United States v. Walter F. Proano

Case: 10-10838 Date Filed: 08/02/2012 Page: 1 of 10
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_________________________
No. 09-15863
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D. C. Docket No. 08-20544-CR-PAS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MANUEL BARBEITE,
Defendant-Appellant.
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No. 10-10838
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D. C. Docket No. 1:08-cr-20544-PAS-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
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WALTER F. PROANO,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Florida
_________________________________________
(August 2, 2012)
Before BARKETT, EDMONDSON, and SUHRHEINRICH,* Circuit Judges.
PER CURIAM:
A jury convicted Defendants Manuel Barbeite and Walter F. Proano of
healthcare fraud and of conspiracy to commit healthcare fraud. On appeal -- by
briefs and oral argument -- Barbeite and Proano argue that they did not receive a
fair trial because the district court committed (they say) a series of reversible errors.
No reversible error is presented in this case; we affirm the district court’s decisions.
Defendants, who were both physicians, worked at an HIV clinic. Briefly
stated, Defendants and their co-conspirators (other clinic employees and the
clinic’s owners) submitted false Medicare and Medicaid claims with the agreement
*
Honorable Richard F. Suhrheinrich, United States Circuit Judge for the Sixth Circuit,
sitting by designation.
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of their patients, paid these patients cash, and kept the remaining funds for
themselves.
Defendants challenge several aspects of their joint criminal trial,1 but we will
elaborate on three issues only. First we discuss a decision of the trial judge that
both defendants appeal: admitting Dr. Wohlfeiler’s expert testimony. Second, we
discuss two issues about Proano’s Sixth Amendment right to counsel. (Barbeite
does not join Proano in the Sixth Amendment issues).
a.
The district court qualified Dr. Wohlfeiler as an expert in the diagnosis and
treatment of HIV and AIDS. Wohlfeiler testified about the medical aspects of the
pertinent Medicare/Medicaid fraud scheme, a scheme that involved false diagnoses
1
Defendants argue that they did not receive a fair trial because the district court allowed the
jury to hear evidence of their co-conspirators’ guilty pleas and because the prosecutors
improperly vouched for the credibility of witnesses. Defendants argue that their indictment was
constructively amended by the government’s arguments and by the district court’s jury
instruction. Defendants also contend that the district court improperly admitted Dr. Michael
Wohlfeiler’s expert testimony, which we discuss in the body of the opinion. And Defendants
argue that these errors, individually and cumulatively, warrant reversal of their convictions. We
affirm the district court’s decisions of all of those issues. Proano raises issues of his own, issues
in which Barbeite does not join. Proano raises two trial issues: that the district court should have
admitted him as an expert witness and that the district court should have given the jury a limiting
instruction after the prosecutor asked Proano a question about Proano’s previous employer. We
affirm the district court for those issues. Proano, also without Barbeite, raises two Sixth
Amendment issues, which we discuss in the body of the opinion.
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of and fake treatments for low blood platelet count disorders that are most
commonly suffered by -- although rare among -- AIDS patients. He reviewed the
files of patients who had visited Defendants’ HIV clinic, explained a pattern of
problematic discrepancies that he observed in all of the clinic’s patient files, and
testified about the problems he found in particular files of Defendants’ patients.
Defendants argue that we should reverse their convictions; they say parts of
Wohlfeiler’s testimony were improperly admitted. For all but one of their
complaints about Wohlfeiler’s testimony, Defendants made no objection at trial.
Defendants argue that these unobjected-to purported errors require reversal
of their convictions: Defendants argue that Wohlfeiler was not qualified as an
expert about Medicare policies, and so should have given no testimony about
whether medical treatments complied with those policies;2 Defendants argue that
Wohlfeiler improperly gave opinions that would be relevant to medical
malpractice, but not to Medicare fraud; Defendants argue that allowing
Wohlfeiler’s testimony about his own patient files was error because Defendants
could not examine Wohlfeiler’s patient files;3 and Defendants argue that Wohlfeiler
2
Wohlfeiler was not admitted as an expert on those policies and did not testify about the
policies, except on cross-examination when he was specifically asked about them.
3
Defendants objected at trial to the admission of the actual patient files; that objection was
sustained. Defendants appeal the admission of Wohlfeiler’s testimony about his patient files, to
which Defendants made no objection at trial.
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improperly testified that Barbeite’s diagnosis and treatment of a particular patient
was fraudulent.
In addition, Defendants appeal one part of Wohlfeiler’s testimony that the
district court allowed over their objection: Wohlfeiler, answering a hypothetical
question, said that the only reason for a physician to give a certain course of
treatment would be to generate income.4 Defendants argue that Wohlfeiler
impermissibly offered a legal conclusion that was unfairly prejudicial to
Defendants.
We review the district court’s decisions to which no objection was made for
plain error. We will reverse on those issues only if there was “error,” which was
“plain,” and which affected Defendants’ “substantial rights.” Johnson v. United
States, 117 S. Ct. 1544, 1548-49 (1997). Even then, we may reverse for the error
only if the error “seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id. at 1549 (quotation marks and alteration omitted). For
Wohlfeiler’s testimony to which Defendants objected, we review the district court’s
4
The pertinent part of the trial transcript reads this way:
Q. Based on your knowledge and experience, Dr. Wohlfeiler, why would
a physician treat a patient in this manner?
A. Well, I’ve got to tell you, the only thing I can think of was for income
generation.
MR. RUBINO: I’ll object. That’s out of the scope of his knowledge.
THE COURT: Overruled.
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decision for abuse of discretion. We will set aside a conviction for an evidentiary
error only if the error is not harmless; an abuse of discretion is not a reversible
error if the error had no substantial influence on the outcome of the case.
The trial evidence of Defendants’ guilt shows that the purported errors
infringed no “substantial rights” of Defendants and had no substantial influence on
the outcome of the case. Several witnesses (other than Wohlfeiler) testified that the
clinic existed for the purpose of billing Medicare for particularly expensive
treatments (often not actually given to patients), that no clinic patients had the
blood platelet disorder for which Medicare was billed, that blood tests were
“doctored” to fake the disorder, that patients were brought into the clinic by a
recruiter and were paid for their visits, and that the doctors decided which drugs to
prescribe based on how much money they could get from Medicare. According to
the testimony at trial, Defendants knew that patients were brought to the clinic by a
recruiter and that patients were paid; Defendants knew that they were billing for the
maximum amount Medicare would allow; and Defendants’ patients’ charts
obviously showed that blood test results and diagnoses were faked. So, even if the
trial court erred in admitting some of Wohlfeiler’s testimony, the decisions
Defendants appeal from were neither plain error nor harmful: no reversible error.
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b.
Proano argues that his trial lawyer was ineffective because the lawyer had a
conflict of interest: Proano says the lawyer represented one of the government’s
witnesses in an unrelated criminal case (Proano’s lawyer did not represent the
pertinent witness here for his testimony against Defendants). Proano brought the
purported conflict of interest to the trial court’s attention for the first time after
Defendants were convicted, when Proano’s new lawyer filed a motion to continue
sentencing. Proano did not move for a new trial. The district court granted
Proano’s motion to continue sentencing and made no findings about the trial
lawyer’s conflict of interest.
Proano’s ineffective assistance of counsel claim is not properly before the
Court. We will consider an ineffective assistance of counsel claim on direct appeal
if the district court record is sufficiently developed to do so. United States v.
Camacho, 40 F.3d 349, 355 (11th Cir. 1994), overruled in part on other grounds by
United States v. Sanchez, 269 F.3d 1250 (11th Cir. 2001). We do not reach
Proano’s conflict-of-interest-related ineffective assistance of counsel claim because
the district court record is insufficiently developed for us to address the merits of
Proano’s argument. Id.; see also Massaro v. United States, 123 S. Ct. 1690, 1694
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(2003) (in most cases it is preferable that a motion for ineffective assistance of
counsel be raised on collateral review rather than on direct appeal).
c.
Proano also argues that the trial judge’s instructions that Proano was not to
talk to his lawyer about his trial testimony violated his Sixth Amendment right to
counsel. Proano’s testimony spanned three days: he gave direct testimony the first
and second day and was cross-examined the second and third day. The trial judge
allowed Proano to speak to his lawyer about Proano’s testimony when the court
recessed for the evening after Proano’s first day of direct testimony.
The trial judge’s instructions changed after Proano’s second day of
testimony. The court recessed that evening before the government had finished
cross-examining Proano. The trial judge told Proano to talk to no person about his
testimony. The prosecutor asked the judge to clarify the instruction to Proano
“because you’ve been giving him a different instruction until now, that at this point
includes his lawyer.” The judge then specified that Proano could not talk that
night to his lawyer about Proano’s testimony. No objection was made.
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Proano’s cross-examination continued the next morning, which was the third
day of Proano’s testimony. That morning, before a brief recess, the judge
instructed Proano not to “talk to anyone about [his] testimony.” Proano’s lawyer
did not object. But Proano asked, “I can’t even talk to my attorney?” and the judge
answered, “No, you can’t even talk with your attorney now, because it’s just a short
break.” The court reconvened twenty-seven minutes later. Proano’s
cross-examination continued. Before the lunch recess later that day, the trial judge
advised Proano not to talk to anyone about his testimony. No objection was made.
To preserve a deprivation of assistance of counsel claim when a district court
prohibits a defendant from consulting with his attorney “a defendant or the
defendant’s counsel must indicate, on the record, a desire to confer.” Crutchfield v.
Wainwright, 803 F.2d 1103, 1109 (11th Cir. 1986) (en banc) (Hatchett, J., plurality
opinion); id. at 1118-19 (Edmondson, J., specially concurring) (making a majority
for the decision that there was no deprivation of a right to counsel because the trial
record indicated no desire to confer).
The trial judge told Proano, at three separate times during Proano’s
cross-examination, not to discuss his testimony with his lawyer. Proano’s lawyer
did not object. The record reflects only one instance of Proano himself saying
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anything about these prohibiting instructions: Proano’s question of “I can’t even
talk to my attorney?”
Proano asked this question before a short break. Proano had no
constitutional right to speak with his lawyer during that short break in the middle of
Proano’s being cross-examined. See Perry v. Leeke, 109 S. Ct. 594, 602 (1989)
(testifying defendant has no constitutional right to consult with his lawyer “in a
short recess in which it is appropriate to presume that nothing but the testimony
will be discussed.”). So we need not decide whether Proano’s one question
sufficiently indicated his desire to confer with his lawyer to preserve some
supposed Sixth Amendment claim for deprivation of assistance of counsel about
the morning break.
For the other two instances in which the trial judge instructed Proano to
speak to no person -- once specifically including Proano’s lawyer -- about his
testimony, Proano failed to preserve his deprivation of assistance of counsel claim:
no part of the record indicates that Proano wished to speak with his lawyer at either
of these times. The district court committed no plain error by just instructing
Proano not to discuss his testimony with his lawyer.
Defendants have shown no reversible error; we affirm.
AFFIRMED.
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