United States v. Garcia

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS June 30, 2004 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 03-20749 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANA LILIA GARCIA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas (H-01-CR-399-5) --------------------

Before WIENER, DeMOSS and PICKERING, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Ana Lilia Garcia appeals her conviction

and sentence for eleven counts of aiding and abetting mail fraud in

violation of 18 U.S.C. §§ 1341 & 2. Her convictions stem from her

work at a clinic that provided physical therapy services to

accident victims but billed for services that were not provided.

These bills were submitted to insurance companies which in turn

issued settlement checks on behalf of the patients. Garcia

contends that the evidence presented at trial was insufficient to

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. show that she participated in or had knowledge of any fraudulent

conduct. She also argues that the government presented

insufficient evidence that the United States mail was used.

Specifically, she asserts that no one with personal knowledge of

the settlement checks testified regarding their mailing and that

none of the claimants testified that they received such checks in

the mail.

The government was required to establish Garcia’s

participation in the fraud, not that she took part in every aspect

of the scheme. See United States v. Floyd, 343 F.3d 363, 371 (5th

Cir. 2003); United States v. Tencer, 107 F.3d 1120, 1127 (5th Cir.

1997). One of the witnesses testified that he was referred to the

clinic by Garcia’s brother and that Garcia had him sign a number of

forms that were not dated or filled out. He testified that he had

signed for more therapy than he received and that he had been paid

based on this documentation. He also stated that Garcia provided

his therapy. Garcia’s brother filed a claim based on the same

accident although the witness did not recall the brother being an

occupant of his vehicle. Garcia provided some of her brother’s

physical therapy treatment. Dr. Sunil Vachhani, a chiropractor who

worked at Medcare, testified that he informed Garcia that he had

observed patient logs with signatures for patients who had not been

seen and that he had spoken with one of Garcia’s co-workers about

therapy notes being filled out for multiple days when the patient

was not present. A co-defendant testified that Garcia wrote

2 patient comments for her because Garcia’s English was better than

her own. Evidence also was presented that Garcia dealt with the

insurance companies. Viewing the evidence in the light most

favorable to the government, a rational trier of fact could have

found the evidence sufficient to establish Garcia’s knowledge of

and involvement in aiding and abetting the scheme to defraud. See

United States v. Bieganowski, 313 F.3d 264, 275 (5th Cir. 2002);

United States v. Carreon-Palacio, 267 F.3d 381, 389 (5th Cir.

2001).

Copies of the settlement checks, and in one case file copies

of the checks, issued by the insurance companies were admitted into

evidence at trial. Representatives of each of the four insurance

companies involved testified that it was their custom and practice

to mail the settlement checks. Each noted the absence of any

indication in the relevant files that this normal practice was not

followed. The jury was entitled to infer sufficient evidence of

mailing from this evidence. See United States v. Bowman, 783 F.2d

1192, 1197 (5th Cir. 1986). Garcia’s sufficiency argument

regarding use of the mails fails.

The evidence is sufficient to sustain Garcia’s conviction and

sentence. Therefore, the judgment of the district court is, in all

respects,

AFFIRMED.

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