United States v. Luis Jacinto Marti

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
___________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 18, 2008
No. 07-11422
THOMAS K. KAHN
___________________________ CLERK
D.C. Docket No. 05-20849-CR-JEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS JACINTO MARTI,
Defendant-Appellant.
___________________________
Appeal from the United States District Court
for the Southern District of Florida
____________________________
(September 18, 2008)
Before ANDERSON, HULL and SILER,* Circuit Judges.
SILER, Circuit Judge:
*
Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by
designation.
Dr. Luis Jacinto Marti was convicted on one count of conspiring to defraud the
United States, commit health care fraud, and pay and receive health care kickbacks.
He was also convicted on fifteen substantive counts of health care fraud and aiding
and abetting. The crux of Marti’s appeal is that the evidence against him was
insufficient because his signature was forged on the documents that form the basis of
the charges. Marti seeks reversal of his convictions on the following grounds:
(1) insufficient evidence; (2) prejudice from “fatally flawed” substantive counts;
(3) improper admission of evidence regarding civil violations; (4) improper admission
of evidence regarding “superbills”; and (5) improperly charging the jury on deliberate
ignorance. The district court rejected these arguments and denied Marti’s post-trial
motion for acquittal or new trial. We affirm.
BACKGROUND
Marti was indicted on one count of conspiracy to defraud the United States,
commit health care fraud, and pay and receive kickbacks under 18 U.S.C. § 371, and
fifteen counts of health care fraud and aiding and abetting under 18 U.S.C. §§ 2 and
1347. The indictment charged three other individuals with the same violations:
Onelio Baez, Juan Carlos Mateo, and Jorge Valido. The other defendants pled guilty
prior to trial. The district court described the charged conspiracy as follows:
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The Government alleged that Marti and [the other defendants] were part
of a Medicaid fraud scheme in which Medicaid recipients were induced
through payments of kickbacks and bribes to visit particular physicians
and medical clinics. Physicians at these particular clinics would
prescribe unnecessary and expensive medications, such as Intravenous
Immune Globulin (“IVIG”) drugs, which are drugs commonly
prescribed for HIV-positive or AIDS patients. These prescriptions, paid
for by Medicaid, would be filled and picked up at the particular
pharmacy that filled the prescription. The drugs would then be resold
to other pharmacies.
Marti was charged as one of the doctors who issued a number of these
prescriptions. Baez was charged as the organizer of the scheme. Mateo
was charged as a patient recruiter and Valido, another doctor, was
charged for issuing the prescriptions, and he was also charged as the
owner and operator of the Charitte Medical Center where Marti once
worked as a physician.
Order Denying Marti’s Motion for Judgment of Acquittal at 1-2.
Both Baez and Valido testified on behalf of the government at Marti’s trial.
Baez admitted his involvement in the conspiracy, but testified that he did not know
Marti and had never spoken or met with him. Baez paid others to recruit Medicaid
patients and take them to participating clinics to obtain prescriptions for IVIG drugs.
Valido was a physician in Cuba before he immigrated to the United States in 1994.
In early 2000, although not a licensed physician in the United States, Valido opened
a clinic called the Charitte Medical Center (“Charitte”). Marti was the only physician
employed at the clinic and thus was the only person at Charitte who could issue
prescriptions. He was present only once or twice per week to review the patient files
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and sign prescriptions. He spent an hour or two at the clinic each time he visited and
was paid $750 per week for his services. The clinic also employed two physician’s
assistants, who were responsible for seeing the patients, and they left prescriptions
already written out for Marti to sign when he dropped by.
In October 2000, Valido obtained a restricted license to practice medicine,
which required that he work under the direct supervision of a fully licensed physician.
Marti volunteered to be Valido’s supervising physician. Regulations required Marti
and Valido to practice in the same clinic for the first year of Valido’s restricted
license. Despite this requirement, Valido closed Charitte and began practicing at a
clinic in South Miami, while Marti practiced at an office in Hialeah. During the first
year of Valido’s restricted license, Marti visited Valido’s clinic once or twice. Valido
continued to issue medically unnecessary prescriptions for Medicaid patients at the
South Miami clinic. However, Valido could not issue prescriptions himself during
the first four months of his restricted license, and thus Marti was the only physician
at Valido’s clinic who could sign prescriptions.
Regulations also prohibited Marti from receiving compensation for supervising
Valido. Over objection, Valido briefly testified that he completed insurance company
“superbills” for the patients he saw at his office. He then gave the superbills to Marti,
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and Marti submitted them. The two would then split the money received from the
insurance companies.
In August 2001, Marti telephoned Valido because he received a subpoena for
the files of eighteen or twenty of Valido’s patients. Valido brought copies of the files
to Marti at his home. Marti reviewed the files and instructed Valido three times to
make corrections or alterations to the files before Marti delivered the files to the
Medicaid Fraud Control Unit.
In 2004, Marti testified in his deposition that the majority of the patients were
seen by Valido under his supervision. Marti identified his signature in several
patients’ files from Charitte. Six of the charts on which Marti identified his signature
were for patients who had been prescribed unnecessary IVIG drugs and who
correspond with the charges in the indictment.1 Marti further stated that he would not
have signed a patient’s chart unless he had personally observed Valido’s interaction
with the patient. Marti now admits he was untruthful in this deposition about his
supervision of Valido.
1
The charts that Marti identified as containing his signature correspond to the following
patients’ charts: GX 1-J (Count 2), GX 1-G (Count 8), GX 1-R (Count 11), GX 1-C (Count 13), GX
1-B (Count 14), and GX 1-M (Count 15). The other patients’ charts that Marti admitted contained
his signature, GX 1-F and GX 1-S, were for patients who had been prescribed IVIG drugs pursuant
to a prescription issued by Marti, according to the Medicaid records pertaining to the twenty patients
analyzed by the data (GX 15).
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Dr. Michael Wohlfeiler testified as an expert for the government. He reviewed
the files of the patients who were the basis of the substantive counts in the indictment,
and he concluded that none of the files supported or established the medical necessity
of using IVIG drugs. The files were poorly documented, lacking in the necessary
tests to establish whether IVIG treatments were appropriate, and lacking records of
the administration of IVIG drugs, which must be given intravenously with someone
monitoring the patient’s vital signs during the treatment.
Marti asserts that unauthorized recommendations for IVIG drugs were written
in the files after he had signed them. Wohlfeiler testified that many of the documents
recommending IVIG drugs appeared to be signed by someone other than Marti. The
lead investigator in the case, Lt. Eller, later conceded that no analysis of the
documents had been done before the government presented evidence to a grand jury.
At the time of trial, Eller acknowledged that he did not know whether the prescription
documents that form the basis of the substantive charges contain Marti’s genuine
signature.
Danielle Seiger, an FBI forensic document examiner, examined 401 documents
that were either prescription forms or documents from patient files and compared the
writing on them to Marti’s known signature. Seiger identified some of the signatures
on patient charts as Marti’s authentic signature. However, she found that the majority
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of the documents contained “simulated signatures,” which a layperson would refer
to as “forgeries.” Specifically, she concluded that the signatures on each of the
prescriptions that form the basis of the substantive counts were either simulations or
“not comparable to the known signatures of Dr. Marti.” Seiger testified that many of
the simulations appeared well-practiced. Based on this testimony, the government
argues that at least some of them were “authorized simulations,” meaning Marti
authorized someone else to sign his name on the documents. Seiger did not attempt
to determine whether documents had been altered after Marti signed them.
In 2006, Marti was found guilty on all counts. His motions for judgment of
acquittal and a new trial were denied. The district court sentenced him to 28 months
of imprisonment, followed by three years of supervised release, and ordered him to
pay joint and several restitution with his co-defendants in the amount of
$1,200,000.00. The district court departed downward from the Guidelines range
based on Marti’s “impeccable prior record, his contributions to the community and
society, and his advanced age [of 75] and the fact that he has relinquished his medical
license.”
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DISCUSSION
A. Sufficiency of the Evidence
We review de novo a claim that the district court erred in denying a motion for
acquittal on sufficiency of the evidence grounds. United States v. Browne, 505 F.3d
1229, 1253 (11th Cir. 2007). In so doing, we consider the evidence in the light most
favorable to the government and determine whether “a reasonable jury could
conclude that the evidence establishes guilt beyond a reasonable doubt.” Id. The
government need not disprove “every reasonable hypothesis except guilt.” Id.
However, evidence is insufficient to sustain a conviction where it is “wholly
consistent with an obvious and reasonable innocent interpretation, and where little
more than conjecture supports the hypothesis of guilt.” United States v. Kelly, 888
F.2d 732, 740 (11th Cir. 1989).
1. The Substantive Counts
Marti argues that the evidence was insufficient to sustain his convictions on the
fifteen counts of health care fraud and aiding and abetting. To prove health care fraud
under 18 U.S.C. § 1347, the government must prove “knowing and willful execution
of or attempt to execute a scheme to defraud a health-care benefit program in
connection with delivery of or payment for health care.” United States v. Mitchell,
165 F. App’x 821, 824 (11th Cir. 2006). To prove aiding and abetting under 18
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U.S.C. § 2, “the government must prove that the defendant in some way associated
himself with the criminal venture, that he wished to bring it about, and that he sought
by his actions to make it succeed.” United States v. Broadwell, 870 F.2d 594, 607
(11th Cir. 1989).
Marti claims he was a victim in the conspiracy of the other defendants, rather
than a knowing and willing participant. He asserts the evidence was insufficient
because each substantive count was based on a prescription form that contained a
forgery of his signature. The indictment lists fifteen specific counts of Medicaid
fraud, each identified by a patient’s Medicaid number and a claim date. According
to Seiger’s findings, the prescription forms that correspond to Counts Two through
Fifteen contain either simulated signatures or signatures that are not comparable to
Marti’s signature.
Even if the signatures on the prescriptions are not genuine, the trial evidence,
considered in the light most favorable to the government, is nonetheless sufficient to
support the convictions. At a minimum, there was ample evidence to support a
finding that Marti authorized the use of his signature on prescriptions for Valido’s
patients. During the period in which Valido was not licensed and was not permitted
to sign prescriptions, Marti was the only doctor at Valido’s clinic authorized to do so.
Marti’s genuine signature appears on numerous patient records containing references
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to IVIG drugs being prescribed. Also, in preparing to comply with a subpoena during
the investigation, Marti reviewed the patient files, did not disavow his signature or
the authorization for his signature, and instructed Valido to make corrections and
alterations to the charts. During his deposition, Marti again reviewed the patient files
and acknowledged his signature on them. Several of these charts belonged to the
patients who were issued the medically unnecessary prescriptions charged in the
substantive counts. Marti also admits that he falsely testified at his deposition that
he would not have signed a patient’s chart unless he had observed Valido with the
patient. Thus, sufficient evidence was presented for a reasonable jury to conclude
that, at a minimum, Marti authorized the use of his signature. As such, we need not
determine whether the jury accepted or rejected Seiger’s testimony regarding the
genuineness of the signatures.
2. The Conspiracy Charge
Marti also argues that there was insufficient evidence to sustain the conspiracy
conviction. The government must prove the following elements to establish a
conspiracy under 18 U.S.C. § 371: “(1) an agreement between two or more persons,
(2) an unlawful purpose, and (3) an overt act committed by one of the coconspirators
in furtherance of the conspiracy.” United States v. Perkins, 748 F.2d 1519, 1527
(11th Cir. 1984). The government must also prove that Marti knew of the conspiracy
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and “intended to associate himself with the objectives of the conspiracy.” United
States v. Hollifield, 870 F.2d 574, 577 (11th Cir. 1989).
While mere presence or association with others involved in a criminal
scheme is not sufficient to prove participation in a conspiracy, the
essential elements of a conspiracy can be proved by inference from the
actions of the parties or by circumstantial evidence. Direct evidence of
an agreement to join a criminal conspiracy is rare, so a defendant’s
assent can be inferred from acts furthering the conspiracy’s purpose.
The government is not required to prove that each alleged conspirator
knew all the details of the conspiracy; it is enough to establish that a
defendant knew the essentials of the conspiracy.
United States v. Mulherin, 710 F.2d 731, 738 (11th Cir. 1983) (internal citations
omitted).
The government established that Marti was the only physician working at
Charitte, and thus the only person capable of issuing prescriptions. He came to the
clinic once or twice a week for a few hours. When Valido obtained a restricted
license to practice medicine, Marti agreed to become his supervising physician. They
proceeded to ignore and violate numerous civil regulations that governed the
supervisory relationship. They also engaged in the scheme of submitting superbills
to health insurance companies and splitting the payments; this was done despite the
fact that Marti was not supposed to receive compensation for being Valido’s
supervising physician. Marti also directed Valido to alter files before turning them
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over in response to a government subpoena. Finally, Marti was admittedly untruthful
at his deposition.
None of the government’s witnesses expressly testified that Marti participated
in or knew of the conspiracy. Baez did not even know Marti. Nonetheless, the
evidence presented regarding Marti’s relationship with Valido is sufficient to
demonstrate his knowledge of and willing participation in the conspiracy.
B. “Spillover” Prejudice from Substantive Counts
Because we find the evidence sufficient to sustain all of the substantive counts,
we need not address Marti’s argument that his conspiracy conviction must be
reversed due to the spillover effect of the substantive counts.
C. Evidence of Civil Violations
Marti argues that the district court improperly admitted evidence of alleged
civil violations and allowed the government to suggest that the jury could convict
Marti based on these violations. The government presented considerable evidence
that Marti flouted the regulations governing Valido’s restricted license by not
properly supervising Valido and not reporting Valido’s misconduct. “References to
regulations are improper if their purpose or effect is to suggest to the jury that it could
find a defendant guilty by reason of his violation of the regulation.” United States v.
Jakeway, 783 F. Supp. 590, 596 (M.D. Fla. 1992); see also United States v. Stefan,
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784 F.2d 1093, 1098 (11th Cir. 1986) (“If the evidence of civil violations is
introduced for purposes other than to show criminal misapplication and the evidence
is not presented in such a way that the jury’s attention is focused on the civil
violations rather than the criminal ones, there is no error.”). We review a district
court’s decisions regarding the admission of evidence for abuse of discretion. United
States v. Arboleaz, 450 F.3d 1283, 1289 (11th Cir. 2006).
During the prosecutor’s closing argument, he stated that Marti’s failure to
report Valido’s misconduct is not a crime, but “is evidence that your common sense
tells you proves Dr. Marti was an active and willing participant in this crime.” The
district court ruled that the government did not suggest Marti was guilty solely
because he violated the regulations. Instead, the “regulations explained the
relationship between Marti and Valido and framed the government’s arguments
regarding Marti’s knowledge of the conspiracy.” The use of the regulations to
explain the relationship between Marti and Valido was permissible.
In this case, the evidence of civil violations was not “presented in such a way
that the jury’s attention [was] focused on the civil violations rather than the criminal
ones.” Stefan, 784 F.2d at 1098. Additionally, the district court gave a “curative
instruction,” stating “I caution you that the Defendant is not on trial for medical
malpractice or for any issue related to Dr. Valido’s restricted license.” The district
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court also explained that Marti could not be convicted based on negligence or
foolishness, but only if he acted with “specific intent to defraud.” Although the jury
instruction could have stated more precisely that Marti was not on trial for violating
civil regulations, it was sufficient to let the jury know that Marti could not be
convicted solely on the basis of his failure to supervise Valido.
Because evidence of the regulations was appropriate to explain the relationship
between Marti and Valido and because the district court adequately instructed the
jury, the admission of evidence that Marti violated civil regulations was not an abuse
of discretion.
D. Evidence Regarding Insurance Company Superbills
Marti next claims the district court improperly allowed Valido’s testimony
regarding the submission of superbills to health insurance companies and the fact that
Marti and Valido shared the resulting payments. Marti asserts that this testimony was
unfairly prejudicial and inadmissible under Rules 403 and 404(b) of the Federal Rules
of Evidence. Rule 404(b) states that “[e]vidence of other crimes, wrongs, or acts is
not admissible to prove the character of a person in order to show action in
conformity therewith.” Such evidence is admissible for other purposes, including to
prove knowledge or intent. Fed. R. Evid. 404(b).
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The district court characterized the superbill evidence as intrinsic and not
subject to Rule 404(b) because “it is evidence of the arrangement between Valido and
Marti in this conspiracy and demonstrates Marti’s involvement in the operation of the
[Miami] clinic.” Evidence of other crimes or acts is “not extrinsic under Rule 404(b)
if it is (1) an uncharged offense which arose out of the same transaction or series of
transactions as the charged offense, (2) necessary to complete the story of the crime,
or (3) inextricably intertwined with the evidence regarding the charged offense.”
United States v. McLean, 138 F.3d 1398, 1403 (11th Cir. 1998).
The superbills were submitted to private insurance companies and were not
involved in any scheme to bill Medicaid for improper drugs or services. Thus, the
superbill evidence is unnecessary to the jury’s understanding of the charged offenses
and therefore extrinsic. See United States v. Chilcote, 724 F.2d 1498, 1501 (11th Cir.
1984) (explaining that testimony about flight was extrinsic where “testimony about
appellant’s involvement in the crime charged would have been completely
comprehensible without testimony regarding appellant’s claimed flight”). Because
the superbill evidence is extrinsic, it is subject to Rule 404(b).
We follow a two-step analysis to determine whether extrinsic evidence is
admissible under Rule 404(b). First, the evidence “must be relevant to an issue other
than the defendant’s character.” United States v. Beechum, 582 F.2d 898, 911 (5th
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Cir. 1978). Second, the evidence must comply with Rule 403, meaning that its
probative value must not be substantially outweighed by the risk of unfair prejudice,
confusion, or misleading the jury. See id. As the district court pointed out, the
superbill evidence is relevant as proof of Marti’s relationship with Valido and to
show that Marti had some knowledge of the operation of Valido’s clinic.
When evaluating evidence under Rule 403, we “look at the evidence in a light
most favorable to its admission, maximizing its probative value and minimizing its
undue prejudicial impact.” United States v. Smith, 459 F.3d 1276, 1295 (11th Cir.
2006) (quoting United States v. Elkins, 885 F.2d 775, 784 (11th Cir. 1989)). In this
case, there was little other evidence of intent to defraud or that Marti was involved
in the operation of Valido’s clinic. This increases the probative value of the superbill
testimony. Cf. Beechum, 582 F.2d at 914 (noting if the government already “has a
strong case on the intent issue, the extrinsic evidence may add little and consequently
will be excluded more readily”). Although the district court incorrectly concluded the
superbill evidence was intrinsic, the court did not abuse its discretion in admitting the
evidence.
E. Jury Instruction on Deliberate Ignorance
Finally, Marti argues that the district court erred in charging the jury on the
theory of deliberate ignorance. We review de novo the district court’s decision to
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give a deliberate ignorance instruction. United States v. Stone, 9 F.3d 934, 937 (11th
Cir. 1993). The district court included the following statement in its charge to the
jury:
[Y]ou may find that a defendant acted knowingly if you find beyond a
reasonable doubt either, one, that the Defendant actually knew that he
was acting in furtherance of the conspiracy or committing healthcare
fraud; or, two, that he deliberately closed his eyes to what he had every
reason to believe was the fact.
A deliberate ignorance instruction “is appropriate only when there is evidence in the
record ‘showing the defendant purposely contrived to avoid learning the truth.’” Id.
(quoting United States v. Barbee, 968 F.2d 1026, 1033 (10th Cir. 1992)). Such an
instruction should not be given “when the evidence only points to either actual
knowledge or no knowledge on the part of the defendant.” Id.
Marti argues that the evidence at most demonstrated negligent supervision of
Valido, and none of the witnesses testified that Marti purposely avoided learning of
the Medicaid conspiracy. He also claims that the prosecutor repeatedly argued he was
a knowing and active participant in the conspiracy rather than arguing deliberate
ignorance. However, the prosecutor argued that Marti intentionally stayed away from
Valido’s clinic and did “everything he could to blind himself to what was going on
so that he could be in exactly the position his lawyers are going to take in front of the
jury.” The government’s presentation of evidence regarding Marti’s indifferent
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supervision of Valido shows that the government intended to present a deliberate
ignorance theory. Therefore, Marti’s argument that the government argued only a
theory of actual knowledge is unavailing.
The evidence in this case is sufficient to prove Marti’s actual knowledge. As
such, we may assume that the jury convicted on the basis of actual knowledge rather
than deliberate ignorance, see Stone, 9 F.3d at 937-38, and any error in charging the
jury on deliberate ignorance is harmless.
AFFIRMED.
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