U.S. v. Valladares, 07-14592.

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Citation544 F.3d 1257
Docket NumberNo. 07-14592.,07-14592.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Gisela VALLADARES, Defendant-Appellant.
Decision Date09 October 2008

Sally M. Richardson; Anne R. Schultz and Carol E. Herman, Asst. U.S. Attys., Miami, FL, Hank Bond Walther, Washington, DC, for U.S.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT and CARNES, Circuit Judges, and BOWEN,* District Judge.

PER CURIAM:

Gisela Valladares appeals her convictions and sentences for: (1) a multiple object conspiracy (a) to defraud the United States by impairing the functioning and administration of the Medicare Program in violation of 18 U.S.C. § 371; (b) to knowingly cause the submission of false claims to the Department of Health and Human Services in violation of 18 U.S.C. § 287; and (c) to knowingly solicit and receive cash kickbacks involving a federal health care program in violation of 42 U.S.C. § 1320a-7b(b)(1); (2) conspiracy to defraud the Medicare Program in violation of 18 U.S.C. § 1349; and (3) three counts of soliciting and receiving cash kickbacks involving the Medicare Program in violation of 42 U.S.C. § 1320a-7b(b)(1).

This case involves Valladares' participation in a scheme to defraud the Medicare program. Acting on the instructions of two pharmacies, Valladares would pay Medicare beneficiaries to go to doctors, whom she also bribed, in order to obtain prescriptions for medically unnecessary aerosol medication. In exchange for kickbacks, Valladares would then give these prescriptions to the pharmacies, which would use them to submit fraudulent reimbursement claims to Medicare. Although it was not charged in the indictment, the government also presented evidence at trial indicating that Valladares was independently submitting similar, fraudulent Medicare claims on behalf of her company, PRN Home Health Care, which provided aerosol-related medical equipment to Medicare beneficiaries.

After a three-day trial, the jury returned its verdict convicting Valladares on all counts of the indictment. The court then held a hearing on the forfeiture issues involved in the case, after which it entered a forfeiture order in the amount of $245,351. At her sentence hearing, the district court sentenced Valladares to 120 months imprisonment and ordered restitution in the amount of $1,726,957.18. After filing a timely appeal, Valladares contends that the district court erred by: (1) denying her motions to continue the trial; (2) miscalculating her applicable guidelines range by using the commercial bribery guideline in United States Sentencing Guidelines § 2B4.1 (Nov.2006) to calculate her base offense level, applying an 18-level enhancement under U.S.S.G. § 2B4.1(b)(1)(B), and applying a four-level aggravating-role enhancement under U.S.S.G. § 3B1.1(a); (3) improperly calculating the amount of restitution; and (4) improperly ordering forfeiture.

I.

We first address Valladares' contention that the district court abused its discretion by denying her unopposed motions to continue the trial on the ground that she did not have enough time to analyze the voluminous records related to the facts of the case. She was put to trial fifty-four days after the indictment was returned, forty-seven days after she was arrested, and thirty-five days after she was arraigned. That, she argues, was too quickly to permit her to adequately prepare for trial, and the problem was aggravated by the government's delay in making certain information available to her. According to Valladares, this Court has found an abuse of discretion when the district court denied defense counsel's motions for a continuance under similar circumstances.

We review a district court's denial of a motion for continuance only for an abuse of discretion. United States v. Baker, 432 F.3d 1189, 1248 (11th Cir.2005). "The Sixth and Fourteenth Amendments to the U.S. Constitution guarantee that any person brought to trial in any state or federal court must be afforded the right to assistance of counsel before he or she can be validly convicted and punished by imprisonment." United States v. Verderame, 51 F.3d 249, 251 (11th Cir.1995).

Under certain circumstances, denial of a motion for continuance of trial may vitiate the effect of this fundamental right .... There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.

Id. (quotation omitted). "To prevail on such a claim, a defendant must show that the denial of the motion for continuance was an abuse of discretion which resulted in specific substantial prejudice." Id. "To make such a showing, [the defendant] must identify relevant, non-cumulative evidence that would have been presented if [her] request for a continuance had been granted." United States v. Saget, 991 F.2d 702, 708 (11th Cir.1993).

In United States v. Gibbs, 594 F.2d 125 (5th Cir.1979),1 a bankruptcy fraud case, we concluded that the district court did not abuse its discretion by denying the defendant's motion for a continuance. Id. at 127. The defendant, as the president of a hotel, had presented to the hotel fictitious invoices for bedding and linens after the hotel had filed for bankruptcy. Id. at 126. He then had the hotel issue checks for the invoices, which he deposited into a bank account for which he was the sole signatory. Id. The defendant was arraigned on June 29, 1978, and his trial was scheduled to begin on July 17. Id. On June 29, the defendant filed a motion for a continuance, which the district court denied, and the trial began on July 26. Id.

After a jury trial the defendant in Gibbs was convicted and he appealed, arguing that the district court erred by denying his motion for a continuance because "more time was necessary to review the Hotel's records to assemble receipts and invoices substantiating his claim that [the amount of one of the checks] represented reimbursement for personal expenses on behalf of the Hotel." Id. We concluded that the district court did not abuse its discretion. Id. at 127. We found that the defendant had ample time to prepare his defense, and he had "point[ed] to no critical documents that might have been uncovered with additional time and whose absence prejudiced or impaired his defense." Id.

In United States v. Gossett, 877 F.2d 901 (11th Cir.1989), the defendants were convicted of mutiny and murder arising out of events that occurred on a ship in the Atlantic Ocean. Id. at 903. Their trial was originally set for November 9, 1987, but on October 29, the grand jury returned a superseding indictment. Id. at 905. They were arraigned on October 31, and the district court agreed to continue the trial to November 23, which was only twenty-three days later. Id. After they were convicted, the defendants appealed, arguing that they were entitled to, at a minimum, a 30-day continuance after their arraignment on the superseding indictment. Id. According to the defendants, because of the changes in the superseding indictment they had inadequate time to prepare for trial. Id. at 906. We disagreed, concluding:

Defendants in this case have suggested nothing to this Court, nor can we find anything in the record that would indicate the possibility of a different outcome if the defendants had been given an additional seven days to prepare for trial. Defendants have failed to show the specific and substantial prejudice required to obtain relief. There is no basis to find an abuse of discretion in the denial of any further continuance.

Id.

In Saget, a large drug conspiracy case, the defendants argued that the district court had abused its discretion by denying their motions for a continuance on the ground that two weeks before trial, the government had disclosed to them substantial new evidence. Saget, 991 F.2d at 708. Defense counsel argued that two weeks was an "insufficient amount of time to allow him to fully evaluate the voluminous amounts of new evidence and to fully prepare his case for trial." Id. The district court denied the motion for continuance after finding to the contrary that defense counsel had "ample opportunity to review and analyze the discovery material and prepare adequately for the trial." Id. We concluded that the district court had not abused its discretion because "[t]he record contains nothing that would indicate a different result had the motions been granted. In the absence of any proffer of additional evidence that would have been presented by [defense counsel] if granted a continuance, we cannot find any specific or substantial prejudice arising from the district court's denial of his motion for a continuance." Id.

In Verderame, the defendant was indicted for two separate drug conspiracies in Florida, one involving marijuana and one involving cocaine, and the district court set his trial date for thirty-four days after he was arraigned on the charges. Verderame, 51 F.3d at 250. The government did not submit its bill of particulars, which included all of the assets it intended to subject to forfeiture, until one week before the trial, and three days before the trial was set to begin the district court dismissed the charges relating to the cocaine conspiracy. Id. at 250-51. In the thirty-four days between the arraignment and the scheduled trial date, Verderame's counsel made four unopposed motions for continuance. Not only did the government not oppose those motions, it even filed a response supporting a continuance and urging the court to find that the ends of justice required a continuance in order for the defendant to have time to prepare for trial. Id. The district court denied the defendant's motions for a continuance, and the trial proceeded as...

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