United States v. Tull-Abreu

United States Court of Appeals
For the First Circuit
No. 17-1364
UNITED STATES,
Appellee,
v.
JUAN JOSE TULL-ABREU,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Lynch, Lipez, and Barron,
Circuit Judges.
Guillermo A. Macari-Grillo for appellant.
Andrew W. Laing, Criminal Division, Appellate Section, with
whom Rosa E. Rodríguez-Vélez, United States Attorney, Brian A.
Benczkowski, Assistant Attorney General, Matthew S. Miner, Deputy
Assistant Attorney General, and Dennise N. Longo Quiñones,
Assistant United States Attorney, were on brief, for appellee.
April 19, 2019
LYNCH, Circuit Judge. After a fourteen-day jury trial,
Dr. Juan Jose Tull-Abreu was convicted of one count of conspiracy
to commit health care fraud, eight counts of health care fraud,
six counts of aggravated identity theft, and four counts of
furnishing false or fraudulent information in prescriptions for
controlled substances. Tull-Abreu's scheme went on for about four
years and he profited by over $500,000 from his defrauding of the
federal Medicare program and Medicare insurance plans. He was
sentenced to a total of eighty-seven months' imprisonment.
On appeal, Tull-Abreu's counselled brief challenges the
sufficiency of the evidence underlying his convictions for
aggravated identity theft, the denial of his motion for a new trial
(concerning an alleged violation of his right to testify), the
denial of his motion for a judgment of acquittal as to furnishing
false or fraudulent information in prescriptions, and the
substantive reasonableness of his sentence. In a pro se brief,
Tull-Abreu challenges the sufficiency of the evidence for his
conspiracy and health care fraud convictions and argues that an
aspect of the trial violated his Sixth Amendment rights.
We affirm.
I.
A. Factual Background
Because Tull-Abreu challenges the sufficiency of the
evidence for his convictions, these "facts are drawn from the
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record created at trial and are presented in the light most
favorable to the guilty verdict." United States v. Monserrate-
Valentín, 729 F.3d 31, 37 (1st Cir. 2013). Additional facts are
discussed in the analysis where relevant, and we state only the
facts pertinent to this appeal.
From 2009, Tull-Abreu, a medical doctor, operated two
medical offices in Puerto Rico, one in Arecibo and one in Utuado,
and employed staff including secretaries. Three secretaries
testified at trial. One had worked for Tull-Abreu from April 2009
to July 2014 (with a two-week break in early 2013), one from 2011
to 2013, and one from February to September 2013. Between 2009
and 2013, Tull-Abreu regularly traveled to the Dominican Republic,
sometimes several times per month.
From 2009 to 2013, Tull-Abreu and his secretaries asked
for and received patients' signatures on extra Medicare
reimbursement forms which had certain information missing, such as
the date of service, and Tull-Abreu and his secretaries submitted
these forms to obtain payment. The form was the "Health Insurance
Claim Form" ("CMS 1500 form"), a standard form for Medicare billing
and reimbursement. See United States v. López-Díaz, 794 F.3d 106,
109 (1st Cir. 2015). The CMS 1500 form has six spaces for "Date(s)
of Service" and, corresponding to these dates, spaces for
"Procedures, Services, or Supplies."
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Tull-Abreu and his secretaries obtained signatures from
patients on these often-undated CMS 1500 forms by falsely telling
patients, for example, that "one form was for the visit, and the
other was for the [prescription]" or that one "form is for the
prescription, [and the other one] is for the referral." Tull-
Abreu and his secretaries took these forms and fabricated
corresponding "progress notes" for patients, which included dates
of fictitious appointments and services.
Tull-Abreu was caught on an audio recording instructing
his secretaries how to fill out these forms for services that were
not rendered, and he and they filled out such forms. There is no
evidence that Tull-Abreu forced his staff to do this, and one of
his secretaries worked for him for nearly the full four years of
the scheme. Tull-Abreu and his staff then submitted these
fraudulent forms for reimbursement from Medicare plans, including
for visits and services that did not and could not have occurred
because Tull-Abreu's pertinent medical office was closed or he was
in the Dominican Republic on the dates that the visits purportedly
took place. The submitted CMS 1500 forms contained identifying
information of the patients and had their signatures in a box on
the form that stated the patients' agreement to "authorize payment
of medical benefits to the undersigned physician or supplier for
services described below."
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Tull-Abreu took steps to hide the fraud: His staff kept
records, in internal "roll books," of dates that they had used
earlier on fraudulent CMS 1500 forms, "to avoid repeating dates."
This helped to avoid alerting insurers, who provided reimbursement
through the Medicare plans, of the fraud. Tull-Abreu kept a supply
of undated but patient-signed CMS 1500 forms.
From 2011 to 2013, Tull-Abreu also wrote prescriptions
for Percocet. Because Percocet was, and is, a controlled
substance, see United States v. Alvarez–Núñez, 828 F.3d 52, 54
(1st Cir. 2016), such prescriptions must be dated and signed on
the day that they are issued, see 21 C.F.R. § 1306.05(a). Tull-
Abreu did not do that; he wrote in dates when he was in fact out
of the country or traveling. The government put in evidence of
four such falsely-dated prescriptions. Tull-Abreu's patients and
staff testified that Tull-Abreu would leave postdated
prescriptions before his trips, to be given to patients while he
was gone.
B. Procedural History
Tull-Abreu was indicted on August 12, 2014, by a grand
jury on one count of conspiracy to commit health care fraud, in
violation of 18 U.S.C. § 1349; eight counts of health care fraud,
in violation of 18 U.S.C. § 1347; six counts of aggravated identity
theft, in violation of 18 U.S.C. § 1028A(a)(1); and four counts of
furnishing false information in prescriptions for controlled
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substances, in violation of 21 U.S.C. § 843(a)(4)(A). The
conspiracy charge outlined an agreement between Tull-Abreu and
unnamed others to "unlawfully enrich [Tull-Abreu] by submitting
false and fraudulent claims to Medicare." The fraud charges set
forth Tull-Abreu's particular claims for reimbursement for eight
patient office visits that never occurred. The aggravated identity
theft charges set forth six uses of different patients' identifying
information on fraudulent CMS 1500 forms. The furnishing false
information charges concerned four Percocet prescriptions bearing
dates and signatures for dates on which they had not been signed.
Tull-Abreu's jury trial began on March 29, 2016. On the
thirteenth day of trial, Tull-Abreu was set to testify. Before he
took the stand, the prosecutor asked that Tull-Abreu be advised of
his rights regarding testifying on his own behalf. With no
objection from Tull-Abreu's counsel, the district court then
explained, out of the presence of the jury, to Tull-Abreu his
constitutional right not to testify and the legal ramifications of
a choice to testify. The court then recessed so that Tull-Abreu
and his counsel could confer. They did so for about half an hour.
His counsel then informed the court that Tull-Abreu had decided
not to testify, counsel again made no objection to the actions of
the prosecution or the district court, and the defense rested.
Later, the district court instructed the jury that Tull-Abreu was
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"entitled to the presumption of innocence" and so "his silence is
not to be taken against him."
Tull-Abreu was convicted of all counts on April 15, 2016.
On May 27, 2016, he moved for a judgment of acquittal and for a
new trial under Federal Rules of Criminal Procedure 29 and 33,
respectively. In his Rule 29 motion, he alleged that insufficient
evidence supported all convictions (except conspiracy). In his
Rule 33 motion, he argued, among other things, that he had received
an unfair trial due to the prosecutor's request that the district
court remind Tull-Abreu of his constitutional right not to testify
and the legal ramifications of choosing to testify. On August 23,
2016, the district court denied Tull-Abreu's motions for a judgment
of acquittal and for a new trial.
The district court sentenced Tull-Abreu to eighty-seven
months' imprisonment and three years' supervised release. The
court calculated a sixty-three month sentence, at the bottom of
the Sentencing Guidelines' range of sixty-three to seventy-eight
months' imprisonment for all counts except the aggravated identity
theft counts, and added the consecutive mandatory fixed term of
twenty-four months for the violations of the aggravated identity
theft statute.
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II.
We deal with the primary issues raised by Tull-Abreu's
counselled brief and at oral argument, then the subsidiary issues,
then the issues raised pro se.
A. Challenge to Convictions for Aggravated Identity Theft
Under the relevant part of the aggravated identity theft
statute,
[w]hoever, during and in relation to any
felony violation enumerated in subsection (c),
knowingly transfers, possesses, or uses,
without lawful authority, a means of
identification of another person shall, in
addition to the punishment provided for such
felony, be sentenced to a term of imprisonment
of 2 years.
18 U.S.C. § 1028A(a)(1). Felonies enumerated in subsection (c)
include "any provision contained in chapter 63 (relating to mail,
bank, and wire fraud)," id. § 1028A(c)(5), which in turn includes
both health care fraud and conspiracy to commit health care fraud,
see id. §§ 1347, 1349.
Tull-Abreu mistakenly argues in his brief that his
convictions for aggravated identity theft rested on his writing
four postdated prescriptions for Percocet. Yet his aggravated
identity theft convictions are not based on these postdated
prescriptions but on his submission of the fraudulent CMS 1500
forms. Each count of aggravated identify theft in the indictment
is tied to a patient whose identifying information was listed on
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a particular submitted CMS 1500 form; the relevant aggravated
identity theft portion of the indictment does not mention the
Percocet prescriptions. The evidence at trial followed suit.
Nonetheless, we will assume arguendo -- and in Tull-
Abreu's favor -- that Tull-Abreu's challenge to the aggravated
identity theft convictions has not been waived1 and that his
argument is that the submission of the fraudulent CMS 1500 forms
did not satisfy the "use" requirement of the statute.2 The argument
still fails.
The government argues that Tull-Abreu "purport[ed] to
take some other action on another person's behalf," as described
in United States v. Berroa, 856 F.3d 141, 156 (1st Cir. 2017),
cert. denied sub nom. Davila v. United States, 138 S. Ct. 488
(2017) (mem.). We agree.
This court defined the scope of the "use" term of § 1028A
in Berroa. We held that the "use" term was ambiguous, and the
statute's legislative history demonstrated that the term
"require[d] that the defendant attempt to pass him or herself off
1 The government does not expressly argue waiver, though
they do note Tull-Abreu's misunderstanding of the basis for these
charges.
2 It is clear, and Tull-Abreu does not suggest otherwise,
that: (1) the government amply demonstrated at trial that the
filing of the forms was "in relation to any [enumerated] felony,"
health care fraud; and (2) the government demonstrated that the
use of patients' information was "without lawful authority" based
on testimony from a patient, see 18 U.S.C. § 1028A(a)(1).
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as another person or purport to take some other action on another
person's behalf."3 Id.
By filing each of the fraudulent CMS 1500 forms for which
he was charged, Tull-Abreu "purport[ed] to take some other action
on another person's behalf," as set forth in Berroa. The CMS 1500
forms require "the identifying information of the patient[s],
their name[s], date[s] of birth, [and] their Medicare ID
number[s]." Each count of aggravated identity theft was connected
to a particular actual patient at trial. One of the patients
testified that he would "[n]ever" have authorized Tull-Abreu to
invoice services that were not provided. The signature and date
on the authorization box meant that patients were "reassigning
their benefit payments of the claim directly to the doctor, so
that [the patients] don't have to be involved." Tull-Abreu
"use[d]" patients' "means of identification," 18 U.S.C.
§ 1028A(a)(1), and assigned benefits to himself when he submitted
the fraudulent forms.
3 In accord with Berroa, "[n]umerous . . . decisions have
upheld § 1028A(a)(1) convictions where the defendant neither stole
nor assumed the identity of the other person." United States v.
Gatwas, 910 F.3d 362, 365 (8th Cir. 2018); see also United States
v. White, 846 F.3d 170, 177 (6th Cir. 2017) (affirming a conviction
where defendant submitted to airlines "what she represented to be
actual identification that the United States Military purportedly
had issued for her clients"); United States v. Reynolds, 710 F.3d
434, 435-36 (D.C. Cir. 2013) (affirming a conviction where the
defendant submitted a document to a bank bearing the signatures of
other persons without their permission).
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Two cases from the Sixth Circuit, which we cited
approvingly in Berroa, and which Tull-Abreu cites in his counselled
brief, do not support his argument. In United States v. Miller,
734 F.3d 530 (6th Cir. 2013), the court held that the term "use"
in § 1028A was ambiguous, and required a defendant to "steal or
possess [others'] identities, impersonate them or pass himself off
as one of them, act on their behalf, or obtain anything of value
in one of their names." Id. at 541 (footnote omitted). Under
this definition, Tull-Abreu "use[d]" others' identifying
information and acted on their behalf.
In United States v. Medlock, 792 F.3d 700 (6th Cir.
2015), the Sixth Circuit rejected the government's contention that
the defendants had "'used' the name and Medicare Identification
Numbers of Medicare beneficiaries" when the defendants submitted
claims that contained some false information (chiefly that some
beneficiaries had been transported by stretcher when they had been
transported by other means, such as wheelchair). Id. at 705-06.
The defendants "did transport the specific beneficiaries whose
names they entered on the forms; they lied only about their own
eligibility for reimbursement for the service." Id. at 706. The
Sixth Circuit distinguished Medlock from a case concerning "claim
forms for trips that did not, in fact, occur." Id. at 707 (quoting
United States v. Abdelshafi, 592 F.3d 602, 605 (4th Cir. 2010)).
Tull-Abreu did not provide the listed medical services to the
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patients whose information was used on the fraudulent forms,
falling within the distinction drawn.
The more recent United States v. Michael, 882 F.3d 624
(6th Cir. 2018), also supports affirming Tull-Abreu's conviction.
There, the Sixth Circuit reversed the dismissal of an indictment
under § 1028A where the defendant, a pharmacist, used a doctor's
and a patient's identifying information to create a false
prescription and so gain reimbursement for that prescription. Id.
at 625-27. The court determined that a jury could find that the
defendant "used" the doctor's and the patient's identifying
information "even though [the defendant] did not pretend to be
them." Id. at 626 (emphasis omitted). The court held that "[a]
jury readily could find that a pharmacist who files a claim with
a patient's insurer to recoup costs the patient would otherwise
have to pay refer[s] to means of identification as such and acts
on [that patient's] behalf." Id. at 628 (alterations in original)
(internal quotation marks omitted).
Tull-Abreu's conduct as to the CMS 1500 forms fits easily
into "use" under the Berroa test.
B. Denial of Motion for a New Trial
Tull-Abreu's counselled brief challenges the denial of
his motion for a new trial under Rule 33, arguing loosely that
"intimidat[ion]" by the district court and the prosecutor
"violated" Tull-Abreu's "rights to a [f]air [t]rial and to present
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a complete defense," though he and his counsel made no objection
at the time.4
We review the denial of a Rule 33 motion for "manifest
abuse of discretion," United States v. González-González, 258 F.3d
16, 20 (1st Cir. 2001), with the "respect . . . due to the
'presider's sense of the ebb and flow of the recently concluded
trial,'" United States v. Connolly, 504 F.3d 206, 211 (1st Cir.
2007) (quoting United States v. Natanel, 938 F.2d 302, 313 (1st
Cir. 1991)).
We first provide additional context for our fact-bound
inquiry. Just after Tull-Abreu's counsel called for him to take
the witness stand, the prosecutor asked to approach the bench and
stated:
I just want to make it clear, to avoid any
issues on appeal, that the defendant has been
duly given an opportunity to make a waiver of
his rights. So I would appreciate that . . .
we take an opportunity to advise him on the
record so that he makes an informed,
4 Tull-Abreu's counselled brief also argues, in passing,
that "the [district court] denied Rule 403 objections from the
defense on three occasions," and that these rulings in part led to
a constitutional violation. Tull-Abreu does not otherwise
challenge the Rule 403 rulings, nor provide a basis for why these
evidentiary rulings constituted a constitutional violation.
Further, Tull-Abreu does not explain what specifically was wrong
with these evidentiary rulings (nor even state what the rulings
were, beyond citations to pages in the trial transcripts).
Accordingly, this argument is waived. It is
"mention[ed]" in "the most skeletal way," and so would "leav[e]
the court to do counsel's work, create the ossature for the
argument, and put flesh on its bones." United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990).
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knowledgeable and voluntary waiver of his
right not to testify . . . .
(Emphasis added). When defense counsel did not object, the
district judge agreed that this "might be a good idea," and then
excused the jury. On the record but out of the presence of the
jury, the judge told Tull-Abreu that Tull-Abreu "doesn't have to
testify at all . . . . It's a constitutional right," and that, if
Tull-Abreu chose not to testify, the judge would give a jury
instruction that "they are not to be taking that silence against
him."
After a request from the prosecutor for further
clarification (again, not objected to), the district judge then
told Tull-Abreu that if Tull-Abreu testified, "there is not going
to be any instruction to the jury concerning the right . . . to
remain silent." Tull-Abreu then asked to consult with his lawyer,
and the district judge told Tull-Abreu, "If you want to consult
with your counsel, he's right here, yeah." The prosecutor then
asked that the district judge explain to Tull-Abreu that "the
government will be able to comment . . . on everything that has to
do with his statements," and the district judge agreed and briefly
told Tull-Abreu about the possibility of cross-examination and
impeachment with respect to documents in evidence.
The court then recessed for about thirty minutes for
Tull-Abreu to consider the matter with his counsel and "make a
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very intelligent and well-oriented decision." After returning to
the courtroom, Tull-Abreu's counsel informed the judge at sidebar
that Tull-Abreu had decided not to testify.5 The defense then
rested, making no mention to the jury of Tull-Abreu's decision not
to testify.
While it may or may not have been unusual (we are given
no information) for the prosecutor to raise the topic of the
defendant being fully advised of his Fifth Amendment right not to
testify and the possible consequences of his taking the stand, our
review of the record shows no improprieties and certainly no
infringement of Tull-Abreu's rights. Though a district judge
generally is under "no duty to apprise a criminal defendant of the
right to testify or to secure an explicit waiver of that right,"
United States v. Padilla-Galarza, 886 F.3d 1, 9 (1st Cir. 2018),
it is not uncommon for district judges to make sure defendants and
witnesses are fully apprised of their testimonial rights, see,
5 Tull-Abreu's counsel stated at sidebar, in part: "What
I want to say on the record is, that following the Court's
opportunity that we discuss with our client, we have discussed it
with our client, and he has decided to exercise his constitutional
[sic] -- not . . . to testify."
Tull-Abreu's affidavit submitted with his motion for a
new trial makes the claim that the prosecutor somehow intimidated
him into not testifying by raising the issue of his Fifth Amendment
rights. We reject his assertion for a number of reasons, including
that: he was advised by his own counsel after the prosecutor raised
the issue, and his counsel disclosed to the court that Tull-Abreu
had decided not to testify. At no time during this period did
Tull-Abreu or his counsel suggest that Tull-Abreu's decision was
involuntary.
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e.g., United States v. Santiago-Becerril, 130 F.3d 11, 26 (1st
Cir. 1997) ("A judge is entitled to make sure a witness understands
her Fifth Amendment rights."); Berkovitz v. Minnesota, 505 F.3d
827, 828 (8th Cir. 2007) ("The trial court, on the record, made
sure that [the defendant] understood that she had both the right
to testify and the right to remain silent."); United States v.
Webber, 208 F.3d 545, 552 (6th Cir. 2000) (affirming the district
court's "non-coercive explanation of the law" to the defendant
about the defendant's right to testify or remain silent and
possible consequences if the defendant chose to testify).
There is no claim that there was anything wrong in the
district court's explanation of the law, and indeed the explanation
was accurate as to the right not to testify and some potential
consequences of choosing to testify (for example, possibly facing
cross-examination). Tull-Abreu had counsel at his side throughout
these exchanges, and his counsel did not object or in any manner
suggest that it was inappropriate for the government to raise the
issue; to the contrary, Tull-Abreu's counsel asked that the
prosecutor "finish" her explanation. And Tull-Abreu and his
counsel were granted a recess to contemplate the matter further
and did not ask for more time after the recess.
Further, the district judge instructed the jury after
the defense rested that Tull-Abreu was "entitled to the presumption
of innocence" and so "his silence is not to be taken against him."
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The following day, the district judge instructed the jury
similarly, with a reminder that "no inference of guilt, or of
anything else, may be drawn from the fact that [Tull-Abreu] did
not testify."
In the end, Tull-Abreu's argument rests on the
assertions that the prosecutor should not have raised the issue
(done to ensure against issues on appeal), the district court
should not have explained Tull-Abreu's rights, and the raising and
explaining of Tull-Abreu's rights essentially coerced or
intimidated Tull-Abreu into not testifying. But on this record,
accurately making sure a defendant is fully apprised of his rights
is not coercion or any such violation. Accord United States v.
Joelson, 7 F.3d 174, 178 (9th Cir. 1993). Further, Tull-Abreu
does not show prejudice, either, given the substantial amount of
evidence presented against him. See United States v. Rodríguez-
Vélez, 597 F.3d 32, 45 (1st Cir. 2010) (noting that, when
considering potential harm from a Fifth Amendment violation about
the right to remain silent, "[l]ast -- but far from least -- this
was not a close case").
C. Denial of Motion for a Judgment of Acquittal
We turn to Tull-Abreu's contention that the district
court incorrectly denied his third motion for a judgment of
acquittal pursuant to Federal Rule of Criminal Procedure 29, as to
the charges of furnishing false or fraudulent information for
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prescriptions in controlled substances. We review the denial of
a Rule 29 motion for a judgment of acquittal de novo, United States
v. Acevedo, 882 F.3d 251, 258 (1st Cir. 2018), but that review is
"quite limited" and "we must affirm unless the evidence, viewed in
the light most favorable to the government, could not have
persuaded any trier of fact of the defendant's guilt beyond a
reasonable doubt," United States v. Hernández, 218 F.3d 58, 64
(1st Cir. 2000) (quoting United States v. Paradis, 802 F.2d 553,
559 (1st Cir. 1986)).
Tull-Abreu, in his counselled brief, argues that the
evidence was insufficient for the four counts of furnishing false
or fraudulent information in prescriptions for Percocet6 because
the prescriptions could have been written "before he went to the
airport" on days when he was traveling, or could have been sent
6 The relevant statute states in part:
It shall be unlawful for any person knowingly
or intentionally -- . . .
(4)(A) to furnish false or fraudulent
material information in, or omit any
material information from, any
application, report, record, or other
document required to be made, kept, or
filed under this subchapter or subchapter
II[.]
21 U.S.C. § 843(a)(4)(A). A federal regulation concerning the
"[m]anner of issuance of prescriptions" mandates in part that
"[a]ll prescriptions for controlled substances shall be dated as
of, and signed on, the day when issued." 21 C.F.R. § 1306.05(a).
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"to the pharmacy by electronic transmission or fax" while he was
traveling out of the country. Not so.
As to Tull-Abreu's airport theory (that he could have
been in one of his medical offices on a day he traveled to or from
the Dominican Republic), three of the four prescriptions at issue
had dates that were in the middle of trips Tull-Abreu took to the
Dominican Republic, not dates on which he traveled to or from
Puerto Rico. Only the December 12, 2012, prescription corresponded
to a day when he could have returned to Puerto Rico. But his
secretaries testified that Tull-Abreu "would not come over to the
office" on days he traveled to and from the Dominican Republic,
and that he would "leave [prescriptions] ready" (that is, dated
and signed) in advance of his trips, sometimes for his secretaries
to deliver after he had left and before he returned. One secretary
explained that Tull-Abreu "would leave [the prescriptions]
prepared and ready. And then, on the date that the prescription
was due, the patient would . . . be told to come over to pick up
the prescription . . . ." A patient also testified that "if [Tull-
Abreu] had a trip, he would leave [a prescription] ready." As to
the electronic transmission theory, there was no evidence at trial
supporting it and it is contrary to the evidence just recited.
D. Substantive Reasonableness of the Sentence Imposed
Tull-Abreu's counselled brief challenges the substantive
reasonableness of his sentence, conceding the procedural
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reasonableness. Tull-Abreu's argument here is premised entirely
on his contentions that: (1) the convictions should be vacated,
and indictments should be dismissed, for aggravated identity
theft; (2) the convictions should be vacated, and the indictments
should be dismissed, for providing false and fraudulent
information for the Percocet prescriptions; and (3) Tull-Abreu's
Sixth Amendment rights were violated because he could not present
a complete defense. We have rejected each of these contentions,
and his bottom-of-the-Guidelines-range sentence is not outside the
"universe of reasonable sentences," United States v. Rivera-
González, 776 F.3d 45, 52 (1st Cir. 2015). That ends the matter.
E. Pro Se Arguments
Tull-Abreu's pro se brief raises sufficiency challenges
to his conspiracy conviction and his health care fraud convictions
and argues that his rights under the Confrontation Clause were
violated.
1. Sufficiency of the Evidence for Conspiracy to Commit
Health Care Fraud
Tull-Abreu argues pro se, and for the first time on
appeal, that his conviction for conspiracy to commit health care
fraud was not supported by sufficient evidence. This is because,
he argues, his secretaries who testified at trial did not say
"whether they agreed to participate in the alleged fraud." No
such testimony was needed for two reasons. First, such an
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agreement can "be proven solely by circumstantial evidence,"
United States v. Iwuala, 789 F.3d 1, 9 (1st Cir. 2015), and second,
an agreement can "be inferred from other evidence including a
course of conduct," United States v. Moran, 984 F.2d 1299, 1300
(1st Cir. 1993).
The jury could easily have inferred that Tull-Abreu had
an agreement, explicit or implicit, with his secretaries to take
part in the fraudulent scheme. Our recitation of the evidence
explains the key roles, over time, that the secretaries played in
the fraud. The government offered an audio recording of Tull-
Abreu explaining to two of his secretaries how they should fill
out CMS 1500 forms for services that had not been provided to
patients, including explaining why some of the CMS 1500 forms and
supporting progress notes were left undated (in Tull-Abreu's own
words, "[s]o we can put the dates on"). The audio recording has
no statements of protest from the secretaries, and inference of
agreement could be drawn from this recording alone. Three
secretaries testified, covering all four years of the fraudulent
scheme. Indeed, one secretary who worked with Tull-Abreu from
2009 to 2014 explained that she knew that "only one form per visit"
should be collected from a patient, rather than the multiple forms
that were often collected as part of the fraud.
The overall "course of conduct," id., readily supports
an inference of conspiracy. No more is needed.
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2. Sufficiency of the Evidence for Health Care Fraud
Tull-Abreu argues in his pro se brief that insufficient
evidence supported his health care fraud convictions, on the theory
that, had he falsely billed for every patient, every visit, every
week, the proceeds from the fraudulent scheme would have been far
greater than the amount stated in the government's restitution
request and the subsequent restitution order.7
To start, the government's case was not that every
patient of Tull-Abreu's was part of the fraudulent scheme; Tull-
Abreu was more selective. Further, the amount of restitution is
not relevant to the sufficiency of the evidence supporting Tull-
Abreu's convictions for health care fraud. Restitution is part of
a criminal penalty. See, e.g., United States v. Ziskind, 471 F.3d
266, 270 (1st Cir. 2006). Indeed, restitution can be based in
part on acquitted conduct, as it requires "the less stringent
preponderance of the evidence standard." United States v. Pena,
910 F.3d 591, 604 (1st Cir. 2018).
3. Right to Challenge Particular Non-Witnesses
In his pro se brief, Tull-Abreu argues that he was denied
his Sixth Amendment right to be confronted with the witnesses
against him. Tull-Abreu argues that the Confrontation Clause meant
7 Tull-Abreu incorrectly states several times in his pro
se brief that the restitution amount was $1.2 million; the actual
amount imposed was $518,775.20.
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that the government was required to call five of his patients whose
information was used on fraudulent CMS 1500 forms. The argument
is subject to plain error review,8 as it was not raised before the
district court, see United States v. Acevedo-Maldonado, 696 F.3d
150, 156 (1st Cir. 2012), and is without any merit.
It is axiomatic that "[t]he confrontation clause does
not come into play where a potential witness neither testifies nor
provides evidence at trial." United States v. Porter, 764 F.2d 1,
9 (1st Cir. 1985); see also Michigan v. Bryant, 562 U.S. 344, 354
(2011) (noting the "limit[ing of] the Confrontation Clause's reach
to testimonial statements"); Crawford v. Washington, 541 U.S. 36,
51 (2004) (noting that the Confrontation Clause "applies to
witnesses against the accused -- in other words, those who bear
testimony" (internal quotation marks omitted)). None of the five
former patients that Tull-Abreu points to were called as witnesses
by the prosecution or provided evidence at trial. Tull-Abreu was
free to call them but chose not to do so. His Sixth Amendment
rights were not violated.
8 Plain error requires a showing of "(1) 'error,' (2) that
is 'plain,' and (3) that 'affect[s] substantial rights.'" Johnson
v. United States, 520 U.S. 461, 467 (1997) (quoting United States
v. Olano, 507 U.S. 725, 732 (1993)). If those three conditions
are met, "an appellate court may then exercise its discretion to
notice a forfeited error, but only if (4) the error 'seriously
affect[s] the fairness, integrity, or public reputation of
judicial proceedings.'" Id. (some internal quotation marks
omitted) (quoting Olano, 507 U.S. at 732).
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III.
Affirmed.
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