United States v. David Jankowski

                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 24a0418n.06

                                        Case No. 23-1404

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                                   FILED
                                                                                 Oct 23, 2024
                                                      )
UNITED STATES OF AMERICA,                                                KELLY L. STEPHENS, Clerk
                                                      )
       Plaintiff-Appellee,                            )
                                                      )
                                                            ON APPEAL FROM THE UNITED
v.                                                    )
                                                      )     STATES DISTRICT COURT FOR
                                                      )     THE EASTERN DISTRICT OF
DAVID JANKOWSKI, M.D.,                                )     MICHIGAN
       Defendant-Appellant.                           )
                                                      )                                  OPINION

Before: CLAY, McKEAGUE, and READLER, Circuit Judges.

       CHAD A. READLER, Circuit Judge. Dr. David Jankowski’s medical clinics relied on

several unusual billing and prescription practices, many of which were later revealed to be illegal.

Jankowski fraudulently billed Medicare for services he did not provide. And he prescribed

controlled substances to patients whose conditions did not call for such treatment, with some

patients unlawfully trafficking their prescribed drugs.

        Following a trial, Jankowski was convicted of unlawful distribution of controlled

substances, health care fraud, and conspiracy to commit the two offenses. On appeal, he challenges

those convictions as well as his sentence. We affirm.

                                                 I.

       David Jankowski was a licensed physician who specialized in pain management. He

possessed a DEA license, which allowed him to prescribe and dispense controlled substances.
No. 23-1404, United States v. Jankowski


Jankowski offered pain management services through two corporate entities. One operated a clinic

equipped with an in-house pharmacy stocked with narcotics and other controlled substances.

Another functioned as a home-based healthcare practice that sent providers to patients’ homes.

        Jankowski was eligible to bill the federal Medicare program for these services. Together,

his companies received $35.3 million in gross proceeds between 2011 and 2018. And over the

course of about six years, Jankowski and his associates filled more than 3.4 million doses of

Schedule II, III, and IV controlled substances. As the evidence at trial revealed, however,

Jankowski’s operations were rife with impropriety.

       For example, Jankowski provided patients with unnecessary pain medication. Patients

would later resell the pills, with one of Jankowski’s patients becoming “the biggest pill dealer” in

the community. These practices were so familiar that current patients would introduce new

patients to Jankowski’s clinics, with instructions to exaggerate their pain levels and pay cash in

exchange for prescriptions from Jankowski. Besides seeing patients himself, Jankowski prepared

pre-signed prescriptions so that unlicensed employees could prescribe controlled substances (albeit

improperly) in his absence.

       Jankowski’s unwarranted practices did not end there. He billed Medicare for services he

did not provide. By way of background, Medicare reimburses mid-level practitioners—physician

assistants and nurse practitioners—at a higher rate when they render care under the direct

supervision of a physician. With that in mind, Jankowski informed his billing company that mid-

levels at his practice were always under his direct supervision, thereby justifying the higher rate,

even when that was not true.

       Following an FBI investigation, a grand jury indicted Jankowski on 46 counts, with one of

his employees indicted as a co-conspirator on two counts. The indictment alleged one count of


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conspiracy to distribute and to possess with intent to distribute controlled substances in violation

of 21 U.S.C. § 846, one count of conspiracy to commit health care fraud in violation of 18 U.S.C.

§ 1349, 30 counts of the unlawful distribution of controlled substances in violation of 21 U.S.C.

§ 841(a)(1), and 14 counts of health care fraud in violation of 18 U.S.C. § 1347. It also contained

forfeiture allegations pursuant to 21 U.S.C. § 853, 18 U.S.C. §§ 981(a)(1)(C), 982(a), and

28 U.S.C. § 2461.

       Ultimately, 32 counts proceeded to trial. As Special Agent Brian Koczenasz testified at

trial, the FBI conducted its investigation into Jankowski partly through Henderson Butler, a

confidential informant who posed as a patient at Jankowski’s clinic while equipped with recording

devices. The government played for the jury clips from five of those visits. Before and after the

recordings were played, Koczenasz narrated what they depicted. The clips revealed conversations

Butler had with employees at Jankowski’s clinic, including medical assistant Haas, physician

assistant Ruan, and nurse practitioner Spradlin. The evidence reflected many irregularities,

including the fact that Jankowski did not always consult with Butler, the patient, even though the

visits were billed under Jankowski’s name.

       The jury convicted Jankowski of 30 out of 32 counts. Following the denial of Jankowski’s

motion for judgment of acquittal and a subsequent forfeiture hearing, the district court imposed

forfeiture in the amount of $35 million. It then sentenced Jankowski to 240 months’ imprisonment,

followed by three years of supervised release.

                                                 II.

       A. Jankowski raises many issues on appeal. He first contends that the district court erred

in denying his motion for judgment of acquittal for insufficiency of the evidence. See Fed. R.

Crim. P. 29(a). According to Jankowski, the government, by relying on summaries of selected


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No. 23-1404, United States v. Jankowski


claims, instead of the actual claims themselves, failed to show that he in fact submitted fraudulent

claims to Medicare for reimbursement, a necessary element of his substantive health care fraud

conviction. See United States v. Hunt, 521 F.3d 636, 645 (6th Cir. 2008) (defining the execution

or attempted execution of fraud on a health care benefit program as an essential element of a

conviction under 18 U.S.C. § 1347). Before the district court, however, Jankowski made different

arguments. There, he argued that because the government failed to show that he had the requisite

mens rea to be convicted of unlawfully distributing controlled substances, the government also

lacked evidence to support the corresponding health care fraud charges. Yet despite raising these

specific purported errors, Jankowski never argued that the government failed to admit evidence

that he submitted fraudulent claims to Medicare. On appeal, he may not challenge the sufficiency

of the evidence on grounds different than those he asserted in district court. See United States v.

Chance, 306 F.3d 356, 369 (6th Cir. 2002) (“Although specificity in a Rule 29 motion is not

required, where the defendant makes a Rule 29 motion on specific grounds, all grounds not

specified in the motion are waived.”); United States v. Porter, 886 F.3d 562, 566 (6th Cir. 2018)

(order) (same). In other words, Jankowski waived the argument he now seeks to make on appeal.

       After trial, Jankowski also challenged his health care fraud conspiracy conviction. We

review the district court’s denial of Jankowski’s motion for a judgment of acquittal de novo.

United States v. Callahan, 801 F.3d 606, 616 (6th Cir. 2015). We ask whether “any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson

v. Virginia, 443 U.S. 307, 319 (1979). Jankowski “bears a very heavy burden,” as we must view

the evidence “in the light most favorable to the government.” United States v. Abboud, 438 F.3d

554, 589 (6th Cir. 2006) (quoting United States v. Vannerson, 786 F.2d 221, 225 (6th Cir. 1986));

United States v. Solorio, 337 F.3d 580, 588 (6th Cir. 2003) (quoting United States v. Harrod, 168

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F.3d 887, 890 (6th Cir. 1999)). We cannot “reweigh the evidence, reevaluate the credibility of

witnesses, or substitute our judgment for that of the jury.” United States v. Martinez, 430 F.3d

317, 330 (6th Cir. 2005).

       To prove that Jankowski committed health care fraud in violation of 18 U.S.C. § 1347, the

government had to prove that he “(1) created a scheme or artifice to defraud a health care program,

(2) implemented the plan, and (3) acted with intent to defraud.” United States v. Bertram, 900

F.3d 743, 748 (6th Cir. 2018) (quotation omitted). And to prove conspiracy under 18 U.S.C.

§ 1349, the government had to show that there was “an agreement between two or more persons

to act together in committing [the] offense, and an overt act in furtherance of the conspiracy.”

Hunt, 521 F.3d at 647 (citation omitted). The government did not need to show a formal agreement

between Jankowski and others to commit the offense, as demonstrating “a tacit or mutual

understanding among the parties” is sufficient. Id. Likewise, circumstantial evidence is sufficient

to support a conspiracy conviction. Id.

       At trial, the government introduced sufficient evidence to convict Jankowski of conspiracy

to commit healthcare fraud. The government provided evidence that Jankowski informed his

billing company that he always directly supervised mid-level practitioners at his practice, allowing

the company to bill under his name for a higher rate. Nevertheless, Jankowski did not always

supervise mid-level practitioners for services billed under his name. Jankowski, for instance,

prepared pre-signed forms for his employees to use when prescribing controlled substances to

patients in his absence. Hamdan, who Jankowski knew was not licensed to practice medicine,

used the pre-signed scripts to issue prescriptions at patients’ homes when Jankowski was not

present. Hamdan also prescribed medication at the clinic without consulting Jankowski, even

though Hamdan did not have a medical license. Further, Hamdan testified that Jankowski


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No. 23-1404, United States v. Jankowski


instructed Hamdan not to sign patient charts, so that Jankowski’s signature would indicate that he

had seen patients when he really had not. The evidence also showed that Jankowski’s practice

billed 221 claims to Medicare for services provided while Jankowski was out of state.

       As this record reflects, Jankowski instructed various employees, including Hamdan, to

write prescriptions and provide medical services without his consultation, while at the same time

representing that Jankowski himself was the provider. All of this amounts to circumstantial

evidence that Jankowski and Hamdan had at least a tacit agreement to implement a scheme to

defraud a health care benefit program, and in turn performed overt acts to further than scheme.

Thus, Jankowski’s argument fails here.

       B. Jankowski next contests, on both evidentiary and constitutional grounds, the use at trial

of recordings made by Butler, the confidential informant. Because Jankowski did not object to the

recordings’ admission at trial, we review for plain error. United States v. Lopez-Medina, 461 F.3d

724, 746 (6th Cir. 2006); United States v. Martinez, 588 F.3d 301, 313 (6th Cir. 2009). That means

Jankowski must show a clear or obvious error affecting both his substantial rights and “the fairness,

integrity, or public reputation of the judicial proceedings.” United States v. Vonner, 516 F.3d 382,

386 (6th Cir. 2008) (en banc) (quotation omitted).         Such errors exist “only in exceptional

circumstances.” Id. (alteration adopted) (quotation omitted).

       1. Beginning with his evidentiary argument, Jankowski contends that both Butler’s

recordings and Koczenasz’s narrative descriptions of their contents constitute hearsay. The

Federal Rules of Evidence define “hearsay” as “a statement that . . . the declarant does not make

while testifying at the current trial,” and that “a party offers in evidence to prove the truth of the

matter asserted in the statement.”      Fed. R. Evid. 801(c).      Generally, hearsay evidence is

inadmissible unless an exception applies. See Fed. R. Evid. 802.


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No. 23-1404, United States v. Jankowski


       Many of the statements on the Butler recordings, as testified to by Koczenasz, were not

hearsay because they were not offered for the truth of the matter asserted. Rather, these recordings

were offered to show their effect on the listener. United States v. Churn, 800 F.3d 768, 776 (6th

Cir. 2015) (“A statement that is not offered to prove the truth of the matter asserted but to show its

effect on the listener is not hearsay.”). In the recordings, Butler discussed his physical health, pain

levels, and possible drug treatment. Take, for example, two statements Butler made to a physician

assistant Ruan—that Butler was on Medicare because of psychiatric conditions, and that Butler

requested a drug “stronger than Norco.” Neither was offered to prove the “truth of the matter

asserted,” namely, Butler’s coverage status or his desire for a powerful drug. Id. Rather, they

were introduced to show the effect of those statements on Ruan, the listener. Indeed, after Butler

requested a stronger medication, Ruan said that he would prescribe him “an increase in strength in

Norco as well as number.” The government’s purpose was to demonstrate how Ruan understood

the request, meaning the statements were admissible “to show why [Ruan] acted as [he] did.” Id.

Accordingly, none of these statements on the recording are hearsay.

       The remaining statements on the recordings are those made by Jankowski’s employees.

That turns our focus more to the speakers than to the content of their statements. Even if offered

for their truth, statements do not qualify as hearsay if they are “offered against an opposing party,”

and are “made by the party’s agent or employee on a matter within the scope of that relationship

and while it existed.” Fed. R. Evid. 801(d)(2)(D). The declarants, with whom Butler met and

recorded, were employees at Jankowski’s clinic: a medical assistant (Haas), a physician assistant

(Ruan), a nurse practitioner (Spradlin), and an administrative employee. All were speaking to

Butler as employees. All were speaking about matters within the scope of their employment.




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No. 23-1404, United States v. Jankowski


And all of their statements were offered against Jankowski. Their utterances are thus admissible

as statements of a party-opponent. See Stalbosky v. Belew, 205 F.3d 890, 895 (6th Cir. 2000).

       Resisting this conclusion, Jankowski contends that the government did not show that he

exercised the requisite level of control over his employees for them to be considered his agents or

employees for purposes of Rule 801(d)(2)(D). He points us to United States v. Wiedyk, 71 F.3d

602 (6th Cir. 1995). There, the defendant served as “Office Manager” for a fund, and we

considered whether an employee who worked for a company hired by the fund was the defendant’s

agent for purposes of Rule 801(d)(2)(D). Id. at 605–06. For the declarant to be considered the

defendant’s agent, we reasoned, the government had to show both that the declarant was an agent

of the fund and that the “defendant’s control over the Fund,” as office manager, was “so extensive

as to have the Fund’s role as principal imputed to [him].” Id. at 606. Because the government

failed to establish that the defendant had the requisite control, we held that the employee was not

the defendant’s agent, meaning the employee’s out-of-court statement was not admissible against

the defendant under Rule 801(d)(2)(D). Id. Here, by contrast, the government established that

Jankowski was the owner of—and exercised sufficient control over—the entities that employed

the declarants. See id. (discussing the ownership of the corporation where the agent is employed

as probative of the defendant-agent relationship).     Those employees accordingly qualify as

Jankowski’s agents.

       It makes no difference that, as Jankowski asserts, each “employee had their own

independent prescribing credentials, and that each prescription issued was based on that

prescriber’s” judgment. Independent authority is not the test for whether an employee’s statement

is admissible under Rule 801(d)(2)(D). Rather, we ask “whether the statement concerns a matter

within the scope of the agency or employment.” Jacklyn v. Schering-Plough Healthcare Prods.


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Sales Corp., 176 F.3d 921, 928 (6th Cir. 1999). Here, each employee was discussing matters

directly related to Jankowski’s medical practice, for example, MRI test results, insurance coverage,

prescriptions, and billing. Their statements thus fall well within the scope of their employment.

       Finally, Koceznasz’s testimony about these recordings was similarly not hearsay or

hearsay-within-hearsay, as Jankowski alleges. Koceznasz merely identified the parties on the

recordings and occasionally paraphrased or quoted from them. Simply relating non-hearsay

statements to the jury does not transform the statements into inadmissible hearsay. See United

States v. Cook, 13 F. App’x 331, 336 (6th Cir. 2001) (agent’s testimony was properly admitted

because it was “merely relating” non-hearsay statements to the jury). In other instances, he

testified only about what did not happen on the recordings. These comments do not report out-of-

court statements, but the lack of any statement, and accordingly are not hearsay.              Thus,

Koceznasz’s testimony was properly admitted.

       2. We turn next to Jankowski’s assertion that the admission of the undercover recordings

violated the Sixth Amendment’s Confrontation Clause. “In all criminal prosecutions,” the Clause

instructs, “the accused shall enjoy the right . . . to be confronted with the witnesses against him.”

U.S. CONST. amend. VI. We understand this command to mean that “testimonial, out-of-court

statements offered against the accused to establish the truth of the matter asserted may only be

admitted where the declarant is unavailable and where the defendant has had a prior opportunity

to cross-examine the declarant.” United States v. Cromer, 389 F.3d 662, 671 (6th Cir. 2004)

(citation omitted).

       As already discussed, several pieces of testimony Jankowski challenges were not

statements, whether under the Rules of Evidence or for the purpose of Confrontation Clause

analysis. See Crawford v. Washington, 541 U.S. 36, 59 n.9. For example, testimony that there


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was no discussion in the recordings of Butler’s failed drug tests do not report out-of-court

statements but report the lack of one. Other statements Jankowski challenges, like Butler’s

statements on the recordings, were not offered for their truth and, therefore, do not implicate the

Confrontation Clause. See id.

       Consider now statements made by Haas, Ruan, Spradlin, and the office worker to the

confidential informant.   And assume they were introduced for their truth.         Even then, the

Confrontation Clause is implicated only “[w]here testimonial evidence is at issue.” Id. at 68. Are

Jankowski’s employees’ statements testimonial? To discern an answer, we ask “whether the

declarant intend[ed] to bear testimony against the accused.” Cromer, 389 F.3d at 675. Said

differently, would “a reasonable person in the declarant’s position . . . [have] anticipate[d] his

statement being used against the accused in investigating and prosecuting the crime[?]” Id.

       Statements made to government agents are typically considered testimonial. See Crawford,

541 U.S. at 53 (explaining that “interrogations by law enforcement officers fall squarely within”

the class of testimonial hearsay). But what about when, as here, the agent is a confidential

government informant? If the declarant is unaware the individual to whom they are speaking is

conducting an investigation, then the declarant’s statement is not considered testimonial. See

Davis v. Washington, 547 U.S. 813, 825 (2006); United States v. Mooneyham, 473 F.3d 280, 287

(6th Cir. 2007). As Jankowski’s employees were not aware that Butler was a government

informant, they could not have anticipated that their statements would be used against Jankowski

in a criminal trial. See Cromer, 389 F.3d at 675. Said differently, their statements were made

“unwittingly.” Davis, 547 U.S. at 825. Those statements thus were not testimonial, meaning their

admission did not violate the Confrontation Clause.




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No. 23-1404, United States v. Jankowski


        We next consider Koczenasz’s testimony in the Confrontation Clause context. In the

testimony that Jankowski challenges, Koczenasz described statements made by Butler or

Jankowski’s employees on the recordings played to the jury. Thus, his testimony did not violate

the Confrontation Clause, because, as discussed above, the statements—or lack thereof—made by

Butler and the employees did not themselves violate the Clause. See United States v. Tragas, 727

F.3d 610, 615 (6th Cir. 2013) (“[W]e find no inherent problem—constitutional or otherwise—

when a prosecutor and a witness merely read aloud from a properly admitted transcript . . . .”).

        C. Jankowski also asks us to reverse his drug distribution convictions on the basis that the

district court erred by failing to define an essential element of those crimes in the jury instructions.

        Whether the district court erred is ultimately beside the point because Jankowski requested

the instructions that were read to the jury. In that instance, we customarily decline appellate review

under the invited-error doctrine. See United States v. Howard, 947 F.3d 936, 944–45 (6th Cir.

2020); United States v. Sharpe, 996 F.2d 125, 128–29 (6th Cir. 1993). That doctrine reflects “the

principle that a party may not complain on appeal of errors that he himself invited or provoked the

court or the opposite party to commit.” Sharpe, 996 F.2d at 129 (quotation omitted) (citation

omitted). True, the doctrine is not limitless; it does not preclude relief “when the interests of justice

demand otherwise.” Howard, 947 F.3d at 945 (quotation omitted) (citation omitted). That can be

the case, for example, where the government is as much at fault for provoking the error as is the

defendant. Id. But that is not what happened here. The government proposed different jury

instructions, but ultimately “went with [Jankowski’s] version.” In short, Jankowski invited any

error of which he now complains, and the government is not equally at fault in introducing the

error. We therefore decline to review his challenge to the jury instructions.




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No. 23-1404, United States v. Jankowski


       D. Next, Jankowski argues that the district court clearly erred in calculating the loss

amount used at sentencing.      The district court adopted the probation office’s loss amount

calculation of $35 million. As Jankowski objected to the district court’s sentence and the loss

amount, we review the court’s factual findings as to the amount of loss for clear error and its legal

methodology de novo. See United States v. Poulsen, 655 F.3d 492, 512 (6th Cir. 2011).

       Because any errors did not affect the ultimate Sentencing Guidelines range or the sentence

imposed, they are harmless and thus do not require resentencing. See United States v. Castro, 960

F.3d 857, 867 (6th Cir. 2020); see also United States v. Alvarado, 95 F.4th 1047, 1056 (6th Cir.

2024) (explaining that the government carries the burden to show harmlessness). To see why, look

back to the sentencing proceedings. There, the district court adopted the probation office’s

Guidelines calculation. That calculation was based on U.S. Sent’g Guidelines Manual § 3D1.2(d)

(U.S. Sent’g Comm’n 2023), which groups, for sentencing, “[a]ll counts involving substantially

the same harm,” and uses the higher total offense level to determine the Guidelines range, id.

§ 3D1.4. Based on that provision, Jankowski’s counts of conviction fell into two groups: Group

1 (the drug distribution counts, Counts 1, 15–21, 23–26, 28–32), and Group 2 (the health care fraud

counts, Counts 2, 33–37, 39–45). As the offense level for the drug counts was higher than the

offense level for the health care fraud counts, the Guidelines range was based on Group 1. U.S.

Sent’g Guidelines Manual § 3D1.3(b) (U.S. Sent’g Comm’n 2001).

       Jankowski’s challenge to the loss amount focused solely on whether the loss amount should

be limited to the “actual loss” to Medicare. The loss amount, limited to losses suffered by

Medicare or not, could only affect the offense level for Group 2. Yet, as just explained, Group 1

drove the ultimate Guidelines calculation. That means the errors posited by Jankowski were

harmless as to his actual Guidelines calculation as well as the sentence the district court later


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imposed, which varied downward from the Guidelines range based on factors enumerated in 18

U.S.C. § 3553(a). See United States v. Johnson, 79 F.4th 684, 709 (6th Cir. 2023) (citing United

States v. Hills, 27 F.4th 1155, 1195 (6th Cir. 2022)). Jankowski’s ultimate Guidelines range

depended only on the drug distribution counts, for which the loss amount was of no consequence.

Even the additional one point for his health care fraud counts did not affect his Guidelines range.

       E. Jankowski next argues that the $35 million forfeiture order imposed on him was based

on insufficient evidence. We review the district court’s “interpretation of federal forfeiture laws

de novo,” United States v. Hampton, 732 F.3d 687, 690 (6th Cir. 2013), and its factual findings for

clear error, United States v. O’Dell, 247 F.3d 655, 679 (6th Cir. 2001). As Jankowski was

convicted of both drug and health care fraud crimes, he was subject to forfeiture for both sets of

offenses. 21 U.S.C. § 853(a)(1); 18 U.S.C. § 982(a)(7). In debating the forfeiture order’s

propriety, the parties focus primarily on the fraud crimes. As these offenses are sufficient to

support the district court’s forfeiture award, we turn our attention there.

       Jankowski’s convictions for health care fraud subject him to a forfeiture penalty of the

“gross proceeds traceable to the commission of the offense,” whether “directly or indirectly.”

18 U.S.C. § 982(a)(7). Given that the statute uses the term “indirectly,” we understand “proceeds”

to have a wide berth. For example, monies derived from a fraud conspiracy can “touch[]

everything” from “banking accounts to . . . day-to-day operations.” United States v. Smith, 749

F.3d 465, 488 (6th Cir. 2014); see also United States v. Warshak, 631 F.3d 266, 332 (6th Cir. 2010)

(holding entirety of revenue constituted forfeitable proceeds).

       The order here fits comfortably within these parameters. In arriving at the $35 million

figure, the district court reviewed the evidence at trial and the arguments made in the forfeiture

briefing, at the forfeiture hearing, and at sentencing. See Fed. R. Crim. P. 32.2(b). At trial, the


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government introduced evidence that Jankowski’s corporate entities brought in $35.3 million in

revenue between 2010 and 2018. Jankowski’s fraud scheme centered on his illegal drug activities,

all masquerading as legitimate medical services. The scheme’s illegality touched all parts of his

operation, from the purchases of medical supplies and drugs for the clinic to payouts to co-

conspirators to carry out the scheme. Thus, the district court concluded that Jankowski’s medical

practices were tantamount to “prescription mill[s].” From these findings, the $35.3 million figure

represents both direct proceeds of Jankowski’s crimes, as well as indirect proceeds to maintain the

fraudulent appearances. See Warshak, 631 F.3d at 332–33. We see no clear error in the district

court’s finding nor any error in its legal analysis. See O’Dell, 247 F.3d at 679.

       Jankowski resists this conclusion. He first argues that the $35 million figure is “inflated,”

in part because one corporate entity was a multispecialty group with at least some providers who

were not involved in the scheme. But he points to no binding authority allowing the carve-out of

“legitimate” revenue in the forfeiture of health care fraud proceeds. See United States v. Bikundi,

926 F.3d 761, 793 (D.C. Cir. 2019) (noting that while “other forfeiture statutes allow credit for

‘lawful services’ . . . the statute for health care fraud does not”). Rather, our prior cases read

“proceeds” generously, in line with the statutory text. See Warshak, 631 F.3d at 332. Warshak

illustrates the point. There, we rejected the defendant’s request to carve out legitimate revenue

from fraudulent revenue in a widespread business fraud scheme. Id. We reasoned that “everything

[could be] attributable to fraud,” and concluded that the district court was correct to deduce “that

the entire operation was permeated with fraud.” Id. (quotation omitted). This was so because,

even in the presence of legitimate business and attempted ameliorative measures by the company,

“the very nucleus of its business model remained rotten and malignant.” Id. As a result, even

supposedly legitimate business income was subject to forfeiture as the “indirect” result of a


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conspiracy to commit fraud, as those proceeds likely would not have been earned had the business

been clean. Id. at 332–33. So too here. On this record, we see no reason to question the district

court’s conclusion that, like in Warshak, the entirety of Jankowski’s operations was infected with

fraud.

         Jankowski also takes issue with the district court’s reliance on summaries of his bank

records, believing that those exhibits “fail to establish a reasonable basis for the imposition of the

district court’s $35 million forfeiture order.” We disagree. The summary exhibits were admitted

at trial without objection, and thus could fairly be the basis for the court’s forfeiture calculations.

See Fed. R. Crim. P. 32.2(b)(1)(B). We likewise disagree with Jankowski that the government

“failed to link the [$35.3 million] with any of the purported fraud in the case.” Because evidence

supported that Jankowski’s corporate entities were a “vehicle to commit fraud,” and that fraud

“touched everything” in his business operations, those entities’ total revenue is subject to

forfeiture. Smith, 749 F.3d at 488; see also Warshak, 631 F.3d at 332 (holding that forfeiture of

entire business revenue was supported where the business was “permeated with fraud”).

         F. As a familiar last resort, Jankowski argues that we should reverse his conviction under

the cumulative error doctrine. “[T]o obtain a new trial based upon cumulative error, a defendant

must show that the combined effect of individually harmless errors was so prejudicial as to render

his trial fundamentally unfair.” United States v. Trujillo, 376 F.3d 593, 614 (6th Cir. 2004).

Though he labels them under the rubric of cumulative error, Jankowski actually raises new claims.

The errors he points to are the admission of various exhibits that the government purportedly

“fail[ed] to identify, authenticate, and move” into the record. But as Jankowski did not object to

the admission of those exhibits, we will afford him relief “only if the trial court’s evidentiary




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decision was plainly erroneous, thus affecting [Jankowski’s] substantial rights and resulting in a

miscarriage of justice.” United States v. Dunnican, 961 F.3d 859, 871 (2020) (quotation omitted)

       Federal Rule of Evidence 901 governs the identification and authentication of evidence.

“To satisfy the requirement of authenticating or identifying an item of evidence,” the Rule

instructs, “the proponent must produce evidence sufficient to support a finding that the item is

what the proponent claims it is.” Fed. R. Evid. 901(a). One method supporting authentication is

witness testimony stating that “an item is what it is claimed to be.” Fed. R. Evid. 901(b)(1).

       Jankowski first asserts that the admission of exhibits reflecting undercover recordings

made by Butler and corresponding transcripts violated Rule 901. He appears to be correct that the

government failed formally to move to admit the recordings into evidence before they were shown

to the jury or taken to the jury room. In that instance, the error is nonetheless harmless so long as

“[a] proper foundation ha[s] been laid for the tape and the defendant[] did not question the tape’s

authenticity or accuracy.” United States v. Scaife, 749 F.2d 338, 347 (6th Cir. 1984).

       Those markers were satisfied here. Before playing the recordings, Koczenasz explained to

the jury the functionality of the recording instruments Butler carried into the clinic. He testified

that Butler had “both audio and visual” devices, and that the FBI was monitoring the audio feed

live. He added that, to his knowledge, Butler did not turn off the devices, nor had agents detected

any tampering with them. And Koczenasz narrated the contents of each recording before it was

played before the jury. Testimony of this sort typically is adequate to establish the recordings’

“accuracy and trustworthiness.” United States v. DeJohn, 368 F.3d 533, 542 (6th Cir. 2004).

Therefore, any error in sending the recordings to the jury without moving first to admit them was

harmless. Vonner, 516 F.3d at 386.




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No. 23-1404, United States v. Jankowski


       Next, Jankowski contends that the government failed to identify, authenticate, and move

to admit exhibits regarding Jankowski’s prescribing practices. Not so. Koczenasz identified the

exhibits as prescriptions Jankowski issued for Butler, describing the context in which they were

prescribed and noting the medications they listed. This was sufficient to show that the exhibits

were authenticated and thus that a proper foundation was laid for their admission. See United

States v. Thomas, 701 F. App’x 414, 418 (6th Cir. 2017). Further, the government moved “the

entire . . . series” into evidence in accordance with a stipulation agreed to by Jankowski, and the

district court accepted the exhibits as evidence. In short, no error occurred.

       Similarly, Jankowski argues that other exhibits were improperly admitted because the

government “simply identif[ied] and read” them “into the record.” These exhibits were discovered

during a lawful search of Jankowski’s clinics. Koczenasz testified concerning the execution of the

search warrants. He testified that each challenged exhibit was discovered pursuant to the warrants

on Jankowski’s clinics, and, upon seizure, logged and secured per FBI procedure. He further

authenticated each exhibit by identifying it. So there was no error in the district court’s reliance

on these exhibits. See United States v. Mehmood, 742 F. App’x 928, 938–39 (6th Cir. 2018);

United States v. Bruce, 437 F. App’x 357, 362 (6th Cir. 2011).

       Jankowski also comes up short in challenging as improperly admitted three other exhibits

identified by a witness as summaries of Jankowski’s Medicare billing. The witness also testified

to their accuracy.   Following this testimony, the government moved to admit the exhibits.

Jankowski agreed to their admission provided that the underlying data was admitted as well, which

it was. Accordingly, no error occurred.

       Finally, Jankowski challenges the admission of six other exhibits regarding medical

benefits payments. Although the record is not entirely clear, it appears that a witness identified


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No. 23-1404, United States v. Jankowski


these exhibits as 855Rs, forms by which a provider “reassign[s] benefits” to groups already

established with Medicare. That explanation seemingly shows that the exhibits were as advertised.

See Fed. R. Evid. 901(b)(1). At the very least, no plain error occurred. Testimonial evidence that

Jankowski committed health care fraud and conspired to do so was sufficient to sustain his

conviction even absent these exhibits.

                                 *       *      *      *       *

       We affirm Jankowski’s conviction and sentence.




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