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Date: 11-08-2021
Case Style:
United States of America v. Lillian Akwuba
Case Number: 19-12230
Judge: Charles R. Wilson
Court: IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
On appeal from The United States District Court
for the Middle District of Alabama
Plaintiff's Attorney: United States Attorney’s Office
Defendant's Attorney:
Description:
Atlanta, GA - Criminal defense lawyer represented defendant with a conspiring to commit and committing health care fraud charge.
Ms. Akwuba was convicted of issuing and conspiring to issue prescriptions
for controlled substances improperly, conspiring to commit health care fraud, and
committing health care fraud through her practice as a nurse practitioner (NP).1
Alabama law provides that an NP can prescribe controlled substances if the
NP obtains a Qualified Alabama Controlled Substance Certificate (QACSC) from
the Alabama Board of Medical Examiners (ABME). To obtain a QACSC, the
ABME requires NPs to have a collaborative agreement with a physician. During
1 Ms. Akwuba was also charged with money laundering and conspiracy to commit money
laundering, in violation of 18 U.S.C. §§ 1957, 1956(h). The jury found her not guilty of those
counts, and they are not at issue on appeal.
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3
the timeframe relevant to this case, Ms. Akwuba worked with four different
collaborative physicians: Dr. Sanchez, Dr. Jose Chung, Dr. John MacLennon, and
Dr. Viplove Senadhi. Dr. Sanchez was Ms. Akwuba’s collaborative physician
during her employment at his medical practice, Family Practice. Doctors Chung,
MacLennon, and Senadhi were Ms. Akwuba’s collaborative physicians at her own
primary care practice, Mercy Family. Dr. Sanchez pled guilty and was one of the
primary witnesses in the government’s case-in-chief. Doctors MacLennon and
Senadhi also testified as government witnesses. Dr. Chung was not called as a
witness by either party.
Most of the counts Ms. Akwuba faced pertain to the time she spent working
under Dr. Sanchez at Family Practice. Ms. Akwuba left Family Practice in March
2016, and one month later she formed her own medical practice, Mercy Family.
Some of the patients Ms. Akwuba saw at Family Practice followed her to Mercy
Family. Additional drug distribution counts relate to prescriptions she issued at
Mercy Family. The drug distribution and health care fraud counts were tied to
specific patients, the records of whom were presented at trial and formed the basis
of the expert testimony.
The government presented expert testimony from three doctors at trial: Dr.
Gary Kaufman, Dr. Robert Odell, and Dr. Gene Kennedy. Each doctor reviewed
files for specific patients—including each patient’s Prescription Drug Monitoring
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Program (PDMP) report2
—and testified to their conclusions based on those patient
files. Based on the documentation made available to them, the experts concluded
that the prescriptions were not issued for legitimate medical purposes. The doctors
repeatedly testified that there was nothing in the available records to support
diagnoses that would require controlled substances.
In response, Ms. Akwuba asserted an “incomplete records” defense.
Through her own testimony and the cross-examination of government witnesses,
she and her counsel raised issues regarding the patient files relied on by the expert
witnesses. As Ms. Akwuba explained to the court, “part of our defense is that these
records we’re relying on are incomplete. And these incomplete records thus form
the basis of the experts’ opinions.” Ms. Akwuba testified that she kept additional
handwritten paper records—triage sheets or “T-sheets”—which contained her
patient visit notes; if these notes were examined in addition to the electronic
records, she argued, the expert witnesses could have—and should have—reached a
different conclusion regarding the legitimacy of the prescriptions in question.
After 11 days of testimony, the counts were submitted to a jury and they
returned a verdict of guilty for: distribution of controlled substances in violation of
2 The PDMP is a database that records controlled substances that are dispensed in Alabama.
PDMP records reflect what substances were actually provided to the patient through pharmacies;
not just those that were prescribed. Providers can access their PDMP to see what substances a
patient has received previously and for a record of how many controlled substance prescriptions
all of their patients have filled.
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21 U.S.C. § 841(a)(1) (Counts 2–7, 9–11, 44–48, 50–53); conspiracy to distribute
controlled substances in violation of 21 U.S.C. § 846 (Count 1); health care fraud
in violation of 18 U.S.C. § 1347 (Counts 15, 17, 22, 24); and conspiracy to commit
health care fraud in violation of 18 U.S.C. § 1349 (Count 13). Ms. Akwuba’s
convictions under Counts 44–48 and 50–53, for distribution of controlled
substances, arise from her time operating Mercy Family. All remaining counts
pertain to her time spent at Family Practice. Ms. Akwuba was sentenced to 120
months’ imprisonment on each count, to run concurrently, followed by 3 years of
supervised release. Ms. Akwuba timely appealed.
DISCUSSION
I. Sufficiency of the Evidence
We begin with sufficiency of the evidence, because only if the evidence is
sufficient to support the jury’s guilty verdicts do we have to determine whether a
trial error requires reversal and remand for a new trial. See United States v. Mount,
161 F.3d 675, 678 (11th Cir. 1998); United States v. Fries, 725 F.3d 1286, 1290
n.4 (11th Cir. 2013).
We review a challenge to the sufficiency of the evidence de novo. United
States v. Hunt, 187 F.3d 1269, 1270 (11th Cir. 1999) (per curiam). A conviction is
supported by substantial evidence if, “after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
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essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,
443 U.S. 307, 318–19 (1979) (explaining that “this inquiry does not require a court
to ‘ask itself whether it believes that the evidence at the trial established guilt
beyond a reasonable doubt’”).
A. Distribution of Controlled Substances (Counts 2–7, 9–11, 44–48, 50–
53)
Ms. Akwuba argues that there was insufficient evidence to support her drug
distribution convictions because the government failed to present any evidence that
the patients to whom she prescribed the controlled substances did not actually need
them. According to Ms. Akwuba, because the government did not present
testimony from a single patient that they were seeking controlled substances
without medical need, the government failed to meet its burden of proof.
It is true that the government did not present evidence regarding the patients’
necessity, or lack thereof, for the prescriptions in question. However, the
government was not required to prove this as it is not an element of the offense.3
We addressed a similar argument in United States v. Ruan, where we sustained the
3 To convict Ms. Akwuba of distributing controlled substances in violation of § 841(a)(1), “the
prosecution must prove that [s]he dispensed controlled substances for other than legitimate
medical purposes in the usual course of professional practice, and that [s]he did so knowingly
and intentionally.” United States v. Joseph, 709 F.3d 1082, 1102 (11th Cir. 2013) (internal
quotation marks omitted). “[A] distribution is unlawful if 1) the prescription was not for a
legitimate medical purpose or 2) the prescription was not made in the usual course of
professional practice.” Id. (internal quotation marks omitted).
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defendant’s conviction and held that “even if [the patient] felt that she benefitted
from the medications [the medical professional] prescribed, a reasonable jury could
nonetheless conclude that the manner in which [the medical professional]
prescribed them was outside the usual course of professional practice.” 966 F.3d
1101, 1139 (11th Cir. 2020). Thus, the jury could convict Ms. Akwuba of the
charged offense, even without evidence that the patients did not need the controlled
substances she prescribed.
And the government did present sufficient evidence supporting each element
of the drug-distribution offense Ms. Akwuba was convicted of. For example, Dr.
Sanchez testified that the providers at Family Practice, including Ms. Akwuba,
would prescribe controlled substances to patients who did not need them. He also
testified that he questioned some of Ms. Akwuba’s prescriptions for controlled
substances because he thought she was prescribing patients medications at too high
a dosage but would approve them because he wanted to avoid an argument.
Additionally, Iesha Graham, Ms. Akwuba’s extern and assistant at Mercy Family,
testified that she would sometimes accompany Ms. Akwuba in the exam room
while she was seeing patients. Graham explained that patients would often ask for
prescription refills and that “nine times out of ten” they would ask for narcotics.
Graham would take notes during Ms. Akwuba’s exams, and she testified that in
many cases the patient would not “really have anything wrong with them” so there
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was not “enough information to support the prescriptions.” As a result, Ms.
Akwuba instructed her to go back and add information into records to justify the
prescriptions.
This evidence, taken together, is sufficient to support the jury’s verdict
convicting Ms. Akwuba of the drug-distribution counts. We leave that decision
undisturbed.
B. Conspiracy Charges (Counts 1 and 13)
As to the conspiracy to distribute controlled substances and conspiracy to
commit health care fraud counts, Ms. Akwuba argues that the evidence is
insufficient to sustain her convictions because there was no agreement between the
relevant parties.
To find Ms. Akwuba guilty of both of these offenses, the government was
required to prove that: (1) there was an agreement between two or more people to
distribute controlled substances in violation of 21 U.S.C. § 841(a)(1), or commit
health care fraud in violation of 18 U.S.C. § 1347; (2) Ms. Akwuba knew about the
agreement; and (3) she knowingly and voluntarily joined the agreement. United
States v. Azmat, 805 F.3d 1018, 1035 (11th Cir. 2015) (drug conspiracy); United
States v. Gonzalez, 834 F.3d 1206, 1214 (11th Cir. 2016) (health care fraud
conspiracy). For both conspiracy convictions, Ms. Akwuba was alleged to have
conspired with Dr. Sanchez to commit the substantive offenses.
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The evidence was sufficient to support the jury’s findings that Ms. Akwuba
conspired with Dr. Sanchez to distribute controlled substances and commit health
care fraud. The jury heard testimony that Ms. Akwuba and Dr. Sanchez worked
together to distribute controlled substances and that they directed patients to return
monthly to keep up billing. To give a few examples: Dr. Sanchez testified that he
pled guilty to drug distribution and health care fraud offenses, that Ms. Akwuba
assisted him in issuing controlled substance prescriptions to patients who did not
need them, and that Ms. Akwuba issued prescriptions to patients when she did not
have the legal authority to do so.
In addition to Dr. Sanchez, the jury listened to testimony from Ms. Akwuba
herself. Ms. Akwuba admitted to knowing that Family Practice billed insurance
companies for her work and that Dr. Sanchez instructed her on how to document
her billing. While she claimed ignorance about how the billing process worked
after she finished her notetaking, the jury heard all of this testimony and was free
to determine Ms. Akwuba’s and Dr. Sanchez’s credibility as witnesses and weigh
the evidence as it saw fit. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986) (explaining that “[c]redibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are jury functions”); see
also United States v. Tolliver, 665 F.2d 1005, 1007 (11th Cir. 1982) (per curiam)
(“This court may not assess the relative credibility of trial witnesses; that function
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is reserved for the trier of fact.”). “Moreover, a defendant can be convicted of
conspiracy even if his or her participation in the scheme is slight by comparison to
the actions of other co-conspirators.” United States v. Vernon, 723 F.3d 1234, 1273
(11th Cir. 2013) (internal quotation marks omitted and alteration adopted).
Viewing the evidence in the light most favorable to the government, and
leaving the jury “free to choose between or among the reasonable conclusions to be
drawn from the evidence,” United States v. Browne, 505 F.3d 1229, 1253 (11th
Cir. 2007), we find that sufficient evidence supports Ms. Akwuba’s conspiracy
convictions.
C. Health Care Fraud (Counts 15, 17, 22, 24)
Ms. Akwuba argues generally that the evidence was insufficient to sustain
her convictions for substantive health care fraud. A person is guilty of committing
health care fraud if, “in connection with the delivery of or payment for health care
benefits, items, or services,” she “knowingly and willfully executes” a scheme “(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.” 18
U.S.C. § 1347(a). In short, a defendant commits health care fraud when she
knowingly “submit[s] false claims to health care benefit programs.” See Ruan, 966
F.3d at 1142. “A person makes a false claim if the treatments that were billed were
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not medically necessary or were not delivered to the patients.” Id. (alteration
adopted and internal quotation marks omitted). Billing a health care benefit
program for office visits where controlled substances were illegally prescribed is
one way to commit health care fraud in violation of § 1347. See id. at 1143–44.
As an initial matter, the government concedes, and we agree, that the
evidence was insufficient for Count 24. This is because Indian Nat Insurance—an
entity not named in the indictment—was billed for the prescriptions pertaining to
this count.
Our review of the trial record satisfies us that the government introduced
sufficient evidence to support Ms. Akwuba’s convictions on the remaining three
health care fraud counts. As an initial matter, there was evidence that Ms. Akwuba
knew that Family Practice submitted claims to health care benefit programs. The
parties stipulated that:
During the periods alleged in counts 15 and 17, the billing
department of Family Practice submitted claims to the health care
benefit programs described in those counts for office visits involving
the patients identified in those counts.
Defendant Lilian [sic] Akwuba was aware that those claims were
submitted and participated in the submission of those claims by
performing the office visits and making or causing to be made
appropriate documentation in medical records that would be used by
the billing department employees. The health care program
subsequently paid the submitted claims as alleged in the indictment.
During the periods alleged in the indictment, the rules and policies
of the health care benefit programs described in counts 15 and 17 did
not allow for those programs to pay health care providers for medically
unnecessary services, including medically unnecessary office visits.
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In addition to the stipulation, evidence showed that Ms. Akwuba knew
claims were being submitted to those benefit programs for prescriptions that were
not medically necessary. Government expert witness Dr. O’Dell testified that he
had reviewed the files, including the controlled substances prescribed, for the
patients covered by Counts 15 and 17. After reviewing the files, he concluded that
the prescriptions for controlled substances issued to those patients by Ms. Akwuba
were not justified by the medical records and not medically legitimate. And Dr.
Sanchez testified that the providers at Family Practice, including Ms. Akwuba,
would prescribe controlled substances to patients who did not need them. This
testimony, along with the parties’ stipulation, is enough to support Ms. Akwuba’s
convictions for Counts 15 and 17.
As to Count 22, the evidence is sufficient to support the jury’s finding that
Ms. Akwuba caused a false claim to be submitted for a prescription. The parties
stipulated that Ms. Akwuba saw a patient who ultimately received prescriptions for
two controlled substances. Again, Dr. O’Dell testified that he reviewed the
patient’s entire file, including the controlled substances prescribed, and concluded
that the prescriptions were not medically legitimate. And the relevant PDMP report
indicates that Dr. Sanchez wrote, and the patient filled, prescriptions for both
medications, which Medicare paid for.
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This evidence, taken together with Dr. Sanchez’s testimony that he often
signed off on prescriptions for patients Ms. Akwuba saw without ever seeing the
patients himself, is sufficient to support the jury’s conclusion that Ms. Akwuba
caused the submission of a false claim to a health care benefit program. Sufficient
evidence therefore supports Ms. Akwuba’s conviction for Count 22
Outcome: To conclude, with the exception of Count 24, we find that sufficient
evidence supports all of Ms. Akwuba’s convictions. We accordingly affirm her
convictions for distributing controlled substances (Counts 2–7, 9–11, 44–48, 50–
53), conspiring to distribute controlled substances (Count 1), committing health
care fraud (Counts 15, 17, 22), and conspiring to commit health care fraud (Count
13). We reverse her conviction for Count 24.
Plaintiff's Experts:
Defendant's Experts:
Comments: