United States v. Adeline Ekwebelem

MEMORANDUM

Adeline Ekwebelem appeals her conviction and sentence for one count of conspiracy to commit health care fraud, twelve counts of health care fraud, and three counts of illegal remunerations for health care referrals. We have jurisdiction under 28 U.S.C. § 1291 . We affirm.

1. The trial court did not err in holding that the “bona fide employment relationship” safe harbor described in 42 U.S.C. § 1320a-7b(b)(2)-(3) is an affirmative defense. The safe harbors are not mandatory for legal compliance but rather describe certain per se legal activities. A contrary holding would lead to absurd indictments requiring the government to plead the negative of every enumerated safe harbor, even if it bore no connection to the facts. Furthermore, even if the trial court erred in instructing the jury, any such error was harmless because the evidence at trial established beyond a reasonable doubt that the marketers whom Ekwebelem hired were independent contractors and thus fell outside the safe harbor.

2. The trial court did not plainly err in accepting the government’s proffered race-neutral reasons for striking Juror No. 3. First, it was not unreasonable for the prosecution to…