United States v. Jose Rojo , 610 F. App'x 878 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-15266
Non-Argument Calendar
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D.C. Docket No. 1:13-cr-20062-MGC-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ROJO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(May 8, 2015)
Before JORDAN, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
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Jose Rojo, a former therapist at Biscayne Milieu Health Center (“BMHC”),
appeals his conviction and sentence for conspiracy to commit health care fraud, in
violation of 18 U.S.C. § 1349. On appeal, Rojo argues that that there was
insufficient evidence that he knew of the conspiracy and intentionally and willfully
agreed to join it. He also contends that the district court improperly determined his
loss amount under the Sentencing Guidelines and failed to consider the loss
amounts attributed to other individuals involved in the conspiracy.
I. Sufficiency of the Evidence
We review de novo the denial of a motion for judgment of acquittal on
sufficiency of evidence grounds. United States v. Friske, 640 F.3d 1288, 1290
(11th Cir. 2011). We review de novo the sufficiency of the evidence, viewing the
evidence in the light most favorable to the government, “with all reasonable
inferences and credibility choices made in the government’s favor.” United States
v. Wright, 392 F.3d 1269, 1273 (11th Cir. 2004) (quotations omitted). A defendant
who testifies in his own defense risks bolstering the government’s case with his
own testimony. United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995). His
testimony, if disbelieved by the jury, may be considered, along with other
evidence, as substantive evidence of guilt. Id.The health care fraud statute provides that:
(a) Whoever knowingly and willfully executes, or attempts to execute,
a scheme or artifice—
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(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.
18 U.S.C. § 1347. Any person who “conspires to commit [health care fraud] shall
be subject to the same penalties as those prescribed for [health care fraud].” 18
U.S.C. § 1349. For a defendant to be found guilty of conspiracy, the government
must prove beyond a reasonable doubt “(1) that a conspiracy existed; (2) that the
defendant knew of it; and (3) that the defendant, with knowledge, voluntarily
joined it.” United States v. Vernon, 723 F.3d 1234, 1273 (11th Cir. 2013)
(quotations omitted). Circumstantial evidence can be used to establish the
elements of a conspiracy. Id. A defendant may be convicted of conspiracy if the
evidence demonstrates that he knew the essential objective of the conspiracy, even
if he did not know all of its details or played only a minor role in the overall
scheme. United States v. Guerra, 293 F.3d 1279, 1285 (11th Cir. 2002). We will
affirm a conspiracy conviction if “the circumstances surrounding a person’s
presence at the scene of conspiratorial activity are so obvious that knowledge of its
character can fairly be attributed to him.” Vernon, 723 F.3d at 1273-74 (quotations
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omitted). The government can establish that the defendant voluntarily joined the
conspiracy “through proof of surrounding circumstances such as acts committed by
the defendant which furthered the purpose of the conspiracy.” Id. at 1274
(quotations omitted).
There was sufficient evidence presented at trial that Rojo knew about, and
voluntarily joined, a conspiracy to defraud Medicare. Vernon, 723 F.3d at 1273.
John Jackson, former clinical director at BMHC, testified that Rojo knew many
patients were recruited and paid to become patients and did not qualify for partial
hospitalization program (“PHP”) group therapy treatment. BMHC therapists filed
false therapy notes for group therapy sessions that never occurred. BMHC
administrators and clinical directors told therapists, including Rojo, to omit from
their therapy notes that patients suffered from dementia or substance abuse because
Medicare would not cover PHP treatment for those patients. Medicare was billed
for group therapy sessions in which Rojo showed movies, worked on his private
mental health therapy practice on his computer instead of conducting the session,
or allowed patients to conduct the session while he left the room. Many of Rojo’s
treatment plans and therapy notes, despite being for different patients, were
identical. The government established that Rojo voluntarily joined the conspiracy
through proof of Rojo’s acts that furthered the purpose of the conspiracy, from
writing, or having his non-therapist brother write, false treatment plans and therapy
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notes, to referring other BMHC therapists to his brother, who wrote their false
therapy notes as well. Vernon, 723 F.3d at at 1274. The evidence demonstrated
that Rojo knew the essential objective of the conspiracy, even if he did not know
all of its details, which is sufficient for a conspiracy conviction. Guerra, 293 F.3d
at 1285. The testimony of three co-conspirators -- Jackson, BMHC therapist Lucia
Ochoa, and BMHC receptionist and translator Roselyn Charles -- along with
Rojo’s testimony, which the jury apparently did not believe, showed that the
circumstances surrounding Rojo’s involvement with BMHC were “so obvious that
knowledge of [the conspiracy’s] character c[ould] be fairly attributed to [Rojo].”
Vernon, 723 F.3d at 1273-74.
II. The Loss Amount Attributed to Rojo
We review the district court’s determination regarding the amount of loss
under the Sentencing Guidelines for clear error. United States v. Hoffman-Vaile,
568 F.3d 1335, 1340 (11th Cir. 2009). The loss amount is the greater of the actual
or intended loss. U.S.S.G. § 2B1.1, comment. n.3(A). Actual loss is the monetary
harm that resulted from the offense and that was reasonably foreseeable, whereas
intended loss is the monetary harm that was intended to result from the offense. Id.
§ 2B1.1, comment. n.3(A)(i)-(ii). Intended loss includes pecuniary harm that
would have been impossible or unlikely to occur. Id. § 2B1.1, comment.
n.3(A)(ii)(II). A loss amount need only be a reasonable estimate based on the
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available information and not a precise calculation. See United States v. Woodard,
459 F.3d 1078, 1087 (11th Cir. 2006).
The district court may hold participants in a conspiracy responsible for the
losses resulting from the reasonably foreseeable acts of co-conspirators in
furtherance of the conspiracy. United States v. Hunter, 323 F.3d 1314, 1319 (11th
Cir. 2003); U.S.S.G. § 1B1.3(a)(1)(B). However, because “the limits of sentencing
accountability are not coextensive with the scope of criminal liability,” the district
court should take a two-pronged approach to determining loss liability for the acts
of co-conspirators. Hunter, 323 F.3d at 1319. The court must “first determine the
scope of criminal activity the defendant agreed to jointly undertake, and then
consider all reasonably foreseeable acts and omissions of others in the jointly
undertaken criminal activity.” United States v. McCrimmon, 362 F.3d 725, 731
(11th Cir. 2004) (quotation omitted). The 18 U.S.C. § 3553(a) factors apply only
to assess the reasonableness of a final sentence. See United States v. Dorman, 488
F.3d 936, 938 (11th Cir. 2007) (explaining that reasonableness standard is not
applied to each individual decision made during the sentencing process, only to the
final sentence).
The district court did not clearly err when it found $49,366,900, the amount
BMHC billed Medicare from January 2007 through when the conspiracy ended in
September 2011, to be the appropriate loss amount. This was a reasonable
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estimate of the intended loss based on the available information. See Woodard,
459 F.3d at 1087. Though the court acknowledged that there may have been
“some beneficial therapy going on” at BMHC, it also correctly noted that it would
be “very difficult for [the] court to look at the minute number of beneficial and
accurate patients in order to make a determination as to who they were.” Further,
Rojo presented no specific evidence to show which claims were legitimate and
which were fraudulent, instead asserting generally that all the claims based on his
notes were legitimate. Based on the evidence presented during Rojo’s trial and the
evidence presented during the other sentencings in the case, the court concluded
that, “for the most part, [BMHC] was a fraud, and the relevant amount is the entire
scheme.” The court was not required to do a more precise calculation of the loss
amount. Woodard, 459 F.3d at 1087.
Rojo’s reliance on 18 U.S.C. § 3553(a)(6) is misplaced, because the §
3553(a) factors apply only to assess the reasonableness of a final sentence, not to
each individual decision made during the sentencing process. See Dorman, 488
F.3d at 938. Finally, as to Rojo’s argument that the loss amount included periods
before he was employed at BMHC, Rojo testified at trial that he began working at
BMHC in September 2006, and he did not object to the PSI’s finding that he
worked there beginning on January 1, 2007. As to his argument that the loss
amount included periods after he was employed at BMHC, it was reasonably
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foreseeable that his co-conspirators at BMHC would continue to fraudulently bill
Medicare, sometimes using his patient files, so the district court did not err in
finding him responsible for the losses resulting from both his own acts and the acts
of his co-conspirators. Hunter, 323 F.3d at 1319; U.S.S.G. § 1B1.3(a)(1)(B).
Upon review of the record and consideration of the parties’ briefs, we affirm.
AFFIRMED.
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