United States v. Curtis Holden

FILED
NOT FOR PUBLICATION DEC 03 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30308
Plaintiff - Appellee, D.C. No. 2:11-cr-02064-RHW-1
v.
MEMORANDUM*
CURTIS T. HOLDEN, DBA Advanced
Podiatry Specialists PS,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Robert H. Whaley, Senior District Judge, Presiding
Argued and Submitted September 1, 2015
Seattle, Washington
Before: HAWKINS, GOULD, and IKUTA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Defendant-Appellant Dr. Curtis Holden appeals from his jury conviction for
thirty-two counts of health care fraud in violation of 18 U.S.C. § 1347. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.1
Holden contends that: (1) the district court erred when it determined that
evidence of Holden creating chart notes shortly before a state audit was
“inextricably intertwined” with the alleged fraudulent health care scheme and not
subject to the limitations of Federal Rule of Evidence 404(b) (“Rule 404(b)”); (2)
the district court abused its discretion in admitting evidence of Holden’s salary, in
excluding evidence of a witness’s prior sexual misconduct, in excluding testimony
from Holden’s treating physician, and in excluding a recorded conversation
between Holden and another witness; (3) Holden was prejudiced when the
government referred to a folder titled “Refunds Ha Ha Ha”; (4) the district court
improperly lowered the mens rea requirement for health care fraud; (5) the district
court erred by rejecting Holden’s proffered good faith jury instruction; (6) the
government improperly used civil standards to supply an element of Holden’s
criminal violations and criminal conduct; and (7) cumulative error requires
reversal.
1
We affirm Holden’s remaining claims in a published opinion filed
concurrently with this memorandum.
2
Evidentiary rulings, including whether to admit or deny evidence, are
reviewed for abuse of discretion and the underlying factual determinations for clear
error. United States v. Lukashov, 694 F.3d 1107, 1114 (9th Cir. 2012). When
reviewing a district court’s decision to admit “other acts” evidence under Rule
404(b), we review de novo whether the contested evidence falls within the scope of
the rule, and if not, we review the admittance of such evidence for an abuse of
discretion. United States v. DeGeorge, 380 F.3d 1203, 1219 (9th Cir. 2004).
Finally, we review de novo whether a jury instruction “accurately describe[s] the
elements of the charged crime,” United States v. Munguia, 704 F.3d 596, 598 (9th
Cir. 2012) (internal citation and quotation marks omitted), and review for abuse of
discretion the district court’s formulation of jury instructions, United States v.
Shipsey, 363 F.3d 962, 967 n.3 (9th Cir. 2004).
The district court did not abuse its discretion by admitting evidence that
Holden altered dates on service charts after he found out about the 2006 state audit.
We need not determine whether the evidence was “inextricably intertwined” with
the charged schemes because it was properly admitted under Rule 404(b)(2) as
evidence of intent and knowledge of the overall scheme to defraud. Further, the
district court did not abuse its discretion when it did not give a limiting instruction.
See United States v. Soliman, 813 F.2d 277, 279 (9th Cir. 1987). When the district
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court does not provide a limiting instruction, we determine whether there was an
abuse of discretion by considering whether the evidence was “closely related to the
crimes charged” and whether the jury was told that the defendant was only on trial
for the conduct alleged in the indictment. Id. Here, the 2006 state audit evidence
is closely related to Holden’s multiple schemes to defraud, and the district court
reminded the jury that Holden was only on trial for the counts in the indictment.
Holden’s five other evidentiary challenges are similarly without merit. First,
the district court did not abuse its discretion by admitting into evidence Holden’s
salary and business draws. We have no firm rule against admitting such evidence
when it qualifies under Federal Rule of Evidence 403 and here, the district court
allowed the evidence as relevant to motive, not as general evidence of Holden’s
wealth. See United States v. Reyes, 660 F.3d 454, 463–64 (9th Cir. 2011).
Moreover, the jury was properly instructed on the elements of health care fraud.
See id. at 464. Second, the district court did not abuse its discretion by refusing to
allow Holden’s treating physician to testify as a lay witness. The court was
reasonable in believing that testimony regarding medications and their effect on
Holden’s mental capacity would be based on scientific knowledge outside the
scope of Federal Rule of Evidence Rule 701.
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Third, the district court properly excluded evidence of Dr. Morton’s alleged
sexual misconduct because it was not offered for any probative basis. See United
States v. Collins, 90 F.3d 1420, 1429 (9th Cir. 1996). Fourth, the taped
conversation between Holden and Dr. Lee was properly excluded. The statements
were not “prior consistent statements” because they were made after Holden knew
about the investigation and had a motive to testify falsely, Fed. R. Evid.
801(d)(1)(B), and the statements were not “present sense impressions” because
they did not describe or explain an event Holden was currently perceiving, Fed. R.
Evid. 803(1). Finally, a new trial is not warranted because the government referred
to a folder titled “Refunds Ha Ha Ha” in its opening statement. See United States
v. Cardenas-Mendoza, 579 F.3d 1024, 1030 (9th Cir. 2009). The government did
not mention the title again throughout trial.
The district court also did not err or abuse its discretion in its jury
instructions. Even though Holden argues that the district court erred by
erroneously lowering the mens rea standard required for health care fraud, his
arguments are precluded by United States v. Dearing, 504 F.3d 897 (9th Cir.
2007). Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060 (2011), which
addressed the mens rea of willful blindness, is not to the contrary. Further, the
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district court was not required to give Holden’s proposed, more extensive good
faith jury instruction. See Shipsey, 363 F.3d at 967.
Finally, though Holden contends that the government impermissibly
confused civil and criminal standards in presenting its case against him, he does
not point to any civil statute which provided an element of his convictions.
Because there was no constitutional error, his cumulative error claim also
necessarily fails. See Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002).
AFFIRMED.
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