Designated for publication
- United States v. Tekippe, 25-30528, appeal from E.D. La.
- Smith, J. (Smith, Haynes, Engelhardt) (oral argument), criminal, sentencing
- Affirming 84-month sentence on conviction of healthcare fraud and wire fraud.
- Benjamin Tekippe, a chiropractor who owned and operated Metairie Chiropractic & Rehab, was convicted by a jury of six counts of health care fraud and one count of wire fraud. Over roughly three and a half years, Tekippe submitted fraudulent reimbursement claims to Blue Cross and Blue Shield of Louisiana (“BCBSLA”), billing the same bundle of five or six service codes for virtually every patient—accounting for approximately 93% of his BCBSLA claims. He billed more for massage therapy than any other chiropractor in Louisiana. Licensed massage therapists working for Tekippe gave clients whatever type of massage they requested—typically full body massages—without chiropractic supervision, while Tekippe pressured employees to fabricate backdated treatment notes, offering $2 per note. Employees and patients testified that many billed services were never performed. Total claims submitted to BCBSLA exceeded $2.3 million, of which BCBSLA paid $740,842.36; Tekippe also received roughly $12,952 in fraudulent unemployment insurance benefits.
- At issue on appeal was whether the district court clearly erred in finding that Tekippe’s fraud was “pervasive,” thereby shifting the burden to the defendant to identify legitimate claims and permitting the court to treat the entire claim amount as intended loss under U.S.S.G. § 2B1.1.
- The court explained that where the government shows fraud is “so extensive and pervasive that separating legitimate benefits from fraudulent ones is not reasonably practicable, the burden shifts to the defendant to make a showing that particular amounts are legitimate,” and absent such a showing, “the district court may reasonably treat the entire claim for benefits as intended loss.” Extensive record evidence supported pervasiveness: Tekippe billed the same bundle of codes for nearly every patient, his massage therapy billing was the highest of any chiropractor in Louisiana—a disparity the court noted was “not insignificant and likely did not occur ‘by chance'”—and multiple witnesses, including employees and patients, testified that billed services were not performed or were performed without the required supervision or medical necessity.
- The court rejected Tekippe’s argument that the government’s evidence could have been more detailed, noting that “‘[e]ven hearsay evidence … may be sufficiently reliable’ to support a factual determination at sentencing” and that sentencing facts “‘need only be found by a preponderance of the evidence.'” Tekippe’s twenty-five patient declarations were “likely misplaced” because, even assuming all declarant-supported claims were non-fraudulent—”a stretch considering the instant record”—those claims accounted for less than a quarter of the amount billed and received. Moreover, “legitimate services are not necessarily synonymous with legitimate claims, namely claims made in compliance with BCBSLA’s policies.”
- The district court ultimately set the total loss at $753,794.36, lowering the offense level from 33 to 31, yielding a guideline range of 121 to 151 months. It then sentenced Tekippe to 84 months, varying downward because “the amount of intended loss resulted in a guideline sentence that was disproportionate with the nature and circumstance of the offense.” Notably, the court observed that even if BCBSLA’s loss were reduced to Tekippe’s proposed $582,515.12, a 14-level enhancement would still apply under § 2B1.1(b)(1)(H), rendering the difference immaterial to the guidelines.
Unpublished decisions
- United States v. Malik, 25-11363, appeal from N.D. Tex.
- per curiam (Jones, Ho, Engelhardt) (no oral argument), criminal, compassionate release
- Dismissing as frivolous appeal from denial of motion to reconsider denial of motion for compassionate release.
- Federal prisoner Nohmaan Malik appealed the denial of his motion for reconsideration and amended motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i). However, his arguments on appeal actually challenged the district court’s denial of a motion to dismiss his criminal judgment under Federal Rule of Criminal Procedure 12(b)(1) and a motion to return forfeited property under Rule 41(g)—issues unrelated to the order on appeal. Malik also moved for leave to proceed in forma pauperis and, alternatively, requested that his notice of appeal be treated as a petition for a writ of mandamus.
- The court denied Malik’s IFP motion and dismissed the appeal as frivolous, reasoning that his failure to identify any error in the district court’s ruling that was actually the basis of his appeal was “the same as if he had not appealed that judgment,” citing Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Malik’s alternative request to treat his notice of appeal as a mandamus petition was likewise denied.
- United States v. Peacock, 25-30558, appeal from W.D. La.
- per curiam (King, Smith, Douglas) (no oral argument), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- Ratcliff v. Old American County Mutual Insurance Co., 26-10455, appeal from N.D. Tex.
- per curiam (Jones, Ho, Wilson) (no oral argument), § 1983
- Affirming dismissal of constitutional claims raised by plaintiff who had been struck by a vehicle while in a crosswalk.
- Elijah Ratcliff was struck by a vehicle driven by Marquez Ines Tolentino while walking in a crosswalk in December 2025 and subsequently filed suit against Tolentino and his insurer, Old American County Mutual Insurance Company, under 42 U.S.C. §§ 1983 and 1985 and the First Amendment, alleging a “bifurcated conspiracy” involving the “weaponizing [of] motor vehicle transportation calculated to deprive [Ratcliff] of free speech and related privileges” and seeking $1,000,000 in damages. A magistrate judge recommended dismissal without prejudice for failure to comply with prior sanctions orders and for lack of subject-matter jurisdiction, and also recommended warning Ratcliff about potential sanctions for continued frivolous filings. The district court adopted the recommendation and dismissed the claims. Ratcliff then filed successive post-judgment motions—a motion for judgment on the pleadings and a motion for rehearing—both of which the court construed as Rule 59(e) motions and denied. On appeal, Ratcliff argued that the defendants failed to file an answer and that the magistrate judge was biased.
- The Fifth Circuit affirmed, concluding that Ratcliff failed to explain how the defendants’ failure to respond established any error in the district court’s judgment and that his allegations of judicial bias were conclusory and unsupported by the record. The court noted it had carefully reviewed the appeal and found no reversible error, affirming “for essentially the reasons stated in [the district court’s] well-reasoned opinion.”
