United States v. Teobaldo Fuentes , 521 F. App'x 911 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14247
Non-Argument Calendar
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D.C. Docket No. 1:11-cr-20842-JIC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TEOBALDO FUENTES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(June 11, 2013)
Before CARNES, BARKETT and ANDERSON, Circuit Judges.
PER CURIAM:
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Teobaldo Fuentes appeals his convictions for health care fraud, 18 U.S.C.
§ 1347; aggravated identity theft, 18 U.S.C. § 1028A; and misbranding of
prescription drugs after shipment in interstate commerce, 21 U.S.C. § 331(k).
During Fuentes’s trial, the jury heard evidence that Fuentes practiced medicine
without a physician’s license, wrote prescriptions without authorization, obtained
health insurance policies with Blue Cross Blue Shield of Florida, Inc. (“BCBS”) by
using his patients’ personal information, and without their knowledge or consent,
and fraudulently billed BCBS for procedures that were never performed. The
government’s last witness, Special Agent Maximilian Trimm, testified over
objection that, in his opinion, Fuentes’s clinic was not a lawful business. The
district court, after initially overruling Fuentes’s objection and allowing the
testimony, reversed itself, sustained the objection, and instructed the jury to
disregard the testimony. The jury convicted Fuentes on all counts. On appeal,
Fuentes argues that the district court’s admission of Special Agent Trimm’s
testimony constituted an incurable error, and the court’s subsequent curative
instruction did not cure the prejudice. After careful review, we affirm.
We review the district court’s admission of evidence for abuse of discretion.
United States v. De La Cruz Suarez, 601 F.3d 1202, 1215 (11th Cir. 2010). A trial
court’s prompt admonishment of the jury to disregard improper testimony can cure
an error. United States v. Gabay, 923 F.2d 1536, 1541 (11th Cir. 1991). Strong
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evidence of guilt, combined with a trial court’s curative instructions, renders
improper testimony harmless error. Id.; cf. United States v. Creamer, 721 F.2d
342, 345 (11th Cir. 1983) (“Although the prosecutor acted improperly in the
instant case, it was an isolated instance which was cured by the strong, prompt
cautionary instruction issued by the district judge, and by the relatively strong
evidence of guilt.”).
To support a conviction for health care fraud under 18 U.S.C. § 1347, the
government must prove that the defendant: (1) knowingly and willfully executed,
or attempted to execute, a scheme to (2) defraud a health care benefit program or to
obtain by false or fraudulent pretenses money or property under the custody or
control of a health care benefit program, (3) in connection with the delivery of or
payment for health care benefits, items, or services. 18 U.S.C. § 1347. A
conviction for aggravated identity theft under 18 U.S.C. § 1028A requires that the
defendant knowingly transfer, possess, or use, without lawful authority, another
person’s identification while committing certain enumerated felonies, including
health care fraud. See id. § 1028A(a)(1), (c)(4). Doing any act with respect to a
drug, if the act is done while the drug is held for sale after shipment in interstate
commerce, and results in such article being adulterated or misbranded, is
prohibited. 21 U.S.C. § 331(k).
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Here, even assuming that the district court erred in belatedly disallowing
Special Agent Trimm’s testimony, strong evidence of Fuentes’s guilt, combined
with the court’s prompt curative instruction, rendered any error harmless. See
Gabay, 923 F.2d at 1541. The jury convicted Fuentes after hearing evidence that
Fuentes, inter alia, practiced medicine while he had no physician’s license on file
with the Florida Department of Health; wrote prescriptions using the names of
another doctor and a medical assistant without their authorization or consent;
identified himself to patients as a doctor; used his address and the addresses of
family members on the BCBS applications; paid the insurance premiums through a
separate family-owned business; and fraudulently billed BCBS for millions of
dollars in visits, treatments, and diagnoses that did not occur. Finally, in addition
to this overwhelming evidence of guilt, the court promptly instructed the jury to
disregard Special Agent Trimm’s testimony. See United States v. Lopez, 649 F.3d
1222, 1237 (11th Cir. 2011) (“We presume that juries follow the instructions given
to them.”).
Accordingly, any error in belatedly disallowing the testimony was rendered
harmless, and we affirm. See Gabay, 923 F.2d at 1541.
AFFIRMED.
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