United States v. Anthony Roberts , 778 F.3d 942 ( 2015 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-16056
________________________
D.C. Docket No. 1:11-cr-20587-RNS-15
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JACQUELINE MORAN,
Defendant,
ANTHONY ROBERTS,
DEREK ALEXANDER,
RAFAEL ALALU,
GARY KUSHNER,
SANDRA HUARTE,
JORGE MACLI,
ANTONIO MACLI,
BISCAYNE MILIEU HEALTH CENTER, INC.,
Defendants-Appellants.
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________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(February 17, 2015)
Before HULL and JULIE CARNES, Circuit Judges, and ROTHSTEIN, * District
Judge.
HULL, Circuit Judge:
After a jury trial, eight defendants—seven individuals and one corporation—
appeal various aspects of their convictions and sentences in connection with the
operation of a complex and sustained scheme of Medicare fraud. To begin, we
recount certain evidence regarding the fraud scheme and outline the proceedings
before the district court. We then review, with relevant factual background, the
appellants’ challenges to their convictions and sentences.
I. THE FRAUD SCHEME
A. Biscayne Milieu Health Center
In 1996, Biscayne Milieu Health Center, Inc. (“Biscayne Milieu”), located in
North Miami, was incorporated in Florida. It offered a partial hospitalization
program (“PHP”) for patients with mental illness. In 1997, Biscayne Milieu was
certified as a Community Mental Health Center; it received a provider number
*
Honorable Barbara J. Rothstein, United States District Judge for the Western District of
Washington, sitting by designation.
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allowing it to bill Medicare for PHP treatment. A PHP provides intensive
outpatient treatment for patients with acute mental illness who are sufficiently ill
that they would otherwise require inpatient hospitalization. Medicare covers
partial hospitalization programs providing treatment for mental illness, but only
does so subject to a variety of conditions.
These Medicare rules and regulations are set forth in the Local Coverage
Determination (“LCD”). Medicare requires that, to qualify for the PHP benefit, the
services must be reasonable and necessary for the diagnosis and active treatment of
the patient’s condition. The LCD makes clear that PHPs are structured to “provide
patients with profound or disabling mental health conditions an individualized,
coordinated, intensive, comprehensive, and multidisciplinary treatment program
not provided in a regular outpatient setting.” A given patient must be experiencing
“an acute onset or decompensation of a covered Axis I mental disorder,” severe
enough to prevent the patient from functioning in normal daily activities outside of
a hospital setting.1 And there must also be a reasonable expectation that active
treatment in the PHP will improve the patient’s condition. Patients should not
1
“Axis I mental disorder” referred to the standardized, multiaxial system for classifying
mental disorders found in the fourth edition of the Diagnostic and Statistical Manual of Mental
Disorders (DSM-IV). Axis I covered clinical disorders including schizophrenia and other
psychotic disorders, mood disorders, anxiety disorders, and substance-related disorders, while
excluding personality disorders and mental retardation. Am. Psychiatric Ass’n, Diagnostic and
Statistical Manual of Mental Disorders 27-28 (4th ed. 2000). The American Psychiatric
Association has since eliminated its use of the multiaxial system for classifying mental disorders,
but the DSM-IV remained current and in effect during the period here discussed, hence its
inclusion in the LCD.
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remain in PHPs indefinitely.
Further, dual diagnosis patients are those suffering from both substance
abuse and acute mental disorders. Under Medicare’s regulations, dual diagnosis
patients may be eligible for PHP treatment. But PHP treatment is not authorized
for “individuals with persistent substance abuse” who “cannot or refuse to
participate with active treatment of their mental disorder.” An addicted individual
may be admitted as long as the individual is not actively using the substance at the
time of admission and has an acute mental health crisis.
For a patient to be admitted to a PHP, a “psychiatrist or physician trained in
the diagnosis and treatment of psychiatric illness” must certify that the patient
would require in-patient psychiatric hospitalization if the PHP services were not
provided, and must attest that the services will be furnished while the patient is
under the care of a physician and pursuant to an individualized plan of care. 2 Once
a patient is enrolled in a PHP, Medicare requires documentation supporting the
medical necessity of the claims made by the PHP provider. This documentation
includes progress notes detailing the patient’s participation in and response to the
intensive treatment.
2
The Local Coverage determination further provides that such individualized care is
required because of the pervasive dysfunction associated with acute episodes of the covered
mental disorders as well as the need for close medical supervision and coordination. PHP
patients must be able to cognitively and emotionally participate in the active treatment process of
a PHP for it to be effective.
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Partial hospitalization in a PHP is a very intensive and expensive form of
treatment for patients experiencing an acute mental health crisis. The evidence
showed that Biscayne Milieu was paid $165 per patient per day for outpatient
treatment or approximately $5000 per month per patient.
The owners and operators of Biscayne Milieu—the appellants here—agreed
to be bound by these rules and regulations and to refrain from filing false claims.
Because of the volume of claims processed by Medicare, the candor and
truthfulness of the appellants, as health care providers making claims into the
system, are absolute necessities.
As is too often the case, the appellants here concocted and engaged in a
pernicious scheme to defraud Medicare and preyed upon vulnerable victims. To
carry out the scheme, the owners and operators of Biscayne Milieu: (a) submitted
false and fraudulent claims to Medicare for PHP services for patients who were not
eligible for PHP treatment, for PHP services that were not medically necessary, for
PHP services that were not eligible for Medicare reimbursement, and for PHP
services that were not actually provided by Biscayne Milieu; (b) offered, paid, or
received kickbacks and bribes for recruiting Medicare beneficiaries to attend
Biscayne Milieu; (c) paid kickbacks and bribes to patients to ensure the attendance
of ineligible Medicare beneficiaries at Biscayne Milieu; (d) concealed the
submission of false and fraudulent claims to Medicare, the receipt and transfer of
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the proceeds from the fraud, and the payment of kickbacks and bribes to patient
recruiters and Medicare beneficiaries; and (e) diverted proceeds of the fraud for
personal use.
Further, Biscayne Milieu employees and agents, including a doctor,
therapists, nurses, and social workers, implemented the fraud by admitting
ineligible patients to Biscayne Milieu, holding therapy sessions for patients who
did not qualify for PHP treatment, falsifying group therapy notes to justify
fraudulent claims to Medicare, and recruiting Haitian patients who did not qualify
for PHP treatment by promising to assist such patients with applications for United
States citizenship. At trial, numerous former employees of Biscayne Milieu, many
of whom were separately indicted and had previously pled guilty to their
participation in the fraud scheme, offered substantial evidence of the scheme’s
scope and design.
From 2007 to 2011, Biscayne Milieu submitted $57,689,700 in Medicare
claims for PHP care of mentally ill patients, and Medicare paid $11,481,593 on
those claims. This billing was largely fraudulent for the simplest of reasons.
Virtually all of the patients treated at Biscayne Milieu’s PHP were not suffering an
acute onset of a covered Axis I mental disorder; did not have a reasonable
expectation of improvement as a result of PHP treatment; or were not cognitively
able to participate in PHP treatment. As the district court found, even the few
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patients who might have had such an acute mental disorder did not receive the
medical care that was required under the PHP rules. 3
Rather than eligible PHP patients, the patient population principally fell into
four categories: (1) chronic substance abusers; (2) elderly patients with dementia;
(3) Haitian patients seeking immigration benefits; and (4) paid patients. Chronic
substance abusers constituted an enormous percentage of the patient population at
Biscayne Milieu. Trial witnesses testified that between 70 percent and 96 percent
of Biscayne Milieu patients were chronic substance abusers. By virtue of their
chronic substance abuse and lack of an acute mental disorder, the patients at
Biscayne Milieu were, for the most part, not eligible for PHP treatment at all.
Even though it was regularly admitting substance abusers, Biscayne Milieu also
failed to provide meaningful treatment for substance abuse. In short, during the
relevant period, Biscayne Milieu operated a patient mill supported by a kickback
scheme that ensured an ongoing supply of patients.
The kickback scheme itself was highlighted by the use of what the parties
often referred to as the “money sheet.” The money sheet included columns for: the
patient’s name; the physician responsible for admitting the patient into the PHP;
3
We recognize that, at trial, there was conflicting evidence regarding the scope of and
intent underlying the fraud scheme. For example, there was conflicting evidence regarding
whether patients qualified for PHP treatment and regarding which defendants knew what and to
what extent. But for our purposes the jury verdict resolved those factual disputes, and we must
view the evidence in the light most favorable to the jury verdict.
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the initials of the person who referred the patient; and a box for each day of the
month. Biscayne Milieu billed Medicare, and paid the recruiter, for each day that
had an “X” in the box, which showed that the patient attended therapy that day.
Recruiters were paid only for days the patient attended therapy, and they were not
paid for any days that the patient was absent.
B. The Seven Individual Defendants
In addition to the corporate defendant Biscayne Milieu, the seven individual
defendants appealing here played various roles in the operation of the fraud
scheme.
Defendant Antonio Macli was Biscayne Milieu’s chief executive officer
(“CEO”). He also served as Biscayne Milieu’s primary contact with Medicare for
purposes of provider certification. Defendant Antonio Macli certified compliance
with Medicare rules and regulations despite clear knowledge that Biscayne
Milieu’s patient inventory had been stocked through the payment of illegal
recruiter kickbacks. He also directed these recruiters to expand their efforts,
including by recruiting patients from outside the state, and he ensured that
recruiters masked the nature of their employment via false case management
contracts. Defendant Antonio Macli also instructed recruiters to recruit Haitian
patients to attend the PHP, even though such patients did not qualify for PHP
treatment.
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At trial, former employees of Biscayne Milieu testified to defendant Antonio
Macli’s control over the operation. Former therapist Nikki Charles testified that
Antonio Macli stated that it was “his business” and that he was “in charge,” further
adding, when disputes arose, that there were “too many chiefs and not enough
[I]ndians.” Recruiter James Edwards testified that he was hired as a recruiter by
Antonio Macli with the explicit understanding that he would be paid $25 per client
per day of treatment. Former therapist Manotte Bazile testified that Antonio Macli
offered her $1000 in addition to her salary if she would recruit patients from the
Haitian community. A government agent testified that Antonio Macli signed the
checks on behalf of Biscayne Milieu that went to patient recruiters. And John
Jackson, the former clinical director of Biscayne Milieu, testified that Antonio
Macli signed the check that was cashed to pay off a patient who threatened to
expose the fraud.
Defendant Antonio Macli’s son, defendant Jorge Macli, was the day-to-day
manager of Biscayne Milieu and also a designated point of contact for Medicare.
Both Antonio Macli and Jorge Macli had an ownership interest in Biscayne Milieu
as well as managerial control of the company. In his day-to-day management role,
defendant Jorge Macli oversaw almost every significant aspect of the fraud. He had
ultimate oversight over the patient recruiters. He himself recruited patient
recruiters and then paid kickbacks to those recruiters. In addition, Jorge Macli
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aided patient recruiters in financing the purchasing or lease of halfway houses used
to board the patients recruited to attend the PHP at Biscayne Milieu. In 2010,
defendant Jorge Macli initiated the plan to have the patient recruiters sign
fraudulent “case manager” contracts and insisted that recruiters, including
defendants Derek Alexander and Anthony Roberts, do so. He directed the
recruiters to submit false invoices. Defendant Jorge Macli even paid hush money
to certain patients to quiet their complaints. Defendant Jorge Macli directed the
admission of patients he knew to be ineligible for PHP treatment, even over
complaints from other staff. He overrode staff attempts to deny admissions to
elderly patients with dementia who were recycled from other PHPs and Haitian
patients who were not mentally ill and who came to Biscayne Milieu in order to
obtain immigration benefits.
Multiple witnesses testified to defendant Jorge Macli’s centrality to the fraud
scheme. Former clinical director John Jackson testified that defendant Jorge Macli
agreed, during Jackson’s hiring process, to pay Jackson $25 per day per client
attending Biscayne Milieu. Further, Jackson testified to two details showing
defendant Jorge Macli’s clear awareness of the fraudulent nature of the enterprise.
First, Jackson and Jorge Macli agreed that patients Jackson would recruit from
another, then-closed facility should enter Biscayne Milieu over time rather than all
at once to avoid suspicion of the Medicare billing. Second, concerned about how
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Jackson would account for the additional income, Jorge Macli suggested that
Jackson be paid for the recruiting via a dummy corporation or under a different
individual’s name to avoid suspicion regarding Jackson’s fluctuating paycheck.
Jackson also testified that Jorge Macli agreed to loan Jackson, as well as other
recruiters, funds to expand halfway houses which would then send their residents
for PHP treatment at Biscayne Milieu.
Separately, Rufus Cargile, who began as a patient at Biscayne Milieu but
was later hired as a mental health worker, was sent to Detroit, Michigan, by
defendant Jorge Macli for the purpose of recruiting substance abuse patients to
Biscayne Milieu. Cargile testified that Jorge Macli paid for the trip to Detroit,
where Cargile was from, with the expectation that Cargile would “do marketing for
Jorge [Macli] and Biscayne Milieu.” Referring specifically to the value of
additional patients recruited, Cargile testified that Jorge Macli said, “I get two. You
get one.” Cargile further testified that marketing in Detroit was viewed as
effective because of the limited set of treatment options available for Medicare
patients seeking drug treatment. And, like his father Antonio Macli, defendant
Jorge Macli also signed checks payable to the recruiters.
Defendant Antonio Macli’s daughter, defendant Sandra Huarte, was in
charge of Biscayne Milieu’s Medicare billing and Biscayne Milieu’s payroll. In
this capacity, defendant Huarte oversaw and administered Biscayne Milieu’s
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payment of illegal kickbacks to patient recruiters. Defendant Huarte also had the
“money sheets” in her office, which she used to calculate the recruiter kickbacks.
Further, recruiter James Edwards testified to defendant Huarte’s possession of the
“money sheets.” In addition, defendant Huarte instructed patient recruiters to
recruit Haitian patients to attend the PHP who were not mentally ill and were not
qualified for PHP treatment. Defendant Huarte also paid therapists to falsify group
therapy notes and was aware of numerous other fraudulent practices at Biscayne
Milieu. Therapist Manotte Bazile testified that defendant Huarte, on more than
one occasion, requested that Bazile fill out falsified group notes and then paid
Bazile, by hand-delivered check, in excess of her salary, when the notes were
completed.
Defendant Huarte also served as CEO of North Biscayne Investment, Inc., a
separate vehicle for transferring the proceeds of the health care fraud to defendants
Antonio Macli and Huarte. Several North Biscayne Investment bank accounts
were involved in the transfer of fraudulent Medicare proceeds. Defendant Huarte
used the bank accounts to transfer fraudulent Medicare proceeds to herself and
others.
From late 2008 through 2011, defendant Dr. Gary Kushner, a medical doctor
licensed in Florida, was an attending physician at Biscayne Milieu and one of its
main psychiatrists. Dr. Kushner signed forms and charts authorizing treatment for
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patients who were not eligible for PHP treatment, often without examining the
patients or the charts. He authorized Biscayne Milieu to bill Medicare using his
Medicare identifier as an attending physician to legitimate the fraudulent claims.
Dr. Kushner admitted numerous patients he himself referred from local hospitals
and also did so working in concert with patient recruiters. To hide the fact that
such patients were chronic substance abusers, Dr. Kushner excluded substance-
abuse issues from patient diagnoses.
Following admission, Dr. Kushner met with patients only briefly, for five to
ten minutes. He had minimal interaction with the patients. He conducted the
meetings merely to justify the creation of records that made it appear as though he
was providing meaningful treatment. Dr. Kushner also signed forms that falsely
certified he had conducted reviews of Biscayne Milieu billings and had discovered
no fraudulent billings. These forms certified that Dr. Kushner had “conducted a
systematic review of clinic billing to ensure that the billings [were] not fraudulent
or unlawful” and that Dr. Kushner had not “discovered any unlawful charges.” In
addition to falsifying these documents, Dr. Kushner authorized other staff to
complete his paperwork and sign documents for him. Defendant Huarte eventually
obtained Dr. Kushner’s electronic password in order to sign treatment plans for
him.
Defendant Rafael Alalu, a licensed mental health counselor in Florida,
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became the clinical director at Biscayne Milieu in late June 2010 after serving as a
part-time therapist on the Biscayne Milieu staff since February 2010. He remained
at Biscayne Milieu until his arrest in September 2011. Evidence at trial showed
that defendant Alalu was clearly aware of the variety of patients improperly
admitted to Biscayne Milieu. Alalu oversaw the work of mental health therapists
and social workers, falsified numerous group therapy notes, and created false notes
for patients who were not ill, never showed up, left sessions early, or who were not
eligible or did not qualify for PHP treatment in the first place. Further, Alalu cut
and pasted therapy notes from one patient into the files of other patients and
knowingly oversaw other therapists doing so. At trial, the government introduced
approximately 87 sets of therapy notes containing two or more notes that Alalu
simply copied and pasted. In one example, Alalu created notes for seven patients
on one date and, five weeks later, Alalu copied and pasted the information from
those notes into identical notes for seven completely different patients. Alalu also
encouraged the creation of fraudulent records by other therapists.
Defendant Derek Alexander and defendant Anthony Roberts each served as
patient recruiters for Biscayne Milieu. Both Antonio Macli and Jorge Macli hired
recruiters and authorized the payment of kickbacks. And Dr. Kushner steered the
patients he treated at local hospitals to Roberts and some of the other recruiters,
who would then compete to get credit for the clients.
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From March 2010 through February 2011, defendant Alexander was a
patient recruiter and Biscayne Milieu paid him $30 per patient per day for the
referred patients’ attendance. He received $47,500 in illegal kickbacks. From
April 2008 through June 2011, defendant Roberts was a patient recruiter, and
Biscayne Milieu paid him $30 per patient per day for the referred patients’
attendance. He received $199,239.48 in illegal kickbacks.
Both Alexander and Roberts also created fraudulent invoices for purported
case management services to Biscayne Milieu at a rate of $50 per hour, but the
evidence showed that the payments to Alexander and Roberts were for patient
recruiting and patient attendance at Biscayne Milieu, not for case management
services. In fact, defendants Alexander and Roberts had no training or work
experience in case management services.
Many of Alexander’s and Roberts’s recruited patients had chronic
substance-abuse problems, had been admitted to hospitals after a serious relapse,
and lived as tenants in privately run halfway houses for substance abusers. Roberts
operated a halfway house and collected rent from his tenants, in addition to
receiving illegal kickbacks from Biscayne Milieu. For example, Roberts’s
clientele included sixteen individuals who had multiple admissions to Biscayne
Milieu, including one patient with five admissions and five billings to Medicare.
Roberts also recruited other patient recruiters (including Wyatt Barnfield and
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Gregory Murphy, who were both separately indicted and who both pled guilty).
Biscayne Milieu billed $750,300 to Medicare for defendant Alexander’s
recruited patients and collected $300,876.08. Biscayne Milieu billed $4,866,100 to
Medicare for defendant Roberts’s recruited patients and collected $887,085.31.
C. The Indictment
In June 2012, a federal grand jury returned a 44-count superseding
indictment charging the eight appellants in this case, along with three additional
co-defendants, with various offenses related to Biscayne Milieu’s submission of
fraudulent Medicare claims. The three co-defendants, not on appeal here, are
Curtis Gates, Madeline Lucas, and Jacqueline Moran. 4
Count 1 alleged a four-and-a-half year conspiracy to commit health care
fraud under 18 U.S.C. § 1347, from January 2007 through August 2011, in
violation of 18 U.S.C. § 1349. Seven individual defendants, Antonio Macli, Jorge
Macli, Huarte, Dr. Kushner, Alalu, Moran, Lucas, and corporate defendant
Biscayne Milieu were charged in count 1.
Counts 2 through 14 charged substantive health care fraud, in violation of 18
U.S.C. §§ 1347 and 2. Six individual defendants, Antonio Macli, Jorge Macli,
Huarte, Dr. Kushner, Alalu, Moran, and corporate defendant Biscayne Milieu were
4
Co-defendants Curtis Gates and Madeline Lucas pled guilty; Lucas testified for the
government at trial. Co-defendant Jacqueline Moran went to trial and was convicted of Counts
1, 5-6, and 12; she has dismissed her appeal. The discussion below references the charges,
sentences, and roles of only those eight defendants remaining in this appeal.
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charged in counts 2 through 14.
Count 15 charged conspiracy to receive and pay health care kickbacks to
recruiters to induce referrals of patients in connection with a federal health care
program as prohibited by 42 U.S.C. § 1320a-7b(b)(1) and (2), in violation of 18
U.S.C. § 371. Six individual defendants, Antonio Macli, Jorge Macli, Huarte,
Alexander, Roberts, Gates, and corporate defendant Biscayne Milieu were charged
in count 15.
Counts 16 through 26 charged the substantive payment of specific kickbacks
to recruiters to induce patient referrals on dates ranging from August 2007 until
June of 2011, in connection with a federal health care program, in violation of 42
U.S.C. § 1320a-7b(b)(2)(A). Counts 27 through 29 charged the substantive receipt
of specific kickbacks by recruiters in return for patient referrals, on 15 August
2007, 4 April 2010, and 6 June 2010, in connection with a federal health care
program, in violation of 42 U.S.C. § 1320a-7b(b)(1)(A). Two individual
defendants, Antonio Macli and Jorge Macli, were charged in counts 16 through 26.
Three individual defendants, Alexander, Roberts, and Gates, were charged in
counts 27 through 29.
Count 30 charged conspiracy to commit money laundering, in violation of
18 U.S.C. § 1956(h). Counts 31 through 37 charged money laundering, in
violation of 18 U.S.C. § 1957. Counts 38 through 44 charged “concealment”
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money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i). Three individual
defendants, Antonio Macli, Jorge Macli, and Huarte, were charged with counts 30
through 44.
II. DISTRICT COURT PROCEEDINGS
A. Jury Trial
On July 2, 2012, after extensive pre-trial proceedings, all eight appealing
defendants proceeded to a jury trial. On July 9, 2012, after a jury was selected and
sworn, trial commenced with opening statements.
The trial lasted over seven weeks, until August 24, 2012. Both pre-trial and
during the trial, the district court ruled that an objection by one defendant would be
adopted automatically by each defendant unless a defendant opted out of the
objection.
As to the 44 counts charged, the defendants moved for judgments of
acquittal during trial. The district court granted these motions as to counts 9, 10,
13, 14, 38-40, and 42 and denied them as to the other counts. The remaining
counts were decided by the jury.
For clarity in our analysis below, we catalog here the jury verdict as against
each defendant along with the sentences later imposed by the district court.
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B. The Convictions and Sentences
Defendant Antonio Macli, the CEO of Biscayne Milieu, was convicted of
counts 1, 7, 15-26, and 30-37, and acquitted of counts 2-6, 8, 11-12. He was
sentenced to a total of 360 months’ imprisonment as follows: 120 months as to
each of counts 1, 7, and 31 through 37, to run concurrently; 60 months as to each
of counts 15 through 26, to run concurrently; and 240 months as to count 30, to run
consecutively to the terms imposed on the other counts.
Defendant Jorge Macli, Biscayne Milieu’s day-to-day manager and the
contact person for Medicare, was convicted of counts 1, 4, 7, 15-26, 30, 32-33, 35,
and 37, and acquitted of counts 2-3, 5-6, 8, and 11-12. He was sentenced to a total
of 300 months’ imprisonment as follows: 60 months as to each of counts 1, 4, 7,
15-26, 32, 33, 35, and 37, to run concurrently, and 240 months as to count 30, to
run consecutively to the terms imposed on the other counts.
Defendant Huarte, responsible for Biscayne Milieu’s Medicare billing and
payroll, was convicted of counts 1, 2, 4-8, 11, 15, 30-31, and 34, and acquitted of
counts 3 and 12. She was sentenced to a total of 262 months’ imprisonment as
follows: 22 months as to each of counts 1, 2, 4-8, 11, 15, 31, and 34, to run
concurrently, and 240 months as to count 30, to run consecutively to the terms
imposed on the other counts.
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Corporate defendant Biscayne Milieu was convicted of counts 1, 2-8, 11-12,
and 15, and sentenced to a one year term of probation as to each count, to run
concurrently. The court also ordered defendants Antonio Macli, Jorge Macli,
Huarte, and Biscayne Milieu to pay $11,481,593.43 in joint and several restitution.
Defendant Dr. Kushner, Biscayne Milieu’s attending physician, was
convicted of counts 1 and 2. He was sentenced to a total of 144 months’
imprisonment as follows: 120 months’ imprisonment as to count 1, and 24 months’
as to count 2, to run consecutively. Dr. Kushner was also ordered to pay
$9,341,767.24 in restitution.
Defendant Alalu, Biscayne Milieu’s clinical director, was convicted of
counts 1 and 3-4, but acquitted on count 11. He was sentenced to concurrent terms
of 100 months’ imprisonment as to each count of conviction. Alalu was also
ordered to pay $5,614,353.20 in restitution.
Defendant Alexander, a patient recruiter, was convicted of counts 15 and 28.
He was sentenced to concurrent terms of 42 months’ imprisonment as to each
count of conviction; Alexander was also ordered to pay $300,876.08 in restitution.
Finally, defendant Roberts, a patient recruiter, was convicted of counts 15
and 29. He was sentenced to 60 months as to count 15, and 27 months as to count
29, to run consecutively. Roberts was also ordered to pay $887,085.31 in
restitution.
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All eight defendants filed timely notices of appeal.
III. ISSUES AND STANDARDS OF REVIEW
Given the number of defendants and overlapping claims, we list here the
issues raised in this appeal and the standard of review applicable to each claim:
1) Whether sufficient evidence supports the convictions of six defendants, Antonio
Macli, Jorge Macli, Huarte, Dr. Kushner, Alexander, and Biscayne Milieu. 5 This
Court reviews de novo whether there is sufficient evidence to support the jury’s
guilty verdicts, reviewing the evidence in the light most favorable to the
government and resolving all reasonable inferences and credibility evaluations in
favor of the verdict. United States v. Doe, 661 F.3d 550, 560 (11th Cir. 2011).
2) Whether count 1, conspiracy to commit health care fraud, and count 15, conspiracy
to receive and pay health care kickbacks, are multiplicitous. We review
defendants’ preserved challenges to the indictment de novo. United States v.
Woods, 684 F.3d 1045, 1060 n.14 (11th Cir. 2012). Under Federal Rule of
5
At the close of his brief, defendant Alalu states: “[t]he Appellant hereby adopts those
arguments in the Briefs of his co-Appellants filed in this case as they may apply, pertain, or be
available to him.” We read this to mean arguments as to the eight issues Alalu actually raises on
appeal, rather than any other challenges to the convictions or sentences. Regardless, the other
appellants’ claims as to sufficiency of the evidence are about evidence as to their individual guilt,
not Alalu’s, which does not help him. See United States v. Cooper, 203 F.3d 1279, 1285 n.4
(11th Cir. 2000). Alternatively, Alalu’s adoption as to sufficiency of the evidence fails to satisfy
11th Cir. Rule 28-1(f), requiring that adoptions “include a statement describing in detail which
briefs and which portions of those briefs are adopted.” In any event, and to the extent defendant
Alalu raises a sufficiency of the evidence claim, there was ample evidence to convict defendant
Alalu on counts 1, 3, and 4. We note, also, that counsel for defendant Alalu became unavailable
for oral argument in this case. Nonetheless, Defendant Alalu has waived no issues and all of
defendant Alalu’s allegations of error are still submitted to the Court on the briefs.
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Criminal Procedure 12, challenges to the indictment not raised before trial are
waived. Fed. R. Crim. P. 12(b)(3)(B).
3) Whether the district court abused its discretion by declining to remove a juror
because of an offensive comment made by defendant Alexander’s attorney, and by
subsequently denying a defense motion, made by Dr. Kushner’s attorney, for
mistrial on that ground. Separately, whether defendant Alexander was denied
effective assistance of counsel when his attorney failed to withdraw after making
that comment. This Court reviews a district court’s decision on whether to remove
a sitting juror for abuse of discretion. United States v. Register, 182 F.3d 820, 839
(11th Cir. 1999). The claim of ineffective counsel presents a mixed question of
law and fact and therefore receives de novo review. Dell v. United States, 710
F.3d 1267, 1272 (11th Cir. 2013).
4) Whether the district court abused its discretion by admitting lay testimony
regarding the eligibility of patients to receive PHP treatment, and the authenticity
of Dr. Kushner’s signature on patient records. The district court’s evidentiary
rulings, including the admission of witness testimony under Federal Rule of
Evidence 701, are reviewed for abuse of discretion. United States v. Hill, 643 F.3d
807, 840-41 (11th Cir. 2011).
5) Whether the district court abused its discretion by denying defendant Jorge Macli’s
motion for mistrial based on a government witness’s reference to the invocation of
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Jorge Macli’s right to counsel. This Court reviews for abuse of discretion the
denial of a mistrial motion based on a comment regarding a defendant’s right to
counsel. See United States v. Reeves, 742 F.3d 487, 504 (11th Cir. 2014).
6) Whether all appellants are entitled to a new trial based on remarks made by the
prosecutor during rebuttal closing argument. This Court reviews de novo
allegations of prosecutorial misconduct in closing argument. United States v.
Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006).
7) Whether the omission of a jury instruction defining “attempt” is plain error.
Because this issue is raised for the first time on appeal, we review it for plain error.
United States v. Lewis, 492 F.3d 1219, 1221-22 (11th Cir. 2007) (en banc). Under
the plain error standard, “before an appellate court can correct an error not raised at
trial, there must be (1) error, (2) that is plain, and (3) that affects substantial
rights.” United States v. McKinley, 732 F.3d 1291, 1296 (11th Cir. 2013). Where
these three conditions are met, the Court may then exercise its discretion to correct
the error, “but only if (4) the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id.
8) Whether defendants Dr. Kushner and Biscayne Milieu were denied a fair trial by
the cumulative effect of the alleged trial errors.
9) Whether the individual defendant-appellants’ sentences are procedurally and
substantively reasonable. This Court reviews de novo the district court’s
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interpretation of the guidelines and its application of guidelines to the facts.
Findings of fact by the trial court at sentencing, however, are reviewed for only
clear error. United States v. Medina, 485 F.3d 1291, 1297, 1303 (11th Cir. 2007)
(loss amount); United States v. Ghertler, 605 F.3d 1256, 1267 (11th Cir. 2010)
(sophisticated means); United States v. DeVaron, 175 F.3d 930, 937 (11th Cir.
1999) (en banc) (role in the offense); United States v. Singh, 291 F.3d 756, 763
(11th Cir. 2002) (obstruction of justice). The district court’s application of the
vulnerable victim enhancement presents a mixed question of law and fact, which
this Court reviews de novo. United States v. Arguedas, 86 F.3d 1054, 1057 (11th
Cir. 1996). “The district court’s determination of a victim’s ‘vulnerability’ is,
however, essentially a factual finding to which [this court] give[s] due deference.”
Id. And this Court reviews the final sentence imposed by the district court under
an abuse of discretion standard. United States v. Pugh, 515 F.3d 1179 (11th Cir.
2008).
10) Whether the district court correctly calculated Dr. Kushner’s restitution.
This Court reviews de novo the legality of a restitution order and reviews any
factual findings about the restitution amount for clear error. United States v. Bane,
720 F.3d 818, 827 (11th Cir.), cert. denied, 134 S. Ct. 835 (2013).
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IV. SUFFICIENCY OF THE EVIDENCE
A. Health Care Fraud Scheme
Five defendants, Antonio Macli, Jorge Macli, Huarte, Biscayne Milieu, and
Dr. Kushner, all challenge the sufficiency of the evidence underlying their
convictions for conspiracy to commit health care fraud under 18 U.S.C. § 1347, in
violation of 18 U.S.C. § 1349 (count 1), and substantive health care fraud in
violation of 18 U.S.C. §1347 (counts 2-8 and 11-12).6
Section 1347(a) provides a criminal penalty for anyone who: “knowingly
and willfully executes, or attempts to execute, a scheme or artifice (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.” 18
U.S.C. § 1347 (emphasis added).7 Section 1349 provides a criminal penalty for
anyone who “attempts or conspires to commit any offense under this chapter,”
6
Defendant Alalu’s brief did not challenge the sufficiency of the evidence to support his
conviction under counts 1, 3, and 4. But to the extent defendant Alalu arguably tried to do so,
see footnote 5, supra, we conclude ample evidence supported his convictions.
7
Further, in United States v. Medina, this Court concluded that: “Thus, the government
has not shown that [defendants] made any false or fraudulent representations to Medicare, nor
did they present evidence that [defendants] defrauded or attempted to defraud any health care
program. 485 F.3d 1291, 1300 (11th Cir. 2007). “[P]aying kickbacks alone is not sufficient to
establish health care fraud” under § 1347(a)(2). Id. at 1298. Rather, to sustain a § 1347(a)(2)
conviction, there must be evidence of a false or fraudulent representation to Medicare, and “the
defendant must be shown to have known that the claims submitted were, in fact, false.” Id. at
1297; see United States v. Vernon, 723 F.3d 1234, 1273 (11th Cir. 2013).
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which includes offenses under § 1347. 18 U.S.C. § 1349. Thus, § 1349 makes it
unlawful to attempt or conspire to commit a § 1347 crime of health care fraud.
To sustain the conspiracy conviction under 18 U.S.C. §1349, the
government must prove that (1) a conspiracy existed; (2) the defendant knew of it;
and (3) the defendant knowingly and voluntarily joined it. United States v.
Vernon, 723 F.3d 1234, 1273 (11th Cir. 2013). Because the crime of conspiracy is
“predominantly mental in composition,” the government may prove these elements
by circumstantial evidence. Id.; United States v. Mateos, 623 F.3d 1350, 1362
(11th Cir. 2010) (affirming Medicare fraud convictions based on circumstantial
evidence of knowledge). The nature of conspiracy requires proof by such
inferences and circumstantial evidence. See Vernon, 723 F.3d at 1273; Mateos,
623 F.3d at 1362.
“[T]he government need not prove that the defendant knew all of the details
or participated in every aspect of the conspiracy.” Vernon, 723 F.3d at 1273; see
also Mateos, 623 F.3d at 1363. Instead, the government’s burden is only to prove
that the defendant knew of “the essential nature of the conspiracy.” Vernon, 723
F.3d at 1273. A conspiracy conviction will be upheld “when 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.” Id.;
Mateos, 623 F.3d at 1362. “As for the voluntary joining element, the government
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can meet this burden ‘through proof of surrounding circumstances such as acts
committed by the defendant which furthered the purpose of the conspiracy.’”
Vernon, 723 F.3d at 1274 (citation omitted).
Here, the jury was properly instructed as to all of the elements of the
§§ 1347 and 1349 crimes. In particular, and in contrast to the purely individual
focus of the appellants’ briefs, the jury was instructed that for these substantive
crimes, where a defendant is a member of a conspiracy, he or she is criminally
liable for his or her co-conspirator’s reasonably foreseeable crimes committed
during the course of and in furtherance of the conspiracy. Pinkerton v. United
States, 328 U.S. 640, 645-48, 66 S. Ct. 1180, 1183-84 (1946); United States v.
Silvestri, 409 F.3d 1311, 1335 (11th Cir. 2005).
As recounted in detail above and summarized here, the government clearly
introduced sufficient evidence to uphold each conviction as to each of these five
appellants.
As to defendant Antonio Macli, ample evidence demonstrated his control of
the Biscayne Milieu business. Multiple witnesses testified that Antonio Macli was
ultimately in charge. Though he often delegated tasks which implemented the
fraud scheme, this delegation was entirely consistent with his managerial control.
Defendant Antonio Macli had access to the “money sheets” throughout the course
of the conspiracy, and he directed the format of the false employee filing for “case
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management” services. After hearing seven weeks of trial evidence, the district
court found at sentencing that Antonio Macli “had intimate knowledge of
everything, including the amount that was going to be paid” by Medicare.
As to defendant Jorge Macli, his day-to-day management of Biscayne Milieu
played a key role in the conspiracy. He acted as the contact person for Medicare,
hired recruiters to find and refer patients, approved of the recruiting of Haitian
patients, and pioneered the recruitment of substance-addicted patients from out of
state.
As to defendant Huarte, her significant role was made clear by her active
involvement in the Medicare billing process. She maintained the personnel records
on the recruiters and implemented the controls regarding therapy notes. 8 At
sentencing, the district court found that defendant Huarte was not “similarly
situated” to other defendants in the case who ultimately received lower sentences,
additionally stating that Huarte’s actions “created problems for patients by not
giving them the help they deserved, and [ ] ruin[ing] the lives of a number of
legitimate therapists.”
As to defendant Dr. Kushner, his centrality to the scheme is easily stated.
He referred and steered patients treated at local hospitals to Biscayne Milieu even
though the patients were not eligible for PHP treatment. Through his dual
8
Sufficiency of the evidence as to Biscayne Milieu is shown by the sufficiency of
evidence to convict the Maclis and Huarte.
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positions at local hospitals and Biscayne Milieu, he was able to control patients
going back and forth between Biscayne Milieu and the hospitals. Many of these
same patients were repeatedly recycled through Biscayne Milieu after the PHP
treatment failed to treat their underlying condition, most often active substance
abuse. And as the district court found, the evidence showed Dr. Kushner did
improper initial psychiatric evaluations, offered insufficient individualized
treatment, and falsely certified that the Medicare rules had been followed.
Given the evidence recounted above and earlier in this opinion, we readily
conclude the government presented overwhelming evidence for a reasonable jury
to convict these five appellants of the conspiracy to commit health care fraud and
the substantive health care fraud counts.
B. Kickbacks
Five defendants, Antonio Macli, Jorge Macli, Huarte, Biscayne Milieu, and
Alexander, challenge the sufficiency of the evidence in support of their convictions
for conspiracy to receive and pay health care kickbacks in connection with a
federal health care program as prohibited by 42 U.S.C. § 1320a-7b(b)(1) and (2), in
violation of 18 U.S.C. § 371 (count 15). Defendants Antonio Macli and Jorge
Macli also challenge the sufficiency of the evidence to support their convictions as
to counts 16-26, for the payment of specific kickbacks in violation of 42 U.S.C.
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§ 1320a-7b(b)(2)(A). Defendant Alexander also challenges his conviction for the
receipt of a $990 kickback (count 28) in violation of 42 U.S.C. § 1320a-
7b(b)(1)(A).9
The Anti–Kickback statute, 42 U.S.C. § 1320a–7b(b), underlies these
charges. Subsection (b)(1) criminalizes the receipt, and subsection (b)(2)
criminalizes the payment, of money “in return for referring an individual to a
person for the furnishing . . . of any item or service for which payment may be
made in whole or in part under a Federal health care program.” 42 U.S.C.
§ 1320a–7b(b)(1) and (2); Vernon, 723 F.3d at 1251-52.
Both defendants Antonio Macli and Jorge Macli hired recruiters and
authorized the payment of kickbacks to the recruiters to induce them to locate and
refer patients to Biscayne Milieu. Defendant Antonio Macli signed checks payable
to recruiters. And the simple math of the kickback scheme is illustrated by the
documented $990 payment to defendant Alexander. The “money sheet” for a
given time period showed that defendant Alexander was credited for 33 patient
“days” in a two-week period. He was paid $990, which equals 33 patient days at
$30 a day. The jury could reasonably infer a kickback scheme fully in operation.
In addition, the evidence showed that defendant Dr. Kushner also referred
and steered patients he treated at local hospitals to defendant Roberts, a recruiter,
9
Defendant Roberts does not challenge the sufficiency of the evidence to support his
convictions on the kickback counts 15 and 29.
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and some of the other recruiters, who then often fought over the doctor’s referrals.
C. Money Laundering
Defendants Antonio Macli, Jorge Macli, and Huarte challenge the
sufficiency of the evidence to support their convictions for conspiracy to commit
money laundering in violation of 18 U.S.C. § 1956(h). That section makes it a
crime to conspire to commit money laundering in violation of 18 U.S.C. §1956 or
§1957. Under §1956(h), “only two elements of conspiracy need be proven: (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. Broughton, 689 F.3d 1260, 1280 (11th Cir. 2012).
The two objects of the money laundering conspiracy charged in count 30
are: (1) to conduct financial transactions involving the proceeds of specified
unlawful activity knowing that the transactions were designed to “conceal or
disguise” the nature, location, source, ownership, and control of the proceeds of the
specified unlawful activity, in violation of 18 U.S.C. §1956(a)(1)(B)(i)
(“concealment money laundering”); and (2) to engage in monetary transactions
involving “criminally derived property of a value greater than $10,000,” such
property having been derived from specified unlawful activity, in violation of 18
U.S.C. § 1957 (“§ 1957 money laundering”). The “specified unlawful activity”
was alleged to be health care fraud in violation of 18 U.S.C. § 1347. The jury, by
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special verdict form, found defendants Antonio Macli, Jorge Macli, and Huarte
guilty of both objects of the conspiracy.
These three appellants argue their convictions cannot be sustained because
they did not “conceal” their funds. This ignores that evidence showed the
shuffling of money through various accounts that could be reasonably read as an
attempt to conceal the proceeds of the fraud. Evidence also showed the use of sub-
leasing agreements which, in effect, funneled fraud proceeds disguised as rent
payments to Huarte.
Appellants’ argument fails in any event. Though the jury found the
defendants guilty of both objects of the conspiracy, the evidence need only be
sufficient for any one of the charged objects to sustain a conviction. Medina, 485
F.3d at 1301. Concealment is an element of § 1956(a) money laundering crime,
but not of § 1957 money laundering crime. United States v. Wetherald, 636 F.3d
1315, 1325 n. 2 (11th Cir. 2011). Section 1957 requires that the property have a
value greater than $10,000, but it does not require that the defendant know of a
design to conceal aspects of the transaction or that anyone have such a design.
“Due to the omission of a ‘design to conceal’ element, section 1957 prohibits a
wider range of activity than money ‘laundering,’ as traditionally understood.” Id.(internal citation omitted). The appellants would have to prevail on a sufficiency
challenge to the underlying § 1957 counts in order to gain any traction here.
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This they cannot do. Ample evidence demonstrated the existence of
monetary transactions in excess of $10,000 related to the above-discussed health
care fraud in violation of 18 U.S.C. § 1347. For example, at trial an FBI forensic
accountant explained the movement of funds through accounts that took in money
fraudulently obtained by Medicare billing and for which the defendants Antonio
Macli, Jorge Macli, or Huarte were signatories.
Viewing the evidence in the light most favorable to the verdict, sufficient
evidence was presented to convict defendants Antonio Macli, Jorge Macli, and
Huarte on the money laundering conspiracy and substantive money laundering
counts.
V. MULTIPLICITOUS COUNTS IN INDICTMENT
Defendant Huarte argues, for the first time on appeal, that her two
conspiracy convictions, in count 1 and count 15, are multiplicitous. Huarte
contends that the kickback conspiracy count (count 15) is a lesser-included offense
of the health care fraud conspiracy count (count 1) and thus violates the Double
Jeopardy Clause.
Huarte’s argument fails. A defendant must object before trial to defects in
the indictment, and the failure to do so waives appellate review. Fed. R. Crim. P.
12(b)(3)(B) and (e). See United States v. Pacchioli, 718 F.3d 1294, 1307-08 (11th
Cir.), cert. denied, 134 S. Ct. 804 (2013) (refusing to consider same argument
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because appellant did not raise it before trial). Thus, defendant Huarte waived this
argument as a challenge to the indictment by failing to make it before trial.
Of course, defendant Huarte still challenges on appeal her sentences on
counts 1 and 15. To the extent this multiplicity argument could be construed as a
challenge to the sentences as being the result of multiplicitous convictions, see
Pacchioli, 718 F.3d at 1308, we briefly address this argument and find it wholly
wanting. As to her multiplicity claims, Huarte has not demonstrated any error,
much less plain error. Huarte’s convictions on counts 1 and 15 are not
multiplicitous because they involve two conspiracies with different objects and
thus different elements.
More specifically, count 1, a conspiracy under 18 U.S.C. § 1349 to violate
18 U.S.C. § 1347 and § 2, contains a different set of elements from count 15, a
conspiracy under 18 U.S.C. § 371 to violate 42 U.S.C. § 1320a-7b(b)(1) and (2).
As charged in count 1 in this case, the § 1349 conspiracy to commit health care
fraud under § 1347 required that fraud be the object of the conspiracy. The main
unlawful purpose of the conspiracy charged in count 1 was the false and fraudulent
claims and representations made to Medicare.
As to count 15, however, § 371 prohibits two or more persons from
conspiring to commit any offense against the United States. 18 U.S.C. § 371.
Further, § 371 requires proof of an overt act, while §1349 does not. Moreover, the
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unlawful purpose of the conspiracy in count 15 was the payment and receipt of
kickbacks for patient referrals. Unlike in count 1, the conduct (and even the
submitted claims to Medicare) did not need to be fraudulent. Even if a patient was
eligible for PHP treatment and actually received covered medical treatment, it was
still illegal for the co-conspirator owners and operators of Biscayne Milieu,
including defendant Huarte, to conspire to pay recruiters for patient referrals and
for those recruiters to receive payments. See United States v. Njoku, 737 F.3d 55,
68 (5th Cir. 2013) (holding that a conviction for § 1349 conspiracy to commit a
conviction for § 1347 health care fraud and § 371 conspiracy to pay health care
kickbacks in violation of 42 U.S.C 1320a-7b(b) are not multiplicitous convictions),
cert. denied, 2014 WL 1458281 (2014). There is no multiplicity error in this case.
Alternatively, even if defendant Haurte were somehow correct, this would
not impair her substantial rights. Huarte’s 22-month sentences as to counts 1 and
15 are to be served concurrently. “Thus, any claimed multiplicity in the indictment
would have been harmless error anyway.” Pacchioli, 718 F.3d at 1308 (holding
any multiplicity error in the indictment was “obviously harmless because the
arguably multiplicitous counts resulted in concurrent sentences”).
VI. JUROR REMOVAL/ATTORNEY MISCONDUCT
Four defendants, Alexander, Roberts, Dr. Kushner, and Jorge Macli, argue
that the district court abused its discretion by failing to remove a juror and denying
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their motion for mistrial 10 after an episode occurring during defense counsel for
defendant Alexander’s cross-examination of therapist Barbara Morales.11
During his cross-examination of therapist Barbara Morales about her
practice of copying and pasting group therapy notes, defendant Alexander’s
attorney discussed one effect of such copying and pasting, which was that
pronouns were often incorrect with respect to the sex of the patient subject of the
therapy note. In discussing this phenomenon, which illustrated the copying and
pasting of notes, defendant Alexander’s attorney made the following remark,
highlighted in the exchange below:
Q. Using, let’s say, Jacqueline Moran and John Jackson,
if they were two patients and you took John Jackson’s
report and you put it on Jacqueline Moran, all of a
sudden, she would become a he because you cut and
pasted sections?
A. I agree with you.
Q. If you did it in reverse and you took a section of
Jacqueline Moran’s evaluation and put it on John
Jackson, he would then become a she?
A. Yes.
10
While the motion for mistrial was made by defendant Dr. Kushner’s counsel, the other
named defendants adopted the motion at trial. Further, they have adopted the issue on appeal
and in their appellate briefs. Thus we consider the issue as to all four of these defendants.
11
Defendant Alexander claims ineffective assistance of counsel arising from the same set
of facts. This claim fails too. While this Court ordinarily decides claims of ineffective counsel
through a 28 U.S.C. § 2255 motion, we may consider such claims on direct appeal if the record is
sufficiently developed, as it is here. See United States v. Patterson, 595 F.3d 1324, 1328 (11th
Cir. 2010). To prevail on an ineffective counsel claim in a criminal case, a defendant must show
both that counsel’s performance was deficient and that counsel’s performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct 2052, 2064 (1984). Here,
leaving undecided the question of performance, we find no showing of prejudice for the reasons
discussed below.
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Q. Which he probably wouldn’t mind anyway.
A. Copy and paste.
The government immediately objected to the attorney’s remark, and the
district court sustained the objection. Defendant Alexander’s attorney immediately
apologized to the district court, witness, and jury. At the next recess, the district
court upbraided the attorney.
During the same recess, the district court received a note from Juror 13
stating the following: “I want a written transcript for today’s cross-examination by
the lawyer who made the comment about John Jackson being gay, that he/she
comment at around 2:40 p.m. I intend to take it to Gay Services (GLADD).”
When the jury returned, the district court advised the jury that it had “sternly
admonished” defendant Alexander’s attorney outside of the jury’s presence, and
that when the trial was over, anyone could get a copy of the transcript and take
whatever action he or she felt was appropriate. The district court then asked the
jury if it could be fair as to each defendant and make its decision only on the
evidence, stating the following:
But there are nine defendants on trial and I want to make
sure and we all want to make sure that the fact that
something out of place occurred, and hopefully it will be
isolated and nothing of its kind will infect the rest of this
trial, we all want to make sure that your decision as to
each of the defendant’s cases is made on the merits of the
case and not on whether an attorney did something that
they shouldn’t have done.
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So I need some assurances from all of you. I hope all of
you share the concern that that kind of comment
shouldn’t be made, but I also need assurances from you,
if you can give them to me, that you will be able to set
that aside and to make your decision only on the
evidence and the law as I instruct you; that you will
consider each individual defendant’s case and decide
whether or not the Government has proven the case or
not proven the case and not let this isolated incident
affect you. I am not ordering you to do that, but I need to
find out now if I can do that going forward.
So can you all agree that you can do that? Is there
anybody that has any concerns about not being able to do
that? Raise your hand now.
Okay. All right. So we’re going to go forward.
No juror then indicated that he or she would not be able to proceed according to
the district court’s instruction. Defendant Alexander’s attorney again apologized
in the presence of the jury.
Defendant Dr. Kushner then moved for a mistrial on the basis of the
preceding events. The district court denied the motion for mistrial.
The following day, the defendants moved to remove Juror 13. The district
court denied the motion to discharge the juror. The district court questioned Juror
13 and also questioned each of the other jurors individually and outside the
presence of the full jury. Each juror, including Juror 13, unequivocally stated that
defendant Alexander’s attorney’s comment had no effect on his or her ability to
weigh the evidence and to be fair to all parties.
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Just cause exists to discharge a juror where the district court finds evidence
that the juror cannot decide the issues fairly. Register, 182 F.3d at 840. The
district court has substantial discretion in ferreting out and determining juror
misconduct or bias. See id. And that discretion will not be disturbed absent a
showing of bias or prejudice to the defendant. United States v. Fajardo, 787 F.2d
1523, 1525 (11th Cir. 1986).
Just cause cannot be shown on this record. Juror 13 assured the district court
that he was able to be fair and decide the case based on the evidence, explaining
that when he sent the note, “it wasn’t so much myself that was offended by it or
felt uncomfortable. It was some of the other jurors.” Asked by the district court
whether he could look at each of the defendants and at the prosecutors and tell
them that the incident was “not even going to be any part of my thought process or
discussion,” Juror 13 replied: “Exactly. That’s exactly how I feel. It won’t be part
of my emotions or discussions and it won’t come up again.”
Juror 13 was properly forthright in raising a concern about the comment and
in answering the district court’s questions. The district court was thorough in
questioning the jury as a group and each juror individually. The refusal to remove
Juror 13 was not an abuse of discretion. Nor was the district court’s denial of the
motion for a mistrial. The district court made a determination well within its
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discretion that bias had not affected the jury such that a mistrial, an extreme
remedy, was warranted.
VII. ADMISSION OF LAY TESTIMONY
Defendants Alalu, Huarte, Dr. Kushner, and Biscayne Milieu argue that the
district court abused its discretion by admitting the lay opinion testimony of
various witnesses who testified as to the eligibility of patients to receive treatment
as well as, in the view of appellants’, these patients’ medical diagnoses. 12
Lay opinion testimony must be: “(a) rationally based on the witness’s
perception; (b) helpful to clearly understanding the witness’s testimony or to
determining a fact in issue; and (c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 701. The
determination of whether testimony is properly admitted as lay opinion is based
upon the nature of the testimony, not whether the witness could be qualified as an
expert. United States v. LeCroy, 441 F.3d 914, 927 (11th Cir. 2006). And “Rule
701 does not prohibit lay witnesses from testifying based on particularized
knowledge gained from their own personal experiences.” Hill, 643 F.3d at 841.
12
Defendant Dr. Kushner separately argues that the district court improperly admitted lay
testimony about the authenticity of his handwriting and signature on certain patient files. We
reject this argument. The record does not reflect that the testimony regarding Dr. Kushner’s
signature bore on the authenticity of his signature to the degree Dr. Kushner argues. Rather, the
bulk of the testimony was from witnesses who, in reviewing records while on the stand, would
testify that a given signature “appear[ed]” to be Dr. Kushner’s. The only witness to speak to the
features of Dr. Kushner’s signature was Nurse Carmen Mercado, who testified about signing
documents on behalf of Dr. Kushner. We see no abuse of discretion in the instances where the
district court allowed this testimony.
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The record shows that the testimony here in question—principally from
social workers and therapists at Biscayne Milieu—was based on personal
knowledge and reflected the experience of treatment providers with the treatment
process, and its shortcomings, at Biscayne Milieu. These witnesses were not
standing in for experts. We see no abuse of discretion in the district court’s
decision to allow such evidence as lay opinion.
Moreover, the defendants at trial did not clearly object to the bulk of the
testimony they now seek to challenge on appeal. Defendants Antonio Macli, Jorge
Macli, and Huarte did file a pre-trial motion to exclude opinion testimony from
witnesses not licensed to render medical diagnoses. Following a hearing, the
district court deferred ruling on the motion until trial had commenced. But when
most of the evidence then was admitted during trial, the defendants did not point
out or renew their motion to exclude. While there were a few objections to certain
questions during this lay opinion testimony, most of this lay opinion testimony
came in without objection at trial. After ruling on evidentiary challenges as they
arose during trial, the district court ultimately denied the motion in limine at moot.
To the extent the defendants did not object during trial as the testimony came in,
they cannot now show that it was plain error, an even more exacting standard, to
allow such lay opinion testimony.
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VIII. REFERENCE TO INVOCATION OF RIGHT TO COUNSEL
Defendant Jorge Macli challenges the district court’s denial of his motion for
mistrial, arguing that the government intentionally elicited testimony about his
invocation of his right to counsel. On direct examination by the government,
Health and Human Services Special Agent John Mejia testified that he interviewed
Jorge Macli after his arrest. He testified that Jorge Macli waived his rights and
agreed to be interviewed without his attorney present. The prosecutor asked: “And
at any point did Mr. Macli say he wanted his lawyer to be present?” Agent Mejia
answered: “Not initially.” Jorge Macli objected, and the district court struck the
testimony.
Defendant Jorge Macli then moved for a mistrial on the basis that the
government had elicited an impermissible comment on his right to silence. The
prosecutor apologized, stating that “the question was meant to be did he invoke his
right to counsel at that time?” The district court denied the mistrial motion, but
offered to give a “more strongly worded curative instruction.”
Jorge Macli denied this offer, along with the district court’s offer to poll the
jury about the effect of the remark, stating he did not want to “reemphasize” the
testimony. The district court stated it would take the mistrial motion “under
advisement” until it was able to determine “whether the evidence [was]
overwhelming or not.”
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The government made no further reference to it. “A single, inappropriate
reference to a defendant’s post-arrest silence that is not mentioned again is too
brief to constitute a Fifth Amendment violation.” Reeves, 742 F.3d at 505. And,
as the district court later found at the conclusion of the government’s case, because
the evidence of Jorge Macli’s guilt was “overwhelming,” any unintentional error
the government made by eliciting that he had invoked his right to counsel at a
different time was harmless.13
IX. PROSECUTOR COMMENTS AT CLOSING ARGUMENT
Defendants Alalu, Dr. Kushner, and Jorge Macli argue that the district court
abused its discretion by denying motions for mistrial based on remarks made by
the prosecutor during rebuttal closing argument. 14 Appellants highlight two
separate incidents.
After noting the defense attorneys’ various attempts, in closing argument, to
plead for sympathy for the circumstances of the various defendants, the prosecutor
argued:
13
At oral argument, counsel for Jorge Macli acknowledged that this challenge on appeal
would be subject to harmless error analysis.
14
Defendant Jorge Macli has adopted the others’ arguments as to this issue. Separately,
and for the first time on appeal, defendant Biscayne Milieu challenges additional remarks made
in the government’s rebuttal closing; these remarks are reviewed for plain error. Defendant
Biscayne Milieu argues (1) that it was improper for the prosecutor to challenge the credibility of
a defense expert and (2) that the prosecutor improperly vouched for the credibility of a testifying
FBI agent. Neither of these remarks, which drew no objection at trial, rises to the level of plain
error.
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We are all human beings and it is perfectly
understandable to feel badly for the positions that these
defendants have put themselves in, but your job is to
evaluate their guilt based on the law and the facts.
And recognize this: Over the course of the last six-and-a-
half weeks, I think you have gotten to know all of us very
well, and I think that you would agree with me that all of
the defense attorneys are very – are very talented, very
diligent and very committed to their client’s cause.
Ask yourself this: If these attorneys are trying to subtlely
tap into your feelings of sympathy, what does that say
about what they know of what would happen –
Jorge Macli’s attorney immediately objected, arguing this was not about sympathy
but rather the government’s attempt to use defense counsel’s sympathy plea to
show defense counsel’s awareness of their clients’ guilt. The district court
sustained the objection and struck the comment, telling the jury to disregard the
prosecutor’s last statement.
After the government’s closing, the defendants moved for a mistrial, arguing
the comments regarding the sympathy pleas had undermined the defense lawyers’
effectiveness before the jury. The district court denied the motion but gave a
curative instruction to the jury, stating in part:
So whether [the prosecutor] was misunderstood or
misspoke, what he said concerning what the lawyers may
or may not think is just not proper and it shouldn’t be
considered by you.
All these lawyers are very ethical and you have seen
them, as [the prosecutor] even pointed out himself, that
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they are talented, they care about their clients, they care
about the case and they care about doing the right thing. I
think that is everybody’s goal here and it has been
throughout the last couple of months.
So please do not consider that when you go to consider
your verdict tomorrow.
Defendants Dr. Kushner and Biscayne Milieu argue that another remark,
which also gave rise to a denied motion for mistrial, resulted in an abuse of
discretion by the district court. The prosecutor discussed the case of a repeat
Biscayne Milieu patient who ultimately died. The prosecutor stated:
The reason why Biscayne Milieu stopped billing for
Richard Adderley is that he died. And he died -- we don’t
know if treatment -- if the better form of treatment would
have helped, but we know that Biscayne Milieu didn’t
care. Richard Adderley was someone who was set up for
failure at Biscayne Milieu like so many other people.
That’s not good faith. That is criminal intent. That’s
guilt.
Counsel for Huarte and Roberts, after the closing concluded, moved for a mistrial,
arguing that the prosecutor had blamed Biscayne Milieu for Adderley’s death. The
district court denied the motion.
We find no abuse of discretion in the district court’s denial of these motions.
To show prosecutorial misconduct, the challenging defendants must show both
that: “(1) the remarks [were] improper, and (2) the remarks must [have]
prejudicially affect[ed] the substantial rights of the defendant.” Reeves, 742 F.3d
at 505 (internal quotation and citations omitted). “A defendant’s substantial rights
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are prejudicially affected when a reasonable probability arises that, but for the
remarks, the outcome of the trial would have been different.” Id.
As to the prosecutor’s comments regarding sympathy, the district court
sustained the objection and gave curative instructions. Given the curative steps
taken by the district court, we cannot now say that the defendants were
substantially prejudiced by such comments. See United States v. Rodriguez, 765
F.2d 1546, 1560 (11th Cir. 1985) (holding curative instructions sufficient to offset
prosecutor’s prejudicial comments).
As to the comments regarding Adderley, the district court, in denying the
motion for mistrial, found that the prosecutor did not blame Biscayne Milieu for
Adderley’s death. This was not an abuse of the district court’s discretion.
X. DEFINING “ATTEMPT”
On appeal, defendant Biscayne Milieu argues that the jury instructions were
fatally flawed in their failure to define the word “attempt.” The government and
several defendants submitted proposed jury instructions. None of the proposed
instructions defined the word “attempt.” Because Biscayne Milieu neither
requested an instruction defining “attempt” nor objected to the court’s jury charge,
our review is limited to plain error. United States v. Gonzalez, 940 F.2d 1413,
1427 (11th Cir. 1991). “Jury instructions will only be reversed for plain error if,
viewing the court’s charge as a whole, it was so clearly erroneous as to result in a
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substantial likelihood of a grave miscarriage of justice, or the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” Id.(internal quotations and citation omitted).
As the government argues, this Court has previously held that the failure to
define “attempt” does not constitute plain error because, as a commonly used
word, “attempt” is unlikely to confuse the jury such that a miscarriage of justice
would result. We find no merit in defendant Biscayne Milieu’s challenge to the
jury instructions.
XI. CUMULATIVE ERROR
Defendants Dr. Kushner and Biscayne Milieu raise cumulative error
arguments on appeal. But the above-discussed challenges they cite do not establish
a single error, let alone the “many errors” required for reversal where a single error
would not require it. See United States v. Baker, 432 F.3d 1189, 1223 (11th Cir.
2005). Accordingly, their cumulative error argument fails.
XII. SENTENCING
Defendants Antonio Macli, Jorge Macli, Huarte, Dr. Kushner, Alalu,
Roberts, and Alexander also appeal their sentences. We begin by reviewing the
sentences imposed by the district court and then the defendants’ challenges.
A. Calculating the Advisory Guidelines Ranges
1) Antonio and Jorge Macli
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Defendants Antonio Macli and Jorge Macli had identical advisory guidelines
calculations. They each had a base offense level of six, pursuant to U.S.S.G.
§ 2B1.l(a)(2). They received these increases to that offense level: (1) a 20-level
increase under § 2B1.1(b)(1)(K), because the loss amount was more than $7
million but not more than $20 million; (2) a two-level increase under §
2B1.1(b)(2)(A)(ii), because their offenses were committed through mass-
marketing; (3) a two-level increase under § 2B1.1(b)(9)(C), because their offenses
involved sophisticated means; (4) a two-level increase under § 2B1.1(b)(13)(A),
because their offenses involved the conscious reckless risk of death or bodily
injury; (5) a two-level increase under § 3A1.1(b)(1), because they knew or should
have known that a victim of their offenses was a vulnerable victim; (6) a two-level
increase under § 3A1.1(b)(2), because the offense involved a large number of
vulnerable victims; and (7) a four-level upward adjustment under § 3B1.1(a),
because they were organizers or leaders of criminal activity that involved five or
more participants or was otherwise extensive.
As a result, defendants Antonio Macli and Jorge Macli each had a total
offense level of 40. Antonio Macli and Jorge Macli each had no criminal-history
points and a criminal history category of I. Their total offense levels of 40 and
criminal history categories of I resulted in advisory guidelines ranges of 292 to 365
months’ imprisonment.
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The district court sentenced defendant Antonio Macli to a total of 360
months’ imprisonment: 120 months (the statutory maximum for each count) as to
each of counts 1, 7, and 31 through 37, to run concurrently; 60 months (the
statutory maximum for each count) as to each of counts 15 through 26, to run
concurrently; and 240 months (the statutory maximum) as to count 30, to run
consecutively to the terms imposed on the other counts. 15
The district court sentenced defendant Jorge Macli to a total of 300 months
imprisonment: 60 months (the statutory maximum on counts 15 to 26) as to each of
counts 1, 4, 7, 15-26, 32, 33, 35, and 37 to run concurrently and 240 months (the
statutory maximum) as to count 30, to run consecutively to the terms imposed on
the other counts.
Both Antonio Macli and Jorge Macli were each ordered to pay restitution to
Medicare in the amount of $11,481,593.42 (jointly with each other, defendant
Huarte, and Biscayne Milieu).
2) Sandra Huarte
In calculating the advisory guidelines range, the Presentence Investigation
Report (“PSI”) grouped all of defendant Huarte’s convictions together under
15
The health care fraud conspiracy, substantive health care fraud, and substantive money
laundering counts have a statutory maximum of ten years (120 months). 18 U.S.C. §§ 13471349, 1957. The kickback conspiracy and the substantive kickback payment and receipt counts
have a statutory maximum of five years (60 months). 18 U.S.C. § 371; 42 U.S.C. § 1320a-
7b(b)(2)(A). The money laundering conspiracy count has a statutory maximum of twenty years
(240 months). 18 U.S.C. § 1956(a)(1).
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U.S.S.G. § 3Dl.2(c) and (d). Huarte had a base offense level of six, pursuant to §
2B1.1 (a)(2). She received these increases to that offense level: (1) a 20-level
increase under § 2B1.1(b)(1)(K), because the loss amount was more than $7
million but not more than $20 million; (2) a two-level increase under §
2B1.l(b)(2)(A)(ii), because her offenses were committed through mass-marketing;
(3) a two-level increase under § 2B1.1(b)(9)(C), because her offenses involved
sophisticated means; (4) a two-level increase under § 2B1.1(b)(13)(A), because her
offenses involved the conscious reckless risk of death or bodily injury; (5) a two-
level increase under § 3A1.1(b)(1), because she knew or should have known that a
victim of her offenses was a vulnerable victim; (6) a two-level increase under §
3A1.1(b)(2), because her offenses involved a large number of vulnerable victims;
and (7) a three-level upward adjustment under § 3B1.1(b), because she was a
manager or supervisor (but not an organizer) of criminal activity that involved five
or more participants or was otherwise extensive.
As a result, Huarte’s total offense level was 39. Huarte had no criminal-
history points and a criminal history category of I. Her total offense level of 39
and criminal history category of I resulted in an advisory guidelines range of 262
to 327 months’ imprisonment.
The district court sentenced defendant Huarte to a total of 262 months’
imprisonment: 22 months as to each of counts 1, 2, 4-8, 11, 15, 31, and 34, to run
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concurrently, and 240 months (the statutory maximum) as to count 30, to run
consecutively to the terms imposed on the other counts. The district court ordered
Huarte to pay restitution to Medicare in the amount of $11,481,593.42 (jointly with
Antonio Macli, Jorge Macli, and Biscayne Milieu).
3) Dr. Gary Kushner
In calculating defendant Dr. Kushner’s advisory guidelines range, the PSI
grouped counts 1 and 2 under U.S.S.G. § 3D1.2(d). Dr. Kushner had a base
offense level of six, pursuant to § 2B1.1(a)(2). He received these increases to that
offense level: (1) a 22-level increase under § 2B1.1(b)(1)(L), because the loss
amount was between $20 million and $50 million; (2) a two-level increase under §
2B1.1(b)(2)(A)(ii), because his offenses were committed through mass-marketing;
(3) a two-level increase under § 2B1.1(b)(9)(C), because his offenses involved
sophisticated means; (4) a two-level increase under § 2B1.1(b)(13)(A), because his
offenses involved the conscious reckless risk of death or bodily injury; (5) a two-
level increase under § 3A1.1(b)(1), because he knew or should have known that a
victim of his offenses was a vulnerable victim; (6) a two-level increase under §
3A1.1(b)(2), because his offenses involved a large number of vulnerable victims;
(6) a two-level increase because he abused a position of public or private trust
under § 3B1.3; and (7) a three-level increase under § 3B1.1(b), because Dr.
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Kushner was a manager or supervisor of criminal activity that involved five or
more participants or was otherwise extensive.
Dr. Kushner’s total offense level was 43. Dr. Kushner had no criminal-
history points and a criminal history category of I. His total offense level of 43 and
criminal history category of I resulted in an advisory guidelines range of life
imprisonment. The statutory maximum term of imprisonment on each count,
however, was ten years’ imprisonment. Accordingly, the statutory maximum total
sentence that could be imposed was 20 years’ imprisonment, applying the
sentences consecutively.
The district court sentenced Dr. Kushner to a total of 144 months’
imprisonment: 120 months’ imprisonment (the statutory maximum) as to count 1,
and 24 months’ as to count 2, to run consecutively. Dr. Kushner was also ordered
to pay Medicare $9,341,767.24 in restitution.
4) Rafael Alalu
In calculating defendant Alalu’s advisory guidelines range, the PSI grouped
counts 1, 3, and 4 under U.S.S.G. § 3D1.2(d). Alalu had a base offense level of
six, pursuant to § 2B1.1(a)(2). He received these increases to that offense level:
(1) a 20-level increase under § 2B1.1(b)(1)(K), because he was responsible for a
loss amount of between $7 million and $20 million; (2) a two-level increase under
§ 2B1.1(b)(9)(C), because his offenses involved sophisticated means; (3) a three-
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level increase under § 3B1.1(b), because he was a manager or supervisor of
criminal activity involving five or more participants; and (4) a two-level increase
under § 3C1.1 for obstruction of justice.
Alalu’s total offense level was 33. He had no criminal-history points and a
criminal history category of I. His total offense level of 33 and criminal history
category of I resulted in an advisory guidelines range of 135 to 168 months’
imprisonment. The district court sentenced defendant Alalu to a total of 100
months’ imprisonment, concurrent terms of 100 months’ imprisonment as to each
count of conviction. The district court also ordered restitution to Medicare in the
amount of $5,614,353.20.
5) Anthony Roberts
In calculating Roberts’s advisory guidelines range, the PSI grouped counts
15 and 29 pursuant to U.S.S.G. § 3D1.2(b). Roberts had a base offense level of
six, pursuant to § 2B1.1(a)(2). He received an 18-level increase under §
2B1.1(b)(1)(J), because he was responsible for a loss of more than $2.5 million but
not more than $7 million, and a two-level increase under § 2B 1.1 (b)(9)(C),
because his offense involved sophisticated means. Roberts did not receive an
adjustment for his role in the offense. Accordingly, his total offense level was 26.
Roberts’s criminal history included (1) a 1991 conviction for armed robbery,
for which he was sentenced to 12 years’ imprisonment and (2) a 1994 conviction
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for driving with a suspended license and driving under the influence. Roberts did
not receive any criminal-history points for these convictions, and thus he had a
criminal history category of I.
Roberts’s total offense level of 26 and criminal history category of I resulted
in an advisory guidelines range of 63 to 78 months’ imprisonment.
The district court sentenced defendant Roberts to a total of 87 months’
imprisonment: 60 months (the statutory maximum) as to count 15, and 27 months
as to count 29, to run consecutively. Robert was also ordered to pay $887,085.31
in restitution.
6) Derek Alexander
In calculating Alexander’s advisory guidelines range, the PSI grouped
counts 15 and 28 under U.S.S.G. § 3D1.2(b). Alexander had a base offense level
of six, pursuant to § 2B1.1(a)(2). He received a 14-level increase under §
2B1.1(b)(1)(H), because he was responsible for a loss of between $400,000 and $1
million. Alexander also received a two-level increase under § 2B1.1(b)(9)(C),
because his offense involved sophisticated means. He did not receive any
adjustments for his role in the offense.
Alexander’s total offense level was 22. Alexander had zero criminal-history
points and a criminal history category of I. Based on his total offense level of 22
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and criminal history category of I, his guidelines imprisonment range was 41 to 51
months.
The district court sentenced defendant Alexander to a total of 42 months’
imprisonment: concurrent terms of 42 months’ imprisonment as to each of counts
15 and 28. Alexander was ordered to pay restitution to Medicare in the amount of
$300,876.08.
B. Loss Amount
Defendants Antonio Macli, Huarte, and Alalu argue the district court clearly
erred in determining they were each responsible for a loss amount of between $7
million and $20 million, which resulted in a 20-level increase to their respective
offense levels under U.S.S.G. § 2B1.1(b)(1)(K) (2010). 16
To prevail, defendants must show clear error in the district court’s
determination. United States v. Barrington, 648 F.3d 1178, 1197 (11th Cir. 2011).
The guidelines do not require a precise determination of loss, and a court “need
only make a reasonable estimate of the loss, given the available information.” Id.(quotation omitted). District courts are in a unique position to evaluate the
evidence relevant to a loss determination, and thus, their determinations are
entitled to appropriate deference. United States v. Bradley, 644 F.3d 1213, 1290
(11th Cir. 2011). The government must establish the pertinent facts by a
16
Defendants were sentenced using the 2010 version of the Sentencing Guidelines.
Where relevant, we refer to that version of the guidelines.
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preponderance of the evidence, which must be reliable and specific. Id. The
district court, in turn, may make factual findings with respect to the loss amount
based on evidence heard during trial, undisputed statements in the PSI, or evidence
presented during sentencing. Id. However, a court may not speculate about the
existence of facts that would result in a higher sentence. Barrington, 648 F.3d at
1197.
The guidelines provide for a 20-level increase for a fraud offense involving
losses of between $7 million and $20 million. U.S.S.G. § 2B1.1(b)(1)(K) (2010).
The loss amount “is the greater of actual or intended loss.” Id. § 2B1.1 cmt.
n.3(A). “Actual loss” is the reasonably foreseeable pecuniary harm resulting from
the offense. Id. § 2B1.1 cmt. n.3(A)(i). “Intended loss” is the monetary harm that
was intended to result from the offense, even if impossible or unlikely to occur. Id.
§ 2B1.1 cmt. n.3(A)(ii).
A 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). To determine whether a defendant is liable for the acts of
co-conspirators, the district court must first make individualized findings
concerning the scope of criminal activity undertaken by the defendant. Id. Only
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after the district court makes such individualized findings may it determine
reasonable foreseeability. Id.Defendants Antonio Macli, Huarte, and Alalu have failed to demonstrate the
district court clearly erred in calculating the amount of loss attributable to them.
As an initial matter, the district court concluded that intended loss, rather than
actual loss, was the appropriate measure of loss, and none of the parties challenge
this finding.
Biscayne Milieu billed Medicare in excess of $57 million, but Medicare paid
only $11.4 million on these claims. 17 Defendants Antonio Macli and Huarte
submitted evidence demonstrating that they had been aware of Medicare’s lower
reimbursement rate and had projected future revenue in accordance with that rate.
Based on that evidence, the district court concluded that defendants Antonio Macli,
Jorge Macli, and Huarte had intended to receive only the amounts paid by
Medicare over the course of the conspiracy, totaling approximately $11.4 million,
rather than the amounts billed, totaling $57,689,700.
In addition, the district court determined, based upon its review of the
evidence at trial, that the overwhelming majority of patients at Biscayne Milieu
were not eligible for PHP treatment or, if eligible, did not receive the necessary
17
The $11.4 million amount triggered a 20-level increase under § 2B1.1(b)(1)(L) (2010)
(amount between $7 million and $20 million). The $57 million amount would have triggered a
24-level increase under § 2B1.1(b)(1)(M) (amount between $50 million and $100 million).
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treatment. See Bradley, 644 F.3d at 1290 (stating the district court’s loss
determination is entitled to deference because of the court’s unique position to
evaluate the evidence). The district court found that the “overwhelming” majority
of patients at Biscayne Milieu—not merely “70% or 80%”—had not received the
care to which they had been entitled. The defendants allowed recruiters to bring in
chronic substance abusers, Haitian patients, and elderly patients who did not
belong in PHP treatment. The district court further found that it was highly
unlikely that the clinic had provided medically necessary treatment to any PHP-
qualified patients, and even if the clinic had provided such treatment, it could not
“have happened in more than a handful of cases.” Thus, a loss amount of between
$7 million and $20 million was appropriate.
The defendants rely in part on trial evidence presented by the government
that they purport demonstrates only 46 percent of the Medicare claims were
fraudulent, and thus the district court’s loss calculation was incorrect. But the
evidence cited by defendants deals with a review of patient files for 46 percent of
the entire patient population at Biscayne Milieu, without regard to whether they
were even Medicare patients, and this evidence did not address in any way
Medicare claims for those patients. And the statistical analysis embodied in that
prosecution testimony was thus not sufficiently reliable for drawing conclusions
about the defendants’ Medicare billing practices. This is especially so given that
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the district court separately concluded that even otherwise-eligible Medicare
patients were not receiving the treatment to which they were entitled at Biscayne
Milieu.
The district court did not clearly err in applying a 20-level increase to
defendant Antonio Macli’s and defendant Huarte’s offense levels for a loss amount
of greater than $7 million but not greater than $20 million.
The district court found that defendant Alalu was responsible for $14.5
million, the amount for which Medicare was billed during defendant Alalu’s tenure
in 2010-2011 at the clinic. Unlike defendants Antonio Macli and Huarte,
defendant Alalu neither identified evidence establishing that he knew the rate of
reimbursement by Medicare nor that he intended for Biscayne Milieu to receive
only the amounts paid by Medicare, rather than the amounts billed.
We also reject defendant Alalu’s argument that his loss amount should be
limited to the billings for only his individual patients and his personal actions.
Alalu knew or should have known that most, if not all, of the patients at Biscayne
Milieu were ineligible for PHP treatment. He falsified group therapy notes and
directed other staff to falsify group therapy notes in order to justify the submission
of fraudulent claims to Medicare, he instructed staff to assist Haitian patients with
immigration forms, and he altered patient files to make it appear as though patients
were eligible for PHP treatment. Because this case involved jointly undertaken
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criminal activity, the appellants’ relevant conduct includes all reasonably
foreseeable acts and omissions of others in furtherance of the conspiracies. See
U.S.S.G. § 1B1.3(a)(1)(B). The extensive fraudulent Medicare billing for which
defendant Alalu was held responsible was a reasonably foreseeable consequence of
his participation in the criminal conspiracies. And, indeed, the district court
reduced the billing amount attributable to defendant Alalu’s loss calculation to the
2010-11 time period of defendant Alalu’s involvement.
Thus, the district court did not err by finding he was responsible for losses
relating to his own fraudulent activity and the fraudulent activity of his
co-conspirators during that time period. See Hunter, 323 F.3d at 1319.
C. Mass-Marketing Increase
Defendants Antonio Macli, Jorge Macli, and Huarte challenge the district
court’s imposition of a two-level increase for mass-marketing under
§ 2B1.1(b)(2)(A)(ii). 18 They argue the mass-marketing targeting Medicare
beneficiaries was incidental to the fraud in this case and that the increase does not
apply when the true victim of the offense is the United States.
18
We note that, though his PSI included a two-level increase for mass-marketing, the
district court declined to apply the increase to defendant Dr. Kushner. At the sentencing of
defendants Antonio Macli, Jorge Macli, and Huarte, the district court stated (1) that Dr. Kushner
was further removed from the mass marketing aspect of the scheme and (2) that the enhancement
as to Dr. Kushner would not have affected Dr. Kushner’s sentence, so the district court did not
apply it.
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The guidelines provide for a two-level increase to the offense level if the
offense was committed through mass-marketing. U.S.S.G. § 2B1.1(b)(2)(A)(ii).
The term “mass-marketing” means a “plan, program, promotion, or campaign that
is conducted through solicitation by telephone, mail, the Internet, or other means to
induce a large number of persons to (i) purchase goods or services; (ii) participate
in a contest or sweepstakes; or (iii) invest for financial profit.” Id. § 2B1.1 cmt.
n.4(A) (emphasis added). Generally, “offense” means the offense of conviction
and all relevant conduct under § 1B1.3. Id. § 1B1.1 cmt. n.1(H). In the case of
“jointly undertaken criminal activity,” such as a conspiracy, relevant conduct
includes “all reasonably foreseeable acts and omissions of others in furtherance of
the jointly undertaken criminal activity.” Id. § 1B1.3(a)(1)(B); see also id.
§ 1B1.3 cmt. n.2.
Looking to the plain language of the guidelines, the mass-marketing increase
applies to Antonio Macli, Jorge Macli, and Huarte. Patient recruiters engaged in
mass-marketing in this case by targeting Medicare beneficiaries and bringing them
to Biscayne Milieu for treatment. See U.S.S.G. § 2B1.1 cmt. n.4(A) (defining
mass-marketing and including “other means”). Although these three defendants
did not personally recruit patients for the clinic, they were substantially involved in
the recruitment efforts. Huarte maintained the money sheets and settled disputes
among patient recruiters as to which patients were associated with which
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recruiters. Antonio Macli and Jorge Macli hired recruiters, authorized the payment
of kickbacks, and instructed recruiters to submit fraudulent invoices for case
management. Further, upon learning of Detroit’s underserved population of
Medicare-eligible substance abusers, Jorge Macli directed (and funded) Rufus
Cargile to “market[]” Biscayne Milieu’s services on out-of-state trips to Michigan.
As above, because this case involved jointly undertaken criminal activity,
the appellants’ relevant conduct includes all reasonably foreseeable acts and
omissions of others in furtherance of the conspiracies. See U.S.S.G.
§ 1B1.3(a)(1)(B). Here, the mass-marketing efforts by the recruiters were
reasonably foreseeable to Antonio Macli, Jorge Macli, and Huarte.
While this Court has not applied the mass-marketing increase in the health
care fraud context, the Fifth Circuit has. See United States v. Mauskar, 557 F.3d
219, 233 (5th Cir. 2009) (holding that face-to-face marketing, intended to reach a
large number of persons for the purpose of facilitating health care fraud, can
constitute mass-marketing under the guidelines); see also United States v. Isiwele,
635 F.3d 196, 198 (5th Cir. 2011) (applying Mauskar where defendant targeted
elderly and low-income Medicare beneficiaries in order to submit fraudulent
claims).
In Mauskar, the defendant conspired to defraud Medicare and Medicaid by,
among other things, falsely certifying that ambulatory patients needed motorized
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wheelchairs. Mauskar, 557 F.3d at 224. Recruiters facilitated the fraud by
targeting and escorting beneficiaries to the defendant’s clinic for evaluations. Id.The defendant objected to the mass-marketing increase on the grounds that he did
not personally participate in the mass-marketing of patients. Id. at 233. The Fifth
Circuit rejected that argument, noting the offense included all relevant conduct. Id.Because the case involved jointly undertaken criminal activity (conspiracy to
commit health care fraud), the relevant conduct included all reasonably foreseeable
acts and omissions of others in furtherance of the criminal activity, which included
mass-marketing by recruiters. See id.Similarly here, the recruiters’ conduct was not just foreseeable, but
orchestrated and facilitated by defendants Antonio Macli, Jorge Macli, Huarte, and
Biscayne Milieu’s payments to the recruiters. We need not decide the applicability
of the mass-marketing increase to every possible health care fraud scheme. The
facts of this case center on the defendants’ repeated attempts to target and profit
from new patient populations. For all these reasons, defendants Antonio Macli,
Jorge Macli, and Huarte have shown no error as to the two-level increase for mass-
marketing.
D. Sophisticated-Means Increase
For the first time on appeal, defendants Huarte and Alalu argue that the
district court erred in applying a two-level increase under § 2B1.1(b)(9)(C)
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because their offenses involved sophisticated means. They assert their individual
actions in the health care fraud were not sophisticated. We review objections to
sentencing issues not raised in the district court for plain error. United States v.
Rodriguez, 751 F.3d 1244, 1257 (11th Cir. 2014).
Section 2B1.1(b)(9)(C) of the guidelines prescribes a two-level increase
where the offense involves sophisticated means. U.S.S.G. § 2B1.1(b)(9)(C).
“Sophisticated means” refers to “especially complex or especially intricate offense
conduct pertaining to the execution or concealment of an offense,” and ordinarily
includes conduct such as hiding assets or transactions through the use of fictitious
entities, corporate shells, or offshore financial accounts. Id. § 2B1.1 cmt. n.8(B).
In evaluating whether a defendant qualifies for the increase, the proper focus is on
the offense conduct as a whole, not on each individual step. See Barrington, 648
F.3d at 1199 (“Each action by a defendant need not be sophisticated in order to
support this enhancement.”).
Defendant Huarte cannot demonstrate error, plain or otherwise. Her
offense conduct as a whole involved a complex scheme to defraud Medicare and
to conceal the fraud. The offense involved the widespread use of kickbacks, the
falsification of group therapy notes, and the laundering of proceeds from the
fraud. Huarte’s billing and payroll actions alone facilitated and contributed
significantly to the fraud.
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So, too, with defendant Alalu. Though not charged in the money
laundering counts of the indictment like defendant Huarte, sophisticated means
were employed, both by Alalu and his co-conspirators, in implementing the health
care fraud and kickback conspiracies.
The individual actions of defendants Huarte and Alalu, regardless of their
sophistication, are irrelevant to the application of the increase. See Barrington,
648 F.3d at 1199.
E. Conscious or Reckless Risk of Death or Serious Bodily Injury
Antonio Macli, Jorge Macli, and Huarte also challenge the two-level
increases to their respective offense levels under § 2B1.1(b)(13)(A) because the
offense involved the conscious or reckless risk of death or serious bodily injury. 19
They argue no patients died at Biscayne Milieu or suffered a serious bodily injury.
The guidelines provide for a two-level increase if the offense involved “the
conscious or reckless risk of death or serious bodily injury.” U.S.S.G.
§ 2B1.1(b)(13)(A). Even if there is no evidence of death or serious bodily injury,
the increase may nevertheless be appropriate, because the increase focuses on the
defendant’s disregard of risk, rather than on the result. Mateos, 623 F.3d at 1371.
The district court did not clearly err by finding these three defendants
placed the Medicare beneficiaries at risk of death or serious bodily injury.
19
This two-level increase for risk of death or bodily injury was not applied to defendant
Alalu, the clinical director, nor to defendants Alexander and Roberts, the patient recruiters.
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Biscayne Milieu admitted elderly patients with dementia, although the facility and
staff were not equipped to meet the elderly patients’ needs. Moreover, the elderly
patients with dementia were placed in a population that consisted mostly of
chronic substance abusers. Biscayne Milieu also failed to treat the substance-
abuse issues in a meaningful way; dangerous drug relapses plagued much of the
improperly treated substance-abusing patient population. By knowingly failing to
provide necessary treatment to patients, the appellants placed the patients at risk
of death or serious bodily injury.
At sentencing, the district court specifically addressed the risk of death or
bodily injury increase, relying on trial testimony as to the “devastating”
consequences of drug addiction when “not properly treated.” Acknowledging that
there was no evidence that any individual died specifically from the treatment at
Biscayne Milieu, the district court nonetheless applied the increase to defendants
Antonio Macli, Jorge Macli, and Huarte based on the evidence of “admission after
admission after admission” that showed the defendants were creating the “reckless
risk” of dangerous outcomes for the patients.
The district court did not err, much less clearly err, in applying this two-
level increase.
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F. Vulnerable-Victim Adjustment
Defendants Antonio Macli, Jorge Macli, and Huarte challenge the increase
to their sentences for targeting vulnerable victims. Defendant Huarte argues the
two-level vulnerable-victim adjustment under § 3A1.1(b)(1) does not apply to her
because she had no contact with patients. Defendants Antonio Macli and Jorge
Macli argue the only victim of the offense was the United States (Medicare) and
the United States cannot be a vulnerable victim.
A two-level increase applies where a defendant knew, or should have
known, that a victim of the offense was a vulnerable victim. U.S.S.G.
§ 3A1.1(b)(1). Another two-level increase applies if the offense involved a large
number of vulnerable victims. Id. § 3A1.1(b)(2). A “vulnerable victim” is a
person “who is a victim of the offense of conviction,” and “who is unusually
vulnerable due to age, physical or mental condition, or who is otherwise
particularly susceptible to the criminal conduct.” Id. § 3A1.1, cmt. n.2. The
increase applies when a defendant selected his victim to take advantage of that
victim’s perceived susceptibility to the offense. Bradley, 644 F.3d at 1288.
Neither bodily injury nor financial loss is required for an individual to qualify as a
victim. Id. at 1288 & n.128.
Defendants Antonio Macli and Jorge Macli’s argument that Medicare was
the only victim of this fraud scheme fails. Although Medicare was the primary
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victim, elderly patients and substance-abuse patients at Biscayne Milieu also were
victims of the offense. Elderly patients with dementia were transported daily from
their assisted living facilities to Biscayne Milieu, which was not equipped to
address their care during the day. Biscayne Milieu never treated other patients’
substance-abuse issues in a meaningful manner. The substance abusers, many of
who suffered regular relapses, were vulnerable because of their need for treatment.
Moreover, many of these patients had little income and depended upon housing
provided by Biscayne Milieu’s patient recruiters or affiliates. Housing was often
conditioned on their attendance at Biscayne Milieu. These patients were
vulnerable because of their need for particular treatment and care that they could
not receive at Biscayne Milieu.
Defendants Antonio Macli, Jorge Macli, and Huarte knew about these
patients and the lack of meaningful treatment. Moreover, these defendants and
their co-conspirators targeted the Medicare beneficiaries in order to further the
fraudulent activity. Accordingly, the district court did not clearly err in applying a
two-level increase for vulnerable victims under § 3A1.1(b)(1). None of the
appellants have challenged the number of vulnerable victims, and, thus, the
additional two-level increase under § 3A1.1(b)(2) also applies.
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G. Aggravated Role in the Offense
Defendant Antonio Macli argues he should not have received a four-level
increase under § 3B1.1(a) based on the district court’s finding that he was an
organizer or leader of extensive criminal activity. 20 We review a defendant’s role
in the offense under § 3B1.1 only for clear error. United States v. Ramirez, 426
F.3d 1344, 1355 (11th Cir. 2005). For a factual finding to be clearly erroneous,
we must be left with a definite and firm conviction that a mistake has been
committed. United States v. Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th Cir.
2004).
Section 3B1.1(a) of the guidelines provides for a four-level increase if the
defendant was an “organizer or leader of a criminal activity that involved five or
more participants or was otherwise extensive.” U.S.S.G. § 3B1.1(a). The
defendant must have been the organizer or leader of at least one participant. Id.
§ 3B1.1 cmt. n.2. A participant is defined as “a person who is criminally
responsible for the commission of the offense,” but the person “need not have
been convicted.” Id. § 3B1.1 cmt. n.1. Factors to be considered include the
exercise of decision-making authority, the nature of participation in the
commission of the offense, the recruitment of accomplices, the claimed right to a
20
Alalu similarly argues he should not have received a three-level increase for his
aggravated role in the offense. We note, however, that the district court sustained Alalu’s
objection to that increase and we need not address that issue. Alalu does, however, ask for a
minor role reduction, which we address separately.
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larger share of the fruits of the crime, the degree of participation in planning the
offense, the nature and scope of illegal activity, and the degree of control and
authority exercised over others. Id. § 3B1.1 cmt. n.4.
Here, the district court did not clearly err by finding defendant Antonio
Macli was an organizer or leader of the conspiracy to commit health care fraud.
As discussed above, defendant Antonio Macli incorporated Biscayne Milieu and
was its CEO. He served as Biscayne Milieu’s primary contact with Medicare for
purposes of provider certification. He paid kickbacks to patient recruiters,
directed recruiters to create fraudulent invoices, and instructed recruiters to recruit
Haitian patients who were not eligible for PHP treatment. He also incorporated
numerous other business entities in Florida and opened multiple bank accounts
through which he moved the proceeds of the health care fraud. Based on the
voluminous record from the seven-week trial, the district court did not err by
applying the four-level upward increase for defendant Antonio Macli’s role in the
offense.
H. Minor-Role Reduction
Defendants Alalu, Alexander, and Roberts all argue they should have
received a reduction to their offense levels for playing a minor role in the offense.
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We review for clear error a district court’s denial of a role reduction. United
States v. Bernal-Benitez, 594 F.3d 1303, 1320 (11th Cir. 2010). A defendant bears
the burden of proving his minor role by a preponderance of the evidence. Id.When an offense is committed by more than one participant, a role reduction
under § 3B1.2 may apply, and a defendant may receive a two-level decrease if his
role was minor. U.S.S.G. § 3B1.2 & cmt. n.2. This reduction is only available
“for a defendant who plays a part in committing the offense that makes him
substantially less culpable than the average participant.” Id. § 3B1.2 cmt. n.3(A).
A “minor participant” means any participant “who is less culpable than most other
participants, but whose role could not be described as minimal.” Id. § 3B1.2 cmt.
n.5.
In determining whether a minor-role adjustment applies, the district court
should consider, first, the defendant’s role in the relevant conduct for which he has
been held accountable at sentencing, and, second, his role as compared to that of
other participants in his relevant conduct. United States v. Rodriguez De Varon,
175 F.3d 930, 940 (11th Cir. 1999) (en banc). As to the first prong of this analysis,
“[o]nly if the defendant can establish that [he] played a relatively minor role in the
conduct for which [he] has already been held accountable—not a minor role in any
larger criminal conspiracy—should the district court grant a downward adjustment
for minor role in the offense.” Id. at 944. As to the second prong, the district court
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should look at other participants only to the extent that they (1) are identifiable or
discernable from the evidence, and (2) were involved in the relevant conduct
attributed to the defendant. Id. “The conduct of participants in any larger criminal
conspiracy is irrelevant.” Id. Thus, in order to satisfy the second prong, the
defendant must show that he was less culpable than most other participants in his
relevant conduct. Id.The district court did not clearly err by declining defendants Alalu,
Alexander, and Roberts’s requests for a two-level reduction for a minor role.
Alalu played a significant role in the health care fraud by, as discussed above,
falsifying group therapy notes, directing others to falsify notes, and instructing
staff to make it appear as though certain patients were eligible for PHP treatment.
Though Alalu may have been less culpable in the overall health care fraud than,
for example, the Maclis, he was not less culpable than most other participants in
the relevant conduct, particularly during the period he, as Biscayne Milieu’s
clinical director, directed and managed other therapists at Biscayne Milieu.
Defendants Alexander and Roberts’s conduct was also central to the
kickback scheme. Absent active recruitment of Medicare patients, Biscayne
Milieu would have been unable to bill Medicare for those beneficiaries. Although
both defendants contend their roles were minor compared to the members of the
overall conspiracy, the conduct of the participants in the larger criminal conspiracy
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is irrelevant to Alexander’s and Roberts’s roles in the kickback scheme, outlined
earlier in this opinion. See Rodriguez De Varon, 175 F.3d at 944. Although
Alexander received fewer kickback payments than several other recruiters,
Alexander nevertheless recruited numerous patients and received $47,500 in
kickbacks. Like many of the other recruiters, he was paid $30 per patient, per day
of the patient’s attendance, and he submitted fraudulent invoices to reflect a
fraudulent $50 per hour pay rate for case management services, a job for which he
had no training or experience. Likewise, Roberts recruited numerous patients and
received over $199,000 in kickbacks. Notably, the $4,866,100 that Medicare was
billed for Roberts’s clients was significantly higher than the amounts Medicare was
billed for any other recruiter’s clients.
Accordingly, defendants Alexander and Roberts did not play minor roles and
the district court did not err in denying a role reduction.
I. Obstruction of Justice
Defendant Alalu argues he should not have received an increase for
obstruction of justice based on his perjury at trial. He argues that the record does
not support a finding he intentionally lied on the stand or otherwise made
inaccurate statements.
In reviewing a district court’s imposition of an obstruction-of-justice
increase, a district court must make a particularized assessment of the credibility of
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a defendant, and so we accord special deference to the district court’s credibility
determinations and review for clear error. United States v. Banks, 347 F.3d 1266,
1269 (11th Cir. 2003).
The guidelines provide for a two-level increase if the defendant “willfully
obstructed or impeded, or attempted to obstruct or impede, the administration of
justice with respect to the investigation, prosecution, or sentencing of the instant
offense.” U.S.S.G. § 3C1.1. A defendant may obstruct or impede justice by
“committing, suborning, or attempting to suborn perjury.” Id. § 3C1.1 cmt. n.4(b).
Perjury here is defined as “false testimony concerning a material matter with the
willful intent to provide false testimony, rather than as a result of confusion,
mistake, or faulty memory.” United States v. Dunnigan, 507 U.S. 87, 94, 113 S.
Ct. 1111, 1116 (1993).
At defendant Alalu’s sentencing, the district court noted that, “having had
[the] opportunity to sit through the trial and observe Mr. Alalu’s testimony,” it
found the increase warranted. The district court separately found, in response to a
question from the government, that all of the excerpts of defendant Alalu’s
testimony provided by the government were “associated with perjured testimony.”
In order to apply the increase, a district court must make an independent
factual finding that the defendant gave perjured testimony on a material matter.
United States v. Vallejo, 297 F.3d 1154, 1168 (11th Cir. 2002). Although a district
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court preferably should make specific findings as to each instance of obstruction
by identifying the materially false statements individually, it is sufficient if the
court makes “a general finding of obstruction of justice that encompasses all of the
factual predicates of perjury.” Id. (quotation omitted).
Defendant Alalu’s PSI noted that Alalu qualified for the obstruction-of-
justice adjustment because he had lied during his testimony at trial. Specifically,
defendant Alalu had provided false testimony that (1) the fabricated patient notes
as to patient C.S. were merely a mistake; (2) he had no involvement in the creation
of fabricated notes for a particular patient; (3) his copied-and-pasted group therapy
notes were accurate; (4) he had no knowledge that Haitian patients attended
Biscayne Milieu for immigration purposes; and (5) he never instructed co-
conspirator Manotte Bazile to make the Haitian patients appear depressed.
The district court did not clearly err by applying the obstruction-of-justice
adjustment. The court noted it had heard the testimony in the case and found that
Alalu had lied on the stand. This finding is entitled to deference and is supported
by the record. See Banks, 347 F.3d at 1269. For instance, defendant Alalu
testified he had no knowledge that Haitian patients were attending Biscayne
Milieu only for immigration purposes. Both witnesses Roselyn Charles and
Manotte Bazile testified, however, that they had informed defendant Alalu of
problems with Haitian patients attending Biscayne Milieu for immigration
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purposes. Although the district court did not address each instance of Alalu’s
alleged perjury individually, the district court made a sufficient general finding of
obstruction of justice. See Vallejo, 297 F.3d at 1168. Defendant Alalu has shown
no error.
J. Downward Departure and Downward Variance
Defendant Alalu argues the district court should have granted his request
for a downward departure on the basis that his offense level substantially
overstated the seriousness of his offenses. He further argues the court abused its
discretion by denying his request for a downward variance and that his sentence,
albeit in the advisory guidelines range, is substantively unreasonable.
We review our subject matter jurisdiction de novo. United States v.
Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005). We lack jurisdiction to review a
district court’s discretionary refusal to grant a downward departure, unless the
district court incorrectly believed it lacked the authority to depart from the
guidelines range. United States v. Dudley, 463 F.3d 1221, 1228 (11th Cir. 2006).
We will assume the sentencing court properly understood its authority absent a
record indication to the contrary. Id.Here, we lack jurisdiction to review the district court’s discretionary refusal
to grant Alalu’s request for a downward departure, as the district court did not
express a belief that it lacked authority to depart. Id.76
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As to a downward variance request, a district court must impose a sentence
that is reasonable. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597
(2007). We review the reasonableness of a sentence under a deferential abuse-of-
discretion standard. Id. at 41, 128 S. Ct. at 591. The party challenging the
sentence bears the burden of establishing the sentence is unreasonable. United
States v. Dean, 635 F.3d 1200, 1203-04 (11th Cir. 2011).
We examine whether a sentence is substantively reasonable in light of the
totality of the circumstances and the 18 U.S.C. § 3553(a) factors. Gall, 552 U.S. at
51, 128 S. Ct. at 597. The § 3553(a) factors to be considered by a sentencing court
include, among others: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed
to reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense; (3) the need to protect the public from
further crimes of the defendant; and (4) the applicable guideline range. 18 U.S.C.
§ 3553(a). A sentencing court must also consider “the need to avoid unwarranted
sentence disparities among defendants with similar records who have been found
guilty of similar conduct.” 18 U.S.C. § 3553(a)(6).
A sentence is substantively unreasonable if it “does not achieve the purposes
of sentencing stated in § 3553(a).” Pugh, 515 F.3d at 1191 (quotations omitted).
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In addition, a sentence may be substantively unreasonable if a district court
unjustifiably relied on any one § 3553(a) factor, failed to consider pertinent
§ 3553(a) factors, selected the sentence arbitrarily, or based the sentence on
impermissible factors. Id. at 1191-92. Although we do not automatically presume
a within-guidelines sentence is reasonable, we ordinarily expect such a sentence to
be reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008).
As for the variance issue, Alalu has failed to meet his burden of establishing
that a downward variance was warranted and that his within-guidelines sentence is
substantively unreasonable. The district court considered the 18 U.S.C. § 3553(a)
factors. The district court noted that, based on Alalu’s actions in this case and his
perjury at trial, the starting point for a reasonable sentence was above the advisory
guidelines range. Nevertheless, the district court recognized Alalu’s significant
contributions to his community and gave Alalu credit for receiving only roughly
$80,000 in salary and no other financial remuneration. Alalu’s attempt to
compare himself to co-conspirator Thomas Hamer is unpersuasive, as they are not
similarly situated. Although both were therapists, Hamer was not Biscayne
Milieu’s clinical director, and did not direct the falsification of therapy notes or
oversee the work of other therapists. Thus, the district court did not abuse its
discretion in declining to vary below the advisory guidelines range in imposing a
sentence of 100 months’ imprisonment, at the low end of that range.
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K. Upward Variance
Defendant Roberts argues the district court abused its discretion by
imposing an upward variance of 9 months to his advisory guidelines range of 63
to 78 months’ imprisonment. Roberts contends the district court relied upon
clearly erroneous facts when it concluded that his criminal history category of I
was understated and that defendant Alexander would have engaged in a life of
helping people but for defendant Roberts’s influence. Roberts also asserts the
probation officer already considered his criminal history when calculating the
advisory guidelines range. 21
If the district court sentences outside the advisory guidelines range, it
should explain why the variance is appropriate in that particular case. United
States v. Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009). While extraordinary
justification is not required, Gall, 552 U.S. at 47, 128 S. Ct. at 595, the
“justification for the variance must be sufficiently compelling to support the
degree of the variance,” United States v. Irey, 612 F.3d 1160, 1187 (11th Cir.
2010) (en banc) (quotation omitted). Moreover, the district court, in imposing a
variance, may consider conduct that a probation officer already had considered in
calculating the defendant’s advisory guidelines range. See United States v.
21
Roberts further asserts the district court actually imposed an upward departure, rather
than an upward variance, and therefore failed to provide advance notice of the departure as
required. This argument lacks merit. The district court specifically stated it was imposing a
variance, not a departure, and the record supports the district court’s statement.
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Williams, 526 F.3d 1312, 1324 (11th Cir. 2008) (holding that, although
defendant’s previous offenses were part of the guidelines calculation, those
offenses fit squarely into the history and characteristics factor of § 3553(a)(1) and
could properly be considered by the court).
Defendant Roberts cannot show the district court abused its discretion by
imposing an upward variance. The district court imposed the upward variance
after finding that Roberts’s criminal history category of I understated the
seriousness of his criminal history, when Roberts previously was convicted of
armed robbery, driving under the influence, and driving with a suspended license.
Although Roberts argues the district court relied upon clearly erroneous facts when
concluding his criminal history category of I was understated, he does not identify
which facts are clearly erroneous. Roberts did not object to the conviction list in
his criminal history as set forth in the PSI, and thus the district court was permitted
to rely on those undisputed facts in determining the total sentence. See United
States v. Philidor, 717 F.3d 883, 885 (11th Cir. 2013) (holding a district court may
rely on undisputed facts contained in the PSI when sentencing). Likewise, the
district court was permitted to consider Roberts’s prior criminal conduct, even
though the probation officer already had considered that conduct when calculating
the advisory guidelines range. See Williams, 526 F.3d at 1324.
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The district court also imposed the upward variance after finding defendant
Roberts had been a poor role model for Alexander, which resulted in Alexander
serving time in prison rather than devoting his life to helping people. Although
Roberts argues no facts in the record indicate Alexander would have engaged in a
life of helping people, the district court noted its belief in Alexander’s initial
honest intentions after hearing the testimony at trial. In any event, the upward
variance is justified by Roberts’s criminal history and the court’s additional
findings that Roberts had benefited from the scheme beyond his salary and had
received kickbacks for recruiting patients who did not actually need or qualify for
PHP treatment. Defendant Roberts has shown no error.
XIII. RESTITUTION
Defendant Dr. Kushner appeals his restitution order, arguing that the value
of legitimate psychiatric services provided to Biscayne Milieu patients should have
been subtracted from the restitution amount. The district court ordered Dr.
Kushner to pay restitution of $9,341,767.24, which represents the amount
Medicare paid to Biscayne Milieu during Dr. Kushner’s involvement in the
conspiracy, a period during which Biscayne Milieu billed Medicare in the amount
of $38,579,138.24.
Under 18 U.S.C. § 3663A(c), a defendant convicted of fraud must pay
restitution to victims of the offense. The government bears the burden of proving
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the loss amount by a preponderance of the evidence, and the court must order
restitution to each victim in the full amount of each victim’s losses. 18 U.S.C.
§ 3664(e), (f)(1)(A).
“Restitution is not intended to provide a windfall for crime victims but rather
to ensure that victims, to the greatest extent possible, are made whole for their
losses.” United States v. Huff, 609 F.3d 1240, 1249 (11th Cir. 2010) (quotation
omitted). For this reason, any value of the services or items received by the victim
must be offset against the restitution order. Id. at 1248. Restitution is intended to
put the victims in the same position they would have been if the crime had never
been committed. Id. at 1249. And “because a defendant’s culpability will not
always equal the victim’s injury,” the amount of loss for restitution purposes will
not always equal the amount of loss under the Sentencing Guidelines. Id. at 1247(alteration and quotation omitted).
In Medicare kickback cases, we have previously held the proper measure of
restitution is the amount of the kickbacks received, not the total amount billed to
Medicare. See United States v. Bane, 720 F.3d 818, 827-28 (11th Cir. 2013). In
Bane, we extended that logic to Medicare fraud cases not involving kickbacks,
holding that a district court erred in failing to exclude the value of medically
necessary treatment from the restitution amount. Id. at 828. We reasoned that
failing to offset the amounts paid for medically necessary goods and services
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against the restitution amount would be inconsistent with the purpose of restitution
because it would give a windfall to the victims. Id. The failure to offset the costs
would result in the victims receiving funds that they would have expended even
absent the defendant’s fraud. Id.Here, the district court found that the actual payments from, not the amount
billed to, Medicare should be subject to the restitution order. As applied to Dr.
Kushner, that totaled $9,341,767.24.
In his opening brief on appeal, Dr. Kushner addressed the restitution issue
by trying to revisit the district court’s loss calculation discussed above (as opposed
to squarely addressing the value of any PHP services allegedly rendered). His
brief states that, at sentencing, he objected to the loss amount and, on appeal, he
“adopts the same arguments.” Under our clear precedent, this is insufficient. The
“request that we ferret out and review any and all arguments it made below—
without explaining which ones may have merit and where the district judge may
have erred—clearly runs afoul of various Federal Rules of Appellate Procedure.”
Four Seasons Hotels & Resorts, B.V. v. Consorcio Barr S.A., 377 F.3d 1164, 1167
n.4 (11th Cir. 2004). So, too, for Dr. Kushner’s attempted adoption of “the briefs
and arguments” of all his other co-defendants except Biscayne Milieu. This
plainly fails to satisfy our circuit Rule 28-1(f) requiring parties adopting the briefs
of other parties to “include a statement describing in detail which briefs and which
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portions of those briefs are adopted.” Defendant Dr. Kushner has not properly
preserved his challenge to the district court’s loss calculation. See Four Seasons,
377 F.3d at 1167.
Though defendant Dr. Kushner expands on his objection to the loss
calculation in his reply brief, this comes too late. Dr. Kushner has abandoned the
issue by failing to develop any argument on it in his opening brief. See United
States v. Woods, 684 F.3d 1045, 1064 n.23 (11th Cir. 2012) (holding an appellant
abandons an issue if he fails to develop any argument in support of it in his
opening brief); United States v. Evans, 473 F.3d 1115, 1120 (11th Cir. 2006)
(holding we will not consider arguments raised for the first time in a reply brief).
Even if Dr. Kushner could resurrect an underlying challenge to the loss
calculation for purposes of his restitution claim, his claim would fail in any event.
The district court was not required to offset defendant Dr. Kushner’s restitution
amount by Medicare payments for legitimately rendered services because, in
reaching the loss calculation, the district court determined that the pervasive
absence of qualified PHP patients or real PHP treatment at Biscayne Milieu
warranted holding defendants accountable for the amount Medicare actually paid
due to the fraud. At defendant Dr. Kushner’s restitution hearing, the district court
specifically applied this reasoning to Dr. Kushner’s restitution amount. Because
the district court found that Biscayne Milieu did not render proper PHP treatment,
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defendant Dr. Kushner has shown no evidence that the services he allegedly
provided can somehow offset his restitution amount. The district court did not err
in determining defendant Dr. Kushner’s restitution.
XIV. CONCLUSION
For the foregoing reasons, we affirm the convictions and sentences as
rendered by the district court.
AFFIRMED.
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