United States v. Ricardo Martinez

Case: 12-16524 Date Filed: 08/19/2013 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 12-16524
Non-Argument Calendar
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D.C. Docket No. 1:12-cr-20316-UU-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

RICARDO MARTINEZ,

Defendant - Appellant.

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Appeal from the United States District Court
for the Southern District of Florida
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(August 19, 2013)

Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:
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Ricardo Martinez appeals his convictions after a jury trial on five counts of

health-care fraud, in violation of 18 U.S.C. § 1347. After careful review, we

affirm.

Martinez owned Rima Medical Center (Rima), a company that provided care

for Medicare patients. Rima gave patients an injection, billed for a more expensive

injection, and pocketed the difference. Rima also billed for drugs it never

administered. The jury found Martinez guilty, and this is his appeal.

At trial, the district court instructed the jury, over Martinez’s objection, that

it could convict Martinez of health-care fraud if he was deliberately ignorant of the

fraud’s existence. Martinez first contends that this instruction was improper. We

review the propriety of giving this instruction de novo. United States v. Stone, 9

F.3d 934, 937 (11th Cir. 1993). “A deliberate ignorance instruction is appropriate

when the facts support the inference that the defendant was aware of a high

probability of the existence of the fact in question and purposely contrived to avoid

learning all of the facts in order to have a defense in the event of a subsequent

prosecution.” United States v. Perez-Tosta, 36 F.3d 1552, 1564 (11th Cir. 1994)

(omission and internal quotation marks omitted).

The district court properly instructed the jury on deliberate ignorance. At

trial, the government adduced evidence that Martinez had sole access to Rima’s

bank accounts and signed the agreement authorizing deposits into those accounts

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for services Rima provided to Medicare beneficiaries. Rima billed about $1.7

million for the drugs it purportedly provided Medicare patients but spent less than

$10,000 on those drugs. Rima actually received around $730,000 of the amount

billed, about $531,000 of which was transferred to personal accounts owned by

Martinez and his wife. From this evidence, the jury could easily have concluded

that Martinez was nearly certain of Rima’s fraud but deliberately turned a blind eye

to it in an attempt to avoid criminal liability. Therefore, the district court correctly

instructed the jury on deliberate ignorance. See Perez-Tosta, 36 F.3d at 1564.

Martinez also argues that the district court erred in limiting his cross-

examination of Elizabeth Martin, a government witness. We review this claim for

“a clear abuse of discretion,” but the district court’s discretion “is limited by the

guarantee of the Sixth Amendment’s Confrontation Clause that a criminal

defendant has the right to cross-examine prosecutorial witnesses.” United States v.

Maxwell, 579 F.3d 1282, 1295 (11th Cir. 2009). “A defendant’s confrontation

rights are satisfied when the cross-examination permitted exposes the jury to facts

sufficient to evaluate the credibility of the witness and enables defense counsel to

establish a record from which he properly can argue why the witness is less than

reliable.” United States v. Baptista-Rodriguez, 17 F.3d 1354, 1371 (11th Cir.

1994).

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During Martin’s cross-examination, Martinez’s counsel presented her with a

photograph of a syringe and asked if the syringe contained thirty-eight milligrams

of liquid, but Martin replied that she did not know. After counsel repeated the

question four times, and Martin replied with the same answer, the district court

stopped this line of questioning. Martinez argues that this denied him the ability to

demonstrate Martin’s evasiveness to the jury. But Martinez does not explain how

further examination about the photo would have affected the jury’s ability to assess

Martin’s credibility. Any evasiveness in her answers was already discernible to the

jury. Thus, Martinez’s confrontation rights were satisfied, and the district court

acted well within its discretion in limiting Martinez’s repetitive questioning. 1 See

id. at 1370-71.

Because the district court did not err in instructing the jury or limiting the

cross-examination of a government witness, Martinez’s convictions are

AFFIRMED.

1
Martinez raises two other arguments, but they also fail. Contrary to Martinez’s argument, the
district court did not err in refusing to admit the photo of the syringe into evidence because the
photo had not been authenticated. See Fed. R. Evid. 901(a). Martinez also contends he should
have been able to question Martin as an expert witness, but neither party proffered her as an
expert witness.
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