Case: 12-14247   Date Filed: 06/11/2013   Page: 1 of 4


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-14247
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:11-cr-20842-JIC-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

TEOBALDO FUENTES,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                             (June 11, 2013)

Before CARNES, BARKETT and ANDERSON, Circuit Judges.

PER CURIAM:
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      Teobaldo Fuentes appeals his convictions for health care fraud, 18 U.S.C.

§ 1347; aggravated identity theft, 18 U.S.C. § 1028A; and misbranding of

prescription drugs after shipment in interstate commerce, 21 U.S.C. § 331(k).

During Fuentes’s trial, the jury heard evidence that Fuentes practiced medicine

without a physician’s license, wrote prescriptions without authorization, obtained

health insurance policies with Blue Cross Blue Shield of Florida, Inc. (“BCBS”) by

using his patients’ personal information, and without their knowledge or consent,

and fraudulently billed BCBS for procedures that were never performed. The

government’s last witness, Special Agent Maximilian Trimm, testified over

objection that, in his opinion, Fuentes’s clinic was not a lawful business. The

district court, after initially overruling Fuentes’s objection and allowing the

testimony, reversed itself, sustained the objection, and instructed the jury to

disregard the testimony. The jury convicted Fuentes on all counts. On appeal,

Fuentes argues that the district court’s admission of Special Agent Trimm’s

testimony constituted an incurable error, and the court’s subsequent curative

instruction did not cure the prejudice. After careful review, we affirm.

      We review the district court’s admission of evidence for abuse of discretion.

United States v. De La Cruz Suarez, 

, 1215 (11th Cir. 2010). A trial

court’s prompt admonishment of the jury to disregard improper testimony can cure

an error. United States v. Gabay, 

, 1541 (11th Cir. 1991). Strong


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evidence of guilt, combined with a trial court’s curative instructions, renders

improper testimony harmless error. Id.; cf. United States v. Creamer, 

, 345 (11th Cir. 1983) (“Although the prosecutor acted improperly in the

instant case, it was an isolated instance which was cured by the strong, prompt

cautionary instruction issued by the district judge, and by the relatively strong

evidence of guilt.”).

      To support a conviction for health care fraud under 18 U.S.C. § 1347, the

government must prove that the defendant: (1) knowingly and willfully executed,

or attempted to execute, a scheme to (2) defraud a health care benefit program or to

obtain by false or fraudulent pretenses money or property under the custody or

control of a health care benefit program, (3) in connection with the delivery of or

payment for health care benefits, items, or services. 18 U.S.C. § 1347. A

conviction for aggravated identity theft under 18 U.S.C. § 1028A requires that the

defendant knowingly transfer, possess, or use, without lawful authority, another

person’s identification while committing certain enumerated felonies, including

health care fraud. See 

Doing any act with respect to a

drug, if the act is done while the drug is held for sale after shipment in interstate

commerce, and results in such article being adulterated or misbranded, is

prohibited. 21 U.S.C. § 331(k).




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      Here, even assuming that the district court erred in belatedly disallowing

Special Agent Trimm’s testimony, strong evidence of Fuentes’s guilt, combined

with the court’s prompt curative instruction, rendered any error harmless. See

. The jury convicted Fuentes after hearing evidence that

Fuentes, inter alia, practiced medicine while he had no physician’s license on file

with the Florida Department of Health; wrote prescriptions using the names of

another doctor and a medical assistant without their authorization or consent;

identified himself to patients as a doctor; used his address and the addresses of

family members on the BCBS applications; paid the insurance premiums through a

separate family-owned business; and fraudulently billed BCBS for millions of

dollars in visits, treatments, and diagnoses that did not occur. Finally, in addition

to this overwhelming evidence of guilt, the court promptly instructed the jury to

disregard Special Agent Trimm’s testimony. See United States v. Lopez, 

, 1237 (11th Cir. 2011) (“We presume that juries follow the instructions given

to them.”).

      Accordingly, any error in belatedly disallowing the testimony was rendered

harmless, and we affirm. See 

.

      AFFIRMED.




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