United States v. Abreu, No. 18-13965

• Decision Date: 01 October 2020
• Docket Number: No. 18-13965
• Citation: 976 F.3d 1263
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Vanja ABREU, Ph.D., Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

976 F.3d 1263

UNITED STATES of America, Plaintiff-Appellee,

v.Vanja ABREU, Ph.D., Defendant-Appellant.

No. 18-13965

United States Court of Appeals, Eleventh Circuit.

October 1, 2020

Jeremy Raymond Sanders, U.S. Department of Justice Criminal Division, Fraud Section, Washington, DC, Carol Herman, Emily M. Smachetti, U.S. Attorney Service-Southern District of Florida, U.S. Attorney Service-SFL, Miami, FL, for Plaintiff-Appellee.

Daniel Scott Fridman, Fridman Fels & Soto, PLLC, Coral Gables, FL, William Dylan Fay, Stephanie Silk Cunha, White & Case, LLP, Miami, FL, for Defendant-Appellant

Before JORDAN, NEWSOM, and HALL,^* Circuit Judges.

JORDAN, Circuit Judge:

The American criminal justice system, despite its protections for the accused, "has been always haunted by the ghost of the innocent [person] convicted." United States v. Garsson , 291 F. 646, 649 (S.D.N.Y. 1923) (L. Hand, J.). In 1938, to provide a financial remedy for innocent persons who are wrongfully convicted in federal courts, Congress enacted the Unjust Conviction Statute. See Pub. L. No. 75-539, 52 Stat. 438 ("An Act To grant relief to persons erroneously convicted in courts of the United States"), now codified at 28 U.S.C. §§ 1495, 2513. Briefly stated, a person who obtains a certificate of innocence under § 2513 can seek damages from the United States in the Court of Federal Claims pursuant to § 1495. See § 2513(e) (authorizing a wrongfully convicted person to receive up to $50,000 for every 12 months of incarceration).

A jury found Vanja Abreu, Ph.D., guilty of conspiracy to commit healthcare fraud. See 18 U.S.C. § 1349. She served three years in prison before we overturned her conviction on direct appeal due to insufficiency of the evidence. See United States v. Willner , 795 F.3d 1297, 1301 (11th Cir. 2015).

Following our ruling, Dr. Abreu petitioned the district court for a certificate of innocence, seeking to obtain compensation for the time she spent incarcerated. In support of her petition, she submitted only a copy of our decision in Willner . The district court denied the petition, concluding that she failed to carry her burden of demonstrating innocence under § 2513.

We now affirm. Our opinion in Willner , though concluding that the evidence was insufficient to prove guilt beyond a reasonable doubt, did not by itself establish Dr. Abreu's innocence under § 2315. And given that Dr. Abreu did not submit any other evidence supporting her claim of innocence, the district court did not err in denying her petition.

I

In 2011, a federal grand jury in the Southern District of Florida indicted 20 persons for numerous offenses related to a fraudulent $200 million Medicare scheme. The defendants—including Dr. Abreu—were employees of or contractors for American Therapeutic Corporation, a community health center that operated "partial hospitalization programs" throughout South Florida for mentally ill patients covered by Medicare.

The 38-count indictment alleged that the defendants conspired to submit false claims to Medicare for mental health services that were medically unnecessary or not provided at all. According to the indictment, some of the defendants paid kickbacks to patient brokers, halfway houses, or assisted living facilities in exchange for delivering patients to American Therapeutic. Others were accused of running a complex scheme to launder cash for the kickbacks.

The indictment charged Dr. Abreu only in Count 1, which alleged a conspiracy to defraud Medicare in violation of 18 U.S.C. § 1349. The sole factual allegation in the indictment about her role in the conspiracy—contained in the "manner and means" section—was that she (and others) "cause[d] the alteration of patient files, as well as therapist notes maintained in [American Therapeutic's] computer system, for the purpose of making it falsely appear that patients being treated by [American Therapeutic] qualified for [partial hospitalization program] services." D.E. 26 at ¶ 10.

A

Dr. Abreu proceeded to trial with six codefendants. The government established that she worked at American Therapeutic for several years as a program director. In that position, she managed both the clinical and operational sides of the health centers, and her duties included Medicare protocol and compliance. She was eventually promoted to corporate director and took on additional responsibilities. For example, she supervised the program directors, trained clinicians on Medicare, and conducted mock audits to ensure that charts and documents complied with Medicare.

Witnesses testified that American Therapeutic and its brick-and-mortar locations were nothing more than a Potemkin village—most of its patients, the witnesses explained, were not eligible for the partial hospitalization treatments they were receiving. Patients were cycled in and out based on whether Medicare would cover their stays, and not on their medical needs. In order to further the vast and fraudulent scheme, doctors signed charts and forms for patients whom they did not examine or who were already discharged, and other conspirators falsified charts to make patients look eligible for covered treatments.

The government called several witnesses to implicate Dr. Abreu in the Medicare fraud conspiracy. In setting out some of their testimony below, we do not assess its collective weight or determine its overall credibility. We also do not state as "fact" what Dr. Abreu did or did not do. We only observe that witnesses and coconspirators—including leaders of the scheme—testified against Dr. Abreu and offered some circumstantial evidence of her involvement.

Marianella Valera, for example, was at the helm of the conspiracy as one of three owners of American Therapeutic. She and Dr. Abreu helped doctors and therapists get "up to date" on deficient patient charts (i.e., psychiatric evaluations, progress notes, and discharge summaries). Sometimes they updated charts for patients who were already discharged, and sometimes they completed charts on behalf of therapists who were no longer working for American Therapeutic. Ms. Valera explained that the two worked side by side, and that she once instructed Dr. Abreu, "[i]f you don't know the patient, you have to read about the patient in order to create a document." If the charts all looked the same, Ms. Valera explained, it would trigger Medicare scrutiny. Dr. Abreu "was taking care of" that problem.

The government introduced emails to and from Dr. Abreu and Ms. Valera, and others. In one of those emails, Dr. Abreu wrote that certain patient documents did "not look fit for inspection." She added that "[t]oday I will be working on doctors’ orders since Graciela did not come in[.]" Ms. Valera identified Graciela as the nurse in charge of typing up the doctors’ orders, and explained that she understood from the email that Dr. Abreu would type up the orders herself.

Ms. Valera also testified that she forged doctors’ signatures on patient charts and believed that Dr. Abreu knew about the forgeries. Ms. Valera explained that Dr. Abreu would bring her charts with red flags (indicating they were not yet signed by doctors), leave them in a room with her alone, and then return a few minutes later to pick them up without the red flags, fully signed for filing.

According to Ms. Valera, she discussed patient admissions with Dr. Abreu. She instructed Dr. Abreu on how to deal with patients who were of "questionable" eligibility because, for example, they had dementia, were elderly, or their condition otherwise "wasn't too severe." Ms. Valera maintained that she instructed Dr. Abreu to admit those patients only for short stays covered by Medicare.

Dr. Alan Gumer, a psychiatrist at American Therapeutic, pled guilty to the conspiracy charge and testified for the government. He related that Dr. Abreu brought him charts to sign for patients who had already been discharged. In a legitimate partial hospitalization program, he explained, a doctor would not sign a "closed chart." Dr. Gumer also testified that Dr. Abreu was in the room with him on a handful of occasions when he signed documents that someone else created, completed files for patients he had not seen, or filled in charts that were backdated.

Gwendolyn Gipson, a medical records clerk at one of the American Therapeutic sites, testified that Dr. Abreu was present at meetings in which therapists complained about inappropriate admissions and protested that they were risking their licenses. Ms. Gipson said that Dr. Abreu assured the therapists that they were not at risk so long as they serviced the patients on site and made sure their documents were Medicare-compliant.

Margarita Acevedo was hired to work in "marketing" for American Therapeutic, but in reality she recruited patients for cash and eventually ran the entire kickback operation. Ms. Acevedo testified that she had discussions with Dr. Abreu about how to bring in new patients, "not the same ones over and over again," and that they "needed to visit new homes [presumably, assisted living facilities] and bring in new patients."

Joseph Valdes, who was also responsible for recruiting patients and paying kickbacks, worked under Ms. Acevedo. He testified that he shared an office with Dr. Abreu and witnessed her editing patient files that had already been filled out by doctors. He understood that she was making those changes "[t]o keep the story ... just in case that there was ever an audit."

Dr. Abreu's attorney, Charles White, cross-examined these witnesses and others, and he elicited some testimony that tended to undermine their credibility or distance Dr. Abreu from the charged conspiracy. Dr. Abreu did not submit any of this evidence in the district court, and she does not rely on it on appeal. But because we have summarized some of the evidence against her at trial, we point out the favorable testimony for completeness.

Mr. White, for example, had a few witnesses acknowledge that, because of her duties, Dr. Abreu was often at...