933 F.3d 302

United States Court of Appeals, Fourth Circuit.

United States v. Oloyede

|

Decided: July 31, 2019

Opinion

Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge King and Judge Wynn joined.

NIEMEYER, Circuit Judge:

The four defendants in these appeals, who were charged as participants in a conspiracy that involved numerous others, were tried together and convicted of conspiracy to commit wire fraud and related offenses based on an extensive online dating fraud scheme that induced elderly victims to transfer money to the defendants’ bank accounts based on postured romantic relationships. The district court found that the defendants obtained over $2 million in this manner and sentenced the four defendants variously from 18 months’ to 234 months’ imprisonment. From the judgments against them, the defendants filed these appeals raising numerous pretrial, trial, and sentencing issues — most significantly, an issue relating to a pretrial motion to suppress and an issue relating to the government’s use at trial of charts offered under Rule of Evidence 1006. After considering all of the issues raised, we affirm.

I

In May 2015, a grand jury indicted 10 individuals, including the four defendants in these appeals — Gbenga Benson Ogundele; his wife, Mojisola Tinuola Popoola; her brother, Babatunde Emmanuel Popoola; and Victor Oyewumi Oloyede — for their participation in a widespread online dating fraud scheme that resulted in numerous elderly victims suffering substantial financial losses. According to the indictment, from 2011 through 2015, coconspirators initiated sham romantic relationships with at least 17 elderly victims throughout the country by searching online dating websites and then used fraudulent representations to convince the victims to transfer money to bank accounts controlled by the defendants. The defendants were charged with transferring this money through various facilities to promote the conspiracy and to hide the nature and source of the funds. Based on these allegations, the indictment charged all defendants with conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349, and conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h). In addition, it charged Ogundele, Babatunde, and Oloyede with aggravated identify theft, in violation of 18 U.S.C. § 1028A. The district court scheduled two separate trials for the 10 indicted defendants, and the government’s case against Ogundele, Mojisola, Babatunde, and Oloyede proceeded to trial first, beginning in October 2016.

At trial, the government’s evidence included testimony from 11 victims of the fraud scheme, as well as a daughter of a victim who had recently died. The victims testified as to how they had formed what they thought were meaningful long-distance relationships with a person they met online and had eventually transferred significant sums of money for various reasons as requested by the person, only to realize later that they had been defrauded. These victims’ testimony showed that, between November 2012 and April 2014, five of them sent a total of approximately $140,000 to two business bank accounts controlled by Ogundele; that, during a six-month period in 2012, five of them sent a total of $138,000 to two bank accounts controlled by Oloyede, with all but $3,000 of that going to a single business account; and that, in July 2014, one victim deposited $5,000 in cash into an account in the name of Mojisola, who then promptly wrote a check for the same amount to a company controlled by her husband, Ogundele. In addition, the government’s evidence showed that some of this and other money was transferred to accounts controlled by Babatunde. For instance, on the same day in October 2012 that one victim deposited $20,000 into Oloyede’s business account, $10,000 was transferred from that account to an account that Babatunde controlled but was in the name of one of his sisters.

The government also presented testimony from employees of Bank of America, Capital One, and Wells Fargo regarding activity in approximately a dozen of the defendants’ bank accounts, almost all of which had been closed by the banks during the course of the conspiracy. Bank records not only showed numerous wire transfers and cash deposits from the victims who testified but also showed other suspicious large cash deposits made from States throughout the country. For example, bank records from Mojisola’s Bank of America account, which had been closed in August 2014, showed that it had received significant cash deposits or teller transfers from persons in Florida, North Carolina, Georgia, Michigan, and Tennessee and that the funds were then quickly withdrawn or transferred. The records also showed that Mojisola’s account received several large wire transfers in 2011 from her half-brother, Mukhtar Haruna — a Nigerian national and resident who was indicted with the others but never arraigned. These funds were then transferred into an account controlled by Mojisola’s husband, Ogundele.

Finally, the government presented testimony from numerous FBI agents about evidence recovered from search warrants of the defendants’ homes, phones, and email accounts. FBI agents also testified to post-arrest statements made by Ogundele, Oloyede, and Babatunde. And an FBI forensic accountant created charts detailing certain activity in the defendants’ bank accounts from 2011 through 2014 and presented those charts to the jury at trial.

After the government rested and the district court denied the defendants’ motions for judgment of acquittal, the defendants called a number of witnesses, and Oloyede and Babatunde both testified in their own defense. Generally, their theory of the case was that Haruna had made them believe that the money coming into their bank accounts was to purchase cars for export to Nigeria, thus blaming Haruna for the entire scheme. They also placed blame on Ogundele.

The jury convicted all four defendants on all counts, and the district court thereafter sentenced Ogundele and Oloyede each to 234 months’ imprisonment, Babatunde to 144 months’ imprisonment, and Mojisola to 18 months’ imprisonment.

From the judgments entered against them, the defendants filed these appeals, which we then consolidated.

…

III

Several defendants contend that the district court abused its discretion in admitting into evidence under Federal Rule of Evidence 1006 a series of charts detailing selected deposits made into their bank accounts. Ogundele and Oloyede note that the charts included deposits related to a “subjective list” of suspected victims and represented an “editorialized subsection of transactions.” They also maintain that many of the charts’ entries, including those reflecting many of the cash deposits, were never proven to be related to fraudulent activity, but that admitting the charts into evidence implied that every entry was fraudulent. Babatunde contends that the chart relating to his bank account was erroneously admitted because there was no direct evidence that the account was connected to fraudulent activity.

In creating the charts introduced against Ogundele and Oloyede, FBI Forensic Accountant David Rutledge included selected deposits that had been made into the bank accounts consistent with the government’s theory of which deposits were tied to illegal activity. For example, with respect to Ogundele’s accounts, while Rutledge included all cash deposits and all ATM deposits to the extent that bank records did not identify whether it was a cash or check deposit, he included wire transfers only to the extent that the bank statement identified the name of the sender and that name was on a list provided to him by the case agent. Similarly, he included check deposits only to the extent that the check was written by an individual on the list and out-of-state teller transfers only to the extent that a receipt associated with the transfer was included as an attachment in a batch of emails that Rutledge was provided.

We agree with Ogundele and Oloyede that the charts relating to their accounts failed to comport with Rule of Evidence 1006 because of their selectivity. They did not fully represent the accounts that they were purportedly summarizing. Rule 1006 provides:

The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.

Fed. R. Evid. 1006 (emphasis added). This rule authorizes the admission of charts into evidence that serve “as a surrogate for underlying voluminous records that would otherwise be admissible into evidence,” thereby “reduc[ing] the volume of written documents that are introduced into evidence.” United States v. Janati, 374 F.3d 263, 272 (4th Cir. 2004) (emphasis added). Stated otherwise, “the chart itself is admitted as evidence in order to give the jury evidence of the underlying documents,” id. at 273, and therefore it must be an objectively accurate summarization of the underlying documents, not a skewed selection of some of the documents to further the proponent’s theory of the case, see id. at 272. “In this respect, Rule 1006 summary charts are distinguishable from other charts and summaries that may be presented under Federal Rule of Evidence 611(a) to facilitate the presentation and comprehension of evidence already in the record.” Id. (emphasis added). Rule 611(a) charts are not evidence themselves; they are used “merely to aid the jury in its understanding of the evidence that has already been admitted,” by, for example, “reveal[ing] inferences drawn in a way that would assist the jury.” Id.

It is apparent that the government in this case was not using the charts as surrogate evidence offered in lieu of voluminous underlying bank records, but rather was seeking to help the jury understand how various related records demonstrated a pattern of suspicious activity engaged in by the defendants. Thus, while the charts could have been shown to the jury under Rule 611(a), it was improper to have admitted them into evidence under Rule 1006. Nonetheless, in the circumstances of this case, we are confident that the error did not affect the defendants’ substantial rights, particularly as the same information in the same form could have been shown to the jury under Rule 611(a).

But Ogundele and Oloyede argue further that their right to a fair trial was prejudiced because the government cherry-picked individual records, unfairly spinning the facts. This argument, however, ignores the role of a trial, where each side selects the evidence to be presented to the jury. Each side can challenge facts and respond to the other’s facts. In this case, in creating the charts, the government applied criteria to help present its theory of the case, and those criteria were clearly detailed to the jury. The defendants were thus free to cross-examine the government’s witnesses about the soundness of the selection, just as if the charts had been shown to the jury under Rule 611(a).

Babatunde contends with respect to the chart admitted under Rule 1006 for his bank account that, even though the chart did summarize all non-payroll deposits involving more than $1,000, the admission was erroneous because there was no direct evidence that the particular bank account represented by the chart was connected to fraudulent activity. But that objection goes to the relevance of the underlying bank records — not to any requirement for admission of a chart under Rule 1006 — and those records were clearly relevant to the alleged money laundering activities and Babatunde’s involvement in them.

…

V

Each defendant has raised challenges to evidentiary rulings made by the district court during the course of trial. Of course, it is well established that the district court, as a trial court, has broad discretion to admit evidence in the management of a trial, and we will overrule the district court’s evidentiary rulings only when the court has abused its broad discretion to the prejudice of a party.

A

First, Mojisola, Babatunde, and Ogundele contend that the district court abused its discretion in admitting inculpatory portions of a post-arrest statement given by Ogundele while excluding, as untrustworthy hearsay, other portions, including statements tending to exculpate Mojisola and Babatunde.

After being arrested and read his Miranda rights, Ogundele agreed to be interviewed by Special Agent Custer. In his statement, Ogundele said that he ran a used car business and admitted that he used his business accounts to move money from the United States to Nigeria, working with Haruna, his brother-in-law in Nigeria, to do so. When shown a statement for one of his business bank accounts that reflected wire transfers from various victims, he admitted that he did not always know the people who were putting money into his account but stated that he believed they were exploring business opportunities in Nigeria. After making those statements against his interests, Ogundele also made statements to exculpate Babatunde and Mojisola. He said, “Babatunde Popoola does not help him with the business at all.” Similarly, he said that his wife, Mojisola Popoola, was “not involved in the business at all,” but acknowledged that after one of his accounts had been closed, she had “accepted deposits into her account at [his] direction.” Nonetheless, he reiterated that she “does not know anything about the business and [that] no one calls or contacts [her] to deal with the business.”

At trial, the district court, applying Federal Rule of Evidence 801(d)(2)(A), allowed the government to introduce into evidence portions of the statement made by Ogundele but excluded, as untrustworthy hearsay, the portions in which Ogundele exculpated Babatunde and Mojisola. In finding the exculpatory hearsay portions not sufficiently trustworthy to be admitted, the court explained that Ogundele was motivated “to shift blame away from” his wife and her brother “and onto himself.” The court also noted “the nature and strength of the government’s proffered evidence.” The court rejected the defendants’ argument that the hearsay portions should be admitted under Rule 106, the “rule of completeness,” noting that that rule only applies to written or recorded statements and that, in any event, it could not be used to overrule explicit hearsay rules.

Mojisola now contends that the court abused its discretion, arguing that the portion of the statement made by her husband about her accepting deposits into her account at his direction rendered the entire exculpatory portion admissible under Rule 804(b)(3) as a statement against Ogundele’s interest. Alternatively, she invokes Rule 807’s residual exception, which requires “equivalent circumstantial guarantees of trustworthiness.” While Rule 804(b)(3) does, as a general matter, provide a hearsay exception for statements made against one’s interest, the particular portion of Ogundele’s statement that Mojisola seeks to admit barely included any self-inculpatory material and was directed mostly to shifting responsibility away from his wife. Thus, we conclude that the district court did not abuse its discretion in relying on Ogundele’s motive for exculpating his wife to find this portion of the statement untrustworthy. See Williamson v. United States, 512 U.S. 594, 600–01, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994) (holding that Rule 804(b)(3) “does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory”); United States v. Dargan, 738 F.3d 643, 650 (4th Cir. 2013) (identifying factors to assess trustworthiness).

Ogundele and Babatunde also contend that the district court abused its discretion by not applying a common law rule of completeness to admit Ogundele’s entire post-arrest statement. While they recognize that Rule 106 applies only to writings and recorded statements, they maintain that there is a “still-viable common law on the rule of completeness” that should have allowed the entire statement to come in. While we doubt that a residual common law rule of completeness survives Rule 106’s codification, we hold that any such common law rule cannot be used to justify the admission of inadmissible hearsay. See Fed. R. Evid. 802 (“Hearsay is not admissible unless any of the following provides otherwise: a federal statute; these rules; or other rules prescribed by the Supreme Court”).

Accordingly, we conclude that the district court did not abuse its discretion in allowing the government to introduce only portions of Ogundele’s post-arrest statement.

…

* * *

For the foregoing reasons, we affirm the judgments of the district court.

AFFIRMED

2019 WL 5561389

UNITED STATES of America, Plaintiff-Appellee,

v.

Editha MANZANO, Defendant-Appellant.

Case No. 18-2318

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FILED October 29, 2019

Opinion

MURPHY, Circuit Judge.

Most home health agencies perform a valuable function. They provide nursing or therapy services to homebound patients at their homes, thereby relieving the patients of the burden to travel to medical facilities for care. In this case, however, Editha Manzano operated her home health agency, Anointed Care Services, for a different purpose—to defraud Medicare. She asserts various constitutional and evidentiary challenges to her fraud convictions. We affirm.

I.

The federal Medicare program pays medical providers for “home health services,” which include skilled nursing, physical therapy, occupational therapy, and speech and language pathology services. These home health services are more labor-intensive than similar services provided in medical facilities, so the Medicare program typically reimburses them at a higher rate. Yet Medicare allows home health agencies to provide the services only to qualifying patients who have difficulty getting out of their homes. For a patient to receive the services, then, a physician must certify that the patient needs them and that the patient is “homebound.”

Before 2013, Editha Manzano worked as the director of nursing at a home health agency called Alpha. She convinced Mark Buenaflor, a physical therapist, to take a job there. Buenaflor soon realized that Alpha was defrauding Medicare because only a few of his patients needed home health services and most were not homebound. Dr. Roberto Quizon acted as the physician referral source for Alpha. Alpha would identify potential “patients” for home health services, he would “refer” those patients to Alpha, and Alpha would pay him a fee for each referred patient. Quizon certified practically all of Alpha’s patients for home health services, but he believed that only a tiny fraction needed them.

In 2013, Manzano told Buenaflor that she wanted to leave Alpha because she did most of the work but did not receive enough of the money. She thus acquired Anointed Care Services with Liberty Jaramillo (her romantic partner) and Buenaflor. Manzano was the president, Jaramillo was the vice president, and Buenaflor managed physical-therapy services. Operations continued at Anointed largely as they had at Alpha. Manzano and Buenaflor brought many of their former Alpha patients to Anointed. Many of these patients did not, in fact, need home health services. Manzano also convinced Dr. Quizon to take the title of “medical director” at Anointed and to refer patients to that company, again in return for a per-patient fee.

To get patients to participate, Manzano paid them cash. Monica Simmons was a typical patient. She met with Manzano on several occasions to sign blank Medicare forms in exchange for $100. Even though Simmons signed up for home health services, she had no trouble leaving her home. So she refused services when Anointed staff came to provide them. Other patients told similar stories about their interactions with Anointed. They signed blank forms in exchange for money to obtain home health services that they did not need (and often did not receive). To help track down new patients, Manzano also paid patient “recruiters” a per-patient fee.

From November 2013 to April 2016, Anointed received over $1.5 million in payments from Medicare. A citizen eventually complained about Anointed, and the FBI began an investigation. The FBI seized various pieces of incriminating evidence from Anointed’s offices, including nursing-visit notes that were pre-signed by patients but otherwise blank.

In 2016, the United States indicted Manzano. It charged her with one count of conspiracy to commit healthcare fraud in violation of 18 U.S.C. § 1349, one count of conspiracy to pay healthcare kickbacks in violation of 18 U.S.C. § 371, and three counts of healthcare fraud in violation of 18 U.S.C. § 1347. Buenaflor, Quizon, Anointed staff, patients, and patient recruiters all testified about the fraud. A jury convicted Manzano on all counts. The court sentenced her to a total term of 84 months’ imprisonment. She now appeals. 

II.

Manzano asserts that the government committed misconduct—so much so that it violated the Due Process Clause—through several alleged evidentiary errors: (1) eliciting improper opinion testimony from lay witnesses; (2) using prior “bad acts” evidence; and (3) asking questions that generated irrelevant answers.

We could make short work of this claim if it were based on the Constitution alone. The government does not violate the Due Process Clause every time it violates a Federal Rule of Evidence. See, e.g., Key v. Rapelje, 634 F. App’x 141, 148 (6th Cir. 2015); Wade v. White, 120 F. App’x 591, 594 (6th Cir. 2005). Those rules exist to provide protections greater than the constitutional floor. And it disserves defendants to highlight lofty constitutional claims at the expense of ordinary rules-based arguments, because the former typically require a much more demanding showing than the latter. As another court has said, “[l]awyers all too often invoke the Constitution as if it were a panacea and bypass seemingly mundane arguments based on statutes and regulations. Mimicking Gresham’s Law, flabby constitutional generalities drive out sound legal points.” United States v. Vargas, 915 F.3d 417, 420 (7th Cir. 2019) (citation omitted).

This case provides an example. A claim that prosecutorial misconduct violated the Due Process Clause generally requires flagrant improprieties that are extensive and intentional. Compare Berger v. United States, 295 U.S. 78, 84–89, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), and United States v. Acosta, 924 F.3d 288, 299–309 (6th Cir. 2019), with Darden v. Wainwright, 477 U.S. 168, 179–82, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). Even when, for example, a prosecutor made repeated inflammatory comments—such as calling the perpetrator of the crime an “animal”—the Supreme Court held that the remarks did not rise to the level of a constitutional violation. Darden, 477 U.S. at 179–82, 180 n.12, 106 S.Ct. 2464. In this case, Manzano’s alleged evidentiary errors—even when considered collectively—fall well short of this high bar. “Asking questions that call for answers that may be deemed inadmissible on relevancy grounds does not amount to prosecutorial misconduct that rises to the level of a due-process violation.” Simmons v. Woods, No. 16-2546, 2018 WL 618476, at *4 (6th Cir. Jan. 30, 2018).

Giving Manzano the benefit of the doubt, we assume that she also independently asserts violations of the Federal Rules of Evidence. Where, as here, a defendant fails to object to an evidentiary ruling in the district court, we will review the ruling only for plain error. See United States v. Young, 847 F.3d 328, 349 (6th Cir. 2017). The defendant must show that “(1) an error occurred in the district court; (2) the error was obvious or clear; (3) the error affected defendant’s substantial rights; and (4) this adverse impact seriously affected the fairness, integrity, or public reputation of the judicial proceedings.” United States v. Henry, 545 F.3d 367, 376–77 (6th Cir. 2008) (citation omitted). “Only in exceptional circumstances in which the error is so plain that the trial judge and prosecutor were derelict in countenancing it will this court reverse a conviction under the plain-error standard.” Id. at 377 (citation omitted).

We now turn to each of the three alleged evidentiary errors.

1. Lay Opinions. Manzano initially asserts that the government wrongly introduced lay opinion testimony in violation of Rule 701 of the Federal Rules of Evidence. That rule permits a nonexpert to give an opinion if it is “rationally based on the witness’s perception”; “helpful to clearly understanding the witness’s testimony or to determining a fact in issue”; and “not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 701(a)–(c). “In applying Rule 701, the modern trend among courts favors the admission of opinion testimony, provided that it is well founded on personal knowledge and susceptible to specific cross-examination.” United States v. Harris, 786 F.3d 443, 446 (6th Cir. 2015) (citation omitted). Unlike expert testimony, lay testimony “results from a process of reasoning familiar in everyday life.” United States v. White, 492 F.3d 380, 401 (6th Cir. 2007) (citation omitted). Such testimony is “helpful within the meaning of Rule 701 when the witness has enjoyed significantly more time to study and compare the evidence than the jury.” Harris, 786 F.3d at 448 (citation omitted).

We see no “obvious” error in the admission of the challenged testimony. Henry, 545 F.3d at 376. First, Manzano criticizes the testimony of two individuals involved in Anointed’s affairs—Buenaflor (the former owner) and Laura Garland (a physical therapist). Both witnesses described the differences between “legitimate” and “fraudulent” home health agencies, and indicated that Anointed fell on the fraudulent side because it paid patients and charged for visits that did not occur. The district court did not plainly err in allowing this testimony. The court could reasonably conclude that Buenaflor’s and Garland’s testimony was “rationally based on [their] perception.” Fed. R. Evid. 701(a). Both were licensed physical therapists who had worked at other home health agencies before they pleaded guilty to conspiring to commit healthcare fraud at Anointed. The court also could reasonably conclude that this information would be helpful to the jury in determining what home health agencies may and may not do. Fed. R. Evid. 701(b); see United States v. Kpohanu, 377 F. App’x 519, 525–26 (6th Cir. 2010). And the court could reasonably conclude that this opinion testimony—that it was fraudulent to charge for services that were not, in fact, performed—was not based on any “specialized knowledge.” Fed. R. Evid. 701(c); see United States v. Kerley, 784 F.3d 327, 336–40 (6th Cir. 2015).

Second, Manzano challenges the testimony of Kathleen Heuertz, who worked for a Medicare contractor that investigates healthcare fraud. She says that Heuertz gave improper lay opinions about various fraud “red flags” (such as patients who get recertified for more than one course of treatment) and about the meaning of legal terms (such as “homebound” or “kickback”). This argument presents a closer question. Compare Kerley, 784 F.3d at 336–40, with White, 492 F.3d at 400–04. On the one hand, we have said that “[t]he Medicare program operates within a complex and intricate regulatory scheme and we cannot say that the average lay person, including any Medicare beneficiary, commands a working knowledge of Medicare reimbursement procedures.” White, 492 F.3d at 403. On the other, Heuertz’s testimony involved less complicated subjects than those discussed by the fiscal-intermediary auditors in White. See id. at 399–400. Regardless, the admission of this testimony did not affect Manzano’s “substantial rights.” Henry, 545 F.3d at 376. Much of Heuertz’s testimony provided simple background facts (not opinions) about the Medicare program. See Young, 847 F.3d at 351. And the government presented “overwhelming evidence” of Manzano’s guilt, including testimony from many of her coworkers at Anointed and from patients and patient recruiters. See White, 492 F.3d at 405.

Third, Manzano challenges a portion of FBI Special Agent Andrew Crump’s testimony about the evidence recovered from a search of Anointed. Crump described the nursing-visit notes that patients had pre-signed as a fraud “red flag.” The district court did not commit “obvious” error in allowing this testimony. Henry, 545 F.3d at 376. The “indicators of fraud” that Crump described were within his personal knowledge and required no specialized knowledge. See United States v. Variste, 625 F. App’x 458, 459–60 (11th Cir. 2015).

2. “Bad Acts” Evidence. Manzano next challenges the government’s use of evidence about her prior work at Alpha. Federal Rule of Evidence 404(b)(1) generally bars the government from introducing evidence of a defendant’s prior “bad acts” to show that it was more likely that the defendant committed the crime at issue. See United States v. Potter, 927 F.3d 446, 452 (6th Cir. 2019). Yet an exception allows the government to use this evidence for other purposes—to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). Here, even if the evidence concerning fraud at Alpha falls within Rule 404(b)(1)’s ban, the district court did not commit “obvious” error in finding it admissible under Rule 404(b)(2)’s exception. Henry, 545 F.3d at 376. We have already recognized that close-in-time fraud at other medical facilities may show the defendant’s intent to participate in the indicted healthcare fraud. See United States v. De Oleo, 697 F.3d 338, 343 (6th Cir. 2012). That same logic applies here.

In response, Manzano calls this Alpha evidence irrelevant. Not so. “[A]s evidence experts have long recognized, a prior ‘bad act’ satisfies the relevancy test’s low bar even when used to show a person’s propensity to commit the indicted crime,” which is “why a separate rule” (Rule 404(b)) regulates the use of “bad acts” evidence. Potter, 927 F.3d at 452 (citing 1 John H. Wigmore, Evidence in Trials at Common Law § 55, at 122–23 (1st ed. 1904)). Manzano next says that the probative value of this evidence was outweighed by its potential for unfair prejudice under Rule 403. But the evidence was highly probative in that it was “both similar to, and close in time with, the indicted conduct.” Id. Indeed, Manzano brought many of the same fraudulent patients and patient recruiters from Alpha to Anointed. And given the relatively infrequent attention that the government paid to Alpha during the trial, we cannot say that the risk of unfair prejudice was “clear.” Henry, 545 F.3d at 376.

3. Improper Bolstering. Manzano lastly argues that the prosecutor improperly asked Special Agent Crump to describe the process for seeking the warrant used to search Anointed because it led the agent to discuss irrelevant matters—the need for probable cause and for a judge’s approval to obtain a warrant. That discussion, Manzano adds, would have improperly bolstered the jury’s perception of the government’s case.

We again see no “obvious” error from this short exchange between the prosecutor and Agent Crump. Henry, 545 F.3d at 376. Under the relevancy rules, “[e]vidence which is essentially background in nature ... is universally offered and administered as an aid to understanding.” Fed. R. Evid. 401 advisory committee’s note to 1972 proposed rules. And courts have found that a witness’s discussion of the “investigative process” falls within this general principle. United States v. Littlewind, 680 F. App’x 496, 498 (8th Cir. 2017) (per curiam); see also Young, 847 F.3d at 351–52; United States v. Allen, 403 F. App’x 800, 802 (4th Cir. 2010) (per curiam). Here, the district court could reasonably conclude that Crump’s testimony described relevant background facts (under Rules 401 and 402) and did not unduly prejudice Manzano (under Rule 403).

To support her contrary claim, Manzano cites a single case: Fair v. Franklin County, No. 98-4237, 2000 WL 659418 (6th Cir. May 11, 2000). There, an officer testified about the meaning of probable cause (not the need for probable cause) during a civil-rights trial in which the presence or absence of probable cause was the critical question (not a background fact). Id. at *1–2. Ultimately, the court did not even opine on whether the district court had properly allowed this officer testimony because it found the testimony harmless in any event. Id. at *4. 

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