United States v. Diaz
| Decision Date | 24 August 2018 |
| Docket Number | CRIMINAL NO. 2:17-CR-31-KS-JCG |
| Parties | UNITED STATES OF AMERICA v. ALBERT DIAZ |
| Court | U.S. District Court — Southern District of Mississippi |
For the reasons below, the Court denies Defendant's Motion for Bond Pending Appeal [138].
The Court provided the background of this case in its opinion of June 5, 2018. See United States v. Diaz, No. 2:17-CR-31-KS-JCG, 2018 U.S. Dist. LEXIS 94230, at *1-*3 (S.D. Miss. June 5, 2018). A jury found Defendant guilty on sixteen counts related to a conspiracy to defraud a federal health care benefit program. On July 6, 2018, Defendant filed a Motion for Bond Pending Appeal [138], which the Court now addresses.
"A convicted defendant has no constitutional right to bail." United States v. Olis, 450 F.3d 583, 585 (5th Cir. 2006). In fact, any right to bail pending appeal "derives from 18 U.S.C. § 3143, which 'establishes a presumption against' its being granted." Id. (quoting United States v. Williams, 822 F.2d 512, 517 (5th Cir. 1987)). In this case, the statute provides two different burdens that Defendant must meet.
First, with regard to his convictions for conspiracy to commit health care fraud and wire fraud (Count 1), wire fraud (Counts 2-5), conspiracy to obstruct justice (Count 11), and obstruction of justice (Counts 12-16), the statute provides, in relevant part:
18 U.S.C. § 3143(b)(1).
Therefore, to obtain bond pending appeal, a convicted defendant must demonstrate:
(1) that he is not likely to flee or pose a danger to the safety of others; (2)that the appeal is not for purpose of delay; (3) that the appeal raises a substantial question of law or fact; and (4) that the substantial question, if decided favorably to the defendant, is likely to result in reversal, in an order for a new trial, in a sentence without imprisonment, or in a sentence with reduced imprisonment.
United States v. Clark, 917 F.2d 177, 179 (5th Cir. 1990). A "substantial question" is "one that is 'close' or 'that could very well be decided the other way' by the appellate court." Id. at 180 (quoting United States v. Valera-Elizondo, 761 F.2d 1020, 1024 (5th Cir. 1985)). In this context, "likely" to result in reversal means "more probable than not" to result in reversal. Valera-Elizondo, 761 F.2d at 1025.
Defendant poses no danger to the safety of others. He has no criminal history. His crimes did not involve violence. The record contains no evidence whatsoever that he might harm others if released on bond.
However, the Court believes that Defendant is a flight risk. Defendant is seventy-eight years old. His attorney argued at sentencing that imprisonment would likely be a death sentence. Transcript of Sentencing Proceedings at 76, United States v. Diaz, No. 2:17-CR-31-KS-JCG (S.D. Miss. June 14, 2018), ECF No. 122. In allocution, Defendant implied that imprisonment would be a death sentence. Id. at 80-81. Defendant asserted that he had lost his medical license, reputation, and the respect of his community. Id. at 80. He said: "The destruction of my life was 90 percent complete." Id. But then his wife filed for divorce shortly before sentencing, "complet[ing] everything." Id. Likewise, Defendant's attorney argued that he had "losteverything." Id. at 76. In summary, Defendant has nothing to lose by attempting to flee.
Additionally, Defendant has not taken responsibility for his actions. A jury of his peers found him guilty on all sixteen counts of the indictment, but he denies that he did anything wrong. The Government presented recordings of Defendant plotting with a co-conspirator. Still, Defendant denies that he did anything wrong. Defendant directly testified that he falsified patient records in an attempt to cover up that he had prescribed phony medications for patients he never examined. But he denies that he did anything wrong. Prior to sentencing, neither Defendant nor his counsel provided the probation officer with sufficient information for the Court to determine Defendant's restitution. In fact, according to the probation officer, Defendant claimed ignorance when asked basic questions such as whether he had any bank accounts. In the Court's opinion, this is merely the latest manifestation of Defendant's pattern of subtle defiance throughout these proceedings.
Finally, the Court notes that Defendant admitted that he has "a half-ownership in a small single-engine airplane." Transcript of Bond Hearing at 17, United States v. Diaz, No. 2:17-CR-31-KS-JCG (S.D. Miss. Mar. 15, 2018), ECF No. 90. He also admitted that he has tenuous connections to foreign countries insofar as he has "distant family" in Cuba, and attended medical school in Mexico. Id. These are minor factors, at best, given the tenuousness of the connections.
For all these reasons, the Court finds that Defendant has not demonstrated by clear and convincing evidence that he is unlikely to flee if released on bond pendingappeal.
The Government did not address this factor in its response. Therefore, the Court will assume that Defendant's appeal is not for the purpose of delay.
The first "substantial question" that Defendant raises is whether the evidence was sufficient to support various aspects of the convicted offenses. "A claim that the evidence is insufficient to support a conviction is reviewed in the light most favorable to the verdict, accepting all credibility choices and reasonable inferences made by the jury." United States v. Wise, 221 F.3d 140, 147 (5th Cir. 2000). The Court "must uphold the conviction if a rational jury could have found that the government proved the essential elements of the crime charged beyond a reasonable doubt." Id. "[T]his review is highly deferential to the verdict," and "a defendant seeking reversal on the basis of insufficient evidence swims upstream." United States v. Chapman, 851 F.3d 363, 376 (5th Cir. 2017).
Rather than argue that specific elements of each convicted offense were not supported by the evidence, Defendant provided a lengthy narrative of purported shortcomings in the evidence. The Court declines to guess which elements of the convicted offenses Defendant challenges. But the Court will address the factual contentions it was able to glean from Defendant's rambling argument.
First, Defendant argues that the evidence demonstrated that he did not issue the prescriptions. The Court addresses this issue below, and it also addressed it in aprior order. Diaz, 2018 U.S. Dist. LEXIS 94230 at *38. The Court adopts its previous conclusions and findings. There was ample evidence presented at trial from which a jury could conclude that Defendant issued the prescriptions.
Next, Defendant argues that there was no evidence that he intended to enrich himself or others. As the Court explains below, Defendant's personal profit is not an element of the convicted offenses, and there was evidence that he knew others were profiting from the fraudulent prescriptions. The Government was only required to show that Defendant had a "conscious intent to defraud," United States v. Brown, 459 F.3d 509, 519 (5th Cir. 2006), not an intent to enrich himself or others. This intent can be inferred from circumstantial evidence. United States v. Willett, 751 F.3d 335, 339 (5th Cir. 2014). For the reasons provided below and in the Court's prior order, the Court finds that there was sufficient evidence to support the jury's implicit finding that Defendant had the requisite intent for the convicted offenses.
Defendant argues that there was no evidence that he knew the claims were submitted to a health care benefit program. The Court addresses this issue below. There was evidence to support the jury's finding that Defendant knew the claims were being submitted to TRICARE.
Finally, Defendant argues that there was no evidence that he intended to obstruct the grand jury investigation or TRICARE audit. The Court thoroughly addressed the obstruction conviction in its prior opinion, and it adopts its previous conclusions and findings. Diaz, 2018 U.S. Dist. LEXIS 94230 at *35-*38.
For all these reasons, the Court finds that Defendant has not established thatthere is a "substantial question" with regard to the sufficiency of the evidence.
Next, Defendant argues that the Government constructively amended the indictment because 1) it failed to present any evidence that he made money from the conspiracy, 2) it failed to present any evidence that he knew that others illegally profited, 3) it failed to present evidence that he issued the prescriptions at issue, and 4) it failed to present evidence that he...
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