U.S. v. Medina

• Citation: 485 F.3d 1291
• Decision Date: 11 May 2007
• Docket Number: No. 05-14864.,05-14864.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pura MEDINA, Isabel Canepa, Isabel Guerra, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

485 F.3d 1291

UNITED STATES of America, Plaintiff-Appellee, v. Pura MEDINA, Isabel Canepa, Isabel Guerra, Defendants-Appellants.

No. 05-14864.

United States Court of Appeals, Eleventh Circuit.

May 11, 2007.

Gail M. Stage (Fed. Pub. Def.), Fed. Pub. Defender's Office, Ft. Lauderdale, FL, Joaquin Mendez, Jr. (Court-Appointed), Joaquin Mendez, P.A., Julio C. Codias, Kathleen M. Williams, Fed. Pub. Def., Miami, FL, for Defendants-Appellants.

Evelio J. Yera, Anne R. Schultz, Asst. U.S. Atty., Jonathan M.F. Loo, Miami, FL, for U.S.

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

Before TJOFLAT, FAY and SILER,^* Circuit Judges.

FAY, Circuit Judge:

Defendants Pura Medina, Isabel Canepa, and Isabel Guerra (collectively "defendants") appeal their convictions for Conspiracy to Defraud the United States, Commit Health Care Fraud, and to Pay Kickbacks under 18 U.S.C. § 371, Health Care Fraud under 18 U.S.C. § 1347, Conspiracy to Commit Money Laundering under 18 U.S.C. § 1956(h), and Money Laundering under 18 U.S.C. § 1956(a)(1)(B). Defendants argue that the government did not produce sufficient evidence to warrant their convictions, and that the district court erred at sentencing when calculating the amount of loss. For the reasons set out below, we vacate the convictions of Canepa on all counts except the conspiracy to pay kickbacks count, and we find that her loss amount was erroneously calculated at sentencing. As to Medina, we vacate her conviction on all counts of the indictment. As to Guerra, we vacate her convictions on the six substantive health care fraud counts involving Ocean Medical Supply that occurred before May 4, 2001, but affirm all the remaining convictions. We also find that her loss amount was erroneously calculated at sentencing. Accordingly, we remand for resentencing as to Guerra and Canepa, and remand with instructions to dismiss all counts as to Medina.

BACKGROUND

This case arises from transactions involving Ocean Medical Supply ("Ocean") and United Pharmacy ("United"). Guerra owned 50% stakes in both companies.¹ Ocean dealt in Durable Medical Equipment ("DME") such as braces and oxygen tanks while United was a typical pharmacy that dealt in prescription drugs. Canepa was the secretary at Ocean and Medina was the secretary/technician at United.

At trial, Rubin Martinez, another pharmacy owner, testified that before Guerra and Gonzalez became Medicare providers through Ocean and United, they worked as patient recruiters, bringing patients to Martinez's pharmacy in exchange for illegal kickbacks. However, after receiving their own provider numbers through Medicare, Guerra and Gonzalez began taking the patients to their own businesses— Ocean and United.

There is testimony from Wendy Evans, a Special Agent with the FBI, that Guerra, in her capacity as part owner of both Ocean and United, signed documents to become a Medicare provider. Among other things, these documents certified that the Medicare provider would abide by the relevant Medicare regulations, specifically 42 CFR § 424.57. Subsection (c)(1) of this regulation provides that the supplier must "[o]perate[] its business and furnish[] Medicare-covered items in compliance with all applicable Federal and State licensure and regulatory requirements." According to Special Agent Evans's testimony, Guerra signed these documents for Ocean on May 4, 2001, and for United on May 18, 2000.

Several witnesses testified about the schemes Ocean and United were conducting. Nearly all the evidence presented at trial concerned kickbacks for patients, doctors, an orthotic fitter, and patient recruiters. Kickbacks were paid to entice patients to submit their medicare claims through Ocean and/or United. A number of patient recruiters testified that they would bring patients who needed to fill prescriptions to Ocean or United in exchange for 50% of the profits made after submitting the claim to Medicare. The recruiter would then share their 50% with the patient. Recruiters also testified that doctors were paid to send patients to United and Ocean, including a Dr. Brito who worked across the hall from Ocean.

Miguel Ugarte, an orthotic fitter who measured and constructed braces for Ocean's customers, testified that he was paid $25 to measure each patient Ocean sent him. He also testified that he did not actually measure many of the patients himself, despite signing forms to that effect.

Mauricio Abanto, a government informant, testified about his interactions with the defendants. Abanto testified that he was in the business of money laundering and dealt with several Medicare providers, including Ocean and United. Abanto used his advertising businesses as a cover to give the impression that any money Medicare providers paid him was for advertising. When federal authorities confronted him, he agreed to cooperate and videotape his money laundering transactions. Several videos were admitted at trial that showed all three defendants meeting separately with Abanto. During the taped encounters they would generally give him a check for $10,800, and they would get back $10,000 in cash. Abanto would keep the remaining $800 as a fee for cashing the checks.

The defendants would count the money and sometimes would discuss their scheme. While Guerra usually dealt with Abanto on behalf of Ocean, Canepa, Guerra's secretary, dealt with Abanto when Guerra was unavailable. Canepa was recorded as saying that Ocean needed the cash to pay doctors and patients with whom they did business. Canepa also stated that patients were being paid $250 per knee brace.

Usually Carlos Gonzalez dealt with Abanto on behalf of United. However, there were some instances when Medina received and counted the cash delivered, and where she wrote out checks for Abanto. However, she did not sign any of the checks herself. In one instance, Medina was quoted as saying they "needed the money by Tuesday." However, on cross examination, Abanto testified that whenever Gonzalez and he would talk about the kickback scheme, Gonzalez would send Medina out of the room because she was just a secretary and Gonzalez didn't want her knowing that the cash was for paying kickbacks. The defendants were convicted on all the counts put before the jury.²

At sentencing, after the defendants were convicted, the district court determined that every claim United and Ocean submitted to Medicare was fraudulent, and thus, every one of those claims that medicare paid was part of the total loss calculated under U.S.S.G. § 2B1.1(b)(1). The district court calculated Ocean's loss amount to be $1,863,962.84. This loss amount was attributed to Canepa, raising her base offense level by 16. The district court calculated United's loss amount while Medina was employed³ at $6,173,828, which raised her base offense level by 18. Finally, since Guerra was involved with both Ocean and United through the entire time period of the indictment, her loss amount was the total Medicare paid to both businesses, $9,405,114.90. This loss amount raised Guerra's base offense level by 20 under the sentencing guidelines.

With these loss amounts taken into account, the district court sentenced Guerra to 99 months in prison, and Canepa and Medina to 48 months in prison.

STANDARD OF REVIEW

There are two issues before this Court:

I. Whether there was sufficient evidence of the charged offenses to sustain the defendants' convictions.

II. Whether the district court erred in calculating the amount of loss at sentencing.

When analyzing sufficiency of the evidence, our review is de novo, but we must "resolve all reasonable inferences and credibility evaluations in favor of the jury's verdict." United States v. Rudisill, 187 F.3d 1260, 1267 (11th Cir.1999) (quoting United States v. Suba, 132 F.3d 662, 671 (11th Cir.1998) (internal quotes omitted)). However, the evidence must be sufficient that a reasonable jury could find that the government has proven guilt beyond a reasonable doubt. United States v. Lopez-Ramirez, 68 F.3d 438, 440 (11th Cir.1995) (citing United States v. Thomas, 8 F.3d 1552, 1555 (11th Cir.1993)) see also Jackson v. Virginia, 443 U.S. 307, 317-18, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560 (1979).

The interpretation of the sentencing guidelines is a question of law that is reviewed de novo. United States v. Malol, 476 F.3d 1283, 1291 (11th Cir.2007). However, the amount of loss determination at sentencing is reviewed for clear error. United States v. Nostari-Shamloo, 255 F.3d 1290, 1291 (11th Cir.2001); United States v. Cabrera, 172 F.3d 1287, 1292 (11th Cir.1999).

ANALYSIS

I. Sufficiency of the Evidence

A. Health Care Fraud

The government indicted the four defendants on a total of 19 counts of substantive health care fraud under 18 U.S.C. § 1347.⁴ The statute provides in pertinent part that:

Whoever 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 shall be fined under this title or imprisoned not more than 10 years, or both . . .

The district court dismissed four of the counts before the remaining 15 went to the jury.⁵

When discussing what constitutes "defrauding" the United States, the Supreme Court has stated:

To conspire to defraud the United States means primarily to cheat the government out of property or money, but it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest. It is not necessary that the government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose...