United States v. Isachi Gil ( 2012 )

Case: 11-14736 Date Filed: 11/20/2012 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-14736
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D.C. Docket No. 1:10-cr-20766-MGC-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
ISACHI GIL,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(November 20, 2012)
Before HULL and FAY, Circuit Judges, and WHITTEMORE,* District Judge.
*
Honorable James D. Whittemore, United States District Judge, Middle District of
Florida, sitting by designation.
Case: 11-14736 Date Filed: 11/20/2012 Page: 2 of 4
PER CURIAM:
Defendant Isachi Gil appeals her convictions for health care fraud and
making false statements in connection with health care matters, in violation of 18
U.S.C. §§ 1347, 1035(a)(2). Gil, a nurse, was charged with, among other things,
falsely representing in nursing notes, patient records, or other documents that she
was visiting home-bound patients and administering insulin injections to those
home-bound, diabetic patients, when in actuality, the patients either were not
diabetic or did not receive those services because they either did not require them
or the visits never occurred. A jury convicted Gil following a two-week trial,
during which the district court made various rulings that now comprise the
subjects of the instant appeal.
In particular, Gil raises six challenges. First, Gil argues that the district
court erred in refusing to strike the entire testimony of two witnesses because
during part of their examination, the government introduced recordings wherein
the witnesses allegedly fabricated certain statements. Although the district court
ultimately struck one of the recordings (Mercedes Puche’s) and the statements
therein, Gil argues that the court erred in failing to instruct the jury until the end of
trial that these recordings were fabricated and should not be considered. Gil also
contends that the witnesses’ entire other testimony should have been struck too.
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Case: 11-14736 Date Filed: 11/20/2012 Page: 3 of 4
Second, Gil argues that the evidence at trial was insufficient to support her
convictions. Third, she argues, for the first time on appeal, that § 1035(a)(2) is a
lesser-included offense of § 1347, such that her conviction for both violated her
double jeopardy rights. Fourth, she asserts that the district court’s admission of:
(a) bank records relating to her work at health care companies that were not named
in the indictment; (b) a chart estimating the number of patient home visits that she
made during the period charged; and (c) records from her SunPass transponder
introduced during the government’s rebuttal case, taken individually and
cumulatively, deprived her of a fair trial. Fifth, she argues that the district court
abused its discretion in failing to hold an evidentiary hearing on whether the
government intimidated two defense witnesses by advising the district court that
they were subjects or targets of investigation shortly before the defense called
them to testify. Finally, Gil argues that the district court improperly admitted the
prior conviction of Adela Quintero.
I.
We review the district court’s decision to admit certain evidence for abuse
of discretion. United States v. Hill, 643 F.3d 807, 840 (11th Cir. 2011), cert.
denied, 132 S. Ct. 1988 (2012). We also review for abuse of discretion a district
court’s refusal to give a curative instruction. See United States v. Palma, 511 F.3d
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1311, 1317 n.4 (11th Cir. 2008). “The inquiry into the sufficiency of the
government’s evidence produced at trial is a question of law subject to de novo
review.” United States v. Spoerke, 568 F.3d 1236, 1244 (11th Cir. 2009) (internal
quotation marks omitted). We review de novo whether an indictment violated the
Double Jeopardy Clause. United States v. McIntosh, 580 F.3d 1222, 1226 (11th
Cir. 2009). A district court’s decision on whether to hold an evidentiary hearing is
reviewed for abuse of discretion. United States v. Gamory, 635 F.3d 480, 490
(11th Cir.), cert. denied, 132 S. Ct. 826 (2011).
Where a challenge is raised for the first time in a criminal appeal, we review
only for plain error, which requires a defendant to demonstrate that: “(1) an error
occurred; (2) the error was plain; (3) it affected [her] substantial rights; and (4) it
seriously affected the fairness of the judicial proceedings.” United States v.
Schultz, 565 F.3d 1353, 1356-57 (11th Cir. 2009) (internal quotation marks
omitted).
After oral argument and careful review of the extensive evidence at trial and
the parties’ briefs, we conclude that all issues in this appeal lack merit and that Gil
has not shown reversible error in her trial. Thus, we affirm Gil’s convictions and
her 43-month total sentence.
AFFIRMED.
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