United States v. Gonzalez

• Decision Date: 23 August 2016
• Docket Number: No. 13–15878,13–15878
• Citation: 834 F.3d 1206
• Parties: United States of America, Plaintiff–Appellee, v. Carmen Gonzalez, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

834 F.3d 1206

United States of America, Plaintiff–Appellee,

v.Carmen Gonzalez, Defendant–Appellant.

No. 13–15878

United States Court of Appeals, Eleventh Circuit.

Date Filed: August 23, 2016

Carol Herman, Wifredo A. Ferrer, John K. Neal, Kathleen Mary Salyer, U.S. Attorney's Office, Miami, FL, Phillip Drew DiRosa, U.S. Attorney's Office, Fort Lauderdale, FL, N. Nathan Dimock, Charles E. Duross, A. Brendan Stewart, Hank Bond Walther, U.S. Department of Justice, Criminal Division, Allan J. Medina, U.S. Department of Justice, Criminal Division, Fraud Section, Washington, DC, for Plaintiff–Appellee.

Richard Carroll Klugh, Jr., Law Offices of Richard C. Klugh, Miami, FL, for Defendant–Appellant.

Before MARCUS and JILL PRYOR, Circuit Judges, and RESTANI,^* Judge.

MARCUS

, Circuit Judge:

After a two-day jury trial, defendant Carmen Gonzalez was convicted of one count of conspiracy to defraud the United States, in violation of 18 U.S.C. § 371

, and a separate count of conspiracy to commit health care fraud, in violation of 18 U.S.C. § 1349. The district court sentenced her to serve a total of 84 months' imprisonment. Gonzalez argues on appeal that (1) the evidence was insufficient to sustain her conviction on either conspiracy count; (2) the two conspiracy charges in effect amounted to one offense, so convicting and sentencing her for both conspiracies violated the Double Jeopardy Clause of the Fifth Amendment to the Constitution; and (3) a series of cumulative trial errors also warrant reversal. After thorough review and having the benefit of oral argument, we AFFIRM.

I.

A.

On April 1, 2008, a federal grand jury sitting in the Southern District of Florida returned a seven-count indictment against Gonzalez and six co-defendants. The indictment alleged that Gonzalez was a nurse at the Saint Jude Rehabilitation Center in Miami, Florida, which purportedly specialized in treating patients afflicted with the human immunodeficiency

virus (“HIV”).

The indictment charged Gonzalez in two of the seven counts. In Count 1, the indictment alleged that Gonzalez conspired to defraud the United States; to cause the submission of false claims for medically unnecessary treatments to the Department of Health and Human Services in violation of 18 U.S.C. § 287

; and to pay health care kickbacks in violation of 42 U.S.C. § 1320a–7b(b)(2) ; all in violation of 18 U.S.C. § 371. Count 2 charged Gonzalez with conspiracy to defraud Medicare and to obtain money from Medicare by means of materially false and fraudulent pretenses, representations, and promises, in violation of 18 U.S.C. §§ 1347 and 1349.

On April 10, 2008, Gonzalez entered pleas of not guilty and was released on bond. The district court scheduled a hearing to reconsider Gonzalez's bond for June 4, 2008 at the Government's request after Gonzalez's father (who was also facing indictment) fled the country. Gonzalez, however, did not appear at the hearing. Therefore, on June 6, 2008, the district court estreated Gonzalez's bond and issued a warrant for her arrest. Soon thereafter, she was also charged in a separate indictment with failing to appear in court as directed, in violation of 18 U.S.C. § 3146(a)(1)

and (b)(1)(A)(ii).

Meanwhile, two of Gonzalez's co-defendants, Aisa Perera and Mariela Rodriguez, pled guilty pursuant to plea agreements. The remaining four, Beatriz Delgado, Ana Alvarez, Angel Rodriguez, and Sandra Mateos, proceeded to trial on October 6, 2008. On October 17, 2008, the jury found Alvarez and Mateos guilty of the charges against them, but acquitted Delgado and Angel Rodriguez. We affirmed Alvarez's and Mateos's convictions on appeal. See United States v. Mateos, 623 F.3d 1350, 1371 (11th Cir. 2010)

(O'Connor, J.).

Gonzalez was rearrested some five years later on September 19, 2013. On October 16, 2013, she pled guilty to the failure to appear charge, signing a factual proffer statement admitting that she knowingly and willfully failed to appear before the district court in connection with the health care conspiracy charges against her. She proceeded to trial, however, on the conspiracy to commit health care fraud charges.

B.

Gonzalez's jury trial lasted two days. Viewing the evidence in the light most favorable to the Government, and drawing all reasonable credibility choices in favor of the jury's guilty verdict, as we are required to do, see United States v. Boffil–Rivera, 607 F.3d 736, 740 (11th Cir. 2010)

, the essential facts presented at trial are these. Aisa Perera and Mariela Rodriguez decided to open the St. Jude Clinic. Although the original plan was to open a general clinic, the women were persuaded that there was more money to be made in operating a clinic catering to HIV patients, so Perera and Rodriguez decided to go that route. Perera and Rodriguez were soon put in touch with three brothers, Jose, Louis, and Carlos Benitez. Louis Benitez explained that as long as Perera and Rodriguez could supply a location for the clinic and a doctor with the ability to bill Medicare, he would provide the rest. That included nurses, patients, transportation for the patients, and, notably, money to pay the patients for coming to the clinic and for the purchase of supplies. Benitez said that the nurses he provided would know exactly what to do—how to treat the patients and how to pay them—when the clinic opened.

St. Jude was set up ostensibly as a clinic to provide Rho(D) immune globulin

(“WinRho”) infusion treatments to HIV patients with thrombocytopenia. Thrombocytopenia is a medical condition in which a patient has a lower than normal platelet count. This can lead to blood not clotting, which can result in excessive bleeding. WinRho is a medication consisting of concentrated antibodies that treat the problem that causes a person's immune system to destroy his or her own platelets. In fact, however, the clinic was merely a device for submitting fraudulent Medicare claims.

The clinic itself was described by multiple witnesses as not even looking like a medical office. Indeed, there was very little medical equipment and the patients were directed to sit in normal household recliners rather than furniture designed for medical use. Perera went so far as to describe the clinic as looking “more like a handgun place than a medical office.” On the day the clinic opened, Sandra Mateos and Carmen Gonzalez arrived to work as nurses. Although Gonzalez was not, in fact, a nurse but rather only a technician, she was regularly referred to as a nurse by the witnesses who testified—a practice we will continue to utilize for the sake of convenience, although it does not affect our analysis in any way. Both nurses came as part of the Benitez brothers' crew that had worked at other clinics operated by the Benitez brothers. Neither Mateos nor Gonzalez received any instruction from Perera or Rodriguez as to what their duties or role would be, and yet both appeared to know exactly what was expected of them in terms of paying the patients and providing treatments. The patients brought into the clinic by the Benitez brothers appeared to be fully familiar with the two nurses when they arrived and some went directly back into the infusion room for purported treatment even before seeing the doctor who was nominally overseeing their treatment for thrombocytopenia

.

St. Jude was open three days per week, repeatedly treating the same patients. Those patients were transported to the clinic in groups. Gonzalez and Mateos were generally the only nurses who worked at the clinic. Only the nurses worked in the infusion room, which, notably, was locked in order to prevent government inspectors from entering at will. Behind the locked doors of the infusion room, both Gonzalez and Mateos would allegedly provide WinRho infusion treatment for the patients as well as regularly pay cash kickbacks to the patients. Every time the patients came, the nurses would pay them between $150 and $250 in cash in order to ensure that they would return to St. Jude. This cash was provided to Mateos and Gonzalez in envelopes supplied by Perera or Rodriguez.

Perera and Rodriguez testified that many of the patients complained loudly about wanting more cash payments and observed that the Center was “getting rich off [their] Medicare.” These tirades often could be heard throughout the clinic and occurred once or twice a week. Further, testimony at the trial indicated that patients never stayed in the infusion room for longer than 30 minutes.

Gonzalez and Mateos would communicate with Perera about how much of the WinRho medication to order and how much cash they needed to have on hand in order to pay the patients the next day. Gonzalez and Mateos also regularly filled out infusion sheets detailing the patients' purported treatments, including the length of time they were treated. Gonzalez herself signed forms reflecting 581 separate instances in which patients were supposedly treated for longer than one and a half hours (including three instances of treatments that lasted longer than two hours), an additional 37 instances where treatments were reported to have lasted for between 30 and 90 minutes, and only seven instances where the treatment lasted less than 30 minutes. However, WinRho takes less than five minutes to administer.

Expert testimony offered by the Government established that, although at one time 10–15 percent of HIV patients needed treatment for thrombocytopenia

—the condition purportedly being treated at St. Jude—this condition has become extremely rare since the mid–1990s thanks to the availability of an effective cocktail of HIV medications. Indeed, an expert witness called by the Government, Dr. Michael Wohlfeiler, testified that over the last nearly 20 years of treating HIV patients, he had occasion to prescribe WinRho, at most, two times. Nevertheless, Gonzalez signed treatment logs claiming to have administered WinRho to patients whose platelet counts were, at a minimum, three times too high for WinRho to be a medically...