Filed: Oct. 19, 2010
Latest Update: Mar. 02, 2020
Summary: [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT OCT 19, 2010 No. 08-17178 JOHN LEY _ CLERK D. C. Docket No. 08-20270-CR-FAM UNITED STATES OF AMERICA, Plaintiff-Appellee, versus SANDRA MATEOS, ANA ALVAREZ, Defendants-Appellants. _ Appeals from the United States District Court for the Southern District of Florida _ (October 19, 2010) Before O’CONNOR, Associate Justice,* CARNES and ANDERSON, Circuit Judges. * Honorable Sandra D
Summary: [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT OCT 19, 2010 No. 08-17178 JOHN LEY _ CLERK D. C. Docket No. 08-20270-CR-FAM UNITED STATES OF AMERICA, Plaintiff-Appellee, versus SANDRA MATEOS, ANA ALVAREZ, Defendants-Appellants. _ Appeals from the United States District Court for the Southern District of Florida _ (October 19, 2010) Before O’CONNOR, Associate Justice,* CARNES and ANDERSON, Circuit Judges. * Honorable Sandra Da..
More
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
___________________ ELEVENTH CIRCUIT
OCT 19, 2010
No. 08-17178 JOHN LEY
____________________ CLERK
D. C. Docket No. 08-20270-CR-FAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SANDRA MATEOS,
ANA ALVAREZ,
Defendants-Appellants.
_______________________
Appeals from the United States District Court
for the Southern District of Florida
_______________________
(October 19, 2010)
Before O’CONNOR, Associate Justice,* CARNES and ANDERSON, Circuit
Judges.
*
Honorable Sandra Day O’Connor, Associate Justice of the United States Supreme Court
(Ret.), sitting by designation pursuant to 28 U.S.C. § 294(a).
O’CONNOR, Associate Justice (Ret.):
Dr. Ana Alvarez and Nurse Sandra Mateos were employees at St. Jude
Rehabilitation Center during its brief time as an operating clinic in 2003. St. Jude
was ostensibly an HIV treatment center, but it was established as a front for a
massive Medicare scam. The fraud involved falsely diagnosing patients with a
condition that would justify treatments of WinRho, an expensive drug
reimbursable by Medicare at a rate of about $4,900 per treatment to St. Jude.
Because the treatment was medically unnecessary, employees at St. Jude would
purchase only a small fraction of the drugs and drug treatments for which they
billed Medicare. They would then use a simple saline solution or an extremely
diluted dose of WinRho to inject patients, thereby pocketing much of the money
that Medicare had paid for the WinRho treatments. All of the patients were HIV-
positive Medicare beneficiaries who had been recruited for the purpose of seeking
WinRho treatments they did not actually need. The patients were typically paid
about $150 per visit in exchange for their knowing participation. During the
approximately five-month span in which this scam continued, St. Jude received
more than $8 million from Medicare.
For their roles in this operation, Dr. Alvarez and Nurse Mateos were indicted
on several counts. Both Alvarez and Mateos were indicted for: (1) conspiracy to
2
defraud the United States, to cause the submission of false claims, and to pay
health care kickbacks, in violation of 18 U.S.C. § 371; and (2) conspiracy to
commit health care fraud, in violation of 18 U.S.C. §§ 1347 and 1349. While
Mateos was charged with only those two counts, Alvarez faced three additional
counts of (3–5) submission of false claims, in violation of 18 U.S.C. § 287.
Mateos was convicted of both counts, and Alvarez was convicted of all five of her
counts. Mateos was sentenced to 7 years’ imprisonment, and Alvarez to 30 years’
imprisonment.
On appeal, Alvarez and Mateos each raise various arguments challenging
their convictions and sentences. We reject all but one of their arguments outright.
The one meritorious argument is raised by Alvarez, who correctly contends that the
district court improperly excluded a videotape containing exculpatory evidence.
The surreptitious recording, made near the tail end of the clinic’s operation,
arguably showed coconspirators assuring Alvarez that there was no fraudulent
scheme at St. Jude. We agree with Alvarez that the statement at issue in the tape
was potentially powerful exculpatory evidence because a conspirator’s denial of
the existence of Medicare fraud to Alvarez is certainly in tension with the theory
that Alvarez was privy to the scheme. We also agree with Alvarez that the
statement was not hearsay, contrary to the district court’s ruling, because it was not
3
being offered for the truth of the matter asserted. See Fed. R. Evid. 801(c)
(“‘Hearsay’ is a statement . . . offered in evidence to prove the truth of the matter
asserted.”). That is, Alvarez was not seeking to prove through the statement that
there was no fraud at St. Jude—a point that was repeatedly conceded during her
own testimony—but that the behavior of concealing the scheme from her was
inconsistent with the prosecution’s theory that she had knowledge of the scam.
Nonetheless, the exclusion of this videotape was harmless error because it
was duplicative of witness testimony discussing the exculpatory content of the
videotape. Indeed, Alvarez’s attorney stressed this testimony in his closing
argument.
Because this lone error was harmless, we A FFIRM the convictions and
sentences of both Alvarez and Mateos.
I
The fraud at St. Jude involved an extensive cast of characters. Aisa Perera
and Mariela Rodriguez (M. Rodriguez) were the catalysts behind St. Jude’s
creation. Perera approached M. Rodriguez in 2002 with an opportunity to work
with her in starting up a new health care clinic. The two eventually decided the
clinic should target Medicare patients. Perera then met with Rita Campos, who
owned a medical billing company, to discuss the endeavor. Campos told her that
4
Luis Benitez would be able to provide her with everything she needed to start a
lucrative clinic treating HIV-positive patients. Perera then met with Benitez, and,
as Campos indicated, he provided the money and personnel necessary to start the
clinic.
St. Jude was one of eleven clinics funded and established by Luis Benitez
and his brothers Carlos and Jose Benitez. They started their clinics for the purpose
of committing Medicare fraud. Luis Benitez provided the start-up capital, nurses,
and supplies, and he sent an individual named Thomas McKenzie to train St.
Jude’s medical personnel. McKenzie had trained the staff at many of the Benitez
brothers’ clinics. He had a medical degree from Guatemala but was not licensed to
practice medicine in the United States. He instructed St. Jude’s two doctors as to
how they should document their patients’ charts so that Medicare would pay for
WinRho treatments. WinRho is generally used to treat HIV patients suffering from
thrombocytopenia or idiopathic thrombocytopenic purpura (ITP), a condition
marked by an abnormally low platelet count. Before St. Jude began operating,
McKenzie instructed the clinic’s medical staff that the objective in filling out
patient charts was to make the patient files compatible with a diagnosis of
thrombocytopenia, and that bleeding disorders would justify the diagnosis even
though a laboratory test would be necessary to confirm the condition.
5
The clinic employed two licensed doctors, Dr. Orestes Alvarez-Jacinto and
his daughter, Appellant Ana Alvarez. During their careers, Alvarez-Jacinto
specialized in gynecology, and Alvarez’s field of expertise was endocrinology and
internal medicine. Neither had significant experience treating HIV patients.
McKenzie trained each of them to note bleeding disorders on their patients’ charts
so as to justify WinRho treatments.
Alvarez-Jacinto and Alvarez began seeing patients on the day that St. Jude
opened. All of the patients were HIV-positive Medicare beneficiaries, but they
were not seeking treatment in earnest; they, too, were in on the scam. The Benitez
brothers recruited them to seek treatment at St. Jude, provided transportation to the
clinic for those who needed it, and paid the patients kickbacks ranging from $150
to $300 per visit. While the patients were apparently coached to make generic
complaints about bleeding disorders, Dr. Alvarez-Jacinto and Dr. Alvarez would
prescribe WinRho even when patients neglected to complain of any relevant
symptoms. Occasionally, McKenzie would review the patient charts prepared by
Alvarez, and if they failed to indicate a history of bleeding so as to support a
thrombocytopenia diagnosis, he would instruct her to correct the charts, and she
would comply.
6
An institution can only bill Medicare for treatments if it has a Medicare
provider number. Because St. Jude did not have a provider number, Alvarez was
enlisted to obtain one in her own name (Alvarez-Jacinto already had his own
number). To obtain her provider number, Alvarez signed a form agreeing to
comply with applicable laws and Medicare regulations and certifying that she
would not “knowingly present or cause to be presented” false or fraudulent claims,
nor submit claims “with deliberate ignorance or reckless disregard for their truth or
falsity.” All of St. Jude’s claims were submitted under either Alvarez-Jacinto’s or
Alvarez’s provider number. Rita Campos was in charge of billing Medicare for the
treatments, a service she had provided for the Benitez brothers at their various
clinics. She would help prepare what are known as “superbills” for the patients,
each showing the same diagnosis code: 287.3, the Medicare billing code for
thrombocytopenia. Either Alvarez or Alvarez-Jacinto would sign each of the
superbills before it was sent to Medicare.
The nurses at St. Jude were charged with administering the
treatments—typically an injection of saline solution or heavily diluted
WinRho—and with paying the patients their kickbacks with money they received
from M. Rodriguez and Perera. The two nurses at St. Jude were both sent by the
Benitez brothers: Appellant Mateos, who had once been married to Luis Benitez,
7
and Carmen Gonzalez, a cousin of the Benitez brothers. Also working at the clinic
were Angel Rodriguez (A. Rodriguez), a medical assistant who helped with the
infusions, and Beatriz Delgado, a receptionist who was paid $8,000 per month for
allowing her name to be listed as president on St. Jude’s corporate papers.
St. Jude was an operating clinic for less than five months, from July 2003 to
mid-November 2003. The doctors saw about 70 patients per week, and most of the
patients came multiple times each week. Many of the patients were homeless or
otherwise impoverished; some were “professional patients” who would sit for
multiple treatments at as many clinics as were willing to pay them. Sometimes
patients did not stay to receive an infusion of any sort, but were paid anyway. On
several occasions patients got angry and loudly demanded more money, and these
demands were loud enough to be heard throughout the small clinic, which was only
about 1100 square feet.
All told, the clinic billed Medicare for about $11 million, and Medicare
actually paid more than $8 million. Payment for bills submitted under the two
doctors’ provider numbers went directly into St. Jude’s bank account. The doctors
received a fixed salary. Despite her lack of experience in HIV treatment, Dr.
Alvarez was paid $4000 a week (later raised to $5000) for working three days per
week at the clinic. For her role, Nurse Mateos was paid approximately $500 a
8
week. The bulk of the money went to the Benitez brothers, who received 60
percent of the profits, and Perera and M. Rodriguez, who split the remainder.
The investigation into St. Jude began shortly after the clinic’s opening. In
mid-August 2003, Alvarez discussed her work at St. Jude with a colleague at her
second place of employment, a legitimate clinic where Alvarez worked two days a
week and was paid substantially less. The colleague became concerned and urged
Alvarez to speak with the director of the legitimate clinic. The director in turn had
Alvarez contact the F.B.I., which scheduled an interview with Alvarez.
Alvarez had her first meeting with F.B.I. agents on August 27, 2003. One of
the agents present at this first interview was Special Agent Thomas Adams.
Alvarez told the agents that she was concerned about the tax consequences of the
clinic billing under her provider number, and that she had heard that patients might
be getting paid. Alvarez concealed much of her own involvement in the fraud,
though, hiding the fact that she was prescribing medically unnecessary treatments
and fraudulently billing Medicare for the treatments. The agents asked her about
the infusion treatments she prescribed at St. Jude and showed her Medicare’s Local
Medical Review Policy. The Policy stated that WinRho was only approved for
treating patients with platelet counts below 30,000 per microliter of blood, and was
not an appropriate treatment for any other medical condition. None of Alvarez’s
9
patients were anywhere near that benchmark, as the lowest recorded platelet count
for any of her patients was 90,000 per microliter of blood. Although Alvarez
claimed that the FBI encouraged her to stay at St. Jude during the rest of her tenure
there, Agent Adams testified that he gave her no such advice. Even after the agents
showed her Medicare’s Local Medical Review Policy indicating that it was not
medically appropriate, Alvarez continued to prescribe WinRho infusions to
patients at St. Jude until she quit in November 2003.
Alvarez told the agents that she wanted to quit the clinic on November 14,
2003. Agent Adams asked her to stay a few more days so that the agents would
have time to set up a covert recording of her conversation. Agent Adams testified
that his aims in making the recording were twofold: to obtain incriminating
statements from Perera and M. Rodriguez, and to evaluate the credibility and
possible involvement of Alvarez and Alvarez-Jacinto in the fraud. Alvarez agreed
to make the recording, and on November 17, 2003, she went to the clinic wearing a
microphone and carrying a concealed video camera in her purse. In the recorded
conversation, Alvarez and her father told Perera and M. Rodriguez that they were
worried about the amount of money being billed under their provider numbers, and
Alvarez announced her intention to quit. At one point during the conversation,
Perera said, “there’s no fraud whatsoever here, doctor,” but it is not clear what
10
prompted that statement. Alvarez and Alvarez-Jacinto then quit working at the
clinic. Without any doctors and without a provider number, St. Jude could no
longer bill Medicare and had to suspend its operations.
After St. Jude closed its doors, the investigation progressed slowly as federal
authorities first turned their attention to other Benitez clinics. The first charge
specifically related to St. Jude did not come until mid-2007, when Alvarez-Jacinto
pled guilty to a single count of conspiracy to commit health care fraud. He was
sentenced to only 18 months of imprisonment after the sentencing judge granted
him a downward variance on account of his advanced age and poor health. Rita
Campos pled guilty in 2007 to one count of conspiracy to commit health care fraud
and one count of submitting false claims. She initially received a sentence of 120
months, but her sentence was later reduced to 48 months after the government
moved for a Rule 35(b) sentence reduction on account of her substantial assistance.
Fed. R. Crim. Pro. 35(b). In May 2008, the three Benitez brothers and Thomas
McKenzie were indicted on numerous counts involving fraud at eleven different
HIV-treatment clinics (including St. Jude). The Benitez brothers fled the country,
and McKenzie pled guilty to one count of conspiracy to commit health care fraud
and one count of submitting false claims. McKenzie was initially sentenced to 168
11
months, but his sentence was reduced to 95 months based on the government’s
Rule 35(b) motion.
The particular proceeding below began with the indictment of seven
individuals: Ana Alvarez, Sandra Mateos, Aisa Perera, Mariela Rodriguez, Beatriz
Delgado, Angel Rodriguez, and Carmen Gonzales. Gonzales skipped bail and
disappeared before trial. Perera and M. Rodriguez pled guilty and, after initially
receiving sentences of 30 months and 70 months respectively, each was ultimately
sentenced to 24 months of imprisonment after the government’s Rule 35(b)
motions for sentence reductions. Four defendants proceeded to a joint trial:
Alvarez, Mateos, Delgado, and A. Rodriguez.
At trial, the government’s basic theory was that the fraud at St. Jude was so
transparent and so flagrant that it would have been impossible for any employee
not to have known what was going on. The government’s witnesses included
Perera, M. Rodriguez, McKenzie, Agent Adams, and Dr. Michael Wohlfeiler, an
expert witness who testified that among approximately 2,500 HIV-positive patients
he was treating in his own practice, he had not seen a single case within the last ten
years where a patient’s platelet level was low enough to require treatment with
WinRho. He also testified that if a patient actually needed a drug like WinRho, it
would be given once every several weeks and only after careful monitoring,
12
whereas the patients at St. Jude would receive infusions several times a week.
Wohlfeiler also testified that WinRho could have potentially harmful side effects
ranging from allergic reactions to kidney failure and death. He noted that this
information was easily available both in the Physician’s Desk Reference, a
standard reference book typically found in any doctor’s office and available online,
and in the manufacturer’s product information sheet that was packaged with each
vial of the drug.
Each of the four defendants conceded that St. Jude was a fraudulent
operation, but claimed that they themselves were unaware of the fraud during their
employment because they had been duped by Perera, M. Rodriguez, and
McKenzie.
Alvarez testified in her own defense. She said that she relied on McKenzie’s
instructions because she thought he was an expert in treating HIV; she claimed to
have no idea that the WinRho infusions were medically unnecessary. She denied
any knowledge of the billing fraud, and said she was unaware that the code 287.3,
which appeared on all the superbills she signed, was the billing code for
thrombocytopenia. Alvarez also relied heavily on her contacts with the F.B.I. as
evidence that she had no knowledge of the scheme, and argued that any criminal
activity taken after her first meeting with F.B.I. agents was at their behest because
13
they urged her to continue working at the clinic, a claim which Agent Adams
denied in his testimony.
During the government’s cross-examination, Alvarez conceded that WinRho
was medically unnecessary for her patients, but asserted that she did not know as
much during her time at St. Jude because she trusted McKenzie. She also testified
that she never consulted the Physicians Desk Reference or looked at WinRho’s
product insert before prescribing hundreds of doses of the drug. She claimed that
she did not become aware until shortly before trial that Medicare’s Local Medical
Review Policy dictated that WinRho was not appropriate unless a patient had a
platelet count below 30,000 per microliter of blood. Agent Adams’s testimony
again contradicted her on this point, as he testified that the agents had shown her
the Policy at their first meeting.
At several points during the trial, including during her own testimony,
Alvarez sought to admit the surreptitiously recorded videotape of her resignation,
during which Perera appears to assure Dr. Alvarez and Dr. Alvarez-Jacinto that
there was no fraud occurring at St. Jude. The government objected to the tape’s
admission, citing hearsay concerns. Alvarez countered that the exculpatory
statements were not hearsay at all; Perera’s assurances that there was no fraud at
St. Jude were clearly false, and Alvarez sought to admit them not for their truth,
14
but as circumstantial evidence that Alvarez was not privy to the scheme at St. Jude.
Alternatively, Alvarez argued that the comments in the tape could be admitted as
coconspirator statements, see Fed. R. Evid. 801(d)(2)(E), or as fitting within the
“state of mind” exception to the rule against hearsay, see Fed. R. Evid. 803(3).
The judge sustained the government’s objections and excluded the videotape.
However, some of the tape’s content was admitted into evidence through witness
testimony. During cross-examination of M. Rodriguez, the following exchange
occurred:
Q: Now, at the time that Dr. Ana Alvarez came and questioned you and Aisa,
back on November 17, 2003, do you recall that date?
A: Yes.
....
Q: Dr. Alvarez was there, Angel Rodriguez was there, you were there, Aisa
Perera was there and Dr. Orestes [Alvarez-]Jacinto was there, correct?
A: That is correct.
Q: At that time, the doctors confronted you and Aisa about what was going on
at the clinic, correct?
A: Yes.
....
Q: At that time, you and Aisa told the doctors and Mr. Angel Rodriguez that
there was no fraud going on at the clinic whatsoever, isn’t that true?
15
A: We told the doctors, actually Angel wasn’t even part of that conversation. It
was very little what he said.
Q: Let me rephrase my question. . . . Did you and Aisa tell the doctors that
there was no fraud going on whatsoever at the clinic, yes or no?
A: Okay. Well, there is one issue on that conversation, where I do specify to
Dr. Orestes Alvarez-Jacinto because he does emphasize us on using his
[provider] number somewhere else on another office and I did tell him there,
that we are not doing fraud with your number, nowhere else. That’s what I
meant. That’s what he was talking about.
Q: Aisa Perera says, “there’s no fraud going on at this clinic whatsoever
doctor,” does she not?
A: She did say that.
Doc. 317:934–35. Counsel for Alvarez stressed this exchange during his closing
argument.
Mateos did not testify, but her defense theory was that she was but a lowly
employee at St. Jude with no knowledge of the fraud. Her defense focused on the
fact that her salary was only $500 a week, a measly sum for somebody
participating in such a large-scale fraud in which the ringleaders were pocketing
millions of dollars. She also filed a pre-trial motion seeking to prevent the
government from making any mention of her prior marriage to Luis Benitez on the
basis that such evidence would be overly prejudicial. See Fed. R. Evid. 403. The
district court denied the motion, and the government mentioned the close
16
relationship between Mateos and L. Benitez on several occasions during the trial to
combat Mateos’s claimed ignorance about the fraud.
The jury convicted Alvarez and Mateos on all counts, and acquitted Delgado
and A. Rodriguez on all counts.
At sentencing, Alvarez faced a statutory maximum of 30 years’
imprisonment. The Presentence Report began the calculation of Alvarez’s
guidelines sentencing range with a base offense level of 6 under U.S.S.G. §
2B1.1(a)(2), because the offense was one involving fraud. Added to that base
offense level were twenty levels under § 2B1.1(b)(1) because the loss amount was
between $7 million and $10 million; two levels under § 2B1.1(b)(9)(C) because the
offense involved sophisticated means; two levels under § 2B1.1(b)(13)(A) because
the offense involved conscious or reckless risk of death or serious bodily injury;
three levels under § 3B1.1(b) for Alvarez’s managerial role in an offense involving
more than five participants; and two levels under § 3B1.3 for abuse of a position of
trust. Alvarez’s PSR calculated a Guidelines range of 168 to 210 months’
imprisonment. The district court’s acceptance of the enhancements and the
addition of two levels under § 3C1.1 for obstruction of justice for delivering
perjured testimony at trial produced an adjusted offense level of 37. Alvarez
objected to the obstruction enhancement and offered the results of three polygraph
17
examinations she had commissioned to support her claim that she had been
unaware of the fraud at St. Jude while working there. The first two polygraphs
came back “inconclusive,” but the third determined that she was answering
truthfully during the following exchange:
Q: Prior to talking with FBI agents, did you know that anyone from St.
Jude planned to send fraudulent bills to the U.S. Government?
A: No.
Q: Prior to talking with FBI agents, did you agree with anyone who was
working at St. Jude to participate in a fraudulent scheme to collect
money from the U.S. Government?
A: No.
The district court was unmoved by the polygraphs, explaining that it was basing its
finding of perjury on its own assessment of Alvarez’s trial testimony.
With the obstruction enhancement, Alvarez’s Guidelines range was 216 to
262 months, and the government recommended a sentence of 262 months. The
court considered the sentencing factors provided in 18 U.S.C. § 3553(a) at some
length, and concluded that the seriousness of the crime, the position of trust
Alvarez held as a doctor, and the need to deter the growing number of people
committing Medicare fraud all warranted a sentence above the Guidelines range.
The court sentenced Alvarez to the statutory maximum on each count, running
each sentence consecutively, for a total prison term of thirty years. The court also
18
imposed three years’ supervised release, restitution of $8,289,286 to be paid to the
United States government, and forfeiture of various assets.
Mateos faced a statutory maximum of 15 years of imprisonment. Her PSR
calculated her Guidelines range as 97 to 121 months, and included two
enhancements that Mateos objected to at sentencing. The first was a twenty-level
enhancement because the amount of loss caused by the fraud was more than $9
million. See U.S.S.G. § 2B1.1(b)(1)(K) (twenty-level enhancement if the loss was
between $7 million and $20 million). Mateos argued that she should not be held
responsible for the full amount because her role in the conspiracy was extremely
limited, and the district court should have calculated the loss directly attributable to
her behavior. She also objected to an enhancement under U.S.S.G. §
2B1.1(b)(13)(A), which applies to offenses involving “conscious or reckless risk of
death or serious bodily injury,” claiming that there was no evidence that she knew
giving saline or diluted WinRho treatments could be harmful. The district court
rejected both arguments. Mateos’s Guidelines range was 78 to 97 months, and the
court sentenced her to 84 months’ imprisonment. It also imposed three years of
supervised release and ordered Mateos to pay restitution to the United States
government in the amount of $8,289,286.
19
Alvarez and Mateos now challenge their convictions and sentences on
appeal.
II
Both Alvarez and Mateos challenge the sufficiency of the evidence
supporting their convictions. Alvarez contends that there was insufficient evidence
to convict her of any of her five charges. Mateos concedes there was sufficient
evidence to convict her of paying kickbacks under count 1 of the indictment, see
18 U.S.C. § 371, and challenges only the more serious conviction for health care
fraud conspiracy under 18 U.S.C. §§ 1347 and 1349.
When considering a sufficiency challenge, we view the evidence in the light
most favorable to the jury’s verdict, and draw all reasonable inferences and resolve
all credibility determinations in favor of the government. United States v. Ellisor,
522 F.3d 1255, 1271 (11th Cir. 2008). “[I]t is not necessary that the evidence
exclude every reasonable hypothesis of innocence or be wholly inconsistent with
every conclusion except that of guilt, provided that a reasonable trier of fact could
find that the evidence established guilt beyond a reasonable doubt.” United States
v. Merrill,
513 F.3d 1293, 1299 (11th Cir. 2008) (citation omitted). We consider
each of their challenges in turn.
A. Alvarez
20
Alvarez argues that the evidence was insufficient to support her convictions
on all counts. With regard to the conspiracy counts (counts 1 and 2), Alvarez
concedes that the government proved that a conspiracy to commit healthcare fraud
existed at St. Jude, but she claims that none of the evidence established that she
knowingly participated. In particular, she argues that the evidence showed that
she: (1) was recruited by her father and not by Benitez, (2) was not involved in the
billing process and never saw the Medicare checks, (3) never paid kickbacks, and
(4) merely followed McKenzie’s instructions. With regard to the submission of
false claims counts (counts 3–5), Alvarez concedes that the three superbills she
signed were false but argues that there was no evidence that she knew they were
false when she signed them.
The circumstantial evidence that Alvarez was privy to the scheme at St.
Jude is sufficient to support her convictions. She was trained by McKenzie to
document each patient’s chart in the same manner; she altered the charts when
instructed; she was informed by Agent Adams at her first meeting with the F.B.I.
that her patients did not qualify for WinRho treatments; she was present when
patients at St. Jude screamed about wanting more money; and the billing code
number on the Medicare superbills she signed was always the same, regardless of
what the patient charts said. While it is hypothetically possible that a person under
21
these circumstances could have been ignorant of the fraud, the jury was entitled to
draw the reasonable inference from this evidence that Alvarez was in on the
scheme. “The very nature of conspiracy frequently requires that the existence of
an agreement be proved by inferences from the conduct of the alleged participants
or from circumstantial evidence of a scheme.” United States v. Molina, 443 F.3d
824, 828 (11th Cir. 2006) (citation omitted). Likewise, “[a] conspiracy conviction
will be upheld . . . when the circumstances surrounding a person’s presence at the
scene of conspiratorial activity are so obvious that knowledge of its character can
fairly be attributed to [her].” United States v. Figueroa,
720 F.3d 1239, 1246 (11th
Cir. 1983).
Even putting the government’s affirmative case aside, Alvarez’s own
testimony greatly undermines her sufficiency argument. A defendant who chooses
to testify runs the risk that the jury will disbelieve her testimony, and “runs the risk
that if disbelieved the jury might conclude the opposite of [her] testimony is true.”
United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995) (citation omitted); see
also United States v. Hunt,
526 F.3d 739, 745 (11th Cir. 2008) (same). This is
especially so in cases, such as the one at bar, that turn mainly on subjective
elements, like a defendant’s intent or knowledge.
Brown, 53 F.3d at 315. When
Alvarez insisted that she did not know that the procedures she prescribed were
22
medically unnecessary, or that the bills she signed were being doctored to obtain
payment from Medicare, the jury was entitled to conclude that she was lying, and
we must accept that credibility determination. The evidence was sufficient for a
reasonable jury to find Alvarez guilty beyond a reasonable doubt on all counts.
B. Mateos
Mateos argues that the evidence failed to show that she knew that St. Jude
was submitting fraudulent claims to Medicare. In particular, she claims that she
(1) had no access to the clinic’s accounts, (2) played no role in the billing process,
(3) was not paid based on the clinic’s earnings, (4) merely provided the patients
with treatment the doctors prescribed, and (5) had no knowledge that Medicare
may have been billed for services not actually provided. Mateos also places a great
deal of weight on the fact that, in rejecting her motion for judgment of acquittal,
the district court described the evidence against her as “weak.”
While we agree with the district court that the evidence against Mateos was
not overwhelming, it was sufficient to support the jury’s guilty verdicts. The
evidence showed that Mateos was recruited by the Benitez brothers to work as an
infusionist at St. Jude and to pay kickbacks to the patients, which she did. In
addition, Mateos provided patient care and administered the treatments of diluted
WinRho and saline, leading to the reasonable inference that she knew the
23
treatments the patients were receiving were all the same and that she knew there
was not enough medication on hand to administer the thousands of doses that the
charts indicated were being administered. There was also evidence that she paid
some patients who did not even receive treatment, which lends strong support to an
inference that she knew any billing for those patients was fraudulent.
Mateos counters that her role was similar to the secretary’s role in United
States v. Medina, 485 F.3d 1291 (11th Cir. 2007), a case in which this Court
reversed the conviction of a secretary who was involved in paying kickbacks to
patients because the evidence was insufficient to establish that she knew the clinic
was providing medically unnecessary services or fraudulently billing Medicare.
Id.
at 1297–1300. But unlike the secretary in Medina, Mateos both paid the patients
and administered the treatments. It was not necessary for Mateos to know “all the
details” of how the fraud worked in order for her to be guilty of the conspiracy.
United States v. Perez-Tosta,
36 F.3d 1552, 1557 (11th Cir. 1994). Mateos was
not a mere secretary. She was a licensed nurse and had been trained as a doctor in
her native Cuba. In light of her medical expertise, the circumstances of the fraud
going on around her were so obvious that knowledge of it can fairly be attributed
to her. Because Mateos was one of only three people who worked in the infusion
room, and one of only two nurses who were responsible for mixing the correct
24
quantity of the drug into saline solution for intravenous infusion, the jury could
reasonably infer her awareness of the discrepancy between the amounts of WinRho
prescribed and the amounts actually given. Mateos, like anyone else in the
cramped clinic quarters, also could not have avoided overhearing patients
screaming that someone was getting rich with their Medicare number. The
presence of fraud at St. Jude was so obvious that, as with Alvarez, Mateos’s
knowledge of its character could fairly be attributed to her. See Figueroa, 720
F.3d at 1246.
III
Alvarez and Mateos each raise one claim of evidentiary error. Alvarez
argues that the district court erred when it excluded a videotape showing Perera
assuring her and her father that there was no fraud occurring at St. Jude, and
Mateos argues that the district court erred when it denied her motion to exclude
any mention of her past marriage to Luis Benitez.
A. The videotape
At trial, Alvarez argued that the surreptitiously recorded videotape of her
resignation was strong exculpatory evidence. In particular, Perera’s statement that,
“there’s no fraud whatsoever here, doctor,” showed that Alvarez was not privy to
the fraudulent scheme. The government objected to the tape’s admission on the
25
basis that it was hearsay, and the district court sustained the objection and excluded
the videotape from evidence.
The district court erred when it excluded the videotape. The relevant
comment on the tape was not hearsay at all because it was not being offered for the
truth of the matter asserted. See Fed. R. Evid. 801(c). Alvarez sought to admit the
statement not as evidence that there was no fraud at St. Jude, a point which no
defendant contested, but as evidence that she did not know of the fraud. “If the
significance of an offered statement lies solely in the fact that it was made, no issue
is raised as to the truth of anything asserted, and the statement is not hearsay.”
Fed. R. Evid. 801(c), Advisory Committee’s Note; see also 5 J. Weinstein and M.
Berger, Weinstein’s Federal Evidence § 801.10(2)(c) (2d ed. 2008) (“Sometimes
the relevance of words or actions to show a particular fact depends on drawing an
inference that a person would not have spoken or acted in a certain way unless the
person believed a certain fact to be true.”).
The government’s response to this reasoning tracks the exact error the
district court made in excluding the tape: it argues that the comment does not
qualify as a coconspirator statement under Fed. R. Evid. 801(d)(2)(E), and does not
fit within the “state of mind” exception in Fed. R. Evid. 803(c). These responses
are totally inapposite. If the statement is not hearsay in the first place, there is no
26
need for it to fit within an exception to the rule against hearsay. Cf. Fed. R. Evid.
402 (establishing presumption that all relevant evidence is admissible). Just as the
district court did, the government focuses on the fact that the statements do not fit
within an exception to the rule against hearsay, thereby skipping over the prior and
all-important question of whether the statement was hearsay at all.
While the district court erred in excluding the relevant portion of the
videotape, the error was harmless because the exculpatory content of the tape was
effectively admitted through witness testimony. See Kotteakos v. United States,
328 U.S. 750, 764 (1946) (“If, when all is said and done, the conviction is sure that
the error did not influence the jury, or had but very slight effect, the verdict and the
judgment should stand . . . .”). In this case, the only exculpatory statement in the
videotape that Alvarez relies on is Perera’s statement that there was no fraud going
on at St. Jude—a statement that was admitted during the cross-examination of M.
Rodriguez. Alvarez’s attorney even attempted to capitalize on this point during his
closing argument, without interruption from the government or the district court.1
The jury was simply unconvinced that Perera’s denial established that Alvarez did
1 During closing argument, Alvarez’s counsel stated: “They’d like to forget the part about when
confronted with the fraud, how Mariela [Rodriguez] reacts. Mariela says, there is no fraud.
Mariela and Aisa [Perera] go running to the Benitez brothers. The doctors discovered the fraud,
what do we do? Benitez brothers say, offer them more money. What happens when the doctors
discover the fraud? They have to close down the clinic.” Doc. 319:1578. In this excerpt,
Alvarez’s counsel mistakenly attributes the statement to M. Rodriguez, when it was actually
made by Perera (though it came into evidence during cross-examination of M. Rodriguez).
27
not know of the conspiracy. Because the only exculpatory statement on the tape
was admitted into evidence through other means, the erroneous exclusion of the
tape was harmless error.
B. Mateos’s past marriage to Luis Benitez
Over Mateos’s objection, the district court allowed government witnesses to
mention that she was once married to Luis Benitez, whom the prosecutor referred
to as the “Godfather” of St. Jude. The district court found that the evidence was
relevant because it suggested that Mateos was somebody who Luis Benitez would
trust, but it gave the jury a limiting instruction, which stated that “the mere fact that
certain persons may have associated with each other” does not by itself establish a
conspiracy. On appeal, Mateos does not dispute the relevance of her relationship
with Benitez. See United States v. Ritz, 548 F.2d 510, 522 (5th Cir. 1977) (“The
fact of the close association of the [defendants is] . . . one circumstance from which
the jury might infer knowledge” of a conspiracy.). She instead argues that the
district court abused its discretion in admitting evidence of her relationship with
Luis Benitez because it was substantially more prejudicial than its minimal
probative value, see Fed. R. Evid. 403, and the prejudice was not adequately
curbed by the limiting instruction.
28
Relevant evidence “may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” Fed. R. Evid. 403. “Because a trial court
has broad discretion to determine the admissibility of evidence,” this Court reviews
evidentiary rulings for an abuse of discretion. Ellisor, 522 F.3d at 1266 n.12.
Moreover, a limiting instruction may be sufficient to cure the risk of undue
prejudice in limited circumstances. See United States v. Hands,
184 F.3d 1322,
1329 (11th Cir. 1999).
Here, the district court did not abuse its discretion by refusing to exclude
evidence that Luis Benitez was Mateos’s ex-husband. The evidence was relevant
to the issue of her guilt, Ritz, 548 F.2d at 522, and it posed little threat of undue
prejudice. The concept expressed in the limiting instruction, that people should not
be adjudged guilty based on their past or present relationships, is a simple one that
the jury could easily understand and take to heart.
Mateos’s reliance on Hands, 184 F.3d 1329, is misplaced. In Hands, this
Court found reversible error when the district court allowed the government to
impeach a testifying defendant with evidence that he had beaten his wife.
Id. at
1325. Because the evidence of spousal abuse had nothing to do with the drug
29
conspiracy for which the husband was on trial, we held that its minimal probative
value in impeaching the defendant was outweighed by its prejudicial impact. Id. at
1328–29. Hands is not similar to this case. Unlike the violent spousal abuse in
that case, there is nothing visceral or inflammatory about the fact that Mateos was
previously married to Benitez. It simply suggests that the organizers of the
conspiracy were likely to trust Mateos, and it increases the likelihood that she
knew what was going on at St. Jude. And it certainly was not inflammatory to
such an extent that the district court’s limiting instruction would not have been
effective.
The district court did not abuse its discretion in concluding that the
prejudicial impact of this evidence did not substantially outweigh its probative
value.
IV
The five remaining claims of error all target the sentencing phase of the
proceedings below. Alvarez raises three claims: (1) that her sentence was
substantively unreasonable; (2) that the district court erred when it refused to
consider the results of her polygraph examination at sentencing; and (3) that the
district court’s restitution order was unlawful because the United States is not a
“person” who can be a “victim” owed restitution under the Mandatory Victim
30
Restitution Act of 1996 (MVRA). Mateos raises two claims of error: (1) that the
district court erred by attributing the entire intended loss of the conspiracy to her
when calculating her Guidelines range; and (2) that the district court erred when it
enhanced her Guidelines range based on its finding that her offense involved a
conscious or reckless risk of death or serious bodily injury. We consider each
argument.
A. The reasonableness of Alvarez’s sentence
We review the reasonableness of the district court’s sentencing decision for
an abuse of discretion. Gall v. United States, 552 U.S. 38, 46 (2007); United States
v. Irey,
612 F.3d 1160, 1188–89 (11th Cir. 2010) (en banc). “[A] district judge
must give serious consideration to the extent of any departure from the Guidelines
and must explain his conclusion that an unusually lenient or an unusually harsh
sentence is appropriate in a particular case with sufficient justifications.”
Gall, 552
U.S. at 46. We will not invalidate a sentence unless we are “left with the definite
and firm conviction that the district court committed a clear error of judgment in
weighing the § 3553(a) factors by arriving at a sentence that lies outside the range
of reasonable sentences dictated by the facts of the case.”
Irey, 612 F.3d at 1190
(quoting United States v. Pugh,
515 F.3d 1179, 1191 (11th Cir. 2008)).
31
The district court sentenced Alvarez to the statutory maximum, imposing the
maximum penalty on each count and then running all counts consecutively. Her
thirty-year sentence exceeds the top of the Guidelines range (262 months) by
slightly more than eight years. Because of the deviation from the Guidelines, the
district court was required to provide “sufficiently compelling” justifications to
support the degree of the variance. Gall, 552 U.S. at 50;
Irey, 612 F.3d at 1187.
Nevertheless, this Court reviews all sentences (whether below, within, or above the
Guidelines range) under the same deferential abuse of discretion standard, and it
may not presume that a sentence outside of the Guidelines range is unreasonable.
Gall, 552 U.S. at 51;
Irey, 612 F.3d at 1187.
Here, the district court did not abuse its discretion by varying upward from
the Guidelines range and sentencing Alvarez to a total of 360 months’
imprisonment. The court provided specific reasons to justify its deviation from the
Guidelines range, including: (1) a doctor should be punished more severely than
other participants because the doctor is breaching a position of trust and an ethical
obligation to put the patient’s interest first; (2) the crime was not a fleeting
moment, but a sustained conspiracy over a period of months; (3) Alvarez followed
a lower standard of care with regard to the health of the HIV-positive patients as
compared to her prior patients; and (4) there was a need to promote adequate
32
deterrence of Medicare fraud because it was becoming rampant in the Miami area
and the risk of getting caught was fairly low. See United States v. Martin, 455 F.3d
1227, 1240 (11th Cir. 2006) (finding that deterrence is an especially important
element to consider during sentencing for fraud-based crimes because of their
thought-out nature).
In addition to those four reasons, the district court added two other
significant ones. First, it found that Alvarez had “blatantly lied” during her
testimony at trial, Doc. 312:7, referring to her “perjurious testimony” as a reason to
impose a harsh sentence. See Doc. 312:93 (“[T]aking into consideration her
criminal conduct, her background, the need to deter Medicare fraud, her position as
a doctor, as a leader in this criminal enterprise, her perjurious testimony, the
combination of all those factors leads me to a sentence above the guidelines.”);
Doc. 299:1 (Order Denying Emergency Motion to Correct Sentence) (“The
variance resulted in a reasonable sentence, because the defendant, as a licensed
medical doctor, prescribed to HIV patients medically unnecessary treatment with
potential harmful effects on these vulnerable patients. This along with her
perjurious testimony during trial, her lack of remorse, and the extent and
sophistication of the fraud justified the sentence.”).
33
Second, the court focused on Alvarez’s “lack of remorse,” which Alvarez
did not and could not dispute in light of her unwavering assertions of innocence
even after her conviction. Doc. 299:1; see also Doc. 312:37 (“THE COURT: . . .
We have an individual who has shown no remorse, agreed, because she doesn’t
think she did anything wrong . . . —true? [Counsel for Alvarez]: True.”); Doc.
312:79 (stating that a “big factor” in the sentence imposed was that Alvarez had
“no acceptance of responsibility whatsoever” and “[n]o remorse”). It was
reasonable for the district court to consider those two factors, which support the
differences between her sentence and those of her coconspirators, most of whom
accepted responsibility, pleaded guilty, and cooperated.
It is true that Alvarez’s 360-month sentence amounted to a significant
variance and exceeded the sentences of her coconspirators (some of whom were
the undisputed ringleaders of the operation), and that 18 U.S.C. § 3553(a)(6)
instructs a district court to take such disparities into account when imposing a
sentence. But the court based this difference, in part, on Alvarez’s status as a
doctor and her leadership role in the offense, a designation that Alvarez does not
challenge on appeal. This finding is entitled to due deference.
To be sure, it is troubling that some coconspirators who were more deeply
involved in the fraudulent scheme orchestrated by the Benitez brothers received
34
only a fraction of the sentence that Alvarez did. McKenzie received 95 months;
Campos, 48 months; Perera and M. Rodriguez, 24 months each. All four of those
coconspirators, however, provided the government with substantial assistance, and
Campos, Perera, and M. Rodriguez entered guilty pleas. This Court has held that
“there is no unwarranted disparity when a cooperating defendant pleads guilty and
receives a lesser sentence than a defendant who proceeds to trial.” United States v.
Langston, 590 F.3d 1226, 1237 (11th Cir. 2009); see also United States v.
Docampo,
573 F.3d 1091, 1101 (11th Cir. 2009); United States v. Williams,
526
F.3d 1312, 1323-24 (11th Cir. 2008).
The sentencing disparities in the present case are not unwarranted. In
addition to pleading guilty and cooperating with the government, only one of the
apparently comparable coconspirators was, like Alvarez, a medical doctor licensed
to practice in the United States. That coconspirator was Alvarez’s father, but at
sentencing he was 81 years old and suffered from heart disease, impaired lung
function requiring use of an oxygen mask, degenerative back disease, and what
appeared to be either Alzheimer’s or some other form of dementia. Furthermore,
the district court relied not only on Alvarez’s abuse of trust in her position as a
doctor but also focused on the potential harmful effects that her conduct had on her
patients. Finally, unlike her, none of Alvarez’s coconspirators went to trial, none
35
testified, none committed perjury, and none displayed an utter and total lack of
remorse from the beginning through the end of the proceedings.
Although the sentencing disparities are a concern, the district court gave
many compelling reasons justifying its departure from the Guidelines, and it is
within that court’s discretion to decide how much weight to give each of the §
3553 factors as long as it has not committed a clear error of judgment. See United
States v. McBride, 511 F.3d 1293, 1297–98 (11th Cir. 2007) (per curiam);
Irey,
612 F.3d at 1191 (“A district court’s sentence need not be the most appropriate
one, it need only be a reasonable one. We may set aside a sentence only if we
determine, after giving a full measure of deference to the sentencing judge, that the
sentence imposed truly is unreasonable.”).
Furthermore, Congress has recently amended the Guidelines to ensure that
health care fraud is punished more severely. In health care reform legislation
enacted in March 2010, Congress directed the Sentencing Commission to amend
U.S.S.G. § 2B1.1 by adding a specific offense enhancement for “a Federal health
care offense relating to a Government health care program” that involves $1
million or more. Patient Protection and Affordable Care Act of 2010, Pub. L. No.
111-148, § 10606(a)(2)(C), 124 Stat. 119, 1006–07 (March 23, 2010). If the loss
amount is between $1 million and $7 million, 2 levels are added; if it is between $7
36
million and $20 million, as it was in this case, 3 levels are added; and if it is $20
million or more, 4 levels are added. Id. Congress also directed the Sentencing
Commission to review the Guidelines and policy statements for health care fraud
offenses to ensure that they “reflect the serious harms associated with health care
fraud and the need for aggressive and appropriate law enforcement action to
prevent such fraud” and to provide “increased penalties for persons convicted of
health care fraud offenses in appropriate circumstances.”
Id. § 10606(a)(3)(A).
If the new enhancement had been applicable to Alvarez’s sentence, then
(holding everything else constant) her total offense level would have been 40 and
her guidelines range would have been 292–365 months, or 292–360 with the
ceiling imposed by the statutory maximum of 30 years. What that means is if
Alvarez committed her crime today, the district court’s 30-year sentence would fall
within the upper limit of her guidelines range, and we would fully expect that it
was reasonable. See Rita v. United States, 551 U.S. 338, 347–48 (2007) (appellate
court may presume within-guidelines sentence is reasonable); United States v.
Alfaro-Moncada,
607 F.3d 720, 735 (11th Cir. 2010) (we ordinarily expect that a
sentence within the guidelines is reasonable). That expectation would be
reinforced by the district court’s findings about the specific circumstances of this
case: Alvarez’s abuse of her position of trust as a doctor; the ongoing nature of the
37
conspiracy; the lower standard of care Alvarez provided to her HIV-positive
patients; the need to deter Medicare fraud, particularly in the Miami area; and
Alvarez’s perjury at trial and her complete lack of remorse.
Even though the amendment to the guidelines does not apply retroactively to
Alvarez, it can still inform our consideration of whether thirty years is a reasonable
sentence for her crime, particularly in light of all of the specific reasons the district
court provided for varying upward on her sentence. Even under the earlier version
of the guidelines, only three more points would have put the top of Alvarez’s
sentence range at 30 years (offense level 40), and only two more in addition to that
would have put the bottom of her sentence range at 30 years (offense level 42).
The district court gave many compelling reasons justifying its departure
from the Guidelines, and it is within that court’s discretion to decide how much
weight to give each of the § 3553 factors. The district court thoroughly considered
the § 3553 factors and offered compelling justifications for its decision that, taken
together, justified a sentence above the Guidelines. See Gall, 552 U.S. at 51;
Irey,
612 F.3d at 1187. Giving that decision the deference it is due, we cannot say that
Alvarez’s sentence is outside the range of reasonable sentences, or that the district
court committed a clear error of judgment in imposing it. See
Irey, 612 F.3d at
1190;
McBride, 511 F.3d at 1297–98.
38
B. The polygraph examinations
Alvarez next argues that the district court erred by refusing to consider the
exculpatory results of a post-verdict polygraph examination in determining
whether to apply an obstruction of justice enhancement. This was error, she
argues, because the district court may not “invent a blanket prohibition against
considering certain types of evidence at sentencing.” See United States v. Watts,
519 U.S. 148, 152 (1997). While Mateos tries to couch this claim in the terms of a
“refusal to consider” argument, the district court’s ruling is better understood as a
refusal to give dispositive weight to the results of the third polygraph examination.
That is, it was not a blanket prohibition on considering the exams in any case; it
was instead a finding that the evidence that Alvarez gave perjured testimony was
so overwhelming that no polygraph could sway the district court’s decision,
especially not a third exam taken after the first two were inconclusive. Given the
narrowly worded questions, and the fact that she only passed the test on her third
try, the probative value of the test results was minimal.
There was no error in the district court’s refusal to give the polygraph exams
dispositive weight when they directly contradicted the jury’s verdict. In fact, the
district court may have abused its discretion if it had given them any weight at all,
insofar as they contradicted the jury’s verdict that Alvarez had knowledge of the
39
fraud at St. Jude. See United States v. Hunt, 521 F.3d 636, 649 (6th Cir. 2008)
(below-Guidelines sentence was substantively unreasonable when based on a
district court’s doubts that defendant actually had criminal intent, which
contradicted the jury’s verdict). The district court did not clearly err by
disregarding the results of the third polygraph exam and applying an obstruction of
justice enhancement based on the evidence presented at trial.
C. The United States as a “victim” under the MVRA
The Mandatory Victims Restitution Act of 1996 requires district courts to
impose restitution in certain cases where “an identifiable victim or victims has
suffered a physical injury or pecuniary loss.” 18 U.S.C. § 3663A(c)(1)(B). The
MVRA defines “victim” as:
[A] person directly and proximately harmed as a result of the commission
of an offense for which restitution may be ordered including, in the case
of an offense that involves as an element a scheme, conspiracy, or pattern
of criminal activity, any person directly harmed by the defendant’s
criminal conduct in the course of the scheme, conspiracy, or pattern.
18 U.S.C. § 3663A(a)(2).
Alvarez argues that the district court was not authorized to order her to pay
restitution to the United States government, because the government is not a
“victim” or a “person” under the plain terms of the MVRA. While Alvarez is
correct that it is somewhat awkward to refer to a government as a person, the
40
surrounding provisions of the MVRA indicate that the term “victim,” as used in the
MVRA, includes the government.
It is dispositive that the enforcement provisions of the Act explicitly
recognize the government as a possible victim. 18 U.S.C. § 3664(i) (“In any case
in which the United States is a victim, the court shall ensure that all other victims
receive full restitution before the United States receives any restitution.”).
“[N]othing indicates that Congress intended two different meanings when it used
the same word in §§ 3663A and 3664(i)—related provisions adopted at the same
time and codified in serial sections in the United States Code.” United States v.
Ekanem, 383 F.3d 40, 43 (2d Cir. 2004). This provision conclusively resolves any
ambiguity in the meaning of the word “victim” in favor of the conclusion that
Congress treated the United States government as a potential victim under the
MVRA. In reaching this holding, we are in agreement with each of our sister
circuits that has addressed this issue. See United States v. Senty-Haugen,
449 F.3d
862, 865 (8th Cir. 2006);
Ekanem, 383 F.3d at 43; United States v. Lincoln,
277
F.3d 1112, 1113 (9th Cir. 2002); United States v. Martin,
128 F.3d 1188, 1190 (7th
Cir. 1997).
D. The intended loss attributable to Mateos
41
We now turn to Mateos’s claims of sentencing error, both relating to the
district court’s calculation of her Guidelines range. First, Mateos argues that the
district court erroneously found her responsible for the entire intended loss of the
conspiracy (more than $9 million), leading to a twenty-level enhancement of her
Guidelines range. See U.S.S.G. § 2B1.1(b)(1)(K). She argues that the court erred
because it failed to make individualized findings of fact as to the specific scope of
her involvement in the conspiracy. We disagree.
A “district court may hold participants in a conspiracy responsible for the
losses resulting from the reasonably foreseeable acts of co-conspirators in
furtherance of the conspiracy.” United States v. Hunter, 323 F.3d 1314, 1319
(11th Cir. 2003). Under the Guidelines, “to determine a defendant’s liability for
the acts of others, the district court must first make individualized findings
concerning the scope of criminal activity undertaken by a particular defendant.”
Id. at 1319 (citation omitted). Once the court determines the scope of the
defendant’s involvement in the conspiracy, it then may consider “all reasonably
foreseeable acts and omissions of others in the jointly undertaken criminal
activity.” United States v. McCrimmon,
362 F.3d 725, 731 (11th Cir. 2004)
(citation omitted).
42
Mateos’s primary argument against attributing the entire loss to her is that,
even if Mateos knew that St. Jude was providing medically unnecessary treatments
(as the jury concluded), there was no evidence that she knew St. Jude was billing
Medicare for infusions that were not provided at all. That is, she only consented to
participating in the scheme insofar as patients were actually injected with
unnecessary medicine; not to billing Medicare when no treatment was provided at
all. The position defies common sense. The evidence established that Mateos
knew that St. Jude was purchasing far less WinRho than it was billing Medicare
for, and that was the essence of the fraud. Whether a particular patient was
injected with saline, a diluted dose of WinRho, or nothing at all, is irrelevant to the
object of the conspiracy: to overbill Medicare.
Because it is reasonably foreseeable that a clinic engaged in fraudulently
diluting doses of medicine might also be in the practice of billing Medicare when
no treatment was provided whatsoever, the district court did not err in attributing
the entire intended loss to Mateos. See McCrimmon, 362 F.3d at 731–32
(defendant responsible for losses stemming from all reasonably foreseeable acts of
coconspirators).
E. Risk of death or serious injury
43
Finally, Mateos challenges the district court’s two-level enhancement of her
Guidelines range based on its finding that her offense involved “conscious or
reckless risk of death or serious bodily injury.” U.S.S.G. § 2B1.1(b)(13)(A). She
argues that there was no evidence supporting the district court’s conclusion that
she knew or recklessly disregarded the severe risks associated with giving HIV-
positive patients the unnecessary treatments prescribed by the doctors at St. Jude.
The district court did not clearly err in finding that a trained nurse, such as
Mateos (who also received training as a doctor in Cuba), would be well aware that
any injection always carries some risk of infection or other complications, and that
the risk is especially high when the patients have HIV and weakened immune
systems. See United States v. Campbell, 491 F.3d 1306, 1315 (11th Cir. 2007)
(reviewing “for clear error the district court’s findings of fact regarding whether a
defendant should receive an enhanced sentence under the Guidelines” (citation and
ellipsis omitted)). Even though there was no evidence that any patient was actually
harmed from the treatments, the enhancement was nevertheless appropriate
because the Guidelines provision focuses on the defendant’s disregard of risk
rather than on the result. See United States v. Snyder,
291 F.3d 1291, 1294–95
(11th Cir. 2002). The district court did not err in applying the enhancement.
44
V
For the foregoing reasons, we A FFIRM the district court’s judgments.
45
