United States v. Joseph Castronuovo, M.D. ( 2016 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-11765
________________________
D.C. Docket No. 9:10-cr-80149-KAM-30
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSPEH CASTRONUOVO, M.D.,
CYNTHIA CADET, M.D.,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_______________________
(May 17, 2016)
Before WILLIAM PRYOR and FAY, Circuit Judges, and ROBRENO, * District
Judge.
* Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
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ROBRENO, District Judge:
Defendants Joseph Castronuovo and Cynthia Cadet (“Defendants”) appeal
their judgments of conviction under 18 U.S.C. § 1957 for conspiracy to engage in
monetary transactions affecting interstate commerce in criminally derived property
exceeding $10,000, also known as conspiracy to commit money laundering. After
reviewing the record and hearing oral argument, we affirm the judgement of
conviction for both Defendants.
I. BACKGROUND
Defendants were indicted by a federal grand jury in the Southern District of
Florida and charged alongside thirty other individuals for their roles in an illegal
“pill mill” operation involving two pain management clinics owned by Christopher
George: American Pain and Executive Pain. The clinics’ operations depended on
doctors, like Defendants, who were licensed to prescribe and dispense narcotics.
George paid the doctors a portion of their salary by check and the rest by cash.
Before receiving their weekly paychecks, the doctors would sign forms that stated
“I did not see anything illegal happen or do anything illegal at the office.”
Defendant Cadet began working at American Pain, formerly called South
Florida Pain, after responding to a Craigslist ad for employment. During her
interview, George told Cadet that “we prescribe medication here for people that
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allege to be in pain, and that’s all we do.” He told her that she would earn $75 per
patient and $1,000 per week for the use of her dispensing license.
Once employed, Cadet saw as many as 100 patients per day. On one
particular day, surveillance videos and patient records indicated that Cadet spent an
average of 4 minutes and 40 seconds with each patient, and prescribed a total of
15,860 Oxycodone pills at 30 mg each; 5,790 Oxycodone pills at 15 mg each; and
3,600 Xanax pills at 2 mg each. One patient testified at trial that Cadet prescribed
pills to him after merely checking his blood pressure and reviewing his
prescriptions from George’s other clinic. Cadet also signed drug-supplier forms
that falsely underestimated how many patients were seen daily, how many received
prescriptions for controlled substances, and how many were from other states.
The Internal Revenue Service (“IRS”) determined that Cadet received a total
of $1,217,125 in compensation during her tenure. And Drug Enforcement Agency
(“DEA”) records showed that 878,600 Oxycodone pills were dispensed under
Cadet’s license between 2008 and 2010.
Defendant Castronuovo also responded to one of George’s employment ads
for a position at Executive Pain. During the interview, George stated that
Castronuovo would be paid $75 per patient to prescribe pain medication and
shared sample charts displaying patients’ Oxycodone and Xanax prescriptions.
George described the clinics’ “business model” during the interview and testified
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that he “wouldn’t have hired [Castronuovo]” if Castronuovo had not agreed to the
clinics’ prescription practices.
A statistical sample of Castronuovo’s patient files showed that Castronuovo
engaged in a “pattern” of prescribing Oxycodone, Xanax, and sometimes Soma.
Like Cadet, Castronuovo signed documents falsely stating the number of patients
from out of state and the number of patients receiving controlled substances.
Because Castronuovo worked only part time, George paid him up to $200 per day
for use of his dispensing license. But Castronuovo also received $75 for each
patient he saw. Moreover, seized surveillance footage corroborated that he
received $3,200 for seeing 40 patients on one particular day and $4,025 for seeing
51 patients on another day. The IRS determined that Castronuovo received a total
of $164,025 during his tenure. And DEA records showed that 328,600 Oxycodone
pills were dispensed under Castronuovo’s license between 2008 and 2010.
On March 3, 2010, government agents executed search warrants at both
clinics and recovered surveillance videos from American Pain’s security cameras.
Agents also seized all patient files and patient logs, which listed how many patients
each doctor saw and dictated each doctor’s pay.
On January 18, 2011, before he was charged with any crimes, Castronuovo
and his attorney met with prosecutors and DEA agents to describe his prescription
practices and compensation from the clinic. Castronuovo stated that he received
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$75 per patient, with a minimum daily total of $1,500. He explained that George
paid him in cash during his first five months of employment and then by check.
The original indictment charged George, the clinics’ owner, with unlawful
possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). Then, the first superseding indictment charged thirty-two clinic staff
members and doctors, including Cadet and Castronuovo. Therein, Cadet was
charged as part of a racketeering conspiracy, in violation of 18 U.S.C. § 1961(1)
and (5); money laundering conspiracy, in violation of 18 U.S.C. § 1956(h); and an
Oxycodone trafficking conspiracy, in violation of 21 U.S.C. § 841(a)(1). Both
Cadet and Castronuovo were charged with mail/wire fraud, in violation of 18
U.S.C. §§ 1341 and 1343.
After a majority of the codefendants pled guilty, Cadet and Castronuovo
were charged in a second superseding indictment with conspiracy to traffic in
Oxycodone, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 859(a), and
conspiracy to engage in money laundering, in violation of 18 U.S.C. §§ 1956(h)
and 1957. In addition, Cadet was charged individually with two counts of
Oxycodone and Alprazolam distribution resulting in deaths, in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(C); five counts of Oxycodone distribution resulting
in deaths, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); and one count of
conspiracy to distribute anabolic steroids, in violation of 21 U.S.C. §§ 841(a)(1)
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and 829(e). Castronuovo was charged individually with one count of Oxycodone
distribution, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 859(a), and two counts
of Oxycodone distribution resulting in deaths, in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(C).
Defendants pled not guilty and proceeded to trial. After the district court
denied Castronuovo’s motion to sever his trial from Cadet’s, Defendants were tried
together and agreed that objections made by one were joined by the other unless
otherwise stated.
After a 31-day trial and four days of deliberations, the jury reported that they
had reached a verdict and submitted the verdict forms. When the district court
examined the returned verdict forms, it noted that “[t]he forms are not completely
filled out” and instructed the jury to return to the deliberation room to “fill out
either guilty or not guilty on all of the counts.” The district court explained that
“[y]ou can’t leave it blank . . . We need to know what your decision is on each of
those counts where you’ve left it blank.” The court told the jury to send a note if
they did not understand the instructions, and no party objected to these directions.
Shortly thereafter, the jury sent a note reporting that it was “deadlocked” on
certain counts. After all parties agreed, the district court gave a modified Allen
instruction based on the Eleventh Circuit Pattern Jury Instructions. Approximately
2 to 2 ½ hours later, the jury returned a guilty verdict against Defendants on the
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money laundering conspiracy count. Defendants were acquitted on all other
charges.
The district court entered judgment against both Defendants after denying
their post-trial motions. It sentenced Castronuovo to 18 months’ imprisonment and
two years’ supervised release. It sentenced Cadet to 78 months’ imprisonment and
two years’ supervised release. Defendants now appeal.
II. STANDARDS OF REVIEW
Numerous standards of review govern the issues on appeal. “We review the
sufficiency of evidence to support a conviction de novo.” United States v. Taylor,
480 F.3d 1025, 1026 (11th Cir. 2007). As to a cumulative error argument, we
review de novo the cumulative impact of the alleged errors at trial. United States v.
Dohan, 508 F.3d 989, 993 (11th Cir. 2007). We also review a claim of
prosecutorial misconduct de novo “because it is a mixed question of law and fact.”
United States v. Duran, 596 F.3d 1283, 1299 (11th Cir. 2010).
“We review a district court’s denial of a motion to dismiss an indictment for
abuse of discretion but, in determining whether the court abused its discretion, we
resolve issues of law de novo.” United States v. Cavallo, 790 F.3d 1202, 1219
(11th Cir. 2015). We also review de novo the issue whether jury instructions
constructively amended the indictment, United States v. Gutierrez, 745 F.3d 463,
473 (11th Cir. 2014), but when a defendant raises this argument for the first time
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on appeal, we review it for plain error, United States v. Madden, 733 F.3d 1314,
1322 (11th Cir. 2013).
“The grant or denial of a motion to suppress evidence is reviewed in this
Court as a mixed question of law and fact. We assess the district court’s findings of
fact under the clearly erroneous standard and review the application of the law to
the facts de novo.” United States v. Perkins, 348 F.3d 965, 969 (11th Cir. 2003)
(citation omitted).
We review for abuse of discretion a district court’s ruling on a severance
motion, its limitation on the scope of cross-examination, its decision to give an
Allen charge, and its refusal to give a requested jury instruction. See United States
v. Maxwell, 579 F.3d 1282, 1295 (11th Cir. 2009) (limitation of cross-
examination); United States v. Westry, 524 F.3d 1198, 1216 (11th Cir. 2008) (jury
instruction); United States v. Woodard, 531 F.3d 1352, 1364 (11th Cir. 2008)
(Allen charge); United States v. Kennard, 472 F.3d 851, 859 (11th Cir. 2006)
(severance motion). But where a defendant does not request specific instructions
and fails to object at trial to the district court’s failure to include specific
instructions, we review for plain error only. United States v. Pena, 684 F.3d 1137,
1151 (11th Cir. 2012).
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III. DISCUSSION
Defendants 1 raise a number of issues on appeal: (1) whether there was
sufficient evidence to convict Defendants for money laundering conspiracy;
(2) whether the district court erred in denying Castronuovo’s motion to dismiss the
Second Superseding Indictment; (3) whether the district court erred in dismissing
Castronuovo’s motion to suppress his pre-indictment statements; (4) whether the
district court erred in denying Castronuovo’s motion to sever; and (5) whether the
district court coerced the jury by effectively delivering two Allen charges.
Also, Cadet raises the issue (6) whether she should be granted a new trial
based on the cumulative prejudicial effect of: (a) the district court’s constructive
amendment of the indictment; (b) the prosecutor’s argument based on “guilt by
association”; (c) the district court’s limitation on the scope of cross-examination;
and (d) the district court’s failure to give a good faith instruction for the money
laundering conspiracy charge. Each issue is discussed in turn.
A. Sufficiency of the Evidence as to the Money Laundering Convictions
Title 18 U.S.C. § 1956(h) makes it unlawful to conspire to violate any
provision of §§ 1956 or 1957. In turn, § 1957 makes it unlawful to engage in
monetary transactions in property derived from “specified unlawful activity.” 18
1
Castronuovo moved to adopt three of Cadet’s arguments on appeal, and we granted the
motion. Those adopted arguments are designated by footnote in this opinion.
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U.S.C. § 1957. Together, these provisions make it unlawful to engage in a money
laundering conspiracy.
Here, the jury convicted Defendants of conspiring to violate § 1957 by
agreeing “to knowingly engage and attempt to engage in monetary transactions . . .,
in criminally derived property of a value greater than $10,000.” The “specified
unlawful activity” was “the distribution, dispensing and possession with intent to
distribute and dispense[] oxycodone, a Schedule II narcotic controlled substance,
outside the scope of professional practice and not for a legitimate medical
purpose.”
To establish the existence of a money laundering conspiracy, the
government was required to prove beyond a reasonable doubt “(1) an agreement
between two or more persons to commit a money-laundering offense; and
(2) knowing and voluntary participation in that agreement by the defendant.”
United States v. Moran, 778 F.3d 942, 962 (11th Cir. 2015) (quoting United States
v. Broughton, 689 F.3d 1260, 1280 (11th Cir. 2012)). No evidence of willfulness
or specific intent is required, Dohan, 508 F.3d at 994, and conviction does not
require proof of an overt act in furtherance of the conspiracy. Whitfield v. United
States, 543 U.S. 209, 214 (2005).
Defendants argue that the government did not present sufficient evidence for
the jury to find beyond a reasonable doubt that they conspired to commit money
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laundering. The question for our review is “whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” Musacchio
v. United States, 136 S. Ct. 709, 715 (2016) (quoting Jackson v. Virginia, 443 U.S.
307, 319 (1979)). “That limited review does not intrude on the jury’s role ‘to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.’” Id. (quoting Jackson, 443 U.S. at
319).
1. An agreement between two or more persons to
commit the money laundering offense
To satisfy the first element of money laundering conspiracy, no evidence of
a “formal agreement” is required; instead, the government may “demonstrate by
circumstantial evidence a meeting of the minds to commit an unlawful act.” United
States v. Arias-Izquierdo, 449 F.3d 1168, 1182 (11th Cir. 2006). “Proof that the
accused committed an act which furthered the purpose of the conspiracy is an
example of the type of circumstantial evidence the government may introduce to
prove the existence of agreement.” Id. The government need not prove that a
conspiracy participant knew all details of the conspiracy or participated in its every
aspect. United States v. Arbane, 446 F.3d 1223, 1229 (11th Cir. 2006) (citing
United States v. Fernandez, 797 F.2d 943, 948–49 (11th Cir. 1986)). Rather, the
government need only prove that the defendant knew “the essential nature of the
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conspiracy.” Moran, 778 F.3d at 960 (quoting United States v. Vernon, 723 F.3d
1234, 1273 (11th Cir. 2013)).
Here, viewing the evidence in the light most favorable to the government, a
rational jury could have found, beyond a reasonable doubt, an agreement between
two or more persons to commit a money laundering offense. First, the evidence
showed that Defendants knew the conspiracy’s essential nature: to obtain payment
of funds received through the illegal sale of Oxycodone at the clinics. During
Cadet’s interview, George told her that “we prescribe medication here for people
that allege to be in pain, and that’s all we do.” He told her that she would earn $75
per patient and $1,000 per week for the use of her dispensing license. Similarly,
during Castronuovo’s interview, George told him that he would be paid $75 per
patient and showed him sample charts displaying “the types of medication that
were prescribed there.” George described the clinics’ “business model” during the
interview and testified that he “wouldn’t have hired [Castronuovo]” if he had not
agreed to the clinics’ prescription practices. In addition to the $75 fee per patient,
George paid him up to $200 per day to use his dispensing license.
While there is no direct evidence that Defendants separately agreed to
deposit their paychecks into their personal bank accounts, direct evidence is rarely
available to prove a conspiracy’s existence. United States v. Pineiro, 389 F.3d
1359, 1369 (11th Cir. 2004). Here, George paid Defendants, in part, with checks
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drawn from a bank account at Bank of America. Defendants then accepted the
checks made payable to them with knowledge that the checks’ funds were derived
from the clinics’ operations. Defendants also endorsed and negotiated the checks
through a financial institution in an amount exceeding $10,000. Based on this
evidence and common knowledge that checks must be negotiated to transfer
possession of their funds, a rational juror could conclude that Defendants accepted
the checks with the intent to deposit them into their personal bank accounts. See
United States v. Gainey, 111 F.3d 834, 836 (11th Cir. 1997) (explaining that “the
law permits jurors to ‘apply their common knowledge, observations and
experiences in the affairs of life’” when “evaluating the facts of a case” (quoting
United States v. Cruz-Valdez, 773 F.2d 1541, 1546 (11th Cir. 1985) (en banc))).
Thus, the evidence was sufficient for a rational juror to conclude that Defendants
agreed to engage in monetary transactions in criminally derived property valued
greater than $10,000 by accepting their paychecks with knowledge that the funds
were derived from the clinics’ unlawful activity.
Defendants 2 argue that a conviction for money laundering conspiracy on
these facts renders § 1956(h) “impermissibly broad” because “[w]ithout insisting
upon proof of a separate agreement, virtually any conspiracy involving the
exchange of funds would automatically be punishable as money laundering.” The
2
Castronuovo adopts this argument made by Cadet.
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Court need not consider this argument further. As discussed above, there was
sufficient evidence for a rational jury to conclude beyond a reasonable doubt that
Defendants separately agreed to engage in financial transactions upon accepting
profits from the clinics’ operations. 3
Castronuovo also contends that the evidence was insufficient because it
showed multiple conspiracies rather than a single conspiracy. According to
Castronuovo, the evidence reflected the kind of “rimless wheel” or “hub-and-
spoke” conspiracy described in Kotteakos v. United States, 328 U.S. 750, 755
(1946), and United States v. Chandler, 388 F.3d 796, 807 (11th Cir. 2004). The
courts in Kotteakos and Chandler reversed convictions because the types of
conspiracies proven at trial constituted material variances from the indictments in
those cases, and Castronuovo contends that the same result should be reached here.
“A variance occurs when the facts proved at trial deviate from the facts
contained in the indictment but the essential elements of the offense are the same.”
United States v. Keller, 916 F.2d 628, 634 (11th Cir. 1990). A variance is
reversible error only when “the facts established at trial materially diverge from the
3
Defendants additionally cite the rule of lenity to support this argument, but the rule of
lenity is inapplicable, because there is not a “grievous ambiguity or uncertainty” in § 1956(h).
United States v. Maupin, 520 F.3d 1304, 1307 (11th Cir. 2008) (quoting Muscarello v. United
States, 524 U.S. 125, 138 (1998)).
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facts in the indictment and the defendant suffers substantial prejudice as a result.”
United States v. Weissman, 899 F.2d 1111, 1114 (11th Cir. 1990).
A variance is material “if the government proves multiple conspiracies
under an indictment alleging only a single conspiracy.” United States v. Castro, 89
F.3d 1443, 1450 (11th Cir. 1996) (citing Kotteakos, 328 U.S. 750). On review, we
look at the evidence in the light most favorable to the government and ask whether
a reasonable trier of fact could have determined beyond a reasonable doubt that a
single conspiracy existed. United States v. Seher, 562 F.3d 1344, 1366 (11th Cir.
2009). We will not disturb the jury’s finding of a single conspiracy if it is
supported by substantial evidence. Id. To determine whether the jury could have
found a single conspiracy, we consider (1) whether a common goal existed; (2) the
nature of the underlying scheme; and (3) the overlap of participants. United States
v. Edouard, 485 F.3d 1324, 1347 (11th Cir. 2007).
Here, viewing the evidence in the light most favorable to the government, a
rational juror could have found beyond a reasonable doubt that there was a single,
overarching conspiracy. Defendants shared a common goal—to obtain payment
from the clinics’ illegal operations—and each Defendant acted in concert to further
this goal. The clinics’ continued operation relied on Defendants’ and other doctors’
willingness to prescribe Oxycodone in mass quantities. The nature of the clinics’
scheme relied on using those same doctors’ dispensing licenses to obtain the pills
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that the clinics sold. Moreover, evidence that Defendants sold pills to the same
patients and George instructed Castronuovo to shadow Cadet as training indicates a
direct overlap in participants. Because this evidence was sufficient for a reasonable
jury to find that a single conspiracy existed, there was no material variance.
2. Knowledge and Intent
As to the second element of money laundering conspiracy, a rational jury
could have found beyond a reasonable doubt that Defendants agreed to commit a
money laundering offense “with the requisite knowledge and intent.” United States
v. Magluta, 418 F.3d 1166, 1174 (11th Cir. 2005). Specifically, the evidence
showed that Defendants knew “that the property involved . . . represent[ed] the
proceeds of some form of unlawful activity.” 18 U.S.C. § 1956(a)(1); see also
United States v. Martinelli, 454 F.3d 1300, 1312 n.8 (11th Cir. 2006).
Other clinic doctors and personnel discussed the clinics’ adverse media
coverage with Cadet and in her presence. And Castronuovo testified that he
continued to work at the clinic despite knowing that its operations were illegal,
referring to the clinics’ patients as “junkies” and “pillbillies.” Viewing this
evidence in the light most favorable to the government, a rational juror could
conclude that Defendants knew that they were being paid for their roles in the
clinics’ unlawful distribution of narcotics.
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Defendants’ acquittal on the underlying drug conspiracy charge does not
affect the sufficiency of the evidence as to this second element. “It is by now
abundantly clear that in a money laundering case (or in a money laundering
conspiracy case), the defendant need not actually commit the alleged specified
unlawful activity.” Id. at 1312. Moreover, “inconsistent jury verdicts are not
necessarily a cause for reversal of a conviction.” United States v. Lozano-
Hernandez, 89 F.3d 785, 789 (11th Cir. 1996). Indeed, we have maintained that
conviction on only one of two related counts may be upheld where “[d]ifferent
elements comprise the two offenses.” Id. (citing United States v. Powell, 469 U.S.
57, 65–67 (1984)).
Here, different elements comprise the drug trafficking conspiracy and
money laundering conspiracy offenses. Compare 21 U.S.C. §§ 841(a)(1), 846,
859(a), with id. §§ 1956(h), 1957. And as the district court noted, even though the
jury ultimately determined that Defendants did not personally distribute narcotics
unlawfully, there was evidence for the jury to nevertheless find “that the other
medical doctors were engaging in such unlawful conduct, that the money they
received for working at the clinics was proceeds from that illegal activity, and that
they agreed to conspire with the others to launder those illegal proceeds.”
Cadet argues that she did not know that her prescriptions were for an
illegitimate medical purpose. She avers that her income was derived on a per-
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patient basis; she did not have ownership interest in the clinics; and she did not
receive money directly from narcotics sold at other clinics. But § 1957 specifically
states that “[i]n a prosecution for an offense under this section, the Government is
not required to prove that the defendant knew that the offense from which the
criminally derived property was derived was specified unlawful activity.” 18
U.S.C. § 1957(c). Plus, Cadet’s conviction was not for substantive promotional
money laundering, so the government was not required to prove that she personally
reinvested the illegal proceedings into the clinics’ criminal activities. Compare 18
U.S.C. § 1956 (a)(1)(A)(i) (promotional money laundering), with id. § 1957(a)
(monetary transactions derived from specified unlawful activity). And despite
receiving some payments directly from patients, who she saw only by virtue of her
position at the clinic, Cadet also received $1,000 per week for use of her
dispensing license. Because there was sufficient evidence for a rational jury to find
both elements of money laundering conspiracy beyond a reasonable doubt, we will
uphold Defendants’ convictions.
B. Motion to Dismiss Second Superseding Indictment for Grand Jury Abuse
Castronuovo next argues that the district court erred in denying his motion to
dismiss the second superseding indictment for grand jury abuse. He specifically
alleges prosecutorial vindictiveness and prosecutorial misconduct. But dismissing
an indictment is an “extreme sanction which should be infrequently utilized.”
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United States v. O’Keefe, 825 F.2d 314, 318 (11th Cir. 1987). And the district
court determined that such an extreme sanction was not warranted here.
1. Second superseding indictment as retaliation
First, Castronuovo contends that the prosecutor vindictively used the second
superseding indictment to retaliate against Castronuovo for exercising his
procedural rights—namely, his right to plead not guilty and his right to move for
severance.
Dismissal of an indictment for prosecutorial vindictiveness is based on the
principle that a defendant “may not be punished for exercising a protected statutory
or constitutional right.” United States v. Goodwin, 457 U.S. 368, 372 (1982). A
rebuttable presumption of vindictiveness arises where the government takes
unilateral action, such as obtaining a superseding indictment alleging additional or
more serious charges, in a context that indicates a reasonable likelihood of
vindictiveness as a response to the defendant’s exercise of his rights. Id. at 372–77.
Where the facts do not give rise to a presumption, the defendant may show actual
vindictiveness by proving that the government acted solely to penalize him. Id. at
380–81 & n.12.
No grounds for a presumption of vindictiveness exist here. After
Castronuovo decided to plead not guilty to the mail/wire fraud count in the first
superseding indictment, the government continued its investigation into patient
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deaths. It then sought the second superseding indictment, which was proper. See
United States v. Cole, 755 F.2d 748, 757–58 (11th Cir. 1985) (explaining that
additional, warranted charges may be brought against a defendant who declines to
negotiate a lesser guilty plea).
Castronuovo also fails to show actual vindictiveness because he has not
proven that the government filed the second superseding indictment solely to
penalize him. Castronuovo argues that once he expressed his intent to move for a
severance, the government took six months to return the second superseding
indictment when it initially stated that it would be returned in less than a month.
But Castronuovo fails to show that the longer timeline was intentional or
prejudicially affected his rights. Because Castronuovo has not shown that the
government delayed solely to penalize him, the district court did not err in refusing
to dismiss the second superseding indictment.
2. Prosecutorial misconduct
Second, Castronuovo contends that the prosecutor’s improper questions and
inflammatory comments during the grand jury process prejudiced his rights. “‘A
prosecutor is . . . forbidden to make improper suggestions, insinuations and
assertions calculated to mislead the jury’ and may not appeal to the jury’s passion
or prejudice.” United States v. Rodriguez, 765 F.2d 1546, 1560 (11th Cir. 1985)
(quoting United States v. Phillips, 664 F.2d 971, 1030 (5th Cir. Unit B 1981)).
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“When the alleged prosecutorial misconduct occurs in the context of a grand jury
proceeding, we dismiss the indictment only when the misconduct ‘substantially
influenced the grand jury’s decision to indict’ or when there is ‘grave doubt that
the decision to indict was free from the substantial influence of such violations.’”
United States v. Cavallo, 790 F.3d 1202, 1219 (11th Cir. 2015) (quoting Bank of
Nova Scotia v. United States, 487 U.S. 250, 256 (1988)).
Here, Castronuovo identifies a number of troubling comments made by the
prosecutor during the grand jury proceedings. For example, one juror asked about
the two patient deaths. The juror asked if the deceased underwent MRI exams,
stating that “the person could have given [Castronuovo] that information and
typically, a physical exam without any cardio–.” But the prosecutor cut off the
juror’s question. The prosecutor said, “If this was a real doctor. Again, the
evidence has reflected that these were pill mill doctors that were there to spend the
least amount of time possible.” The prosecutor further stated that the other doctors,
who had admitted to drug dealing activity, would testify at trial “that they were
drug dealers and they did the same thing these two did.”
The prosecutor also asked one grand jury witness, Dr. Baden, whether he
would “want to know if Dr. Castronuovo was a criminal or not” as a forensic
pathologist expert that worked on the case. Dr. Baden answered that “I’m here to
talk about how somebody died, not if he’s a criminal” and later stated that “unlike
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television, the medical examiner is not an investigator.” But the prosecutor did not
stop there. Instead, he asked the following: “Are you aware, sir, that this very
grand jury indicted 32 people for running illegal pill mills, 28 of whom have pled
guilty, are in prison right now, and also previously filed charges against Dr.
Castronuovo?” Dr. Baden responded by saying he was “[v]aguely aware of it,” but
that “[a]ll I’m dealing with are two deaths.”
The prosecutor then asked Dr. Wright, another expert witness, if he had
“ever been in Broward County Hospital to see the babies born addicted to
Oxycodone?” The prosecutor stated that “in 2009, nearly 1,000 babies who were
born in Florida hospitals were treated for drug withdrawal syndrome” and
concluded that “[i]t’s fairly obvious that Dr. Castronuovo illegally prescribed these
drugs. He was, in fact, just a drug dealer.”
This conduct, when viewed in its totality, was more flagrant than a “few
unwitting and inadvertent gestures by the prosecutor.” United States v. Pabian, 704
F.2d 1533, 1540 (11th Cir. 1983). But Castronuovo has not “established that the
violation[s] substantially influenced the grand jury’s decision to indict” and the
record does not establish “‘grave doubt’ that the decision to indict was free from
the substantial influence of such violations.” Bank of Nova Scotia, 487 U.S. at256–57 (quoting United States v. Mechanik, 475 U.S. 66, 78 (1986) (O’Connor, J.,
concurring)). The strength of the evidence on the drug and money laundering
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conspiracies was significant. For example, the grand jurors were informed that the
investigation required examination of patient files, wiretapped conversations,
surveillance recordings, and autopsy reports. The jurors were also presented with
statistics from a dispensing tracking system as to how many units of Oxycodone
were ordered and/or received under Defendants’ dispensing licenses. And an FBI
special agent testified that Cadet earned in excess of one million dollars, paid in
cash and by check, from her prescribing activities, while Castronuovo earned over
$100,000.
Moreover, the petit jury, which did not hear the prosecutor’s remarks, found
Castronuovo guilty for conspiracy to commit money laundering. See United States
v. Flanders, 752 F.3d 1317, 1333 (11th Cir. 2014) (“Thus, the petit jury’s guilty
verdicts demonstrate that there was probable cause to charge Defendants with the
offenses for which they were convicted, and any alleged misconduct before the
grand jury was harmless.”). Therefore, because Castronuovo has not identified any
prejudiced he suffered as a result of the prosecutor’s conduct, the district court did
not err in denying his motion to dismiss the indictment.
C. Motion to Suppress
Castronuovo next argues that the district court erred in denying his motion to
suppress his pre-indictment interview statements. Castronuovo avers that the
district court should have granted his motion to suppress for two reasons: (1) his
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statements were inadmissible as part of a plea agreement, and (2) his statements
were procured as a result of his attorney’s ineffective assistance.
First, Castronuovo argues that his statements were made as part of a plea
agreement. Federal Rule of Criminal Procedure 11(f) provides that “[t]he
admissibility or inadmissibility of a plea, a plea discussion, and any related
statement is governed by Federal Rule of Evidence 410.” Fed. R. Crim. P. 11(f).
Federal Rule of Evidence 410, in turn, provides that a court cannot admit against a
defendant “a statement made during plea discussions with an attorney for the
prosecuting authority if the discussions did not result in a guilty plea or they
resulted in a later-withdrawn guilty plea.” Fed. R. Evid. 410 (a)(4).
“To determine whether a discussion should be characterized as a plea
negotiation, the trial court must determine, first, whether the accused exhibited an
actual subjective expectation to negotiate a plea at the time of the discussion, and,
second, whether the accused’s expectation was reasonable given the totality of the
objective circumstances.” United States v. Merrill, 685 F.3d 1002, 1013 (11th Cir.
2012) (citing United States v. Robertson, 582 F.2d 1356, 1366 (5th Cir. 1978)).
The denial of a motion to suppress presents a mixed question of fact and
law. United States v. Delancy, 502 F.3d 1297, 1304 (11th Cir. 2007). We review
the findings of fact for clear error and the interpretation and application of law de
novo. Id. “[W]e may affirm the denial of a motion to suppress on any ground
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supported by the record.” United States v. Caraballo, 595 F.3d 1214, 1222 (11th
Cir. 2010).
Here, the district court found that even if Castronuovo had a subjective
expectation to negotiate a plea at the meetings with government agents, his
expectation was objectively unreasonable. Before ruling on Castronuovo’s motion
to suppress, the district court held a hearing with Castronuovo, his former attorney,
and the agents who were present during the discussions. After hearing testimony,
the court determined that an expectation of plea negotiations was objectively
unreasonable where no charges against Castronuovo were pending and no
discussions of potential charges or immunity occurred before or during the
meetings. The government was still gathering evidence and interviewing witnesses
as part of an ongoing investigation when the discussions occurred. These factual
findings were not clearly erroneous, and the court properly concluded that even if
Castronuovo expected to negotiate a plea during the meetings, the expectation was
not objectively reasonable. See, e.g., Merrill, 685 F.3d at 1013 (“There were no
pending charges against [the defendant] when the discussion occurred, and the
general discussions of leniency did not transform [the defendant]’s meeting with
the prosecutor and federal agents into plea negotiations.”). Therefore, the
discussions should not have been characterized as a plea negotiation, and the
district court properly denied Defendant’s motion to suppress.
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Second, Castronuovo argues that the district court erred in denying his
motion to suppress because his attorney at the time, Michelle Suskauer, Esquire,
was ineffective for failing to secure limited use immunity before the interview. We
have held that “[e]xcept in the rare instance when the record is sufficiently
developed, we will not address claims for ineffective assistance of counsel on
direct appeal.” United States v. Merrill, 513 F.3d 1293, 1308 (11th Cir. 2008)
(alterations in original) (quoting United States v. Verbitskaya, 406 F.3d 1324, 1337
(11th Cir. 2005)). Instead, “[t]he better-reasoned approach is to permit ineffective-
assistance claims to be brought in the first instance in a timely motion in the
district court under [28 U.S.C.] § 2255,” “even if the record contains some
indication of deficiencies in counsel’s performance.” Massaro v. United States, 538
U.S. 500, 504 (2003). Here, although the district court held an evidentiary hearing
in connection with Castronuovo’s motion to suppress, the basis for Ms. Suskauer’s
recommendation that Castronuovo participate in the meetings and the actions taken
by Ms. Suskauer to investigate the case against Castronuovo up to that point are
not sufficiently developed. Thus, Castronuovo’s ineffective assistance claim would
be more appropriately addressed in a motion under 28 U.S.C. § 2255.
D. Prejudicial Joinder
Castronuovo next argues that the district court erred in denying his motion
for relief from prejudicial joinder because he was irreparably prejudiced by the
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jury hearing evidence against both Defendants in the same trial. But Castronuovo
cannot demonstrate that the district court abused its discretion.
Generally, defendants who are indicted together are tried together unless the
defendant seeking severance can show that a joint trial would prejudice his
substantial rights and that “severance is the only proper remedy for that prejudice.”
United States v. Lopez, 649 F.3d 1222, 1234 (11th Cir. 2011); see Fed. R. Crim. P.
14(a) (stating that “the court may order separate trials of counts, sever the
defendants’ trials, or provide any other relief that justice requires” where the
joinder of offenses or defendants “appears to prejudice a defendant or the
government”). And we have expressed our “reluctan[ce] to reverse a district
court’s denial of severance, particularly in conspiracy cases.” United States v.
Knowles, 66 F.3d 1146, 1158 (11th Cir. 1995).
In deciding a severance motion, a district court must balance the right of the
defendant to a fair trial against the public’s interest in efficient and economic
administration of justice. United States v. Alvarez, 755 F.2d 830, 857 (11th Cir.
1985). Severance is granted only when the defendant can demonstrate that a joint
trial will result in “specific and compelling prejudice” to his defense, id. (quoting
United States v. Zielie, 734 F.2d 1447, 1464 (11th Cir. 1984)), resulting in
“fundamental unfairness.” Knowles, 66 F.3d at 1159.
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There are four instances of prejudicial joinder that will generally require
severance: where (1) “the [d]efendants rely on mutually antagonistic defenses”;
(2) “one [d]efendant would exculpate the moving [d]efendant in a separate trial,
but will not testify in a joint setting”; (3) “inculpatory evidence will be admitted
against one [d]efendant that is not admissible against the other”; and (4) “a
cumulative and prejudicial ‘spill over’ effect may prevent the jury from sifting
through the evidence to make an individualized determination as to each
[d]efendant.” United States v. Chavez, 584 F.3d 1354, 1360–61 (11th Cir. 2009).
Demonstrating one of these four instances is a “heavy burden.” Kennard, 472 F.3d
at 858–59.
Here, Defendants were jointly indicted for the same conspiracy based on
their acts at sister clinics. Defendants did not rely on mutually antagonistic
defenses, and neither Defendant contends that he or she would have testified
against the other in the event of separate trials. There is no indication that the
government intended to use inculpatory evidence that was admissible against
Cadet but not admissible against Castronuovo. And Castronuovo did not identify
any cumulative or prejudicial spillover effect that would have prevented the jury
from sifting through the evidence to make an individualized determination as to
each Defendant.
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Moreover, the district court instructed the jury to consider the case of each
defendant separately and individually. See Kennard, 472 F.3d at 859 (explaining
that “the potential ‘spillover effect’ of evidence of a co-defendant’s guilt” is
generally “mitigate[d]” by “a court’s cautionary instructions”). Thus, because a
joint trial did not prejudice Castronuovo, the district court did not abuse its
discretion in denying his severance motion.
E. Allen Charge
Castronuovo’s final argument on appeal is that the district court improperly
coerced the jury by effectively delivering two modified Allen charges. “An ‘Allen
charge’ is a trial court’s admonition to a deadlocked jury, instructing it to make
further attempts to reach a verdict.” United States v. Polar, 369 F.3d 1248, 1254
(11th Cir. 2004). A district court abuses its discretion by giving an Allen charge
only if it was “inherently coercive.” Woodard, 531 F.3d at 1364. To determine
whether the charge was inherently coercive, we consider the language used and the
totality of the circumstances surrounding the charge, including whether the district
court polled the jury before giving the charge and the amount of time that elapsed
between the charge and the verdict’s return. Id.There was no sign of coercion here. The district court had not polled the
jurors before issuing the Allen charge, and the 2 to 2 ½ hours that elapsed between
the charge and the returned verdict does not suggest coercion. See United States v.
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Chigbo, 38 F.3d 543, 546 (11th Cir. 1994) (concluding after the jury returned a
verdict within fifteen minutes of delivery of the charge that “[t]he speed with
which the jury returned its verdict after receiving the modified Allen charge does
not change our decision”); see also United States v. Jones, 518 F. App’x 741, 743
(11th Cir. 2013) (nonprecedential) (Allen charge not coercive where jury returned
a verdict roughly thirty minutes later); United States v. Miller, 451 F. App’x 896,
898 (11th Cir. 2012) (nonprecedential) (Allen charge not coercive where jury
returned a verdict about eight minutes later). Moreover, the district court’s charge
was based on language from the Eleventh Circuit Pattern Jury Instruction for
deadlocked juries, which we have held to be non-coercive. United States v.
Trujillo, 146 F.3d 838, 846–47 (11th Cir. 1998).
Castronuovo nevertheless argues that the circumstances surrounding the
charge were unduly coercive because the district court’s directions to completely
fill out the verdict form constituted the “first,” constructive Allen charge, followed
by a “second,” official Allen charge when the jury reported that it was deadlocked.
But this argument holds no water.
In giving an Allen charge, the district court instructs a deadlocked jury to
undertake further efforts to reach a verdict. Polar, 369 F.3d at 1254. Here, the jury
had not indicated that it was deadlocked when the court instructed the jury to fill
out the blank portions of the verdict sheet. Rather, the jury sent a note indicating
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they had reached a verdict before it submitted the incomplete verdict forms. Thus,
the district court’s subsequent instruction to fill out the form completely was not a
“constructive” Allen charge. Instead, the district court gave a single modified Allen
charge after the jury stated that it was deadlocked, which was proper. Because no
facts indicate that the Allen charge was inherently coercive, the district court did
not abuse its discretion by issuing it.
F. Cumulative Prejudicial Effect
Cadet further argues that she should be granted a new trial based on the
cumulative error doctrine. Although Cadet suggests that any one of the alleged
errors is sufficient to warrant a new trial, Cadet argues that their combined effect
rendered her trial fundamentally unfair.
Under the cumulative error doctrine, the “cumulative prejudicial effect of
many errors may be greater than the sum of the prejudice caused by each
individual error” in a manner that denies a defendant of a fair trial. United States v.
Baker, 432 F.3d 1189, 1223 (11th Cir. 2005), abrogated on other grounds by Davis
v. Washington, 547 U.S. 813, 821 (2006). “We address claims of cumulative error
by first considering the validity of each claim individually, and then examining any
errors that we find in the aggregate and in light of the trial as a whole to determine
whether the appellant was afforded a fundamentally fair trial.” Morris v. Sec’y,
Dep’t of Corr., 677 F.3d 1117, 1132 (11th Cir. 2012). We will reverse a conviction
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only if the defendant can show that the aggregate of nonreversible errors affected
his substantial rights. United States v. Capers, 708 F.3d 1286, 1299 (11th Cir.
2013).
1. Constructive amendment of the indictment
Cadet4 first contends that the district court constructively amended the
indictment by giving a jury instruction that altered the specified unlawful activity
underlying the money laundering conspiracy count. A constructive amendment
occurs when “the prosecutor’s actions or the court’s instructions, ‘viewed in
context,’ resulted in the expansion of an indictment either literally or in effect.”
United States v. Behety, 32 F.3d 503, 508–09 (11th Cir. 1994) (quoting United
States v. Andrews, 850 F.2d 1557, 1559 (11th Cir. 1988) (en banc)). The “essential
elements of an indictment are impermissibly broadened when an indictment
includes language describing the statutory crime and additional language
narrowing the charged crime to a subset of the statutory crime, but the jury
instruction omits the narrowing language.” United States v. Moore, 525 F.3d 1033,
1045 (11th Cir. 2008) (citing United States v. Narog, 372 F.3d 1243, 1248 (11th
Cir. 2004)).
The statutory offense for a § 1957(a) money laundering conspiracy requires
that a defendant “knowingly engage[] or attempt[] to engage in a monetary
4
Castronuovo adopts this argument.
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transaction in criminally derived property of a value greater than $10,000” that “is
derived from specified unlawful activity.” 18 U.S.C. § 1957(a). The second
superseding indictment included language narrowing the charged crime by stating
that “the specified unlawful activity is the distribution, dispensing and possession
with intent to distribute and dispense[] oxycodone, a Schedule II narcotic
controlled substance” that was “outside the scope of professional practice and not
for a legitimate medical purpose.”
But the jury instructions did not include the indictment’s narrowing
language. The instructions did not specify that the distribution must be “outside the
scope of professional practice and not for a legitimate purpose” and that the
controlled substance must be “Oxycodone.” They stated only that the criminal
source of the proceeds must be the “felonious” distribution of a “controlled
substance.” By omitting the narrowing language, the instruction constructively
amended the indictment. Narog, 372 F.3d at 1248.
A jury instruction that constructively amends an indictment constitutes
reversible error per se if the defendant objected to the jury instruction before the
jury retired to deliberate. Madden, 733 F.3d at 1321 n.5. Cadet argues that she
preserved the issue in a post-trial motion to vacate her conviction wherein she
stated that the district court “deliberate[ly]” omitted the language “due to Defense
counsels’ specific requests to mirror the definition from the Indictment.” But Cadet
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did not object to the instruction before the jury retired to deliberate, so the
constructive amendment is not reversible error per se.
Instead, we review the district court’s instruction for plain error. Gutierrez,
745 F.3d at 471; Madden, 733 F.3d at 1321 n.5. Reversal is warranted only if the
constructive amendment (1) was plain, (2) affected Defendants’ substantial rights,
and (3) seriously affected the fairness, integrity, and public reputation of judicial
proceedings. United States v. Romano, 314 F.3d 1279, 1281–82 (11th Cir. 2002).
Here, even though the jury instruction constructively amended the
indictment, the constructive amendment did not affect Defendants’ substantial
rights because the indictment’s substance remained intact. See Moore, 525 F.3d at
1046. The district court instructed the jury that Defendants were charged in Count
1 with a conspiracy to “to distribute, dispense or possess with intent to distribute or
dispense Oxycodone without authorization by law” and that “Section 841(a)(1)
makes it a crime for anyone to knowingly distribute, dispense or possess with the
intent to distribute or dispense Oxycodone.” Only Counts 3 and 4, relating to the
drug-related patient deaths, mentioned another controlled substance (i.e.,
Alprazolam, which is also known as Xanax). Evidence at trial focused on
Oxycodone as well. See United States v. Cromartie, 267 F.3d 1293, 1296–97 (11th
Cir. 2001) (failure to submit required element to jury was not reversible plain error
because the jury “necessarily” relied on “[t]he only evidence” at issue establishing
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the requisite element). And while the district court’s instructions referred to
Oxycodone on eight separate occasions, Alprazolam was mentioned just once.
The district court also instructed the jury that for Counts 3 through 11 the
government must prove beyond a reasonable doubt that “[t]he Defendant
distributed or dispensed, or possessed with intent to distribute or dispense, not for a
legitimate medical purpose or outside the usual course of professional practice, the
controlled substance as charged.” The court even reminded the jurors that “[a]gain,
Defendants are charged with knowingly and willfully prescribing controlled
substances to his or her patients outside the usual course of professional medical
practice.” Moreover, based on the evidence presented at trial and because
Defendants were physicians with dispensing licenses, the only way that the
“buying, selling, and otherwise dealing in a controlled substance” at the clinics
could have been “felonious” for the purposes of Defendants’ conviction was if
those actions were taken “outside the scope of professional practice and not for a
legitimate purpose.”
So although the instructions for Count 13 did not specify the controlled
substance or restate how the distribution was “felonious,” no rational jury would
have convicted Defendants for money laundering conspiracy without considering
the proceeds to be derived from Oxycodone that was dispensed “outside the scope
of professional practice.” Thus, in light of the instructions as a whole and the
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evidence shown at trial, Defendants’ substantial rights were not affected by the
instruction, and a new trial is not warranted.
2. Guilt by association
As to the second error alleged in her cumulative error argument, Cadet 5
contends that the prosecutor’s theory of guilt by association prejudiced her rights.
During opening statements, the prosecutor repeatedly referred to the “criminal
doctors” as a collective. The prosecutor stated that the jury would know Cadet’s
guilt when other doctors “come in in their prison jumpsuit[s]” and tell the jury
“what they did.” And the prosecutor referred to the witnesses’ “prison jumpsuits”
on at least two other occasions. He further stated that these witnesses would “say
they saw the same patients as Defendant Cadet and Defendant Castronuovo, and
when they wrote those prescriptions, those criminal doctors, they were criminals,
they were drug dealers, they did it without a medical purpose and it was outside the
scope of their practice.” The prosecutor concluded that these were “the same
prescriptions written by Cadet and Castronuovo.” Defendants generally objected to
these statements.
Also, during closing argument, the prosecutor continually referred to the
other doctors appearing “in handcuffs and leg irons.” The prosecutor posed the
following hypothetical to the jury: “So how can Dr. Cadet reasonably distinguish
5
Castronuovo adopts this argument.
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herself and her practices from those of Drs. Aruta, Boshers, and Dreszer?” The
prosecutor suggested that “the answer is she can’t.” Defendants did not object to
the prosecutor’s closing argument.
We review a claim of prosecutorial misconduct de novo. United States v.
House, 684 F.3d 1173, 1197 (11th Cir. 2012). But where the defendant does not
object to the propriety of the prosecutor’s statement, we review for plain error
only. Flanders, 752 F.3d at 1332–33. Under plain error review, “the defendant
must show that (1) an error occurred; (2) the error was plain; (3) it affected his
substantial rights; and (4) it seriously affected the fairness of the judicial
proceedings.” Id.
Here, under either standard, the prosecutor’s comments do not warrant a new
trial. It is well understood that “[o]ne person’s guilty plea or conviction may not be
used as substantive evidence of the guilt of another.” United States v. King, 505
F.2d 602, 607 (5th Cir. 1974). 6 But the prosecutor may comment on the evidence
presented to the jury when describing the close association between
co-conspirators. See United States v. Castro, 89 F.3d 1443, 1457 (11th Cir. 1996)
(describing the appellants’ guilt-by-association argument as “meritless” because
“the prosecutor properly commented on the evidence presented to the jury when he
6
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
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described the close association that appellants shared with others involved in the
kickback scheme prior to and during their criminal activities”); United States v.
Tisdale, 817 F.2d 1552, 1555 (11th Cir. 1987) (explaining that no error occurs
when the evidence supports a prosecutor’s comments). And the prosecutor may
“blunt the impact of ‘expected attacks on witnesses’ credibility’” by “disclos[ing]
guilty pleas of Government witnesses.” United States v. DeLoach, 34 F.3d 1001,
1004 (11th Cir. 1994) (quoting United States v. Countryman, 758 F.2d 574, 577
(11th Cir. 1985)). There was no reversible error when the prosecutor commented
on witnesses appearing in their “prison jumpsuits,” a fact observable by the jurors
themselves. See, e.g., United States v. Adams, 1 F.3d 1566, 1584 (11th Cir. 1993).
Moreover, the district court’s curative instructions mitigated the impact of
the prosecutor’s comments. The district court told the jury to consider the
testimony of pleading witnesses “with more caution” and stated that those
witnesses may “hope to gain more favorable treatment.” The district court also
explained that “the fact that a witness has pleaded guilty to an offense isn’t
evidence of the guilt of any other person,” and it reminded the jury that “anything
the lawyers say is not evidence.” These cautionary instructions “sufficiently cure
any potential for prejudice to the defendant on trial.” United States v. Carrazana,
921 F.2d 1557, 1568 (11th Cir. 1991). As such, the prosecutor’s comments do not
warrant a new trial.
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3. Cross-examination
Cadet next challenges the district court’s limitation on cross-examination of
Chris George about his tattoo of a Nazi symbol, a picture in which he saluted a
Nazi flag, and his use of the “N word.” Cadet argues that the district court abused
its discretion in limiting cross-examination pursuant to Federal Rule of Evidence
403 and that this limitation violated Cadet’s Confrontation Clause rights under the
Sixth Amendment.
First, under Rule 403, the district court may exclude otherwise relevant
evidence if “its probative value is substantially outweighed by the danger of unfair
prejudice.” Fed. R. Evid. 403. When reviewing a district court’s Rule 403
evidentiary ruling, “we look at the evidence in a light most favorable to its
admission, maximizing its probative value and minimizing its undue prejudicial
impact.” United States v. Brown, 441 F.3d 1330, 1362 (11th Cir. 2006).
Here, the district court determined that the evidence had minimal probative
value as to bias because the record indicated that George had a good relationship
with Cadet, untainted by racial bias. The minimal probative value was substantially
outweighed by the unfair prejudice that would result from its use. Cadet, therefore,
has not shown that the district court abused its discretion.
Moreover, Cadet has not shown that the district court’s decision impeded her
ability to otherwise effectively cross-examine George. Cadet extensively cross-
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examined George about the ways in which he surreptitiously operated the clinics
and kept Cadet shielded from certain aspects of the clinics’ scheme. Cadet also
asked George about his plea agreement with the government, which required him
to testify if called upon. There was ample evidence upon which Cadet could and
did argue that George’s testimony was unreliable and upon which the jury could
evaluate George’s credibility.
Second, the limitation on cross-examination did not violate Cadet’s Sixth
Amendment rights. A defendant “is entitled only to an opportunity for effective
cross-examination, not cross-examination that is effective in whatever way, and to
whatever extent, the defendant might wish.” Maxwell, 579 F.3d at 1296 (quoting
United States v. Baptista-Rodriguez, 17 F.3d 1354, 1366 (11th Cir. 1994)). District
courts “retain wide latitude” to reasonably limit “cross-examination based on
concerns about, among other things, harassment, prejudice, confusion of the issues,
the witness’ safety, or interrogation that is repetitive or only marginally relevant.”
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). “The test for the
Confrontation Clause is whether a reasonable jury would have received a
significantly different impression of a witness’ credibility had counsel pursued the
proposed line of cross-examination.” United States v. Garcia, 13 F.3d 1464, 1469
(11th Cir. 1994).
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Under these circumstances, we cannot say that a reasonable jury would have
received a significantly different impression of George’s credibility had the district
court allowed the proposed line of questioning. Although the importance of cross-
examining George was heightened because he spearheaded the clinics’ operations,
Defendants’ counsel had ample opportunity to raise doubts about George’s
credibility and did so. Permitting cross-examination about his tattoo, photo, and
racial slurs would not have provided a significantly different impression of his
credibility. Thus, the Confrontation Clause was satisfied, and the district court did
not abuse its discretion in limiting cross-examination.
4. Good faith defense
Finally, Cadet argues that the district court erroneously instructed the jury
that a good faith defense applies to the substantive drug conspiracy count, but not
the money laundering conspiracy count. Yet Cadet requested a good faith
instruction only for the drug conspiracy count. And she did not otherwise object to
the instruction’s absence during the charge conference. Thus, we review for plain
error the district court’s failure to give the good faith instruction as to the money
laundering conspiracy count. Pena, 684 F.3d at 1151.
“Under the plain error standard, an appellant must show that: (1) an error
occurred; (2) the error was plain; (3) it affected his substantial rights; and (4) it
seriously affected the fairness of the judicial proceedings.” Id. The defendant
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“bears the burden of persuasion” as to the third prong and “must show that the
claimed error affected his substantial rights, which almost always requires that the
error must have affected the outcome of the district court proceedings.” Id.
(quoting United States v. Pantle, 637 F.3d 1172, 1177 (11th Cir. 2011) (per
curiam)). Where the instructions “adequately informed the jury’s good faith
analysis,” there is “no reversible error leaving a substantial, ineradicable doubt as
to whether the court’s instructions properly guided the jury’s deliberations.”
Dohan, 508 F.3d at 993.
Here, the district court instructed the jury that it must find, inter alia, that
(1) Defendants “knew the transaction involved property or funds that were the
proceeds of some criminal activity”; (2) “the individual Defendant knew that the
property involved in the monetary transaction was obtained or derived from
committing some crime”; and (3) “the individual Defendant knew about the plan’s
unlawful purpose and willfully joined in it.” These instructions required the jury to
rule out the possibility that Cadet actually harbored a good faith belief in the
legitimacy of the clinics’ business before it could have found that she knew that the
money represented criminally derived proceeds. Thus, because the charges as a
whole adequately informed the jury’s good faith analysis, the district court did not
commit reversible error.
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Case: 14-11765 Date Filed: 05/17/2016 Page: 43 of 43
Consequently, Cadet has not presented any individually reversible error, so
no cumulative prejudicial effect warrants a new trial.
IV. CONCLUSION
We AFFIRM Defendants’ judgments of conviction.
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