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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-10953
________________________
D.C. Docket No. 1:13-cr-20505-RNS-7
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BLANCA RUIZ,
ALINA FONTS,
Defendants - Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(June 21, 2017)
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Before MARCUS, JILL PRYOR, and SILER, * Circuit Judges.
SILER, Circuit Judge:
Blanca Ruiz and Alina Fonts were convicted for their roles in a Medicare
fraud perpetrated by Health Care Solutions Network, Inc. (“HCSN”). Ruiz was
convicted on one count of conspiracy to commit health care fraud in violation of
18 U.S.C. § 1349. Fonts was convicted on one count of conspiracy to commit
health care fraud in violation of 18 U.S.C. § 1349 and two counts of health care
fraud in violation of 18 U.S.C. § 1347. Both Ruiz and Fonts challenge the
sufficiency of the evidence against them, claim cumulative error necessitates a new
trial, and appeal the imposition of a twenty-two-level increase based on fraud loss
calculation when calculating their Guidelines sentencing ranges. Fonts also
appeals the imposition of a two-level leadership enhancement. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Ruiz and Fonts were charged, along with a number of codefendants, with
conspiracy to commit health care fraud in violation of 18 U.S.C. § 1349. Fonts
was separately charged with two substantive counts of health care fraud in
violation of 18 U.S.C. § 1347. A jury convicted Ruiz and Fonts on all of the
counts against them. Each was sentenced to a term of seventy-two months’
*
Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by
designation.
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imprisonment to be followed by three years of supervised release and ordered to
pay over $10 million in restitution.
The Fraud at HCSN
Ruiz and Fonts were employees at HCSN, a company operating partial
hospitalization programs (“PHPs”). There were eventually three HCSN facilities.
Two were located in Miami: HCSN-East and HCSN-West. The third facility was
in North Carolina. Each facility had a medical director who was a doctor, a
clinical director, a group of therapists, and a number of support staff. Both Ruiz
and Fonts worked primarily at HCSN-West, although Ruiz also spent a brief period
at HCSN-East.
PHPs offer mental health treatment that is either a step up from outpatient
care or a step down from inpatient treatment in a mental health ward. A PHP
provides intensive, all-day treatment up to six days per week and engages patients
with treatment activities throughout the day. Treatment plans are customized for
each patient, and PHPs seek to stabilize symptoms and to keep patients out of the
hospital. Patients are most often referred to PHPs by other mental health
professionals. Paying kickbacks for PHP referrals contravenes medical ethics and
violates federal law, see 42 U.S.C. § 1320a-7b(b)(2)(A). Medicare does not
prescribe a fixed length of time for a stay in a PHP, but a typical stay lasts two to
three weeks and longer stays generally demonstrate that the treatment is
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ineffective. The attending psychiatrist decides when a patient is discharged, but a
PHP discharging a patient at one location only to readmit him at another location
after a set interval of time likely indicates that neither admission was predicated
upon patient needs.
Medicare imposes documentation requirements for each patient at a PHP
from intake to discharge. United States v. Moran, 778 F.3d 942, 951 (11th Cir.
2015). Intake notes include patient history, symptoms, and notes from other
doctors. While therapy is ongoing, therapists record the treatment provided to each
patient and the patient’s level of participation in therapeutic activities. Such
notations should be made promptly and backdating notes is inappropriate. All
information in patient files, including treatment records and therapy notes, should
be truthful.
HCSN billed Medicare for medically unnecessary treatments that were often
not even provided to patients. Participants in the fraud recruited PHP patients
without regard to their suitability for such a program. Kickbacks were paid to
mental health workers in hospitals and assisted care facilities who referred
Medicare beneficiaries to HCSN facilities. Some HCSN employees enrolled their
parents in order to receive kickbacks themselves. Many HCSN patients suffered
from dementia or other memory problems making therapy useless and slept
through the therapy sessions that were offered.
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There was rampant fabrication of documentation to maintain appearances
that the facility complied with Medicare requirements. This included inventing
information for patient files during intake, having unqualified individuals conduct
intake interviews, and having doctors sign admissions documents without
reviewing the files or meeting with the patients. Group therapy notes were
fabricated, and when group therapy sessions did occur notes were altered if they
indicated that a patient fell asleep, did not participate, or was suffering from
memory problems. Therapy notes were copied and pasted from one session to
another so that patients’ files contained multiple versions of the same notes.
Therapists were instructed in how to write their notes to meet Medicare
requirements, regardless of the notes’ accuracy. At both HCSN facilities located in
Florida, there were also lists of non-existent ghost patients for whom HCSN billed
Medicare. The group in the HCSN-West facility was called the “white group,”
named after Casper the ghost.
Once a patient was enrolled at an HCSN facility, there was a concerted
effort to keep him there for as long as possible. This resulted in Medicare being
billed for 612 days of services for a single patient, even though a normal stay in a
PHP lasts no more than three weeks. Patients were cycled between HCSN
facilities and were sent to other fraudulent PHPs. Approximately four to six weeks
after a patient was discharged from one facility, he would be perfunctorily
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admitted at a different facility. HCSN-West contained a whiteboard with detailed
information as to when patients were discharged and how long HCSN had to wait
before readmitting them without raising regulatory suspicion.
The Defendants
Ruiz was a registered mental health intern counselor. She worked primarily
in HCSN-West’s intake department inputting patient history information after
meeting with patients and bringing patient files to the attending psychiatrist who
would design a treatment plan. She also worked briefly at HCSN-East.
Fonts was a registered mental health counselor at HCSN-West. Initially she
had similar job responsibilities to Ruiz, but during the final months of her
employment she was the “clinical coordinator and responsible for running groups.”
Fonts was the de facto clinical director of HCSN-West during that period.
STANDARD OF REVIEW
We review the sufficiency of evidence to support a conviction de novo while
viewing the evidence in the light most favorable to the jury’s verdict and resolving
all credibility evaluations in favor of the jury’s verdict. Moran, 778 F.3d at 958.
Evidentiary rulings are reviewed for an abuse of discretion. United Sates v.
Tokars, 95 F.3d 1520, 1530 (11th Cir. 1996). Unpreserved claims are reviewed for
plain error. United States v. Olano, 507 U.S. 725, 734 (1993).
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Claims of prosecutorial misconduct are reviewed de novo. United States v.
Merrill, 513 F.3d 1293, 1306 (11th Cir. 2008). Review of a claim of cumulative
error is de novo. United States v. Dohan, 508 F.3d 989, 993 (11th Cir. 2007).
Giving an Allen charge is reviewed for an abuse of discretion. United States v.
Woodard, 531 F.3d 1352, 1364 (11th Cir. 2008). A verdict following an Allen
charge will only be reversed when there is a finding that the charge was
“inherently coercive.” United States v. Dickerson, 248 F.3d 1036, 1050 (11th Cir.
2001).
The fraud loss calculation is reviewed for clear error. United States v.
Barrington, 648 F.3d 1178, 1197 (11th Cir. 2011). We also review the assessment
of an aggravating role enhancement for clear error. United States v. Martinez, 584
F.3d 1022, 1025 (11th Cir. 2009).
DISCUSSION
I. Sufficiency of the Evidence
a. Ruiz
Ruiz was solely charged with one count of conspiracy to commit healthcare
fraud, distinguishing her from each of her co-defendants who were also separately
indicted for substantive healthcare fraud. To obtain a conviction on a charge of
conspiracy to commit healthcare fraud in violation of 18 U.S.C. § 1349, the
government must prove beyond a reasonable doubt that: (1) a conspiracy existed;
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(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).
Conspiracy can be proven by circumstantial evidence since it is a predominantly
mental crime. See United States v. Mateos, 623 F.3d 1350, 1362 (11th Cir. 2010)
(affirming Medicare fraud convictions based on circumstantial evidence of
knowledge). The government is not required to prove that the defendant knew all
the conspiracy’s details, only its essential nature. See Moran, 778 F.3d at 960.
There was ample testimony implicating Ruiz in the creation of false
documentation to support Medicare claims. Ruben Busquets testified generally
that a willingness to fabricate medical records was a job requirement at HCSN-
East (Ruiz worked there briefly), and John Thoen testified that those who, like
Ruiz, performed patient intake interviews were instructed to avoid using certain
“buzzwords” that might trigger regulatory scrutiny or the rejection of a claim.
Thoen also testified that Ruiz created documents for a December 2007 Medicare
review and that those documents were inaccurate. Gema Pampin testified that she
and Ruiz falsified patient intake documentation while they worked together.
Alexandra Haynes testified that when she was hired at HCSN she was instructed to
determine if documents were missing from medical files, write up those missing
documents, and then give them to another employee who worked in the same
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office as Ruiz. This creates the inference that Ruiz was aware of and supervised
this falsification of medical records for Medicare review.
Haynes also testified regarding a meeting she had with Armando Gonzalez,
the owner of HCSN, regarding Ruiz. It had been decided that either Ruiz or
another employee needed to be fired, and Gonzalez chose to fire Ruiz since “he
knew that he could trust Blanca Ruiz to not turn him in to Medicare because she
was aware of all the fraud that had been committed, everything that [HCSN] did
wrong, and he knew that she was a good person and that she would cover for him
at the end of the day.” Ruiz did not report HCSN’s fraud to Medicare.
During the criminal investigation, Ruiz told investigators she was aware that
HCSN paid kickbacks. At trial, the testifying agent initially said that Ruiz had told
him she was unaware of kickbacks but amended his answer after reviewing the
interview report. This awareness distinguishes Ruiz’s case from United States v.
Willner upon which she relies. 795 F.3d 1297 (11th Cir. 2015). In Willner, no
evidence was offered to show Dr. Abreu, who had her conviction for conspiracy to
commit healthcare fraud reversed, was aware kickbacks were being paid. Id. at
1309.
Testimony tied Ruiz to the creation of documentation for the “white group”
of patients who never received treatment at HCSN. John Thoen read a document
listing Ruiz as being responsible for documentation of the “white group” and
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described her actions in that role. Another document listed Ruiz as the therapist
affiliated with the “white group” as of January 23, 2008. Names were commonly
forged and otherwise improperly signed onto documents throughout HCSN, but
this paper trail tends to show that Ruiz was involved with the fictional “white
group” of patients.
Evidence that Ruiz was compensated for maintaining the “white group” of
non-existent patients consisted of a check made out to Ruiz’s company containing
the notation “notes.” Only four individuals received checks with “notes” in the
memo line. Two of those individuals testified that their checks were compensation
for maintaining the patient list for a non-existent group of patients at HCSN-East.
Based on that testimony, a reasonable jury could find that Ruiz too received
remuneration for maintaining a “white group” of patients who did not receive
treatment at HCSN-West. This further distinguishes Ruiz from Dr. Abreu in
Willner, where we noted the lack of evidence that she gained anything from the
conspiracy. 795 F.3d at 1310. Sufficient evidence was before the jury to convict
Ruiz of conspiracy to commit healthcare fraud.
b. Fonts
i. Conspiracy to Commit Healthcare Fraud
There is also sufficient evidence to support Fonts’s conviction for
conspiracy to commit healthcare fraud. Busquets testified that Fonts needed to
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fabricate group therapy notes to keep her job. Fonts altered a patient’s prescribed
medication to hide the fact that the patient had dementia and should have been
disqualified from participating in a PHP. She was responsible for finding missing
documentation for the December 2007 Medicare review and documents were
falsified for the purpose of that review. Thoen testified that Fonts fabricated
documentation for the “white group” of fictional patients. Thoen also testified that
there were no patients at HCSN-West facility during his visits while Fonts served
as de facto clinical director, suggesting that every patient listed as receiving
treatment at HCSN-West during early 2009 was part of the fictitious “white
group.” Fonts, like Ruiz, received checks containing the word “notes” in the
memo line written out to her as payee, creating the same reasonable inference that
Fonts received additional compensation for managing the “white group” patients.
Lisset Palmero, an office manager at HCSN-East, testified that Fonts managed the
billing spreadsheet at HCSN-West tracking kickbacks. Fonts had her own parents
admitted to HCSN in order to receive a referral kickback.
Fonts also persuaded ownership to hire her son (“Wilson”) to assist her in
drafting fabricated therapy notes to be used by the HCSN facility in North
Carolina. Fonts and Wilson faxed fraudulent notes to the North Carolina facility to
be placed in patient files when workers in the North Carolina facility refused to
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create false documentation. The evidence was sufficient to find Fonts guilty of
conspiracy to commit healthcare fraud.
ii. Substantive Healthcare Fraud
Fonts also challenges the sufficiency of the evidence supporting her
convictions on two counts of substantive healthcare fraud under 18 U.S.C. § 1347.
A defendant violates § 1347 if she “knowingly and willfully executes, or attempts
to execute, a scheme or artifice (1) to defraud any health care benefit program; or
(2) to obtain, by means of false or fraudulent pretenses, representations, or
promises, any of the money or property owned by, or under the custody or control
of, any health care benefit program, in connection with the delivery of or payment
for health care benefits, items or services.” 18 U.S.C. § 1347. The specific
allegations were that Fonts submitted false and fraudulent Medicare and Medicaid
claims seeking reimbursement of $225 on each claim for treatment not provided to
the two listed beneficiaries. These claims were based on group therapy notes from
March and April 2009.
Fonts’s claim is that her signature was forged onto the group therapy notes
underlying the specific Medicare claims. There was testimony that signatures were
commonly forged at HCSN, but we need not ultimately consider whether a
reasonable jury could have found that the purported signatures were actually hers.
Under a Pinkerton theory of liability, the jury could have convicted Fonts for a
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reasonably foreseeable crime committed during and in furtherance of the
conspiracy of which she was a part. See Moran, 778 F.3d at 961. We affirm her
conviction on this basis. Fonts was not only a member of the HCSN conspiracy
but acted in a supervisory role overseeing the creation of fraudulent medical
records seeking Medicare reimbursement. Since a significant aspect of the fraud
was the creation of fraudulent medical records, it was foreseeable that those
records would be submitted to Medicare in furtherance of the conspiracy’s aim to
bilk Medicare of funds.
II. Trial Proceedings
Both Ruiz and Fonts challenge a series of trial rulings. None of these
challenges or their cumulative effect necessitates reversal for new trials.
a. Ruiz
Ruiz claims five errors cumulatively rendered her trial constitutionally
defective. Her first challenge is to the admission in evidence of Medicare rules,
guidelines, and ethical standards and to jury instructions allowing their
consideration. The Medicare rules were admitted through the testimony of
Rebekah Paone, a government witness who investigated Medicare fraud at HCSN
for a private company. She testified that during her review she viewed local
coverage determinations (“LCDs”), which are state-specific criteria for Medicare
reimbursement. Over defense objection, the district court admitted in evidence
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Florida’s LCDs for PHPs and contemporaneously instructed the jury that any
violation of the standards listed in the LCDs is not a crime but “may be relevant in
determining whether a defendant acted with criminal intent, that is, knowingly,
willfully, and with intent to defraud Medicare.” The same instruction regarding
LCDs was repeated during the jury charge.
Ruiz challenges the admission of the LCDs on two bases. The first basis is a
lack of testimony that Ruiz knew of or received any training regarding Medicare
rules and a lack of testimony that she was even aware of the LCDs. The lack of
testimony that Ruiz was trained in the LCD standards does not rebut their
relevance as evidence through providing background information on Medicare
coverage of PHPs. See Willner, 795 F.3d at 1302. She asserts that the government
introduced the LCDs in order to lower the burden of proof needed to obtain a
conviction against her, but the court’s limiting instruction sufficiently addressed
that concern. The court made clear that a violation of the LCD standards was not
evidence of a criminal act and that the evidence could only be considered for its
possible relevance in determining mens rea. Juries are presumed to follow court
instructions, United States v. Stone, 9 F.3d 934, 938 (11th Cir. 1993), and there is
no reason to believe that the jury failed to do so here. Ruiz’s second basis for
challenging the admission of the LCDs is that those admitted in evidence contained
effective dates “until February 2009” and “as of 2010” while Ruiz left HCSN in
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2008. Since the LCDs were only offered for background information and were not
the standard against which Ruiz’s conduct was judged in determining criminal
liability, this is insufficient to find the district court abused its discretion by
admitting the evidence.
Ruiz’s second challenge involves Brady, the Jencks Act, and handwritten
notes regarding Ruiz’s interview with the FBI where she admitted awareness of
kickbacks. The court reviewed the handwritten notes in camera and concluded
that they were not Brady material. Inculpatory information is not subject to Brady
disclosure, see, e.g., United States v. Jordan, 316 F.3d 1215, 1251-52 (11th Cir.
2003), and Ruiz’s awareness of kickbacks was inculpatory information. Rough
drafts or preparatory notes fall outside the Jencks Act when the government agent
prepares and discloses the report forming the basis of the agent’s testimony. See
United States v. Soto, 711 F.2d 1558, 1562 (11th Cir. 1983). Here, the final report
was properly disclosed so no error occurred.
Ruiz’s third claim of error focuses on the testimony and questioning of FBI
Special Agent Cox. The prosecutor asked Cox whether it was unusual in his
experience that someone would confess to knowing that kickbacks were being paid
at their workplace. Defense counsel successfully objected to the question before it
was answered, but Ruiz claims asking the question ran afoul of our holding in
United States v. Sorondo. 845 F.2d 945 (11th Cir. 1988). In Sorondo, we
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overturned a conviction where the government introduced evidence on rebuttal that
an informant who testified during the government’s case-in-chief had provided
information leading to over one hundred convictions. Id. at 949-50. We
determined that this created an improper risk that the jury credited the informant’s
testimony on the basis of those other convictions and so based its decision on
something not in evidence. Ibid. This case, where there was no testimony
regarding other prosecutions and the court sustained an objection to the question, is
entirely unlike Sorondo. The objection was sustained, and the prosecutor asking
the question does not necessitate reversing Ruiz’s conviction.
Ruiz’s fourth claim of error is that her ability to present an effective closing
argument was impaired by the court’s instruction that closing arguments be limited
to just “the evidence and any reasonable inferences from the evidence.” This
instruction to counsel was not in error (much less plain error), as evidenced by the
cases Ruiz cites in her brief. In each of those cases, we made clear that closing
arguments must relate to the evidence adduced at trial. See, e.g., United States v.
Bailey, 123 F.3d 1381, 1400 (11th Cir. 1997) (holding there is no prohibition on
colorful and flamboyant remarks so long as they relate to the evidence adduced at
trial). That is exactly what the district court required here. It is also unclear from
Ruiz’s briefing what counsel would have said in closing argument had the court
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not given its instruction. Even after the instruction, counsel equated the
government’s witnesses with cockroaches.
Ruiz’s final claim challenges the court’s initial refusal to grant an Allen
charge as to the conspiracy charge and then later giving an Allen charge as to the
other charges. Ruiz argues that this combination of rulings confused and coerced
the jury. After deliberating for over two days, the jury told the court it could not
reach a unanimous verdict on the conspiracy count. Defendants moved for an
Allen charge, but the court declined. Instead, the district court instructed the jury
to consider the substantive counts and then return to the conspiracy count. When
the jury returned another note three hours later saying it was deadlocked as to some
of the substantive counts, the court gave a modified Allen charge taken from
pattern jury instructions. The court orally prefaced its instruction with an
admonition thanking the jury for paying attention to the evidence during the
lengthy trial and telling them “please don’t feel like I’m pressuring you and forcing
you to go back there and do something that’s against your conscience.” After
another hour and a half, the jury returned its verdicts.
While there is no bright-line requirement for how long a jury must deliberate
before an Allen charge is appropriate, United States v. Bush, 727 F.3d 1308, 1320-
21 (11th Cir. 2013), the jury was in its third day of deliberations when the Allen
charge was given. The court used the pattern jury instruction and prefaced the
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instruction saying the purpose of the instruction was not to apply pressure to reach
a verdict quickly. The jury did not return a verdict as to all defendants even after
receiving the Allen charge, so the jury was not intimidated or coerced into reaching
a guilty verdict against Ruiz. The district court did not abuse its discretion in
either denying the request for an Allen charge after the jury returned its first note or
in giving an Allen charge after the jury returned its second note.
b. Fonts
Three of Fonts’s challenges to trial rulings mirror claims made by Ruiz.
Fonts contests the district court’s limiting the scope of closing argument, alleges
prosecutorial misconduct through vouching for FBI Special Agent Cox and
inflaming the passions of the jury, and challenges the district court’s rulings first
denying then giving a modified Allen charge. We reject Fonts’s challenges for the
same reasons we reject Ruiz’s identical challenges. Fonts also asserted that the
issuance of a deliberate ignorance instruction added to the jury’s confusion, but a
single-sentence argument is considered waived. See Zhou Hua Zhu v. U.S. Att’y.
Gen., 703 F.3d 1303, 1316 n.3 (11th Cir. 2013).
Fonts also raises two additional claims of trial error. Her first additional
claim of error is that the government intimidated Alina Feas, another employee at
HCSN called by another defendant as a witness. Feas pleaded guilty to charges in
connection with the fraud at HCSN, but then filed a motion to withdraw her plea
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claiming ineffective assistance of counsel under 28 U.S.C. § 2255. When the
government learned that defendant Rousseau planned to call Feas as a witness, the
government contacted the attorney that filed Feas’s § 2255 motion. There is some
dispute as to the manner and tone of voice used during that conversation, but it is
clear that the prosecutor conveyed that Feas could commit perjury if she testified
on behalf of the defense and that Feas stated she was afraid as a result of the
communication. The district court conducted a hearing the day before Feas was
scheduled to testify during which she admitted to perjuring herself during her prior
plea colloquy, and on that basis the court determined there was no legal basis for
declining to testify. The following day, Feas testified in general accord with what
she had told the court the day prior, including saying she had perjured herself
during her plea colloquy.
While reversal is necessary when the government substantially interferes
with a defense witness’s “free and unhampered choice” to testify, United States v.
Terzado-Madruga, 897 F.2d 1099, 1108 (11th Cir. 1990), that did not occur here.
Fatal to Fonts’s claim is that she cites no authority suggesting a constitutional
violation can occur when the witness testifies. Further, but not necessary to our
holding, Feas was called as a witness by another defendant and so it is not certain
that Fonts’s ability to present her defense was prejudiced. Since Feas admitted to
perjuring herself, it was acceptable for the government to notify Feas’s counsel that
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she could face prosecution even if the manner of notification could have been more
effective (such as notifying the court). A subjective state of fear in relation to
giving testimony in open court is insufficient for a finding that a constitutional
violation occurred. Since Feas testified and did so in accordance with the proposed
testimony she gave at a hearing the day before, the government did not
substantially interfere with Fonts’s ability to present her defense. Fonts’s assertion
that the government’s actions affected Feas’s demeanor and the strength of her
testimony is also insufficient to necessitate reversal as the strength of a witness’s
testimony is not the focus of our substantial interference inquiry.
Fonts asserts that the admission of testimony that she had her parents who
did not medically qualify for PHP treatment admitted to HCSN for the purpose of a
kickback was in error since she was not charged with soliciting kickbacks.
Applying a Federal Rule of Evidence (“Rule”) 404(b) framework, Fonts challenges
the relevance of the evidence to a proper purpose and the sufficiency of the
evidence presented to prove the bad act occurred, argues that the evidence was
unfairly prejudicial, and asserts that it was not intrinsic to the conspiracy offense.
The evidence was admitted by the district court not under Rule 404(b) but instead
as intrinsic to the charged conspiracy. For evidence to be admissible as intrinsic to
the offense, it must be “(1) an uncharged offense which arose out of the same
transaction or series of transactions as the charged offenses, (2) necessary to
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complete the story of the crime, or (3) inextricably intertwined with the evidence
regarding the charged offenses.” United States v. Ford, 784 F.3d 1386, 1393 (11th
Cir. 2015) (citation and alterations omitted). Fonts was charged with fabricating
and falsifying medical records to reflect treatment services which were not
provided to patients at HCSN facilities. Testimony that Fonts had her parents
admitted to HCSN so that she would receive a kickback is “inextricably
intertwined” with the charged healthcare fraud conspiracy whose purpose was to
bill Medicare for unnecessary and nonexistent treatments. Since the evidence was
properly admitted as intrinsic to the charged conspiracy, analysis under Rule
404(b) is unnecessary.
III. Sentencing Proceedings
For Ruiz, the district court calculated a final offense level of 30 and a
criminal history category of I, giving her a guidelines sentencing range of 97-120
months. For Fonts, the district court calculated a final offense level of 32 after
imposing a two-level leadership enhancement and a criminal history category of I,
giving her a guidelines sentencing range of 121-151 months. Both were sentenced
to seventy-two-month terms of imprisonment followed by three years of
supervised release and ordered to pay restitution exceeding $10 million. Both
challenge the district court’s loss calculation, and Fonts separately challenges her
leadership enhancement.
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The challenges to the loss calculation are based on attribution. Ruiz’s
guidelines sentencing range was calculated using a loss amount of $22,589,625 and
Fonts’s guidelines sentencing range was calculated using a loss amount of
$26,742,075. Both result in a 22-level increase as the loss amount attributed to
each was greater than $20 million. If the loss amount had been more than $7
million but less than $20 million, then a 20-level increase would have been applied
instead.
Defendants can be held accountable both for losses they intended to inflict
and for losses stemming from the reasonably foreseeable acts of co-conspirators
done in furtherance of the conspiracy. Moran, 778 F.3d at 973-74. The
government must prove the attributable loss by a preponderance of the evidence
using reliable and specific evidence. United States v. Dabbs, 134 F.3d 1071, 1081
(11th Cir. 1998). When determining loss amount, a district court is required to
make only a reasonable and not a precise determination since the amount of loss
caused by fraud is often difficult to calculate with absolute precision. United
States v. Miller, 188 F.3d 1312, 1317 (11th Cir. 1999).
The district court did not clearly err in its loss determinations. The amounts
attributed to both Ruiz and Fonts were based on trial evidence of the amounts
billed to Medicare by HCSN while each was employed there, specifically four
exhibits containing all Medicare billings submitted during their employment. The
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court gave defense counsel the opportunity to re-review those exhibits and submit
any specific objections, but the defendants raised none. We also note that neither
Ruiz nor Fonts has showed that her sentencing outcome would have been different
under the lower loss calculation amount they seek. Even reducing their guidelines
sentencing ranges by two levels, Ruiz would have faced a guidelines sentencing
range of 78-97 months and Fonts a range of 97-121 months. Both women were
sentenced to seventy-two-month terms of imprisonment, so their sentences would
still have been below the guidelines range. This means Ruiz and Fonts cannot
show prejudice.
Fonts also challenges the imposition of a two-level leadership enhancement
or in the alternative a special skills enhancement. To apply a two-level leadership
enhancement, the government must prove by a preponderance of the evidence that
Fonts exercised authority over at least one person. United States v. Perry, 340
F.3d 1216, 1217 (11th Cir. 2003) (per curiam). Fonts only contests the supervision
prong. There was testimony that Fonts was the clinical director supervising
employees at HCSN-West during the first half of 2009 and that she supervised her
son in the falsification of therapy notes for use by the North Carolina facility.
Fonts relies on her lack of a license to interact with patients without supervision,
but this does not rebut the evidence that Fonts supervised the production of
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Case: 15-10953 Date Filed: 06/21/2017 Page: 24 of 24
fraudulent therapy notes by her son and so does not show the district court clearly
erred by imposing the two-level leadership enhancement.
AFFIRMED.
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