United States v. Lopez-Diaz

United States Court of Appeals
For the First Circuit
Nos. 13-2113
13-2118
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ LÓPEZ-DÍAZ; CARLOS LÓPEZ-DÍAZ,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Lynch, Kayatta, and Barron,
Circuit Judges.
John H. Cuhna, Jr., with whom Jaime Zambrana and Cuhna &
Holcomb, P.C., were on brief, for appellant José López-Díaz.
H. Manuel Hernández for appellant Carlos López-Díaz.
John A. Mathews II, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.
July 13, 2015
KAYATTA, Circuit Judge. These consolidated appeals
present a rare example of a trial record that lacks sufficient
evidence to support a guilty verdict returned by a jury. Carlos
López-Díaz ("Carlos"), a dentist, operated a mobile dental clinic
in Puerto Rico.1 His brother, José López-Díaz ("José"), is a
medical doctor who billed Medicare for services to Carlos's
patients that José never provided. The jury convicted José of
health-care fraud, conspiracy to commit health-care fraud, and
aggravated identity theft for using personal information gathered
from Carlos's patients. Based on the fact that Carlos gave José
access to his patient billing information while knowing that José
never treated, or even saw, any of the patients, the government
also obtained a verdict against Carlos on the conspiracy and
aggravated identity theft charges. While we find no error in
José's convictions, we reverse the verdict against Carlos because
the prosecution did not present enough evidence to support his
convictions without undue speculation.
I. Background
We limit our summary here to the basic contours of the
health-care fraud scheme and proceedings below, reserving a fuller
exposition of the relevant facts in the proper light for our
1 For the sake of convenience, we refer to the defendants by
their first names only.
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discussion of particular issues. See United States v. Flores-
Rivera, 787 F.3d 1, 9 (1st Cir. 2015).
Between January 2006 and July 2011, José submitted
10,231 claims for reimbursement to Medicare, totaling
approximately $3,500,000, of which Medicare actually paid about
$700,000. He submitted the claims using Health Insurance Claim
Form 1500 ("CMS 1500 Form"), a form used for Medicare billing by
Centers for Medicare and Medicaid Services ("CMS"), which
administers the Medicare program. As it turns out, José never
provided any of the medical procedures for which he sought
reimbursement. In some instances, he claimed to have provided
services to Medicare beneficiaries who were deceased. He also
repeatedly billed for the same unusual procedures. José filed
1,177 claims (far more than anyone else in Puerto Rico) for a
procedure typically performed by urologists, and more than half of
those claimed urological procedures were for female patients, even
though the procedure can be performed on male patients only.
In order to submit those false claims, José needed the
Medicare beneficiaries' identifying and health coverage
information. His principal sources were the patient records of
his brother Carlos, a licensed dentist. Beginning sometime in
2007, Carlos operated a mobile dental clinic--essentially, a large
trailer with three dental chairs and necessary equipment--to
provide dental services to underserved patients at nursing homes,
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mental health residential facilities, and schools. Carlos
employed a coordinator to visit potential facilities, market the
clinic, schedule visits, and collect patient medical histories,
consent and release forms, and health coverage information before
the mobile clinic visited each facility. Carlos also employed two
dental assistants.
José never treated or even saw any of Carlos's patients.
Rather, José testified that Carlos gave him access to dental
patient information as part of a safety protocol developed by the
brothers after one of Carlos's elderly patients suffered a heart
attack or stroke in the mobile clinic in late 2007, an event
confirmed by the director of the stricken patient's nursing home.
Two of the witnesses called by the government, Leslie Williams-
Nieves ("Williams") and Nahír Rodríguez-Candelario ("Rodríguez"),
explained that they were told that a regulation enacted by the
Puerto Rico State Department required Carlos to have his patients
medically evaluated and to use a medical consultant. When asked
about this regulation, José said that he could not recall its
name.2 Pursuant to the protocol, José paid Carlos's dental
assistants to take and record vital signs of dental patients before
Carlos treated them, with José available for phone consultations,
2 José also testified that he and Carlos learned at a
conference on mobile clinics that a mobile dental clinic should
have a consulting physician.
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and José would later review the patient files, vital signs, and
medical histories to see that Carlos's staff was acting properly.3
The parties agree that José did indeed pay the dental assistants
to take and record patient vital signs, and the actual patient
records show that José did review, or at least initial, that
information in each record. According to José's testimony,
"[t]here are several formulas through which the physician can be
paid for these services."
José also gathered from Carlos's patient records the
personal identifying information needed to bill Medicare. José
used that information to complete and submit CMS 1500 Forms for
medical procedures that he never performed on those patients. José
paid Williams4 and Rodríguez,5 employees of his wife's pediatric
3One of Carlos's dental assistants testified that José "would
be given the vital signs taken from patients. And then he would
correct them, he would observe them."
4 For eight or nine months in 2009 and 2010, Williams completed
sections of CMS 1500 Forms for José using a "log book" that listed
the necessary billing information. In May 2010, three months after
she stopped billing for José, Williams began working during the
evenings for Carlos, entering patient billing information into an
electronic database. At that point, Williams realized based on
the service locations in Carlos's patient files and in José's log
book that José's patient information came from Carlos's patient
files.
5 From April 2010 to July 2011, Rodríguez worked for Carlos
on Fridays entering patient data from Carlos's patient files into
a computer. From August to December 2010, Rodríguez also entered
patient information into CMS 1500 Forms for José, for which José
paid her $1 per form. Rodríguez recognized the patient files she
used for José's CMS 1500 Forms as Carlos's dental patient files.
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clinic, to complete his CMS 1500 Forms using information gleaned
from Carlos's patient files. Williams and Rodríguez also did
separate billing and data entry work part-time for Carlos.
Williams and Rodríguez testified that they filled out José's CMS
1500 Forms either at their own homes or at José's home office, and
never in Carlos's presence or at his office. The government
stipulated that Carlos did not sign or prepare any of José's CMS
1500 Forms, and that Carlos's name did not appear on those forms.
Investigators eventually caught on to José's falsified
bills, and a grand jury indicted José, Carlos, Williams, Rodríguez,
and others for conspiracy to commit health-care fraud in violation
of 18 U.S.C. § 1349 (count one) and health-care fraud in violation
of 18 U.S.C. § 1347 (counts ten through thirty), and José and
Carlos for aggravated identity theft in violation of 18 U.S.C.
§ 1028A(a)(1) (counts thirty-one through thirty-five). All of the
defendants except for Carlos were also indicted for additional
counts of health-care fraud (counts two through nine).6 After a
fifteen-day trial, the jury convicted José of all counts.7 The
jury also convicted Carlos of the conspiracy and aggravated
identity theft counts, but acquitted him of the substantive health-
6
Prior to trial, the government dropped the charges against
all other indicted conspirators, and called Williams and Rodríguez
as witnesses in the government's case-in-chief.
7
The government dismissed one count (count twenty) of
substantive health-care fraud before trial.
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care fraud counts. The district court sentenced José to a total
of 121 months in prison. Carlos received a total prison sentence
of thirty-six months and a day. Carlos and José timely filed
separate appeals challenging their convictions.8
II. Carlos's Insufficiency of the Evidence Claim
We turn first to Carlos's appeal from the order denying
his motion for acquittal based on insufficient evidence to convict.
See Fed. R. Crim. P. 29. We review de novo the denial of a Rule
29 motion for acquittal, asking whether a reasonable jury could
find guilt beyond a reasonable doubt. United States v. Burgos-
Montes, 786 F.3d 92, 112 (1st Cir. 2015). In assessing a challenge
to the sufficiency of the evidence, we "examine the evidence,
together with all inferences that may be reasonably drawn from it,
in the light most favorable to the prosecution." United States v.
Andújar, 49 F.3d 16, 20 (1st Cir. 1995). Where, as here, "a jury
draws inferences from circumstantial evidence, a reviewing court
should refrain from second-guessing the ensuing conclusions as
long as (1) the inferences derive support from a plausible
rendition of the record, and (2) the conclusions flow rationally
from those inferences." United States v. Spinney, 65 F.3d 231,
234 (1st Cir. 1995). Our deference to jury verdicts is not without
limit, however: "[I]f the evidence viewed in the light most
8 This court consolidated the two appeals.
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favorable to the verdict gives equal or nearly equal circumstantial
support to a theory of guilt and a theory of innocence of the crime
charged, this court must reverse the conviction," because in such
a case "a reasonable jury must necessarily entertain a reasonable
doubt." United States v. Flores-Rivera, 56 F.3d 319, 323 (1st
Cir. 1995) (internal quotation marks and emphasis omitted).
The parties agree that the conspiracy charge9 against
Carlos turns largely on whether the jury could reasonably find
that Carlos "knew" that his brother was defrauding Medicare. The
parties likewise agree that the aggravated identity theft counts
required the jury to find that Carlos, either as a principal or
aider and abettor, "knew" of the underlying health-care fraud.10
9 18 U.S.C. § 1349 provides as follows: "Any person who
attempts or conspires to commit [health-care fraud] shall be
subject to the same penalties as those prescribed for the offense,
the commission of which was the object of the attempt or
conspiracy." The substantive offense of health-care fraud
consists of (a) "knowingly and willfully execut[ing], or
attempt[ing] to execute, a scheme or artifice," either (1) "to
defraud any health care benefit program," or (2) "to obtain, by
means of false or fraudulent pretenses, representations, or
promises, any of the money or property owned by, or under the
custody or control of, any health care benefit program"; and doing
so (b) "in connection with the delivery of or payment for health
care benefits, items, or services." Id. § 1347.
10 To convict Carlos for aggravated identity theft, the
government needed to prove that, "during and in relation to
[health-care fraud], [the defendant] knowingly transfer[red],
possesse[d], or use[d], without lawful authority, a means of
identification of another person." 18 U.S.C. § 1028A(a)(1); see
also id. § 1028A(c)(5). To convict Carlos under an aiding and
abetting theory, the government needed to establish, among other
things, that Carlos "consciously shared [José's] knowledge of the
underlying criminal act, and intended to help [José]." United
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Such knowledge for either offense could be proven by knowledge in
fact, or by proof of "willful blindness." To establish willful
blindness, the government had to show that Carlos (1) "was aware
of a high probability of wrongdoing," and (2) "consciously and
deliberately avoided learning of the wrongdoing." United States
v. Appolon, 695 F.3d 44, 57 (1st Cir. 2012).
The government did manage to prove that Carlos knew that
José gathered from the files of Carlos's patients information to
be used by José to bill Medicare for something. In its brief and
at argument, the government also claimed that the evidence showed
that Carlos paid his employees to complete the CMS 1500 Forms used
by José to bill Medicare. Apparently accepting the government's
view of its proof in denying Carlos's motion to acquit, the
district court expressly pointed to such payments by Carlos. See
United States v. López-Díaz, 940 F. Supp. 2d 39, 64 (D.P.R.
2013) ("[Carlos] even paid his employees for filling out billing
forms when [José] was unable to pay them."). As the government
clarified after oral argument, however, the record shows only that
Carlos paid his employees to record his patients' vital signs for
José's review, and only when José was unavailable to make this
payment himself.11 Further, the government points us to no evidence
States v. Lyons, 740 F.3d 702, 715 (1st Cir. 2014) (quoting
Spinney, 65 F.3d at 235).
11Carlos also paid Williams and Rodríguez to help with billing
and data entry for his legitimate dental services. There is no
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that José needed (or even used) the vital signs data to deceive
Medicare.
Of course, if Carlos knew that José had no basis
whatsoever to bill Medicare for any amount in connection with
Carlos's patients, then his knowledge that José was billing for
something could suffice to sustain the verdict. So the question
is posed: Did Carlos know that José could not bill merely for the
gathering and review of vital signs information? On this crucial
point, the record is a complete blank. The record does not even
show that such a file review is not billable, much less that Carlos
knew it was not billable. The government did not submit any
evidence challenging the existence of the regulation that its own
witnesses cited as a reason for taking the vital signs and
reviewing them. Nor did it seek an instruction on the regulation.
The government also failed to counter José's testimony that
"[t]here are several formulas through which the physician can be
paid" for services to mobile dental clinics. Instead, the
government simply argued in closing that José did not bill for
reviewing the vital signs. This was a compelling point against
José, but carried weight against Carlos only if there was evidence
that Carlos knew what José was billing for.
evidence that Carlos ever paid Williams and Rodríguez to help José
with his billing.
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In an effort to fill this gap, the government in its
brief tells us that Carlos "is also a medical provider, submits
dental billing claims himself, and understands what is required of
medical provider [sic] in order to submit claims." Cf. United
States v. Singh, 390 F.3d 168, 188 (2d Cir. 2004) (jury could infer
that physician/clinic owner was aware that claims he submitted
were false, based on his possession of and familiarity with the
applicable billing code guidebook and manual, and discussions with
employees revealed his "detailed knowledge" about billing). The
government, however, cites no evidence to support this crucial
assertion, nor can we find any. To the contrary, the record shows
that the dental billing codes (with which one could assume Carlos
was familiar) were so different from the physician billing codes
that the government's own witness on Medicare billing professed
almost complete ignorance about dental billing codes.12
Our own review of the record points to no other means to
close this gap. Notwithstanding the indictment's express charge
that the aim of the conspiracy was to enrich both José and Carlos,
there is no evidence at all that Carlos received even one penny of
the fraudulent proceeds. What little else we could find on our
own review of the record added nothing to the government's case;
12 While some evidence supported an inference that Carlos
sometimes billed Medicare Advantage plans, there was no evidence
that he used medical or surgical billing codes, rather than dental
billing codes, in order to bill those plans.
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rather, it helped Carlos.13 We also do not think that whether and
when file reviews are billable to Medicare are matters of common
knowledge that lay jurors might bring to bear to connect the too-
widely spaced dots in the government's case.
José's behavior as described by the government's
evidence offered no hint that Carlos was aware of the nature of
José's billing. The fact that José indisputably initialed the
patient files suggests strongly that he was trying to deceive
someone other than Medicare (e.g., Carlos?), given that the vital
signs data from Carlos's patients provided no information that
José used to bill or to justify billing for the surgical and other
procedures he claimed to have performed. José was also careful
that Williams and Rodríguez, his wife's employees whom he paid to
13 Carlos's clinic coordinator marketed the dental clinic to
directors of nursing homes and residential facilities in part
through PowerPoint slides. One slide indicated that the clinic
had a "consultant physician," whom the coordinator understood to
be José. That same coordinator, who also collected patients'
medical histories, testified that José told her to focus on whether
the patient had had recent surgery, in order to prevent adverse
reactions to the dentist's anesthesia. And the consent and release
forms that the coordinator collected from Carlos's patients did
not clearly prohibit use of patient information to bill for a file
review by another doctor. The forms stated that the patients
consented to use of their information to "carry out your treatment,
payment activities and operations in your health care." The
attached notice of privacy practices informed the patients that
Carlos "may use your health information for treatment (e.g.,
sending copy of your clinical information to a specialist as part
of your referral), to obtain payment for treatment (e.g., bill an
insurance agency), or for other health care operations (e.g.,
evaluate the quality of treatment you receive)" (emphasis added).
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fill out the demographic and health plan sections of his CMS 1500
Forms, performed their task out of Carlos's presence. Neither did
those two employees suggest that Carlos knew the services for which
José was billing.
Though not clear from its brief, the government appears
to argue that the jury could infer Carlos's knowledge of José's
fraud if the jury doubted the utility of the treatment protocol,
and thus the plausibility of Carlos's explanation for handing his
files to José. If the evidence allowed the jury to conclude that
the treatment protocol was obviously useless, then the jury might
have inferred that Carlos could not possibly have thought the
protocol valuable. And from that the jury could, perhaps, have
further inferred that Carlos must have had some other, criminal,
reason for handing over his patient files to José, and thus still
further inferred that Carlos must have had the requisite knowledge
of José's fraud.
The government, though, did not present any evidence to
support such a chain of inferences. Acting almost as if it bore
no burden of proof in making its case against Carlos, the
government did not present any direct evidence that the protocol
was, in fact, not an accepted or recognized method of ensuring
that the mobile clinic's practice was adhering to medical
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standards.14 Nor did the government present any direct evidence
that Carlos believed the protocol was useless. And, indeed, the
fact that Carlos supervised his dental assistants in taking vital
signs--and paid them for doing so when José was out of town--would
seem to suggest that Carlos viewed the protocol as beneficial. As
a result, the record cannot support the first link in a chain of
inferences that would be needed to justify the jury's verdict
against Carlos on these grounds. See United States v. Burgos, 703
F.3d 1, 10 (1st Cir. 2012) ("[W]e are loath to stack inference
upon inference in order to uphold the jury's verdict." (quoting
United States v. Valerio, 48 F.3d 58, 64 (1st Cir. 1995))).
Our respect for a jury's ability to get it right does
nevertheless cause us to pause cautiously before concluding that
the evidence is insufficient to support the verdict. We note,
though, that the prosecutor in closing told the jury that "it
doesn't matter for purposes of this case if [Carlos] knew what
[José] was writing on those [CMS 1500 forms]. It doesn't make a
difference." The prosecutor also seems to have slipped into an
argument based on a lesser negligence standard, rather than
knowledge or willful blindness: "[Carlos], as a dentist, should
14The government also failed to challenge one of the apparent
rationales for the protocol, that it was required by some
Commonwealth regulation. If there is no such regulation, the
government easily could have called witnesses from the relevant
Puerto Rico government departments to debunk this rationale.
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have known better, or should have known better to question himself-
-or his brother in this case--what he was billing for if he--once
he knew he wasn't even seeing his patients." While we have not
been asked to vacate the verdict because of these statements, and
while the statements might be read in context in a manner that
would render them proper, they do explain how a jury could
mistakenly convict Carlos in light of the absence of any evidence
that his brother could not bill Medicare at all for his work under
the protocol, or that Carlos knew of or willfully ignored such a
limitation. We have in mind, too, the fact that in a three-week
trial focused mostly on José, both the prosecutor and the trial
judge themselves mistakenly thought that Carlos paid to have some
of José's falsified claim forms completed.15 In any event, the key
point now is that the record contains insufficient evidence to
support a reasonable inference that, beyond a reasonable doubt,
Carlos knew that José had no basis for submitting any type of claim
in connection with his review of Carlos's patient records.
We therefore vacate Carlos's convictions and remand for
a judgment of acquittal of Carlos on all counts.16
15
See López-Díaz, 940 F. Supp. 2d at 64 ("[Carlos] even paid
his employees for filling out billing forms when [José] was unable
to pay them.").
16 We need not address Carlos's remaining arguments.
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III. José's Claims
José does not challenge on appeal the sufficiency of the
evidence against him on any of the counts. Rather, he points to
what he claims are errors in the indictment, the review of alleged
Brady material, and the jury instructions. We address these
claimed errors in turn.
A. The Sufficiency of the Indictment's Aggravated Identity Theft
Counts
José first argues that the aggravated identity theft
counts (counts thirty-one through thirty-five) of the superseding
indictment were defective for lack of a corresponding substantive
health-care fraud count. The aggravated identity theft counts of
the indictment alleged that José knowingly possessed, transferred,
or used the identification of another person without lawful
authority "in relation to felony violations enumerated in
subsection (c) [of 18 U.S.C. § 1028A] as: (1) Healthcare Fraud, a
violation of [18 U.S.C. § 1347], not charged herein." Each count
listed a specific individual whose identity was used to commit the
offense. The indictment did not include separate section 1347
health-care fraud charges with respect to the individuals named in
the aggravated identity theft counts. According to José, because
the government did not separately charge and convict him of the
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predicate health-care fraud crimes underlying the aggravated
identity theft charges, the indictment was defective.17
The predicate felony violation in section 1028A is
simply an element of the crime of aggravated identity theft. The
statute requires proof beyond a reasonable doubt of a felony
violation, not a felony conviction. It therefore did not require
the government to charge José separately with the predicate health-
care fraud offenses. See United States v. Stepanian, 570 F.3d 51,
59-60 & n.15 (1st Cir. 2009) ("To the extent [the defendant] wishes
to argue that the government must separately allege and charge the
predicate crime in order to charge a § 1028A offense . . . the
statutory language lends no support to that proposition."); see
also United States v. Jenkins-Watts, 574 F.3d 950, 970 (8th Cir.
2009). Moreover, the indictment adequately informed José that the
predicate offenses for the aggravated identity theft counts were
health-care fraud crimes "not charged herein." See United States
v. Savarese, 686 F.3d 1, 6 (1st Cir. 2012) ("[A]n indictment is
adequate if it specifies the elements of the offense charged,
fairly apprises the defendant of the charge against which he must
defend, and allows him to contest it without fear of double
17 Although the basis for this claim of error is not clear
from José's brief, we interpret this argument to be a challenge to
the sufficiency of the indictment.
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jeopardy."). We therefore detect no error in the aggravated
identity theft counts of the indictment.
B. In Camera Review of Potential Brady Material
José next faults the district court for rejecting his
request to order the government to turn over documents José claims
were potentially exculpatory. See Brady v. Maryland, 373 U.S. 83,
87 (1963) (government has an obligation to disclose evidence in
its possession favorable to a criminal defendant and material to
guilt). In particular, José argues that he was entitled to
materials related to a government search of the offices of one of
the Medicare Advantage insurers he fraudulently billed, Medical
Card System ("MCS").
Both defendants filed separate pre-trial motions
requesting specific exculpatory and impeachment material. The
requested information included the following materials:
Any documents, reports, affidavits in support
of search warrants, grand jury subpoenas, or
other materials and information regarding any
investigation of any wrongdoing by any health
insurance company that processes any Medicare
or other insurance claim that is the subject
of the charges alleged in the indictment,
including, but not limited to, MCS . . . .
The district court referred the matter to a magistrate judge, who
granted the defendants' request subject to a protective order that
restricted the disclosure and use of patients' individually
identifiable health information. The government did not disclose
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prior to trial any documents related to a search warrant executed
at MCS. On the fifth day of trial, however, before the defendants
cross-examined a fraud investigator at MCS, Carlos's defense
attorney renewed his request in light of press coverage of a
government search of MCS offices. The government agreed to review
the MCS search documents during a pre-scheduled eight-day break in
the trial, and to disclose any exculpatory or impeachment material,
while complying with the protective order. On cross-examination,
the MCS fraud investigator confirmed that government agents had
searched the MCS office, but she did not speak with the agents and
did not know whether the investigation was ongoing.
The government again produced no documents, and on the
next day of trial, Carlos's attorney asked that "the Court order
them to produce those records or that they be submitted to the
Court and that copies be left in the record under seal for future
review, if necessary." The government agreed to provide the MCS
search warrant affidavit for the court's in camera review, to
determine if the search may have revealed information relevant to
Carlos and José's case. The next day, the district court informed
counsel that its "review of the search warrant, the application,
and affidavit has completed, and I don't think any of it has any
relevance to this case. . . . [Y]our motion is denied." The
district court then denied Carlos's motion to seal the search
warrant, application, and affidavit and make those documents part
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of the record in this case, because the court was "worried about
making it a part of this record even as a sealed document." The
district court and government noted that the documents could be
made available to this court if necessary for appellate review.
Shortly thereafter, José's counsel joined Carlos's motions.
On appeal, José asks us to review the search warrant,
application, and affidavit to determine whether the district court
erred in refusing to require disclosure by the government. We
review a district court's Brady determinations after its in camera
review for an abuse of discretion. United States v. Rosario-
Peralta, 175 F.3d 48, 57 (1st Cir. 1999); see also United States
v. Caro-Muñiz, 406 F.3d 22, 28-29 (1st Cir. 2005).
We decline the invitation to join José on his fishing
expedition. His theory about the relevance of the MCS documents
is that those documents "could have very well" contained
instructions from MCS to physicians, including José, to submit
false information on CMS 1500 Forms, thereby corroborating José's
testimony that he used inaccurate billing codes based on
instructions from health insurance companies. How such evidence
would have exonerated José from billing for urological services
performed on women whom he did not treat is a complete mystery
concerning which José offers no insight. Additionally, José points
to nothing that suggests that the government's search of MCS had
anything to do with its telling doctors to use incorrect billing
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codes. Hence his theory of relevance amounts to little more than
"mere speculation." United States v. Prochilo, 629 F.3d 264, 269
(1st Cir. 2011). The district court therefore would have acted
well within its discretion even if it had refused to conduct the
in camera review in the first place. See id. at 268-69 ("To
justify [in camera] review, the defendant must make some showing
that the materials in question could contain favorable, material
evidence. This showing cannot consist of mere speculation."
(citations omitted)). Because José's request amounts to no more
than a "shot in the dark," United States v. Espinal-Almeida, 699
F.3d 588, 618 (1st Cir. 2012), we find it unnecessary to review
the sealed documents that the district court viewed in camera.
C. Challenges to the Jury Instructions
1. Prior Knowledge for Aiding and Abetting
José claims that the district court erred in failing to
instruct the jury that, in order to convict him of aiding and
abetting aggravated identity theft, the jury had to find that José
had "prior knowledge" of one purported element of aggravated
identity theft: that the patients' identifying information was
obtained without lawful authority.18 In support of this argument,
18José also argues that, for the counts of conviction
involving deceased patients, he needed prior knowledge that the
patients were in fact deceased when José claimed to have treated
them. None of the aggravated identity theft counts involve
deceased beneficiaries, however, so we need say nothing more about
this argument.
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José cites Rosemond v. United States, 134 S. Ct. 1240 (2014), in
which the Supreme Court held that, to convict a defendant for
aiding and abetting the knowing use of a firearm during and in
relation to a drug trafficking crime under 18 U.S.C. § 924(c), the
government must prove that the defendant had advance knowledge of
each element of the offense (i.e., the drug part and the gun part).
Id. at 1248-49.
José did not request that the district court give the
instructions he now claims it should have given. To the contrary,
he asked the court to give an instruction materially the same as
that which it gave. José therefore arguably waived this challenge
to the jury instructions. See United States v. Alberico, 559 F.3d
24, 27 (1st Cir. 2009).
Even if José did not waive the argument, his failure to
object would justify only plain error review, see Fed. R. Crim. P.
30(d), 52(b), a standard José fails to satisfy. See United States
v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001) ("Review for plain error
entails four showings: (1) that an error occurred (2) which was
clear or obvious and which not only (3) affected the defendant's
substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings."). The
so-called element of which José says he needed prior knowledge--
that the identifying information was initially obtained without
lawful authority--is not actually an element of the offense.
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Section 1028A punishes the knowing transfer, possession, or use
without lawful authority of protected information, 18 U.S.C.
§ 1028A(a)(1), regardless of how that information was first
obtained. United States v. Ozuna-Cabrera, 663 F.3d 496, 499 (1st
Cir. 2011) ("[R]egardless of how the means of identification is
actually obtained, if its subsequent use breaks the law . . . it
is violative of § 1028A(a)(1)."). Even if an instructional error
had occurred, it could not have affected José's substantial rights.
The evidence overwhelmingly showed that José knew that he did not
have the patients' consent to use their information to bill for
surgical and medical procedures he never performed.
2. Typographical Error in an Instruction
José also challenges a typographical error in the
aggravated identity theft jury charge. The district court
instructed the jury that the first element of aggravated identity
theft was "that the defendants committed the crime of health care
fraud as set forth in jury instruction number 11." This
instruction should have cross-referenced jury instruction number
12, listing the elements of health-care fraud, and not jury
instruction number 11, which addressed vicarious liability for the
acts and declarations of co-conspirators. There was no objection
to this slip-up, and José concedes that review is for plain error
only. The mistake here falls far short of the "exceedingly
difficult to satisfy" plain error standard for jury instructions.
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United States v. Gonzalez-Velez, 466 F.3d 27, 35 (1st Cir. 2006).
The district court's instruction correctly indicated that the
predicate offense was health-care fraud, and it would have been
obvious to the jury that the crime of health-care fraud was "set
forth" in the instruction labeled as such, and not in the plainly
inapplicable instruction titled "Acts and Declarations of Co-
conspirators." Moreover, given the weight and nature of the
evidence against José, we doubt any confusion engendered by the
typographical error contributed to the jury's verdict.
3. Success of the Conspiracy
José next challenges the district court's refusal to
instruct the jury that the government needed to prove the success
of the conspiracy. This refusal, José contends, resulted in both
a constructive amendment and prejudicial variance. José
acknowledges that the government ordinarily does not need to prove
the success of a conspiracy. See United States v. Paret-Ruiz, 567
F.3d 1, 6 (1st Cir. 2009). According to José, though, the
government committed itself to proving success by charging in the
indictment that the object of the conspiracy was for the defendants
to "enrich themselves."19
No constructive amendment occurred here. "[A]
constructive amendment occurs where the crime charged has been
19The "Object of the Conspiracy" section of the superseding
indictment's conspiracy count read in relevant part: "The object
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altered, either literally or in effect, after the grand jury last
passed upon it." United States v. Mubayyid, 658 F.3d 35, 49 (1st
Cir. 2011) (internal quotation marks omitted). There was no change
to the statutory elements of the offense. See id. at 51 ("[O]ur
practice has been to look to statutory elements in response to
claims by defendants that 'the crime charged' has been
changed.").20
Nor was there any variance between the charged crime and
evidence at trial, let alone a variance that was prejudicial. See
id. at 48 ("A variance occurs when the facts proved at trial differ
materially from those alleged in the indictment without altering
the crime charged."). While there was no evidence that Carlos
made even a penny as a result of José's fraud, the government
established that José himself billed Medicare for more than
$3,500,000, and that Medicare paid him hundreds of thousands of
dollars. José implausibly responds that those sums do not
necessarily show enrichment without evidence of his "costs or
of the conspiracy was that defendants . . . would unlawfully enrich
themselves by submitting false and fraudulent claims to Medicare
. . . ."
20 José's reliance on United States v. Narog, 372 F.3d 1243(11th Cir. 2004), is beside the point. This case does not present
a situation "where the government's failure to prove the crime as
it was charged in the indictment opens the possibility that the
jury convicted on the basis of conduct that was never charged."
Mubayyid, 658 F.3d at 53 n.24 (emphasis omitted) (distinguishing
Narog).
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overhead." We think a jury could infer that José's costs were
low, and certainly less than the amounts he received, given that
he did not actually perform the procedures for which he billed
Medicare.21
IV. Conclusion
We vacate Carlos's convictions on all counts for lack of
sufficient evidence, and remand for entry of judgment of acquittal.
Finding no error with respect to José, we affirm his convictions.
21We also reject José's last-ditch claim of cumulative error.
Whatever errors that occurred with respect to José were at worst
minor, and the evidence against him was overwhelming. See United
States v. Sepulveda, 15 F.3d 1161, 1196 (1st Cir. 1993).
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