivan, 522 F.3d 967, 974 (9th Cir. 2008) (per
curiam). Because there was sufficient evidence that Musa used AHCCCS
identification numbers to commit health care fraud, there was also sufficient
evidence that Musa used the identification numbers without lawful authority. See
United States v. Osuna-Alvarez, 788 F.3d 1183, 1185-86 (9th Cir. 2015) (per
curiam).
2. The district court did not abuse its discretion in denying Musa’s motion
for a new trial. The district court heard the evidence and evaluated the credibility
of the witnesses who testified (including Musa himself). The record supports the
district court’s conclusion; this is not “an exceptional case in which the evidence
weighs heavily against the verdict.” United States v. Merriweather, 777 F.2d 503,
507 (9th Cir. 1985).
3. We do not address Musa’s ineffective assistance of counsel claim
because the record is not sufficiently developed for direct review. See United
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States v. Moreland, 622 F.3d 1147, 1157-58 (9th Cir. 2010).
4. In sentencing, the district court calculated a $1.2 million loss was caused
by Musa’s crimes, based on Government data regarding the value of over 15,000
“unmatched” claims. Musa objected and argued that not all “unmatched” claims
were necessarily fraudulent. A district court “need only make a reasonable
estimate of the loss based on the available information.” United States v. Walter-
Eze, 869 F.3d 891, 912 (9th Cir. 2017) (internal quotation marks omitted). But,
while a “district court can certainly rely on a government estimate,” the court has
an “obligation to ensure the information underlying the estimate possesses
sufficient indicia of reliability to support its probable accuracy.” United States v.
Garcia-Sanchez, 189 F.3d 1143, 1149 (9th Cir. 1999) (internal quotation marks
omitted).
Trial testimony supports Musa’s argument that “unmatched” claims are not
always fraudulent, as the Government acknowledges in its briefing on appeal.
Musa’s argument also finds support in the Government’s data for trips after August
2013, which appear to show “unmatched” claims even when Musa included
required documentation and when the number of claims was generally consistent
with Musa’s trip reports and daily schedules.
In light of this evidence, the record does not adequately demonstrate that
relying entirely on the amount of “unmatched claims” was a sufficiently reliable
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method of estimating loss. See Garcia-Sanchez, 189 F.3d at 1148-50; United
States v. Chase, 499 F.3d 1061, 1070-71 (9th Cir. 2007). We remand for the
district court to determine whether review of the trip reports and daily schedules is
a more accurate method of calculating loss; if the court concludes that it is not, it
may again base the loss calculation on the value of unmatched claims. See United
States v. Scrivener, 189 F.3d 944, 949-50 (9th Cir. 1999); see also U.S.S.G.
§ 2B1.1 cmt. n.3(C). On remand, the district court must find the loss by clear and
convincing evidence if the loss has a disproportionate effect on Musa’s sentence.
See United States v. Hymas, 780 F.3d 1285, 1289-93 (9th Cir. 2015). The loss
should not be reduced by the value of forfeited property because forfeiture was
ordered after Musa’s fraud was discovered. See United States v. Stoddard, 150
F.3d 1140, 1146 (9th Cir. 1998); see also U.S.S.G. § 2B1.1 cmt. n.3(E)(i).
Convictions AFFIRMED, sentence VACATED, REMANDED.
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