United States v. Marianela Smith , 296 F. App'x 770 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 15, 2008
No. 07-15628 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-20283-CR-JAL
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIANELA SMITH,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 15, 2008)
Before TJOFLAT, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
Appellant Marianela Smith (“Smith”) appeals her convictions and sentences
imposed by the United States District Court for the Southern District of Florida. A
jury convicted Smith of conspiracy to defraud the United States, to cause the
submission of false claims and to receive health care kickbacks, in violation of 18
U.S.C. § 371; conspiracy to commit health care fraud, in violation of 18 U.S.C. §
1349; and solicitation and receipt of kickbacks, in violation of 42 U.S.C.
§ 1320a-7b(b)(1).
The issues presented on appeal are (1) whether the government and the
district court improperly caused a defense witness to invoke his Fifth Amendment
right against self-incrimination, thereby depriving Smith of her Sixth Amendment
right to present a defense; and (2) whether the district court correctly calculated
Smith’s advisory guideline range when it (a) determined the loss amount and (b)
imposed a four-level enhancement for Smith’s role as an organizer or leader of the
criminal activity.
We review de novo a district court’s ruling on the invocation of the privilege
against self-incrimination. United States v. Hernandez, 141 F.3d 1042, 1049 (11th
Cir. 1998).
This court reviews for clear error the district court’s determination regarding
the amount of loss under the Sentencing Guidelines. United States v. Grant, 431
F.3d 760, 762 (11th Cir. 2005).
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“This court reviews a sentencing court’s determination of a defendant’s role
in the crime for clear error.” United States v. Gupta, 463 F.3d 1182, 1197 (11th
Cir. 2006), cert. denied, 127 S. Ct. 2446 (2007).
After reviewing the record and reading the parties’ briefs, we first conclude
that Smith was not deprived of her Sixth Amendment right to present her defense,
which was that she had nothing to do with Smith Medical Equipment, Inc., and
was unaware of any billings or claims made by her husband’s company. More
specifically, Smith complains that she was unable to present the testimony of one
witness, Dr. Misael Gonzalez, due to the fact that the government and the district
court improperly caused Dr. Gonzalez to invoke his Fifth Amendment right against
self-incrimination, thereby depriving Smith of her Sixth Amendment right to
present a defense.
The record belies Smith’s argument that Dr. Gonzalez refused to testify
because of threats and intimidation by either the prosecutors or by the district
court. The prosecutors communicated only with Dr. Gonzalez’s attorney and
merely informed his counsel of the trial evidence potentially implicating Dr.
Gonzalez in the Medicare scheme. It was after the government’s consultation with
Dr. Gonzalez’s attorney that Dr. Gonzalez invoked his Fifth Amendment right. In
sum, the record demonstrates that there was no interference by either the
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government or the district court in Smith’s presentation of her defense.
We also conclude from the record that the district court did not err in
determining the amount of loss attributable to Smith, or in enhancing Smith’s
offense level based on its finding that Smith was an organizer or leader of the
criminal activity.
Because there is no merit to any of the arguments that Smith makes in this
appeal, we affirm her convictions and sentences.
AFFIRMED.
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