Filed: Mar. 30, 2015
Latest Update: Mar. 02, 2020
Summary: Case: 14-10530 Date Filed: 03/30/2015 Page: 1 of 17 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 14-10530 _ D.C. Docket No. 1:13-cr-20298-JEM-1 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus DORA MOREIRA, Defendant - Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (March 30, 2015) Before HULL, and DUBINA, Circuit Judges and BOWEN, * District Judge. PER CURIAM: * Honorable Dudley H. Bowen, Jr. United
Summary: Case: 14-10530 Date Filed: 03/30/2015 Page: 1 of 17 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 14-10530 _ D.C. Docket No. 1:13-cr-20298-JEM-1 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus DORA MOREIRA, Defendant - Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (March 30, 2015) Before HULL, and DUBINA, Circuit Judges and BOWEN, * District Judge. PER CURIAM: * Honorable Dudley H. Bowen, Jr. United ..
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Case: 14-10530 Date Filed: 03/30/2015 Page: 1 of 17
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-10530
________________________
D.C. Docket No. 1:13-cr-20298-JEM-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DORA MOREIRA,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 30, 2015)
Before HULL, and DUBINA, Circuit Judges and BOWEN, * District Judge.
PER CURIAM:
* Honorable Dudley H. Bowen, Jr. United States District Judge for the Southern District
of Georgia, sitting by designation.
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Appellant, Dora Moreira, appeals her convictions for various health care
fraud offenses and her 235 month total sentence. Following a review of the record,
we affirm the convictions and total sentence.
I. BACKGROUND
A. Background
A grand jury returned a 12-count indictment charging Moreira, along with
two co-defendants, with various Medicare fraud and money laundering violations.
The indictment charged Moreira with conspiring to commit health care fraud, in
violation of 18 U.S.C. § 1349 (Count I); conspiring to defraud the United States
and receive and pay health care kickbacks, in violation of 18 U.S.C. § 371 (Count
II); paying kickbacks in connection with Medicare, in violation of 42 U.S.C. §
1320a-7(b)(2)(A) (Count III); and conspiring to launder, and laundering, money
derived from the conspiracy to commit health care fraud, in violation of 18 U.S.C.
§§ 2 and 1956(a)(1)(B)(i) and 1956(h) (Counts VII–XII). The indictment also
included a criminal forfeiture count.
Following a seven-day trial, the jury returned guilty verdicts against Moreira
on all counts. The probation officer prepared a pre-sentencing investigation report
(“PSI”) that calculated a total adjusted offense level of 38. Moreira’s criminal
history score was zero. This resulted in a guideline sentence range of 235 to 293
months. Prior to sentencing, Moreira moved for a downward departure under 18
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U.S.C. § 3553(b) and the United States Sentencing Guidelines (“USSG”) § 5H1.6,
arguing that a departure was warranted based on the extraordinary circumstances
presented by her role as a single parent. The district court denied the motion. The
district court adopted the PSI and sentenced Moreira to 235 months’ imprisonment
on Counts I, II, III, VII, and VIII–XII and imposed a term of three years’
supervised release.
B. Trial proceedings
The trial record discloses the following facts. Moreira was the sole owner,
administrator, and president of Anna Nursing Services, a home health agency
certified as a Medicare provider. When signing an enrollment application as a
Medicare provider of home health services covered under Part A, the provider
represents that all statements in the application are true and accurate. In order to
bill Medicare for home health services, the provider must have rendered the
services to Medicare beneficiaries who need skilled services, are homebound, are
under the care of a physician, and are under a plan of care that has been completed
and signed by the physician.
In October 2012, Sandra Hurst informed the Federal Bureau of Investigation
(FBI) that her husband, Frank Hurst, was involved in a Medicare fraud scheme
with Moreira at Anna Nursing in Miami. Both Sandra and Frank were Medicare
beneficiaries, and both received kickbacks for serving as patients of Anna Nursing.
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Frank was also a patient recruiter for Anna Nursing, and Moreira would pay him
$1,800 to $2,000 in cash per patient recruit. He sought out Medicare beneficiaries
who agreed to provide and receive payment for their Medicare information in
exchange for Anna Nursing to submit fraudulent claims for homebound health
services to Medicare. After being contacted by the FBI, Frank agreed to
participate in consensual recordings of his participation in the scheme.
Under the scheme, Moreira would direct one of the recruited clients to a
doctor of her choosing. The doctor would give the client a prescription for home
health care. An individual from Anna Nursing, usually Ivan Alejo, a nurse and
administrator at Anna Nursing, would go to the client’s home and have the client
sign papers attesting to the fact that he had received home health services. In fact,
the client did not receive such services and was not homebound. Following the
conclusion of the alleged home health services, usually 30 days, someone from
Anna Nursing would provide the client with a kickback of approximately $1,500.
[R. DE226; 227; 228.] This scheme lasted for about two and one half years, until
May 2013.
From 2008 until 2013, Miguel Jimenez was one of the owners and operators
of Flores Home Health. He took orders for his patients to Moreira so that Anna
Nursing could provide them with home health services. For the referrals, Moreira
paid Jimenez $2,300 in cash per patient per 30-day cycle. In the first few months,
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he referred about 30 patients to Moreira. These patients were not homebound and
did not need therapy. [R. DE229.]
An acquaintance of Moreira, Orlando Torres, confessed to the FBI during an
interview that he had laundered money for Moreira. Moreira would write checks
on Anna Nursing’s Bank of America account, and Torres would give her cash in
the amount of the checks, less his ten percent fee. Torres owned several different
corporations, Medley Consulting, Medley Marketing, OCGMT, All Your Service
Needs, Act Now Services, Gusmagil, and Merline Consulting. [R. GEX9a-e, 12‒
21, 24e.] These companies did not provide any services to Anna Nursing. At the
request of the FBI, Torres agreed to conduct consensual recordings of his meetings
with Moreira when they exchanged checks and cash. [R. DE228‒229.]
In May 2013, the FBI conducted a search of Anna Nursing and seized
patient files and other business records. [R. DE227; GEX25a‒m, 26‒30.] Among
the records were forms signed by patients that did not have any date or description
of services provided, and other forms that had Anna Nursing listed as the provider
but did not contain a doctor’s signature. Normally, the doctor signs the form
before the home health agency is designated. The FBI also discovered fax
transmittal confirmations for the necessary forms that Anna Nursing completed
and faxed to the doctor for a signature, rather than the doctor generating the
documents as a result of a face-to-face encounter with the patient.
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FBI Special Agent Michael Finnerty reviewed the Medicare claims records
for Anna Nursing, as well as the bank records for Anna Nursing, Moreira, and her
co-conspirators. [R. DE228.] Between July 2010 and April 2013, Medicare paid
into Anna Nursing’s bank accounts over $7 million. These Medicare payments
accounted for 97% of all of the deposits into Anna Nursing’s bank accounts. Of
that amount, $6.5 million was paid on claims for home health care involving
physical or occupational therapy, and $801,864 was paid on all other diagnoses.
[R. GEX24.] Medicare paid to Anna Nursing $667,924.32 in claims for 36
Medicare beneficiaries who were clients of Frank Hurst. From the account, a total
of $447,381 was paid to eight companies owned by Torres. From the Anna
Nursing accounts, Moreira received a total of $1,533,072 in cash.
In her defense, Moreira presented numerous witnesses at trial. Joaquin
Pereira testified that he worked as a coder for Anna Nursing for approximately six
months, and during that time, Moreira never asked him to change the information
in the documents he was using for coding and never gave him any instructions to
falsify the coding. [R. DE230.] Marimer Rensoli testified that she worked as a
registered nurse for Anna Nursing and performed initial assessments for patients
who had home health prescriptions from a doctor. She stated that Moreira never
instructed her to falsify assessments, and she was not aware of any Medicare fraud
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at Anna Nursing. She did admit, however, that she obtained patient signatures on
several assessment forms that did not have any patient information provided. [Id.]
Maritza Vila testified that while she was employed at Anna Nursing, she
gave the nurses the packages they needed to sign up patients for home health care,
followed up with nurses who did not timely turn in the documents, and prepared
the payroll. She did not suspect that anything fraudulent was occurring at Anna
Nursing. [R. DE220.] Vincente Perez testified that he worked part-time at Anna
Nursing, inputting data that dealt with patient care. He knew both Ivan Alejo and
Moreira, knew they were good friends, but did not know whether Alejo recruited
patients for Anna Nursing. [Id.] Two other witnesses, Raymond Wright and
Carmen Ortiz, provided irrelevant testimony.
Moreira testified and denied any knowing participation in a Medicare fraud
scheme. [R. DE220‒221.] She stated that she and Alejo had a personal as well as
business relationship, and Alejo assumed the administrative duties when she was
absent from Anna Nursing. She claimed that Alejo was not a patient recruiter at
her behest, and she did not know that he was not seeing the patients he said he was
visiting. She knew that Frank Hurst had referred his wife to Anna Nursing but did
not know that he referred other patients. She denied paying recruiters and denied
any knowledge of payments from Alejo to Frank Hurst. She admitted to treating
patients from Flores Home Health but denied that she paid Jimenez any money for
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the referral of those patients. The prosecutor showed the video recordings of
Moreira’s meetings with Frank Hurst. One recording showed Moreira giving an
envelope to Frank Hurst and, when questioned about the recording and the contents
of the envelope, she responded that she was unable to determine what was inside
the envelope she gave him.
In response to the prosecutor’s questions about the checks she gave to
Torres, she said that the money was for an investment in a club. She could not
explain why the checks were written from the Anna Nursing account and made out
to different companies. She could not provide the name, location, or type of club
in which she was investing. [R. DE231.] She also did not know the names,
locations, or activities of the companies to which she wrote the checks. When
presented with the recording from a meeting with Torres in which Moreira
indicated that she needed the money to pay people, she stated that she engaged in
the discussion about patient recruiting to play along with Torres so she could get
her money.
II. ISSUES
1. Whether sufficient evidence supports the jury’s guilty verdicts.
2. Whether the district court abused its discretion by striking Moreira’s list
of 75 witnesses and by limiting the introduction of defense evidence.
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3. Whether the district court erred by excluding evidence of Moreira’s
compliance with some Medicare rules and regulations.
4. Whether the district court erred at Moreira’s sentencing hearing because
of the way in which the court conducted the colloquy regarding allocution.
III. STANDARDS OF REVIEW
This court reviews de novo whether there is sufficient evidence to support a
guilty verdict in a criminal trial. United States v. Doe, 661 F.3d 550, 560 (11th
Cir. 2011).
The district court has wide discretion in its evidentiary rulings. “Ordinarily,
a district court's evidentiary rulings are reviewed for abuse of discretion.” United
States v. Edouard, 485 F.3d 1324, 1343 (11th Cir. 2007). However, when the
defendant fails to preserve a challenge to an evidentiary ruling by
contemporaneously objecting, our review is for plain error.
Id.
This court reviews for plain error a claim of the denial of the right of
allocution when the defendant made no objection at sentencing. United States v.
Prouty,
303 F.3d 1249, 1251 (11th Cir. 2002). “Under the plain error standard,
before an appellate court can correct an error not raised at trial, there must be (1)
error, (2) that is plain, and (3) that affects substantial rights.” United States v.
McKinley,
732 F.3d 1291, 1296 (11th Cir. 2013) (internal quotation marks
omitted). If these three conditions are satisfied, the court may exercise its
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discretion to correct the error, “but only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Id. (quoting
United States v. Cotton,
535 U.S. 625, 631,
122 S. Ct. 1781, 1785 (2002)).
IV. DISCUSSION
A. Sufficient evidence supports the verdicts
Moreira argues that the Government did not present sufficient evidence of
her knowing participation in a scheme to defraud Medicare and in laundering the
proceeds of the unlawful scheme. Our review of the record convinces us
otherwise.
To sustain the Medicare fraud conspiracy conviction, the Government had to
prove beyond a reasonable doubt that (1) a conspiracy existed; (2) the defendant
knew of it; and (3) the defendant knowingly and voluntarily joined it. United
States v. Vernon, 723 F.3d 1234, 1273 (11th Cir. 2013). The Government may
prove these elements by circumstantial evidence because conspiracy is
“predominantly mental in composition.”
Id. The Government does not have to
show that the defendant knew all of the details of the conspiracy or participated in
every aspect of the conspiracy.
Id. Rather, the Government’s burden is to prove
“that the defendant knew of the essential nature of the conspiracy.”
Id. (quoting
United States v. Miranda,
425 F.3d 953, 959 (11th Cir. 2005)).
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For the money laundering charge, the Government had to prove that an
agreement between two or more persons to commit a money laundering offense
existed, and the defendant knowingly and voluntarily participated in that
agreement. United States v. Broughton, 689 F.3d 1260, 1280 (11th Cir. 2012). To
sustain the conviction for paying kickbacks in connection with Medicare, the
Government had to show that Moreira made payments of money to persons “in
return for referring an individual to a person for the furnishing . . . of any item or
service for which payment may be made in whole or in part under a Federal health
care program.” 42 U.S.C. § 1320a‒7b(b)(1) and (2).
The Government presented sufficient evidence to support these convictions.
The testimony, recordings, and documents seized by the FBI are sufficient proof
that Moreira reached agreements with patients to sign for alleged home health
therapy in return for a cash kickback. She instructed Frank Hurst to recruit
Medicare beneficiaries as patients of Anna Nursing, and she paid him in cash for
each of the recruits he obtained. Evidence showed that Moreira paid Jimenez for
his patient referrals, and Torres testified that Moreira told him that she needed cash
to pay her patients and patient recruiters. She paid doctors and clinics for
providing prescriptions for home health services and retrieved the prescriptions for
Anna Nursing to submit claims for the services to Medicare. There was more than
sufficient evidence from which the jury could infer, beyond a reasonable doubt,
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that Moreira was directly involved in the patient recruiting and payment of
kickbacks so that Anna Nursing could submit fraudulent claims to Medicare.
Additionally, there was sufficient evidence to support the money laundering
convictions. Torres testified that he received the checks from Moreira, written on
the Anna Nursing bank account, and gave her cash in the amount of the checks less
his ten percent fee. Alejo witnessed Torres bringing Moreira a bag of cash one
time. Torres testified that he laundered between $10,000 and $15,000 per week for
Moreira. Moreira’s defense that she gave Torres the checks for an investment are
nonsensical. She was unable to provide the name of the club in which she was
investing, or its location, or its business, and she did not present any documentary
evidence to substantiate any club investment.
In addition to the aforementioned evidence of guilt, Moreira elected to take
the stand and to testify in her own defense. In this circuit, “when a defendant
chooses to testify, [s]he runs the risk that if disbelieved the jury might conclude the
opposite of h[er] testimony is true.” United States v. Brown, 53 F.3d 312, 314
(11th Cir. 1995) (internal quotation marks omitted). Where the Government has
presented some corroborative evidence of guilt for the charged offenses, and the
defendant takes the stand in her own defense, her testimony professing innocence
may establish, by itself, the elements of the offense.
Id. at 315. “This rule applies
with special force where the elements to be proved for a conviction include highly
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subjective elements: for example, the defendant’s intent or knowledge.” Id.; see
also United States v. Williams, 390 F.3d 1319, 1325‒26 (11th Cir. 2004).
The record is replete with evidence supporting Moreira’s convictions. The
jury was free to believe the Government’s witnesses rather than Moreira’s
mythomania. When a defendant testifies, she runs the risk of bolstering the
Government’s case if the jury chooses not to believe her. The jury had the
opportunity to listen to Moreira and judge her credibility and demeanor. It was
free to choose among reasonable interpretations, and it did so. Accordingly, we
conclude from the record that there was more than sufficient evidence to support
Moreira’s convictions.
B. Striking Moreira’s witness list was not abuse of discretion
Moreira contends that the district court severely hampered her presentation
of relevant evidence by striking her list of 75 witnesses. The district court has
wide discretion in ruling on evidentiary issues as to relevance and materiality, and
we will not disturb its rulings absent a clear showing of an abuse of discretion.
Moreira fails to make such a showing.
Prior to the commencement of the trial, the parties agreed that the case
would take three to four days to complete. Because of the agreed upon trial time,
the district court found that Moreira’s list of 75 witnesses was baseless and
unrealistic. Even though defense counsel reduced the list of witnesses, the district
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court commented that most of the remaining witnesses’ testimony was not
relevant. [R. DE 220: 51‒52.] However, Moreira presented numerous witnesses
in her defense, and she cannot show that the district court prevented her from
presenting any relevant testimony. Hence, we conclude that the district court did
not abuse its discretion in striking the list of 75 defense witnesses and having the
defense reduce its number of witnesses.
C. Excluding evidence of Medicare rules compliance was not erroneous
Moreira argues that the district court abused its discretion by excluding
evidence of her compliance with Medicare rules and regulations because this
evidence supported her defense that she did not intend to defraud Medicare.
Moreira makes this argument for the first time on appeal; thus, our review is for
plain error. Edouard, 485 F.3d at 1343.
Generally, “[e]vidence of good conduct is not admissible to negate criminal
intent.” United States v. Camejo, 929 F.2d 610, 613 (11th Cir. 1991); see also
United States v. Ellisor,
522 F.3d 1255, 1270‒71 (11th Cir. 2008) (affirming the
exclusion of evidence of defendant’s legitimate business activities in order to
negate evidence of his fraudulent intent). The Government did not charge and did
not argue that there was no legitimate business conducted at Anna Nursing. Thus,
evidence that some of the claims filed by Anna Nursing may have been for
services legitimately provided to eligible patients without the payment of
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kickbacks was irrelevant. Accordingly, we conclude that the district court did not
err in excluding such evidence.
D. There was no plain error at sentencing
Moreira contends that the district court effectively deprived her of her right
to allocute because it warned her that any statement she made at the sentencing
hearing could be used later if there were a new trial after appeal. She did not
object at sentencing. Thus, we review for plain error her claim of a denial of the
right of allocution. Prouty, 303 F.3d at 1251; see also United States v. Quintana,
300 F.3d 1227, 1231‒32 (11th Cir. 2002) (stating that review of a district court’s
denial of a defendant’s right to allocute is for manifest injustice, which is
equivalent to plain error review).
At sentencing, the district court had a discussion with Moreira’s counsel
concerning the lack of an interpreter at the sentencing because Moreira’s native
language was Spanish. [R. DE234, p.15‒17.] An interpreter had been present
during the trial, and counsel assumed that the interpreter would be present at the
sentencing as well. Counsel acknowledged that Moreira understood English but
communicated better in Spanish. The district court cautioned counsel that Moreira
should be careful if she wanted to allocute in case she appealed and received a new
trial because anything she said could be used at a retrial. The district court
emphasized, however, that it was not trying to stop her from making any
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statements, and it would listen to her speak on her behalf no matter how long it
took. Counsel consulted with Moreira, and she decided not to speak.
“Allocution is the right of the defendant to make a final plea on his own
behalf to the sentencer before the imposition of sentence.” Prouty, 303 F.3d at
1251. This right is protected under the Federal Rules of Criminal Procedure. See
Fed. R. Crim. P. 32. The rule provides that the court, prior to imposing sentence,
must “address the defendant personally in order to permit the defendant to speak or
present any information to mitigate the sentence.” Fed. R. Crim. P. 32(i)(4)(A)(ii).
The district court failed to address Moreira personally before it sentenced her.
Thus, there was error, and it was plain.
Prouty, 303 F.3d at 1252.
Although the district court plainly erred by not addressing Moreira
personally, regardless of whether its warning deprived her of the right to allocute,
Moreira still has the burden of demonstrating that the error affected her substantial
rights. See id. She cannot meet this burden because the district court sentenced
her at the bottom of the sentencing guideline range. “We have held that the denial
of the right of allocution presumptively affects a defendant’s substantial rights only
where the possibility of a lower guidelines sentence exists.” United States v.
Perez,
661 F.3d 568, 583 (11th Cir. 2011); see also
Quintana, 300 F.3d at 1231‒32
(holding that denial of right to allocute was not prejudicial because district court
sentenced defendant to low end of guideline range).
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Moreira’s guideline sentencing range was 235 to 293 months, and the
district court sentenced her to 235 months, the lowest end of the sentencing
guideline range. Hence, she suffered no prejudice, and her substantial rights were
not affected by the court’s error. Accordingly, she is entitled to no sentencing
relief, and we affirm her sentence.
V. CONCLUSION
There was sufficient evidence to support the jury’s guilty verdicts, and the
district court did not abuse its discretion with regard to the evidentiary rulings.
Moreira failed to demonstrate that the district court’s sentencing error affected her
substantial rights or that she was prejudiced by the error.
Thus, for the aforementioned reasons, we affirm Moreira’s convictions and
sentence.
AFFIRMED.
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