U.S. v. Rodriguez, 08-13820
| Decision Date | 25 May 2011 |
| Docket Number | No. 08-13820,D. C. Docket No. 07-20291-CR-CMA,08-13820 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MAIVI RODRIGUEZ, MARIA HERNANDEZ, a.k.a. Mayte Hernandez, MARTA JIMENEZ, ANA CAOS, Defendants-Appellants, |
| Court | U.S. Court of Appeals — Eleventh Circuit |
DO NOT PUBLISH
Non-Argument Calendar
Appeals from the United States District Court for the Southern District of FloridaBefore EDMONDSON and PRYOR, Circuit Judges, and EVANS,* District Judge.
Maivi Rodriguez, Maria Hernandez, Marta Jimenez, and Ana Caos appeal their convictions and sentences related to their participation in a scheme to defraud the United States. These defendants raise a host of arguments on appeal, all of which lack merit. We affirm.
The defendants' convictions stem from a kickback scheme to defraud the federal Medicare program. Owners of durable medical equipment companies paid doctors to write prescriptions for drugs and medical equipment that yielded high reimbursements from Medicare. They also paid others to pose as patients in need of drugs and equipment. The owners of the durable medical equipment companies then delivered prescriptions to pharmacies, which filled the prescriptions, sought reimbursements from Medicare, and gave 50 percent of the reimbursements to the owners of the durable medical equipment companies as a kickback. Many of the patients were not ill and did not need the prescribed medications or equipment. Maria Hernandez, Marta Jimenez, and Maivi Rodriguez were principals of durable medical equipment companies called Esmar Medical Equipment and Action BestMedical Supplies, and they were prosecuted for their participation in the scheme. Ana Caos is a doctor who was also prosecuted for her involvement.
A federal grand jury in the Southern District of Florida returned a superseding indictment that charged Maivi Rodriguez, Maria Hernandez, Marta Jimenez, and Ana Caos with conspiracy to defraud the United States, to cause the submission of false claims, and to receive health care kickbacks, 18 U.S.C. §§ 287, 371; 42 U.S.C. § 1320a-7b(b)(1); and conspiracy to commit health care fraud, 18 U.S.C. §§ 1347, 1349. The indictment also charged Rodriguez, Hernandez, and Jimenez with two counts each of soliciting and receiving kickbacks involving a federal health care program, 18 U.S.C. § 2; 42 U.S.C. § 1320a-7b(b)(1). A jury convicted Rodriguez, Hernandez, Jimenez, and Caos of all counts. The district court declared a mistrial as to Caos because she had testified in her own defense and had been prohibited from consulting with her counsel overnight about her ongoing testimony. Caos proceeded to another trial and a jury again convicted her of both counts of conspiracy. The district court sentenced Rodriguez to concurrent periods of 51 months of imprisonment followed by concurrent 3-year periods of supervised release; Jimenez to concurrent periods of 31 months of imprisonment followed by concurrent 3-year periods of supervised release; Hernandez to concurrent periods of 51 months of imprisonment followed by concurrent 3-yearperiods of supervised release; and Caos to concurrent periods of 41 months of imprisonment followed by concurrent 3-year periods of supervised release.
Several standards of review govern this appeal. We review the denial of a guilty plea for abuse of discretion. United States v. Crosby, 739 F.2d 1542, 1544 (11th Cir. 1984). "We will not generally consider claims of ineffective assistance of counsel raised on direct appeal where the district court did not entertain the claim nor develop a factual record." United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002). "We review a district court's evidentiary rulings for abuse of discretion." United States v. Baker, 432 F.3d 1189, 1202 (11th Cir. 2005). "Evidentiary errors that are not specifically objected to at trial are reviewed for plain error." United States v. Williford, 764 F.2d 1493, 1502 (11th Cir. 1985). "We review cases dealing with discovery violations under [Federal Rule of Criminal Procedure] 16 using an abuse of discretion standard." United States v. Hastamorir, 881 F.2d 1551, 1559 (11th Cir. 1989). United States v. Hall, 47 F.3d 1091, 1098 (11th Cir. 1995) (citation omitted). This Court reviews a claim challenging the sufficiency of the evidence "de novo, but in the light most favorable to the government, and accepting all reasonable inferences which support the verdict[s] in order to determine if there was substantial evidence from which a reasonable trier of fact could have concluded that the defendants were guilty beyond a reasonable doubt." United States v. Adkinson, 158 F.3d 1147, 1150 (11th Cir. 1998). "A motion for new trial based on newly discovered evidence is committed to the sound discretion of the trial court and will not be overturned absent abuse of discretion." United States v. Garcia, 13 F.3d 1464, 1472 (11th Cir. 1994). "We review a district court's findings of fact for clear error and its application of the Sentencing Guidelines de novo." United States v. Rendon, 354 F.3d 1320, 1329 (11th Cir. 2003). The decision of the district court to enhance a sentence for a defendant's role "as a leader or organizer under Guideline 3B1.1 is a finding of fact reviewed only for clear error." United States v. Phillips, 287 F.3d 1053, 1055 (11th Cir. 2002). "The district court's determination of whether a defendant is entitled to a reduction for acceptance of responsibility is a finding of fact which is entitled to great deference on appeal and will be affirmed unless clearly erroneous." United States v. Rodriguez, 959 F.2d 193, 195 (11th Cir. 1992). "We review for clear error the district court'sdetermination regarding the amount of loss under the [Sentencing] Guidelines." United States v. Grant, 431 F.3d 760, 762 (11th Cir. 2005).
We divide our discussion of this appeal in seven parts. First, we discuss whether the district court abused its discretion when it refused to accept Hernandez's guilty plea. Second, we discuss whether Hernandez's trial counsel rendered ineffective assistance when he conceded in opening statements that Hernandez had accepted kickbacks. Third, we discuss whether the district court abused its discretion when it admitted certain evidence against Rodriguez, Jimenez, and Caos. Fourth, we discuss whether Jimenez merits a reversal of her convictions because of a discovery violation. Fifth, we discuss whether there was sufficient evidence to support the conspiracy convictions of Rodriguez and Caos. Sixth, we discuss whether the district court abused its discretion when it denied Caos's motion for a new trial based on newly discovered evidence. Seventh, we discuss whether the district court clearly erred when it sentenced Hernandez and Rodriguez.
Hernandez argues that the district court abused its discretion when it refused to accept her guilty plea, but we disagree. Hernandez's guilty plea was untimelybecause she proffered it more than two weeks after the court-imposed deadline, and we have held that "courts may reject guilty pleas that are tendered after a deadline set by the court." United States v. Gamboa, 166 F.3d 1327, 1331 (11th Cir. 1999).
Hernandez argues that she received ineffective assistance of counsel because during opening statements her lawyer conceded that she received kickbacks. "We will not generally consider claims of ineffective assistance of counsel raised on direct appeal where the district court did not entertain the claim nor develop a factual record." Bender, 290 F.3d at 1284. This issue should be raised on collateral review.
Rodriguez, Jimenez, and Caos contend that the district court abused its discretion on three occasions when it admitted certain evidence. First, Rodriguez argues that the district court abused its discretion when it allowed one of the pharmacy owners, Henry Gonzalez, to testify as a government witness about a purported phone conversation between his wife, Karla, and Rodriguez. Second, Rodriguez and Jimenez contend that the district court abused its discretion when it admitted evidence about Rodriguez and Jimenez's involvement with companiesthat were not included in the indictment. Third, Caos argues that the district court abused its discretion when it admitted testimony from Dr. Cuni about his and Caos's involvement in the scheme. These arguments fail.
Rodriguez argues that the district court abused its discretion when it allowed Gonzalez to testify about an alleged phone conversation between his wife and Rodriguez. Gonzalez testified that his wife told him she received a call from someone who identified herself as "Maivi," which is Rodriguez's first name, and who complained in a "caustic" and "abrasive" manner about a drop in the amount of kickbacks she was receiving. Rodriguez argues that the government failed to lay a foundation to admit this evidence under Federal Rule of Evidence 801(d)(2)(E), that the evidence should have been barred by Federal Rule of Evidence 805 as hearsay within hearsay, and that the government did not properly authenticate this testimony under Federal Rule of Evidence 901. We disagree.
The government laid a proper foundation to admit...
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