U.S. v. Marbella, s. 94-10592

• Citation: 73 F.3d 1508
• Decision Date: 08 December 1995
• Docket Number: 94-10594,Nos. 94-10592,s. 94-10592
• Parties: 96 Cal. Daily Op. Serv. 295, 96 Daily Journal D.A.R. 451 UNITED STATES of America, Plaintiff-Appellee, v. Agnes MARBELLA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Geronimo AMIGABLE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1508

73 F.3d 1508

96 Cal. Daily Op. Serv. 295, 96 Daily Journal

D.A.R. 451

UNITED STATES of America, Plaintiff-Appellee, v. Agnes MARBELLA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Geronimo AMIGABLE, Defendant-Appellant.

Nos. 94-10592, 94-10594.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 8, 1995. ^*

Argued and Submitted Dec. 8, 1995.

Decided Jan. 12, 1996.

Victor S. Palacios, San Francisco, California, for defendant-appellant Marbella.

Laura Schaefer, Law Offices of Robert E. Boyce, San Diego, California, for defendant-appellant Amigable.

Stephen L. Meagher, Assistant United States Attorney, San Francisco, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before: WALLACE and THOMPSON, Circuit Judges, and WILLIAM J. REA, District Judge. ^**

Opinion by Judge THOMPSON.

DAVID R. THOMPSON, Circuit Judge:

Agnes Marbella appeals her conviction on two counts of mail fraud, in violation of 18 U.S.C. Sec. 1341. Geronimo Amigable appeals his conviction on four counts of mail fraud, in violation of 18 U.S.C. Sec. 1341, and two counts of money laundering, in violation of 18 U.S.C. Sec. 1956.

Both Marbella and Amigable contend the district court erred by refusing to give an entrapment instruction and by imposing time limitations on the cross-examination of two government agents. Marbella also argues the district court erred by excluding certain testimony.

Amigable argues the government failed to produce sufficient evidence to support his conviction on the money laundering counts.

We have jurisdiction under 28 U.S.C. Sec. 1291, and we affirm.

FACTS

The convictions arise out of an investigation of fraudulent personal injury claims submitted to California insurers. The FBI, in conjunction with other federal and local authorities, conducted an extensive investigation, focusing on inflated medical bills presented to insurers by medical clinics and law firms. The investigation also targeted the use of "cappers," individuals who receive a percentage of a settlement for referring a patient to a medical clinic and/or law firm.

Typically, an undercover agent would pose as an accident victim. An agent posing as a capper would introduce the agent/victim to a medical clinic. The agent/victim would complain of pain but, after a few visits, would inform the clinic he or she could not return for treatments. Several clinics then falsified medical records to represent that the agent/victim had received more treatments than actually provided.

A medical clinic participating in the scam would refer the agent/victim to a law office to make a settlement demand on the insurer. With knowledge of the fraudulent medical records, the law firm would submit the records to the insurer, along with a demand letter. In some instances, a percentage of the settlement would be paid to the agent/capper who brought the agent/victim to the law firm.

The investigation of the Amigable law firm began when Dr. Rolando Bueno and his wife Lamar Bueno, employed by St. Anthony's Medical Clinic, represented to undercover agents that the Amigable law firm paid referrals. Eventually, three undercover agents claiming personal injuries were referred to the Amigable law office. The charges against Marbella and Amigable resulted from fraudulent claims made on behalf of agents/victims Richard Fong and Steve Young.

Investigator Rob Yee, posing as capper Rob Wong, contacted the Amigable firm in March 1991 to refer Agent Richard Hong Aetna originally offered $3,000 in settlement. Adriana Tarver, the Aetna adjuster, and Marbella, Amigable's office administrator, negotiated the settlement of the Fong claim. After Aetna rejected several counter-offers, Marbella informed Tarver that Fong would accept the $3,000 offer. The FBI requested Tarver to delay payment until agents could inform Marbella and Amigable that the medical reports were inflated.

posing as client Fong. Although Fong received only five medical treatments, his medical bills indicated he received treatments during at least fifteen visits. Amigable presented a settlement demand to Aetna Casualty and Surety (Aetna), including a copy of the inflated medical bills.

Investigator Yee, posing as capper Wong, then called Marbella to discuss the Fong case. In the course of this conversation, Investigator Yee told Marbella that Fong had received medical treatments on only five occasions, after Marbella stated the medical reports reflected thirty visits. Marbella responded, "Okay."

Approximately one week later, Investigator Yee spoke on the phone with Amigable. After stating the medical reports reflected thirty visits, Investigator Yee told Amigable that Fong only received treatment on five visits. Amigable responded, "Uh-huh."

Pursuant to the FBI's request, Aetna's adjuster Tarver contacted Marbella to verify the accuracy of the medical reports. When Marbella confirmed the reports, Aetna mailed the settlement check to Amigable's law office, and in return was mailed a release. These two mailings formed the basis for counts one and two of the indictment, charging mail fraud against Marbella and Amigable. The jury convicted Amigable on these two counts, but could not reach a unanimous verdict with respect to Marbella.

The second case focused on a claim made on behalf of agent/victim Young. Agent Tim Louie, posing as prior client Fong and now a capper, introduced Investigator John Auvinen, posing as client Young, to Amigable. Young, who had been treated by Dr. Appolonia Dimapilis, received medical bills representing that he had visited the clinic twenty times. Young, however, had only visited the clinic five times.

In his initial telephone call to Amigable about Young, Agent Louie told Amigable that Young had visited the clinic only four or five times, but the bills reflected twenty visits. Amigable responded, "Uh-huh." Later that same day, Agent Louie met personally with Marbella and Amigable, and again stated that Young had visited the clinic only five times, but the medical reports reflected twenty visits. Agent Louie stated the clinic "helped [Young] out" because Young was looking for a job.

Agent Louie and Amigable then discussed payments for referrals. Amigable said he would give Agent Louie one-third of his fee from the settlement proceeds, but warned Agent Louie that Amigable was not supposed to speak about such payments.

Amigable then sent a settlement demand letter to Fireman's Fund Insurance Company. The amount of this settlement demand included medical bills for Young's inflated visits to the clinic. This mailing was the basis for count three of the indictment, charging mail fraud. The jury convicted Marbella and Amigable on this count.

Fireman's Fund agreed to settle the claim and mailed a check for $4,350 to Amigable. This mailing was the basis for count four of the indictment, charging mail fraud. The jury convicted both Marbella and Amigable on this count.

Later, Investigator Yee, posing as capper Wong, and Agent Louie met with Marbella and Paul Ragasa at Amigable's law office. Ragasa gave Investigator Yee and Agent Louie checks for the referrals. ¹ The checks were drawn on an account of the Ragasa Financial Corporation. Ragasa explained that the transactions were initiated by Marbella and that Amigable was not involved in the payments because Amigable "doesn't want to involve himself." Ragasa then explained the payment of referral fees "is not legal in California." The payment of these At trial, Marbella and Amigable testified they believed the Fong case settled on the basis of only five medical visits. They also testified Marbella verified the number of medical visits for the Young claim with Dr. Dimapilis and they determined the medical reports were not inflated. Finally, Amigable testified that, although he initially agreed to pay the referral fees, he later changed his mind because his wife informed him the payments would be unethical. He testified that he then instructed his staff not to pay any referral fees and that he was unaware Ragasa paid the referral fees to Investigator Yee and Agent Louie.

two referral fees was the basis for the two money laundering counts, charged only against Amigable. The jury convicted Amigable on both counts.

The jury returned its guilty verdicts, and these appeals followed.

DISCUSSION

A. Entrapment Instruction

Both Marbella and Amigable contend the district court erred by refusing to give an entrapment instruction. The district court declined to give the instruction because it was inconsistent with Amigable's defense that he was unaware of the mail fraud. The court also declined to give the instruction because the evidence did not support an entrapment defense.

Although an entrapment instruction would have been inconsistent with Amigable's defense of lack of knowledge, he would have been entitled to the instruction if it was sufficiently supported by the evidence. Mathews v. United States, 485 U.S. 58, 62, 108 S.Ct. 883, 886, 99 L.Ed.2d 54 (1988); United States v. Simas, 937 F.2d 459, 462 (9th Cir.1991).

A defendant need only present "slight" evidence on two factors to be entitled to an entrapment instruction: "(1) a government agent induced him or her to commit an illegal act that (2) he or she was not predisposed to commit." United States v. Sotelo-Murillo, 887 F.2d 176, 179 (9th Cir.1989). Because it is clear that neither Amigable nor Marbella presented sufficient evidence to establish lack of predisposition, we address only that factor.

In determining whether a defendant presented sufficient evidence of a lack of predisposition, we review five factors:

the character or reputation of the defendant, including any prior criminal record; whether the suggestion of the criminal activity was initially made by the Government; whether the defendant was engaged in the criminal activity for profit; whether the defendant...