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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-10821
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D.C. Docket No. 1:12-cr-20265-DMM-7
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIANELA TERRERO,
DAYMI FUENTES GIL,
OLGA MARTINEZ RODRIGUEZ,
JOEL LOYOLA,
Defendants-Appellants.
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Appeals from the United States District Court
for the Southern District of Florida
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(July 3, 2014)
Before HULL, BLACK and FARRIS,* Circuit Judges.
PER CURIAM:
*
Hon. Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by designation.
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The Defendants were involved in a scheme in which a home healthcare
company, Superstar, would pay for them 1) to receive Medicare payments for care
provided by Superstar or 2) to refer other patients for Superstar’s services. The
Defendants were charged with substantive violations of the Anti-Kickback Statute,
42 U.S.C. §§ 1320a-7b(b)(1)(A), (1)(B), (2)(B), and conspiracy,18 U.S.C. § 371.
A jury found the Defendants guilty on all counts. The district court sentenced
Defendant Terrero to 16 months incarceration, three years of supervised release,
and $24,447.80 in restitution. Defendant Fuentes-Gil was sentenced to 15 months
incarceration and three years of supervised release, and $31,702.62 in restitution.
Defendant Martinez was sentenced to 15 months incarceration and three years of
supervised release, and $31,702.62 in restitution. Defendant Loyola was sentenced
to 24 months incarceration and three years of supervised release, and $14,988.04
in restitution. The Defendants appeal their convictions and sentences. This Court
has jurisdiction under 28 U.S.C. § 1291.
I. Sufficiency of the Evidence
The evidence was sufficient to support all convictions. A jury verdict will
only be overturned on the basis of evidentiary insufficiency if no reasonable juror
could have found the defendant guilty beyond a reasonable doubt. United States v.
Vernon, 723 F.3d 1234, 1266 (11th Cir. 2013). Here there was sufficient evidence
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showing that the defendants acted “voluntarily and purposely, with the specific
intent to do something the law forbids….” Vernon, 723 F.3d at 1256. There is
testimony that Terrero showed up to the Superstar office and threatened to call
Medicare and the police if she did not receive payment for her referrals. There is
evidence that Martinez and Fuentes-Gil, after learning that their legitimate
rheumatologist would not certify them as homebound, then went to a podiatrist in
order to get certification and receive a $900 kickback from Superstar. On the
record, a reasonable jury could conclude that the Defendants acted with
knowledge of the illegality of their conduct.
Martinez also argues separately that the evidence was insufficient to support
her conspiracy charge, as she was not aware of the other kickbacks taking place.
For the conspiracy charge to be upheld, there must be evidence of knowledge of
agreement to an unlawful plan. United States v. Chandler, 388 F.3d 796, 806 (11th
Cir. 2004). Here, Martinez went beyond merely receiving her own kickback. She
attempted to recruit a new Medicare beneficiary to include in the Superstar scheme
(Barbara). A reasonable jury could properly find knowledge of the larger scheme.
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Loyola attempts to incorporate these evidentiary sufficiency challenges as
his own, but evidentiary sufficiency claims cannot be adopted. United States v.
Cooper, 203 F.3d 1279, 1285 n.4 (11th Cir. 2000).
II. Expert Testimony
It was not error for the district court to admit the expert testimony of nurse
Gale Meade, including her opinion that Martinez was not homebound under the
Medicare statute. District courts’ evidentiary rulings are reviewed for abuse of
discretion. United States v. Stephens, 365 F.3d 967, 973-74 (11th Cir. 2004).
Evidence must be relevant, FED. R. EVID. 401(a)(b), but even relevant evidence
may be excluded if its probative value is substantially outweighed by a danger of
unfair prejudice, confusing the issues, or misleading the jury. FED. R. EVID. 403.
Expert testimony as to the homebound status of Martinez was relevant to the
Anti-Kickback prosecution: if it were true that Martinez should not have been
certified as “homebound,” one could reasonably conclude that the payments she
received were functioning as “kickbacks.”
This testimony did not violate Rule 403. While it could be argued that
Mead’s testimony focused the jury’s attention towards something more relevant to
a Medicare fraud prosecution, “homebound” status was also relevant for the Anti-
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Kickback case. The probability of confusion is not sufficient to warrant exclusion
of the testimony.
III. Jury Instructions
The district court did not err in refusing to grant a requested jury instruction
on the law of multiple conspiracies. A district court’s refusal to grant a requested
jury instruction is reviewed for abuse of discretion. A refusal to grant an
instruction on multiple conspiracies will only result in reversal if the record
reflects a factual basis for a finding of multiple conspiracies. United States v. Orr,
825 F.2d 1537, 1542-43 (11th Cir. 1987). The fact that the patients only dealt
directly with Superstar employees and did not know the specific identities of other
patients does not convert the single conspiracy into many. Id. There is no evidence
of separate networks operating independently of the central Superstar core. Id.
There is evidence that the Defendants knew that other people were receiving
kickbacks—all acted as recruiters for other patients, even when they were patients
themselves.
IV. Sentencing Issues
The record reflects no sentencing error. Questions of law regarding the
Sentencing Guidelines are reviewed de novo, United States v. Huff, 609 F.3d
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1240, 1245 (11th Cir. 2010), while factual findings are reviewed for clear error.
United States v. Bane, 720 F.3d 818, 827 (11th Cir. 2013).
The district court did not err in determining the offense level. U.S.S.G. §
2B4.1 directs that the total offense level will be determined by the greater of the
“value of the bribe or the improper benefit to be conferred.” Huff, 609 F.3d at
1245. The “improper benefit” to be conferred is not, as the Defendants urge, the
same as the kickback or the bribe: it “refers to the value of the action to be taken
or effected in return for the bribe.” U.S.S.G. § 2B4.1, cmt. 2; see also Huff, 609
F.3d at 1245 (explicitly equating “bribe” with kickback). On this record, that was
the value of the Medicare payments used by Superstar to treat patients.
It was not error to fail to credit allegedly medically necessary payments
when determining the value of the improper benefit conferred. The Defendants can
point to no authority that dictates that otherwise legitimate payments can offset
such a value. While the Defendants argue that medically necessary payments
cannot be “improper,” the impropriety comes from the illegitimacy of the means
by which the payments were procured: a kickback.
Medical necessity is relevant for the determination of the amount of
restitution, since restitution is based on actual “loss.” Huff, 609 F.3d at 1247; see
Bane, 720 F.3d at 828 (citing United States v. Vaghela, 169 F.3d 729, 736 (11th
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Cir. 1999)). The district court found as a fact that all but one of the Defendants’
treatments were medically unnecessary. The efforts undertaken by the Defendants
to circumvent the normal procedures for receiving “homebound” certification
support such a finding. The district court made no such finding with respect to
Loyola, who failed to make a medical necessity argument to the sentencing judge.
A plain error review reveals nothing in the record to suggest that Loyola’s
treatments were medically necessary. United States v. Rodriguez, 398 F.3d 1291,
1299 (11th Cir. 2005).
We reject Martinez and Fuentes-Gil’s argument that the district court should
not have combined the amount of the improper benefits attributed to each.
U.S.S.G. § 1B1.3 provides that the foreseeable harm of co-conspirators may be
attributed to other members of the conspiracy. The two women lived together and
both were present during the conspiratorial discussions. The improper benefit that
each received was foreseeable to the other.
AFFIRMED.
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