United States v. Mahbub

818 F.3d 213

UNITED STATES of America, Plaintiff–Appellee,

v.Nabila MAHBUB, Defendant–Appellant.

No. 14–1499.

United States Court of Appeals, Sixth Circuit.

Argued: June 9, 2015.

Decided and Filed: March 29, 2016.

ARGUED:Elizabeth L. Jacobs, Detroit, Michigan, for Appellant. Stephanie M. Gorgon, Office of the United States Attorney's Office, Detroit, Michigan, for Appellee. ON BRIEF:Elizabeth L. Jacobs, Detroit, Michigan, for Appellant. Stephanie M. Gorgon, Office of the United States Attorney's Office, Detroit, Michigan, for Appellee.

Before: KEITH, CLAY, and STRANCH, Circuit Judges.

OPINION

DAMON J. KEITH, Circuit Judge.

A jury convicted Nabila Mahbub of conspiring to commit healthcare fraud under 18 U.S.C. § 1349. The district court sentenced Mahbub to a below-guidelines range sentence of forty-six months in prison. Mahbub timely appealed. On appeal, Mahbub contends the following: (1) the district court erred in denying Mahbub's challenge under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) ; (2) the district court erred in using the Sixth Circuit pattern jury instruction regarding the criminal conspiracy claim; (3) Mahbub's trial counsel rendered ineffective assistance of counsel for failing to object to the jury instruction; and (4) Mahbub's sentence was substantively unreasonable.

Because the district court erred in denying Mahbub's Batson challenge, we REMAND the case to the district court for further proceedings, but AFFIRM the district court in all other respects.

I. FACTUAL BACKGROUND

At trial, the government's theory of the case, in relevant part, was as follows: All American Home Care, Inc. ("All American") was a health agency that purportedly provided a range of therapy-related services at the homes of patients. R. 716 at 7314. All American was a Medicare¹ provider that submitted claims directly to Medicare. Id. Mahbub was an office manager at All American, which meant that she would assist in managing the day-to-day operations at All American. Id. at 7315, 7317. All American submitted claims to Medicare for the cost of various therapy services that were medically unnecessary and not provided. Id. at 7317. According to the government, Mahbub specifically created, fabricated and falsified medical and billing documents. Id. at 7318. This was done to facilitate the commencement of home health services purportedly provided by therapy assistants working for All American. Id. at 7318–19. The parties stipulated that All American was paid $5,809,435.74 by Medicare for home-health services between September 2008 and November 2009. R. 717 at 7606.

In 2012, Mahbub, along with other individuals, was indicted for her participation in this fraudulent scheme. R. 451. In 2013, a jury convicted Mahbub of conspiracy to commit healthcare fraud under 18 U.S.C. § 1349, R. 568, and Mahbub was sentenced to forty-six months in prison, R. 682.

The following facts are relevant to this appeal.

a. Voir Dire.

During voir dire,² the government asked Mr. Syed, a prospective juror, questions related to the responses he had provided in a questionnaire.³ R. 716 at 7339. For example, the government asked Mr. Syed whether he had seen Southeast Asians⁴ "charged [with committing crimes] in [certain] news stories." Id. at 7340.⁵ The government also asked him whether he felt like the "South[ ]Asian" community was being "unfairly targeted." Id. The exchange continued as follows:

THE GOVERNMENT: Do you feel like the Government has unfairly targeted the

[S]outh[ ] Asian community in any way?

MR. SYED: No. I feel like they did it, that's why.

THE GOVERNMENT: So—

MR. SYED: If they commit the fraud, so they were charged with it.

THE GOVERNMENT: So you don't feel like it is unfair to focus on the—

MR. SYED: I wouldn't say it is unfair. It's fair.

Id. at 7340–41.

Defense counsel then proceeded to ask Mr. Syed questions. Defense counsel asked Mr. Syed to explain what the hijab was. Id. at 7341. The hijab, Mr. Syed explained, is a headscarf that Muslim women don. Id. Defense counsel asked him whether the hijab made him feel a certain way. Id. at 7342. Mr. Syed replied:

Yes, in a good way, or I respect to her. Like, I'm more—just because I'm from that culture and I myself as a Muslim and my sister also wears the hijab and she is just more respectful.

Id.

Later, defense counsel presented a factual scenario to the prospective jurors. Id. at 7345–46. In that scenario, defense counsel expressed his concern that his daughter might "end up working at a clinic, someplace where they don't do things right and she might get caught up in something that ends her up in a place like ... where Ms. Mahbub is sitting." Id. While discussing the scenario, defense counsel noticed Mr. Syed shake his head in agreement. Id. at 7346. Defense counsel asked Mr. Syed whether he had the same concern for his children or his family. Id. Mr. Syed replied in the affirmative. Id. Defense counsel asked him to elaborate on his response, and Mr. Syed replied as follows:

A: I—as you said, do you want your daughter to work at a place where these kinds of things happen, and oh, there might be a reason that they—where I been there and were you aware of depending on the person and the position.

Id.

When defense counsel repeated the hypothetical question to the other prospective jurors, he noticed that another prospective juror shook her head. Id. That juror, Ms. Brown, expressed the following:

A: Yes. I wouldn't want them to be in a position where they feel they can't, you know, get out of it if they find out there is something going on. That it should be, you know, but because of authority over them or because they need the job or, you know, they feel they have to stay.

....

A: Sometimes you feel like you don't have a voice. You need the job. You don't want to say anything because you don't want to lose the job or anything like that, so somebody—you know, you might go along with it or, you know, look past it or, you know, not speak up or anything.

Id. at 7347–48.

Later, the government asked Ms. Brown a follow-up question:

Q: Finally, I want to turn to Ms. Brown in seat 1.... I think you said that it became—that sometimes younger people get caught in sticky situations and don't know how to get out, am I characterizing it?

A: Not just younger people.

Q: But folks generally.

A: Yes.

Q: And does that make you want to give a pass to people in certain situations? Well, you might say, this is—well, they got caught up, or let's say it is the first time someone has done something wrong, are you willing to give them a pass, maybe they didn't know how to get out of it or are you going to go by weighing the evidence?

A: I have to weigh the evidence.

Id. at 7378–79. The prosecutor did not ask Mr. Syed the same follow-up question.

i. Mahbub raises a Batson challenge.

The government peremptorily challenged two jurors, one of whom was Mr. Syed. A peremptory challenge is "[o]ne of a party's limited number of challenges that do not need to be supported by a reason unless the opposing party makes a prima facie showing that the challenge was used to discriminate on the basis of race, ethnicity, or sex." Black's Law Dictionary (10th ed.2014).⁶ Mahbub made a Batson challenge as to Mr. Syed, explaining "I believe there are only two that I can identify as potential Muslims" in the entire jury pool, "maybe only one, and [Mr. Syed] is one obviously." R. 716 at 7399. Specifically, "[t]o excuse the only Muslim on a panel, and only one of two, leaves ... Mahbub facing a trial without having any juror of her peers here." Id. According to defense counsel, "excusing the only Muslim on the panel, possibly the only one in this array, is a matter to make sure that a Muslim doesn't get on the jury, which is improper under Batson. " Id. at 7400.

In response, the government indicated that there is "factually no basis that the [g]overnment is trying to eliminate all Muslim[s] or South Asians from the jury." Id. at 7401. The government also interpreted Mahbub's challenge as one challenging the makeup of the jury pool, and indicated that the "jury pool is drawn from people registered in the state[,] and it is a randomly selected pool of people." Id. at 7400. Thus, according to the government, "there is [no] basis to conclude that somehow the pool was rigged." Id.

After hearing the government's explanation, the district court clarified that it expected the government to proffer a "non-discriminatory" explanation for excusing Mr. Syed. Id. at 7401. The government responded as follows:

[T]he reason was that I felt uncomfortable with his answer to whether or not he would be able to—there is some discomfort if someone was younger whether or not he would have difficulty seeing them, being able to fairly evaluate them. And also, he indicated that, and I think along the lines of the question I asked Ms. Brown as well as the fact that ... sometimes people get in situations they can't get themselves out of ... and ... he viewed sometimes defendants in those situations through the person and family members[,] and he expressed some discomfort with respect to the notion of judging it. That was the basis.

Id. at 7401–02.

Defense counsel responded that the government's reason was "disingenuous" because Mr. Syed indicated in his questionnaire that "if a younger person defrauded Medicare no matter what age that the person is, they should be punished." Id. at 7402. Defense counsel then conceded that a "recent Sixth Circuit case that upheld the jury wheel in the Eastern District [of Michigan]" foreclosed him from challenging the jury pool. Id. at 7403. Even so, defense counsel further pressed that such a random draw "cannot accurately reflect the ethnic makeup of the population...." Id.

Before ruling, the district court summarized the government's reasons for excusing Mr. Syed was his apparent "discomfort with the answer to the question about a younger person and a person not being able to get out of the situation they're in." Id. at 7404. The government confirmed...