United States v. Diaz ( 2002 )

REVISED DECEMBER 17, 2002
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50593
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTHUR C. BIEGANOWSKI, VICTOR J.
BIEGANOWSKI, RICHARD J. GOLDBERG,
LUCY CAMPOS, MARIA ROMERO, GUSTAVO DIAZ,
JESSE JAIME LOPEZ, PATRICIA YVONNE REYES,
AND GUADALUPE RODRIGUEZ MORALES,
Defendants-Appellants.
Appeals from the United States District Court
for the Western District of Texas
November 22, 2002
Before GARWOOD and CLEMENT, Circuit Judges and RESTANI,1 Judge.
GARWOOD, Circuit Judge:
Defendants-Appellants Gustavo Diaz (Diaz), Richard J. Goldberg
(Goldberg), Jesse Jaime Lopez (Lopez), and Dr. Arthur C.
Bieganowski (Bieganowski) appeal their convictions and sentences
for various charges arising out of a scheme to defraud medical-
insurance companies, including mail fraud, conspiracy to commit
1
Judge of the United States Court of International Trade,
sitting by designation.
mail fraud, aiding and abetting mail fraud, and conspiracy to money
launder. For the following reasons, we affirm all the appellants’
convictions and sentences.
Background
As reflected by the trial evidence, physicians and medical
service providers typically bill insurance companies by means of a
standardized form known as a Healthcare Finance Administration
(HCFA) Form No. 1500, the actual service for which a bill is
submitted being designated on the HCFA Form by a Current Procedural
Terminology (CPT) code, a numerical code that represents a specific
service or procedure for which an insurance company will pay on
behalf of an insured.2 On August 4, 1998, Diaz, Goldberg, Lopez,
Bieganowski, and five others were charged in a twenty-three-count
indictment with a series of offenses arising from a complex scheme
to use these forms to defraud insurance companies. The essence of
the scheme involved a conspiracy to submit bills for services that
were either never performed, were known to be unneeded, or
contained CPT codes that reflected a higher level of service than
was actually provided.
Dr. Bieganowski began practicing medicine in Texas in 1979.
By the time of his arrest in 1996, he owned five medical clinics in
El Paso: El Paso Pain & Stress Clinic (EPPSC), a clinic
specializing in pain management and the center of Dr. Bieganowski’s
2
The person who signs the HCFA Form 1500 verifies that the
service charged was actually delivered to a patient.
2
medical practice; El Paso Institute of Physical Medicine &
Rehabilitation (EPIPMR), a physical therapy clinic; El Paso Doctors
Medical Center (EPDMC), a chiropracty clinic; and El Paso Radiology
Services (EPRS), a radiology clinic. As a licensed physician and
owner of the various clinics, Dr. Bieganowski was the central
figure in the conspiracy, with Diaz, Lopez, and Goldberg fulfilling
secondary roles. Diaz worked as a physician’s assistant in Dr.
Bieganowski’s primary clinic, while Lopez worked as a physical
therapist at the El Paso Institute of Physical Medicine &
Rehabilitation. Goldberg was nominally Dr. Bieganowski’s outside
accountant, but actually served as the de facto business manager
for the various businesses.
The operation of the conspiracy, as charged in the indictment,
covered the period between 1989 and 1996, and can be divided into
three operational stages, the first of which involved the
solicitation of patients. To obtain patients, Dr. Bieganowski
initially engaged a self-styled telemarketer, Richard Griego, to
solicit patients for the El Paso Pain & Stress Clinic. To avoid
the appearance that he was soliciting directly for Dr. Bieganowski,
Griego was later employed through EPDMC, Dr. Bieganowski’s
chiropracty clinic. The connection, however, was only thinly
veiled, as both Dr. Bieganowski and Goldberg met periodically with
Griego to monitor his work, prepare scripts, and set quotas.
Griego would obtain automobile accident reports from the El Paso
3
Police Department and then use those reports to contact the
accident victims by telephone. Once Griego contacted victims and
referred them to EPDMC for chiropractic care, they would then be
referred again to Dr. Bieganowski for further medical treatment.
The second stage of the scheme was the heart of the conspiracy
and involved the creation and submission of fraudulent bills and
HCFA Forms to medical insurance companies for reimbursement. The
Government presented evidence of a number of fraudulent acts,
including double billing, billing for services performed by Dr.
Bieganowski on days when he was not in El Paso, billing for
treatments known to be unneeded, billing for treatments performed
by a non-physician at a physician’s rate, double billing, and
billing for the use of equipment that the clinic never possessed.
Lopez, for example, was convicted of billing for therapy provided
in a device called a Hubbard Tank, when none of Dr. Bieganowski’s
clinics actually possessed such a device.
The third aspect of the conspiracy involved money laundering,
and the movement of the funds derived from the submission of the
fraudulent HCFA Forms. In the early stages of the conspiracy,
before 1994, payments from insurance companies were deposited
directly into bank accounts maintained in the names of the various
clinics at Norwest Bank in El Paso. After November 1994, the
scheme increased in complexity and the billing operations for the
various clinics were consolidated through Servicio de Facturacion
y Cobranza, S.A. de C.V. (Servicio), a Mexican corporation
4
established by Goldberg and located in Ciudad Juarez, Mexico.3
Under the direction of Lucy Campos, Dr. Bieganowski’s nominal
office manager and a named co-conspirator, Servicio assumed the
role of submitting bills for the clinics for reimbursement from
various insurance companies. Insurance company reimbursements were
then deposited into accounts held in the clinics’ names at the Bank
of the West in El Paso. From there Campos, the sole signator on
the Servicio account, would transfer the entire amount of the
reimbursements into an account held in the name of Servicio, also
at the Bank of the West. Once the funds were consolidated in the
Servicio account, Campos shifted those amounts necessary to cover
the clinics’ operating expenses back to the original clinic
accounts maintained at Norwest Bank. The excess funds that
remained in the Servicio account then followed the below described
routes from the Bank of the West to Dr. Bieganowski’s pocket.
A certain amount of the surplus funds held in the Servicio
account was delivered directly to Dr. Bieganowski. The remainder,
however, was transferred to UTM Professional Management (UTM), a
shell corporation established under Goldberg’s guidance, whose
nominal owner and sole officer was a young college student and
former nanny to Dr. Bieganowski’s children. Under Goldberg’s
3
Servicio’s shares were not held by Dr. Bieganowski, but
were listed in the names of two Carribean corporations that were
in turn owned by Dr. Bieganowski: the KART Corporation, a Cayman
Island registered company, and Matrix Management Company, Inc., a
British West Indies company registered in the Turks and Caicos
Islands.
5
direction, the funds deposited in UTM’s name were moved by means of
wire transfers from UTM’s account in El Paso to Barclays Bank in
New York. From New York, the funds were transferred to a Barclays
account held by International Medical Management, a limited
partnership in the Cayman Islands, where they eventually became
available for Dr. Bieganowski’s personal use.
In 1994, the Federal Bureau of Investigation (FBI) along with
the Internal Revenue Service (IRS) began to investigate Dr.
Bieganowski’s medical practice. An undercover investigation soon
followed, which, together with the results of a search executed in
1996, led to the appellants’ arrest in August of 1998. Shortly
after his arrest, Dr. Bieganowski was diagnosed with cancer.
Although incarcerated in El Paso, he began treatment and was
briefly transferred to New York for medical attention. As a result
of Dr. Bieganowski’s condition and the volume of discovery, the
case was considerably delayed, and did not proceed to trial until
March 13, 2000.
A jury returned a guilty verdict on at least some counts for
all four appellants. Goldberg was found guilty on two counts,
conspiracy to commit mail fraud in violation of 18 U.S.C. §§ 1341and 371, and conspiracy to money launder in violation of 18 U.S.C.
§ 1956(a)(1)(B)(i), (a)(2)(B)(i), and (h). A third count against
Goldberg was dismissed on the government’s motion. He was
sentenced to one hundred months’ imprisonment on the conspiracy to
money launder count and to a sixty month concurrent term on the
6
mail fraud conspiracy count. Lopez was charged in five counts of
the indictment, was convicted on two counts of mail fraud, and was
acquitted on the other three counts. He was sentenced to
concurrent terms of forty-one months’ imprisonment and a two-year
period of supervised release. Diaz was charged in two counts of
the indictment. He was convicted of one count of conspiracy to
commit mail fraud, and sentenced to a term of fifty-one months’
imprisonment. He was acquitted on the other count. Bieganowski,
the central participant in the conspiracy, was charged in fifteen
of the twenty-three counts of the indictment. The jury returned a
guilty verdict on ten of those counts, including nine counts of
mail fraud and conspiracy to commit mail fraud, and one count of
conspiracy to money launder. He was acquitted on five counts.
Bieganowski was sentenced to 168 months’ imprisonment.
All the defendants appeal.
Discussion
A. Voir Dire
Bieganowski’s first argument on appeal is that the district
court erred by denying him the right to voir dire certain members
of the venire individually out of the hearing of the rest of the
venire and in overruling his motion for mistrial after one
mentioned a prejudicial statement from a newspaper article.4
4
Goldberg in his reply brief moved to adopt his co-
defendant’s arguments on appeal under Federal Rule of Appellate
Procedure 28(i). However, he may not simply adopt Bieganowski’s
7
On the opening day of the trial, a story appeared in the El
Paso Times reporting a number of prejudicial allegations, including
allegations that Dr. Bieganowski had threatened witnesses and
agents of the FBI. Six of the venire panel indicated they may have
seen the article, four stating that they had read part of it.
Bieganowski moved the district court to permit him to question
those four panel members himself, individually and outside the
hearing of the venire. The trial court denied the request and
Bieganowski’s counsel questioned the panel openly. Of the six
panel members who reported having seen the article, two could
remember nothing about it; one saw it but did not read it; one
started reading it and stopped; and one simply read the headline.
None of these five recalled anything “prejudicial to Dr.
Bieganowski.” However, venireperson Carr, when questioned by
Bieganowski’s counsel about the article’s content, mentioned in
front of the entire venire that according to the article
Bieganowski “allegedly threatened witnesses, threatened to kill
them.” Bieganowski moved for a mistrial and the district court
overruled the motion. Bieganowski then concluded his voir dire by
asking the panel “is there anyone who feels that they could not be
argument concerning voir dire as it necessarily requires
reference to facts that relate only to him. See United States v.
Solis, 299 F.3d 420, 433 n.3 (5th Cir. 2002). Goldberg does not
provide any additional argument or statement showing how
Bieganowski’s contentions in this respect are properly applicable
to him.
8
fair and impartial, as you sit here today, to try this case, from
any source, any conversation, any news, anything.” None responded.
At no point did Bieganowski either seek to himself conduct further
voir dire or ask the district court to conduct further voir dire or
to issue supplemental instructions, nor did the district court, on
its own initiative, ask further questions of the other venire
members concerning either the article or Carr’s statements.
In the district court’s initial questioning of the venire,
before the lawyers commenced their questioning of the panel, the
court read the entire indictment to the panel, emphasizing that it
was not evidence, and then asked if any venirepersons knew anything
about the case from any other source, including the newspaper. The
questions were asked row by row for each of the three rows into
which the thirty-four venirepersons were divided.5 Those who
indicated they had heard or read about the case on the news or in
the newspaper were asked by the court if they had formed any
opinions, and the two who responded affirmatively were excused.
The court then repeated that process with the following
introductory comment:
“Okay, What I need to know, the fact that you’ve
5
The court introduced this questioning by stating to the
venire: “The obvious question, ladies and gentlemen, is – I know
some of you have read a paper. I need to know to what extent,
from what you read, what you know, do any of you know anything
about this case other than what I’ve read to you – other than
what I’ve read to you, and that includes having read the paper.
Do any of you know anything about this case, other than what I’ve
read, only from the first row?”
9
read something in the paper, the allegations in the
paper, does that influence you one way or another?
You’re going to be asked to sit in judgment here in
this court. The evidence is going to be presented by
both sides. There will be witnesses here, exhibits. Now,
what I need to know from you is, can you limit yourself,
your deliberations, only on what is presented here, and
not what’s in the papers?
If you’ve ever been involved in a situation, you
know that the papers are not always correct. Okay? And
that is not proof of anything, what you may have read in
the papers. Any proof in this case has to come right
here. It has to come here, in open court, presented by
witnesses and exhibits.
So I need to ask you, if you are asked to sit on
this jury, can you limit yourself, no matter what you
have read in the paper, to only consider the evidence
that is presented here in court and no other evidence at
all?”6
“We review a district court’s determination of the scope and
method of jury voir dire for abuse of discretion.” United States
v. Beckner, 69 F.3d 1290, 1291 (5th Cir. 1995). The decision to
permit individual questioning lies within the district court’s
discretion, and we will find an abuse of that discretion only “when
there is insufficient questioning to allow defense counsel to
exercise a reasonably knowledgeable challenge to unqualified
jurors.” Id.Questions as to the adequacy of voir dire frequently arise in
situations where the trial is surrounded by significant publicity.
6
As a result, one additional juror was excused who said he
had “been reading about it in the papers and I will have a
problem.”
10
Where a defendant claims that voir dire was inadequate given the
nature of such publicity, we will reverse the conviction where the
defendant can establish “(1) that pretrial publicity about the case
raised a significant possibility of prejudice, and (2) that the
district court’s voir dire procedure failed to provide a reasonable
assurance that prejudice would be discovered if present.” Beckner,
69 F.3d at 1292.
As a threshold matter, we must determine whether the record in
Bieganowski’s case contains sufficient evidence of prejudice.
Bieganowski introduced the article from the El Paso Times into
evidence before the court, and there is no question but that the
article was inflammatory. The reported allegations involved not
simply a threat of violence, but a threat of violence directed
toward witnesses in the very trial the jurors were called to hear.
See United States v. Davis, 583 F.2d 190, 196 (5th Cir. 1978)
(finding prejudice where pretrial publicity included the violent
background of the defendant). In addition, the publicity was
contemporaneous with the start of the trial and was, therefore,
fresh in the mind of at least one panel member. Cf. United States
v. Gerald, 624 F.2d 1291, 1298 n.3 (5th Cir. 1980) (noting that
impressions and memories of any publicity had necessarily
diminished in the eight months between arraignment and trial);
Salemme v. Ristaio, 587 F.2d 81, 88 (1st Cir. 1978) (finding that
because the trial was held five years after the prejudicial
11
publicity, “[a]ny publicity surrounding the event had long since
passed from the public’s mind.”). We conclude that Bieganowski has
satisfied his burden in demonstrating that the record contains
sufficient pretrial publicity to raise a significant possibility of
prejudice.
It remains for us to determine, however, whether the voir dire
in Bieganowski’s case was sufficient for Bieganowski to identify
unqualified jurors. We have held repeatedly that “because jurors
exposed to pretrial publicity are in a poor position to determine
their own impartiality . . . district courts must make independent
determinations of the impartiality of each juror.” Beckner, 69
F.3d at 1291; United States v. Davis, 583 F.2d 190 (5th Cir. 1978).
We have also held, however, that “[w]hile examination of each juror
out of the presence of the other prospective jurors is sometimes
preferable, it is not necessarily required.” Beckner, 69 F.3d at
1292.
Once Venireperson Carr revealed that he had read the
prejudicial article, the district court did pose additional
questions to him in the presence of the entire venire.7 However,
the district court did not thereafter question the remainder of the
7
The district court asked Carr, “Does that influence you
in any way Mr. Carr? Do you understand its only a newspaper
article?” Carr responded “No, it doesn’t influence me a bit.”
The court continued: “Do you understand that, as I’ve mentioned
previously, all of the evidence is going to have to be presented
in the court? What the newspaper says has nothing to do with
this trial.” Carr responded, “Absolutely.”
12
panel members individually about the contents of the article that
they had heard Carr relate. Undoubtedly, the district court would
have been better advised to have granted Bieganowski’s request to
conduct individual voir dire, of those who indicated they had read
the particular article, outside the hearing of the panel. The
court also would have been better advised to have engaged in
further questioning of the entire venire after Carr’s statement in
the presence of the panel about the contents of the article.
Equally important, however, is Bieganowski’s failure to request
such additional questioning by the court (or otherwise). We must
ask, therefore, whether the district court’s failure to conduct
individual voir dire after Carr’s statement, in the absence of that
failure being brought to the court’s attention, so affected
Bieganowski’s substantial rights as to merit reversal. See Fed. R.
Crim. P. 52(b). We conclude that it did not.
Carr, the only panel member who had actually read the article,
did not ultimately serve on the jury (the defense did not challenge
Carr for cause but exercised a peremptory strike to remove him).8
To say that Carr never served on the jury, however, does not answer
the charge that his statements prejudiced the entire venire.
Nevertheless, three additional observations indicate that the
venire was not infected with such a degree of prejudice as to
require reversal in the present setting. First, as above
8
Nor did any of the other venire members who recalled
anything about the article serve on the jury.
13
indicated, the district court had previously strongly instructed
the venire not to consider what they had read in the papers and
that “the papers are not always correct,” and in the presence of
the venire openly instructed Carr, after his mention of what the
article stated, that “what the newspaper says has nothing to do
with this trial” (see note 7 above). And at the conclusion of voir
dire the court instructed the panel that “anything you may have
seen or heard outside the courtroom is not evidence and must be
totally disregarded. You are to decide this case solely on the
evidence presented here in court.” Second, the jury returned a
guilty verdict on only ten of the fifteen counts of the indictment
charging Bieganowski, acquitting him of the other five, indicating
that the jury methodically assessed each of the charges against
him. Third, the prosecution presented overwhelming evidence of
Bieganowski’s guilt at trial. Thus, in light of the volume of
evidence against him and Bieganowski’s failure to request
individual voir dire by the court (or otherwise) after venireperson
Carr’s statement about the article, and the district court’s
overall handling of the voir dire, we decline to hold that the
court’s failure to engage in such individual questioning amounted
to a deprivation of Bieganowski’s substantial rights.
B. Sufficiency of the Evidence
1. Lopez: Mail Fraud
Both Lopez and Goldberg challenge the sufficiency of the
14
evidence to sustain their convictions. We address both Lopez’s and
Goldberg’s arguments in turn.
Lopez was convicted on two counts of mail fraud for submitting
HCFA Forms that reflected the use of a physical-therapy device
known as a Hubbard Tank.9 Although Lopez concedes that none of Dr.
Bieganowski’s clinics ever contained a Hubbard Tank, he maintains
that the evidence failed to show either that billing for a Hubbard
Tank was a material misstatement or that he possessed the requisite
intent to commit mail fraud.
“The standard of review in assessing a challenge to the
sufficiency of the evidence in a criminal case is whether a
‘reasonable trier of fact could have found that the evidence
established guilt beyond a reasonable doubt.’” United States v.
Smith, 296 F.3d 344, 346 (5th Cir. 2002). In evaluating the
evidence, we view “all evidence and all reasonable inferences drawn
from it in the light most favorable to the government.” Id.(quoting United States v. Mergerson, 4 F.3d 337, 341 (5th Cir.
1993)). “It is not necessary that the evidence exclude every
reasonable hypothesis of innocence or be wholly inconsistent with
every conclusion except that of guilt.” United States v. Henry,
849 F.2d 1534, 1536 (5th Cir. 1988); United States v. Lechuga, 888
9
Stedman’s Medical Dictionary defines a Hubbard Tank as a
large tank, usually filled with warm water, used for therapeutic
exercises in a program of physiotherapy. See STEDMAN’S MEDICAL
DICTIONARY 1785 (27th ed. 2002).
15
F.2d 1472, 1476 (5th Cir. 1989). However, in a case depending on
circumstantial evidence if "the evidence viewed in the light most
favorable to the prosecution gives equal or nearly equal
circumstantial support to a theory of guilt and a theory of
innocence," a defendant is entitled to a judgment of acquittal.
United States v. Brown, 186 F.3d 661, 664 (5th Cir. 1999) (quoting
United States v. Schuchmann, 84 F.3d 752, 754 (5th Cir. 1996)).
Lopez was ultimately convicted on two counts of mail fraud in
violation of 18 U.S.C. § 1341. To prove mail fraud under 18 U.S.C.
§ 1341, the government must show: (1) a scheme to defraud; (2) the
use of the mails to execute the scheme; and (3) the specific intent
to defraud. United States v. Peterson, 244 F.3d 385, 389 (5th Cir.
2001). In addition, the Supreme Court has interpreted section 1341
to require that the misstatement made in the course of the scheme
to defraud be a material one. See Neder v. United States, 119
S.Ct. 1827, 1841 (1999).
Lopez argues that billing for Hubbard Tank treatment could not
have been a material misstatement since the billing rate for the
use of a Hubbard Tank was lower than the rate at which Lopez could
have billed for the treatment that he actually delivered.
Specifically, Lopez maintains that although he submitted bills with
CPT code 97220, the code for Hubbard Tank treatment, he could have
billed under the more expensive CPT code 97420, the code used for
16
supervised pool therapy or Hubbard Tank therapy with exercises.10
On closer examination, however, Lopez’s argument fails.
First, the evidence indicates that billing for Hubbard Tank therapy
includes not only a representation that the clinic possessed a
Hubbard Tank, but also the implicit representation that the Tank
was used to deliver certain professional services. The evidence
further indicated that a physical therapist may only bill for pool
therapy under CPT code 97420 where the therapy is supervised.
Ample evidence, however, was introduced to establish that such
supervision was lacking in Lopez’s clinic, and that no professional
services were being provided to Lopez’s patients while they were in
the clinic’s pools.11
Lopez’s defense that he could have billed for the services he
10
In 1994, Lopez did cease billing for Hubbard Tank
treatments and began billing instead, under CPT code 97420, for
pool therapy at the same $35 per-half-hour rate that he had
previously billed for Hubbard Tank therapy. Simply because Lopez
could have billed for the services at the same rate, however,
does not mean that the misstatement was immaterial or that the
insurance companies reimbursed for the services at the same rate
or at the same frequency. The record, for example, contains
conflicting evidence regarding whether the insurance companies,
at the time Lopez was billing for Hubbard Tank treatments,
actually reimbursed at a higher rate for pool therapy than they
did for Hubbard Tank therapy. In any event, it is unnecessary to
reconcile this conflicting evidence as the evidence also showed
that Lopez could not have billed for pool therapy without making
a further misstatement, and that billing for Hubbard Tank therapy
was itself a material misstatement.
11
Two former patients and a former assistant of Lopez’s
testified that there were three to six people in the clinic
whirlpools at a time and that they received no supervision or
physical-therapy instruction while they were in the pool.
17
provided as pool therapy under CPT code 97420, therefore, is
unsupported by the evidence. Lopez’s argument essentially amounts
to the claim that his misrepresentation was not material since, by
making an additional misrepresentation, he could have charged for
a different service at an equal or higher rate. We find this
reasoning unconvincing.
Moreover, there was at least some evidence presented that
insurance companies found the representation that the clinic
possessed a Hubbard Tank to be material regardless of any actual
charges billed. Lisa Hannusch, an expert witness from the Texas
Workers Compensation Insurance Fund, testified that in order for
the Fund to pay a bill for a Hubbard Tank, the clinic submitting
the bill must actually have a Hubbard Tank. Hannusch also
testified that had she known that there was no such tank at Lopez’s
clinic, she would not have reimbursed his bills. Finally, Hannusch
testified that a pool such as Lopez’s—a pool used to treat multiple
individuals, with no window access, no aide present, and no
physical therapist available to supervise the patients—would not be
billable as a Hubbard Tank or as pool therapy.
We also find that the evidence supported the jury’s finding
that Lopez possessed the requisite intent to defraud. Lopez was
active in selecting billing codes, he adjusted the billing codes
submitted by other employees, and at least on one occasion, he
received and annotated billing statements from insurance companies.
When viewed in the light most favorable to the verdict, we find
18
this evidence sufficient to support the conclusion that Lopez
intended to submit bills containing material misstatements to the
insurance companies for reimbursement.
After reviewing the record, therefore, we find that the
evidence is sufficient to establish both that billing for a Hubbard
Tank was a material misstatement and that Lopez possessed the
requisite intent to support his conviction for mail fraud.
2. Goldberg: Mail Fraud
Goldberg also challenges the sufficiency of the evidence to
support his convictions. Goldberg was convicted on one count of
conspiracy to commit mail fraud and one count of conspiracy to
commit money laundering in violation of 18 U.S.C. § 1956. Goldberg
makes the related arguments that the evidence failed to show that
he possessed the requisite intent to commit mail fraud, and that
since the offense of money laundering requires knowledge that the
laundered funds are the proceeds of unlawful activity, he can
therefore be found guilty neither of mail fraud nor money
laundering. In addition, Goldberg maintains that the Government
failed to prove that the funds transferred to the Cayman Islands
were the proceeds of unlawful activity.
A section 371 conspiracy comprises the following elements: (1)
an agreement between the defendant and a co-conspirator to violate
a law of the United States; (2) an overt act by one conspirator in
furtherance of the conspiracy; and (3) the specific intent to
19
further an unlawful objective of the conspiracy. United States v.
Sharpe, 193 F.3d 852, 863 (5th Cir. 1999). The requirement of an
agreement is the central element and the agreement, therefore, must
be arrived at knowingly. United States v. Holcomb, 797 F.2d 1320,
1327 (5th Cir. 1986); United States v. Ballard, 663 F.2d 534, 543
(5th Cir. 1981). “[M]ere association with those involved in a
criminal venture is insufficient to prove participation in a
conspiracy.” Id.; United States v. Alvarez, 610 F.2d 1250, 1255
(5th Cir. 1980), aff’d 625 F.2d 1196 (5th Cir. 1980) (en banc).
The existence of an agreement, however, may be proved by
circumstantial evidence, see Holcomb, 797 F.2d at 1327, and even
minor participation in the conspiracy may serve as the basis for a
conviction. United States v. Prieto-Tejas, 779 F.2d 1098, 1103
(5th Cir. 1986). Moreover, in a conspiracy case: “[a]n agreement
may be inferred from ‘concert of action,’” “[v]oluntary
participation may be inferred from ‘a collocation of
circumstances,’” and “[k]nowledge may be inferred from ‘surrounding
circumstances.’” United States v. Lechuga, 888 F.2d 1472, 1476-77
(5th Cir. 1989).
Inasmuch as the circumstantial evidence in this case tends to
prove that Goldberg knew that Dr. Bieganowski’s clinics were
engaged in fraudulent billing practices, we conclude that there was
sufficient evidence to establish Goldberg’s participation in the
conspiracy. Goldberg’s affiliation with Dr. Bieganowski’s practice
20
far exceeded the limits of an ordinary professional relationship,
and involved him in nearly every aspect of the operation of the
clinics. He spent almost every afternoon at Dr. Bieganowski’s
clinic and attended multiple meetings with the clinic staff,
including meetings addressing such mundane administrative matters
as employee dress codes. The evidence supports the conclusion that
he was the de facto business manager of Dr. Bieganowski’s practice,
with day to day supervision of and extensive familiarity with it.
The fraudulent billing practices were widespread, pervasive and
virtually continuous throughout the clinics. From an internal
perspective, they were neither concealed nor secret.
A portion of the Government’s conspiracy case also involved
allegations that Dr. Bieganowski’s clinics knowingly obtained
authorization for, provided, and billed for unnecessary services,
including an expensive procedure known as a facet block injection.
Although Goldberg maintains on appeal that he was not involved in
the mechanics of creating bills or demanding payment, the record
indicates that Goldberg was involved with efforts to obtain
certification from insurance companies for these treatments. For
example, he closely monitored those employees who were responsible
for obtaining precertification for facet block injections, and he
directed that the precertification quota for injections be
increased, first from ten to fifteen patients per day, and later to
twenty patients per day. An employee responsible for the
21
precertification of injections, Rene Moreno, testified that when
she told Goldberg that patients were reluctant to receive the
injections, Goldberg instructed her to do whatever was necessary to
get the patients to the hospital. Although this evidence does not
prove that Goldberg knew that any particular, single injection was
not medically necessary, or that a particular precertification
request contained fraudulent representations, it illustrates the
extent to which Goldberg was involved in the preparation and
submission of bills. More important, it, together with the other
evidence, tends to support an inference that Goldberg knew that
some bills contained fraudulent representations.
The record also indicates that Goldberg was closely involved
with Dr. Bieganowski’s solicitation efforts. He not only attended
meetings with Robert Griego, Bieganowski’s telemarketer, but also
reviewed the script that Griego used to solicit new patients.
Goldberg knew that Griego told reluctant patients that they could
increase their automobile-insurance settlements by generating
higher medical bills, and he knew that Griego advised patients to
obtain medical examinations even when those same patients told
Griego that they were not injured. More important, when Griego
suggested to Goldberg that Griego might have to begin staging
accidents in order to meet his quota, Goldberg simply responded:
“Well, you know, whatever you have to do.”
Also damaging to Goldberg’s protestations of ignorance was the
testimony of Rosa Cordova and Lucy Campos. Campos testified that
22
she had given Goldberg a copy of the Medical Fee Guidelines, a
manual that contained the various CPT billing codes, further
undermining Goldberg’s claim that he was not involved with creating
bills. Cordova, an employee in the precertification department,
testified that Dr. Bieganowski had directed her to generate false
fee tickets and to submit fee tickets even when patients had left
without being treated. When asked about how much Goldberg knew
about her activities, Cordova replied, “[Goldberg] knew exactly
what my job was and he wanted to make sure that I was doing it.”
Further, Goldberg’s extensive efforts in setting up and
overseeing an elaborate virtual labyrinth of bank accounts for Dr.
Bieganowski’s clinics, which concealed both the clinics’ and Dr.
Bieganowski’s relationship to the accounts and the ultimate
disposition of the funds, is plainly suggestive of guilty
knowledge. Goldberg correctly points out that each piece of
evidence against him, viewed separately, may admit of an innocent
explanation. That, however, is not determinative. As we observed
in Lechuga, 888 F.2d at 1476: “the United States Supreme Court
remarked long ago, ‘[c]ircumstances altogether inconclusive, if
separately considered, may, by their number and joint operation,
especially when corroborated by moral coincidences, be sufficient
to constitute conclusive proof.’ Coggeshall v. United States (the
Slavers, Reindeer), 69 U.S. (2 Wall.) 383, 17 L.Ed. 911, 914-15
(1865).” Thus, although no individual piece of evidence against
23
Goldberg is dispositive, taken together the evidence as a whole
suffices to establish an adequately clear picture of Goldberg’s
role in the conspiracy. The cumulative effect of this evidence is
sufficient to support the inference that Goldberg was aware of the
fraudulent billing practices, and we therefore decline to hold that
the evidence was insufficient to support Goldberg’s conviction for
conspiracy to commit mail fraud.
3. Goldberg: Money Laundering
For his role in the conspiracy, Goldberg was also convicted of
conspiracy to money launder in violation of 18 U.S.C. § 1956(h).
The substantive offense of money laundering requires that the
defendant knew that the funds in question represented the proceeds
of unlawful activity. See United States v. Burns, 162 F.3d 840,
847 (5th Cir. 1998). Goldberg maintains that since he did not know
that Bieganowski’s clinics were submitting fraudulent claims, he
could not have known that the funds deposited into the various
clinic accounts represented the proceeds of unlawful activity, and
that he therefore cannot be found guilty of money laundering.
Because we find that the evidence supports the conclusion that
Goldberg was aware that the reimbursements from the insurance
companies represented the proceeds of fraudulent billing practices,
see section II(B)(2), supra, we reject this argument.
Finally, we address Goldberg’s claim that the Government
failed to prove that the funds transferred to the Cayman Islands in
24
fact represented the proceeds of unlawful activity. In this case,
the indictment charged a conspiracy to commit two types of money
laundering: (1) engaging in a financial transaction designed to
conceal the source or control of the proceeds of unlawful activity
in violation of section 1956(a)(1)(B)(i), and (2) transporting or
attempting to transport funds from a place in the United States to
a place outside the United States in order to conceal the source or
control of the proceeds of unlawful activity, in violation of
section 1956(a)(2)(B)(i).
The offense of money laundering under section
1956(a)(1)(B)(i), requires that the government prove that the
defendant: (1) conducted or attempted to conduct a financial
transaction, (2) that the defendant knew involved the proceeds of
unlawful activity, and (3) that the defendant knew was designed to
conceal or disguise the nature, location, source, ownership, or
control of the proceeds of the unlawful activity. 18 U.S.C. §
1956(a)(1)(B)(i); United States v. Burns, 162 F.3d 840, 847 (5th
Cir. 1998), cert. denied, August v. United States, 119 S.Ct. 1477(1999). An offense under section 1956(a)(2)(B)(i) is almost
identical, with the exception that the transaction in question must
be from a place in the United Sates to a place outside the United
States. See 18 U.S.C.A. § 1956(a)(2)(B)(i).
25
Agent Hivic of the IRS testified that between November, 1994,12
and January, 1997, over six million dollars of insurance company
reimbursements were deposited in the various clinics’ accounts.
All of that six million dollars was then transferred from the
clinics’ accounts at the Bank of the West to the Servicio account,
also located at the Bank of the West. Of that six million dollars,
a little over two million was eventually transferred to the Cayman
Islands.
Goldberg’s argument proceeds from the premise that the
Government failed to prove that all of Dr. Bieganowski’s billings
were fraudulent. If some billings were legitimate, then at least
some of the money that was deposited into the clinic accounts at
the Bank of the West and then consolidated in the Servicio account
was also legitimate. Consequently, Goldberg maintains that the
Government never established that Bieganowski earned less than two
million dollars through legitimate billing and that the Government
cannot, therefore, prove that the funds transferred to the Cayman
Islands were the proceeds of fraudulent activity. The government
maintains that it produced sufficient evidence that all the funds
deposited to the Servicio account–and certainly more than four
million dollars thereof–were the product of fraudulent billings.
The government also argues that if some funds in the Servicio
12
November, 1994, represents the date on which Goldberg
consolidated Dr. Bieganowski’s billing operations in Servicio, a
Mexican corporation located in Ciudad Juarez, Mexico.
26
account were legitimate their commingling with illegitimate funds
there allows treatment of the Cayman Island funds as illegitimate.
Accepting, arguendo, Goldberg’s position as valid—that the
Government failed to establish that the funds transferred to the
Cayman Islands were illegitimate—this failure does not undermine
Goldberg’s conviction. The Government charged Goldberg with a
conspiracy to violate both section 1956(a)(1)(B)(i) and
(a)(2)(B)(i), and the jury charge authorized conviction upon either
theory.13 Goldberg’s argument concerning the funds transferred to
the Cayman Islands, if valid, would only undermines a conviction
based on a conspiracy to commit money laundering under section
1956(a)(2)(B)(i), laundering by transferring illegitimate funds out
of the United States. The evidence to support a conviction for
section 1956(a)(1)(B)(i), on the other hand, was more than
sufficient.
The indictment and the jury charge include a series of overt
acts tracing the entire money laundering operation, including the
transfer of funds involving the proceeds of unlawful activity from
the clinics’ accounts at the Bank of the West to Servicio’s bank
account. That transfer to Servicio alone satisfies the
requirements of section 1956(a)(1)(B)(i). The entire six million
dollars deposited into the clinics’ accounts was thereafter
transferred to the Servicio account. Therefore, even assuming that
13
No objection to the change on this basis has been raised
on appeal.
27
the Government only proved that a portion of those six million
dollars represented the proceeds of fraudulent activity, the
prosecution nevertheless satisfied its burden of demonstrating that
the transfer involved the proceeds of specified unlawful activity.
See 18 U.S.C. § 1956(a)(1). There is also little doubt that the
transfers from the clinics’ accounts to the Servicio account were
designed to conceal the source of the unlawful funds. A casual
observer would not have immediately linked the contents of the
Servicio account to Bieganowski as neither Dr. Bieganowski nor
Goldberg were listed as shareholders (or officers or directors or
authorized agents or account signatories) of Servicio. See United
States v. Willey, 57 F.3d 1374, 1387–89 (5th Cir. 1995) (noting
that a transfer from one third party to another supports an
inference of a design to conceal).
Because the jury could have convicted Goldberg for conspiracy
to violate 18 U.S.C. § 1956(a)(1)(B)(i), and because the evidence
supports a finding that the transfers from the clinic’s accounts to
Servicio involved the proceeds of unlawful activity and were
designed to conceal the source of those proceeds, we hold that the
evidence is adequate to sustain Goldberg’s conviction for
conspiracy to money launder.
C. Speedy Trial
Lopez argues that the indictment should have been dismissed
for undue delay under the Speedy Trial Act, 18 U.S.C. §§ 3161–3174,
28
and that the eventual delay between his arrest and trial violated
his right to a speedy trial under the Sixth Amendment.14 We turn
first to the Speedy Trial Act claim. We review factual findings
under the Speedy Trial Act (the Act) for clear error, and legal
conclusions de novo. United States v. Narviz-Guerra, 148 F.3d 530,
538 (5th Cir. 1998).
The Act requires that a defendant be brought to trial “within
14
Goldberg, in his reply brief, purports to generally
adopt all issues raised by other appellants to the extent not
fact specific or inconsistent with issues presented in his brief.
It is not entirely clear that he may do so. Federal Rule of
Appellate Procedure 28(i) provides that
“[i]n cases involving more than one appellant or
appellee, including consolidated cases, any number of
appellants or appellees may join in a brief, and any
party may adopt by reference a part of another’s brief.
Parties may also join in reply briefs.” FED. R. APP. P.
28 (i).
This Circuit has previously permitted a party to adopt an
argument by reference in a reply brief, but did so under the
discretion granted by Federal Rule of Appellate Procedure 2, and
under the reasoning that it would be “anomalous to reverse some
convictions and not others when all defendants suffer from the
same error.” See United States v. Gray, 626 F.2d 494, 497 (5th
Cir. 1980). No case in this circuit directly addresses the issue
of whether Rule 28(i) permits a party to adopt an issue in a
reply brief. The Second Circuit has rejected this position,
holding that where an issue is not raised on appeal in an initial
brief, it is waived unless it would result in substantial
injustice. NLRB v. Star Color Plate Service, 843 F.2d 1507, 1501
n.3 (2d Cir. 1988). The Sixth Circuit, on the other hand,
appears to allow this practice, but does not clarify whether it
is a practice grounded in Rule 28(i). See United States v. King,
272 F.3d 366, 371 (6th Cir. 2001).
Since we affirm all the defendant’s convictions, permitting
Goldberg to adopt his co-appellant’s arguments would make no
difference in the outcome of his case and would not create the
anomaly that motivated us in Gray. We, therefore, find it
unnecessary to resolve this issue today.
29
seventy days from the filing date (and making public) of the
information or indictment, or from the date the defendant has
appeared before a judicial officer of the court in which such
charge is pending, whichever date last occurs.” 18 U.S.C. §
3161(c)(1). Where a defendant is not brought to trial within this
period, the indictment must be dismissed. Id. § 3161(a)(2).
Under section 3161(h), however, certain delays are excluded
from the calculation of the seventy-day limit, including
“[a]ny period of delay resulting from a continuance
granted by any judge on his own motion or at the request
of the defendant or his counsel or at the request of the
attorney for the Government, if the judge granted such
continuance on the basis of his findings that the ends of
justice served by taking such action outweigh the best
interest of the public and the defendant in a speedy
trial.” Id. § 3161(h)(8)(A).
Section 3161(h) also excludes a “reasonable period of delay when
the defendant is joined for trial with a codefendant as to whom the
time for trial has not run and no motion for severance has been
granted.” Id. § 3161(h)(7). Thus, the Act excludes from the
calculation of the seventy-day limit any delay resulting from the
proper grant of a continuance requested by a co-defendant. United
States v. Bermea, 30 F.3d 1539, 1567 (5th Cir. 1994) (“[T]he
excludable delay of one defendant may be attributed to all
defendants.”).
It is undisputed that the seventy-day period in the case sub
judice began on August 5, 1998, the date of the appellants’ arrest
and arraignment, and that the trial began one-and-a-half years
30
later on March 13, 2000. From August 5, 1998, the date of the
appellants’ first appearance, until October 2, 1998, the trial
court found that only twenty-three days expired on the speedy trial
clock. Lopez does not dispute this calculation. Lopez also
concedes that the entire time from October 2, 1998, until the first
trial setting for February 22, 1999, was properly excluded from the
seventy-day limit. Only at issue on appeal, therefore, are three
orders continuing the trial past February 22, 1999. The first
continuance, granted on February 11, 1999, and followed by a
written order issued on February 12, 1999, continued the trial
until August 23, 1999. The second issued on August 12, 1999, when
the district court set the case for trial on November 1, 1999; the
third was granted on September 2, 1999, memorialized in an order on
October 5, 1999, and set the trial for March 13, 2000. We examine
each continuance in turn. Although the Act excludes from the
seventy-day limit the period of a continuance, such period is only
excluded where the court “sets forth, in the record of the case,
either orally or in writing, its reasons for finding that the ends
of justice served by the granting of such continuance outweigh the
best interests of the public and the defendant in a speedy trial.”
18 U.S.C. § 3161(h)(8)(A). Lopez argues on appeal that the
district court failed, on each of the three occasions listed above,
to engage in an ends-of-justice analysis or to state adequately its
reasons for granting the three continuances.
Lopez’s assertion with respect to the February 11, 1999,
31
continuance is patently unsound. The district court’s February
12th order clearly satisfied the requirement of section 1361(h)(8)
that the court articulate reasons recognized under the Act for
granting a continuance. Section 1361(h)(8)(B) sets forth a number
of grounds that a court shall consider in granting a continuance,
including “[w]hether the case is so unusual or so complex . . .
that it is unreasonable to expect adequate preparation . . . within
the time limits established by this section.” Id. §
3161(h)(8)(b)(ii). The district court’s order not only explicitly
referenced subsections 3161(h)(8)(B)(i) and (ii), but also
described the case as “unusual and complex.” Moreover, the order
stressed that because of Dr. Bieganowski’s illness and the high
volume of discovery, the continuance was necessary to permit
Bieganowski to assist his attorney to prepare for trial.15
Lopez’s claim that the district court failed to perform the
15
The district court, on a number of occasions, designated
this case as complex. That designation, and the decision to
grant a continuance based on the volume of discovery, are
consistent with cases interpreting section 3161(h)(8). See,
e.g., United States v. Dota, 33 F.3d 1179, 1183 (9th Cir. 1994)
(finding that “[a]n ends-of-justice continuance may be justified
on grounds that one side needs more time to prepare for trial”);
United States v. Wellington, 754 F.2d 1457, 1467 (9th Cir. 1985)
(upholding the complexity of a mail fraud prosecution as a proper
ground for the granting of a continuance); United States v.
Chalkias, 971 F.2d 1206, 1211 (6th Cir. 1992) (upholding the
grant of a continuance based on the complexity of an interstate
cocaine conspiracy); United States v. Thomas, 774 F.2d 807, 811
(7th Cir. 1985) (upholding an ends-of-justice continuance based
on the complexity of a fraud case with numerous defendants and
thousands of financial documents).
32
required ends-of-justice analysis on August 12, 1999, when it
continued the case until November 1, 1999, however, has some
arguable merit. The record of the August 12th hearing contains
reference neither to the ends-of-justice nor to the complexity of
the case. The district court, however, had previously designated
the case as complex, and the record of the August 12th hearing
contains repeated reference to both the volume of discovery and the
numerous logistical constraints on Dr. Bieganowski’s ability to
cooperate in his defense.
We decline to decide, however, whether the August 12th
continuance satisfied the requirements of the Act. Even if the
August 12th order failed to stop the clock, the September 2, 1999,
continuance did. In its order of October 5, 1999, memorializing
the September 2, 1999, continuance, the district court found, after
“giving all due consideration to the interest of the public and the
defendants to a speedy trial and to the Constitutional rights of
[the] defendants . . . that the ends of justice are served by
continuing the . . . action.” In addition, the district court in
that same order again entered a finding that the case was complex
due to the number of defendants and the nature of the prosecution.16
Between August 23, 1999, the date for which trial was set in the
February 12th order, and September 2, 1999, only another ten days
16
This order appears at page 662 of Volume 3 of the record
on appeal. Though it arguably was filed in the wrong volume (or
not in all the volumes it should have been) of the record on
appeal it is properly before us.
33
expired on the speedy trial clock, bringing the total number of
expired days to thirty-three, and well below the seventy days
mandated by the Act.
Finally, Lopez presents two additional arguments in support of
his Speedy Trial Act claim. First, Lopez maintains that the
district court’s October 5, 1999, order does not constitute a
contemporaneous finding as required by the Act. Second, he
contends that the delay of the trial until March 13, 2000, even if
supported by the requisite findings, was not reasonable. We reject
both of these arguments.
In arguing that the Speedy Trial Act requires contemporaneous
findings to support an ends-of-justice continuance, Lopez
mistakenly relies on language from this Court’s decision in United
States v. Blackwell, 12 F.3d 44, 48 (5th Cir. 1994) (“In the
absence of contemporaneous, articulated on-the-record findings for
extending the time for trial past seventy days . . . Defendant-
Appellant is entitled to have his case dismissed.”). The word
“contemporaneous” in Blackwell upon which Lopez relies, however,
was dicta. See United States v. Jones, 56 F.3d 581, 585 n.9 (5th
Cir. 1995). Moreover, we declined in Jones to elevate Blackwell’s
statement about contemporaneity to the status of a rule of law,
noting instead that “virtually every Circuit has held that the
entry of findings after granting the continuance is not reversible
error so long as the findings were not actually made after the
34
fact.” Id. Today, we adopt the position toward which we moved in
Jones and reject the Blackwell dicta. Rather than contemporaneous
findings, section 3161 merely requires that a district court enter
on the record, at some point (presumably prior to trial), the
necessary findings to support an ends-of-justice continuance. Id.The only requirements for such an order are that the order
memorializing the continuance indicate when the motion was granted,
and that the reasons stated be and can be fairly understood as
being those that actually motivated the court at the time it
granted the continuance. Id. Those conditions are clearly met
here.17
Finally, turning to the reasonableness of the delay, we first
note that the nineteen-month delay between Lopez’s arrest and trial
was substantial. We decline to hold, however, that such a delay
was unreasonable under the circumstances.
Section 3161(h)(7) provides for the exclusion from the
seventy-day speedy trial period of a “reasonable period of delay
when the defendant is joined for trial with a codefendant as to
whom the time for trial has not run and no motion for severance
has been granted.” 18 U.S.C. § 3161(h)(7). Given the fact-
intensive nature of the reasonableness inquiry, we review
17
We do not address whether some extreme delay coupled
with special circumstances strongly suggesting that the reasons
stated later are not really those that motivated the continuance
might produce a different result. Nothing of that kind is
present here.
35
subsection (h)(7) exclusions on a case-by-case basis, United States
v. Franklin, 148 F.3d 451, 457 (5th Cir. 1998), and examine both
the totality of the circumstances of the case prior to trial and
the “actual prejudice suffered by the appellant as a result of the
subsection (h)(7) exclusion.” Id. In examining the totality of
the circumstances of the case, our inquiry focuses on the necessity
of the delay, giving proper consideration “to the purpose behind
subsection (h)(7)—‘accommodating the efficient use of prosecutorial
and judicial resources in trying multiple defendants in a single
trial.’” Id. In weighing prejudice, on the other hand, “relevant
considerations include whether the delay impaired the appellant’s
ability to defend himself or resulted in excessive pretrial
incarceration.” Franklin, 148 F.3d at 457.
Neither prong of our subsection (h)(7) analysis supports the
conclusion that Lopez’s delay was unreasonable. The trial in this
case followed almost four years of investigative work, involved
thousands of medical and financial documents, and lasted nearly two
months. To have tried Lopez separately would necessarily have
involved a substantial additional expenditure of judicial and
prosecutorial resources. Nor does the record indicate that the
delay in any way impaired Lopez’s ability to defend himself.
Finally, the delay did not result in excessive incarceration as
Lopez remained free on bond during the pendency of his trial.
In addition to his Speedy Trial Act claim, Lopez also alleges
36
a violation of his Sixth Amendment right to a speedy trial. “The
Sixth Amendment guarantees that ‘in all criminal prosecutions, the
accused shall enjoy the right to a speedy . . . trial.’” United
States v. Neal, 27 F.3d 1035, 1042 (5th Cir. 1994). It will be the
unusual case, however, where the time limits under the Speedy Trial
Act have been satisfied but the right to a speedy trial under the
Sixth Amendment has been violated. See United States v. O’Dell,
247 F.3d 655, 666–67 (6th Cir. 2001); United States v. Munoz-Amado,
182 F.3d 57, 61 (1st Cir. 1999); United States v. Nance, 666 F.2d
353, 360 (9th Cir. 1982). Lopez’s case is no exception.
In analyzing a Sixth Amendment speedy trial claim, we balance,
among other relevant circumstances, (1) the length of the delay;
(2) the reason for the delay; (3) whether the defendant timely
asserted his right; and (4) any prejudice resulting to the
defendant because of the delay. Barker v. Wingo, 92 S.Ct. 2182,
2192–93 (1972). Here, the Government concedes that the delay was
substantial enough to trigger the remaining Barker factors, and
that Lopez timely asserted his rights. Our focus, therefore, must
be on the remaining two factors of the Barker test.
In assessing the reasons for the delay, we observe at the
outset that “pretrial delay is often both inevitable and wholly
justifiable.” Doggett v. United States, 112 S.Ct. 2686, 2693
(1992). We also recognize that the extent to which this
observation rings true will necessarily vary with the complexity of
37
the case. Thus, “the delay that can be tolerated for an ordinary
street crime is considerably less than for a serious, complex
conspiracy charge” such as the one in which Lopez found himself
enmeshed. Barker, 92 S.Ct. at 2192–93. This was a complex case,
and we hesitate to say that the reasons for the delay were
unreasonable. The volume of discovery and the number of defendants
involved justified some delay, as did Dr. Bieganowski’s illness and
consequent inability to assist in his defense. Moreover, Lopez has
not demonstrated that the delay was occasioned by the prosecution,
or that the “government . . . intentionally held back in its
prosecution . . . to gain some impermissible advantage at trial.”
Neal, 27 F.3d at 1043 (quoting Doggett v. United States, 112 S.Ct.
2686, 2693 (1992)).
In the final step of the Barker calculus, we examine the
degree of prejudice that attached to Lopez because of the delay and
find that insofar as Lopez fails to make a convincing show of
prejudice, this remaining Barker factor also weighs heavily against
him. Lopez argues that as a result of the delay, he suffered
“psychological and economic prejudice,” and that the Government
gained additional time for its expert to review certain documents.
During the period of the delay the Government did uncover
additional documentary evidence that supported the charges against
Lopez. Specifically, the Government located additional bills for
Hubbard Tank treatments that included Lopez’s handwritten
38
signature. Lopez, however, was acquitted on two Hubbard Tank
charges and does not demonstrate that these newly discovered
billing records were the ones used to support the charges for which
he was ultimately convicted. Moreover, since the Government
already had documentary evidence of numerous bills that bore
Lopez’s signature stamp, it is difficult to see how these
additional documents resulted in prejudice. Lopez’s claims of
psychological and economic strain are also insufficient to
establish the prejudice necessary to find a violation of his Sixth
Amendment rights. The Sixth Amendment is concerned with “reducing
the ‘anxiety and concern of the accused.’” Cowart v. Hargett, 16
F.3d 642, 647 (5th Cir. 1994). “Anxiety about one’s reputation and
private life during pretrial delay, however, will not alone suffice
to warrant a reversal of a conviction.” Id. Consequently, we find
that Lopez did not suffer a degree of prejudice sufficient for us
to find a violation of his Sixth Amendment rights.18
D. Sufficiency of the Indictment
Lopez also raises a challenge to the sufficiency of the
indictment, arguing that those counts of the indictment charging
him with representing that the clinic possessed a Hubbard Tank were
18
We note that it would be a strange (albeit perhaps not
impossible) result were we to find that prejudice existed under
the Sixth Amendment speedy trial analysis where we had already
concluded that a delay was reasonable under subsection (h)(7) of
the Speedy Trial Act.
39
insufficient to support an inference of materiality.19
We review the sufficiency of an indictment de novo. United
States v. Fitzgerald, 89 F.3d 218, 221 (5th Cir. 1996). To be
sufficient, an indictment must conform to minimal constitutional
standards, United States v. Threadgill, 172 F.3d 357, 373 (5th Cir.
1999), standards that are met where the indictment alleges every
element of the crime charged and in such a way “as to enable the
accused to prepare his defense and to allow the accused to invoke
the double jeopardy clause in any subsequent proceeding.” Id.(quoting United States v. Webb, 747 F.2d 278, 284 (5th Cir. 1984)).
Where the government charges a defendant with mail fraud, it
must prove the materiality of the fraudulent statement as an
element of the offense. See Neder v. United States, 119 S.Ct.
1827, 1841 (1999). The failure to employ the word “material” in
the language of the indictment, however, is not fatal. See United
States v. Richards, 204 F.3d 177, 191 (5th Cir. 2000) (“In
determining the sufficiency of the indictment, ‘[t]he law does not
compel a ritual of words.’” (quoting United States v. Wilson, 884
F.2d 174, 179 (5th Cir. 1978))). Instead, an allegation of fraud
in an indictment will be sufficient so long as “the facts alleged
in the indictment warrant an inference that the false statement is
19
Bieganowski, by way of adopting Lopez’s arguments
pursuant to Federal Rule of Civil Procedure 28(i), raises an
identical challenge to the sufficiency of the indictment. We
reject that challenge for the same reasons that we reject
Lopez’s.
40
material.” United States v. McGough, 510 F.2d 598, 602 (5th Cir.
1975).
Lopez’s argument here largely mirrors his challenge to the
sufficiency of the evidence to support his conviction.20 The
misstatement charged against Lopez in this case was the submission
of bills representing that patients received physical therapy in a
Hubbard Tank, when, in fact, the clinic never possessed such a
device.21 Lopez argues that because the billing rate for the
therapy that was actually provided was the same as the billing rate
that would have been charged had the therapy been provided in a
Hubbard Tank, the misstatement that a Hubbard Tank was used could
not have been material. His real argument, however, is that at
trial the Government did not focus on the false statement alleged
in the indictment, that the clinic employed a Hubbard Tank, but
instead argued that the bills were fraudulent because they
misstated the degree of supervision the patients were given while
in therapy.
20
See section II(B)(1), supra.
21
The relevant language in Counts Two and Five of the
indictment reads:
“Defendants knowingly devised and attempted to devise a
scheme and artifice to defraud . . . [and] did
knowingly cause to be sent, delivered and moved by the
United States Postal Service, according to the
directions thereon, a HCFA 1500s falsely and
fraudulently representing . . . that a patient, G.H.,
had received physical therapy using a Hubbard Tank, . .
. when the Defendant knew that no Hubbard tank was
used.”
41
The flaw in Lopez’s argument lies in his failure to
distinguish between a challenge to the sufficiency of the
indictment and a challenge to the evidence produced at trial. See,
e.g., United States v. McGough, 510 F.2d 598, 603 (5th Cir. 1975)
(holding that an indictment “need only allege materiality ‘in
substance,’” and warning against the failure to “draw a clear
distinction between an allegation of materiality and proof of
materiality.”). In determining whether an allegation of
materiality in an indictment is sufficient, the proper inquiry is
whether the allegation is “potentially capable of being proved
material by the government at trial,” and whether the allegation is
sufficient to support an inference of materiality. Id. at 602.
Accordingly, it would be inappropriate to test the validity of the
indictment from the perspective of the evidence eventually produced
at trial. That the Government produced proof demonstrating that
Lopez did not provide individualized supervision to his patients
has no bearing on the issue of whether the indictment provided
Lopez with notice that the Government intended to, and eventually
did, prove that the bills submitted for Hubbard Tank therapy were
fraudulent.
The allegation in the indictment that Lopez committed fraud by
falsely describing his services as including the use of a Hubbard
Tank formed a sufficient basis from which Lopez could infer that
the Government would attempt to prove that such a misstatement was
42
material. The indictment, therefore, satisfied minimal
constitutional standards and we find Lopez’s argument to be without
merit.
E. Constructive Amendment
Lopez also maintains that the district court permitted the
Government to constructively amend the indictment. Lopez first
raised this issue in a Rule 34 motion for Arrest of Judgment.22 The
district court ruled that Lopez’s claim was not cognizable under
Rule 34. Lopez attempts to bring this claim within the purview of
Rule 34 by casting the alleged amendment as a jurisdictional
defect. Since the Supreme Court’s decision in United States v.
Cotton, however, it is clear that “defects in an indictment do not
deprive a court of its power to adjudicate a case.” 122 S.Ct 1781,
1785 (2002), overruling Ex parte Bain, 7 S.Ct. 781 (1887); see also
United States v. Longoria, 298 F.3d 367, 372 (5th Cir. 2002). A
claim of constructive amendment, then, is not the equivalent of a
charge of a jurisdictional defect. Lopez, therefore, did not
properly raise his charge of constructive amendment on motion to
the district court, but instead raises it for the first time on
appeal.
Where a claim of constructive amendment is raised for the
22
Rule 34 provides: “The court on motion of a defendant
shall arrest judgment if the indictment or information does not
charge an offense or if the court was without jurisdiction of the
offense charged.” FED. R. CRIM. P. 34.
43
first time on appeal, review is for plain error. United States v.
Delgado, 256 F.3d 264, 278 (5th Cir. 2001). Accordingly, a
defendant must show: “(1) an error; (2) that is clear or plain; (3)
that affects the defendant’s substantial rights; and (4) that
seriously affects the fairness, integrity or public reputation of
judicial proceedings.” United States v. Longoria, 298 F.3d 367,
371 (5th Cir. 2002).
There is some indication that the Government shifted its focus
at trial from the actual billing code numbers for Hubbard Tank
treatment to the lack of individual supervision afforded patients
while in the clinic’s pool. This shift in emphasis, however, does
not necessarily mean that there was a constructive amendment to the
indictment. As discussed above, at least some evidence at trial
indicated that billing for a Hubbard Tank included the implicit
representation that patients were supervised. Proof of the absence
of supervision, therefore, was relevant to the Government’s claim
that billing for a Hubbard Tank was a material misrepresentation.
The Government’s closing argument also indicates that the evidence
regarding the lack of supervision was introduced not as part of a
shift in the Government’s theory, but in order to negate Lopez’s
claim of mistake. Given that there were two plausible bases, other
than a constructive amendment, for introducing evidence regarding
lack of supervision, we hold that the district court’s denial of
Lopez’s motion for arrest of judgment did not amount to plain
44
error.23
F. Severance
Lopez next argues that the district court erred when it denied
his motion for a severance.24 We review a denial of a motion to
sever for an abuse of discretion. United States v. Cortinas, 142
F.3d 242, 247 (5th Cir. 1998).
We also review Lopez’s argument with an eye to two general
principles, namely, that a court should order separate trials only
where “[i]t appears that a defendant . . . is prejudiced by a
joinder of offenses,” FED. R. CRIM. P. 14, and second, that “persons
jointly indicted in a conspiracy case should generally be tried
together.” United States v. Scott, 795 F.2d 1245, 1250 (5th Cir.
1986). Lopez fails to make the requisite showing.
Lopez looks for the necessary prejudice in his case in the
volume of the evidence presented against Dr. Bieganowski and the
subsequent “spillover” effect of that evidence on the jury.
Lopez’s spillover argument is unconvincing. A spillover effect, by
itself, is an insufficient predicate for a motion to sever. See
United States v. Williams, 809 F.2d 1072, 1085 (5th Cir. 1987)
23
We also observe that Lopez does not raise on appeal any
complaint that the jury charge authorized conviction on a basis
not charged in the indictment and did not make any such objection
to the charge below.
24
Goldberg also seeks in his reply brief to adopt Lopez’s
challenge to the district court’s denial of a severance. See
note 14, supra.
45
(“[A]dditional evidence adduced at joint trials does not constitute
compelling prejudice by itself.”). Nor does Lopez’s reliance on
United States v. Cortinas lend much support to his attempt to
demonstrate prejudice. Cortinas involved a drug conspiracy in
which the evidence against some of the co-conspirators included
evidence of the activities of a violent criminal gang. 142 F.3d
242, 248 (5th Cir. 1998). Prejudice was found in that case because
the defendants were never associated with the gang, and because the
evidence of the gang’s activities was “highly inflammatory” and
included evidence of a shooting. Id. Lopez’s situation is
different. The evidence against Dr. Bieganowski was not as
inflammatory as evidence of a shooting, and Lopez was undeniably a
longtime associate of Dr. Bieganowski’s.
Finally, even if the volume and nature of the evidence against
Dr. Bieganowski had the potential to cause Lopez some prejudice,
Lopez fails to show “that he did not receive adequate protection .
. . through the court’s instructions to the jury.” United States
v. Posada-Rios, 158 F.3d 832, 863 (5th Cir. 1998). The district
court instructed the jury that
“A separate crime is charged against one or more of the
defendants in each count of the indictment. Each count,
and the evidence pertaining to it, should be considered
separately. The case of each defendant should be
considered separately and individually. The fact that
you may find one or more of the accused guilty or not
guilty of any of the crimes charge[d] should not control
your verdict as to any of [sic] other crime or any other
defendant. You must give separate consideration to the
evidence as to each defendant.”
46
We have previously stated that because a jury is presumed to follow
the court’s instructions, instructions such as those given here are
generally sufficient to cure the possibility of prejudice. See
Posada-Rios, 158 F.3d 863–64. We also note that Lopez was charged
in five counts of the indictment and was acquitted on three, namely
count one, in which he, Bieganowski and others were charged with
conspiracy to commit mail fraud (Bieganowski was convicted on this
count), and counts three and four (mail fraud counts in which he
was charged with Bieganowski, who was also acquitted on those
counts). He was convicted on counts two and five (mail fraud
counts in which he was jointly charged with Bieganowski, who was
also convicted on those counts). Where, as here, a jury returns a
verdict of not guilty on some counts and as to some defendants,
“the presumption that the jury followed the court’s instructions is
even stronger.” Id. at 864.
We therefore find that Lopez has failed not only to show
prejudice, but also to demonstrate that the district court’s
instructions were insufficient to protect him from possible
prejudice. Consequently, we reject Lopez’s claim that the district
court committed reversible error when it denied his motion to
sever.
G. Deliberate Ignorance
Dr. Bieganowski claims that the district court erred in
47
including a deliberate ignorance instruction25 in the jury charge.26
“We review jury instructions to determine ‘whether the court’s
charge as a whole, is a correct statement of the law and whether it
clearly instructs jurors as to the principles of law applicable to
the factual issues confronting them.’” United States v. Faulkner,
17 F.3d 745, 766 (5th Cir. 1994). “The charge must be both legally
accurate and factually supportable.” United States v. Cartwright,
6 F.3d 294, 300 (5th Cir. 1993).
Dr. Bieganowski does not challenge the deliberate ignorance
instruction as an incorrect statement of law. Rather, drawing on
language from Faulkner, he contends that the evidence adduced at
trial does not support the inclusion of the instruction. In
pursuing this track, however, Dr. Bieganowski faces a high hurdle.
25
The court’s instruction read as follows:
“With respect to counts six through nine and
eleven through fourteen as to defendant Arthur C.
Bieganowski only, and count twenty-two as to defendants
Arthur C. Bieganowski and Richard J. Goldberg only, you
may find that the defendants had knowledge of a fact if
you find that they deliberately closed their eyes to
what would otherwise have been obvious to them. While
knowledge on the part of a defendant cannot be
established merely by demonstrating that a defendant
was negligent, careless, or foolish, knowledge can be
inferred if a defendant deliberately blinded himself to
the existence of a fact.”
26
Goldberg in his reply brief also attempts to conclusorily
adopt all of “the non-fact specific issues presented by the co-
appellants [naming them] which are not inconsistent with the
issues he presents in his brief.” Those arguments, however, are
fact-specific insofar as they relate to the deliberate ignorance
instruction, and Goldberg may not adopt them on appeal. See
United States v. Solis, 299 F.3d 420, 433 n.3 (5th Cir. 2002).
48
In deciding whether there is sufficient evidence to support a jury
instruction, we “examine the evidence and all reasonable inferences
therefrom in the light most favorable to the government.”
Faulkner, 6 F.3d at 300–301; see also Glasser v. United States, 62
S.Ct. 457, 469 (1942).
Although a deliberate ignorance instruction should rarely be
given, Faulkner, 17 F.3d at 766, we have permitted its use “‘to
inform the jury that it may consider evidence of the defendant’s
charade of ignorance as circumstantial proof of guilty knowledge.’”
United States v. Threadgill, 172 F. 3d 357, 368 (5th Cir. 1999)
(quoting United States v. Lara-Velasquez, 919 F.2d 946, 951 (5th
Cir. 1990)). “It is only to be given when a defendant claims a
lack of guilty knowledge and the proof at trial supports an
inference of deliberate indifference.” Id. The instruction is
proper, therefore, where the evidence shows “(1) subjective
awareness of a high probability of the existence of illegal
conduct, and (2) purposeful contrivance to avoid learning of the
illegal conduct.” Threadgill, 172 F.3d at 368.
We find that this case satisfies this test. Dr. Bieganowski
maintained in his testimony,27 in his closing statement below,28 and
27
Dr. Bieganowski, for example, testified on cross-
examination that when he was given progress notes, “they were
somehow incomplete or were not done.”
28
Counsel for Bieganowski maintained during closing
argument below that the Government’s evidence only established a
pattern of billing errors.
49
in his brief on appeal, that what the Government characterized as
fraud, was no more than “extensive errors [ ] in his billing
procedure.”
The second prong of the test also finds support in the record.
Bieganowski admits on appeal that he was aware of certain billing
errors. His practice was the subject of a televised investigative
report into billing fraud, and he was aware of enough problems to
prompt him to hire an outside billing consultant. When that
billing consultant did eventually report the presence of systematic
billing errors, Bieganowski, rather than evincing a desire to learn
the nature and extent of those problems, simply directed the
consultant to fix them. Finally, Bieganowski’s nurses testified
that they were given a script to follow in filling out progress
notes and fee tickets, and openly and regularly remained behind in
the clinic after it closed to fill out billing materials.
A jury could certainly infer from this evidence that
Bieganowski could have been aware of the presence of fraud, but
instead deliberately closed his eyes to it. We reject
Bieganowski’s claim that the record does not support a deliberate
ignorance instruction.
Bieganowski, however, also maintains that the district court’s
instruction, even if supported by the record, prejudiced him by
unfairly singling him out from his co-defendants. We initially
note that Bieganowski’s contention in this respect has some
arguable merit. We are aware of the risk inherent in a deliberate
50
ignorance instruction, see United States v. Soto-Silva, 129 F.3d
340, 345 (5th Cir. 1997), and we have noted that in a multiple-
defendant case where only some of the defendants justify a
deliberate ignorance charge, “singling out the defendant who merits
the instruction, based, perhaps, on disputed or equivocal evidence,
may be unfairly prejudicial to that defendant.” United States v.
Reissig, 186 F.3d 617, 619 (5th Cir. 1999). It is equally true,
however, that “giving the instruction generally, without naming a
specific defendant,” may prejudice those co-defendants who do not
merit the instruction. Id. Thus, we have indicated that the
better approach in this situation is to “give the instruction and
indicate that [it] may not apply to all of the defendants.” Id. at
619–20.
In Reissing this Court considered the appeal of five jointly
tried defendants convicted of participating in a fraudulent
telemarketing scheme. They each contended that the district court
erred in giving a deliberate ignorance instruction because the
evidence did not warrant it. We held that as to one defendant the
evidence did warrant the instruction, but agreed that it did not as
to any of the other defendants. Id. at 619. We nevertheless
affirmed their convictions because the instruction was one which
“indicate[d]” that it “may not apply to all of the defendants.”
51
Id. at 619-20.29 We stated that the district court’s approach was
that “followed by the First Circuit in United States v. Brandon, 17
F.3d 409, 453 (1st Cir. 1994)” and expressed our agreement with the
First Circuit. Reissing, 186 F.3d at 620. We do not read Reissing
as purporting to state a general rule requiring district courts to
always follow the approach which the district court did there, or
as holding that it would be error to restrict the deliberate
ignorance instruction to one or less than all of several
defendants. What we held in Reissing was that it was not error to
fail to restrict the instruction to the sole defendant as to whom
the evidence supported it. Id. at 619-20. That, too, is precisely
what the First Circuit held in Brandon. There the court plainly
indicated that the matter was one generally within the discretion
of the trial court, stating:
“We do not exclude the possibility that, on particular
facts, it might so mislead a jury to give a general
instruction, rather than one tailored to a specific
defendant or rather than no instruction at all, as to be
an abuse of discretion, but we emphasize that judgments
of this kind are primarily entrusted in the trial judge
who inevitably has a superior feel for the dynamics of
the trial and the likely reaction of the jury.” Brandon,
17 F.3d at 453 (emphasis added).
29
The trial court’s instruction was as follows:
“You may find that a defendant had knowledge of a fact
if you find that the defendant deliberately closed his
eyes to what would otherwise be obvious to him. While
knowledge on the part of the defendant cannot be
established merely by demonstrating that the defendant
was negligent, careless or foolish, knowledge can be
inferred if the defendant deliberately blinded himself
to the existence of a fact.” Id. at 619 n.1.
52
We agree. The law in this Circuit is well established that “[a]
district court has broad discretion in framing instructions to the
jury, and this Court will not reverse unless the instructions taken
as a whole do not correctly reflect the issues and the law.”
United States v. Alarcon, 261 F.3d 416, 424 (5th Cir. 2001)
(internal quotations omitted); United States v. Davis, 226 F.3d
346, 357-58 (5th Cir. 2000); United States v. Moser, 123 F.3d 813,
825 (5th Cir. 1997); United States v. McKinney, 53 F.3d 664, 676
(5th Cir. 1995). Here the charge correctly reflected the issues
and the law and we find no abuse of discretion in the district
court’s framing of the deliberate ignorance instruction under the
circumstances presented.
We reject Bieganowski’s complaints as to the deliberate
ignorance instruction.
H. Prosecutorial Misconduct
Appellants Diaz and Bieganowski contend that the Government
engaged in prosecutorial misconduct with respect to Linda Howard,
an expert witness for the defense.30 After the close of the
30
Bieganowski also claims that district court impermissibly
threatened Linda Howard with sanctions should she refuse to
testify. This claim is without merit. When counsel for
Bieganowski notified the court that Howard was considering
withdrawing as an expert witness, the court noted that if Howard
did refuse to testify, she would have to return to the registry
of the court any fee that she had already been paid for her
testimony. Bieganowski cites no support for his assertion that
Howard was in any way intimidated by the court’s statements, and
his attempts to cast those statement as a threat of sanctions is
meritless.
53
Government’s case in chief, both Diaz and Bieganowski moved for a
mistrial on the grounds of prosecutorial misconduct, alleging that
the prosecution had improperly attempted to intimidate a defense
expert witness, Linda Howard. The challenged comments included a
warning issued by the prosecutor, the Assistant United States
Attorney, to counsel for Bieganowski, to the effect that the
Government was considering charging Howard with misprision of a
felony and perjury.
The Sixth Amendment guarantees a criminal defendant the right
to present witnesses to “establish his defense without fear of
retaliation against the witness by the government.” United States
v. Dupre, 117 F.3d 810, 823 (5th Cir. 1997); see also Washington v.
Texas, 87 S.Ct. 1920, 1923 (1967). In addition, the Fifth
Amendment protects the defendant from improper governmental
interference with his defense. Thus, “substantial governmental
interference with a defense witness’ choice to testify may violate
the due process rights of the defendant.” Id. (quoting United
States v. Washington, 783 F.2d 1210, 1219 (5th Cir. 1986)).
Whether a defendant has made a showing of substantial interference
is a fact question, and we therefore review a claim of
prosecutorial intimidation for clear error. United States v.
Thompson, 130 F.3d 676, 686–87 (5th Cir. 1997).
The Government does not dispute that it considered prosecuting
54
defense expert Howard for misprision of a felony. The record is
equally clear, however, that by the time Howard was to testify, the
Government had further reviewed the evidence in the case and had
assured Howard that she would not be so charged, an assurance that
the district court conveyed to Howard. The Government also
concedes that it told counsel for Bieganowski that it would
consider prosecuting Howard for perjury if she were, in fact, to
perjure herself. Diaz and Bieganowski both attempt to demonstrate
that these comments amounted to a substantial interference with
Howard’s choice to testify.
When judged against our prior cases, it becomes clear that the
prosecution’s comments did not rise to the level of substantial
interference. In United States v. Viera, 839 F.2d 1113 (5th Cir.
1988) (en banc), the prosecution publicly stated that if a defense
witness testified and provided incriminating evidence against
himself, then that witness would be indicted. Id. at 1115. This
Court, however, declined to find that there had been substantial
interference even where the witness subsequently failed to
testify.31 By contrast, Howard, after receiving assurances from the
district court and from the Assistant United States Attorney, did
31
The Viera court emphasized that there was no evidentiary
showing establishing that the prospective witness failed to
testify because of the alleged threats. Viera, 839 F.2d at 115.
55
testify.32 If the comments in Viera did not amount to a substantial
interference, then the comparatively benign comments in this case
certainly did not.
It is equally clear that the prosecution’s comments regarding
perjury did not amount to a substantial interference. The
prosecution did no more than to advise Howard that she could be
prosecuted if she perjured herself in her testimony by stating she
had previously worked for the FBI, a matter which was, at most,
collateral to the subject matter of her intended testimony. There
is no substantial interference in such a statement. On the
contrary, “[a] prosecutor is always entitled to attempt to avert
perjury and to punish criminal conduct.” Viera, 839 F.2d at 1115;
United States v. Thompson, 130 F.3d 676, 687 (5th Cir. 1997)
(“[T]he government told the witnesses that they had to testify
truthfully . . . . That procedure, however, even if carried out in
a caustic manner, is no cause to dismiss the indictment against the
defendants.” (quoting United States v. Hayward, 6 F.3d 1241, 1257
(7th Cir. 1993))). Accordingly, we find that the prosecution’s
comments did not amount to substantial interference and we reject
the claim of Diaz and Bieganowski that their Fifth or Sixth
Amendment rights were, in any way, violated.
32
Howard testified extensively on behalf of the defense.
And although they allege that Howard’s preparation for her
testimony was hindered by the threats, Diaz and Bieganowski fail
to cite any evidence tending to show that her actual testimony
was in any way impaired.
56
I. Evidence of the Prosecution’s Threats
In addition to arguing that the prosecution’s threats violated
his Fifth and Sixth Amendment rights, Bieganowski also maintains
that the district court erred when it prohibited him from
introducing evidence of those threats to the jury, relying on
United States v. Lowery, 135 F.3d 957 (5th Cir. 1998). We
disagree.
Lowery is wholly inapposite. There the defendant, Lowery, was
charged with obstruction of justice by attempting to influence
Taylor to testify falsely in a then pending criminal tax case
against Lowery’s girlfriend, Sanders. Lowery’s defense was that he
understood that in the Sanders case the IRS had begun “to pressure
witnesses to testify in a manner consistent with the IRS position,”
that Taylor had previously made statements “consistent with . . .
[Sanders’] innocence, and he feared the IRS was intimidating Taylor
to state otherwise.” Id. at 958. We held that the exclusion of
evidence of the IRS witness intimidation in the Sanders case “was
error, because any evidence that the IRS was intimidating witnesses
in the Sanders case would be relevant to Lowery’s case, given that
his theory of defense was that he was trying to encourage witnesses
to tell the truth in the face of IRS pressure to do otherwise.”
Id. at 959. In Lowery the government witness intimidation sought
to be shown occurred before and was a cause of the defendant’s
charged conduct and was relevant to show his state of mind in
57
engaging in that conduct. Here, by contrast, the alleged witness
intimidation occurred more than a year after the conduct charged in
the indictment and had no relevance to it or to the state of mind
of Diaz or Bieganowski in engaging in such conduct. In Lowery we
applied an “abuse of discretion” review to the trial court’s
exclusion of the evidence. Id. at 959. Applying that same
standard here, it is clear that the trial court did not abuse its
discretion in excluding the evidence.
J. Instructions in response to jury note
In his final point of error, Bieganowski argues that the
district court reversibly erred when it issued a supplemental jury
instruction without first notifying counsel for the defense.
On May 5, 2000, after the case had gone to the jury, the jury
delivered a note to the court, the relevant portion of which read:
“Also on counts 2, 3, 4, & 5 we’ve not been able to locate HCFA’s
for counts 3 & 4. Do we or can we rely on [w]itness [t]estimony?”
Upon receiving this note, and without first advising counsel for
the defense of it, the district court responded to it by
instructing the jury:
“In response to jury note 1, you are advised that, in my
preliminary instruction to you at the beginning of the
trial, I instructed you on the following as to evidence:
‘The evidence from which you will find the facts will
consist of the testimony of witnesses, documents, and
other things received into the record as exhibits . . .
.’
Thus, in answer to your question, I once again
remind you that witness testimony is evidence.”
58
Federal Rule of Criminal Procedure 43 guarantees a defendant
the right to be present at every stage of the trial. That right
requires that “[w]hen a communication is received from the jury,
counsel should be informed of its substance and afforded an
opportunity to be heard before a supplemental charge is given.”
United States v. McDuffie, 542 F.2d 236, 241 (5th Cir. 1976). The
Government in this case concedes that this right was violated. The
only remaining question, therefore, is whether the violation was
harmless or constitutes reversible error. See United States v.
Sylvester, 143 F.3d 923, 928 (5th Cir. 1998).
Here, the district court did not issue a true supplemental
instruction. Rather, it simply resubmitted to the jury a portion
of the original jury charge, an instruction to which Bieganowski
had not previously objected. Bieganowski presents the same
argument that was rejected in Sylvester, namely that prejudice
resulted when the district court reread only a portion of the
original instructions to the jury. Sylvester, 143 F.3d at 929.
Beginning with the proposition that the failure to notify defense
counsel of a jury communication is harmless when an “answer to the
jury’s inquiry [is] distinctly responsive, . . . clearly state[s]
the law, and no prejudice is shown,” Sylvester, 143 F.3d at 928,
this Court concluded that rereading a portion of the original
instructions in response to a jury question was harmless error.
Id. at 929; see also United States v. Breedlove, 576 F. 2d 57, 60
59
(5th Cir. 1978) (finding the court’s error in answering a jury note
without first notifying the defense to be harmless).
Bieganowski, however, attempts to distinguish Sylvester by
arguing that the district court in that case did not simply issue
a supplemental instruction, but also tempered that instruction by
reminding the jury to keep the court’s original instructions in
mind, and to apply all the instructions during its deliberations.
Sylvester, 143 F.3d at 929. Although the district court’s
supplemental instruction here did not clearly admonish the jury to
rely on the original instructions, the supplemental instruction
nevertheless referenced the original instructions. It was
therefore evident from the language of the supplemental instruction
that the original instructions remained in full force.
Diaz and Bieganowski also fault the court’s response to the
jury note on the basis that it suggests to the jury that they need
not be concerned with being unable to find the HCFA forms on which
counts three and four were based or at least improperly minimized
the importance of the HCFA forms in respect to counts three and
four. However, it is clear that there was no prejudice, for none
of the appellants were convicted of either of those counts.33
K. Sentencing
In his final point of error, Lopez challenges the evidentiary
33
Bieganowski and Lopez were acquitted of counts three and
four; neither Diaz nor Goldberg was charged in either of those
counts.
60
basis for the district court’s application of the Sentencing
Guidelines. Specifically, Lopez disputes the district court’s
finding that he was accountable for $961,287.50 in losses under
section 1B1.3(a)(1)(B) of the Sentencing Guidelines.34
We review a district court’s interpretation and application of
the Sentencing Guidelines de novo, and its factual findings for
clear error. United States v. Ismoila, 100 F.3d 380, 394 (5th Cir.
1996). Having reviewed the basis for the district court’s finding,
we conclude that Lopez’s claim has no merit.
Findings of fact for sentencing purposes need only be
established by a preponderance of the evidence. United States v.
Hull, 160 F.3d 265, 269 (5th Cir. 1998). In this case, the
Presentence Report attributed $43,084,042.27 in losses, a figure
representing the entire amount billed to insurance companies during
the course of the conspiracy, to Lopez. The district court,
however, elected to hold Lopez responsible only for those bills
34
Section 1B1.3(a)(1) provides that a defendant is
responsible at sentencing for
“(A) all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or willfully
caused by the defendant; and
(B) in the case of a jointly undertaken criminal
activity . . . all reasonably foreseeable acts and
omissions of others in furtherance of the jointly
undertaken criminal activity,
that occurred during the commission of the offense of
conviction, in preparation for that offense, or in the
course of attempting to avoid detection or
responsibility for that offense.” U.S. SENTENCING
GUIDELINES MANUAL § 1B1.3(a)(1)(A), (B).
61
that reflected charges for Hubbard Tank treatment, and accordingly
departed from the Presentence Report to reduce the dollar value of
Lopez’s conduct from $43,084,042.27 to $961,287.50.
The guilty verdicts returned against Lopez, together with the
Presentence Report constitute a sufficient evidentiary basis for
this finding. See, e.g., United States v. Lghodaro, 967 F.2d 1028,
1030 (5th Cir. 1992) (“The PSR is considered reliable and may be
considered as evidence by the trial judge in making factual
sentencing determinations.”). We decline to hold, therefore, that
the district court was clearly erroneous in holding Lopez
responsible for the entire $961,287.50.
Conclusion
For the foregoing reasons, the convictions and sentences of
each appellant are in all things
AFFIRMED.
62