U.S. v. Bradley

• Citation: 644 F.3d 1213,23 Fla. L. Weekly Fed. C 20
• Decision Date: 29 June 2011
• Docket Number: 06–15557,06–15677 and 07–12370.,06–15555,Nos. 06–14934,06–15676,s. 06–14934
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Martin J. BRADLEY, Jr., Bio–Med Plus, Inc., Albert L. Tellechea, Martin J. Bradley, III., Defendants–Appellants.United States of America, Plaintiff–Appellee,v.Martin J. Bradley, Jr., Defendant–Appellant.United States of America, Plaintiff–Appellee,v.Martin J. Bradley, III., Defendant, Norma Bradley, Interested Party–Appellant.United States of America, Plaintiff–Appellee,v.Albert L. Tellechea, Defendant–Appellant.United States of America, Plaintiff–Appellee,v.Martin J. Bradley, III., Defendant–Appellant.United States of America, Plaintiff–Appellee,v.Norma Bradley, Martin J. Bradley, Jr., Martin J. Bradley, III, Defendants–Appellants,Maria Bradley, Defendant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

644 F.3d 1213

23 Fla. L. Weekly Fed. C 20

UNITED STATES of America, Plaintiff–Appellee,

v.Martin J. BRADLEY, Jr., Bio–Med Plus, Inc., Albert L. Tellechea, Martin J. Bradley, III., Defendants–Appellants.United States of America, Plaintiff–Appellee,

v.Martin J. Bradley, Jr., Defendant–Appellant.United States of America, Plaintiff–Appellee,

v.Martin J. Bradley, III., Defendant, Norma Bradley, Interested Party–Appellant.United States of America, Plaintiff–Appellee,

v.Albert L. Tellechea, Defendant–Appellant.United States of America, Plaintiff–Appellee,

v.Martin J. Bradley, III., Defendant–Appellant.United States of America, Plaintiff–Appellee,

v.Norma Bradley, Martin J. Bradley, Jr., Martin J. Bradley, III, Defendants–Appellants,Maria Bradley, Defendant.

Nos. 06–14934

06–15555

06–15557

06–15676

06–15677 and 07–12370.

United States Court of Appeals, Eleventh Circuit.

June 29, 2011.

Alexander L. Zipperer, III, Eric R. Gotwalt, Zipperer & Lorberbaum, P.C., Savannah, GA, Arthur W. Leach, Alpharetta, GA, Ricardo Javier Bascuas, University of Miami School of Law, Coral Gables, FL, Roy E. Black, Black, Srebnick & Kornspan, David O. Markus, David Oscar Markus, PLLC, G. Richard Strafer, G. Richard Strafer, P.A., Michael Ross Tein, Guy A. Lewis, Lewis Tein, P.L., Miami, FL, Robert P. Marcovitch, Atlanta, GA, Anthony L. Cochran, Chilivis, Cochran, Larkins & Bever, LLP, Atlanta, GA, for Appellants.James C. Sruchell, James D. Durham, Danial E. Bennett, Savannah, GA, for Appellee.Appeals from the United States District Court for the Southern District of Georgia.Before TJOFLAT and CARNES, Circuit Judges, and HOOD,^* District Judge.TJOFLAT, Circuit Judge:

This case involves multiple schemes to defraud the Florida and California Medicaid programs by causing them to pay for blood-derivative medications (“blood-derivatives”)¹ more than once. Martin J. Bradley III and his father, Martin J. Bradley, Jr., (collectively “the Bradleys”) owned Bio–Med Plus, Inc. (“Bio–Med”)², a Miami-based pharmaceutical wholesaler that purchased and sold blood-derivatives. Beginning in 1996, in addition to purchasing blood-derivatives from drug manufacturers, the Bradleys had Bio–Med purchase blood-derivatives that had not been administered to the patients for whom they had been prescribed and place those blood-derivatives in its inventory. Most of these patients were eligible for Medicaid—that is, Florida Medicaid, California Medicaid (“Medi–Cal”), or the Genetically Handicapped Persons Program (“GHPP”)³—and Medicaid had paid for their prescriptions. Bio–Med thereafter sold the unused blood-derivatives to pharmacies in Florida and California. The pharmacies, in turn, used them to fill prescriptions and then, in most cases, obtained reimbursement from the states' Medicaid programs.

Although these recycled blood-derivatives accounted for less than two and a half percent of Bio–Med's overall sales, they accounted for a much larger portion of Bio–Med's profits, yielding in excess of $39 million over a five-year span from 1998 through 2002.

The Government chose to prosecute the Bradleys' schemes under the anti-racketeering, conspiracy, mail fraud, wire fraud, and money laundering statutes, 18 U.S.C. §§ 1962, 371, 1341, 1343, and 1956, respectively, and the statutes criminalizing the failure to disclose an interest in a financial account in a foreign country while engaging in a pattern of illegal activity, i.e., mail fraud, wire fraud, or money laundering, 31 U.S.C. §§ 5314 and 5322(b). The grand jury indicted eight individuals, Bio–Med, and Interland Associates, Inc.⁴ All ten defendants stood trial before a jury. The jury exonerated five defendants⁵ and returned verdicts of guilty against four, Bradley III, Bradley, Jr., Bio–Med, and Albert L. Tellechea.⁶ It found against Bradley III on Counts 1 through 54 and 83 through 284, Bradley, Jr., on Counts 1, 54, 285, and 286, Bio–Med on Counts 1 through 53, and Tellechea on Count 3. ⁷

The district court sentenced the Bradleys and Tellechea to terms of imprisonment, imposed fines, and ordered them to make restitution. Bio–Med was placed on probation, fined, and also ordered to make restitution. As part of the Bradleys' sentences the district court ordered forfeiture to the United States of the Bradleys' interests in Bio–Med. The court also ordered the Bradleys and Bio–Med to pay to the United States jointly and severally, as forfeiture, the sum of $39.5 million. All four defendants appealed their convictions and sentences.⁸

Twenty-three days after the imposition of the four defendants' sentences, and while their convictions and sentences were on appeal, the district court, to aid the Government in realizing the above forfeiture and the fines and special assessments imposed on the defendants, entered an order appointing a receiver and instructed her to marshal the defendants' assets. The Bradleys, Bradley, Jr.'s wife, Norma Bradley, and Tellechea appealed that order,⁹ and it is now before us along with the appeals of the convictions and sentences. ¹⁰

The Bradleys, Bio–Med, and Tellechea seek the reversal of their convictions and the entry of judgments of acquittal on the ground that the jury's verdicts lack evidentiary support.¹¹ Alternatively, they seek the vacation of their convictions and remand for a new trial on the ground that adverse rulings the district court made pretrial and at trial deprived them of a fair trial.¹² If neither form of relief is forthcoming, the defendants seek resentencing on the ground that the district court erred in applying the Sentencing Guidelines. The Bradleys, Norma Bradley, and Tellechea challenge the order creating the receivership on the ground that the Government does not need a receiver to collect the fines and special assessments the defendants are required to pay because the legal remedies the law provides are sufficient for that purpose. Nor, they argue, is a receiver needed to ensure that the defendants satisfy their restitution obligations to the victims of their crimes.

We begin our consideration of these appeals by setting out, in part I, the facts the Government established in its case in chief.¹³ In part II, we explain why, in the light of those facts, the jury's verdicts rest on solid ground. Part III determines that there is no basis in the district court's adverse rulings—both pretrial and at trial—for granting a new trial. Part IV considers the challenges to the defendants' sentences, affirms Bradley III's and Bio–Med's sentences, vacates Bradley, Jr.'s and Tellechea's sentences, and remands their cases for resentencing. Part V addresses the challenges to the receivership. Part VI concludes.

I.

The schemes to defraud the Florida and California Medicaid programs were of varying levels of complexity. All involved the “recycling”¹⁴ of blood-derivatives,¹⁵ numerous individuals and corporate entities, and multiple transactions. The “Florida Medicaid Scheme” encompassed several smaller schemes named for the various individuals and entities with whom the Bradleys and Bio–Med were conducting business, including the “Infustat & Seratech Scheme,” the “Sentry/Castro Scheme,” and the “Liz Pascual/IV Solutions Scheme.” The “California Medicaid Scheme,” involving Medi–Cal and GHPP, included no sub-schemes. We begin in Florida and then move to California.

A.

The Florida Medicaid Scheme was executed in this way. Physicians who were working at AIDS clinics in the Miami area and prescribing intravenous immune globulin (“IVIG”)¹⁶ for AIDS patients were recruited by Bradley III confederates Harry Castro, Jose A. Trespalacios, and Tellechea¹⁷ to do two things: (1) to have their prescriptions filled at Infustat, Inc. (“Infustat”)¹⁸ and Seratech, Inc. (“Seratech”),¹⁹ both “closed door pharmacies”²⁰ in which the Bradleys possessed an ownership interest or otherwise controlled;²¹ and (2) to resell back to the Bradleys and Bio–Med the IVIG that went unused when a patient failed to appear at the clinic for the IVIG infusion.²² For that unused IVIG, the Bradleys paid approximately one-third the price at which Florida Medicaid had reimbursed the pharmacies. In addition to the sale price of the IVIG, the physicians received kickbacks for having their patients' prescriptions filled at Infustat and Seratech; for example, Dr. Jose Arocha and Dr. Patrick Cadigan received kickbacks of $10,000 and $5,000, respectively, each month for continuing the arrangement.

About twice a month, Tellechea or Trespalacios, or both, came to the clinics, picked up the unused IVIG, and took it to Michael Bossey, who owned MedPoint, Inc. (“MedPoint”), a closed door pharmacy operating in the Miami area. Bossey, in turn, delivered the IVIG to Bio–Med's warehouse in Miami.²³

Bossey provided Tellechea with the money to pay the physicians who sold the IVIG.²⁴ Bossey obtained the necessary funds by having MedPoint invoice Bio–Med for the illicitly-procured IVIG at the going wholesale price pharmacies were paying wholesalers for the medication. This created the impression that MedPoint, a pharmacy, was returning to Bio–Med the IVIG it did not need, or was swapping IVIG for other blood-derivatives that it needed more than IVIG, and that Bio–Med, a wholesaler, was willing to purchase the IVIG or accept it as payment.

Bio–Med subsequently sold the unused IVIG to pharmacies, both those owned by the Bradleys and unsuspecting third party pharmacies, which used the medications to fill prescriptions for other patients.²⁵ Using the other patients' Medicaid numbers, these pharmacies billed Florida Medicaid for the unused IVIG.

Over time, the Florida Medicaid Scheme grew to involve a second prescription drug wholesaler owned by the Bradleys, Intermed Pharmaceutical, Inc., d/b/a Intermed Marketing of Savannah (“Intermed”).²⁶ Intermed ostensibly operated as Bio–Med's purchasing agent, but was largely used to conceal payments made to Bossey and Tellechea and, through them, to the physicians who were providing the unused...