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                                                                       [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 12-16049
                               ________________________

                          D.C. Docket No. 1:12-cr-20230-UU-5

UNITED STATES OF AMERICA,

                                                                           Plaintiff-Appellee,

                                            versus

ODALYS FERNANDEZ,
KELVIN SOTO,

                                                                     Defendants-Appellants,

                               ________________________

                     Appeals from the United States District Court
                         for the Southern District of Florida
                           _________________________

                                     (February 3, 2014)

Before PRYOR and JORDAN, Circuit Judges, and FRIEDMAN, * District Judge.

PER CURIAM:


*
 Honorable Paul L. Friedman, United States District Judge for the District of Columbia, sitting
by designation.
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      Odalys Fernandez and Kelvin Soto appeal their convictions and sentences

related to their participation in a scheme to defraud the Medicare program. The

defendants raise a host of arguments on appeal, all of which lack merit. We

AFFIRM the judgments of conviction and sentences.

                                I. BACKGROUND

      A federal grand jury returned an indictment that charged Odalys Fernandez

and Kelvin Soto with one count each of conspiracy to defraud Medicare from

August 17, 2007, to March 19, 2009, 18 U.S.C. § 1349, and with five counts of

healthcare fraud for Fernandez and four counts for Soto, 

The United

States charged Fernandez with submitting false records that recorded purported

visits to Klebe de la Cruz, Eulalia Garcia, Rolando Arece, and Caridad Pizzorno.

And the United States charged Soto with submitting false records that recorded

purported visits to Epifano Diaz, Leonida Barrios, Franklin Barnes, and Rosa Diaz.

      The evidence at trial established that from 2007 to 2009 Fernandez and Soto,

nurses in the home-health field, signed nursing notes and records that falsely stated

that they provided nursing services to diabetic patients who were homebound and

insulin-dependent. Fernandez and Soto submitted the records to a home health care

agency, Ideal Home Health, which in turn sought reimbursement from the

Medicare program and then paid the nurses a portion of that reimbursement as a

kickback. Ideal paid its nurses $25 for each nursing note that recorded a visit to a



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patient and an additional $25 if the nurse had recruited the patient. Many of the

patients of Ideal were not diabetic and did not require insulin injections in their

home, and Ideal did not require its nurses to visit the patients or provide nursing

services to them.

      A jury convicted Fernandez and Soto on all counts. The district court

sentenced Fernandez to concurrent terms of 41 months of imprisonment, followed

by concurrent periods of three years of supervised release, and ordered restitution

in the amount of $240,369. The district court sentenced Soto to concurrent terms of

72 months of imprisonment, followed by concurrent periods of three years of

supervised release, and ordered restitution in the amount of $727,418.

                          II. STANDARDS OF REVIEW

      Several standards of review govern this appeal. We review for an abuse of

discretion evidentiary rulings to which a timely objection was made, United States

v. Dortch, 

, 1110 (11th Cir. 2012), a refusal to give a requested jury

instruction, United States v. Joseph, 

, 1093 (11th Cir. 2013), the

disposition of a motion for a continuance of trial, United States v. Graham, 

, 893 (11th Cir. 2011), and a refusal to dismiss a juror based on alleged

misconduct, United States v. Prosperi, 

, 1340 (11th Cir. 2000). A

district court abuses its discretion only if it “ma[kes] a clear error of judgment” or

“applie[s] the wrong legal standard.” United States v. Frazier, 

, 1259



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(11th Cir. 2004). We review factual findings regarding the admissibility of

evidence for clear error. United States v. Petrie, 

, 1289 (11th Cir.

2002). We review allegations of prosecutorial misconduct during closing

arguments de novo, United States v. Eckhardt, 

, 947 (11th Cir. 2006),

and we review the denial of a motion for a mistrial based on those comments for an

abuse of discretion, United States v. Dodd, 

, 869 (11th Cir. 1997).

                                 III. DISCUSSION

      Fernandez and Soto present six arguments. First, Fernandez argues that the

district court abused its discretion when it limited her cross-examination of a

witness at trial. Second, Fernandez argues that the district court abused its

discretion when it denied her motion to remove a juror. Third, Soto argues that the

district court abused its discretion when it admitted payroll reports from his

employment at another home health agency. Fourth, Soto argues that the district

court abused its discretion when it denied his request for a continuance or recess.

Fifth, Fernandez and Soto argue that the United States engaged in prosecutorial

misconduct in closing arguments. Sixth, Soto argues that the district court erred

when it instructed the jury. These arguments fail, and we address each in turn.

 A. The District Court Did Not Abuse Its Discretion When It Limited Fernandez’s
                    Cross-Examination of a Witness at Trial.

      Fernandez argues that the district court violated her right to confront the

witnesses against her, U.S. Const. Amend. VI, and abused its discretion when it

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limited her cross-examination of Dr. Llantada, the primary care physician for de la

Cruz, to questions related only to whether de la Cruz had diabetes and did not

permit questions about de la Cruz’s full medical history. “A defendant’s sixth

amendment rights are not infringed” when the court limits the cross-examination of

a witness as long as the jury is “exposed to facts sufficient for it to draw inferences

relating to the reliability of that witness” and defense counsel is able to “make a

record from which he could argue why the witness might have been biased.”

United States v. Maxwell, 

, 1296 (11th Cir. 2009). We have

explained that a defendant “is entitled only to an opportunity for effective cross-

examination, not cross-examination that is effective in whatever way, and to

whatever extent, the defendant might wish.” 

on cross-examination of Dr. Llantada did not violate

Fernandez’s rights. “Once there is sufficient cross-examination to satisfy the Sixth

Amendment’s Confrontation Clause, further questioning is within the district

court’s discretion.” United States v. Garcia, 

, 1468 (11th Cir. 1994).

The district court has “wide latitude” to impose “reasonable limits” on cross-

examination, particularly with regard to whether “the information sought to be

elicited is relevant.” 

(internal quotation marks omitted).

The United States called Dr. Llantada to prove that de la Cruz was not a diabetic

and did not require insulin, and the district court was well within its discretion to



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limit Fernandez’s cross-examination of Dr. Llantada to issues of reliability or bias

about that testimony.

 B. The District Court Did Not Abuse Its Discretion When It Refused Fernandez’s
                           Request To Remove a Juror.

      The district court did not abuse its discretion when it denied Fernandez’s

motion to strike a juror during the trial and later when it denied Ferandez’s motion

for a new trial on the same ground. During voir dire, the district court read the

names of the potential witnesses and asked if any of the jurors recognized the

names; the potential witnesses were not present in the courtroom. Juror Malagan

did not respond during voir dire, but after one of the doctors took the witness stand

and testified for the United States, Malagan sent the district court a note in which

she stated that she recognized the doctor from her temple. The district court asked

about their relationship, and she stated that she did not know the doctor well and

that she could evaluate the evidence impartially.

      To obtain a new trial based on juror misconduct during voir dire, a party

must “demonstrate that a juror failed to answer honestly a material question on voir

dire” and “further show that a correct response would have provided a valid basis

for a challenge for cause.” McDonough Power Equip., Inc. v. Greenwood, 

, 556, 

, 850 (1984); see also United States v. Carpa, 

, 966–67 (11th Cir. 2001). We do not fault a juror for a mistaken, but

honest answer to a question because “only those reasons that affect a juror’s

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impartiality can truly be said to affect the fairness of a trial.” 

, 104 S. Ct. at 850. And the “determination of impartiality, in which

demeanor plays such an important part, is particularly within the province of the

trial judge.” United States v. Gabay, 

, 1543 (11th Cir. 1991).

      The district court did not abuse its discretion. The district court was entitled

to determine that Juror Malagon honestly, but mistakenly, answered the question in

voir dire, that she was not biased, and that her service as a juror did not affect the

fairness of the trial. The juror promptly brought the mistake to the attention of the

district court, but stated that she could remain impartial.

   C. The District Court Did Not Abuse Its Discretion When It Admitted Payroll
       Records from Soto’s Employment at Another Home Health Agency.

      Soto argues that the district court abused its discretion when it admitted into

evidence payroll reports regarding his employment at Megamed, another home

health agency that engaged in Medicare fraud, under the exception to hearsay for

records of regularly conducted activity. Fed. R. Evid. 803(6). Federal Rule of

Evidence 803(6) permits a court to admit hearsay evidence if the record was made

at or near the time that someone with knowledge transmitted the recorded

information; the record was kept in the course of a regularly conducted activity of

a business; the regular practice of that activity included making the record; the

testimony of the custodian of the records or another qualified witness proves all of

these conditions; and “neither the source of information nor the method or

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circumstances of preparation indicate a lack of trustworthiness.” Fed. R. Evid.

803(6)(A)–(E). Soto concedes that the records were timely made and that

Megamed prepared them in the regular course of business, but he contends that the

director of nursing who testified about the records did not “meet the requirements

of a custodian of records” and that the reports are not trustworthy because of the

fraudulent practices of the company. Neither of these arguments has merit.

      First, the district court did not clearly err when it determined that the director

of nursing was a qualified custodian of the reports for the purposes of the

exception to hearsay for business records. “It is not necessary for the person who

actually prepared the documents to testify so long as there is other circumstantial

evidence and testimony to suggest the trustworthiness of the documents.” Equity

Lifestyle Props., Inc. v. Fla. Mowing & Landscape Serv., Inc., 

, 1244

(11th Cir. 2009). The director of nursing testified that she had firsthand knowledge

of the process by which the staff at Megamed used the nursing notes to prepare

payroll reports and that the staff prepared the reports in the regular course of

business. The district court did not clearly err when it found that the witness was

sufficiently qualified to testify about the payroll reports.

      Second, the district court did not clearly err when it found that the payroll

reports were reliable. The district court discussed this issue at length with counsel

and found that the payroll reports were reliable for the purpose of proving



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payments to nurses, even if the business practices or underlying nursing notes were

fraudulent. The record supports the finding by the district court that, although the

nursing notes prepared by Soto were fraudulent, Megamed paid Soto based on the

notes that he submitted. The factual finding by the district court that the payroll

reports were reliable to prove payments to a nurse was not clearly erroneous. The

district court did not abuse its discretion when it admitted the records.



D. The District Court Did Not Abuse Its Discretion When It Denied Soto’s Request
                          for a Continuance or Recess.

      The district court did not abuse its discretion when it denied Soto’s motion

for a continuance of the trial so that Soto could review new evidence that the

United States produced during trial. “Under certain circumstances, denial of a

motion for continuance of trial may vitiate the effect of th[e] fundamental right [to

assistance of counsel].” United States v. Valladares, 

, 1262 (11th

Cir. 2008). But “[t]here are no mechanical tests for deciding when a denial of a

continuance is so arbitrary as to violate due process”; instead, we look to “the

circumstances present in every case, particularly in the reasons presented to the

trial judge at the time the request is denied.” 

an abuse of discretion

for the denial of a motion for a continuance, the defendant must prove that the

denial “resulted in specific substantial prejudice.” 

exists

when a defendant is unduly surprised and lacks an adequate opportunity to prepare

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a defense or if the mistake substantially influences the jury.” United States v.

Bailey, 

, 1399 (11th Cir. 1997). To satisfy this burden, the defendant

“must identify relevant, non-cumulative evidence that would have been presented

if [his] request for a continuance had been granted.” 

(internal quotation marks omitted).

      Soto has failed to prove substantial prejudice. The new evidence provided by

the United States included pay records from a hospital where Soto worked, and the

records proved that the hospital paid him for work allegedly performed when his

nursing notes stated that he was visiting patients. Soto argues that, because the

district court denied his motion for a continuance or recess, he was “unprepared to

adequately explain” the overlaps when the United States cross-examined him on

the issue. But he fails to identify “relevant, non-cumulative evidence” that he

would have presented if the district court had given him more time to prepare, and

he fails to explain how he would have answered questions differently on cross-

examination. 

.

   E. The Prosecutor’s Conduct During Closing Arguments Does Not Warrant

                                      Reversal.

      Fernandez and Soto argue that the prosecutor engaged in misconduct during

his rebuttal argument. Fernandez argues that the prosecutor misstated the evidence,

and Soto argues that the prosecutor shifted the burden of proof to the defense. To



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establish prosecutorial misconduct, Fernandez and Soto must prove that the

remarks by the prosecutor were “improper” and that the remarks “prejudicially

affect[ed] the[ir] substantial rights.” United States v. Eckhardt, 

, 947

(11th Cir. 2006). “A defendant’s substantial rights are prejudicially affected when

a reasonable probability arises that, but for the remarks, the outcome of the trial

would have been different.” 

the record reveals sufficient

independent evidence of guilt, any error [due to prosecutorial misconduct] is

harmless.” 

Prosecutor’s Comments During Rebuttal Do Not Warrant Reversal.

      Fernandez argues that the prosecutor misstated the evidence when he argued

in rebuttal that de la Cruz was at a lab having blood drawn when Fernandez

purported to visit her at her home. The United States had admitted into evidence

the report from the blood work and inferred from the report that de la Cruz was at

the lab when her blood was collected. Fernandez’s counsel interposed a timely

objection to the argument, but the district court overruled the objection. And

Fernandez later submitted, in her motion for a new trial, an affidavit from the lab

supervisor who attested that de la Cruz’s blood had not been collected at the lab.

      We have explained that, “[w]hile a prosecutor may not exceed the evidence

in closing argument, he may state conclusions drawn from the evidence.” United

States v. Bailey, 

, 1400 (11th Cir. 1997) (citation omitted). And we



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consider several factors to determine whether a prosecutor’s arguments are

improper: “whether the remarks were isolated, ambiguous, or unintentional;”

“whether there was a contemporaneous objection by defense counsel;” “the degree

to which the challenged remarks have a tendency to mislead the jury and to

prejudice the accused;” and “the strength of the competent proof to establish the

guilt of the accused.” Spencer v. Sec’y, Dep’t of Corr., 

, 1182 (11th

Cir. 2010) (internal quotation marks omitted). Even if the prosecutor’s comments

were improper, reversal is warranted only if prejudice occurred—that is, “when a

reasonable probability arises that, but for the remarks, the outcome of the trial

would have been different.” 

.

      Fernandez raises a plausible argument that the prosecutor’s remark exceeded

the scope of evidence introduced at trial. Although the lab report was in evidence,

it had not been introduced for the purpose of showing the whereabouts of

Fernandez or de la Cruz, and had not been the subject of cross-examination. And

although the prosecutor’s comment was “isolated,” not extensive, it did come at

the end of his rebuttal argument, and defense counsel therefore had no opportunity

to counter it. Cf. Romine v. Head, 

, 1369 (11th Cir. 2001); United

States v. Hands, 

, 1333 (11th Cir. 1999). As a result, there was a

possibility the jury could have been misled as to this one point, which was an

important one in view of Fernandez’s theory of defense.



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      Regardless of Fernandez’s precise whereabouts, however, the United States

produced overwhelming evidence at trial that Fernandez did not visit her patients

every day, twice a day, to inject them with insulin. Thus, when considered in the

context of the entire trial, we cannot conclude on this record that “but for the

[prosecutor’s] remarks, the outcome of the trial would have been different.”

. “[T]he strength of the competent proof” establishing

her guilt was more than sufficient for conviction. 

.

               2. The Prosecutor Did Not Shift the Burden of Proof.

      The prosecutor did not shift the burden of proof by arguing that Soto could

have offered testimony from a handwriting expert to substantiate his defense that

someone had forged his signature on the nursing notes. As a general rule,

“[p]rosecutors must refrain from making burden-shifting arguments which suggest

that the defendant has an obligation to produce any evidence or to prove

innocence.” United States v. Simon, 

, 1086 (11th Cir. 1992). But a

prosecutor can explain to the jury that the defendant has subpoena powers like the

government, especially in response to an argument by a defendant about the failure

of the prosecutor to call a witness. See United States v. Hernandez, 

,

1439 (11th Cir. 1998); United States v. Musser, 

, 1485–86 (11th Cir.

1988). Soto argued in closing that the United States did not call a handwriting

expert to prove that Soto wrote his nursing notes, and the prosecutor responded



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that Soto could have called a handwriting expert to prove that someone forged the

notes. This comment was not improper.

      But even if the comment was improper, Soto has failed to establish

prejudice. “[T]he prejudice from the comments of a prosecutor which may result in

the shifting of the burden of proof can be cured by a court’s instruction regarding

the burden of proof.” 

; see also 

. The district court instructed the jury that “the defendant does not have to

prove his or her innocence or produce any evidence at all” and that the United

States has the burden to “prove guilt beyond a reasonable doubt.” That instruction

was sufficient to cure any improper comment about the handwriting expert.

                F. The District Court Correctly Instructed the Jury.

      Soto argues that the district court made two errors when it instructed the

jury. First, he argues that the district court should have provided an instruction

about good faith. Second, he argues that the district court should not have provided

an instruction about deliberate ignorance.

         1. Soto Was Not Entitled to a Jury Instruction About Good Faith.

      In the light of the evidence presented at trial, the district court did not abuse

its discretion when it refused to give the jury an instruction about good faith. A

refusal by the district court to give an instruction that is requested by one of the

parties amounts to an abuse of discretion only “where the requested instruction (1)



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was correct, (2) was not substantially covered by the charge actually given, and (3)

dealt with some point in the trial so important that failure to give the instruction

seriously impaired the defendant’s ability to conduct his defense.” 

–48; see also United States v. Morris, 

, 1114–16 (11th Cir.

1994). “We will only reverse if we are left with a substantial and eradicable doubt

as to whether the jury was properly guided in its deliberations.” 

. Soto’s requested instruction was correctly worded because the language is

nearly identical to the pattern jury instructions of this Court. See Eleventh Cir.

Pattern Jury Instr. 17 (Special) (2010). But the instruction about good faith was

covered by other instructions, and the failure to give the instruction in the form

requested did not seriously prejudice Soto’s ability to conduct his defense.

      The requested instruction was “substantially covered by the charge actually

given,” 

, because the district court instructed the jury that

the United States had to prove that Soto acted “knowingly,” “willfully,” and with

the “intent to defraud.” We have held that a district court did not err when it

refused to give an instruction about good faith, but instead instructed the jury about

specific intent, because a jury finding of specific intent necessarily excluded a

finding of good faith. See United States v. McNair, 

, 1201 n.65 (11th

Cir. 2010). And we have held that a district court did not err when it refused to

give an instruction about good faith because the “concept[] w[as] substantially



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included in the instruction that the criminal act must be done ‘knowingly’ or

‘willfully.’” United States v. Jordan, 

, 1248 (11th Cir. 2009); see

also United States v. Walker, 

, 109–10 (11th Cir. 1994) (holding that

an instruction about intent to defraud adequately addressed the defense of good

faith).

          Soto argues that the refusal to give the requested instruction seriously

impaired his defense because his “theory of defense was that he was getting paid

for seeing patients whom he believed were homebound diabetics,” but Fernandez,

not Soto, presented that defense at trial. Soto denied that he ever visited the

patients named in the indictment and denied that his handwriting was on their

patient forms. Soto cannot establish that his defense was “seriously impaired” by

the absence of an instruction about good faith because his defense was not

premised on the theory that he acted in good faith. 

.

  2. The District Court Correctly Instructed the Jury About Deliberate Ignorance.

          The district court did not err when it instructed the jury about deliberate

ignorance because the record supports the instruction. A deliberate ignorance

instruction is warranted “when the facts support the inference that the defendant

was aware of a high probability of the existence of the fact in question and

purposely contrived to avoid learning all of the facts in order to have a defense in

the event of a subsequent prosecution.” United States v. Garcia-Bercovich, 582



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, 1237 (11th Cir. 2009). The record establishes that Soto was aware of a

high probability that Ideal and Megamed used his notes to defraud Medicare: he

admitted that he did not know whether a nurse actually visited his patients; he did

not recall the names of many of the patients he allegedly treated; he chose not to

learn how Ideal and Megamed billed Medicare for the nursing notes that he

submitted; and he “did not monitor the amount” of money he received from Ideal

and Megamed for his nursing notes.

      But the absence or presence of evidence of deliberate ignorance “does not

matter” when “the jury could have convicted on an alternative, sufficiently

supported theory of actual knowledge.” United States v. Kennard, 

,

858 (11th Cir. 2006). The United States presented overwhelming evidence of

actual knowledge. The United States introduced evidence that Soto’s handwriting

appeared on nursing notes for patient visits that overlapped in time; his patients

were not homebound and did not require nurse-assisted insulin injections; he

willingly changed his nursing notes when the office administrator confronted him

about time overlaps that might impair the ability of the company to collect

reimbursements from Medicare; and he had been paid $172,000 over a 14-month

period for patient services. If there was an error in the jury instruction about

deliberate ignorance, it was harmless in the light of the overwhelming evidence of

actual knowledge.



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      Soto argues that, even if the evidence supported an instruction about

deliberate ignorance, the court erred by refusing to give his proposed instruction.

Specifically, he argues that deliberate ignorance cannot establish intent for the

purposes of a conspiracy charge. But this argument lacks merit. The district court

instructed the jury about deliberate ignorance to help the jury understand the

element of knowledge, not for the purpose of ascertaining Soto’s intent. We have

approved an instruction about deliberate ignorance when the instruction went to the

element of knowledge and not willfulness. See United States v. Schlei, 

, 974 (11th Cir. 1997). Because the district court instructed the jury only that

deliberate ignorance can satisfy the element of knowledge, it did not err when it

gave that instruction.

                                IV. CONCLUSION

      We AFFIRM Fernandez’s and Soto’s judgments of conviction and

sentences.




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