[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-16125
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D. C. Docket No. 1:10-cr-10767-JLK-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUDITH NEGRON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(April 18, 2013)
Before DUBINA, Chief Judge, BARKETT and FAY, Circuit Judges.
PER CURIAM:
Defendant/Appellant Judith Negron (“Negron”) appeals her convictions and
sentences for various federal charges involving a massive health care fraud.
According to the superceding indictment, Negron and her co-conspirators, Larry
Duran (“Duran”) and Marianella Valera (“Valera”), submitted more than $205
million in false and fraudulent claims to Medicare and managed to extract more
than $87 million in illicit payments. The scheme employed two healthcare
facilities, American Therapeutic Corporation (“ATC”) and the American Sleep
Institute (“ASI”), as well as a fraudulent management organization, Medlink
Professional Management Group (“Medlink”). ATC made money by billing
Medicare for so-called Partial Hospitalization Program (“PHP”) services and only
saw patients covered by Medicare. ASI purportedly provided sleep study services
and billed for medically unnecessary expenses. Both facilities recruited patients
from assisted living facilities and halfway houses. The facilities provided
kickbacks to the managers at either the assisted living facilities or the halfway
houses who encouraged their residents to attend ATC and ASI. This arrangement
lasted for a period of eight years.
After a six day jury trial, Negron was found guilty of all of the charged
crimes. At the sentencing hearing, the government recommended a sentence of 45
years, but the district court sentenced Negron to 35 years’ imprisonment. She then
perfected this appeal.
The issues presented on appeal are:
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(1) Whether the district court erred in questioning a witness during the trial.
(2) Whether the district court erred when it allegedly assumed the role of
the prosecutor during the trial.
(3) Whether the district court abused its discretion in denying Negron’s
motion for a mistrial based on alleged prosecutorial misconduct.
(4) Whether the district court erred in determining the amount of the
intended loss for sentencing purposes.
(5) Whether the district court erred in applying the vulnerable victim
enhancement to Negron’s sentence.
Ordinarily, the court reviews the district court’s conduct during trial for an
abuse of discretion, but here, where Negron failed to object to the challenged
conduct at trial, the court reviews for plain error. See United States v. Van De
Walker, 141 F.3d 1451, 1452 n.3 (11th Cir. 1998). An error is plain only if it “is
an error that is obvious and is clear under current law.” United States v.
Humphrey, 164 F.3d 585, 588 (11th Cir. 1999) (internal quotation marks omitted).
This court reviews for abuse of discretion the district court’s order denying a
motion for mistrial. United States v. Emmanuel, 565 F.3d 1324, 1334 (11th Cir.
2009). This court, however, reviews de novo allegations of prosecutorial
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misconduct, which present mixed questions of law and fact. United States v.
Campa, 529 F.3d 980, 992 (11th Cir. 2008).
This court reviews de novo the district court’s application of the sentencing
guidelines. United States v. Louis, 559 F.3d 1220, 1224 (11th Cir. 2009). This
court “review[s] for clear error the district court’s determination regarding the
amount of loss under the Guidelines.” United States v. Hoffman-Vaile, 568 F.3d
1335, 1340 (11th Cir. 2009) (internal quotation marks omitted). The district
court’s application of the vulnerable victim enhancement presents a mixed
question of law and fact, which this court reviews de novo. United States v.
Arguedas, 86 F.3d 1054, 1057 (11th Cir. 1996). “The district court’s
determination of a victim’s ‘vulnerability’ is, however, essentially a factual finding
to which [this court] give[s] due deference.” Id.
After reviewing the record, reading the parties’ briefs, and having the benefit
of oral argument, we conclude that there is no merit to any of the arguments
Negron makes in this appeal. We do, however, feel compelled to briefly address
the first issue presented on appeal.
Negron contends that the district court impermissibly intruded into the
Government’s case when the court asked witness Margarita Acevedo (“Acevedo”)
questions which supported the foundation for the structuring counts. Acevedo
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testified that she, along with Negron, Duran, and Valera, would go to the bank
together to cash checks. Then, the defendants would give her cash to pay
kickbacks to the managers of the assisted living facility and the halfway house.
During her testimony, the district court asked Acevedo about separate checks to the
same payee in excess of $10,000. In response to defense counsel’s objection to the
question posed by the court, the district court responded that the witness could say
what she would do if she had that situation arise. Then the court asked the witness
if she had ever had a situation where she received a bunch of checks that were
more than $10,000, but separate, and the witness responded that if she received the
checks in the same day, she would have to file a report. Negron asserts that these
questions were improper for a lay witness and should have been asked only to an
expert witness. Although Negron’s argument fails, we caution district courts to be
circumspect and careful in questioning witnesses during the course of a criminal
trial. When district judges take over questioning of witnesses, they run the risk of
injecting reversible error in the record.
Under Federal Rule of Evidence 614(b), a trial court may examine a witness
called by either party and may even call a witness on its own. The district court,
however, abuses its discretion in questioning a witness when the judge “abandons
[his] proper role and assumes that of an advocate.” United States v. Wright, 392
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F.3d 1269, 1274 (11th Cir. 2004). This court reviews the challenged conduct “in
the framework of the trial as a whole,” id. at 1275, and will find an abuse of
discretion “[o]nly when the judge’s conduct strays from neutrality, and even then
only when its remarks demonstrate pervasive bias and unfairness that actually
prejudice a party.” United States v. Hill, 643 F.3d 807, 846 (11th Cir. 2011)
(internal quotation marks and alteration omitted), cert. denied, 132 S. Ct. 1988
(2012).
Because the Rules expressly provide that the district court may question
witnesses and Negron fails to show that the district court distorted or added to the
evidence by asking the few questions it asked here, we see no reversible error. See
United States v. Jenkins, 901 F.2d 1075, 1082-83 (11th Cir. 1990) (no abuse of
discretion when judge’s comments did not stray from neutrality). Additionally, the
district court instructed the jury at the end of the trial that it was the factfinder, and
the jury should disregard anything the court may have said during the course of the
trial. Such instructions intend to mitigate any prejudice that may have resulted
from the court’s questioning. See e.g., United States v. Benefield, 889 F.2d 1061,
1066 (11th Cir. 1989).
In conclusion, because we hold that there is no merit to any of the issues
presented by Negron in this appeal, we affirm her convictions and sentences.
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AFFIRMED.
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