NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0236n.06
No. 13-5257
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA ) Mar 28, 2014
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
YENNIER CAPOTE GONZALEZ ) COURT FOR THE MIDDLE
) DISTRICT OF TENNESSEE
Defendant-Appellant. )
)
)
Before: KEITH, COOK, and KETHLEDGE, Circuit Judges.
KETHLEDGE, Circuit Judge. A jury convicted Yennier Capote Gonzalez of five counts
of health care fraud in violation of 18 U.S.C. § 1347, one count of money laundering in violation
of 18 U.S.C. § 1957, and two counts of aggravated identity theft in violation of 18 U.S.C.
§ 1028A. The district court sentenced him to 67 months’ imprisonment. Gonzalez appeals his
convictions and sentence on many grounds, most of which are meritless. The exception is his
challenge to the sufficiency of the evidence supporting his convictions for aggravated identity
theft, as to which the government presented little evidence at trial, and few arguments on appeal.
We affirm Gonzalez’s convictions for health care fraud and money laundering, reverse his
convictions for aggravated identity theft, and remand the case for resentencing.
No. 13-5257, U.S. v. Gonzalez
I.
Yennier Capote Gonzalez lived in Miami. He bought a tract of land at 140 Lonesome
Point Lane in Jackson County, Tennessee. The tract had an unfinished house on it. Gonzalez
also bought a nearby tract of land at 179 Buck Branch Lane, which included a run-down barn.
Gonzalez later defaulted on the mortgages for each of the Jackson County properties. The lender
foreclosed and sold the properties at auction in June 2010. Thereafter Gonzalez had no legal
interest in the properties.
That same month, however, Gonzalez submitted a Tennessee corporate charter for
Gainesboro Ultimate Med Service Corporation, which listed Gainesboro Med’s mailing address
as 179 Buck Branch Lane. The charter also listed the same address for Gonzalez, and listed him
as Gainesboro Med’s president. On July 1, Gainesboro Med applied for a national provider
identification (NPI) number, which are unique identifiers issued by the Centers for Medicare and
Medicaid Services to healthcare providers such as doctors and medical clinics. This application
listed Gainesboro Med’s address at 179 Buck Branch Lane and its authorized official as
Gonzalez. Weeks later, Gonzalez obtained a business license from Jackson County, Tennessee,
to operate Gainesboro Med as an “online medical billing” company. Once again, Gainesboro
Med’s listed address was 179 Buck Branch Lane.
On July 13, Manuel Trujillo sent a text message to cellphone number (305) 420-8152.
The text contained only the name “Tidence Prince, M.D.” and an NPI number. Two days later,
Trujillo sent a series of text messages to the same phone number that contained the names
Orlando Martinez, Jorge Valdez, Monica Rodriguez, and Rosemary Mir.
On July 16, Gonzalez opened a business-checking account for Gainesboro Med with
Regions Bank in Cookeville, Tennessee. He listed Gainesboro Med’s address as 179 Buck
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Branch Lane and made himself the account’s only authorized signatory. Gonzalez also listed his
phone number as (305) 420-8152—the number for the cellphone that had received the text
messages on July 13 and 15.
Over the next few weeks, Gainesboro Med submitted several online claims to two
different insurance companies, Wellpoint and Cigna. Gainesboro Med sought reimbursement for
injections that were purportedly administered to the persons listed in the July 15 text messages:
Orlando Martinez, Jorge Valdez, Monica Rodriguez, and Rosemary Mir. Each claim included
Dr. Prince’s NPI number and listed him as the physician who administered the injections. In
fact, however, most of the patients were fictitious and none of the injections were performed.
On August 12, Cigna mailed to 179 Buck Branch Lane a $38,116 check payable to
Gainesboro Med for medical services purportedly provided to Rosemary Mir and Monica
Rodriguez. Five days later, Gainesboro Med deposited that check into its checking account at
Regions Bank in Cookesville, Tennessee. The check constituted essentially all of the funds in
Gainesboro Med’s account. Two days later, Gonzalez (the account’s only signatory) wrote a
check to Manuel Trujillo for $2000 and another check in the same amount to himself, which he
deposited in his personal account. On August 23, Gonzalez visited a Regions Bank in Miami
and obtained a $14,400 cashier’s check, payable to his landlord, drawn from the Cigna funds in
the Gainesboro account. He also tried to wire Trujillo the remaining $17,000 from the Regions
account, but the bank refused because the funds had been deposited too recently.
Meanwhile, Cigna reported Gainesboro Med as a suspicious provider to Special Agent
Robert Turner at the Department of Health and Human Services. Turner investigated, first by
visiting 179 Buck Branch Lane. There he found only a barn and a mailbox, which contained
mail addressed to Gainesboro Med.
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Turner also learned that the patients whom Gainesboro Med supposedly had treated
resided at 140 Lonesome Point Lane. He drove there and found only a mailbox and the
unfinished house, which consisted of a foundation, walls, and a cover for a roof. The mailbox
contained mail from Wellpoint and Cigna.
On August 24, Turner called Carol Sawaya, a manager at Region Bank’s Miami office,
and explained that he was investigating Gainesboro Med and Gonzalez. With Sawaya’s
assistance, Turner then coordinated a plan to arrest Gonzalez at the bank. The next day, a
Region’s employee called Gonzalez and told him that his $17,000 wire transfer had been
approved and that he needed to come into the bank. Gonzalez did so and gave Sawaya his
driver’s license and bank card. Then Turner arrested him.
A jury thereafter convicted Gonzalez of five counts of health care fraud in violation of
18 U.S.C. § 1347, one count of money laundering in violation of 18 U.S.C. § 1957, and two
counts of aggravated identity theft in violation of 18 U.S.C. § 1028A. Gonzalez filed a motion
for judgment of acquittal or new trial, which the district court denied. The court sentenced
Gonzalez to 67 months’ imprisonment. This appeal followed.
II.
A.
Gonzalez challenges two of the district court’s evidentiary decisions.
1.
Gonzalez argues that the government violated his Fourth Amendment right to be free
from unreasonable searches when it obtained the July 13 and 15 text messages from the phone
company without a warrant. The phone number that received the messages was the same one
that Gonzalez had listed as his contact number when he opened a Regions Bank account for
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Gainesboro Med. In fact, however, that phone number was assigned to an account registered to
someone else. The district court denied Gonzalez’s motion to exclude on the grounds that he
lacked standing to challenge the admission of text messages retrieved from a phone account that
was registered to someone else.
To establish standing for the purposes of the Fourth Amendment, Gonzalez must show,
first, that “he had an actual, subjective expectation of privacy” in the text messages; and second,
that his expectation was “objectively reasonable.” United States v. Smith, 263 F.3d 571, 582 (6th
Cir. 2001). Reasonable expectations of privacy arise from “a source outside of the Fourth
Amendment, either by reference to concepts of real or personal property law or to
understandings that are recognized and permitted by society.” United States v. Jones, 132 S. Ct.
945, 951 (2012) (internal quotations omitted). We review the district court’s findings of fact for
clear error and its legal conclusions de novo. Smith, 263 F.3d at 582.
Gonzalez has made virtually no effort to carry his burden here. He offers merely the
conclusory assertion that “[c]learly [he] had a legitimate expectation of privacy in his telephone
and telephone records.” But the phone account in fact was not “his,” and he made no effort to
show that he exercised any control over the account (which belonged to someone else) from
which the text messages were obtained. Thus, whatever the particular standard might be for
establishing standing for purposes of contesting the government’s retrieval of records from a
cellphone account, Gonzalez has not met it here.
Gonzalez alternatively argues the text messages were inadmissible hearsay under Federal
Rule of Evidence 802. At trial, the government argued that the messages were offered not for
the truth of the matter asserted, but rather to show “that the defendant or this particular phone
received these text messages[.]” The district court agreed and denied Gonzalez’s motion to
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exclude. We review de novo the court’s determination that the text messages were not hearsay.
United States v. Rodriguez-Lopez, 565 F.3d 312, 314 (6th Cir. 2009).
A “statement offered as evidence of the bare fact that it was said, rather than for its truth,
is not hearsay.” Rodriguez-Lopez, 565 F.3d at 314. Here, the government “[did not] care
whether the written texts [were] true or untrue.” (R. 156 at 23). Instead, the government sought
to introduce the text messages because they supported an inference that Gonzalez was involved
in healthcare fraud and identity theft. Moreover, those inferences “do[] not depend on the
[sender’s] truthfulness, memory, or perception—the core credibility concerns that lie behind the
hearsay rule.” Id. at 315. Thus, the messages were not hearsay, and the district court did not err
when it admitted them.
2.
Gonzalez also argues that the district court erred when it granted the government’s
pretrial motion to exclude certain documents. We review the district court’s evidentiary rulings
for an abuse of discretion. United States v. Ashraf, 628 F.3d 813, 826 (6th Cir. 2011). The
excluded documents fall into four categories: (1) “Subpoena Reports” for OLOFIN Inc. (a
company apparently owned by Trujillo), dating back nearly a year before the scheme began;
(2) Florida corporate records for seven other companies that Trujillo owned; (3) telephone-
subscriber information and calling records for Trujillo and another phone number not related to
the indictment; and (4) a motion for a protective order in an unrelated Florida civil case.
Gonzalez contends that these documents were relevant to his theory that he was a pawn in
Trujillo’s fraudulent schemes and thus lacked the knowledge and intent required for the charged
offenses.
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Specifically, Gonzalez offered the documents because, he says, they demonstrate that
Trujillo was the mastermind of the scheme at issue here. But the “Subpoena Reports,” corporate
records, and the Florida court motion date back to the years prior to the scheme, and concern
corporations or persons not charged in the indictment. Nor are they related to any of the
transactions alleged in the indictment. Similarly, the phone records offered by Gonzalez show
only the subscriber information, and the times and durations of outgoing and incoming calls
between Trujillo and a telephone number not involved in this case. We therefore agree with the
district court that these documents were irrelevant.
B.
Gonzalez next challenges the sufficiency of the evidence supporting each of his
convictions—five counts of healthcare fraud, one count of money laundering, and two counts of
aggravated identity theft. We can reverse only if no “rational trier of fact could have found the
essential elements of the crime[s] beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.
307, 319 (1979).
1.
To convict Gonzalez of healthcare fraud in violation of 18 U.S.C. § 1347, the government
must prove that he “(1) knowingly devised a scheme or artifice to defraud a health care benefit
program in connection with the delivery of or payment for health care benefits, items, or
services; (2) executed or attempted to execute this scheme or artifice to defraud; and (3) acted
with intent to defraud.” United States v. Jones, 641 F.3d 706, 710 (6th Cir. 2011) (citation
omitted). Gonzalez concedes that someone submitted the fraudulent claims on behalf of
Gainesboro Med—the company he founded and owned—but argues that there is no proof that he
was that person.
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Circumstantial evidence alone can sustain a guilty verdict. United States v. Martinez, 588
F.3d 301, 314 (6th Cir. 2009). And there was plenty of circumstantial evidence here. Gonzalez
founded and owned Gainesboro Med. The phone number that he listed as his contact number at
Regions Bank received a text message with Dr. Prince’s name and NPI number. That phone
number received other messages with names of fictitious patients used to file the fraudulent
claims. Gainesboro’s fake medical clinic—where the fraudulent medical services supposedly
took place—was located in a run-down barn that Gonzalez previously owned. The fictitious
patients supposedly lived at an unfinished house that Gonzalez also previously owned. The
$38,116 check that Cigna issued for one of the fraudulent claims was deposited into
Gainesboro’s bank account—for which Gonzalez was the only signatory. Gonzalez spent over
$16,000 of that money. The jury could have easily inferred from this evidence that Gonzalez
filed the fraudulent claims.
Based upon that same evidence, the jury had ample reason to find that Gonzalez knew
about the scheme and intended to defraud a healthcare benefits program. See United States v.
Davis, 490 F.3d 541, 549 (6th Cir. 2007). Sufficient evidence supports his convictions for
healthcare fraud.
2.
Gonzalez next challenges the sufficiency of the evidence for his money-laundering
convictions in violation of 18 U.S.C. § 1957. Section 1957 requires, among other things, that
Gonzalez “knowingly” engaged in a monetary transaction involving “criminally derived property
of a value greater than $10,000” that was “derived from specified unlawful activity.” United
States v. Bazazpour, 690 F.3d 796, 801 (6th Cir. 2012) (quoting 18 U.S.C. § 1957). Gonzalez
undisputedly withdrew $14,400 of the $38,116 Cigna check to pay his landlord.
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Gonzalez’s argument as to this conviction is derivative of the argument we just rejected:
Gonzalez says that the jury lacked evidence to find that he knew that the Cigna funds were
criminally derived. We reject this argument for the same reasons as stated above.
3.
More serious is Gonzalez’s challenge to his conviction for aggravated identity theft in
violation of 18 U.S.C. § 1028A(a)(1). To convict Gonzalez of that charge, the government was
required to prove that he “knew that the means of identification at issue belonged to another
person.” Flores-Figueroa v. United States, 556 U.S. 646, 657 (2009). Here, the means of
identification at issue was Dr. Prince’s NPI number. Thus, for Gonzalez’s conviction to stand,
the government must have proved that Gonzalez knew that Prince was a real person.
The government’s proofs on this issue were sparse. The government concedes that it has
no direct evidence that Gonzalez knew that Prince was a real person, and that the only
information that Gonzalez received about Prince was the July 13 text message that contained
Prince’s name along with an NPI number. But the government argues that the jury could infer
that Gonzalez knew that Dr. Prince was a real person nonetheless. The government summarizes
its argument as follows:
[D]efendant created the corporation Gainesboro Ultimate Med Service by filing
for a corporate charter for on June 29, 2010. Later in July, 2010, he applied for a
business license for Gainesboro Med. (R. 156, TTR I, Page ID# 750-752, 767-
769). The defendant’s actions, while setting up the corporation, demonstrate that
defendant had knowledge that Gainesboro Med had to be a real corporation in
order to receive an NPI number. He knew he could not merely fill in the name of
a corporation on the NPI application without the appropriate documentation to
substantiate the existence of the corporation. From this, a jury could reasonably
infer that defendant knew that the doctor’s name and NPI number provided on the
claim forms must be that of a real person.
Thus, in essence, the government argues that Gonzalez’s own experience in obtaining an
NPI number for Gainesboro Med shows that Gonzalez knew that Dr. Prince could have obtained
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an NPI number only if he was a real person. But that inference is hardly compelling. True, the
government presented evidence that the IRS “validates” NPI numbers for “organizations” every
six months. But the government did not present any proofs that Gonzalez was aware of those
procedures. More to the point, the government did not present evidence that the same or similar
procedures existed for validating NPI numbers assigned to doctors—much less that Gonzalez
was aware of those procedures. So far as Gonzalez knew—and indeed so far as the record shows
here—the possibility remains that a fraudster could obtain an NPI number, at least for a while,
for a doctor who is fictitious.
The evidence in this case, therefore, is considerably weaker than the proofs found
sufficient in cases involving aggravated identity theft. In one case, the defendant possessed the
victim’s birth certificate and credit reports, in addition to the Social Security number that was the
means of identification used there. United States v. Valerio, 676 F.3d 237, 244–45 (1st Cir.
2012). In another case, the defendants possessed credit-card numbers that they were told “had to
be used within 24 hours, which the jury could view as notice that the account numbers belonged
to the persons listed and might be reported stolen after 24 hours.” United States v. Shifu Lin,
508 F. App’x 398, 401-02 (6th Cir. 2012). And other courts have held that “a defendant’s
repeated and successful testing of the authenticity of a victim’s identifying information prior to
the crime at issue is powerful circumstantial evidence that the defendant knew the identifying
information belonged to a real person as opposed to a fictitious one.” United States v. Doe,
661 F.3d 550, 562-63 (11th Cir. 2011).
We have nothing of the sort here. What we have, by the government’s own account, is
merely that Gonzalez incorporated Gainesboro Med (itself a shell corporation) in order to obtain
an NPI number for it. Even viewing the evidence in the light most favorable to the government,
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that fact would not allow a jury to infer, beyond a reasonable doubt, that Gonzalez knew Prince
was a real person. We therefore reverse Gonzalez’s conviction for aggravated identity theft.
* * *
In light of our decision to reverse Gonzalez’s conviction for aggravated identity theft, we
do not address his arguments with respect to his sentence.
We reverse Gonzalez’s conviction for aggravated identity theft, affirm his other
convictions, vacate the sentences, and remand the case for resentencing.
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