United States v. Martin J. Bradley, Jr.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 29, 2011
• Docket: 06-14934
• Status: Published

Opinion

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 06-14934 JUNE 29, 2011 ________________________ JOHN LEY CLERK D. C. Docket No. 05-00059-CR-4

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARTIN J. BRADLEY, JR., BIO-MED PLUS, INC., ALBERT L. TELLECHEA, MARTIN J. BRADLEY, III.,

Defendants-Appellants.

________________________

No. 06-15555 ________________________

D. C. Docket No. 05-00059-CR-BAE-4

Plaintiff-Appellee, versus

MARTIN J. BRADLEY, JR.,

Defendant-Appellant.

No. 06-15557 ________________________

MARTIN J. BRADLEY, III.,

Defendant,

NORMA BRADLEY,

Interested Party-Appellant.

No. 06-15676 ________________________

2 Plaintiff-Appellee,

ALBERT L. TELLECHEA,

No. 06-15677 ________________________

No. 07-12370 ________________________

D. C. Docket No. 05-00059-CR-4

3 versus

NORMA BRADLEY, MARTIN J. BRADLEY, JR., MARTIN J. BRADLEY, III,

Defendants-Appellants,

MARIA BRADLEY,

Defendant.

Appeals from the United States District Court for the Southern District of Georgia _________________________

(June 29, 2011)

Before TJOFLAT and CARNES, Circuit Judges, and HOOD,* District Judge.

TJOFLAT, Circuit Judge:

This case involves multiple schemes to defraud the Florida and California

Medicaid programs by causing them to pay for blood-derivative medications

(“blood-derivatives”)1 more than once. Martin J. Bradley III and his father, Martin

J. Bradley, Jr., (collectively “the Bradleys”) owned Bio-Med Plus, Inc. (“Bio-

* Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting by designation. 1 Blood-derivatives are derived from whole blood, plasma, and genetically engineered cell lines and used to treat viral diseases, immune deficiencies, and clotting disorders.

4 Med”)2, a Miami-based pharmaceutical wholesaler that purchased and sold blood-

derivatives. Beginning in 1996, in addition to purchasing blood-derivatives from

drug manufacturers, the Bradleys had Bio-Med purchase blood-derivatives that had

not been administered to the patients for whom they had been prescribed and place

those blood-derivatives in its inventory. Most of these patients were eligible for

Medicaid—that is, Florida Medicaid, California Medicaid (“Medi-Cal”), or the

Genetically Handicapped Persons Program (“GHPP”)3—and Medicaid had paid for

their prescriptions. Bio-Med thereafter sold the unused blood-derivatives to

pharmacies in Florida and California. The pharmacies, in turn, used them to fill

prescriptions and then, in most cases, obtained reimbursement from the states’

Medicaid programs.

Although these recycled blood-derivatives accounted for less than two and a

half percent of Bio-Med’s overall sales, they accounted for a much larger portion

of Bio-Med’s profits, yielding in excess of $39 million over a five-year span from

1998 through 2002.

The Government chose to prosecute the Bradleys’ schemes under the anti-

racketeering, conspiracy, mail fraud, wire fraud, and money laundering statutes, 18

2 The Bradleys incorporated Bio-Med under Florida law and owned all of its shares. 3 GHPP is a California agency.

5 U.S.C. §§ 1962, 371, 1341, 1343, and 1956, respectively, and the statutes

criminalizing the failure to disclose an interest in a financial account in a foreign

country while engaging in a pattern of illegal activity, i.e., mail fraud, wire fraud,

or money laundering, 31 U.S.C. §§ 5314 and 5322(b). The grand jury indicted

eight individuals, Bio-Med, and Interland Associates, Inc.4 All ten defendants

4 A Southern District of Georgia grand jury returned two indictments in this case. The first indictment was returned on March 22, 2005, the second, i.e., the superceding indictment, was returned on September 20, 2005. The initial indictment contained 288 counts. The superceding indictment contained 286 counts. The superceding indictment charged ten named defendants—Martin J. Bradley III, Martin J. Bradley, Jr., Jose A. Trespalacios, Edwin Rivera, Jr., Albert L. Tellechea, Marlene C. Caceres, Stephen B. Getz, Sara E. Griffin, Bio-Med Plus, Inc., and Interland Associates, Inc.—as follows. Count 1 charged all ten defendants under 18 U.S.C. § 1962©) with conducting the affairs of an “enterprise” (consisting of the defendants) through a pattern of racketeering activity, namely violations of 18 U.S.C. §§ 1341, 1343, 2314, and 1956(a)(1)(A)(i) and (B)(i), and 31 U.S.C. §§ 5314, 5322(b), 5324(a)(3), and 5324(d). The alleged purpose of the racketeering enterprise was to “obtain money for [the defendants] through mail fraud, wire fraud, interstate transportation of stolen goods and money laundering, in violation of [18 U.S.C. §§] 1341, 1343, 1956, and 2314.” Count 2 charged all ten defendants under 18 U.S.C. § 1962(d) with conspiring to commit the substantive Count 1 offense. Count 3 charged the Bradleys, Bio-Med, Tellechea, Trespalacios, and Rivera under 18 U.S.C. § 371 with conspiring to defraud Florida Medicaid, in violation of 18 U.S.C. § 1343, and to pay physicians kickbacks to induce them to refer prescriptions for intravenous immune globulin and other prescription drugs to specific pharmacies, in violation of 42 U.S.C. § 1320a-7b(b)(2)(B). Counts 4 through 32 charged the Count 3 defendants with defrauding Florida Medicaid, in violation of 18 U.S.C. § 1343. Count 33 charged the Bradleys and Bio-Med under 18 U.S.C. § 371 with conspiracy to defraud Medi-Cal and GHPP, in violation of 18 U.S.C. § 1343. Counts 34 through 53 charged the Bradleys and Bio-Med with defrauding Medi-Cal and GHPP, in violation of 18 U.S.C. § 1343. Count 54 charged the Bradleys with conspiracy to commit money laundering, in violation 18 U.S.C. § 1956(h). Counts 55 through 82 charged the Bradleys with money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i) and (B)(i). Counts 83 through 283 charged the Bradleys with money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i) and (B)(i). Count 284 charged Bradley III and Counts 285 and 286 charged Bradley, Jr., with violating 31 U.S.C. §§ 5314 and 5322(b) by failing to file a report of foreign financial transactions while committing mail fraud, wire fraud, and money laundering. In addition to the foregoing, the indictment sought the forfeiture of: (1) interests any defendant “acquired or maintained” in violation of 18 U.S.C. §§ 1962©) and (d) (anti- racketeering); (2) interests a defendant obtained in any “property involved in” the violation of 18

6 stood trial before a jury. The jury exonerated five defendants5 and returned

verdicts of guilty against four, Bradley III, Bradley, Jr., Bio-Med, and Albert L.

Tellechea.6 It found against Bradley III on Counts 1 through 54 and 83 through

284, Bradley, Jr., on Counts 1, 54, 285, and 286, Bio-Med on Counts 1 through 53,

and Tellechea on Count 3.7

The district court sentenced the Bradleys and Tellechea to terms of

imprisonment, imposed fines, and ordered them to make restitution. Bio-Med was

placed on probation, fined, and also ordered to make restitution. As part of the

Bradleys’ sentences the district court ordered forfeiture to the United States of the

Bradleys’ interests in Bio-Med. The court also ordered the Bradleys and Bio-Med

to pay to the United States jointly and severally, as forfeiture, the sum of $39.5

million. All four defendants appealed their convictions and sentences.8

U.S.C. §§ 1956 or 1957 (money laundering) and any “property traceable to such property”; and (3) interests in “any property constituting, or derived from proceeds [a defendant] obtained . . ., as the result of” the violation of 18 U.S.C. § 1343 (wire fraud). 5 The jury found Trespalacios, Rivera, Caceres, Getz, and Griffin not guilty on the counts brought against them. 6 The district court dismissed the case against Interland Associates, Inc. on its motion for judgment of acquittal made at the close of the Government’s case in chief. See Fed. R. Crim. P. 29(a). The court also granted the Bradleys’ motion for judgment of acquittal on Counts 55 through 82. See id. 7 The jury returned a special verdict on Count 1. As part of that special verdict, the jury listed, for each of the three convicted defendants, the specific numbers of the racketeering acts it found the defendants had committed beyond a reasonable doubt. 8 We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

7 Twenty-three days after the imposition of the four defendants’ sentences,

and while their convictions and sentences were on appeal, the district court, to aid

the Government in realizing the above forfeiture and the fines and special

assessments imposed on the defendants, entered an order appointing a receiver and

instructed her to marshal the defendants’ assets. The Bradleys, Bradley, Jr.’s wife,

Norma Bradley, and Tellechea appealed that order,9 and it is now before us along

with the appeals of the convictions and sentences.10

The Bradleys, Bio-Med, and Tellechea seek the reversal of their convictions

and the entry of judgments of acquittal on the ground that the jury’s verdicts lack

evidentiary support.11 Alternatively, they seek the vacation of their convictions

and remand for a new trial on the ground that adverse rulings the district court

9 We have jurisdiction under 28 U.S.C. § 1292(a)(2), which grants us jurisdiction over interlocutory orders appointing receivers. 10 No. 06-14934 is the appeal of the defendants’ convictions and sentences. The appeals of the order appointing the receiver are: No. 06-15555 (Bradley, Jr.); No. 06-15557 (Norma Bradley); No. 06-15676 (Bradley III); No. 06-15677 (Tellechea). No. 07-12370 is an appeal the Bradleys and Norma Bradley took from the district court’s order of May 17, 2007. All of these appeals have been consolidated. We previously dismissed three appeals taken by Maria Bradley, Bradley III’s wife, challenging the receivership order and orders relating to the receivership, Nos. 06-15021, 06-15022, and 06-15675. 11 All four convicted defendants moved the district court for judgments of acquittal at the close of the Government’s case in chief and at the close of all the evidence, both pursuant to Fed. R. Crim. P. 29(a), and again following the return of the jury’s verdicts, pursuant to Fed. R. Crim. P. 29©).

8 made pretrial and at trial deprived them of a fair trial.12 If neither form of relief is

forthcoming, the defendants seek resentencing on the ground that the district court

erred in applying the Sentencing Guidelines. The Bradleys, Norma Bradley, and

Tellechea challenge the order creating the receivership on the ground that the

Government does not need a receiver to collect the fines and special assessments

the defendants are required to pay because the legal remedies the law provides are

sufficient for that purpose. Nor, they argue, is a receiver needed to ensure that the

defendants satisfy their restitution obligations to the victims of their crimes.

We begin our consideration of these appeals by setting out, in part I, the

facts the Government established in its case in chief.13 In part II, we explain why,

in the light of those facts, the jury’s verdicts rest on solid ground. Part III

determines that there is no basis in the district court’s adverse rulings—both

pretrial and at trial—for granting a new trial. Part IV considers the challenges to

the defendants’ sentences, affirms Bradley III’s and Bio-Med’s sentences, vacates

12 Along with their Rule 29©) motions for judgment of acquittal, these defendants moved the district court for a new trial pursuant to Fed. R. Civ. P. 33 based on the same grounds they advance in this appeal. 13 Because we must determine whether the evidence presented at trial is sufficient to sustain the defendants’ convictions, we present the facts in part I in the light most favorable to the United States. United States v. Tampas, 493 F.3d 1291, 1297–98 (11th Cir. 2007). These facts do not need to “exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt.” Id. at 1298 (citation omitted). Rather, the question is whether those facts would enable a reasonable jury to find guilt beyond a reasonable doubt. Id.

9 Bradley, Jr.’s and Tellechea’s sentences, and remands their cases for resentencing.

Part V addresses the challenges to the receivership. Part VI concludes.

I.

The schemes to defraud the Florida and California Medicaid programs were

of varying levels of complexity. All involved the “recycling”14 of blood-

derivatives,15 numerous individuals and corporate entities, and multiple

transactions. The “Florida Medicaid Scheme” encompassed several smaller

14 The process of recycling prescription medication, as that term is colloquially understood, involves the repurchase or reacquisition and restocking of medication. It is entirely possible for this process to be legal, and in some cases it is quite beneficial. For example, a prescription drug wholesaler might obtain unused medication from a pharmacy, restock that medication, and resell it to another pharmacy or patient. Such is an example of the legitimate “secondary market” for prescription blood-derivatives. The term “recycling,” however, does include the process complained of here, where medication is dispensed to patients, repurchased from those patients after an undetermined time and in an undetermined state, and then resold. 15 In this opinion, we omit discussion of other fraudulent schemes alleged in the indictment, all involving the “diversion” of various medications, because such schemes are not relevant to the issues the defendants have raised on appeal. Though certainly related, diversion schemes differ slightly from recycling schemes. A diversion scheme involves the improper purchase or acquisition of medications, as opposed to a recycling scheme, which involves repurchase or reacquisition. The difference lies in the fact that, in a recycling scheme, the medications have been previously distributed by the manufacturer or the wholesaler, and the schemer is purchasing them on the “open” market in order to sell them for a profit; if there is a wrong, it depends on whether the medications have been properly cared for by the original purchaser and whether the secondary purchaser fully discloses and accounts for the medications’ condition. See supra note 14. In a diversion scheme, by way of contrast, the wrong is committed upon the initial purchase or acquisition. The market for diverted medications is not “open”; the market has been restricted by the manufacturer or wholesaler to certain individuals or entities, and the schemer has misrepresented himself or itself to gain access to that market. It is only after the schemer has wrongfully gained access to the medications that he or it is able to take them to a different market and sell them for a profit in a process similar to arbitrage—the practice of taking advantage of price differences in two different markets, that is, buying a product at a lower price in one (here, restricted) market and selling at a higher price in another (here, open) one.

10 schemes named for the various individuals and entities with whom the Bradleys

and Bio-Med were conducting business, including the “Infustat & Seratech

Scheme,” the “Sentry/Castro Scheme,” and the “Liz Pascual/IV Solutions

Scheme.” The “California Medicaid Scheme,” involving Medi-Cal and GHPP,

included no sub-schemes. We begin in Florida and then move to California.

A.

The Florida Medicaid Scheme was executed in this way. Physicians who

were working at AIDS clinics in the Miami area and prescribing intravenous

immune globulin (“IVIG”)16 for AIDS patients were recruited by Bradley III

confederates Harry Castro, Jose A. Trespalacios, and Tellechea17 to do two things:

(1) to have their prescriptions filled at Infustat, Inc. (“Infustat”)18 and Seratech, Inc.

16 IVIG is the general acronym for intravenous immune globulin, a blood-derivative used to treat patients with a compromised immune system. The medication is sold under a variety of names; some varieties are more expensive than others. As the acronym suggests, IVIG is infused into a patient’s body intravenously. Physicians at HIV treatment centers diagnose patients in need of IVIG infusions and clinical employees conduct the infusions. 17 Castro began recruiting the physicians while working with Tellechea and Trespalacios at Infustat, Inc.; Tellechea and Trespalacios dealt with the physicians after Castro recruited them. At some point, Castro left Infustat, purchased Sentry Drugs (the genesis of the Sentry/Castro Scheme), and started working the same scam with three of the physicians he had originally recruited for Infustat. Tellechea and Trespalacios continued to work with remaining physicians, including Dr. Patrick Cadigan and Dr. Jose Arocha. Tellechea was also linked through evidence seized from his office to two additional physicians, Dr. Karen Raben and Dr. Lawrence Feldman. 18 Infustat, a Florida corporation, was originally formed by Tellechea, Castro, and Rivera. Bradley III purchased Castro’s share after Castro left Infustat.

11 (“Seratech”),19 both “closed door pharmacies”20 in which the Bradleys possessed an

ownership interest or otherwise controlled;21 and (2) to resell back to the Bradleys

and Bio-Med the IVIG that went unused when a patient failed to appear at the

clinic for the IVIG infusion.22 For that unused IVIG, the Bradleys paid

approximately one-third the price at which Florida Medicaid had reimbursed the

pharmacies. In addition to the sale price of the IVIG, the physicians received

kickbacks for having their patients’ prescriptions filled at Infustat and Seratech; for

example, Dr. Jose Arocha and Dr. Patrick Cadigan received kickbacks of $10,000

and $5,000, respectively, each month for continuing the arrangement.

19 Seratech was incorporated under Florida law. 20 In the context of the Florida Medicaid Scheme, a “closed door pharmacy” purchased blood-derivatives from manufacturers and wholesalers for distribution, sold the medication to a limited patient population, and delivered it to the patients or the patients’ physicians for administration. 21 After filling the prescriptions, Infustat and Seratech submitted, at the beginning of each month, a mass-reimbursement request to Florida Medicaid to obtain payment for the prescriptions they filled the previous month. Like any pharmacy seeking Florida Medicaid reimbursement, these pharmacies had to provide Florida Medicaid with the patients’ Medicaid numbers to be reimbursed. The pharmacies were given the Medicaid numbers by the physicians when they prescribed IVIG for their patients. Armed with these Medicaid numbers, the pharmacies obtained reimbursement from Florida Medicaid; every month, the physicians would renew the patients’ prescriptions, and the pharmacy would submit a new reimbursement request to Florida Medicaid. Pharmacies often submitted their reimbursement requests for a group of prescriptions rather than for individual prescriptions. Although expressly permitted under—and even directed by—Florida Medicaid rules, the practice of submitting such massive requests made it highly unlikely that Florida Medicaid would closely scrutinize an individual prescription. 22 After filling an IVIG prescription, the pharmacy delivered the medication straight to the clinic for infusion by the prescribing physician.

12 About twice a month, Tellechea or Trespalacios, or both, came to the clinics,

picked up the unused IVIG, and took it to Michael Bossey, who owned MedPoint,

Inc. (“MedPoint”), a closed door pharmacy operating in the Miami area. Bossey,

in turn, delivered the IVIG to Bio-Med’s warehouse in Miami.23

Bossey provided Tellechea with the money to pay the physicians who sold

the IVIG.24 Bossey obtained the necessary funds by having MedPoint invoice Bio-

Med for the illictly-procured IVIG at the going wholesale price pharmacies were

paying wholesalers for the medication. This created the impression that MedPoint,

a pharmacy, was returning to Bio-Med the IVIG it did not need, or was swapping

IVIG for other blood-derivatives that it needed more than IVIG, and that Bio-Med,

a wholesaler, was willing to purchase the IVIG or accept it as payment.

Bio-Med subsequently sold the unused IVIG to pharmacies, both those

owned by the Bradleys and unsuspecting third party pharmacies, which used the

medications to fill prescriptions for other patients.25 Using the other patients’

23 Bossey obtained the majority of MedPoint’s blood-derivatives from legitimate sources, but, as with Bio-Med, earned a larger profit with recycled IVIG. Bossey was not indicted for his role in the Florida Medicaid Scheme and testified for the prosecution at trial. 24 Tellechea paid the physicians in cash. Bossey paid Tellechea in cash or by a check drawn on MedPoint’s bank account. Bio-Med provided Bossey with the funds needed to cover the checks. 25 Bossey, on behalf of the Bradleys and Bio-Med, sometimes forged or altered drug labels and expiration dates and affixed them to the recycled IVIG vials along with forged “pedigree” papers. A pedigree is a document designed to track the supply chain of medication, memorializing each transaction as the drugs move from manufacturer to the ultimate recipient.

13 Medicaid numbers, these pharmacies billed Florida Medicaid for the unused IVIG.

Over time, the Florida Medicaid Scheme grew to involve a second

prescription drug wholesaler owned by the Bradleys, Intermed Pharmaceutical,

Inc., d/b/a Intermed Marketing of Savannah (“Intermed”).26 Intermed ostensibly

operated as Bio-Med’s purchasing agent, but was largely used to conceal payments

made to Bossey and Tellechea and, through them, to the physicians who were

providing the unused IVIG. Bossey, on behalf of MedPoint, billed Intermed for

the unused IVIG he delivered to Bio-Med.27 Intermed, in turn, paid Bossey at

MedPoint. This gave the appearance that MedPoint was selling Intermed excess

inventory of traditionally-acquired IVIG instead of the unused IVIG Bossey was

delivering to Bio-Med’s Miami warehouse. Bio-Med provided Intermed the funds

See 21 U.S.C. § 353(e)(1)(A) (codifying the “pedigree” requirement of the Prescription Drug Marketing Act of 1987, Pub. L. No. 100-293, 102 Stat. 95, and the Prescription Drug Amendments of 1992, Pub. L. 102-353, 106 Stat. 941). A pedigree enables a person to trace the movement of a medication from its sale by the manufacturer, through its acquisition and resale by the wholesaler or repackager, to the final sale to a pharmacy. It helps in confirming that medication has been properly shipped and stored, and is useful in determining which patients to alert in the case of a recall. 26 Bradley III and Bradley, Jr., incorporated Intermed in Georgia in 1998. Bradley, Jr., served as the company’s Chief Executive Officer and Chief Financial Officer. 27 Bossey, at Bradley III’s request, frequently misstated the quantity and price of the IVIG MedPoint purportedly sold to Intermed. Bradley III worried that industry regulators would become suspicious if Intermed purchased drugs well below the industry average price, so he had Bossey increase the listed price for the IVIG and decrease the stated quantity on the invoices he sent to Intermed. Copies of these invoices found at Bio-Med included hand-written notations confirming the actual quantity of IVIG Bossey delivered to Bio-Med.

14 it needed to complete the transactions.

The amount of recycled IVIG Florida Medicaid paid for varied based on the

number of patients who had prescriptions for IVIG, but failed to appear for their

infusions. According to an assistant of Dr. Arocha,28 only a small percentage of

Dr. Arocha’s patients regularly kept their appointments at the clinic. One of Dr.

Cadigan’s assistants said that only twenty to thirty percent of Dr. Cadigan’s

patients appeared at the clinic when scheduled for an infusion;29 Dr. Cadigan

estimated that figure to be fifty percent.30 By one estimate, Bio-Med paid

approximately $200,000 every month for recycled IVIG purchased from these two

physicians. Bio-Med paid nearly the same amount for IVIG from Sentry Drugs,

the closed door pharmacy Harry Castro acquired in 2000 after leaving Infustat.31

28 Some of the IVIG Infustat sent to Dr. Arocha’s clinic came in irregular packaging—indicating that the IVIG had been recycled. Infustat billed Florida Medicaid for the medication. 29 During Dr. Cadigan’s leave of absence from the clinic, one of his assistants began supplying Tellechea with unused IVIG. When Dr. Cadigan returned, he continued the relationship. He shared the $5,000 kickback he received each month with the clinical employees who forged patient signatures certifying infusions that were never performed. Dr. Cadigan ceased providing IVIG to Tellechea in December 2001. 30 Between February 2000 and February 2001, Dr. Cadigan was the most active physician prescribing IVIG in Florida. 31 See supra note 17. Castro was not indicted for his role in the Florida Medicaid scheme; he testified as a prosecution witness at the trial. Upon leaving Infustat, Castro took with him a large quantity of IVIG from Infustat’s inventory. Castro then resold that IVIG to Bradley III; the purchase price was included in the price Bradley III paid for Castro’s interest in Infustat. Bradley III and Bio-Med continued doing business with Castro after he purchased Sentry.

15 Sentry, like MedPoint, invoiced Intermed for the unused IVIG, but delivered it to

Bio-Med’s warehouse.

The Bradleys and Bio-Med made substantial profits on every gram of

recycled IVIG resold. It purchased the medications at approximately $40 per

gram; $20 went to the physician, $10 to Bossey, and $10 to Tellechea and

Trespalacios. During the same time period, Florida Medicaid reimbursed

pharmacies for IVIG at $54 per gram. The Bradleys thereby earned a profit

somewhere in the range of $14 per gram on IVIG it acquired from the physicians.32

Another Bio-Med source of IVIG was Elizabeth (“Liz”) Pascual, who owned

the closed door pharmacy, IV Solutions, Inc (“IV Solutions”),33 and who carried

out the so-called Liz Pascual/IV Solutions Scheme.34 Bradley III contacted Pascual

in 1998 in search of IVIG.35 When Pascual informed him that IV Solutions had

none in stock, Bradley III urged her to get on a manufacturer’s waiting list for the

32 This figure assumes that the Bradleys had Bio-Med sell the recycled IVIG to pharmacies they controlled. It is possible, however, that the Bradleys might have had Bio-Med sell the IVIG to third-party pharmacies at wholesale rates, which, depending upon the circumstances, could have been higher or lower than $54. 33 IV Solutions was a privately owned Florida corporation. 34 Pascual was not indicted for her role in the scheme; she testified as a prosecution witness at the trial. 35 During 1999 and 2000, the Food and Drug Administration closed two of the five major producers of blood-derivatives, causing a major shortage of IVIG.

16 blood-derivative.36 Pascual did so, falsely indicating that she had patients in need

of IVIG; in reality, IV Solutions had no patients at all.37 In the meantime, Pascual

purchased unused IVIG from a source she developed. Pascual sold the recycled

IVIG to Bio-Med under invoices issued to Intermed. This medication often came

in irregular packaging and always without pedigree. To obscure the fact that the

IVIG was being recycled, Bradley III instructed Pascual to note on her invoices

“direct account with manufacturer,” a phrase which implied that pedigree had been

established.38 Pascual received payment for the IVIG in cashier’s checks

purchased by Intermed and delivered to her in person or by mail.

The Bradleys profited heavily from the IVIG Bio-Med obtained from

Pascual. Pascual purchased the IVIG for approximately $42 per gram and invoiced

it to Intermed at $54 per gram. Intermed invoiced it to Bio-Med at $58 per gram,

approximately the manufacturers’ price for IVIG during that period, so that the

transfer would look legitimate. Florida Medicaid reimbursed the Bradleys’

36 Pharmaceutical wholesalers, such as Bio-Med, were ineligible for the waiting list. Due to the IVIG shortage, manufacturers would distribute IVIG only to closed door pharmacies and doctors’ offices so that individual patients would be certain to get the dosage they needed. 37 This is an example of the unlawful diversion not at issue in this appeal; Pascual used false pretenses to acquire medication the manufacturer would not have sold to her absent any misdirection. 38 If Pascual failed to make the requested notation, a Bio-Med secretary would contact her on behalf of Bradley III to remind her to note the “direct account” language on her invoices to Intermed.

17 pharmacies, Infustat and Seratech, for the same IVIG at $72.89 per gram.39 On

every sale, the Bradleys and Bio-Med, through these pharmacies, effectively

retained the difference between the $54 per gram purchase price and the $72.89

reimbursement price, or $18.89 per gram.

B.

The Bradleys and Bio-Med began running the Medi-Cal/GHPP Scheme in

1998. Prior to that time, Actsys Medical, Inc. (“Actsys”), a prescription drug

wholesale business, supplied Recombinate,40 a hemophilia medication, to

pharmacies, which, in turn, obtained reimbursement from Medi-Cal or GHPP.

Actsys’ two principal owners, Jon Tamiyasu and Kelly Smith, and another

individual, Jim Williams, owned one of the closed door pharmacies, Apex

Therapeutic Care, Inc. (“Apex”), purchasing Recombinate from Actsys. As sales

representative for Apex, Williams then developed a network of hemophiliac

patients—all of whom subscribed to either Medi-Cal or GHPP—who were willing

to sell their excess Recombinate after receiving reimbursement for the medication

39 Though not explicit from the record, we assume that this was a different variety of IVIG than was involved in the Infustat & Seratech and Sentry/Castro Schemes. 40 Recombinate is a blood factor medication used to aid clotting in hemophiliacs. Apex supplied pharmacies with other medications that were similar to, and served the same purpose as, Recombinate. For simplicity, we refer to all of these medications as Recombinate.

18 from Medi-Cal or GHPP.41 After negotiating with these patients, Williams

worked out a deal whereby he, Tamiyasu, and Smith (collectively, the “Apex

Partners”) would purchase that unused Recombinate and recycle it to be resold.42

In 1998, Tamiyasu approached Bradley III with an opportunity to purchase

this unused Recombinate at discounted rate, and Bradley III agreed. Thereafter,

once Williams obtained the Recombinate from his network of patients, Smith

would remove all identifying papers from the vials and ship the vials (off the

books) to Bio-Med in Miami. Bio-Med kept the majority of the recycled

Recombinate for its own stock and sold the remainder back to Apex, which, to

accommodate its arrangement with Bio-Med, had commenced operating as a

wholesaler as well as a closed door pharmacy. Eventually the Apex Partners

stopped shipping the unused Recombinate they intended to repurchase from Bio-

Med to Miami and instead held that Recombinate in California pending the

outcome of the transaction; that Recombinate was bought and sold, then, solely on

41 Unlike patients receiving IVIG, hemophiliac patients obtained their physician- prescribed Recombinate directly from their pharmacy and performed their own infusions. The Apex Partners knew that most patients were prescribed a monthly allotment of Recombinate sufficient to allow them both daily prophylactic doses—i.e., to ensure that, at all times, they had clotting factors in their blood—and a buffer amount for emergencies. Williams asked the patients to either reduce their prophylactic dosages or stockpile the buffer amount to ensure that a sizable supply of unused Recombinate was always on hand. 42 Tamiyasu, Williams, and Smith—the Apex Partners—were not indicted; they testified for the Government at trial.

19 paper. This had the effect of washing the Recombinate clean of any taint—to an

outside observer, the Recombinate appeared to have been purchased legitimately

by Apex from Bio-Med and shipped to California from Miami even though it had

never once left the Apex Partners’ possession.

Both Bio-Med and Apex distributed the Recombinate to pharmacies, which,

unaware of how the Recombinate had been acquired, dispensed it to patients.

Apex also distributed the unused Recombinate to its patients. Medi-Cal and GHPP

reimbursed the pharmacies, including Apex, for the Recombinate at $1.28 per unit

(the rate for unused Recombinate).

Bio-Med paid the Apex Partners nearly $2.3 million for the Recombinate.

The payments were made in cash or by check written on a Bio-Med bank account.

After the Bradleys incorporated Intermed, Intermed paid the Apex Partners

approximately $2.1 million on its bank account in Savannah, Georgia. About

$300,000 more came from an account in Puerto Rico for which the Bradleys were

signatories. Finally, the Apex Partners charged another $1 million on an off-shore

credit card the Bradleys gave them. The credit card company was paid with funds

drawn on bank accounts in Nassau, Miami, and Savannah that were controlled by

the Bradleys.43

43 We discuss the circumstances of the Bradleys’ payments to the Apex Partners in more detail in subpart C, infra.

20 C.

The Bradleys and their associates attempted to camouflage the profits they

realized from the schemes. In February 1998, the Bradleys incorporated Intermed

Pharmaceutical Supply, Corp. (“IPS”)44 as a trading company headquartered in

Nassau, the Bahamas. In May and December of that year, Bradley, Jr., opened two

accounts in IPS’s name at the Nassau location of Barclays Bank PLC. A

corresponding account was opened at a SunTrust Bank in Savannah. The Bradleys

then arranged for money to be transferred from their domestic accounts, including

the SunTrust account, into the Barclays accounts. In 1998, almost $2 million was

transferred. In 1999, that figure was nearly $3 million, dropping to a little more

than $800,000 in 2000.

Funds were paid out of the Barclays accounts to several individuals and

entities involved in the schemes. The payment methods were not consistent; the

Bradleys altered their methods after realizing that certain transactions were more

easily tracked by law enforcement. The Bradleys first transferred funds out of the

IPS accounts to a Barclays account in the name of Global Biologics, a corporation

the Apex Partners created.45 The Apex Partners obtained credit cards linked to the

44 IPS and Intermed are separate and distinct corporate entities. 45 The transfers from the IPS account to the Global Biologics account were made in payment for Recombinate Apex collected and sold to Bio-Med as part of the California Medicaid Scheme.

21 Global Biologics account, which they used to purchase luxury goods and other

personal items or services. The Bradleys also withdrew funds for their own use

from the IPS accounts by arranging for credit/debit cards to be issued in their

names and funding those cards with payments from the IPS accounts at Barclays.

Later, the Bradleys ceased using the cards and instead made direct transfers from

the Barclays accounts to Infustat’s and Bio-Med’s corporate accounts and to

Tellechea’s personal bank account. These transfers totaled over $1.5 million in

1998, over $3.1 million in 1999, and just north of $845,000 in 2000.46

Neither Bradley disclosed the existence of the Barclays accounts to the

Internal Revenue Service (“IRS”) in 1999 or 2000, both failing to check the

appropriate box on Form 1040’s Schedule B acknowledging “an interest in or a

signature authority or other authority over a financial account in a foreign

country.” The Bradleys also failed to file the corresponding Treasury Department

Form 90-22.1, which is used to report income from a foreign bank account.

II.

The Bradleys and Bio-Med argue that the facts as depicted above were

insufficient to establish that they committed the crimes alleged in the

46 These transfers, ranging anywhere from tens to multiple thousands of dollars were ostensibly for pharmaceutical purchases made by IPS. However, IPS lacked the overhead costs usually associated with a business engaging in such large transactions. For example, in 1998, IPS’s telephone bill was only $26.

22 indictment—specifically, violations of the RICO, mail fraud, wire fraud, and

money laundering statutes. The Bradleys also contend that the Government failed

to make out a case under the statute requiring the reporting of foreign financial

transactions. Tellechea argues that the Government failed to prove that he

conspired to defraud Florida Medicaid or to pay physicians kickbacks for having

blood-derivative prescriptions filled at the Bradleys’ closed-door pharmacies.

We turn first, in subpart A, to the Bradleys’ and Bio-Med’s arguments, then,

in subpart B, to Tellechea’s. Finally, in subpart C, we consider Bradley III and

Tellechea’s argument that the district court erred in denying their motions for

judgment of acquittal on venue grounds.

In assessing the Bradleys’ and Bio-Med’s challenges to the sufficiency of

the evidence, we focus on the arguments they have not advanced in their briefs in

addition to those they have made. For example, they do not dispute that Bio-Med

was recycling blood-derivatives as the Government contended. Rather, they argue

that their recycling scheme did not operate to defraud Florida Medicaid, Medi-Cal,

or GHPP—that is, neither those programs nor the patients to whom the recycled

medications were administered were the victims of a fraud they perpetrated. If

they are correct, none of their convictions can stand, as each is predicated on the

23 alleged fraud perpetrated against Florida Medicaid and Medi-Cal or GHPP.

1.

Bradley III was convicted on Counts 1 through 54 and 83 through 284,

Bradley, Jr., on Counts 1, 54, 285 and 286, Bio-Med on Counts 1 through 53.47 To

make their point that the evidence failed to show fraud, these defendants direct

their argument to Count 1, which influences—if not directly controls—our

decision on the remaining counts.

Count 1 was brought under the Racketeer Influenced and Corrupt

Organizations Act (“RICO”), 18 U.S.C. § 1962©).48 Count 1 alleged that the

Bradleys, Bio-Med, Tellechea, and others constituted an “enterprise” engaged in

interstate commerce and that they conducted that enterprise “through a pattern of

47 The offenses charged in those counts are set out in note 4, supra. 48 Section 1962©) states,

It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.

18 U.S.C. § 1962©). An “enterprise includes any individual, partnership, corporation, association, or other legal entity, and any . . . group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961. “Racketeering activity” includes “any act which is indictable under . . . [18 U.S.C. §§] 1341 (relating to mail fraud), . . . 1343 (relating to wire fraud), . . . 1956 (relating to the laundering of monetary instruments), 2314 and 2315 (relating to interstate transportation of stolen property, . . . [or] any act which is indictable under the Currency and Foreign Transactions Reporting Act, [31 U.S.C. §§ 5311–30 and 31 C.F.R. Part 301].” 18 U.S.C. § 1961(1).

24 racketeering activity.”49 All of the acts that made up the pattern of racketeering

alleged in Count 1, i.e., the acts the Bradleys and Bio-Med were found to have

committed in carrying out the recycling scheme, were based on fraud—mail

49 To be found guilty of conducting an enterprise’s affairs through a “pattern of racketeering activity,” the defendant must have committed, or aided and abetted the commission of, at least two acts of racketeering activity . . . the last of which occurred within ten years . . . after the commission of a prior act of racketeering activity.” 18 U.S.C. § 1961(5). Specifically,

the Government must prove two components: the predicate acts [of racketeering] must relate to the enterprise charged, which we have referred to as the “relationship component,” . . . and the predicate acts must actually form a pattern, i.e., relate to each other and have continuity . . . which we have called the “pattern component.”

United States v. Browne, 505 F.3d 1229, 1257–58 (11th Cir. 2007) (internal quotation and

citation omitted). Regarding

the pattern component, the predicate acts must relate to each other (as distinguished from the relationship component), meaning that the predicate acts must have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise [be] interrelated by distinguishing characteristics and . . . not [be] isolated events.

Id. at 1258 (internal quotations omitted) (emphasis in original); see also H.J., Inc. v. Nw. Bell Tele. Co., 492 U.S. 229, 241, 109 S. Ct. 2893, 2902, 106 L. Ed. 2d 195 (1989) (“What a . . . prosecutor must prove is continuity of racketeering activity, or its threat, simpliciter.” (emphasis in original)). The pattern component, requiring that the predicate acts relate to each other and have continuity, may be established by demonstrating a series of related predicate acts committed over a specific period of time, i.e., a “closed-ended theory,” or by demonstrating that certain related predicate acts are either likely to be repeated in the future or are part of an entity’s regular way of doing business, i.e., an “open-ended theory.” Browne, 505 F.3d at 1259–60. “[B]ecause any combination of two factually sufficient predicate acts can support a finding of continuity, that finding—and thus the substantive RICO conviction—may stand ‘if the evidence is sufficient with respect to any [two] of the acts charged.’” Id. at 1261 (quoting Griffin v. United States, 502 U.S. 46, 56–57, 112 S. Ct. 466, 473, 116 L. Ed. 2d 371 (1991)).

25 fraud;50 wire fraud;51 transportation of blood-derivatives acquired by fraud;52

laundering money obtained by mail fraud and wire fraud;53 failure to disclose an

interest in a financial account in a foreign country while engaged in mail fraud,

wire fraud, and laundering money obtained by mail or wire fraud.54 The Bradleys

and Bio-Med do not dispute that they and the others constituted, and operated as,

an “enterprise.” Nor do they dispute that the mailings, wire communications,

transportation of blood-derivatives, monetary transactions, and failure to disclose

an interest in a foreign financial account took place as alleged in the superceding

indictment. They dispute, instead, that the jury had evidence of fraud sufficient to

50 Bradley III and Bio-Med were found to have committed mail fraud involving Med-Cal and/or GHPP in racketeering acts 65 through 82, and mail fraud involving a diversion scheme targeting the “Group Purchasing Organization” in racketeering acts 116 through 122 and 126 through 131. Bio-Med committed mail fraud involving a diversion scheme targeting “NABI” in racketeering acts 255 and 256. 51 Bradley III and Bio-Med committed wire fraud involving Florida Medicaid in racketeering acts 1 through 29, and wire fraud involving Medi-Cal and/or GHPP in racketeering acts 65 through 82. 52 In racketeering acts 30 through 34 and 83 through 87, Bradley III and Bio-Med transported IGIV (acts 30 through 34) and Recombinate (acts 83 through 87) in interstate commerce, in violation of 18 U.S.C. § 2314, “in the execution or concealment of a scheme or artifice to defraud.” Bio-Med committed this § 2314 offense, involving blood-derivatives, in racketeering acts 185 through 202. 53 Bradley, Jr., engaged in money laundering involving mail and/or wire fraud in racketeering acts 223 through 245. 54 Bradley III was found to have failed to disclose an interest in a financial account in a foreign country while engaging in a pattern of illegal conduct, i.e., mail fraud, wire fraud, and money laundering, in racketeering acts 251 and 253 (although he was only charged with acts 251 and 252). Bradley, Jr., committed the same offense in acts 253 and 254.

26 convict them on Count 1.

Bradley III and Bio-Med make the same argument with respect to their

convictions on Counts 2 through 53. Count 2 alleged a RICO conspiracy, 18

U.S.C. § 1962(d), to commit the Count 1 offense. Count 3 alleged that Bradley III

and Bio-Med conspired to defraud Florida Medicaid by wire. Counts 4 through 32

alleged that they defrauded Florida Medicaid by wire. Count 33 alleged that they

conspired to defraud Medi-Cal and GHPP by wire. Counts 34 through 53 alleged

that they defrauded Medi-Cal and GHPP by wire.

The Bradleys again make the same argument with respect to the remaining

counts of conviction. They were convicted on Count 54, which alleged that they

conspired to launder money obtained by mail fraud and/or wire fraud. Bradley III

was convicted on Counts 83 through 283 for laundering money obtained by mail

fraud and/or wire fraud. Bradley III was convicted on Count 284 and Bradley, Jr.,

was convicted on Counts 285 and 286 for failing to disclose an interest in a

financial account in a foreign country while engaging in a pattern of illegal

conduct, i.e., mail fraud, wire fraud, and money laundering.

Because the outcome of the Bradleys’ and Bio-Med’s sufficiency-of-the-

evidence arguments turn on the absence of fraud, we start with what constitutes

mail fraud and wire fraud, and how those offenses serve as elements of money

27 laundering, transportation of stolen goods, and failure to disclose foreign financial

transactions.

Mail55 and wire56 fraud are analytically identical save for the method of

execution. “Both offenses require that a person (1) intentionally participates in a

scheme or artifice to defraud another of money or property, and (2) uses or

‘causes’ the use of the mails or wires for the purpose of executing the scheme or

artifice.” United States v. Ward, 486 F.3d 1212, 1222 (11th Cir. 2007) (citing

United States v. Hewes, 729 F.2d 1302, 1320 (11th Cir. 1984) (mail fraud), and

United States v. Hasson, 333 F.3d 1264, 1270 (11th Cir. 2003) (wire fraud)). The

55 In relevant part, the mail fraud statute, 18 U.S.C. § 1341, provides that:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, . . . places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or deposits or causes to be deposited any matter or thing whatever to be sent or delivered by any private or commercial interstate carrier, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail or such carrier according to the direction thereon, . . . shall be fined under this title or imprisoned not more than 20 years, or both. 56 In relevant part, the wire fraud statute, 18 U.S.C. § 1343, provides that:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both.

28 first element, a scheme or artifice to defraud, “requires proof of a material

misrepresentation, or the omission or concealment of a material fact calculated to

deceive another out of money or property.”57 United States v. Maxwell, 579 F.3d

1282, 1299 (11th Cir. 2009) (emphasis added). “A misrepresentation is material if

it has a natural tendency to influence, or is capable of influencing, the decision

maker to whom it is addressed.” Id. (internal quotations and alteration omitted).

The second element is self-explanatory.

[A] person “causes” the mails to be used within the meaning of 18 U.S.C. § 1341, or the wires to be used within the meaning of 18 U.S.C. § 1343, when he acts “with knowledge that the use of the mails [or wires] will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended.”

Ward, 486 F.3d at 1222 (quoting Pereira v. United States, 347 U.S. 1, 8–9, 74 S.

Ct. 358, 363, 98 L. Ed. 435 (1954) (alteration in original).

Proof of intent to defraud is necessary to support convictions for mail and

57 At the time of the trial in this case, Eleventh Circuit precedent dictated that a scheme to defraud necessitated the making of a misrepresentation reasonably calculated to deceive persons of ordinary prudence and comprehension. United States v. Brown, 79 F.3d 1550, 1558–60 (11th Cir. 1996) (reversing a mail fraud conviction where the deception was easily discovered from “readily available external sources”). We have since overruled Brown and held that the mail fraud statute—and hence the wire fraud statute—prohibits “any scheme or artifice to defraud,” no matter how fanciful. United States v. Svete, 556 F.3d 1157, 1169 (11th Cir. 2009) (en banc) (emphasis in original). Because the schemes at issue in this appeal meet both standards, the change in law from one standard to another does not affect these defendants.

29 wire fraud. United States v. Jennings, 599 F.3d 1241, 1250 (11th Cir. 2010).58 “A

jury may infer an intent to defraud from the defendant’s conduct.” Maxwell, 579

F.3d at 1301. “Evidence that a defendant personally profited from a fraud may

provide circumstantial evidence of an intent to participate in that fraud.” United

States v. Naranjo, 634 F.3d 1198, 1207 (11th Cir. 2011) (citing United States v.

Navarro-Ordas, 770 F.2d 959, 966–67 (11th Cir. 1985)).

Significantly, the mail and wire fraud statutes “punish unexecuted as well as

executed schemes.” Pelletier v. Zweifel, 921 F.2d 1465, 1498 (11th Cir. 1991). It

is therefore unnecessary that the victim actually relies on the misrepresentation or

omission; proof of intent to defraud is sufficient. See id. All that is necessary is

that the scheme be reasonably calculated to deceive; the intent element of the crime

is shown by the existence of the scheme. United States v. Bruce, 488 F.2d 1224,

1229 (5th Cir. 1973).59

58 In Pelletier v. Zweifel, 921 F.2d 1465 (11th Cir. 1991), we described the required mens rea element thusly:

[T]he defendant must have had a conscious knowing intent to defraud. This mens rea element dictates, in practice, that the perpetrator of the scheme anticipate reliance. A defendant cannot possibly intend to deceive someone if he does not believe that his intended “victim” will act on his deception. Mail and wire fraud, just like common law fraud, thus entail an intention to induce the victim to act or to refrain from action in reliance upon the misrepresentation.

Id. at 1499 (internal quotation marks, citations, and alterations omitted) (emphasis in original). 59 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to

30 The mail and wire fraud statutes, 18 U.S.C. §§ 1341, 1343, do not define

what constitutes a scheme to defraud. In the absence of a statutory definition, the

courts have provided a judicial framework for conceptualizing a fraudulent

scheme. See United States v. Pendergraft, 297 F.3d 1198, 1208 (11th Cir. 2002)

(“[T]he meaning of ‘scheme to defraud’ has been judicially defined.” (citing

United States v. Lemire, 720 F.2d 1327, 1335 (D.C. Cir. 1983)).

That framework defies measure by a technical standard, Bruce, 448 F.2d at

1229, but gives us a handy measure to articulate what constitutes a “scheme to

defraud,” Pendergraft, 297 F.3d at 1208. Pursuant to the judicial definition, a

“scheme to defraud” is broader than the common law conception of fraud. Id.

(citing Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S. Ct. 511, 512, 68

L. Ed. 968 (1924)). Our definition “is a reflection of moral uprightness, of

fundamental honesty, fair play and right dealing in the general and business life of

members of society.” Gregory v. United States, 253 F.2d 104, 109 (5th Cir. 1958).

But despite its breadth, the judicial definition does not lack teeth; “the word still

signifies ‘the deprivation of something of value by trick, deceit, chicane, or

overreaching.’” Pendergraft, 297 F.3d at 1208–09 (quoting Hammerschmidt, 265

U.S. at 188, 44 S. Ct. at 512). To gauge a defendant’s intent to commit a

October 1, 1981.

31 fraudulent scheme, then, we must determine whether the defendant attempted to

obtain, by deceptive means, something to which he was not entitled.

In the present case, proof of an intent to engage in mail and wire fraud was

necessary for the Government to obtain convictions on the counts alleging

transportation of stolen goods in interstate commerce, 18 U.S.C. § 2314,60 and

money laundering, 18 U.S.C. §§ 1956(a)(1)(A)(i)61 (concerning so-called

60 In relevant part, the transportation of stolen goods statute, 18 U.S.C. § 2314, provides that:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transports or causes to be transported, or induces any person or persons to travel in, or to be transported in interstate or foreign commerce in the execution or concealment of a scheme or artifice to defraud that person or those persons of money or property having a value of $5,000 or more ... .... Shall be fined under this title or imprisoned not more than ten years, or both. 61 In relevant part, the promotional money laundering statute, 18 U.S.C. § 1956(a)(1)(A)(i), provides that:

(a) (1) Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity— (A) (i) with the intent to promote the carrying on of specified unlawful activity . . . .... .... shall be sentenced to a fine of not more than $500,000 or twice the value of the property involved in the transaction, whichever is greater, or

32 “promotional money laundering”) and 1956(a)(1)(B)(i)62 (concerning so-called

“concealment money laundering”). Proof of mail or wire fraud was necessary to

obtain a conviction for the transportation of stolen goods in interstate commerce

because that offense, as charged in this case, requires that the transported goods be

moved in connection with a scheme or artifice to defraud. 18 U.S.C. § 2314.

Proof of mail or wire fraud was also necessary to obtain a conviction for money

imprisonment for not more than twenty years, or both. For purposes of this paragraph, a financial transaction shall be considered to be one involving the proceeds of specified unlawful activity if it is part of a set of parallel or dependent transactions, any one of which involves the proceeds of specified unlawful activity, and all of which are part of a single plan or arrangement. 62 In relevant part, the concealment money laundering statute, 18 U.S.C. § 1956(a)(1)(B)(i), provides that:

(a) (1) Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity— .... (B) knowing that the transaction is designed in whole or in part— (i) to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity . . . .... shall be sentenced to a fine of not more than $500,000 or twice the value of the property involved in the transaction, whichever is greater, or imprisonment for not more than twenty years, or both. For purposes of this paragraph, a financial transaction shall be considered to be one involving the proceeds of specified unlawful activity if it is part of a set of parallel or dependent transactions, any one of which involves the proceeds of specified unlawful activity, and all of which are part of a single plan or arrangement.

33 laundering because that offense—whether promotional money laundering or

concealment money laundering—prohibits financial transactions involving the

proceeds of “unlawful activity,” a defined term that includes both mail and wire

fraud, 18 U.S.C. §§ 1956(c)(7)(A) and 1961(1)(B).63

c.

As charged, proof of mail or wire fraud was likewise necessary to sustain the

convictions for failure to disclose a foreign financial interest, 31 U.S.C. §§ 5314,

5322(b). Section 5314 charges the United States Secretary of the Treasury with

requiring United States taxpayers to keep records pertaining to financial

transactions with foreign agencies, 31 U.S.C. § 5314(a), and with prescribing

regulations pertaining to the keeping of those records, 31 U.S.C. § 5314(b), and

their disclosure, 31 U.S.C. § 5314©). Section 5322(b) imposes criminal penalties

on any individual who willfully violates the Secretary’s regulations “while [also]

violating another law of the United States or as part of a pattern of illegal activity

involving more than $100,000 in a 12-month period.” At trial, the Government

argued that the Bradleys had failed to disclose their interests in a foreign financial

institution in violation of regulations prescribed pursuant to § 5314 while also

63 The money laundering statute’s definition of “unlawful activity,” 18 U.S.C. § 1956(c)(7)(A), expressly incorporates the RICO statute’s list of predicate acts, 18 U.S.C. § 1961(1)(B), which includes both mail and wire fraud.

34 committing mail and wire fraud and as a part of a pattern of illegal, racketeering

activity, which, as stated supra, consisted solely of mail and wire fraud and other

acts predicated on a scheme to defraud. Without proof of mail or wire fraud, then,

the Government could not prove its case, as alleged in the indictment, under

§ 5322(b).

2.

The evidence against the Bradleys and Bio-Med was sufficient to prove that

they engaged in a scheme to defraud Florida Medicaid, Medi-Cal, and GHPP. As

such, we affirm the jury’s verdicts and the district court’s denial of the defendants’

motions for judgments of acquittal on both schemes.

In sum, we hold that a reasonable jury could have found the following.

Florida Medicaid, Medi-Cal, and GHPP never intended to reimburse for recycled

blood-derivatives that had been previously dispensed. For that reason, the

programs had policies that indicated as much to any reasonable observer.

The Bradleys and Bio-Med knew of these policies. Despite knowing that the

programs would not knowingly pay for recycled blood-derivatives—and that

Medicaid patients would eventually receive the lion’s share of the IVIG and

Recombinate sold by Bio-Med—the Bradleys and Bio-Med, with the help of

several compatriots, purchased recycled medications at discount prices from

35 complicit physicians and patients with the intent to resell them for a significant

profit. To ensure that they were not found out, these defendants went to great

lengths to disguise the fact that those drugs had been recycled. And once in

possession of blood-derivatives they knew to be recycled, the defendants

intentionally sold them off, at full wholesale prices, to pharmacies—including

Infustat and Seratech, which dealt almost exclusively with Medicaid patients—that

billed the Medicaid programs as if the blood-derivatives had never been recycled.

The Bradleys’ and Bio-Med’s practice thus induced Florida Medicaid, Medi-Cal,

and GHPP to reimburse for drugs, often for a second time, when the programs

otherwise would have refused.

The evidence presented at trial is far too expansive to catalogue in any detail,

so the following is but a brief and incomplete summary of the relevant testimony.

We begin with the evidence concerning the Florida Medicaid Scheme and the

evidence regarding Medi-Cal and GHPP. We then confront the defendants’ legal

arguments as to the sufficiency of that evidence.

Jerry Wells, the Bureau Chief of Pharmacy Services for Florida Medicaid,

testified that the program’s “policies”64 require medication to have been dispensed

64 We refer in this opinion to certain “policies” of the Medicaid programs. These policies can be, in some cases, express—written and promulgated—and, in others,

36 to a patient before the dispensing pharmacy is reimbursed. Wells explained that

Florida Medicaid does allow pharmacies to deliver blood-derivatives directly to a

doctor’s office or to the patient for home-infusion, but that the patient must receive

the medication before the pharmacy can submit a reimbursement request—in other

words, that the patient should be at the doctor’s office when the pharmacy delivers

the medication. If the patient is not at the doctor’s office to receive the blood-

derivative, the pharmacy is supposed to put the medication back in stock and

“reverse” the charges to Florida Medicaid—that is, to credit Florida Medicaid with

the value of the blood-derivatives. According to Wells, Medicaid would not

knowingly pay for a blood-derivative that had been “dropped-off” at a doctor’s

office without some showing that the medication had actually been given to the

patient for whom it had been prescribed.65

What we take, and what the jury presumably took, from Wells’s testimony is

that once a medication is marked as dispensed and reimbursement is paid for it,

Medicaid considers the medication administered to the patient for whom it was

implied—known to those in the health-care industry—but are nonetheless clearly established. As such, we do not distinguish between promulgated and non-promulgated policies. It is for this reason that we disagree with Bio-Med’s contention that it was permitted to resell recycled blood-derivatives in the absence of an express written regulation forbidding it. If Bio-Med knew that its conduct would cause the Medicaid programs to reimburse for medication they did not intend to cover, that was enough. 65 This is an example of so-called “drop-off dispensing.” Wells testified that “drop-off dispensing” is not permitted pursuant to Medicaid rules.

37 dispensed and would not reimburse for it a second time. It was therefore

reasonable for the jury to draw from Wells’s testimony that Florida Medicaid

intended to pay for blood-derivatives once, and only once, and that causing Florida

Medicaid to reimburse twice for medications that had been marked as dispensed,

and for which reimbursement had already been paid, was nothing other than

fraudulent. Wells himself stated as much, if not in those exact words:

Q. Does Florida Medicaid pay for the same drug twice? A. Only in fraudulent situations. Q. Unknowingly? A. Unknowingly. Q. Does Florida Medicaid pay for a drug that has never been administered to a patient? A. Only unknowingly.

It was also reasonable for the jury to find, based on the testimony of several

witnesses, that the Bradleys, Bio-Med employees, and related associates for whom

the Bradleys and Bio-Med were responsible knew Florida Medicaid would not,

absent misdirection, reimburse a second time for a blood-derivative that had not

actually been administered to the patient the first time around. Several of the

participants in the Florida Medicaid scheme, namely Dr. Cadigan and his nurse,

testified that they were told by Tellechea that he would purchase IVIG from them

if they stockpiled the medication whenever a patient did not appear. Most, but not

all, of those patients, Tellechea knew, were covered by Florida Medicaid. As a

38 prerequisite to stockpiling those blood-derivatives, Dr. Cadigan and his nurse

forged patient signatures on documents provided to them by Tellechea, and which

Tellechea required them to have completed. From that testimony, the jury could

have inferred that Tellechea knew Florida Medicaid intended that all dispensed

medication be used by patients and not recycled for resale; otherwise, why would

Florida Medicaid require patient signatures, and why would Tellechea have Dr.

Cadigan’s associate forge those signatures?

Once it found that Tellechea knew that Florida Medicaid would not

reimburse a second time for blood-derivatives the program considered used by

patients, a reasonable jury could have taken the next step and inferred that the

Bradleys, and thus Bio-Med, knew as well. First, the evidence established that

Bio-Med was a leader in the prescription pharmaceutical industry. Bradley III, as

CEO of Bio-Med, consequently had reason to know how Medicaid reimbursed the

pharmacies he supplied. Moreover, Bradley III and Tellechea were business

partners, and Tellechea sold Bio-Med the IVIG he collected from Dr. Cadigan. It

seems reasonable to believe that, even if he did not know of the Medicaid policy on

his own, Bradley III would have learned of it through Tellechea.

The defendants’ attempts to forge and obscure the drugs’ pedigree provides

additional circumstantial evidence that Bradley III and Bio-Med knew that Florida

39 Medicaid would not pay for recycled drugs. Witness testimony established that

Bradley III and his associates worked out a means of obscuring the pedigree

associated with the IVIG they obtained from Dr. Cadigan and others. For example,

Bossey testified that he received IVIG from Tellechea and others that was

supposed to be “administered to patients but . . . never received [by] them. They

were [instead] given to me.”66 Worried that inspectors might ask him where he

obtained the medication, Bossey approached Bradley III about his concerns.

Bradley III responded by having Bossey invoice IVIG to Intermed in Savannah

instead of directly to Bio-Med in Miami; Bossey understood that Bradley III

structured the transactions in this way because inspectors from Georgia would not

be able to trace the pedigree back to Bossey once Bio-Med purchased the IVIG

from Intermed.

Bossey also testified to Bradley III’s desire to directly mislead Florida

pharmaceutical inspectors. According to Bossey, Bradley III asked him to halve

the amount of IVIG listed on the invoices and double the price; this, said Bossey,

made the transaction look legitimate, as the abnormally low price might have

drawn the inspector’s “attention.” Moreover, Bossey testified that Bradley III told

66 Bossey testified that he and Bradley III shared a joke about the source of the IVIG. Bossey told the jury that he invoiced the medication to “BM,” which stood for both Bio-Med and, in the joke, “black market.” Larry Pinkoff, another prosecution witness, testified that Bradley III was aware that the blood-derivatives Bio-Med was buying were “street” drugs.

40 him to be on the lookout for control numbers written with invisible ink that would

allow inspectors to trace IVIG originating at Bio-Med back to Bio-Med.

Marty Bradley warned me, he said, “listen, if you get any boxes of IVIG from your sources, make sure that you look at the bottom of the box to see with a black light or if you -- shift the box in light, you’ll be able to see the indentations from the pen that there are control numbers. If there are control numbers on the product, that means that I cannot take them back, so be careful.”

Bossey’s testimony was largely corroborated by Castro67 and Pascual,68 both

of whom testified that Bradley III instructed them to structure transactions of

recycled medication to confuse the pedigree.69 Also, Susan Bryan, a former Bio-

Med employee, testified that the IVIG Bio-Med obtained was known as “ASS”

67 Castro testified that he recruited doctors who primarily served patients covered by Florida Medicaid. He also testified that specific IVIG sold by Bio-Med to Infustat was repurchased by Bio-Med after it was supposedly distributed to a patient; he personally sold IVIG matching that description to Bradley III. Finally, Castro testified that Florida Medicaid, to his knowledge, actually paid twice for the same IVIG. 68 In relevant part, Pascual testified that she obtained IVIG from an individual who sold the medication out of the bed of his truck without pedigree and who never provided her an account of where he had obtained the IVIG. As related supra, Bradley III instructed her to falsely indicate that pedigree had been established as to that IVIG. A reasonable jury could have found that Bradley III’s instruction, repeated by his secretary, demonstrated his knowledge that he was not permitted to resell Pascual’s recycled IVIG to pharmacies pursuant to Florida Medicaid policy. 69 Unlike Bio-Med, we do not find it legally significant that the pedigree requirements were not being enforced at the time Bradley III instructed Pascual and possibly Bossey to include statements on invoices they submitted to Bio-Med implying pedigree had been established. Whether or not the Bradleys’ failure to maintain acceptable pedigree papers under the PDMA, 21 U.S.C. § 353(e)(1)(A), was grounds for punitive regulatory action, the false invoices still constitute evidence that Bradley III and Bio-Med knew of Florida Medicaid’s policies and were attempting to subvert them.

41 product because “it was [Bradley III’s] ASS if he got caught selling it.”

Moreover, the Government presented evidence from which a reasonable jury

could have inferred that Bradley, Jr., was aware that some portion of Bio-Med

products was obtained by, in his words, “fraud.” Smith, one of the Apex Partners,

testified that, at a meeting in California between the Apex Partners and the

Bradleys to discuss payment methods—the Apex Partners had trouble cashing

“that many checks”—Bradley, Jr., “kind of yelled out, you guys are talking about

insurance fraud, you’re all going to end up in the big house and this has to stop

right now.” The jury could have inferred from this statement that Bradley, Jr.,

understood that Bio-Med’s recycling business violated Medicaid rules.

Finally, the evidence was sufficient to show that the Bradleys, Bio-Med, and

their associates knew the IVIG they had received, or a portion of that IVIG, would

again be distributed to Medicaid patients and billed to the state program. Bio-Med

sold IVIG to its related pharmacies, Infustat and Seratech, both of which Bio-Med

knew primarily catered to Florida Medicaid patients. And, even when Bio-Med

sold to outside pharmacies, the nature of the blood-derivative business made it

inevitable that Bio-Med’s recycled IVIG would be dispensed to patients covered

by the program.

From all this, a reasonable jury could have understood the evidence to prove

42 that the Bradleys and Bio-Med knew Florida Medicaid would not have reimbursed

for IVIG sold by Bio-Med had it known where Bio-Med had obtained the

medication. Thus, it was reasonable to believe that, by failing to inform the

program of the IVIG’s source and/or by concealing that source, these defendants

knowingly caused Florida Medicaid to reimburse for medication the program did

not intend to cover.70

The evidence was likewise sufficient as to Medi-Cal and GHPP. Douglas

Hillbloom, a former employee in the Department of Health Services, testified that

“[t]he [California] Board of Pharmacy would not allow medication once [it] had

been dispensed to a patient to be returned.” This was, he said, because “[o]nce it

leaves the control of the pharmacy, it was not under the control of the pharmacy or

a Board of Pharmacy regulation regarding storage.” Thus, at that time in

California, once blood-derivatives such as Recombinate had been dispensed to a

patient, Medi-Cal and GHPP assumed they would be used—if unused, the

medication was to be thrown out or disposed of, but “technically” should be

70 We also do not find it legally significant that the Government failed to prove that Bio- Med’s recycled IVIG was dangerous to patients or otherwise less effective than traditionally obtained IVIG. If Florida Medicaid did not intend to reimburse for the recycled blood- derivatives sold by Bio-Med, it does not matter if those blood-derivatives were otherwise perfectly safe.

43 destroyed.71 Hillbloom went on to distinguish the recycling of dispensed

Recombinate from the legitimate market in prescription medication “secondary

sales,”72 and to explain that Medi-Cal never intended to reimburse for recycled

Recombinate.

Following Hilbloom was Harry Fry, an employee with GHPP, who testified

that, much like Medi-Cal, GHPP would not “allow payment of drugs for use by

anyone else but the person to whom it was dispensed.” In other words, just like

Medi-Cal, once blood-derivatives like Recombinate had been dispensed to a

patient, GHPP assumed they had either been used or destroyed by that patient.

Knowledge of Medi-Cal’s and GHPP’s policies was widespread. Other

industry representatives testified that it was well known that the California

programs did not expect to reimburse for previously dispensed medication. David

Roy, the Director of Client Services at American Home Care Federation, a

71 The defendants contend that no such written policy existed. Again, as we previously stated, the existence of a promulgated policy is immaterial so long as the parties involved knew that Medi-Cal and GHPP considered dispensed medication to have been used and would not reimburse for that medication a second time. There is sufficient evidence in the record before us that such a policy existed and that the Bradleys and Bio-Med were aware of that policy. 72 The secondary sales market includes, but is not limited to, swaps and sales of blood- derivatives amongst wholesalers, repackagers, and pharmacies. See supra notes 14 (defining recycling) and 25 (explaining the use of pedigree papers to trace medication from manufacturer through end user).

44 specialty “home-infusion pharmacy,”73 explained that he believed it was “against

the law” to recycle dispensed medication and stated that he would not have

dispensed recycled medication had he been informed of its status. And Lawrence

Guiheen, President of Biopharmaceuticals for Baxter Healthcare, a pharmaceutical

manufacturer, similarly testified that neither his company, manufacturers generally,

or pharmacies were allowed under California pharmacy regulations to accept

returned medications once they had been dispensed to patients.

From this testimony, a reasonable jury could have found that Medi-Cal and

GHPP had policies against reimbursing for recycled medication. Furthermore, the

evidence showed that Bio-Med, through Bradley III, knew of that policy and

ignored it. Bradley III was an experienced professional in the prescription

pharmaceutical business and presumably had the same information about Medi-Cal

and GHPP’s policies as the industry insiders who testified at trial. Intermed’s

invoices also suggested this knowledge; a sentence on the invoices stated that all

sales were final—that is, that blood-derivatives could not be returned.

Furthermore, Tamiyasu and Williams, two of the Apex partners, both of whom

were involved in the California Medicaid Scheme, each testified that Bradley III

was aware that Medi-Cal and GHPP would not allow recycled Recombinate to be

73 A home-infusion pharmacy is a closed door pharmacy that provides its patients with access to medical personnel and equipment if necessary to complete the infusion process.

45 resold if the programs ever became aware that the medication had already been

dispensed to a patient.

A reasonable jury could also have found that Medi-Cal and GHPP actually

paid a second time for medications Bio-Med purchased from patients. First, there

was testimony that, on at least one occasion, a vial of Recombinate was

repurchased from a patient and eventually dispensed a second time with the

original patient’s label still attached.74 Finally, Lawrence Guiheen testified that

Medi-Cal and his company, Baxter Healthcare, discovered that Medi-Cal had

reimbursed for more Recombinate than Baxter had produced, something Guiheen

74 Williams testified to this point, but could not be sure that the Recombinate was purchased by Bio-Med. His testimony, in relevant part, was as follows:

Q. When you were buying product back from the patient, did the label stay on it? A. One time it did. Q. Describe that. A. Well, someone had sold factor back to me. And I had passed it on to either Jon [Tamiyasu] or Kelly [Smith] with the label still attached. And I passed it on to Jon and Kelly and they had apparently counted [the vial of Recombinate] with a number of other vials. I neglected to pull -- the customer neglected to pull the label off. I neglected to pull the label off. Furthermore, my partners forgot to pull the label off. And I don’t know if it went to Bio-Med and came back. At any rate it came back, and ultimately got back to the pharmacy with that same label. Q. Was that product that was billed to Medicaid? A. Yes, I believe so.

Even though Williams could not positively state that the Recombinate was purchased by Bio- Med, given his testimony it would have been reasonable for the jury to find that Bio-Med had caused Medi-Cal or GHPP, or both, to reimburse twice for the same medication at some time or another.

46 originally attributed to an accounting mistake, but later understood to have been

caused by the product “being resold” or a similar “illegal” act.

It was therefore reasonable for this jury to believe that, just like Florida

Medicaid, Medi-Cal and GHPP reimbursed for blood-derivatives a second time, in

violation of their policies, and that the Bradleys, Bio-Med, and their associates

caused or participated in the offending scheme. That the Bradleys and Bio-Med

actually consummated their schemes only strengthens the inference that the

defendants intended to participate in a fraud. See Maxwell, 579 F.3d at 1301

(permitting the jury to infer an intent to defraud when a defendant completes the

fraudulent act). And the disproportionate profits the Bradleys and Bio-Med

realized from their schemes again reinforces the jury verdict. See Naranjo, 634

F.3d at 1208 (permitting the jury to infer an intent to defraud based on the amount

of profit realized from a scheme). Accordingly, under the mail and wire fraud

statutes’ definition of a scheme or artifice to defraud, the defendants’ conduct in

both cases was fraudulent.

The Bradleys and Bio-Med advance two arguments against this conclusion.

First, as discussed supra, they contend that the programs had no policies against

reimbursing for recycled drugs, or, alternatively, that they were unaware of those

47 policies. The defendants claim that the trial testimony provided by Florida

Medicaid, Medi-Cal, and GHPP representatives, and the testimony of industry

experts, was merely a post-hoc attempt imply that such policies had existed. In

the absence of an applicable policy, the defendants conclude they could not have

defrauded the programs because the programs would have paid for the drugs even

if they knew the drugs were recycled.

This argument has two flaws, one factual and one theoretical. Factually, the

trial testimony established that such policies did exist and that the defendants knew

of them. Indeed, if the defendants thought that the programs would pay for

recycled drugs, why did they go to such great lengths to conceal the fact that the

medications had been recycled?75

Theoretically, even if the policies had of existed, the defendants still

committed fraud; the defendants’ belief that the programs would not pay for

recycled drugs—as evidenced by their pains to conceal their nature—is sufficient

under the mail and wire fraud statutes. These statutes “punish unexecuted, as well

as executed, schemes.” Pelletier, 921 F.2d at 1498. Here, the evidence supports

75 In this regard, it would have been reasonable for the jury to disbelieve Bradley III’s testimony that he never knew of any policies and that he never intended for the Medicaid programs to pay for recycled IVIG and Recombinate contrary to those policies. See United States v. Mateos, 623 F.3d 1350, 1362 (11th Cir. 2010) (“A defendant who chooses to testify runs the risk that the jury will disbelieve her testimony and ‘runs the risk that if disbelieved the jury might conclude the opposite of [her] testimony is true.’” (quoting United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995))).

48 the jury’s finding that the defendants intended to take part in a scheme that had, as

its purpose, the goal of causing Medicaid programs, by way of misinformation, to

reimburse for medications for which they believed the programs did not intend to

reimburse. For our purposes, that is enough. See, e.g., Kemp v. Am. Tel. & Tel.

Co., 393 F.3d 1354, 1359–60 (11th Cir. 2004) (recognizing a duty to inform

customers of certain information where failure to do so would cause the customer

to be misled) (citing, inter alia, United States v. Townley, 665 F.2d 579, 585 (5th

Cir. 1982) (noting that “under the mail fraud statute, it is just as unlawful to speak

‘half truths’ or to omit to state facts necessary to make the statements made, in

light of the circumstances under which they were made, not misleading”)); see also

Hasson, 333 F.3d at 1270–71 (“A scheme to defraud requires proof of material

misrepresentations, or the omission or concealment of material facts, . . .,

reasonably calculated to deceive . . . .” (citing Neder v. United States, 527 U.S. 1,

25, 119 S. Ct. 1827, 1841, 144 L. Ed. 2d 35 (1999))); Langford v. Rite Aid of Ala.,

Inc., 231 F.3d 1308, 1312 (11th Cir. 2000) (“Intent to defraud need not be shown

through active misrepresentation—material omissions can be fraudulent if they are

intended to create a false impression.”).

As for their second argument, the Bradleys and Bio-Med argue that, even

assuming that their conduct was fraudulent, United States v. Medina, 485 F.3d

49 1291 (11th Cir. 2007), required the Government to precisely trace the recycled

prescriptions to show that Florida Medicaid, Medi-Cal, and GHPP paid twice for at

least one specific dose of recycled drugs. This argument fails as well.

In Medina, we reversed one defendant’s conviction under the health care

fraud statute, 18 U.S.C. § 1347,76 because the Government failed to prove that the

defendants engaged in transactions with the necessary intent to defraud. At trial,

the Government’s sole evidence proving this point consisted of testimony by a law

enforcement officer regarding the defendant’s “general practice” of billing

Medicare for traditionally manufactured medications while providing instead “a

‘compounded’ medication . . . mixed in the pharmacy.” Medina, 485 F.3d at 1299.

That officer did not, however, point to any specific transactions in which the

defendants actually sold compounded drugs, but billed for traditionally

manufactured medication. This omission was fatal to the Government’s case. We

explained that, to provide sufficient evidence of health care fraud, the Government

76 Title 18, section 1347, of the United States Code provides that:

Whoever knowingly and willfully executes, or attempts to execute, a scheme or artifice— (1) to defraud any health care benefit program; or (2) to obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody or control of, any health care benefit program, in connection with the delivery of or payment for health care benefits, items, or services, shall be fined under this title or imprisoned not more than 10 years, or both.

50 had to “present some evidence that at least one specific patient received

compounded medication when [the pharmacy] billed Medicare for manufactured

medication.” Id. at 1299–1300 (emphasis added).

The Bradleys and Bio-Med stretch Medina’s holding one step further.

Combining Medina’s holding with case law interpreting a qui tam provision in the

False Claims Act (the “FCA”), 31 U.S.C. § 3729,77 they appear to argue that the

77 The Bradleys and Bio-Med quote language from several cases interpreting the FCA for the proposition that the Government had to show exactly which medications Medicaid purchased twice in order to prove fraud. That is incorrect. The FCA provision they cite, 31 U.S.C. § 3729, creates a civil cause of action for any individual who can show that another presented, or caused to be presented, a false claim to the United States. We have held that the purpose of that provision is “to encourage private individuals who are aware of fraud being perpetrated against the government to bring such information forward.” Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1236 n.1 (11th Cir. 1999). For example, in United States ex rel. Clausen v. Lab. Corp. of America, Inc., 290 F.3d 1301 (11th Cir. 2002), we interpreted the FCA to require a private plaintiff to allege that at least one specific claim presented to the government for payment was either fraudulent or relied on a fraudulent record or statement:

The False Claims Act does not create liability merely for a health care provider’s disregard of Government regulations or improper internal policies unless, as a result of such acts, the provider knowingly asks the Government to pay amounts it does not owe. Without the presentment of such a claim, while the practices of an entity that provides services to the Government may be unwise or improper, there is simply no actionable damage to the public fisc as required under the False Claims Act. The submission of a claim is thus not, as . . . argued, a “ministerial act,” but the sine qua non of a False Claims Act violation.

290 F.3d at 1311 (citations omitted) (emphasis in original). Because the relator failed to allege with specificity which claims were fraudulent, we affirmed the dismissal of the FCA action. Id. at 1311–12. Put another way, we held in Clausen that the making of a claim for reimbursement is the operative act which violates the FCA, and that, in order to survive a motion to dismiss, a complaint must provide more than conclusory allegations that a false claim—one based on a false representation—was made. See id. at 1311. Construing Clausen, as well as persuasive authority from our sister circuits, the Bradleys and Bio-Med correctly note that successful prosecution of an FCA claim requires proof that an

51 Government must prove that the same dose of the relevant medication was actually

paid for twice. This would require, for example, the Government to trace the

specific path of a specific vial of IVIG or Recombinate, including: (1) evidence of

the first transaction, when a doctor fills a prescription for a patient who never

receives or uses the drug; (2) proof of reimbursement by a Medicaid program;

(3) proof that Bio-Med obtained the unused medication from the doctor or the

patient, which requires the Government to trace the medication from its source

through any intermediary stops at MedPoint, Intermed, or Apex; (4) evidence that

Bio-Med resold that specific blood-derivative to another pharmacy; and (5) proof

that a Medicaid program reimbursed for the medication a second time.

In making this second argument, the defendants go too far. Medina merely

requires the Government to present some evidence of a fraudulent scheme; it holds

that conclusory statements regarding “general practices”—as opposed to evidence

that the defendants conducted transactions that involved recycled medications—do

individual claim was false when filed. And the Bradleys and Bio-Med are correct that the FCA is an anti-fraud statute. However, they go too far when, comparing this case to those construing the FCA, they claim that the Government is bound to present evidence that individual medications were recycled. While the FCA is an anti-fraud statute, its focus is, as the title suggests, on the actual submission of a claim. The mail and wire fraud statutes, on the other hand, focus their attention on the use of a misrepresentation to obtain money that is not owed. It is for that reason that when we interpret the FCA, evidence of a false representation is not sufficient; the plaintiff must produce evidence that the false representation was included as part of a specific claim and thus evidence of the claim itself. See, e.g., Clausen, 290 F.3d 1311–12. In a fraud case, proof of intent to defraud will suffice. The FCA cases, therefore, are simply not on point.

52 not suffice. As summarized above, the Government’s evidence in this case went

far beyond conclusory statements; the Government presented evidence to the jury

that the Bradleys and Bio-Med made payments for unused drugs, laundered those

drugs to make it appear as if they were new, and then resold those drugs in a

manner that made it certain that the programs would pay for recycled drugs.

3.

To summarize, a reasonable jury could find beyond a reasonable doubt that

the recycling schemes in which the Bradleys and Bio-Med engaged were

fraudulent. Having reached that finding, the jury had an evidentiary basis for the

verdicts it returned against the Bradleys and Bio-Med.78

Bradley III, Bio-Med, and Tellechea were convicted on Count 3 of a duel-

object conspiracy, in violation of 18 U.S.C. § 371. The conspiracy’s first object

was the scheme to defraud Florida Medicaid by wire, by causing the program to

78 To be more specific, we find sufficient evidence to sustain Bradley III’s Count 1 conviction on racketeering acts 1 through 87, 185 through 202, 251, and 253. See Browne, 505 F.3d at 1261 (holding that only two qualifying predicate acts are necessary to sustain a RICO conviction). We do not reach the sufficiency of the evidence as to the remaining acts found by the jury, all of which relate to diversion schemes. We also find sufficient evidence to support the jury’s verdict on Counts 2 through 284. See supra part II.A.1. Likewise, we find sufficient evidence to sustain Bradley, Jr.’s Count 1 conviction on all the acts found by the jury, his Count 54 conviction, and his Counts 285 and 286 convictions. We further find sufficient evidence to sustain Bio-Med’s Count 1 conviction on racketeering acts 1 through 87 and 185 through 202. We also uphold Bio-Med’s convictions on Counts 2 through 53.

53 pay more than once for a vial of recycled, unused IVIG, in violation of 18 U.S.C. §

1343. The second object was to pay illegal kickbacks to physicians for sending

their IVIG prescriptions to Bradley-owned closed-door pharmacies, in violation of

42 U.S.C. § 1320a-7b(b)(2)(B).79 The jury’s verdict on Count 3 does not indicate

which object(s) the defendants committed. The evidence was obviously sufficient

to convict Bradley III and Bio-Med for conspiring to accomplish both objects.

Whether the evidence was sufficient to convict Tellechea of the first object,

however, is problematic, for the jury found him not guilty on Counts 1 and 4

through 32, which charged him (along with Bradley III, Bio-Med, and others) with

committing the wire fraud described in that object. We nonetheless affirm

Tellechea’s Count 3 conviction because the evidence established not only that he

conspired to pay the alleged kickbacks, but that he actually paid them. United

79 The anti-kickback provisions of 42 U.S.C. § 1302a-7b(b)(2)(B) read as follows:

b) Illegal remunerations .... (2) Whoever knowingly and willfully offers or pays any remuneration (including any kickback, bribe, or rebate) directly or indirectly, overtly or covertly, in cash or in kind to any person to induce such person— .... (B) to purchase, lease, order, or arrange for or recommend purchasing, leasing, or ordering any good, facility, service, or item for which payment may be made in whole or in part under a Federal health care program, shall be guilty of a felony and upon conviction thereof, shall be fined not more than $25,000 or imprisoned for not more than five years, or both.

42 U.S.C. § 1320a-7b(b)(2)(B).

54 States v. Hernandez, 141 F.3d 1042, 1051 (11th Cir. 1998) (citing Griffin v. United

States, 502 U.S. 46, 58, 112 S.Ct. 466, 473–74, 116 L.Ed.2d 371 (1991), and

United States v. Ross, 131 F.3d 970, 983 (11th Cir.1997) (“A guilty verdict in a

multi-object conspiracy will be upheld if the evidence is sufficient to support a

conviction of any of the alleged objects.”)).

After the jury returned its verdicts, Bradley III moved the district court for a

judgment of acquittal on Count 284, and Tellechea moved the court for a judgment

of acquittal on Count 3. Both motions argued that venue had been improperly laid

in the Southern District of Georgia. The district court disagreed and denied their

motions. Bradley III and Tellechea now challenge the court’s rulings.80

Those rulings must stand if the Government established venue by a

preponderance of the evidence. United States v. Breitweiser, 357 F.3d 1249, 1253

80 The Government contends that Tellechea waived his venue challenge because it was untimely. We disagree. Tellechea moved the district court pretrial to transfer his case to the Southern District of Florida on the ground that venue in the Southern District of Georgia was improper. The court denied his motion, concluding that the superceding indictment alleged facts sufficient to establish venue in the Southern District of Georgia and that venue there was not unduly burdensome. At the same time, the court gave him leave to move to dismiss the case based on venue at the close of the Government’s case. Tellechea did so unsuccessfully. Then, after the jury returned its verdicts, he moved the court for judgment of acquittal on Count 3 on the venue ground. The motion to dismiss at the close of the Government’s case and the motion for judgment of acquittal were timely. See United States v. Daniels, 5 F.3d 495, 496 (11th Cir. 1993) (“[W]hen an indictment contains a proper allegation of venue so that a defendant has no notice of a defect in venue until the Government rests its case, the objection is timely if made at the close of the evidence.” (internal quotation marks and citation removed)).

55 (11th Cir. 2004). We determine de novo whether the Government met this

standard, “viewing the evidence in the light most favorable to the government and

making all reasonable inferences and credibility choices in favor of the jury

verdict.” United States v. Stickle, 454 F.3d 1265, 1270 (11th Cir. 2006).

Count 284 alleged that Bradley III failed to disclose an interest in a foreign

financial account while committing mail fraud, wire fraud, and money laundering,

in violation of 31 U.S.C. §§ 5314 and 5322(b). Section 5314 authorizes the

Secretary of the Treasury to require a taxpayer to keep records and file reports

“when th[at] resident, citizen, or person makes a transaction or maintains a relation

for any person with a foreign financial institution.” 31 U.S.C. § 5314(a). The

Secretary has exercised that authority by requiring all persons subject to the

jurisdiction of the United States to disclose whether they have “an interest in, or a

signature or other authority over, a bank, securities or other financial account in a

foreign country.” 31 C.F.R. § 103.24(a). If a person owns such an account, he is

obligated by 31 C.F.R. § 103.24 to file Form 90-22.1 with “the Commission of the

Internal Revenue.” That form instructs the person that the filing may be

accomplished “by mailing this report to the Department of the Treasury . . . or by

hand-carrying it to any local office of the Internal Revenue Service for forwarding

56 to the Department of the Treasury” in Detroit, Michigan.

Section 5322(b) prescribes criminal penalties for any person who “willfully”

violates § 5314 by failing to disclose a financial interest in a foreign financial

institution while also “violating another law of the United States or as part of a

pattern of any illegal activity involving more than $100,000 in a 12-month period.”

31 U.S.C. § 5322(b). Count 284 alleged that, during calendar year 1999, Bradley

III had such a financial interest in a bank account that had an aggregate value of

over $2,000,000 and that he willfully failed to report this while committing mail

fraud, wire fraud, and money laundering as part of a pattern of illegal activity.

Venue, in a criminal case, is constitutionally proper only in the district

where the crime was committed. U.S. Const. art. III, § 2, cl. 3; U.S. Const. amend

VI. The Federal Rules of Criminal Procedure echo that sentiment: “Unless a

statute or these rules permit otherwise, the government must prosecute an offense

in a district where the offense was committed.” Fed. R. Crim. P. 18. In the venue

context, the failure to perform a legally required act occurs where the act is

supposed to be performed. United States v. DiJames, 731 F.2d 758, 762 (11th Cir.

1984) (citing Johnston v. United States, 351 U.S. 215, 220, 76 S. Ct. 739, 742, 100

L. Ed. 1097 (1956)). Failure to file a mandatory report is therefore committed in

the district or districts where the report is to be filed. See, e.g., United States v.

57 Quimby, 636 F.2d 86, 90 (5th Cir. 1981); see also United States v. Clines, 958

F.2d 578, 583 (4th Cir. 1992) (citing United States v. Garman, 748 F.2d 218,

220–21 (4th Cir. 1984)).

Because there is no dispute that Bradley III had a qualifying interest in a

foreign financial institution under 31 U.S.C. § 5314, he was required under the

applicable regulation to disclose that interest on his tax return and file a form with

the IRS. The form in question, Form 90-22.1, could be filed either by mailing it to

the IRS in Detroit, Michigan, or by hand-delivering it to any local IRS office.

Bradley III claims that, because he never delivered the form as required, venue was

properly laid only in Detroit (the Eastern District of Michigan) or his district of

residence (the Southern District of Florida). Relying upon the Fourth Circuit’s

reasoning in Clines, the Government answers that the option of filing Form 90-

22.1 in “any local office” was sufficient to establish venue in the Southern District

of Georgia.

The Government’s reliance on Clines is not misplaced. There, facing

seemingly identical circumstances, the Fourth Circuit determined that venue was

properly laid in the district where Clines’s tax returns were prepared. Clines, 958

F.2d at 583. The court’s opinion was, as here, based on the “any local office”

provision of Form 90-22.1. Id. at 584. Dismissing Clines’s worries that its ruling

58 would create unlimited venue possibilities, the court noted that it saw “no evidence

that the Government engaged in forum shopping,” id. at 583 n.3, and reasoned that

its “conclusion is consistent with the principal concern the courts have advanced as

underlying the constitutional venue provisions,” id. at 583. As such, the Fourth

Circuit came to the conclusion that “venue in [the District of Maryland] did not

impermissibly offend Clines’s rights guaranteed by the Sixth Amendment.” Id. at

584.

Likewise, the possibility that Bradley III would have filed the form in the

Southern District of Georgia, the district where his returns were prepared and home

to a local IRS office,81 was sufficient to establish venue in that district. Form 90-

22.1 permits filing in “any local office,” meaning that there is no absolute

requirement that it be filed in any particular place; the sole requirement is that it be

filed somewhere. Thus, for purposes of venue, the form is “required” to be filed in

any and every district that houses a local IRS office. So long as its choice does not

create a constitutional hardship,82 the Government may choose, from among those

81 We take judicial notice that Savannah is home to a local IRS office. See Fed. R. Evid. 201(b) (permitting courts to take judicial notice of facts known within the court’s jurisdiction and which are easily identifiable). 82 Presumably, the Government may choose any district that would not be unfair to the defendant or create a hardship. See United States v. Clines, 958 F.2d 578, 583 (4th Cir. 1992) (citing United States v. Cores, 356 U.S. 405, 407, 78 S. Ct. 875, 877, 2 L. Ed. 2d 873 (1958)). Other considerations might include the location of witnesses and evidence. See Cores, 356 U.S. at 407, 78 S. Ct. at 877. As Bradley III cannot establish that venue was improper in the Southern

59 districts, one where it is most convenient to pursue an indictment. See id.

Here, the district court determined that the district was not inconvenient to

Bradley III. We agree and further find that the Southern District of Georgia did not

create a constitutional hardship. As such, we hold that venue was properly laid in

the Southern District of Georgia and that the district court did not err in denying

Bradley III’s motion for a judgment of acquittal.

Finally, as a conceptual matter, Bradley III’s interpretation is far too

restrictive. He would have this court decide that, as a constitutional matter, a

defendant could dictate venue by failing to file the very form he was required to

submit. The implication of Bradley III’s position is that he could defeat

jurisdicition in any district other than the two he has previously named by

proclaiming he never would have submitted the form there. That simply cannot be

the case.

District of Georgia as to Counts 1 through 283, he cannot establish that venue on Count 284 was constitutionally inconvenient. Moreover, in its order denying the defendants’ pretrial joint motion to transfer venue to the Southern District of Florida, the district court analyzed the factors set out in Platt v. Minnesota Mining Co., 376 U.S. 240, 84 S. Ct. 769, 11 L. Ed. 2d 674 (1964), and held that “[b]oth judicial and litigant economies” favored “venue here in the Southern District of Georgia.” As for Bradley III, the court noted that he had “significant family ties to Savannah” and that he could easily operate his business there. The court tempered those findings with the realization that Bradley III lived and worked in Miami and that his wife had recently been diagnosed with breast cancer. Nevertheless, the court satisfied itself that the Government’s witnesses and the defendants’ lawyer could easily reach the city, that all of the Government’s documentary evidence was stored nearby, and that the court’s docket was sufficiently clear to handle such a “mega-trial.”

60 2.

Tellechea argues that venue for Count 3 was improperly laid in the Southern

District of Geogia. Count 3 listed two sets of overt acts the conspirators allegedly

committed in furtherance of the two objects of the conspiracy: (1) the execution of

a scheme to defraud Florida Medicaid; and (2) the payment of illegal kickbacks to

Florida physicians for having their prescriptions for IVIG filled at Bradley-owned

closed-door pharmacies. The first set of overt acts involved twenty-nine wire

transfers from Intermed in Savannah to MedPoint in Miami. The second set

included a number of cash payments Tellechea and other conspirators made to

physicians in Miami in exchange for prescription referrals. While Tellechea

concedes that venue in the Southern District of Georgia was likely appropriate as

to the first object of the conspiracy, he contends it was not as to the second object.

And since he construes the jury’s verdict on Count 3 to rest on the latter object,

which was to be accomplished in Miami, he believes the verdict cannot stand.

As we stated above, venue is constitutionally and statutorily proper only in

the district where the offense has been committed. U.S. Const. art. III, § 2, cl. 3;

U.S. Const. amend VI; Fed. R. Crim. P. 18. But in an action involving a

conspiracy, as with all continuing offenses under 18 U.S.C. § 3237(a),83 the offense

83 Pursuant to 18 U.S.C. § 3237(a), “any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and

61 has been committed in any district where any overt act was performed in

furtherance of the conspiracy. United States v. Matthews, 168 F.3d 1234, 1246

(11th Cir. 1999). “Evidence of venue need not be direct; when circumstantial

evidence as a whole reasonably supports the inference that the crime was

committed in the trial district, the government’s burden is satisfied.” United States

v. Rivamonte, 666 F.2d 515, 517 (11th Cir. 1982) (citations omitted).

Tellechea’s venue challenge is twofold. First, he argues that, because the

jury was instructed that it could find a defendant guilty of the Count 3 conspiracy if

it found that he had conspired to commit either of the conspiracy’s two objects,84

the Government had to prove venue in the Southern District of Georgia as to both.

The Government failed to do this with respect to the first object, he claims, because

the jury acquitted him, in Counts 1 and 4 through 32, of participating in a wire

fraud scheme to defraud Florida Medicaid.

prosecuted in any district in which such was begun, continued, or completed.” 84 The exact text of the relevant jury instruction was as follows:

Remember that, as to Count 3, it is not necessary for the Government to prove that the Defendants under consideration willfully conspired to commit both of those substantive offenses. It would be sufficient if the Government proves, beyond a reasonable doubt, that the charged Defendants willfully conspired with someone to commit one of those offenses; but, in that event, in order to return a verdict of guilty, you must unanimously agree upon which of the two offenses the charged Defendants conspired to commit.

Tellechea reasons that, because the jury instruction treats the two listed objects as “substantive offenses,” the Constitution demands that venue be established as to both.

62 Extrapolating from the jury’s verdicts on those related counts, Tellechea

postulates that the jury could not have convicted him on Count 3 for conspiring to

commit wire fraud;85 rather, it had to have found him guilty of conspiring to pay

the doctors kickbacks. And since none of the acts in furtherance of the kickback

arrangement was committed in the Southern District of Georgia, Tellechea submits

that the Government failed to establish venue there. He supports this proposition

by pointing out that the only evidence relevant to venue in the Southern District of

Georgia and introduced by the Government at trial was a contested showing that

the monies illegally paid to the Florida physicians originated in Savannah.86

Suggesting that United States v. Cabrales, 524 U.S. 1, 8, 118 S. Ct. 1772, 1776,

141 L. Ed. 2d 1 (1998), definitively establishes that “the source of the money used

to pay the kickbacks is irrelevant to the question of whether the Constitution’s

venue requirements are met,” Tellechea argues that venue was lacking and that the

district court was bound to grant his motion for judgment of acquittal.

Even assuming that Tellechea is correct that the Government was required to

establish venue for both objects of the conspiracy and that the jury found him

85 It is not clear that such was the jury’s intent. The jury’s determination that the Government failed to carry its burden as to those substantive charges does not foreclose the possibility that it did carry its burden as to the conspiracy count. 86 Tellechea does not dispute that the wire transfers originated in Savannah, only that the funds were utilized to pay kickbacks to Florida doctors.

63 guilty only of conspiring to pay illegal kickbacks, the district court properly denied

Tellechea’s motion for a judgment of acquittal. Tellechea was convicted for his

involvement as a conspirator in the recycling scheme. He was therefore

vicariously responsible for the acts of any co-conspirator taken in furtherance of

that scheme. And in this instance, one of Tellechea’s co-conspirators, Bradley III,

used Intermed, a corporation headquartered in the Southern District of Georgia,

and Intermed’s bank accounts, also located in that district, as the source of funds

necessary to complete the kickback object. Bradley III’s fraudulent use of

Intermed’s bank accounts to transfer funds to Tellechea for eventual payment as

kickbacks to the Miami doctors—acts for which Bradley III was convicted at

trial—thus constituted twenty-nine overt acts in furtherance of the conspiracy.87

See United States v. Lewis, 676 F.2d 508, 511 (11th Cir. 1982) (“[W]here a

criminal conspirator commits an act in one district which is intended to further a

conspiracy by virtue of its effect in another district, the act has been committed in

both districts and venue is properly laid in either.”); accord United States v.

Strickland, 493 F.2d 182, 187 (5th Cir. 1974) (finding venue proper in the district

87 For this reason, it is immaterial that Tellechea was acquitted of the substantive wire fraud counts. To satisfy the venue requirement, an overt act may be committed by any conspirator, anyone who aids or abets a conspirator, or anyone a conspirator causes to act. See, e.g., United States v. Royer, 549 F.3d 886, 896 (2d Cir. 2008) (finding overt act includes “not just acts by co-conspirators, but also acts that the conspirators caused others to take that materially furthered the ends of the conspiracy”).

64 in which a phone call originated as well as in the district where it was received).

Because those acts took place, in relevant part, in the Southern District of

Georgia, the district court had venue over both objects of Count 3. We therefore

uphold the district court’s denial of Tellechea’s motion for a judgment of acquittal.

III.

The defendants ask that we reverse their convictions and remand the case for

a new trial due to errors the district court purportedly made in rulings pretrial and

at trial. In subpart A, we consider the pretrial rulings, in subpart B, those made

during the trial.

The most crucial ruling the district court made pretrial was the denial of the

defendants’ motions to suppress evidence seized by federal agents from Bio-Med’s

headquarters and server farm, Tellelchea’s private office, and Bradley, Jr.’s

residence. Evidence seized during these searches played a significant role in the

Government’s case in chief; without it, the Government may have been unable to

prove many of the allegations of the superceding indictment, especially the money

laundering counts and corresponding acts of racketeering. With the exception of

Bio-Med’s computer servers, the searches were conducted pursuant to search

warrants issued by federal magistrate judges. We address the merits of the district

65 court’s ruling after recounting the events that led to the issuance of the search

warrants and how they were executed.

The investigation of the Bradleys’ recycling scheme began in 2001 after

agents of the IRS, the Food and Drug Administration (“FDA”), and the

Immigration and Customs Enforcement (“ICE”) obtained evidence implicating

Larry Pinkoff and the Golden Isles Pharmacy (“Golden Isles”) in a recycling

scheme similar to the Bradleys’. In exchange for leniency, Pinkoff agreed to

cooperate in an ever-widening drug probe of the recycling and diversion of

pharmaceuticals, including blood-derivatives. He told investigators that he had

sold Bradley III “street” pharmaceuticals in 1996, and that, when Bradley III was

unable to pay for them, Bradley, Jr., intervened to pay Bradley III’s debt. Pinkoff

then allowed the agents to record three telephone conversations with the Bradleys

in which the men discussed the particulars of the Bradleys’ business.

Based on Pinkoff’s representations and Bradley III’s recorded statements,

the agents asked Pinkoff to arrange a meeting with the Bradleys (the agents would

be operating undercover) to discuss the potential sale of a pharmacy the Bradleys’

owned in Puerto Rico.88 Pinkoff did so and introduced the Bradleys to the agents.

88 The Bradleys owned several pharmacies in Puerto Rico, all incorporated under Puerto Rican law. Those pharmacies included, inter alia, Dena, Inc., Delta Med, Inc., and Delta Med

66 Statements made during several meetings held in 2002 convinced the agents that

the Bradleys were potentially engaged in illegal activity.

After obtaining additional information about the Bradleys’ recycling

scheme, the agents applied for warrants to search eight locations. On December

11, 2002, they swore out the necessary affidavits before magistrate judges in four

federal districts. The applications were substantially identical,89 each containing an

affidavit and multiple attachments. Attached to each application was an identical

list of “Items to be seized” designated as “Attachment B”90 and

Trading Corp. After Pinkoff expressed interest in founding his own internet pharmacy in Puerto Rico, Bradley III indicated that Pinkoff might be able to use Delta Med, which was at that time a dormant corporation, to do so. 89 In this opinion, we primarily refer to the affidavit executed by Special Agent Pamela Chambers of the FDA filed in support of the application for a warrant to search Bio-Med offices in Miami. Other affidavits were executed by Special Agent Michael Palmer of the IRS and Special Agent Karl Mueller of ICE. 90 In pertinent part, “Attachment B” sought:

a. Personal and business records relating to the purchase and sale of prescription pharmaceuticals for the period of 1997 through the present involving MARTIN J. BRADLEY, JR., MARTIN J. BRADLEY, III, JOSE A. TRESPALACIOS, SARA FARLEY GRIFFIN, BIO MED PLUS, INC., SUPER DISCOUNT DRUGS, DENA, INC., INTERMED PHARMACEUTICAL, INC., GOLDEN ISLES PHARMACEUTICALS, INC., INTERMED PHARMACEUTICAL SUPPLY CORP., BEL ASSOCIATES, INC., CARIBE SPECIALTY PHARMACY, DELTA MED TRADING, CARETECH, INTERMED OF PUERTO RICO (a.k.a. INTERMED P.R. SERVICES CORP [sic]), INTERMED GROUP, INTERMED OF SAVANNAH, SERATECH, PRECISION HEATHCARE INC [sic], DAMAR INVESTMENTS, INC., DELTA ENTITIES, INC., THE MARTIN J. BRADLEY FOUNDATION, INC., JERMAR INVESTMENTS, INC., BRITT AIR, INC., and any other unknown corporations and businesses controlled by the BRADLEYs, both

67 domestic and foreign, between individuals, businesses, purchasing groups, organizations, and/or corporate entities. These records shall include, but not be limited to books, records, receipts, notes, ledgers, letters of credit, correspondence, memoranda, mailing envelopes, facsimiles, purchase orders, purchase invoices, purchase agreements/contracts, sales invoices, drug distribution records, drug pedigrees, prescription drug inventory records, licenses, applications, agreements, memberships, shipping records to include, bills of lading, shipping receipts, and any other related papers. .... d. All records of any financial/business transactions involving all individuals and businesses listed in item (a) for the [sic] 1997 through present. These records shall include but not be limited to regular banking records - such as checks, bank statements, deposit tickets, saving or loan account records, wire transfer records, both incoming and outgoing, or any other records relating to investments or loans, assets, or other financial transactions with individuals, partnerships or corporations including notes, memoranda, and agreements evidencing such transactions, copies of cashier’s checks, money orders, or documents used to effect any such type transaction. .... g. Records relating to the operation of personal and corporate bank accounts including checking, savings, trust or brokerage accounts for all individuals and businesses listed in item (a) for 1997 through the present. .... i. Other tangible items evidencing the obtaining, secreting, transfer and/or concealment of assets for all individuals and businesses listed in item (a) for 1997 through the present. .... l. Computers, computer disks, and tapes used to store data. This information includes computer hard drives, diskettes, tapes, or any other media capable of storing information in a form readable by a computer. This also includes all copies that may be maintained as an archive or back up. . ..

m. The agents searching for such information are authorized to search any desktop computer, network computer, and/or portable computer in the premises and to copy all above-described information stored on such computer. The search of such computer will be limited to seeking information with respect to specifically named individuals and other information that fits within the above-described description of the items to be seized.

n. In the event that the agents cannot, for technical reasons, obtain access to

68 naming four individuals and twenty-two known entities from which the

Government sought personal and business records. The Bradleys were specifically

named, as were Bio-Med, Intermed, Golden Isles, IPS, and Seratech. All eight

warrant applications were approved.

The next day, federal agents simultaneously executed the search warrants in

a coordinated effort. Agents raided all eight locations, including Bio-Med’s

official headquarters and warehouse in Miami, the offices of Infustat and Seratech,

Intermed’s headquarters in Savannah, Dena’s office in San Juan, and the

residencies of both Bradleys. At Bio-Med’s headquarters, 6855 Southwest 81st

Street, the agents seized all business records pertaining to “the purchase or sale of

prescription pharmaceuticals” between 1997 and 2002 involving the Bradleys and

known or unknown corporations, records of “any financial/business transactions,”

and “all receipts and invoices for expenditures made” between the named

individuals and entities during that time period. These seizures amounted to

virtually all of Bio-Med’s records over that time. Agents also seized computer

hard drives at the headquarters location.

any subject computer or cannot search for or copy information contained on the computer, the agents are then authorized to seize such computer and remove it to a laboratory setting for a sufficient period of time to obtain access to, search for, and recover files and records described in paragraphs (a) through (k) above.

Search Warrant Attach. B, at ¶¶ a, d, g, i, l–n.

69 When the agents inquired about computer servers they expected to find at

6855 Southwest 81st Street, a Bio-Med employee directed them across the street to

6860 Southwest 81st Street; the servers had recently been moved off-site. The

agents went to the off-site location and entered the premises through an unlocked

door. Recognizing they lacked a warrant for the computer servers at that location,

and fearing that data contained on the servers might be purposefully or

inadvertently destroyed before a warrant could be obtained, one agent asked the

Bio-Med employee running the facility to shut down the computers. That

employee complied. Agents then obtained a warrant for the servers. They imaged

the servers that night, either removing entire hard drives or copying individual files

from the computers.

Simultaneous searches took place at the offices of Infustat and Seratech at

6356 Manor Lane in Miami, and at Bradley, Jr.’s residence at 616 Herb River

Drive in Savannah. At Bradley, Jr.’s residence, agents seized blank checks on the

IPS bank account at Barclays Bank in Nassau, Bahama, a hand-written list of assets

relating to a “Nassau Trust,”91 and documents memorializing a loan made from that

trust to Interland Investments, Inc.,92 a real estate investment corporation owned by

91 Bradley, Jr., had earlier remarked, during a tape recorded conversation with Pinkoff, that he had established a family trust in the Bahamas to hide certain assets from the IRS. 92 Recall that Interland was indicted and charged by the Government. After the close of all the evidence, Interland moved for a judgment of acquittal and the district court granted its

70 the Bradleys.

At 6356 Manor Lane,93 agents discovered a building with four separate

“suites,” two of which were occupied by Seratech. One of the two remaining

suites housed Intermed P.R. Services Corp., d/b/a Intermed of Puerto Rico

(“Intermed P.R.”)94, and the other was shared by Infustat and a fourth corporation,

Red-X, which served as the purchasing arm for Seratech, Intermed P.R., and

Infustat. Although each of the suites had an exterior doorway, all but one were

connected via internal hallways. Tellechea maintained an office in the Intermed

P.R. suite. While searching Seratech, agents obtained a sketch of the building

which labeled Tellechea’s office “private.” Agents also seized documents from the

Seratech suite indicating that Intermed P.R. did the accounting for all four

corporations. Ignoring Seratech’s operations manager, who protested that the rest

of the building was occupied by companies not named in the search warrant, agents

then searched the remainder of the premises, excepting the area dedicated to Red-

X, as it was cordoned off by an internal doorway. When the on-site operations

manager failed to open Tellechea’s locked office—the manager informed agents

motion. See supra note 6. 93 At the time the search warrants were obtained, investigators were unaware that the building at 6356 Manor Lane housed an entity other than Seratech. 94 Intermed P.R. is also separate and distinct from Intermed and IPS.

71 that only Tellechea had a key to the office—the agents had a locksmith provide

them access. Inside, agents found a computer and an external hard drive, which

they seized.95

The Bradleys and Bio-Med both moved the district court to suppress the

search of Bio-Med’s headquarters on the ground that the search was conducted

pursuant to a warrant that was overbroad and lacking in particularity, in that it

allowed the agents to seize, effectively, all personal and business files relating to

Bio-Med’s wholesale business from 1997 through 2002. The district court denied

95 Collecting and analyzing the great mass of documents seized in the above searches took three years. IRS agents were asked to analyze data taken from approximately 103 computers containing more than a terabyte of data, the equivalent of more than 250 million pages of documents. In order to more easily analyze the data—to cull relevant information from irrelevant information—the agents requested more advanced equipment, which they received in September 2003. That month, the agents made a preliminary pass over the imaged data, separating out potentially relevant documents from those that were certainly irrelevant. The documents were first distributed in batches to case agents in 2003. Later, in the fall of 2005, the agents were able to create a searchable database of documentary evidence, which paved the way for the indictment in this case. The Bradleys and Bio-Med claim that resulting searches of Bio-Med servers for data were unconstitutional because they occurred almost three years after the servers were originally seized. We find nothing in the record that would lead us to believe that the search procedure was unreasonably delayed, for any reason. See, e.g., United States v. Gerber, 994 F.2d 1556, 1558–59 (11th Cir. 1993) (approving a delayed search, even after expiration of the search warrant, because officers acted reasonably). We find no error in the district court’s rejection of this claim. Furthermore, we reject outright the Bradleys’ and Bio-Med’s claim that the searches were unconstitutional because the agents failed to obtain pre-approval from the district court of a search protocol before conducting the searches. Cf. United States v. Khanani, 502 F.3d 1281, 1290–91 (11th Cir. 2007) (finding a wide-sweeping, keyword-based computer search reasonable where the defendants failed to “cite any binding case law that would lead us to conclude the procedures used in this case infringed defendants’ Fourth Amendment rights”).

72 their motions under the “pervasive fraud doctrine,” see, e.g., United States v.

Martinelli, 454 F.3d 1300, 1307–08 (11th Cir. 2006) (permitting government

seizure of “all of the business records of an enterprise engaged in a ‘pervasive

scheme to defraud’” (quoting United States v. Sawyer, 799 F.2d 1494, 1508 (11th

Cir. 1986))), holding that the pervasiveness of the defendants’ fraudulent schemes

justified a warrant as broad as the one the magistrate judge issued. We review the

district court’s ruling de novo. See United States v. Dahlman, 13 F.3d 1391, 1394

(10th Cir. 1993); 5 Wayne R. LaFave, Search and Seizure § 11.7©) (3d ed. 1996);

cf. United States v. Travers, 233 F.3d 1327, 1329 (11th Cir. 2000).

The Fourth Amendment requires that all warrants “particularly describ[e] the

place to be searched, and the . . . things to be seized.” U.S. Const. amend IV. The

particularity requirement prevents “general, exploratory rummaging in a person’s

belongings,” Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S. Ct. 2022,

2038, 29 L. Ed. 2d 564 (1971), but “elaborate specificity is unnecessary,” United

States v. Betancourt, 734 F.2d 750, 754 (11th Cir. 1984). “The description is

considered sufficiently particular when it enables the searcher to reasonably

ascertain and identify the things authorized to be seized.” Id. at 754–55 (citation

and internal quotation marks omitted). This requirement does not necessitate

technical perfection; instead, it is applied with “a practical margin of flexibility.”

73 United States v. Wuagneux, 683 F.2d 1343, 1349 (11th Cir. 1982).

We have long recognized that a criminal investigation requires investigators

to piece together evidence, often circumstantial and from multiple sources, to

prove a defendant’s guilt. Sawyer, 799 F.2d at 1508. The need for evidence is

greater in complex fraud cases and justifies a more flexible reading of the

particularity requirement. Travers, 233 F.3d at 1330. Thus, in Sawyer, we upheld

a warrant authorizing a seizure of all of the business records of an enterprise where

evidence of fraudulent conduct obtained from twenty-five of the enterprise’s

customers “made it probable that [the company] used identical deceptive and

misleading sales techniques with other investors.” 799 F.2d at 1508. This

“pervasive fraud” doctrine, as it has come to be known, accordingly demands that

we uphold an “all records” search warrant where the affidavit supporting it

demonstrates a “pattern of illegal conduct” that is likely to extend beyond the

conduct already in evidence and infect the rest of the company’s business. See,

e.g., id. at 1508–09.

The Bradleys’ and Bio-Med’s position is that the “pervasive fraud” doctrine

is inapplicable unless the Government alleges that the business in question is

engaged almost exclusively in fraudulent business practices. As there is no dispute

that the fraud complained of here represented only a small fraction of Bio-Med’s

74 legitimate business, the Bradleys and Bio-Med claim that the district court

erroneously denied their motion to suppress and allowed the seized evidence to be

introduced in evidence at trial.

But this is too narrow a reading of the “pervasive fraud” doctrine. The

district court correctly read Sawyer and Martinelli to hold that “pervasive fraud”

does not refer to the percentage of a defendant’s business that is fraudulent. In

other words, the doctrine is not concerned with how deeply the fraud runs. Rather,

the “pervasive fraud” doctrine addresses the extent to which fraud has permeated

the scope of the defendant’s business. That is, the doctrine is concerned with the

breadth of the alleged fraud—whether evidence of fraud is likely to be found in

records related to a wide range of company business.

Here, that standard is easily met, as the alleged fraud supposedly infected

Bio-Med, its principals and officers, its suppliers, and numerous other individuals

and businesses with whom it did or had done business. As such, even though the

fraud amounted to a small percentage of Bio-Med’s overall business, traces of that

fraud were likely to be found spread out amongst the myriad of records in Bio-

Med’s possession.

This holding is entirely consistent with our precedent. Although the

defendant in Sawyer was, as we described, a “boiler room” operation engaged in

75 fraud that “affected all [its] customers, not just the twenty-five specifically

described [in the affidavits],” 799 F.2d at 1508, the operative fact was that the

entire breadth of the operation was implicated in the fraud. Thus, the search

warrant gave investigators the ability to search all of the operation’s records, as

evidence of that fraud was likely to be found in every place searched. The same

was true in Martinelli; although the defendant was engaged in a single fraudulent

scheme, we held that the information in the affidavit accompanying the application

for the search warrant sufficed to show that the fraud likely played a role in a wide

range of the company’s business transactions. 454 F.3d at 1307–08.

Other circuits have similarly concluded that the Government need not show

that a company is engaged solely in fraud to justify such a wide-ranging search.

See, e.g., United States v. Humphrey, 104 F.3d 65, 69 (5th Cir. 1997) (finding an

“all records” search of a business proper “[w]here probable cause exist[ed] to

believe . . . that all the records of a business are likely to constitute evidence”

(emphasis added and internal quotation omitted)); see also United States v. Falon,

959 F.2d 1143, 1147–48 (1st Cir. 1992) (collecting cases and determining that it is

unnecessary to show that the defendant’s business is entirely fraudulent if one

office was shown to have been engaged in widespread fraud). While not directly

on point, these cases inform our decision and convince us that the “pervasive

76 fraud” doctrine applies when evidence of fraud is likely to be found in a broad

spectrum of the defendant company’s business records.

This is not to say that the “pervasive fraud” doctrine permits the seizure of

all corporate documents without a substantial evidentiary showing.96 Cf. In re

Grand Jury Investigation Concerning Solid State Devices, Inc., 130 F.3d 853,

856–57 (9th Cir. 1997) (requiring “a more substantial showing of pervasive fraud”

where a company’s business is primarily legitimate and citing United States v.

Hayes, 794 F.2d 1348 (9th Cir. 1986), for a representative showing). We merely

find that, in this circumstance and applying the facts as found by the district

court,97 the Government made the required showing. Accordingly, we reject the

defendants’ argument that the documents seized from Bio-Med’s headquarters

96 We address here the “pervasive fraud” doctrine only as it applies to the seizure of business records, that is, records contained in a business location outside of a home. An “all records” search conducted within a home—a home business, for example, or where a defendant is known to keep business papers within the home—could be subject to more searching scrutiny. See, e.g., United States v. Falon, 959 F.2d 1143, 1148 (1st Cir. 1992) (“On the other hand, when an individual’s allegedly fraudulent business activities are centered in his home . . . the ‘all records’ doctrine must be applied with caution.”). 97 The district court explained its findings—both factual and legal—as follows:

Defendants’ fraud, even if it constituted only a fraction of Bio-Med’s total earnings, can fairly be characterized as “pervasive.” The long-standing and complex scheme involved Bio-Med’s owners and principals, its accountant, and numerous other individuals and businesses. The fraud had metastasized through Bio-Med and other corporate entities owned by the Bradleys and their associates. . . . An expansive search was required . . . .

Report and Recommendation 34, Dec. 7, 2005 (emphasis added). We agree with the court’s conclusions.

77 should have been suppressed on particularity and overbreadth grounds.98

The Bradleys and Bio-Med both moved the district court to suppress the

evidence, consisting of data, obtained from the warrantless seizure of Bio-Med’s

computer servers. The district court upheld the seizure on the ground that an

exigency existed, reasoning that the agent directing the search acted properly in

preserving the data until a warrant could be obtained for its seizure. The Bradleys

and Bio-Med argue that the district court erred in finding that an exigency existed;

thus, the seizure was unnecessary and the evidence should have been suppressed.

The district court’s denial of the motion to suppress is reviewed as a mixed

question of law and fact. United States v. Alexander, 835 F.2d 1406, 1408 (11th

Cir. 1988) (citation omitted). We accept the facts the district court found in

resolving the exigent circumstance issue unless the findings are clearly erroneous,

United States v. Morales, 868 F.2d 1562, 1575 (11th Cir. 1989). We determine de

novo whether the court erred in applying the law to those facts. United States v.

Holloway, 290 F.3d 1331, 1334 (11th Cir. 2002).

98 Because we hold that the “pervasive fraud” doctrine applies under the facts as found by the district court, we need not address the Government’s alternative argument that the good faith exception described in United States v. Accardo, 749 F.2d 1477, 1481 (11th Cir. 1985), should apply. We also decline to address the Government’s argument relating to the inevitable discovery doctrine. See generally United States v. Khoury, 901 F.2d 948, 960 (11th Cir. 1990).

78 As recounted previously, the facts are these. The agents knew that Bio-Med

had computer servers, but believed they were housed in Bio-Med’s headquarters at

6855 Southwest 81st Street. When they arrived at the headquarters location, the

agents learned that the servers were not in that building, but located across the

street. The agents also observed that several desktop computers in the

headquarters were connected to the servers through a network. The agents then

crossed the street to the building at 6860 Southwest 81st Street. Upon entering that

building, the agents were approached by a Bio-Med employee. One agent asked

the employee for the password to access the servers. After that employee called his

supervisor (and was told to cooperate with the agents), the employee complied.

Worried that the data stored on the hard drives might be corrupted or erased before

he could copy them, and knowing that the servers were connected to at least one

external network, the agent had the employee shut down the servers. After a

period of time, a warrant to search the servers was obtained. The agents executed

that warrant and either seized or imaged the servers’ hard drives.

The Bradleys’ and Bio-Med’s claim is that, under these facts, the search

violated the Fourth Amendment. Specifically, they argue that the agent’s mere

suspicion that data might be lost was insufficient, as a matter of law, to establish an

exigency without some showing that the agent was aware that Bio-Med employees

79 were both capable of deleting and intended to delete data from the servers without

leaving a trace. Suppression, therefore, was the proper remedy. The Government

answers that the circumstance confronted by agents meets the definition of

unforeseen exigency and that the agents acted reasonably in seizing the servers

until a warrant could be obtained.

There is no dispute that the agent’s decision to shut down the servers

temporarily was a seizure, e.g., United States v. Jacobsen, 466 U.S. 109, 113, 104

S. Ct. 1652, 1656, 80 L. Ed. 2d 85 (1984), and that it was warrantless. The

question here is whether the seizure falls within the exigent circumstances

exception to the general rule that warrantless searches and seizures are per se

unreasonable. See United States v. Place, 462 U.S. 696, 701, 103 S. Ct. 2637,

2641, 77 L. Ed. 2d 110 (1983) (describing the exigency exception to the rule).

Exigent circumstances exist “when there is danger that [] evidence will be

destroyed or removed.” United States v. Tobin, 923 F.2d 1506, 1510 (11th Cir.

1991) (en banc) (citations omitted). We have applied the exigent circumstances

exception in situations where resorting to a magistrate would be impracticable or

hazardous, holding that an exigency exists when officers can articulate a reason,

grounded in the facts of the specific case, to fear that evidence may be destroyed or

lost or that someone may be in danger. See, e.g., United States v. Burgos, 720 F.2d

80 1520, 1525–26 (11th Cir. 1983) (collecting cases).

An objective test applies to the exigency determination. An exigency exists

if “the facts . . . would lead a reasonable, experienced agent to believe that

evidence might be destroyed before a warrant could be secured.” Tobin, 923 F.2d

at 1510 (emphasis added) (citations and internal quotation marks omitted). But a

mere suspicion that an exigency may exist is not enough to justify a warrantless

search and seizure; the court must be able to identify specific facts that constitute

an exigency. United States v. Rodgers, 924 F.2d 219, 223 (11th Cir. 1991)

(reviewing the facts known to the police at the time of a warrantless search and

seizure).

In this case, the district court found specific facts which led it to declare an

exigency. In particular, the court stated that the agent

determined that immediate action was needed in order to secure the servers and preserve their important data . . . . [He] was well aware that the servers were accessible by other computers connected to the Bio-Med network, including systems administrators who could dial in from home or any remote location (and likely did so as a routine practice). He recognized that as long as the servers remained connected to the outside world their data could be maliciously changed or corrupted and that a person making such changes could easily “hide their tracks.” . . . Thus, it was entirely possible that the Bio-Med data could be deleted and overwritten . . . so that it was beyond recovery. [He] therefore made a judgment call . . . .

That call, the district court stated, was in response to a real possibility that evidence

81 would be destroyed:

Until the servers were taken off-line or shut down, the data was vulnerable to being altered or completely erased. And given the scope of the criminal scheme, the number of targets of the investigation, and the scale of Bio-Med’s operations, the agents could reasonably infer that there were a number of people with both the ability and the incentive to access and alter that data while a warrant was being sought.

These findings are not clearly erroneous. See United States v. Villarreal, 613 F.3d

1344, 1349 (11th Cir. 2010) (“A factual finding is clearly erroneous only if, after

we review the evidence, we are left with the definite and firm conviction that a

mistake has been committed.” (citation and internal quotation marks omitted)).

Moreover, the factual circumstance found by the district court meets our

definition of exigency. Contrary to what the Bradleys and Bio-Med claim, the

agent did have specific reason to fear that data might be lost if he did not intervene;

Bio-Med employees had the ability and incentive to, after learning of the raid,

destroy damning information contained on the computer servers. See Tobin, 923

F.2d at 1510 (requiring only that there be a “danger” that evidence will be lost, not

a certainty).

And finally, we agree with the district court that the agent’s conduct was

reasonable in light of the exigent circumstance. The agent only took those steps

necessary to ensure that data were not destroyed while he sought a warrant; he did

82 no more than was reasonably required to maintain the evidence. For these reasons,

we uphold the denial of the motions to suppress the evidence seized from Bio-

Med’s servers.

Bradley, Jr., contends that the district court erred in denying his motion to

suppress evidence found in his Savannah residence, claiming that the affidavit

presented with the application for the search warrant did not provide probable

cause that evidence of a crime would be found there. He does not claim that the

Government improperly seized any particular record from his office; instead,

Bradley, Jr., contends that the magistrate judge should never have issued the

warrant in the first place and that the Government’s reliance upon it was not in

good faith. In particular, Bradley, Jr., submits that the affidavit contained only

unsupported conjecture, not facts, that his home office would contain records of

“illegal diversion and distribution of prescription drugs.” The district court

disagreed, finding a sufficient nexus between the illegal conduct alleged and

Bradley, Jr.’s residence. The district court based its decision on certain statements

contained the affidavit, most notably information provided to the agents by Pinkoff

about the interior of Bradley, Jr.’s residence—Pinkoff had toured the home and

was shown a typical home office, which included a computer. The court also

83 relied upon the statement of an agent, who explained that, in his experience,

individuals were likely to keep records of personal credit cards and other financial

transactions in their home, especially when mail from financial institutions is

delivered there.

“The task of the issuing magistrate [in determining whether to issue a

warrant] is simply to make a practical, common-sense decision whether, given all

the circumstances set forth in the affidavit . . . there is a fair probability that

contraband or evidence of a crime will be found in a particular place.” Illinois v.

Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527 (1983)

(applying a totality of the circumstances test). We review the issuing magistrate

judge’s decision de novo, “tak[ing] care both to review findings of historical fact

only for clear error and to give due weight to inferences drawn from those facts by

resident judges and local law enforcement officers.” Ornelas v. United States, 517

U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d 911 (1996); see also id. at 697,

116 S. Ct. at 1662 (refusing to apply a “policy of sweeping deference” to trial

courts). “We give great deference to a lower court’s determination of probable

cause.” United States v. Brundidge, 170 F.3d 1350, 1352 (11th Cir. 1999)

(citation, internal quotation marks, and alteration omitted).

Probable cause to search a residence requires some nexus between the

84 premises and the alleged crime. See United States v. Jenkins, 901 F.2d 1075,

1080–81 (11th Cir. 1990). “The nexus between the objects to be seized and the

premises searched can be established from the particular circumstances involved

and need not rest on direct observation.” Id. (citation and alteration omitted). We

have previously found that a police officer’s expectation, based on prior experience

and the specific circumstances of the alleged crime, that evidence is likely to be

found in a suspect’s residence satisfies probable cause. Compare id. (“Evidence

that a defendant has stolen material which one normally would expect him to hide

at his residence will support a search of his residence.”) (citation and alteration

omitted), with United States v. Green, 634 F.2d 222, 226 (11th Cir. Unit B 1981)

(finding no probable cause to search based on an agent’s general assumption that

evidence of a crime committed in California was likely to be found in the

defendant’s home in Florida).

As described below, the affidavit relied upon by the magistrate judge who

issued the warrant contained the following information regarding Bradley, Jr.: (1)

Bradley, Jr., and co-conspirators had engaged in fraudulent conduct “over many

years that generated enormous profits”; (2) they had taken “elaborate measures to

conceal their fraud, including the use of offshore bank accounts, foreign trusts,

deceptive accounting practices, and various other methods to launder their ill-

85 gotten profits”; (3) Bradley, Jr., had used profits gained from the conduct to

purchase his residence, and he kept a personal office at that location, which

contained a desk and computer; and (4) postal records “demonstrated that [Bradley,

Jr.,] regularly received mail at his home of a financial nature, including records

from banks, investment firms, and insurance and credit card companies.” In

addition to those facts, the affidavit further stated that, in the experience of the

investigating agent, suspects commonly retained evidence of money laundering,

tax evasion, and other financially-driven crimes in their homes, and that those

records are “extremely useful” in such investigations.

Based on that information, and giving due deference to the issuing

magistrate judge, one could have reasonably concluded that Bradley, Jr., was likely

to keep evidence of financial crimes in his home. See Gates, 462 U.S. at 238–39,

103 S. Ct. at 2332. It is not necessary, as Bradley, Jr., would have us find, that the

residence be the locus of the crime, or for agents to have procured specific

evidence that relevant records would certainly be found there.99 We find that there

99 We do not believe that the district court improperly overlooked information leading to the conclusion that innocent records were more likely to be found at Bradley, Jr.’s home than evidence of any crime, namely that the phone bill was in Bradley, Jr.’s wife’s name and that financial mail received at the house was sent from institutions having nothing to do with the alleged fraud. Such information is, of course, relevant to the determination of probable cause. Nevertheless, under the totality of the circumstances test announced in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), the court properly considered the likelihood that other, more applicable records would be found at the home.

86 was probable cause to issue the warrant and accordingly uphold the district court’s

refusal to suppress the evidence.

d.

Tellechea moved the district court to suppress evidence seized from his

locked office inside the suite dedicated to Intermed P.R. at 6356 Manor Lane in

Miami. Responding to his motion to suppress, the Government argued that the

warrant the agents obtained permitted them to search the entire premises, including

the area controlled by Intermed P.R., and that probable cause justified the intrusion

into Tellechea’s office. The district court, accepting the Government’s response,

denied Tellechea’s motion to suppress, and the Government later introduced the

evidence at trial. Tellechea now argues that the district court erred in denying his

motion.

Both Tellechea and the Government renew the arguments they presented to

the district court.100 The question here, as it was in the district court, is two-fold:

(1) whether the agents were entitled, under the terms of the warrant, to search any

part of the building except that actually controlled by Seratech, and (2) if so,

100 The Government presents the alternative argument that admission of the evidence seized from Tellechea’s office constituted harmless error. See United States v. Rhind, 289 F.3d 690, 694 (11th Cir. 2002) (finding admission of improperly seized evidence was harmless because “other evidence of guilt was so overwhelming”). Because we find the search reasonable, we decline to address this alternative argument.

87 whether they had probable cause to enter Tellechea’s office.

The facts, as related above, are as follows. The agents procured a warrant

permitting them to search the “premises” located at 6356 Manor Lane in Miami

and seize “all records” at that location relating to financial transactions between a

number of individuals and corporate entities including Seratech and Intermed. The

affidavit accompanying the warrant application indicated that Seratech and

Intermed P.R. had offices in the building (suite B-101) and shared corporate

directors—Tellechea was named as one of Intermed P.R.’s four officers—but that

only Seratech’s name was on the building. The affidavit also indicated that both

entities were suspected in a diversion scheme. Statements from cooperating

witnesses indicated that Seratech “controlled the entire building.”

When the agents served the warrant, they found that the building housed

four entities: Seratech occupied half the building (two of four suites), Intermed

P.R. had one of the remaining two suites, and the final suite was shared by Infustat

and Red-X. After protesting that the warrant did not cover the other entities, a

Seratech employee explained the building’s layout to the agents and provided them

a schematic of the offices. Agents searched the entire premises, save the area

dedicated to Red-X, and found information indicating that Intermed P.R. was

handling the billing for all the companies. Aware that Tellechea was involved with

88 both Infustat and Intermed P.R., and that both companies were likely involved in

the diversion scheme, the agents then asked the operations manager to provide

them access to Tellechea’s office. After he stated that the office was locked and

that only Tellechea was in possession of the keys, agents summoned a locksmith to

open the door. The agents seized a removable hard drive from the office that

contained a spreadsheet file later introduced at trial as evidence that Tellechea was

a member of the Count 3 conspiracy for which he was convicted.

We first discuss the scope of the warrant.101 Tellechea argues that, once the

agents discovered that the building housed more than Seratech, they were bound to

obtain a second warrant before proceeding with their search. He contends that the

most applicable precedent is Maryland v. Garrison, 480 U.S. 79, 107 S. Ct. 1013,

94 L. Ed. 2d 72 (1987), where the Supreme Court applied the good faith exception

to the warrant requirement when officers searched the wrong third-floor apartment,

believing only one apartment was on that floor. Implicit in that decision, Tellechea

asserts, was the holding that, when officers learn of new information calling the

breadth of the warrant into doubt, they must limit their search accordingly. See id.

at 87, 107 S. Ct. at 1018 (“Moreover, as the officers recognized, they were required

101 Neither party questions whether there was probable cause for the search of Seratech. Therefore, we presume the warrant was valid insofar as it pertained to the two suites occupied by that company. We only consider whether the warrant permitted the agents to enter Intermed P.R.—including Tellechea’s office—and Infustat.

89 to discontinue the search of respondent’s apartment as soon as they discovered that

there were two separate units on the third floor and therefore were put on notice of

the risk that they might be in a unit erroneously included within the terms of the

warrant.”); see also United States v. Ofshe, 817 F.2d 1508, 1514 (11th Cir. 1987)

(approving of an officer’s decision to refrain from searching a locked office not

contemplated in an existing warrant).

The Government asserts, as the district court found, that the agents were

entitled to believe, based on prior representations, that the entire building was

covered by the warrant regardless of the signage on the doors and the protestations

of the office manager. If true, the agents could not have run afoul of Garrison’s

command so long as they limited their search to areas that might contain records

identified in Attachment B (to the warrant) and which the warrant permitted them

to seize.

We agree. The warrant authorized the agents to search

the premises known as 6356 Manor Lane, Miami, Florida, [] a one story grey office building. The front of the building consists of a glass entrance door with blue awning. The building is identified with oval plaque indicating 6356 Manor Lane. The glass entrance door to 6356 Manor Lane identified the one-story building as SERATECH.

Search Warrant Attach. A. Contrary to Tellechea’s belief, the warrant’s invocation

of Seratech merely described the building to be searched. It did not restrict the

90 agents’ search to the premises known as or controlled by Seratech. Instead, the

warrant permitted the search of the entire building so long as the agents reasonably

believed they would find “Items to be seized” in the location of their search.

We find nothing in the record that would lead us to conclude that these

agents did not act reasonably. The warrant instructed them to seize business

records involving both Seratech and a number of Intermed entities, including

Intermed P.R. Pursuant to the affidavit filed with the warrant application, the

agents were also aware that Infustat and Tellechea were at least tangentially

involved in the schemes. Although Tellechea’s name was not mentioned directly

in the warrant or Attachment B, and only rarely included in the affidavit, the agents

were aware that Tellechea was an important figure in two of the companies that

were directly implicated in the fraudulent schemes. As such, they could have

reasonably inferred that Tellechea’s office was likely to contain evidence.

In fine, based on the information before them, the agents acted reasonably in

entering both the suite dedicated to Intermed P.R. and Tellechea’s private office.

The district court, therefore, did not err in denying Tellechea’s motion to suppress.

We turn now to the district court’s rejection of Bradley, Jr.’s claim of

incompetency to stand trial. After Bradley, Jr., was arraigned and while extensive

91 pretrial proceedings were underway, he moved the district court to sever his case

from those of the other defendants; he represented that his health was failing and

supported his motion with the affidavit and report of a medical expert suggesting

that he was suffering from “progressive dementia.”102 The expert’s report also

urged the court to afford him special considerations to limit his stress and

fatigue.103 Bradley, Jr., subsequently provided the court with several additional

affidavits describing his physical and mental condition, and he requested a hearing

to determine his competency to stand trial. The matter was referred to a magistrate

judge, who ordered Bradley, Jr., to undergo an evaluation at the Federal Medical

Center in Butner, North Carolina (“FMC Butner”). The staff at FMC Butner

examined him, administered a battery of psychological tests, and issued a formal

102 Progressive dementia is characterized by an increasing decline in cognitive functioning, often involving short-term memory loss, a reduced attention-span, difficulty performing common tasks, and disorientation. 103 The report was created at the behest of Bradley, Jr.’s attorneys by Phillip J. Resnick, M.D., a board-certified physician in psychiatry, neurology, and forensic psychiatry. In pertinent part, the report stated:

I have serious concerns about his ability to assist properly in his defense, due to, among other things, deficits in memory and attention span due to his dementia and depression. If it is ultimately determined by the court that Mr. Bradley is competent to stand trial, it is my opinion that special provisions will need to be made for him by having frequent breaks so that he can consult with his attorney. Mr. Bradley has shown a persistent pattern of being less attentive in the afternoon than in the morning. I would thus recommend that the trial day does not go beyond 3:30 in the afternoon.

Bradley, Jr.’s Supp. to Am. Mot. to Sever Ex. 3, at 25.

92 report (the “Butner Report”). The Butner Report concluded that Bradley, Jr., was

not suffering from progressive dementia, but was instead a victim of depression

and anxiety, both of which were causing memory problems. It also indicated that

several of his test results suggested he might have faked or otherwise exaggerated

his memory deficit.

The Government and Bradley, Jr., thereafter entered into a stipulation

allowing the magistrate judge to determine Bradley, Jr.’s competency to stand trial

based solely on the Butner Report and the reports of Bradley, Jr.’s experts. The

magistrate judge did so and issued a Report and Recommendation (“R&R”)

finding Bradley, Jr., competent to stand trial; the R&R credited the Butner Report

and recommended that the district court adjudicate Bradley, Jr., competent.

Bradley, Jr., objected to the findings of the R&R, but the district court overruled

his objections, adopted the R&R’s recommendation, and found Bradley, Jr., fit to

stand trial.

Bradley, Jr., appeals the district court’s decision, claiming that the court

erred in finding him competent. While conceding that he understood the nature of

the criminal proceedings against him, he argues, as he did before the district court,

that he lacked sufficient ability to consult with his attorney and was therefore unfit

to stand trial. He thus presents this court with a substantive as opposed to

93 procedural competency claim. Medina v. Singletary, 59 F.3d 1095, 1106 (11th Cir.

1995) (distinguishing a defendant’s procedural right to a competency hearing from

a substantive claim of incompetency at the time of trial).

We review a district court’s finding on a defendant’s competency to stand

trial for clear error. United States v. Izquierdo, 448 F.3d 1269, 1276 (11th Cir.

2006) (per curiam) (citation omitted). Our review of the finding is deferential. Id.

at 1271; see also Medina, 59 F.3d at 1111 (“The trial court’s finding that [the

defendant] was competent to stand trial is presumed to be correct and may not be

overturned if it is fairly supported by the record.”).

A defendant is not fit to stand trial if he is “suffering from a mental disease

or defect rendering him mentally incompetent to the extent that he is unable to

understand the nature and consequences of the proceedings against him or to assist

properly in his defense.” 18 U.S.C. § 4241(a). “The standard for competency to

stand trial is whether the defendant has sufficient present ability to consult with his

lawyer with a reasonable degree of rational understanding—and whether he has a

rational as well as factual understanding of the proceedings against him.” United

States v. Hogan, 986 F.2d 1364, 1371 (11th Cir. 1993) (citations and internal

quotation marks omitted). While earlier precedent tends to the contrary, see United

States v. Makris, 535 F.2d 899, 905–06 (5th Cir. 1976), we have since decided that

94 “a petitioner raising a substantive claim of incompetency is entitled to no

presumption of incompetency and must demonstrate his or her incompetency by a

preponderance of the evidence,” Medina, 59 F.3d at 1106 (citations and internal

quotation marks omitted).

Bradley, Jr., points to six errors he claims the district court committed in

adopting the magistrate judge’s competency finding. The first two errors relate to

the relative qualifications of the various experts who assessed his mental state.104

Relying on cases interpreting Daubert v. Merrell Dow Pharmaceutical, Inc., 509

U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 238 (1993), he first suggests that his

experts’ diagnoses should have been afforded greater value by both the magistrate

judge and the district court. Such deference was proper, he submits, because the

court was in possession of his experts’ curriculum vitae, but did not have

information regarding the qualifications of the examiners at FMC Butner. He also

contends that Dr. David Griesemer’s opinion—as the opinion of the only

neurologist named in any of the reports—that Bradley, Jr., was suffering from a

form of progressive dementia should have been given definitive deference.

We disagree. “[F]aced with diametrically opposite expert testimony, a

district court does not clearly err simply by crediting one opinion over another

104 In addition to Philip Resnick, Bradley, Jr., was seen by two other physicians: Dr. Tora Brawley, Ph.D., and Dr. David Griesemer, M.D.

95 where other record evidence exists to support the conclusion. Battle v. United

States, 419 F.3d 1292, 1299 (11th Cir. 2005) (citations and internal quotation

marks omitted). For example, in Medina, we found on habeas review that a district

court was justified in denying the defendant a pre-trial competency hearing even

though defense psychologists later argued he was incompetent. Medina, 59 F.3d at

1112. Absent a showing that the evaluation conducted by court appointed experts

was “professionally inadequate” in any way, we held that the district court did not

clearly err by relying on their report. Id. at 1111.

After reviewing the record here, we conclude that the district court did not

clearly err in crediting the FMC Butner evaluators over Bradley, Jr.’s. Although

their results differed from the results obtained by his experts, there is no evidence

to show that the procedures undertaken at FMC Butner were professionally

inadequate. See id. at 1111–12. If anything, as mentioned in the Butner Report,

the tests the examiners administered were slightly newer than those conducted by

the defense experts.

And although it is arguable that the defense experts were more qualified to

diagnose Bradley, Jr., that possibility alone does not make the FMC Butner

evaluators unqualified or their opinion suspect. The defense team did submit

impressive curriculum vitae of each of their three experts. But the Butner Report

96 also indicated that Bradley, Jr., was examined by qualified personnel at that

facility, including: (1) Edward E. Landis, Ph.D., American Board of Professional

Psychology, Director of Psychology Training (individual evaluation); (2) Ralph

Newman, M.D., Staff Psychiatrist (psychiatric consultation); (3) Eugene Gourley,

Ph.D., Staff Neuropsychologist (neuropsychological testing); and (4) other

members of the Forensic Team, Correctional, and Mental Health staff.

So while Bradley, Jr., correctly points out that the “record is silent as

whether or not the Butner staff were licensed, whether or not they have any

specialized expertise, whether or not they hold board certifications, and what if any

experience each has had in practice,” he cannot seriously argue that their report

was inadmissible under Daubert, which instructed trial judges to determine

whether “[an] expert is proposing to testify to (1) scientific knowledge that (2) will

assist the trier of fact to understand or determine a fact in issue.” 509 U.S. at

592–95, 113 S. Ct. at 2796–98 (footnote omitted). Having found the Butner

Report acceptable under Daubert, the district court was free—based on its

assessment of respective strengths and weaknesses—to accept the Butner Report

over the defense experts. That is exactly what happened here; the district court

preferred the FMC Butner experts to the defense’s. We will not disturb that

97 decision.105 See Medina, 59 F.3d at 1111–12.

Bradley, Jr.’s second argument is that the district court should have relied

upon his expert’s report because only his doctor, Dr. Resnick, was able to see him

interact with his attorneys. By Bradley, Jr.’s reasoning, because of his unique

vantage point, only Dr. Resnick was able to form a valid opinion as to whether

Bradley, Jr., could or could not aid in his defense. Because Dr. Resnick noted that

Bradley, Jr., often frustrated his lawyers and failed to follow their commands,

Bradley, Jr., assumes that the only logical inference one could have drawn about

his mental state was that he was incompetent.

This argument fails for two reasons. First, the experts at FMC Butner did

determine whether Bradley, Jr., was capable of competently conferring with

others—that is, whether he was able to assist in his own defense. The Butner

Report included excerpts from conversations between FMC Butner staff and

Bradley, Jr., all of which indicate that he was able to cogently and intelligently

discuss the parties in the case and the illegal conduct alleged in the indictment.

Drawing inferences from those conversations, the FMC Butner evaluators

105 Moreover, Bradley, Jr., previously stipulated that the magistrate and district court judges could determine his competency by considering the Butner Report alongside the defense evaluations. It would make little sense to allow him to avoid that stipulation now by calling into question the qualifications of the doctors who created the report and the court’s ability, under Daubert, to consider it.

98 ultimately concluded, as they stated in their report, that Bradley, Jr., was “better

suited to confront the challenges of trial than the majority of criminal defendants.”

Thus, just as before, we have two competing opinions about Bradley, Jr.’s ability

to assist his lawyers, and the district court did not clearly err in preferring one over

the other. See id.

Second, even if we were to place special emphasis on Dr. Resnick’s report,

the district court did not err in finding Bradley, Jr., competent. We have

previously held that the fact that a defendant “at times exhibited an antagonistic

relationship with his lawyers over their representation of him is no indicator of

incompetency.” Battle, 419 F.3d at 1299. In doing so, we credited the court’s

determination that the defendant “had the ability to, and did indeed, assist his

counsel in preparing for his trial by discussing the facts of his case in detail before

trial and by cooperating with defense investigators.” Id. at 1300. Thus, that a

client and his lawyer clash, or that the client does not always follow the lawyer’s

advice, does not mean that the client is incompetent to stand trial. See id. In the

same way, that Bradley, Jr., had trouble obeying his attorney’s commands and

often confused events does not render him incompetent. See id.

The fourth, fifth, and sixth errors Bradley, Jr., cites deal with findings he

deems ill-advised or otherwise unsupported by the evidence. He posits that the

99 court erroneously adopted the R&R’s conclusion that the experts at FMC Butner

spent more time with him than did his own experts. He also finds error in the

R&R’s implication that withdrawal from psychoactive prescription drugs might

have contributed to his memory-loss symptoms. And he says that the court placed

too much emphasis on inconclusive tests that may or may not have caught him

exaggerating his memory deficits. We find nothing in the record that would rise to

the level of a “definite and firm conviction” that the district court made a mistake

in these findings. See Hogan, 986 F.2d at 1372. Accordingly, we uphold the

district court’s competency determination.

The defendants argue that several of the district court’s rulings at trial

constituted an abuse of discretion, therefore warranting the vacation of their

convictions. We consider the evidentiary rulings in section 1, and the other rulings

in section 2.

We review the district court’s evidentiary rulings for an abuse of discretion.

United States v. Fortenberry, 971 F.2d 717, 721 (11th Cir. 1992). Even if a ruling

constitutes an abuse of discretion, it will “result in reversal only if the . . . error was

not harmless.” United States v. Hands, 184 F.3d 1322, 1329 (11th Cir. 1999)

100 (citations omitted). An error is harmless unless “there is a reasonable likelihood

that [it] affected the defendant’s substantial rights.” Id. (quoting United States v.

Hawkins, 905 F.2d 1489, 1493 (11th Cir. 1990) (alteration in original)); see also

Fed. R. Crim. P. 52(a). Stated another way, “nonconstitutional error will be

harmless unless the court concludes from the record as a whole that the error may

have had a “substantial influence” on the outcome of the proceeding.” United

States v. Montalvo-Murillo, 495 U.S. 711, 722, 110 S. Ct. 2072, 2080, 109 L. Ed.

2d 720 (1990). With these principles in mind, we address the defendants’ claims

of evidentiary error.

On the last day of the Government’s case in chief, the Assistant U.S.

Attorney (“AUSA”) prosecuting the case informed the court, at a side bar, that “at

this point in the trial we are putting—beginning our ‘wealth evidence,’” meaning

evidence of the defendants’ (primarily, the Bradleys’) financial success. Citing

Federal Rule of Evidence 403, defense counsel objected on the ground that the

probative value of such evidence would be outweighed by the danger of the unfair

prejudice it would create. The district court overruled their objections, and the

Government proceed with its presentation.

The Government called several federal agents to discuss what their

101 investigation of the Bradleys had uncovered and introduced photographs of, and

other documents describing, the Bradleys’ assets, including real estate, vehicles,

watercraft, aircraft, financial accounts, and other personal property.

The Bradleys argue that the district court abused its discretion in allowing

the Government to present this “wealth evidence” because it was obvious that the

Government’s strategy was to prejudice a mostly working-class jury against the

wealthier defendants. If true, the Government’s attempt to introduce, and the

court’s admission of, such evidence was improper. The problem with such

evidence, of course, is that the jury might find the Bradleys and their co-

conspirators guilty not because the evidence established guilt beyond a reasonable

doubt, but because these defendants had lots of money. As this evidence was

irrelevant to the central issue in the case—whether the defendants had defrauded

Florida Medicaid, Medi-Cal, and GHPP—the Bradleys claim error in the district

court’s decision to admit it. See Fed. R. Evid. 401, 403. The Government answers

that the evidence was relevant insofar as it explained the Bradleys’ motive for

committing fraud.106

106 At trial, the Government seemingly argued that so-called “wealth evidence” is “always” admissible in “wealth-motivated crimes: responding to defense counsels’ objections, the AUSA stated, “I think as a general statement the prosecution in a criminal case always has the option of trying to show motive. It doesn’t have to—[but] these are wealth-driven, wealth- motivated crimes.” We do not decide whether “wealth evidence” is always admissible; we only decide whether it was admissible in this case.

102 Use of a defendant’s wealth to appeal to class bias can be “highly improper”

and can deprive that defendant of a fair trial. United States v. Socony-Vacuum Oil

Co., 310 U.S. 150, 239, 60 S. Ct. 811, 852, 84 L. Ed. 1129 (1940). But evidence of

wealth or extravagant spending may be admissible when relevant to issues in the

case and where other evidence supports a finding of guilt. See, e.g., United States

v. White, 589 F.2d 1283, 1286 n.7 (5th Cir. 1979) (“Where there is other evidence

of the guilt of the accused and the crime is of such a nature that the acquisition of

money may be regarded as a natural or ordinary result of its perpetration, evidence

is admissible of the sudden acquisition of money by the defendant . . . at or

subsequent to the time the offense was committed, although the source of the

money is not definitely traced or identified by the prosecution.”) (citations and

internal quotation marks omitted).

Determining whether “wealth evidence” is intended to provoke class bias or

to establish a fact in issue is often difficult.

[T]he line between statements that are “appeals to class prejudice [that] are highly improper and cannot be condoned” and statements regarding class that are “relevant to issues at hand” is not easily drawn. It is especially difficult to draw when an accused’s motivation is at issue, and when, as here, the alleged motivation is financial.

United States v. Jackson-Randolph, 282 F.3d 369, 377–78 (6th Cir. 2002) (quoting

United States v. Derman, 211 F.3d 175, 179 (1st Cir. 2000) (alterations in

103 original)). Indeed, because financial gain is the motive for committing almost all

financial crimes, we must be careful not to ignore the “real possibility that the

extreme or extravagant wealth or spending was [merely] made possible by

legitimate means.” Id. at 378. Otherwise, we run the risk of permitting the

introduction of evidence that is probative of nothing more than the defendant’s

financial success. Id. Accordingly, the Supreme Court has held that our

determination of whether the evidence is relevant under Federal Rule of Evidence

401, or more prejudicial than probative under Rule 403, must turn on the facts of

each specific case. Socony-Vacuum Oil Co., 310 U.S. at 240, 60 S. Ct. at 852.

In this case, the Government sought to prove that the defendants—namely,

the Bradleys—had engaged in the recycling of blood-derivatives for profit. The

defendants countered with evidence that the Bradleys already had a successful

business at Bio-Med, and that their behavior was nothing more than business-as-

usual for a prescription drug wholesaler. The Government thus had to explain why

supposedly successful businessmen, whose legitimate transactions accounted for

more than 97.5% of their business, would engage in fraud. The fact in issue here,

therefore, was whether the defendants had a motive to commit fraud.

To prove that the defendants had the requisite motive, the Government first

established that Bio-Med made a substantial profit on every unit of blood-

104 derivatives recycled. The Government then attempted to demonstrate how the

Bradleys enjoyed that profit. The district court found this evidence relevant and

admitted it.

The district court had broad discretion to admit the Government’s “wealth

evidence” so long as it aided in proving or disproving a fact in issue. United States

v. Terzado-Madruga, 897 F.2d 1099, 1117 (11th Cir. 1990). “Conversely, the

court’s discretion to exclude evidence under Rule 403 is limited. Evidence may be

excluded only when ‘its probative value is substantially outweighed by the danger

of unfair prejudice.’” Id. (quoting Fed. R. Evid. 403). Because exclusion under

Rule 403 is so drastic a remedy, we have cautioned that the balance “should be

struck in favor of admissibility.” Id. (citing United States v. Finestone, 816 F.2d

583, 585 (11th Cir. 1987)).

We are of the view that this evidence was probative of the defendants’

motive, even if only slightly so. See Jackson-Randolph, 282 F.3d at 377–80

(weighing the probative value of such evidence against its prejudicial value).

Similarly, the “wealth evidence” was only slightly prejudicial to the defendants.

The jury was exposed to a substantial amount of evidence throughout the

trial—much of it presented by the defense—regarding the defendants’ legitimate

business successes and Bio-Med’s impressive profits. The jurors were just as

105 likely to be prejudiced by that evidence, if they were to be prejudiced at all, as by

the Government’s “wealth evidence”; indeed, a reasonable jury would have

suspected long before the “wealth evidence” was presented that the Bradleys were

financially well-off. Because the evidence was relevant and the prejudice slight,

we find no abuse of discretion in the court’s admission of the “wealth evidence.”

Fed. R. Evid. 403.

Bradley, Jr., contends that the district court also abused its discretion in

allowing the Government to play audio tapes of conversations he had with Larry

Pinkoff and undercover agents. He submits that the tapes prejudiced the jury

against him due to his boastful tone (about his business success and the resulting

wealth) and his use of profanity. We find no abuse of discretion in the district

court’s admission of the audio recordings. The recordings were highly probative

of the Bradleys’ knowledge that they may be violating the law and were not so

prejudicial that they substantially outweighed that probative value. See Fed. R.

Evid 403.

Bradley III argues that the district court should have barred the Government

from impeaching him with extrinsic act evidence that it did not disclose prior to

106 trial as required by Federal Rule of Evidence 404(b). While testifying in his own

defense, Bradley III attempted to explain why he had Bio-Med purchase unused

IVIG and Recombinate through Intermed instead of directly from Bossey and the

Apex Partners, who had obtained it for him. By his testimony, Bradley III sought

to counter the Government’s position that, because the transactions were structured

in such a way as to obscure Bio-Med’s sources for blood-derivatives, he must have

known that his business was fraudulent.

On cross-examination, the AUSA showed Bradley III a purchase order

Intermed had issued to Excim Trading Corp. (“Excim”) and asked him about

certain IVIG Intermed had purchased from Excim at a discounted price. Bradley

III admitted that Excim was holding the IVIG for shipment to Nigeria for use in

combating the AIDS epidemic there, which explained the discounted price, and

that Bio-Med sold the IVIG bought from Excim to pharmacies in the United States

at the going market price. The AUSA then asked, “You make money off of people

suffering; do you not?” At this point, Bradley III objected to the this line of

questioning—on the ground that it constituted Rule 404(b) evidence and the

Government had not notified him of it as required by the rule—and moved the

court to strike it from the record. The court overruled his objection, stating that

Rule 404(b) did not pertain to impeachment evidence.

107 Rule 404(b) states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

Fed. R. Evid. 404(b). As is evident from the language of Rule 404(b), the

admission of extrinsic act evidence under the rule requires “the prosecution to

provide notice [of its intended use to the defense], regardless of how it intends to

use the extrinsic act evidence at trial, i.e., during its case-in-chief, for

impeachment, or for possible rebuttal.” Fed. R. Evid. 404(b) advisory committee’s

note to the 1991 amendments. We have seized upon that language and held that,

contrary to the district court’s ruling, Rule 404(b) does, in fact, apply to

impeachment evidence. United States v. Carrasco, 381 F.3d 1237, 1240 (11th Cir.

2004) (per curiam).

The evidence presented here was clearly extrinsic. The Government offered

evidence of the Intermed-Excim transaction to demonstrate that Bradley III’s

characterization of Intermed’s role in the schemes was inaccurate, not to

demonstrate that Bradley III had actually engaged in the alleged fraud. The

108 evidence was also covered by Rule 404(b); the advisory notes to the rule

contemplate the use of extrinsic acts as impeachment evidence. And there is no

dispute that, even after Bradley III requested that it disclose all Rule 404(b)

evidence, the Government failed to notify Bradley III it would rely upon the

purchase order at trial. The district court therefore abused its discretion in

admitting the evidence over Bradley III’s objection. We must now determine

whether the error was harmless. See id. at 1241.

“The policy behind 404(b) is to reduce surprise and promote early resolution

on the issue of admissibility.” United States v. Perez-Tosta, 36 F.3d 1552, 1561

(11th Cir. 1994) (citation and internal quotation marks omitted). Admission of

unnoticed Rule 404(b) evidence prejudices a defendant where the evidence had a

substantial influence on the outcome of the trial. See, e.g., Montalvo-Murillo, 495

U.S. at 722, 110 S. Ct. at 2080. In the present case, the admission of the extrinsic

act evidence to impeach Bradley III neither surprised him nor had a substantial

influence on the jury’s verdicts. Bradley III responded positively when shown the

Intermed purchase order, stating that it proved his point as to how medication was

purchased by Intermed and Bio-Med. Moreover, overwhelming evidence drawn

from independent sources confirmed that Bradley III had indeed used Intermed to

purchase recycled blood-derivatives for Bio-Med. For these reasons, allowing the

109 challenged line of inquiry was harmless.

Bradley III has raised additional concerns regarding the district court’s

handling of his testimony. In particular, he sought to testify on direct examination

about conversations he previously had with several prosecution witnesses and

other individuals related to the criminal investigation. During that testimony, the

court repeatedly sustained the Government’s objections on hearsay grounds. The

court did so even after Bradley III’s attorney asserted that the testimony was

necessary to answer certain allegations made by Government witnesses about

Bradley III’s and Bio-Med’s business practices.

The district court also interrupted Bradley III on its own initiative, at one

point instructing him not to “go into any conversations of what they said” and, at

another time, informing his attorney that he “is giving all of the hearsay[,] . . .

quoting people who are not here, and relating information that I think is totally

hearsay.” The court further instructed Bradley III’s attorney to refrain from asking

for narrative answers and interrupted Bradley III when he failed to directly respond

to his attorney’s questions. At that time, the court chastised Bradley III’s attorney,

stating, “If you want to argue, then we’ll quit asking questions. We will let him

narrate.”

110 On cross-examination, Bradley III continued to provide narrative responses

to the AUSA’s questions. The court instructed him “not to make a talk,” but to

answer “yes” or “no.” It informed Bradley III that he had previously “explained

[himself] in paragraphs and chapters,”107 and that he would have an opportunity to

clear up any ambiguities on redirect. When Bradley III again responded to a

“straightforward question” with a lengthy answer, the court interjected, “I think

you have explained,” and told him, “[D]on’t argue with the lawyer. Just answer

his questions.” After Bradley III later protested that “not everything is a yes or no

question,” the court rebuked him again, saying, “Mr. Bradley, listen to me. Don’t

step over the line.” The court overruled each of Bradley III’s attorney’s objections

to the questioning.

Bradley III asserts that the district court’s conduct as set out above deprived

him of a fair trial by interfering with his fundamental right to testify in his own

defense. His defense, Bradley III argues, turned primarily upon the jury’s

assessment of his knowledge and intent. Therefore, he believes the court should

have admitted his testimony regarding these conversations as either non-

hearsay—because his interlocutor’s statements, regardless of their truth, impacted

his decision-making—or, alternatively, under the “state of mind” exception to the

107 The court did instruct the AUSA, at one point, to “[l]et him finish his answer.”

111 hearsay rule—to show how his own statements in the relayed conversation

reflected his state of mind. Fed. R. Evid. 801, 803(3). According to Bradley III,

the court abused its discretion in refusing to allow his testimony.

The Government argues that these conversations were inadmissible hearsay

that did not fall under the “state of mind” exception and that the district court

reasonably exercised its discretion in instructing Bradley III to avoid hearsay. The

Government is correct. We find that the court took reasonable steps to limit

inadmissible testimony and therefore did not abuse its discretion.

Pursuant to Federal Rule of Evidence 801, all hearsay is inadmissible unless

it falls within an applicable exception. Hearsay is axiomatically defined as an out-

of-court statement repeated to prove the truth of the matter asserted. See Fed. R.

Evid. 801. Bradley III testified repeatedly as to what other individuals told him

they knew or believed or had done. Although he argues on appeal that these

conversations were meant to show how the interlocutor’s statements impacted his

state of mind, Bradley III’s trial testimony demonstrates that he instead hoped the

jury would believe the truth of the interlocutor’s statements. We therefore agree

with the district court that these statements were hearsay. As such, they were

inadmissible unless they fall within a hearsay exception.

Rule 803(3), the “state of mind” exception to the hearsay rule, allows a

112 witness to repeat a declarant’s statement to shed light on the declarant’s state of

mind. See, e.g., United States v. Arbolaez, 450 F.3d 1283, 1290 n.6 (11th Cir.

2006). Bradley III’s testimony relayed statements from two sets of declarants:

(1) Bradley III; and (2) his interlocutors. Bradley III argues that every one of these

out-of-court statements shed light on his state of mind, not that of the

interlocutor.108 Therefore, any statements made by an interlocutor do not fall

within the Rule 803(3) exception. And although Bradley III’s own statements

could theoretically qualify under this rubric, his statements did not shed any light

on his future intentions. Rather, they were self-serving declarations that he did not

believe that Bio-Med had sold recycled medication. Thus, the exception does not

apply, and the court correctly applied the Federal Rules of Evidence in ruling on

the admissibility of Bradley III’s testimony.

Moreover, the court did not abuse its discretion in sustaining the

Government’s repeated objections to Bradley III’s responses. Although the court

was required to respect Bradley III’s right to testify, that right is not without limits.

A defendant’s right to testify is circumscribed by both the rules of evidence and the

court’s inherent authority to ensure compliance with those rules. United States v.

108 Bradley III’s attorney indicated that the only relevance of the hearsay statements was to explain why Bradley III acted as he did, at one point saying, “[W]e need to have these conversations because it goes to [Bradley III’s] state of mind, and it goes to whether he has any willful, criminal intent to commit any offense.”

113 Anderson, 872 F.2d 1508, 1519 n.16 (11th Cir. 1989). The court properly applied

the rules of evidence when ruling on the Government’s objections and was not

required to permit Bradley III to abuse them.109

Neither did the court abuse its discretion by sua sponte instructing Bradley

III to refrain from discussing conversations he had with other witnesses and to stay

on point. Fearing that his testimony would overwhelm the trial, the court took the

initiative to remind Bradley III—gently at first, and later with more force—to hew

closely to the issue at hand and to keep his answers from stumbling into

inadmissible hearsay. At no point did the court display a lack of neutrality or

“intervene to the extent of indicating his personal feelings about guilt or

innocence,” acts which we have found sufficient to warrant reversal. United States

v. Elkins, 885 F.2d 775, 788 (11th Cir. 1989). Indeed, a district court is

empowered to exercise just this kind of control over the examination of witnesses.

Fed. R. Evid. 611(a); see also United States v. Bertram, 805 F.2d 1524, 1529 (11th

Cir. 1986) (explaining that a trial judge may, within reason, remark on the evidence

presented and, when appropriate, limit further introduction of evidence). In light

of the court’s interest in avoiding repetitive, irrelevant, or inadmissible testimony,

we cannot find that the court acted unreasonably in speaking directly to Bradley III

109 We note that the district court did give Bradley III and his lawyer suggestions as to how they might conform to the hearsay rules, but the court’s suggestions were not heeded.

114 as it did.110

In addition to the Bradleys’ and Bio-Med’s claims of trial error, all of the

defendants claim that the district court abused its discretion (1) in failing to

investigate the potential of juror misconduct when it was brought to the court’s

attention that at least two jurors had engaged in premature deliberations, and (2) by

dismissing juror Smith—the juror who brought the premature deliberations to

light—for medical reasons. We first discuss the court’s duty to investigate and

then its dismissal of juror Smith.111

Every defendant has the right in a criminal prosecution to trial by an

impartial jury. U.S. Const. amend. VI. Juror impartiality is endangered when

jurors engage in deliberations before they have heard both sides’ evidence and the

judge’s instructions on the law of the case. See, e.g., United States v. Yonn, 702

110 We mention also that the court instructed the jury that what it said during the trial was not evidence and should not be considered by it in rendering its verdicts. Although such instructions are often an imperfect cure due to the court’s influence over the jury, we find the court’s instruction helpful here in deciding whether the court abused its discretion. 111 The defendants also claim that trial error occurred in the form of comments the Government made in its opening statement to the jury when the trial began and in its closing argument to the jury at the end of the trial. The defendants did not object to anything the Government said in its opening statement; thus, to obtain relief, we would have to find plain error. We find nothing improper in the comments. The defendants objected to the comments made in closing argument just before the court submitted the case to the jury. We find no merit in their objections.

115 F.2d 1341, 1345 n.1 (11th Cir. 1983). It is for this reason that district courts

instruct jurors at the outset of a criminal trial to refrain from expressing their

opinions as to a defendant’s guilt or innocence before the court submits the case to

the jury for deliberation. Logically, should evidence come to the court’s attention

that jurors might have disobeyed the instruction, district courts have the power to

investigate the possibility of premature deliberation. Id. at 1345. Because of their

familiarity with the jurors and the time and place of the conduct in question, trial

courts are vested with broad discretion in determining how best to address

potential juror misconduct. Id.

We have long recognized a distinction between the dangers of improper

communication amongst jurors and communications between jurors and outsiders

to the litigation. United States v. Dominguez, 226 F.3d 1235, 1248 (11th Cir.

2000) (“[W]hen there are premature deliberations among jurors with no allegations

of external influence on the jury, the proper process for jury decisionmaking has

been violated, but there is no reason to doubt that the jury based its ultimate

decision only on evidence formally presented at trial.” (quoting United States v.

Resko, 3 F.3d 684, 690 (3d Cir. 1993))). As such, we have found that allegations

of juror misconduct concerning outside influences must be fully investigated to

determine the scope of the misconduct and to ensure no prejudice results. United

116 States v. Brantley, 733 F.2d 1429, 1439–40 (11th Cir. 1984). We have also held

that a court’s failure to hold a hearing when an extrinsic influence is alleged may

constitute an abuse of discretion and require the court to abort the trial. United

States v. Chiantese, 582 F.2d 974, 979 (5th Cir. 1978).

The district court’s discretion, however, is at its zenith when the alleged

misconduct relates to “statements made by the jurors themselves, and not from

media publicity or other outside influences.” Grooms v. Wainwright, 610 F.2d

344, 347 (5th Cir. 1980); see also Dominguez, 226 F.3d at 1246; United States v.

Cuthel, 903 F.2d 1381, 1382 (11th Cir. 1990); United States v. Williams, 716 F.2d

864, 865 (11th Cir. 1983) (per curiam); Yonn, 702 F.2d at 1344–45. This

discretion extends to the initial decision whether to interrogate the juror(s) accused

of improper communication. Cuthel, 903 F.2d at 1382–83. Still, the court’s

discretion is not boundless. As we explained in United States v. Caldwell, 776

F.2d 989 (11th Cir. 1985), “[t]he more serious the potential jury contamination, . . .

the heavier the burden to investigate.” Id. at 998.

Our review of the district court’s treatment of the allegation of premature

deliberations in this case is necessarily colored by prior decisions of this court. In

Grooms, we held on habeas review that a trial judge acted within his discretion

when he denied the defendant’s motion for a new trial without investigating one

117 juror’s comment to another that “[from] what I heard already he’s guilty.” 610

F.2d at 347–48. As the comment was made at the close of the prosecution’s case,

we found that it did not “reflect serious prejudice, but only an objective evaluation

of the evidence presented to date in the trial.” Id. at 348.

We similarly held in Yonn, a direct appeal from a federal criminal

conviction, that the district court did not abuse its discretion when, after learning

that one juror had “improperly expressed her opinion on the weight of the

evidence,” the court interviewed each of the jurors outside the presence of counsel,

but with a court reporter transcribing the exchanges. 702 F.2d at 1344. After

discussing the matter with counsel from both sides, the court eventually dismissed

both the juror guilty of the impropriety and the juror who reported the comment.

Id. We held that it would have been better practice for the court to have

interviewed the jurors in the presence of the counsel for all concerned parties, but

held that any error—if there was error—was harmless due to the court’s demeanor

during the interviews (as reflected by the court’s and the jurors’ statements),

decision to transcribe the interviews, and subsequent instructions to the jury. Id. at

1345–46.

And in Dominguez, we held that a district court did not abuse its discretion

when it interviewed a juror who wrote a note to the court asking to be excused,

118 revealing that she anticipated trouble between herself and other jurors who were

more likely to convict. 226 F.3d at 1243–47. The juror indicated that she believed

that “a fairly general consensus is already there,” but that she did not think the jury

had “jumped the gun and begun deciding the case” before the close of evidence.

Id. at 1247. Although “we conceivably might have followed a different course and

even arrived at a different result than the district court did [had we] been presiding

over the trial of th[at] case,” we found no clear error in the court’s determination

that there had been no juror misconduct. Id. at 1247–48 (“reinforc[ing]” our

decision on the court’s repeated instructions to the jury and the jury’s split verdict

as to the defendants).

Perhaps the most accurate comparator to the situation here, however, is

United States v. Harris, 908 F.2d 728 (11th Cir. 1990), where we concluded that

the district court did not abuse its discretion in refusing to interview one juror who

commented to another during a lunch break on the second day of trial that “these

guys sitting across from us think they’re going to get off on this.” Id. at 732–33.

After learning of the comment, the court asked the jurors as a group whether “any

juror has made any kind of decision up to this point that he or she could not keep a

completely open mind until all of the evidence is in, and until the case has been

explained to you.” Id. at 733. When no juror responded, the court continued the

119 trial. Id.

We ultimately held that the comment in Harris, although likely

demonstrating some bias against the defense, was ambiguous and “d[id] not

suggest serious jury contamination.” Id. at 734. We therefore approved of the

district court’s handling of the matter, explaining that any serious investigation into

the matter might have unduly emphasized the remark and that the court “cured any

possible taint by questioning the jurors on their ability to remain impartial and

giving them an admonition to keep an open mind.” Id.

Here, the district court took basic remedial action after receiving a note from

juror Smith112 on the fourth day of trial indicating that two jurors had prejudged the

defendants guilty. The note stated that Smith had overheard fellow jurors making

“statements in private that they will make sure [the defendants] go to jail . . . .” In

a chambers conference, the district judge considered the note and decided to (1)

instruct the jurors once again on the presumption of innocence and (2) direct them

to refrain from coming to premature conclusions. After overruling objections to

that decision by defense counsel,113 the court addressed the jury en masse, first

explaining that the trial had just begun and that the end was “a long way” away,

112 Smith was later removed from the jury. We discuss his removal from the jury in section 2.b, infra. 113 Defense counsel sought permission to interview juror Smith as well as the two jurors who had been overheard. Alternatively, counsel sought a mistrial.

120 and then emphasizing that the defendants “are presumed to be innocent” up until

the close of evidence and the court’s charge. The court next reminded the jurors of

their oath to refrain from premature deliberations and instructed them “not to

express any feelings or thoughts about the guilt or innocence of any party.” The

judge then had each juror stand and answer a single question, “[H]ave you and can

you follow the instructions of the Court[?]” Each juror answered the court with,

“[Y]es, sir.”

Afterward, as the trial advanced, the court periodically reminded the jurors

of their duty not to deliberate. The district judge did so on at least eleven

occasions. And on the last day of evidence, immediately before dismissing the

jury for deliberations, the court once again polled each juror to ensure that the

panel “had complied with all of the Court’s instructions.” After each juror

answered affirmatively, the court gave its charge.

We believe this case presents something of a middle ground between the

misconduct alleged in Dominguez and that addressed in Harris. We find the

jurors’ comments less ambiguous and more troubling than those made in Harris.

Accordingly, we would expect the district court to take greater measures in

investigating the potential prejudice to the defendants. And we are not surprised

the court did exactly that, seeking assurances from each individual juror that his or

121 her impartiality was not in question. Nevertheless, we would have preferred that

the court take more aggressive action, as in Dominguez, especially as the alleged

impropriety came to light earlier in the trial and was more indicative of jury bias.

While the virtue of hindsight gives us pause, in light of Grooms, Yonn, and,

most of all, Harris, we cannot say that the court abused its discretion in declining to

question the involved jurors or to allow defense counsel to do so. See United

States v. Klee, 494 F.2d 394, 395–96 (9th Cir. 1974) (approving a district court’s

decision to forego further investigation where the court was convinced that the jury

could keep an open mind during deliberations); cf. Resko, 3 F.3d at 690–95

(concluding that a district court erred in declining to engage in further inquiry

where every juror admitted to taking part in premature discussions).

We are encouraged in our decision by a number of factors. First, that the

comment was made so early in the trial indicates to us that the jurors had merely

been influenced, as was intended, by the Government’s evidence to that date.

Although not the “objective evaluation” we considered in Grooms, we recognize

that jurors are likely to react—and perhaps overreact—after hearing evidence from

one party, but not the other. See 610 F.2d at 348. That reaction does not present a

problem unless it results in serious prejudice. See id. And while we cannot rule

out the potential for such prejudice in this case, we also find no reason to disturb

122 the district court’s implicit determination, after obtaining assurances from the

jurors themselves, that the jury could remain objective. See Dominguez, 226 F.3d

at 1247–48 (noting that the court’s decision to allow the jury to continue to serve

evinced a conclusion that the jury “was capable of correcting any misbehavior, of

following the court’s instructions [to not discuss the case] from that point on, and

of properly evaluating the evidence”).

Second, the court eventually did have an opportunity to assess the impact of

the juror misconduct. After the court received a note from the jury just prior to

deliberations requesting the removal of juror Smith, the court engaged in a

personal colloquy with Smith. That colloquy, in part, touched on the subject of

juror impartiality. Although Smith agreed that the other jurors had strong

opinions, when pressed, he refused to state that the any members of the jury panel

had violated the court’s instructions. See Yonn, 702 F.2d at 1345–46. From its

colloquy with Smith, the court was thus able to gauge whether its remedial

measures had been effective. By dismissing Smith without a more searching

investigation, the court effectively made a judgment call that the jury could

impartially decide the case.114

114 We understand that the bare record of juror Smith’s colloquy with the court could be construed to mean that the jury had already determined the defendants’ guilt and were not willing to engage in objective deliberations; indeed, many of Smith’s answers to the court’s questions imply exactly that. We cannot, however, discount the possibility that juror Smith’s

123 And finally, that the jury fully acquitted some of the defendants and partially

acquitted others provides circumstantial evidence that the jury did indeed

“consider[] the charges individually and assess[] the strength of the evidence as to

each charge.” Dominguez, 226 F.3d at 1248. We can therefore conclude that the

district court correctly determined that the jury’s impartiality was not in danger.

In sum, even though we might have preferred a different course of action,

we find that the district court did not err when it forewent a full investigation into

juror impartiality in favor of a less intrusive remedy. See Harris, 908 F.2d at

734. “The whole point of discretion is that there is [a] range of options open,

which means that more than one choice is permissible. The broader the discretion,

the greater the range of choice and the less room for reversal.” Dominguez, 226

F.3d at 1247.

Immediately before deliberating, the court removed juror Smith. Smith had

suffered throughout the trial from severe back pain. The court was aware of his

physical discomfort, and had witnessed its effects on him on several occasions; he

often had to stand during testimony and had once cried out in pain during the trial.

demeanor and bearing gave the court a distinctly different impression. Owing to the potential for this equally-probable interpretation of juror Smith’s comments, we defer to the district court’s factual determination that the jury remained impartial.

124 The court also was aware that Smith was taking Oxycontin, a pain reliever, having

sent a note to his doctor requesting a renewal prescription.115 Smith gamely

endured the entirety of the trial and made it through to the jury charge. After the

court gave the jury a supplemental instruction, however, one juror (not Smith)

stood and asked to speak to the judge on behalf of the jury. The judge then sent the

jurors out of the courtroom to draft a note stating their concern.

While the jurors were away, the district judge indicated to the AUSA and

defense counsel that he believed the note would pertain to juror Smith. The judge

summarized the severity of Smith’s physical problems and stated, “[I]f a message

comes back, I am going to relieve Mr. Smith for the reasons I’ve stated [i.e.,

because of his physical discomfort], and there would possibly be others [i.e.,

because of the juror misconduct controversy].”

Eleven members of the jury eventually submitted a note to the court

indicating that they believed that Smith had not been “fully” there during the trial.

Those jurors requested that the court remove him. The court then announced its

intention to remove him, making good on its earlier statement to counsel, and

replace him with an alternate juror. In relevant part, the judge stated, “This is only

115 Even though he received the medication, the court stated it could not be sure Smith’s concentration had not waned during the trial. That court later stated, “I don’t know why I have not relieved him earlier, because it has been a tortuous process. I was not sure he was awake.”

125 confirmation of what I had already observed. I should have done it earlier.”

Defense counsel immediately objected and requested that the court interview

Smith. The court then brought Smith into chambers and engaged him, with

counsel present, in the colloquy described supra. The court asked Smith whether

he was in too much pain to continue and whether he wished to be removed. He

indicated that he could possibly continue—he had taken an extensive amount of

notes and felt capable of deliberating—but admitted he had “st[u]ck with it”

through “some pretty rough days.” Eventually, he conceded that it would be

“better” if he were removed.

The court thereafter removed Smith from the jury panel. Defense counsel

again objected, claiming that Smith never stated he was too injured to continue.

Instead, defense counsel conjectured that he was unwilling to work with the other

eleven jurors, or that the other eleven were unwilling to work with him. The

implicit suggestion was that the other eleven jurors had already made up their

minds to convict, and that Smith did not feel he would be effective in challenging

their predispositions. In defense of that suggestion, defense counsel pointed to the

fact that it had been Smith who had brought the prior juror misconduct to the

court’s attention. Defense counsel inferred from that note that the other jurors

“may not like” Smith and had likely conspired to have him removed from the jury;

126 defense counsel complained that the court had not done enough to investigate the

possibility of juror misconduct and the potential that the other jurors had

intimidated juror Smith into acceding to his own removal.

The court disagreed. Noting and overruling those objections, the court

stated, “The man is a sick man. He is in awful pain. And the Judge has to make

certain decision[s]. This is the best place to substitute a juror, not halfway through

the deliberations.”

On appeal, the defendants raise the same arguments then made to the district

court. We, like the district court, reject them.

Pursuant to Federal Rule of Criminal Procedure 24©), a district court has the

discretionary authority to remove a juror and replace him with an alternate if the

judge finds the juror is “unable to perform or . . . disqualified from perform[] [his]

duties.”

It has been said that [the] trial court’s exercise of this discretion is not to be disturbed absent a showing of bias or prejudice to the defendant or to any other party. Presumably as here used “prejudice” would include discharge of a juror for want of any factual support, or for a legally irrelevant reason. There must be some “sound” basis upon which the trial judge exercised his discretion.

United States v. Rodriguez, 573 F.2d 330, 332 (5th Cir. 1978) (citations and

internal quotation marks omitted). After further review of the record as it relates to

juror Smith, we find no abuse of discretion in the district court’s decision to

127 dismiss him for medical reasons.

The court dismissed Smith based solely on his deteriorating physical

condition—a back injury—and his inability to remain alert, which the court had

observed, during portions of the trial. The court’s own observation of Smith

provides the “sound” basis upon which it exercised its discretion. See id. And the

court did not abuse its discretion in deciding that removal was the best course of

action; we have no doubt that an injury so distressing as to cause Smith to audibly

cry out in pain during testimony and to rely on sleep-inducing painkillers would

severely impair a juror’s ability to perform his duty. The district court therefore

did not commit error in removing juror Smith, even if Smith did not, as the

defendants emphasize, explicitly state that he was incapable of continuing or that

he wished to be removed.116

116 The defendants have additionally argued that the court violated the Americans With Disabilities Act of 1990 (the “ADA”), 42 U.S.C. § 12101 et seq., by removing Smith. We doubt whether the ADA applies in this circumstance and, even if it did, whether the defendants would have standing to raise the ADA rights belonging to juror Smith. Compare Warth v. Seldin, 422 U.S. 490, 499, 85 S. Ct. 2197, 2205, 45 L. Ed. 2d 343 (1975) (setting out the principle that a party “generally must assert his own legal rights, and cannot rest his claim to relief on the legal rights and interests of third parties”), Singleton v. Wulff, 428 U.S. 106, 114–16, 96 S. Ct. 2868, 2874–75, 49 L. Ed. 2d 826 (1976) (explaining that the general principle will yield in circumstances where the litigant has suffered an actual injury, the litigant’s relationship to the third party is such that “the activity the litigant wishes to pursue” is “inextricably bound up with” the third party’s enjoyment of the right, and the third party is unable to assert, or hindered in asserting, the right), and Kowalski v. Tesmer, 543 U.S. 125, 134, 125 S. Ct. 564, 570, 160 L. Ed. 2d 519 (2004) (holding that attorneys did not have third-party standing to assert the rights of hypothetical and unascertained future clients), with Batson v. Kentucky, 476 U.S. 79, 85–88, 106 S. Ct. 1712, 1717–18, 90 L. Ed. 2d 69 (1986) (permitting criminal defendants to raise an equal protection claim based on the exclusion of a juror based solely on the juror’s race because

128 Although we do not need to address this point, we must also disagree with

defense counsel that, in dismissing juror Smith, the court had prejudiced the

defendants. Defense counsel’s position was that, by consenting to his dismissal,

Smith had conceded to pressure from other jurors (who had decided that a

conviction was more likely after juror Smith’s removal)—in other words, defense

counsel believes the other jurors had pre-determined the defendants’ guilt, and that

juror Smith was the lone holdout. See, e.g., United States v. Thomas, 116 F.3d

606, 622 (2d Cir. 1997) (contemplating a scenario in which a majority of jurors, all

agreed upon their verdict, sought the ouster of dissenting jurors for their

unwillingness to “follow the court’s instructions on the law”). This, the defendants

argue, is sufficient evidence of prejudice, as the alternate juror appointed voted in

favor of conviction.

Conjecture about the impact the replacement of a juror had on the jury’s

exclusion under those circumstances injures the defendant, the juror, the community, and the overall administration of justice), and Powers v. Ohio, 499 U.S. 400, 415, 111 S. Ct. 1364, 1373, 113 L. Ed. 2d 411 (1991) (concluding that a criminal defendant may raise a juror’s rights under Batson regardless of their race). But we need not, and do not, decide those issues here. Instead, it will suffice to say that the defendants’ argument—that is, that the court violated the ADA by failing to make reasonable accommodations to allow juror Smith to serve—is factually and legally incorrect. The court did not dismiss juror Smith because of his disability. It did so because his disability had, by that time, already impaired his ability fulfill his function as a juror. No accommodation, however reasonable, would have removed that impairment. Moreover, the district court did, in fact, make accommodations to aid juror Smith. The court permitted him to stand and move about the jury box during testimony. It also arranged to renew his prescription for pain medication. It was only after these accommodations failed to allow Smith to continue that the district court considered dismissal.

129 verdicts is, nonetheless, insufficient evidence of prejudice. As we stated in

Rodriguez,

If, which is, of course, not provable, the replacement adversely affected [the] defendant it was not the kind of prejudice which justifies our reversal of the trial judge’s discretion. Every replacement involves a change in the jury’s composition. How much weight should be given to this factor is a matter for the sound discretion of the trial judge.

573 F.2d at 332–33. Here, the court reasonably believed that the eleven members

of the jury were capable of rendering a fair and impartial verdict, but that

replacement of one of their number was necessary. We will not disturb the district

court’s “sound discretion.”

IV.

As noted earlier, the jury convicted Bradley III on Counts 1 through 54 and

83 through 284, Bradley, Jr., on Counts 1, 54, 285, and 286, Tellechea on Count 3,

and Bio-Med on Counts 1 through 53.117 On September 11, 2006, the district court

sentenced Bradley III, Bradley, Jr., and Tellechea to prison terms of 300 months,118

117 The offenses charged in these counts are set out in note 4, supra. 118 Bradley III was sentenced to 240 months for the Count 1 RICO offense and a consecutive term of 60 months for the Count 284 offense of failing to disclose a foreign financial interest for a total imprisonment of 300 months. He received concurrent terms of 240 months for the RICO conspiracy, wire fraud offenses committed after July 30, 2002, money laundering conspiracy, and money laundering offenses (Counts 2, 31, 32, 54, 84 through 125, 127 through 132, 134 through 137, 139 through 155, 157 through 169, 171 through 183, 185 through 189, 191 through 231, and 233 through 283), and 60 months for the wire and mail fraud conspiracies and wire fraud offenses committed before July 30, 2002 (Counts 3 through 30 and 33 through

130 225 months,119 and 60 months,120 respectively, and fined them $5 million, $1.5

million, and $100,000, respectively. The court ordered them to pay restitution in

the amounts of $27,804,995, $25,461,314, and $3,294,077, respectively. Bio-Med

was sentenced to 60 months probation, fined $26.5 million, and ordered to pay

$27,804,995 in restitution.121 As noted earlier, the district court also ordered

forfeiture of the Bradleys’ shares of Bio-Med and ordered, as forfeiture, that the

Bradleys and Bio-Med pay the United States $39.5 million.

The Bradleys and Tellechea contend that the district court misapplied the

Sentencing Guidelines in determining the total offense levels underpinning their

prison sentences. Bio-Med challenges the loss calculation the court used in

determining the fine it imposed. In determining whether the district court

53). The court sentenced Bradley III to 240 months for thee wire fraud offenses committed after July 30, 2002 and to 60 months for those wire fraud offenses committed before that date. This is because, on July 30, 2002, the Sarbanes-Oxley Act of 2002 (“Sarbanes-Oxley”), Pub.L. 107-204, 116 Stat. 745 (2002), became law. One of the key provisions in Sarbanes-Oxley was an increase in the maximum allowable sentence for wire fraud from 60 to 240 months. See Pub. L. 107-204, § 903, 116 Stat. 745, 805 (codified at 18 U.S.C. § 1343). 119 Bradley, Jr., was sentenced to the following prison terms, all to be served concurrently: a term of 225 months for the Count 1 RICO offense, a term of 225 months for the Count 54 money laundering conspiracy, and terms of 120 months on Counts 285 and 286 for failure to disclose a foreign financial interest. 120 Tellechea was sentenced to a term of 60 months for the Count 3 conspiracy offense. 121 Bio-Med’s probation sentence was imposed on each of Counts 1 though 53, the sentences to run concurrently.

131 misapplied the Guidelines, we review those factual findings that guide the court’s

application of the Guidelines for clear error. United States v. Arguedas, 86 F.3d

1054, 1059 (11th Cir. 1996). Where, as here, the “defendant challenges one of the

factual bases of his sentence as set forth in the [Presentence Investigation Report],

the Government has the burden of establishing the disputed fact by a

preponderance of the evidence.” United States v. Lawrence, 47 F.3d 1559, 1566

(11th Cir. 1995). We review de novo the district court’s application of the

Guidelines to the established facts. Arguedas, 86 F.3d at 1059.

We entertain the defendants’ challenges to their sentences in subparts A

through D below.

Bradley III appeals the district court’s application of the Sentencing

Guidelines to his Count 1 RICO conviction under 18 U.S.C. §1962©). He claims

the district court erred in determining his Guidelines sentencing range and in

failing to make findings of fact sufficient to facilitate appellate review. He further

challenges his sentences on the multiple-object conspiracies charged in Counts 3

and 54 on the ground that the district court failed to properly identify the offense(s)

he conspired to violate.

132 In determining the total offense level122 for the Count 1 RICO offense, the

district court first looked to the guideline prescribed for that offense, U.S.S.G.

§ 2E1.1. Section 2E1.1(a) fixed the “base offense level” for the RICO offense at

the greater of 19 or the offense level applicable to the acts of racketeering for

which the defendant was convicted. United States Sentencing Commission,

Guidelines Manual, § 2E1.1 (Nov. 1. 2002).123 In Bradley III’s case, the offense

levels applicable to those acts were greater than 19, so the district court used the

highest of those levels in fashioning Bradley III’s Count 1 sentence.124 To

122 The “total offense level” is sometimes referred to as the “total adjusted offense level,” meaning that it is the total of the base offense level prescribed by the relevant Guideline, the Special Offense Characteristics, if any, and the Adjustments from Chapter Three of the Sentencing Guidelines, if any. In this opinion we refer to the total adjusted offense level as the total offense level. The “offense level” is the sum of the base offense level and the Special Offense Characteristics, if any. 123 Traditionally, the district court applies the version of the Sentencing Guidelines in effect at the time of sentencing. United States v. Kapordelis, 569 F.3d 1291, 1314 (11th Cir. 2009). “[I]f applying the Guidelines in effect at the time of sentencing would result in a harsher penalty,” however, “a defendant must be sentenced under the Guidelines in effect at the time when he committed the offense.” Id. In this case, the district court applied the 2002 version of the Sentencing Guidelines in fashioning the Bradleys’ and Tellechea’s sentences. It did so to avoid ex post facto issues, as the 2006 version potentially provided for a “harsher penalty.” See id. The court applied the 2006 version of the Guidelines when fashioning Bio-Med’s sentence. 124 Under § 2E1.1(a), the offense level for the Count 1 RICO offense is the base offense level, 19, plus any increase provided for by any applicable Chapter Three Adjustments. (Section 2E1.1 does not provide for any increase in the offense level due to Specific Offense Characteristics.) By way of comparison, the total offense levels for the underlying racketeering activity charged in Count 1, calculated pursuant to U.S.S.G. §§ 1B1.1, 2S1.1, and 2S1.3, include, in addition to the base offense level, certain Specific Offense Characteristics enhancements. To arrive at the total offense level, the court adds together the base offense level, the levels provided for by the Specific Offense Characteristics enhancements, and any of the Adjustments found in

133 determine the highest offense level, the court divided the acts of racketeering into

three sets, each governed by a separate guideline: (1) wire fraud, mail fraud, and

interstate transportation of stolen goods, governed by U.S.S.G. § 2B1.1; (2) failure

to disclose a foreign financial interest and structuring, governed by U.S.S.G.

§ 2S1.3; and (3) money laundering, governed by U.S.S.G. § 2S1.1.

The district court calculated the offense level for the first set at 36 by adding

to the base offense level of 6, U.S.S.G. § 2B1.1(a), those enhancements prescribed

for the following Specific Offense Characteristics:

- twenty-two levels based on an amount of loss more than $20 million, but less than $50 million, pursuant to § 2B1.1(b)(1); - four levels based on an offense involving fifty or more victims pursuant to § 2B1.1(b)(2)(B); - two levels pursuant to § 2B1.1(b)(4) because the offense involved the receipt of stolen property and because Bradley III was in the business of receiving and selling stolen property; and - two levels pursuant to §§ 2B1.1(b)(8)(A) and ©) because Bradley III either relocated or participated in relocating a fraudulent scheme to another jurisdiction to evade law enforcement or regulatory officials or otherwise used sophisticated means to evade those officials.

The district court then arrived at the total offense level for the first set, 46,

by adding the following Adjustments to the prior offense level:

- two levels pursuant to § 3A1.1(b)(1) because Bradley III targeted vulnerable victims;

Chapter Three that apply.

134 - four levels pursuant to § 3B1.1(a) because Bradley III was an organizer or leader of a criminal activity involving five or more participants; - two levels pursuant to § 3B1.3 because Bradley III abused a position of trust; and - two levels pursuant to § 3C1.1 for Bradley III’s obstruction of justice.

The court calculated the total offense level for the second set of racketeering

acts at 30, and at 36 for the third set.125 As the total offense level for the first set of

racketeering acts, 46, exceeded that of the second and third sets, the court

disregarded the latter two calculations and sentenced Bradley III on his Count 1

RICO conviction using a total offense level of 46. Given that Bradley III’s

criminal history category was category “I”—indicating that he had no criminal

history to speak of—the court correctly arrived at the Guidelines sentencing range

of life imprisonment. In that the maximum sentence prescribed by statute for the

Count 1 offense was 240 months’ imprisonment, 18 U.S.C. § 1963(a), the court

then sentenced Bradley III to the maximum term.

Bradley III argues that the district court erred by including in the total

offense level three Specific Offense Characteristics and one victim-related

Adjustment. In regard to the Specific Offense Characteristics, he contends that the

125 If the district court followed § 2E1.1(a)(1), the total offense level would have been 29: 19 levels provided by § 2E1.1(a)(1); and 10 levels provided by the Adjustments indicated in the preceding text.

135 court (1) improperly relied on speculative figures and overestimated the amount of

loss attributable to his multiple schemes under § 2B1.1(b)(1), (2) erroneously

applied § 2B1.1(b)(2)(B) because his conduct did not involve fifty or more victims,

and (3) erroneously applied § 2B1.1(b)(4) because he was not in the business of

selling and receiving stolen property. As for the § 3A1.1(b)(1) victim-related

Adjustment, Bradley III claims that vulnerable victims were not targeted.

We first hold that the court erroneously applied the §§ 2B1.1(b)(2)(B) and

2B1.1(b)(4) enhancements when calculating Bradley III’s Guidelines sentence.

We then find no error in the court’s application of the § 3A1.1(b)(1) Adjustment.

Finally, we determine that, because the court’s amount of loss calculation resulted

in the correct § 2B1.1(b)(1) Special Offense Characteristic enhancement, the

court’s prior errors were harmless. In other words, even after reducing Bradley

III’s total offense level by six, his Guidelines sentencing range still exceeds the

statutory maximum, and the court did not commit reversible error by sentencing

him to the maximum sentence permitted by law.

Section 2B1.1(b)(2)(B) provides for a four-level increase if an offense

“involved 50 or more victims.” Under that provision, a “victim” is defined as “(I)

any person who sustained any part of the actual loss determined under subsection

136 (b)(1); or (II) any individual who sustained bodily injury as a result of the offense.”

U.S.S.G. § 2B1.1, comment. (n.3(A)(ii)). A “person” is defined as including

“individuals, corporations, companies, associations, firms, partnerships, societies,

and joint stock companies.” Id. “[A]ctual loss” is “the reasonably foreseeable

pecuniary harm” attributed to the offense. U.S.S.G. § 2B1.1, comment. (n.2(A)(i)).

At sentencing, the district court credited the findings presented by the

Presentence Investigation Report (“PSI”) and applied the § 2B1.1(b)(2)(B)

enhancement. Bradley III contends that the Government failed to prove by a

preponderance of the evidence that fifty or more “victims” suffered part of the

fraud loss attributed to his schemes or, alternatively, bodily injury.

In its defense of the district court’s application of § 2B1.1(b)(2)(B), the

Government concedes it cannot establish that anyone suffered bodily harm as a

result of the schemes. Instead, it claims that, in addition to the eighteen

government and private entities identified by the probation officer as suffering

monetary loss, an untold number of AIDs and hemophiliac patients—those who

ultimately received recycled blood-derivatives—also suffered an actual loss. The

Government theorizes that the recipients of these medications were injured because

they were not given the “benefit of their bargain”—although they sought to

purchase, and believed they were purchasing, pharmaceuticals stored, shipped, and

137 delivered in compliance with applicable safety regulations, patients received drugs

of uncertain quality that had either been improperly stored or otherwise tampered

with to evade regulatory oversight.

To buttress its theory, the Government points to two cases cited with

approval by this court in which a sister circuit has remarked that a loss is suffered

whenever a defendant’s actions create the possibility that prescription drugs have

been made unsafe. See United States v. Munoz, 430 F.3d 1357, 1371–73 (11th

Cir. 2005) (citing with approval both United States v. Bhutani, 266 F.3d 661, 670

(7th Cir. 2001), and United States v. Marcus, 82 F.3d 606, 610 (4th Cir. 1996)).

Even were we to accept the Government’s theory, Bhutani and Marcus are

inapposite. By the plain language of application note 3 to § 2B1.1, a person cannot

be counted toward the fifty-victim threshold unless that person suffered bodily

injury or a discrete portion of the loss both imputed to the scheme and used to

calculate the offense level increase pursuant to § 2B1.1(b)(1). In Bhutani and

Marcus, the Government was implicitly seeking to prove that patients had suffered

the same loss used to determine the § 2B1.1(b)(1) enhancement.126

126 Both cases dealt with the district court’s substitution of a gain calculation for the traditional loss calculation. Bhutani, 266 F.3d at 670 (“[H]ere consumers bargained for FDA-approved drugs that were in compliance with the law. This they did not get. We agree with the district court’s determination of what constitutes loss in this sort of case, and that the defendant’s gain is the appropriate measure of that loss.”); Marcus, 82 F.3d at 610 (“Given the unchallenged finding that consumers would not purchase a drug of unknown safety and efficacy at any price, the district court correctly included that Halsey’s gross sales were the appropriate

138 In Bradley III’s case, however, the Government has pointed to nothing in the

record to show that any part of the loss used to calculate the § 2B1.1(b)(1)

enhancement was suffered by patients. Instead, the Government’s calculations

only included the loss suffered by Medicaid programs, manufacturers, and

distributors. Failure to demonstrate any nexus between the more than $33 million

loss charged to Bradley III and a loss suffered by any patient means that recipients

of Bio-Med’s recycled blood-derivatives cannot be properly counted among the

victims of Bradley III’s schemes for purposes of § 2B1.1(b)(2)(B).

Without further evidence of additional victims, none of which was

forthcoming, we must conclude that the Government failed to carry its burden and

that the district court erred in enhancing the offense level pursuant to

§ 2B1.1(b)(2)(B). Without that enhancement, the total offense level for the Count

1 offense would have been 42.

The Guidelines also authorize a two-level enhancement if “the offense

measure of the actual loss suffered by consumers . . . .”). Using a measure of the drugs’ diminution in value after initial sale—drugs were repurchased by the defendants at a discounted price because recycled medication is less valuable than medication with appropriate pedigree (and sometimes worth nothing at all)—the Government calculated the defendants’ gain upon resale. The defendants’ gain was the insurance reimbursement price for those medications less the diminished price the defendants paid to acquire them. The implied loss to the patients was calculated the same way. They were expecting medications worth full price, but received recycled ones worth less than that, effectively “losing” the difference in value. The patients’ loss was therefore equal to the “net gain” figure used in calculating the § 2B1.1(b)(1) enhancement.

139 involved receiving stolen property, and the defendant was a person in the business

of receiving and selling stolen property.” U.S.S.G. § 2B1.1(b)(4). As we have

interpreted a substantively similar provision, this Specific Offense Characteristic

was meant to apply only to those defendants who sell goods stolen by others,

meaning those who act as a “fence,” and not to the actual thieves. See, e.g., United

States v. Saunders, 318 F.3d 1257, 1267 (11th Cir. 2003) (collecting cases for a

parallel provision, U.S.S.G. § 2B6.1(b)(2), and stating that “the Commission must

have intended that only fences, who by definition are not thieves themselves,

receive the enhancement”); United States v. Maung, 267 F.3d 1113, 1118 (11th

Cir. 2001) (same).

The question before us, then, is whether Bradley III was, by the fraud he

perpetrated at Bio-Med, the actual thief of recycled medications, or a fence who

received and sold drugs stolen by others. We previously answered a similar

question in Saunders, finding that the defendant had “received” vehicles stolen by

her husband when she titled them in her name. 318 F.3d at 1271–72. We declared

it immaterial that she might also have been charged with theft as her husband’s

accomplice. Id. at 1272 (noting the lack of directly applicable precedent, but

nevertheless deciding that “[t]he fact that Sharon . . . accepted the vehicles from

her own husband-thief is therefore inconsequential”).

140 We find the present case distinguishable from Saunders insofar as Bradley

III was the operative actor in the recycling of the blood-derivatives at the core of

the indictment. He initiated the frauds, paying others to obtain drugs that he would

later resell. He could therefore be charged with the theft of most, if not all, of the

prescription pharmaceuticals obtained by others at his behest.127 He is a thief and

not a fence, and the district court improperly applied the two-level enhancement in

arriving at his offense level. Had the district court denied this enhancement, the

Count 1 offense level would have been 40.

The § 3A1.1(b) Adjustment provides for a two-level increase of the offense

level if the defendant “knew or should have known that a victim of the offense was

a vulnerable victim.” A “vulnerable victim” is “a person (A) who is a victim of the

offense of conviction and any conduct for which the defendant is accountable

under §1B1.3 (Relevant Conduct); and (B) who is unusually vulnerable due to age,

physical or mental condition, or who is otherwise particularly susceptible to the

criminal conduct.” U.S.S.G. § 3A1.1, comment. (n.2). This Adjustment was

127 The scheme upon which the Government principally relies in support of this enhancement, the Liz Pascual/IV Solutions Scheme, is fundamentally no different than the other recycling and diversion schemes for which Bradley III was convicted. In all of the schemes, Bradley III is properly credited with the “theft” of blood-derivatives. Without further evidence that the IVIG was “stolen” as part of a separate enterprise, we cannot find that the Government carried its burden as to the § 2B1.1(b)(4) enhancement.

141 meant to apply whenever a defendant selected his victim to take advantage of that

victim’s perceived susceptibility to the offense. United States v. Long, 935 F.2d

1207, 1210 (11th Cir. 1991).

We have held that both circumstances and immutable characteristics can

render a victim vulnerable for the purposes of § 3A1.1(b). United States v. Davis,

967 F.2d 516, 523 (11th Cir. 1992). “The adjustment would apply, for example, in

a fraud case in which the defendant marketed an ineffective cancer cure or in a

robbery in which the defendant selected a handicapped individual.” U.S.S.G.

§ 3A1.1, comment. (n.2). It would not apply, though, where “the defendant sold

fraudulent securities by mail to the general public and one of the victims happened

to be senile,” or where the defendant targeted a bank teller because of her position.

Id.

In the present case, there are two distinct groups of victims. The first

includes government programs as well as pharmaceutical manufacturers and

distributors. As no one contends that these victims are unusually vulnerable, they

cannot sustain the enhancement.

The second group consists of patients whose prescriptions were filled using

recycled blood-derivatives. As for this group, Bradley III does not dispute that

they are vulnerable, but instead argues that they are not victims. Relying on

142 application note 3 to § 2B1.1, Bradley III contends that a person must suffer

“bodily injury” to qualify as a victim. He also insists that the Government could

not rely on a hypothetical class of victims, but rather had to present evidence of

actual physical harm done to the patients.

Bradley III’s reliance on the aforementioned application note is misplaced.

The “vulnerable victims” enhancement is found in § 3A1.1, and the commentary to

that section does not require a person to endure “bodily injury” to qualify as a

victim. U.S.S.G. § 3A1.1, comment. (n.2).128 Instead, the examples provided in

application note 2 tend to the opposite conclusion—there is no certainty that a

cancer patient would experience bodily injury because of an ineffective cure, or

that a disabled robbery victim would encounter violence during a theft, but both

are nonetheless “vulnerable victims” under § 3A1.1(b) because their vulnerability

is essential to the defendant’s choice to victimize them. See id.

Other courts have previously determined that recipients of recycled blood-

derivatives are “vulnerable victims” for purposes of the Adjustment.129 See, e.g.,

128 Nor is there the requirement, as with § 2B1.1(b)(2), discussed supra, that a victim suffer part of the financial loss counted towards the total attributed to the defendant’s fraud. 129 In United States v. Bachynsky, for example, the Fifth Circuit laid out three alternative rationales supporting its declaration that patients who used diverted medications are “vulnerable victims.” 949 F.2d 722, 735 (5th Cir. 1991). First, the court noted that ultimate recipients of the drugs were entirely unaware of the fraud going on around them and reasoned that, for every “false diagnosis submitted, an unwitting patient was made an instrumentality of the fraud.” Id. Second, the Bachynsky court noted the possibility that diverted drugs might be harmful, id.

143 United States v. Dino, 919 F.2d 72, 74 (8th Cir. 1990) (“Furthermore, customers

did not know they were buying drugs not meant for resale. Because at least some

of the drugs Dino sold had an unknown expiration date, and no lot or serial number

with which to effect a recall, if necessary, customers were denied basic safeguards

which drug companies take some pains to provide.”).

And in United States v. Milstein, the Second Circuit held that a defendant’s

knowledge that diverted pharmaceuticals would eventually be distributed to

patients was sufficient to satisfy the requirement that he targeted those victims

because of their condition:

In this case, Milstein chose to distribute counterfeit and misbranded drugs to doctors, pharmacists, and pharmaceutical wholesalers, knowing that those customers would distribute the drugs to women with fertility problems and to Parkinson's disease patients. We see no error in the District Court’s view that victims with fertility problems and/or Parkinson's disease are particularly vulnerable in this context.

401 F.3d 53, 74 (2d Cir. 2005); see also United States v. Echevarria, 33 F.3d 175,

180 (2d Cir. 1994) (“[E]ven though there is a scam, . . . the economic impact of

which is on the government, an enhancement for vulnerable victims is appropriate

(“Significant to this point is the implication that the weight loss and smoking cessation programs were not merely ‘controversial,’ as claimed by Dr. Bachynsky, but frequently were ineffective and in some cases, actually harmful to the patient.”), or that the patients “may have been foregoing more effective, safer, and legitimate treatments elsewhere,” id. Third, the court hypothesized that there might be financial repercussions to the fraud. Id. (“Neither is it mere speculation that at least some of the patients paid personally for portions of the costs of these bogus treatments by virtue of deductibles and co-payments.”).

144 where the exploitation of patients is part of the scam.” (citation and internal

quotation marks omitted)).

As Bradley III has conceded, users of IVIG and Recombinate were

vulnerable due to their medical condition—AIDS and hemophilia, respectively.

They were victims because Bradley III caused their physicians to provide them

with recycled blood-derivatives. And Bradley III’s schemes targeted them,

exploiting their need for medication so he could make a profit. The district court

did not err in applying the § 3A1.1(b) Adjustment.

Finally, § 2B1.1(b)(1) provides for a series of enhancements based on the

amount of loss attributable to a defendant’s fraud. The Guidelines Commentary

defines loss as “the greater of actual loss or intended loss,” with “actual loss” being

“the reasonably foreseeable pecuniary loss that resulted from the offense” and

“intended loss” being “the pecuniary harm that was intended to result from the

offense” even if “impossible or unlikely to occur.” U.S.S.G. § 2B1.1, comment.

(n.2(A)(i) and (ii)). Alternatively, the Guidelines permit the use of the defendant’s

gain as a substitute figure, but “only if there is a loss but it reasonably cannot be

determined.” U.S.S.G. § 2B1.1, comment. (n.2(B)).

As such, while conceding that a district court may calculate loss by several

145 means, we have explicitly recognized only two: (1) the “loss to the losing victims”

method; and (2) the defendant’s gain or “net gain” method. United States v.

Munoz, 430 F.3d 1357, 1370 (11th Cir. 2005). And much like the Guidelines, we

have cautioned against “abandon[ing] a loss calculation in favor of a gain

calculation where a reasonable estimate of the victims’ loss based on existing

information is feasible.” United States v. Bracciale, 374 F.3d 998, 1004 (11th Cir.

2004) (citing United States v. Snyder, 291 F.3d 1291, 1296 (11th Cir. 2002)). We

advised caution because the “substitution of defendant’s gain . . . ordinarily

underestimates the loss.” Snyder, 291 F.3d at 1295 (emphasis added). “When

precise figures are not available, the ‘loss to the losing victims’ method generally

prefers ‘to calculate the victims’ loss by determining the approximate number of

victims and an estimate of the average loss of each victim.’” Munoz, 430 F.3d at

1370 (quoting Snyder, 291 F.3d at 1295).

Indeed, neither this court nor the Guidelines insist that district courts

calculate the amount of loss with utmost precision; the Guidelines merely require

the district court to reach a reasonable estimate of the loss amount. U.S.S.G.

§ 2B1.1, comment. (n.2©)). This is so because the amount of loss is often

“difficult to determine accurately.” United States v. Medina, 485 F.3d 1291, 1304

(11th Cir. 2007) (citation and internal quotation marks omitted).

146 And because the district court is in a unique position to assess the evidence,

its loss determination is “entitled to appropriate deference.” U.S.S.G. § 2B1.1,

comment. (n.2©)). The district court is permitted to base its loss determination on

factual findings derived from, “among other things, evidence heard during trial,

undisputed statements in the PSI, or evidence presented during the sentencing

hearing.” United States v. Polar, 369 F.3d 1248, 1255 (11th Cir. 2004). The

district court may “consider [all] relevant information without regard to its

admissibility . . . at trial, provided that the information has sufficient indicia of

reliability to support its probable accuracy.” U.S.S.G. § 6A1.3(a); see also United

States v. Baker, 432 F.3d 1189, 1254 n.68 (11th Cir. 2005). And it is not required

that the district court constrain itself to absolute figures; instead, the court may rely

on “specific circumstantial evidence” to estimate the amount of loss. United States

v. Willis, 560 F.3d 1246, 1251 (11th Cir. 2009).

Still, “[w]hile estimates are permissible, courts must not speculate

concerning the existence of a fact which would permit a more severe sentence

under the guidelines.” United States v. Sepulveda, 115 F.3d 882, 890 (11th Cir.

1997) (citing United States v. Wilson, 993 F.2d 214, 218 (11th Cir. 1993)).

Rather, as stated above, the Government must establish those facts by a

preponderance of the evidence. Lawrence, 47 F.3d at 1566. Where the amount of

147 loss the defendant purportedly caused is at issue, the Government must “support[ ]

its loss calculation with reliable and specific evidence.” United States v. Liss, 265

F.3d 1220, 1230 (11th Cir. 2001) (internal citations omitted).

In the present case, the probation officer grounded his loss calculations (as

reflected in his initial version of the PSI) in circumstantial evidence, extrapolating

figures from witness testimony and exhibits to determine the “actual” pecuniary

loss traceable to each of Bradley III’s schemes. He did this using both the “loss to

the losing victims” and “net gain” methods. Before sentencing, the Government

provided the officer with revised loss calculations using updated figures in

response to objections to the PSI raised by various defendants. The probation

officer accepted the Government’s revised numbers and amended the PSI

accordingly. The district court thereafter expressly “adopt[ed]” the new loss

calculations. Bradley III now challenges those loss figures, claiming the district

court failed to make reasonable estimates of loss based on reliable and specific

evidence, or, in the alternative, erred in failing to make findings specific enough to

enable this court to determine the factual basis for its Guidelines applications.

In the interest of brevity, we only summarize the methods by which the

Government calculated the loss for each of Bradley III’s schemes. For two of the

148 Florida Medicaid Schemes—the Infustat & Seratech Scheme and the Sentry/Castro

Scheme—the Government premised its loss calculation on documentary evidence

later enhanced by anecdotal witness statements. As to the Infustat & Seratech

Scheme, the Government put forth evidence that Florida Medicaid sent

reimbursements to the two pharmacies for IVIG totaling $6,588,154. The

Government then divided that figure by two, hypothesizing, based on the testimony

of Dr. Cadigan,130 that one half of the IVIG previously reimbursed by Florida

Medicaid was recycled, resold, and reimbursed a second time. Based on testimony

that Florida Medicaid would not have knowingly repurchased those particular

drugs, the Government attributed $3,294,077 worth of loss to the scheme.

As to the Sentry/Castro Scheme, the Government introduced invoices sent

from MedPoint, the pharmacy owned by Bossey, to Intermed totaling

$2,222,277.90. Adopting the testimony of Tellechea, who claimed that a third of

the drugs listed on those invoices could only have come from Sentry, the

Government divided that total by three. It thus credited $740,759.30 worth of

IVIG obtained by Bio-Med to Sentry. The Government then compared the invoice

price per unit of IVIG to the price at which Florida Medicaid reimbursed Bio-Med

130 Remember that Dr. Cadigan testified that only half of the AIDS patients receiving IVIG infusions regularly kept their appointments and that the remaining IVIG was purchased by agents of Bio-Med.

149 and determined that, for Venoglobulin, the reimbursement price averaged 162.8%

of the invoiced price, and that, for Panglobulin, the number was 150.7%.131 The

Government took the average of those two figures, 156.7%, and multiplied it by

$740,759.30 worth of IVIG to conclude that Florida Medicaid paid out

$1,160,769.82 for recycled blood-derivatives.

For the related Liz Pascual/IV Solutions Scheme, the Government

introduced twenty-seven invoices from IV Solutions to Intermed totaling

$1,736,060 at $54 per gram of IVIG. At that time, Florida Medicaid was

reimbursing for IVIG at $72.89 per gram, a 135% increase over the invoice price.

Multiplying $1,736,060 by 135%, the Government determined that Florida

Medicaid lost approximately $2,343,681 as a result of the scheme.

For the last of the Florida schemes, the Pinkoff Scheme,132 the Government

produced invoices from Golden Isles to Bio-Med totaling $1,973,638.25. The

invoices covered sales of a number of different blood-derivative medications. The

Government chose one of those, Cytogam, and figured, based on total cost and

quantity information contained in the invoices, that Bio-Med’s average purchase

price for it was $355.85 per vial. The Government then determined that, at the

131 Venoglobulin and Panglobulin are both blood-derivatives in the IVIG family. 132 While not explicitly named as part of the Florida Medicaid Scheme in our discussion of the relevant facts in part I, the Pinkoff Scheme refers to Bradley III’s purchase and recycling of “street” drugs provided by Pinkoff’s former pharmacy, Golden Isles.

150 same time, Florida Medicaid reimbursed for Cytogam at an around $599 per vial,

approximately 168.33% of the invoice value. Repeating the process for other

medications covered by the invoices, the Government estimated that Florida

Medicaid had reimbursed, on average, 159% of the price Bio-Med paid to Golden

Isles. It multiplied that figure by the $1,973,638.25 in total billings, concluding

that Florida Medicaid had lost $3,322,236.22 in the scheme.

Turning to the Medi-Cal/GHPP Scheme, the Government took a slightly

different route. It first calculated the amount Bio-Med and its intermediary,

Intermed, paid out to those engaged in the collection of unused Recombinate.

Investigators uncovered a sum of $2,838,282.24—all in checks written on Bio-

Med’s account for under $10,000—that the Government believed was payment for

recycled medications. The Government then introduced business records tracing

an additional $983,936.12 in payments to other corporate entities acting as clearing

houses for drug payments as well as $2,033,268.41 more in checks written on

Intermed’s account. It totaled those amounts to estimate that Bio-Med had made

$5,855,496.77 in payments to individuals engaged in recycling Recombinate.

Next, using witness testimony about how much Recombinate was involved

in each purchase, the Government deduced the range of per unit prices for the

151 recycled Recombinate, settling on an estimate of $.425 per unit.133 Dividing the

$5,855,496.77 by $.425 per unit, the Government determined that Bio-Med had

purchased approximately 13,777,639.46 units of recycled Recombinate. It then

multiplied that number by the $1.28 per unit Medi-Cal and GHPP reimbursed for

the medication to compute the amount those programs had paid for recycled

Recombinate, $17,635,296.32. It added an additional $309,312 to that total based

on Bossey’s testimony, corroborated by MedPoint invoices to Intermed, that he

had sold 241,650 units of Recombinate to Bradley III for $120,280. The final loss

tally for the scheme reached $17,944,608.32.

After extensive review, we cannot say that the district court clearly erred in

accepting the Government’s “loss to the losing victims” calculations for the Florida

Medicaid and Medi-Cal/GHPP Schemes. See United States v. Gupta, 463 F.3d

1182, 1200 (11th Cir. 2006) (“The amount the Government paid in response to

false claims is an appropriate measure of damages.”). To begin, the district court

was entitled to rely on the sort of “specific circumstantial evidence” that drove the

Government’s calculations in this case. See Willis, 560 F.3d 1246, 1251. Though

not all of the information used to calculate that loss was introduced into evidence at

trial, there is no indication that it was unreliable. See Liss, 265 F.3d at 1230. As

133 Bio-Med paid between $0.40 and $0.45 for Recombinate and drugs similar to Recombinate. Because of the price fluctuation, the Government estimated the price at $0.425.

152 described above, the numbers and the calculations themselves were sufficiently

specific. See id. Moreover, other than protesting the lack of certainty inherent in

the Government’s tally, Bradley III has submitted no proof that the Government’s

averages, estimates, or results are so wildly inaccurate as to be unreasonable. See

Medina, 485 F.3d at 1304. The district court, therefore, did not engage in the kind

of speculation forbidden by the Sentencing Guidelines. See Sepulveda, 115 F.3d at

890.

Accordingly, at least $28,115,372.36 of the loss attributed to Bradley III was

properly considered. Because that amount exceeded $20 million, it results in the

same twenty-two level § 2B1.1(b)(1) increase that was applied by the district court.

U.S.S.G. § 2B1.1(b)(1)(L). For that reason, any additional error in calculating

loss, if there was error, was harmless, and we conclude our review without

addressing Bradley III’s claims as they relate to the diversion schemes alleged in

the indictment. See supra note 15. Moreover, because Bradley III’s final

Guidelines sentencing range—applying a total offense level of 40 to a Category I

offender—of 292 to 365 months on Count 1 still exceeds the statutory maximum of

240 months, the court’s erroneous application of the §§ 2B1.1(b)(2)(B) and

2B1.1(b)(4) enhancements was also harmless.

153 For the first time on appeal, Bradley III contests the district court’s failure to

identify the evidence upon which it relied to support its loss findings.

Accordingly, we review for plain error. United States v. Neely, 979 F.2d 1522,

1523 (11th Cir. 1992). To find plain error, Bradley III must convince us that the

district court erred, that the error was plain, and that it prejudicially affected his

substantial rights. United States v. Stevenson, 68 F.3d 1292, 1294 (11th Cir.

1995). Even if he makes the required showing, however, he will still not be

entitled to relief unless we conclude that the error seriously affected the fairness,

integrity, or public reputation of his sentencing proceeding. United States v.

Olano, 507 U.S. 725, 736, 113 S. Ct. 1770, 1779, 123 L. Ed.2d 508 (1993). With

that standard in mind, we turn to the question of the district court’s findings.

We recognize that, to facilitate appellate review, a district court should make

explicit factual findings that underpin its sentencing decision. United States v.

Wise, 881 F.2d 970, 972–73 (11th Cir. 1989). But we also note that failure to

make specific findings does not preclude appellate review where the court’s

decisions are based on clearly identifiable evidence.134 United States v. Villarino,

930 F.2d 1527, 1528–29 (11th Cir. 1991); cf. Gupta, 463 F.3d at 1200 (remanding

134 Other circuits allow a sentencing judge to summarily adopt a PSI so long as it is clear from the circumstances that the judge did so in the process of resolving all of the factual disputes necessary for the imposition of the sentence at issue. See, e.g., United States v. Walker, 29 F.3d 908, 911 (4th Cir. 1994).

154 because the district court failed to make findings of fact on an insufficient record).

We find no error, much less plain error, in the district court’s failure to make

specific factual findings because it is clear from the record what evidence the court

credited in making its loss determination. See Villarino, 930 F.2d at 1528–29. At

sentencing, the court reviewed the arguments of all the defendants as to the amount

of loss, but choose instead to adopt the probation officer’s PSI and Addendum in

their entirety. In adopting the PSI, the court made it clear that it was resolving all

questions of fact in favor of the Government.135 From this, we can easily determine

on which evidence the court relied, and we require nothing more.

Bradley III challenges his sentences on Counts 3 and 54, both of which

charged that he conspired to commit multiple offenses, at least one of which

carried a lesser base offense level or total offense level than the other(s).

Applying the concurrent sentence doctrine, however, we decline to review

this matter. “The concurrent sentence doctrine provides that, if a defendant is

given concurrent sentences on several counts and the conviction on one count is

found to be valid, an appellate court need not consider the validity of the

convictions on the other counts.” United States v. Fuentes-Jimenez, 750 F.2d

135 The court was clearly aware of the factual questions before it, having presided over the entirety of the trial and having the benefit of numerous memoranda of law.

155 1495, 1497 (11th Cir. 1985). Only when the defendant would suffer “adverse

collateral consequences from the unreviewed conviction” does the doctrine not

apply. Id.

Bradley III was sentenced to 240 months on Count 54 and 60 months on

Count 3. Each sentence was to run concurrently with the other and with the 240

months imposed on Count 1. We have upheld Bradley III’s convictions on all

three counts and his sentence on Count 1. Because none of the monetary penalties

(fines or special assessments) levied against Bradley III for those convictions are

due to be vacated, and because his ultimate term of imprisonment would not

change even were we to find error in the district court, Bradley III would suffer no

adverse collateral consequences from our refusal to review. Accordingly, we

uphold Bradley III’s sentence in its entirety.

In appealing his sentences, Bradley, Jr., argues that the district court: (1)

miscalculated the Guidelines sentencing range for Count 1 by basing the total

offense level on acts of racketeering that the jury, in its special verdict, did not find

that he committed; (2) erred in failing to determine beyond a reasonable doubt

which of the five money-laundering offenses alleged in Count 54 he conspired to

commit; (3) erred in holding him accountable for racketeering acts alleged in

156 Count 1 contrary to the jury’s special verdict findings that he did not commit such

acts; (4) enhanced his Count 1 offense level with Special Offense Characteristics

the Government failed to prove by a preponderance of the evidence; and (5)

ordered him to make restitution for acts of racketeering for which the jury

acquitted him.

The indictment charged Bradley, Jr., with two RICO offenses, violations of

18 U.S.C. §§ 1962©) and (d), respectively, plus one count of conspiracy to commit

wire fraud or to pay illegal kickbacks, in violation of 18 U.S.C. § 371, another

count of conspiracy to commit wire fraud, in violation of 18 U.S.C. § 371, forty-

nine counts of wire fraud, in violation of 18 U.S.C. § 1343, one count of

conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h), 201

counts of substantive money laundering, in violation of 18 U.S.C.

§§ 1956(a)(1)(A)(i) and (a)(1)(B)(i), and two counts of failing to disclose a foreign

financial interest, in violation of 31 U.S.C. §§ 5314 and 5322(b). The Count 1

RICO charge further alleged 256 underlying racketeering acts, subdivided into ten

separate schemes, covering wire fraud, interstate transportation of stolen property,

mail fraud, failing to disclose a foreign financial interest, illegal structuring, and

money laundering.

In finding Bradley, Jr., guilty on Count 1, the jury, by a special verdict,

157 found beyond a reasonable doubt that he had committed twenty-three acts of

racketeering related to the “Intermed Pharmaceutical Supply Money Laundering

Scheme” and two of failing to disclose his investment in a foreign financial

interest.136 Bradley, Jr., was also convicted on the single count of conspiring to

launder money, Count 54, and both counts of failing to disclose a foreign financial

interest, Counts 285 and 286. He was acquitted of all other charges.

Bradley, Jr., claims that the district court denied him due process of law and

the estoppel protection afforded him by the jury’s verdicts when it sentenced him

on Count 1 based on racketeering acts and correlated schemes for which the jury

did not find him responsible beyond a reasonable doubt. Stated another way,

Bradley, Jr., contends that the Fifth and Sixth Amendments barred the district court

from using the offense level for wire fraud, mail fraud, and interstate transportation

of stolen property in fixing his Count 1 base offense level because the jury’s

special verdict on Count 1 and not guilty verdicts on the wire fraud counts had

136 The Intermed Pharmaceutical Supply Money Laundering Scheme consisted of money transfers Bradley, Jr., made on behalf of IPS and involved IPS bank accounts both in the United States and at the Barclays Bank in Nassau, Bahamas. The transfers were ostensibly made for the purpose of evading United States taxes. Only Bradley, Jr., was found to have committed those acts beyond a reasonable doubt. The failure-to-disclose acts involved the same bank accounts.

158 acquitted him of such offenses.137

Failing that, Bradley, Jr., objects to the district court’s attribution of such

offenses to him—as Count 1 racketeering activity—under the Guidelines’

provision on “Relevant Conduct,” U.S.S.G. § 1B1.3. Relevant conduct is limited

to criminal activity jointly undertaken, and, he submits, the jury’s verdicts

established that he did not aid and abet or otherwise criminally participate in the

commission of such offenses. Accordingly, Bradley, Jr., contends that the district

court erred in calculating his Count 1 total offense level based on racketeering acts

it considered pursuant to § 1B1.3.

A conviction for violating RICO carries with it a statutory maximum

sentence of 240 months. 18 U.S.C. § 1963(a). A guilty verdict, then, regardless of

its form, subjects the defendant to a sentence at or below the maximum. It is up to

the district court to determine the appropriate sentence. To do so, it must engage in

two intertwined analyses. First, it must determine the Guidelines sentencing range.

137 Bradley, Jr., first asserts, rather broadly, that to consider acquitted conduct at sentencing, even as relevant conduct under U.S.S.G. § 1B1.3, would effectively transform the special verdict into a general verdict, something antithetical to the jury’s Sixth Amendment role as primary fact-finder, and offend Fifth Amendment due process. He suggests that this court remand for resentencing based solely on the acts which correspond to counts of actual conviction, that is, conspiracy to engage in money laundering and failure to disclose a foreign financial investment. We decided this issue in United States v. Hamaker, holding that “[s]entencing courts may consider both uncharged and acquitted conduct in determining the appropriate sentence.” 455 F.3d 1316, 1336 (11th Cir. 2006) (citations and internal quotation marks omitted). We will not revisit it here.

159 United States v. Booker, 543 U.S. 220, 259–60, 125 S. Ct. 738, 764–65, 160 L. Ed.

2d 621 (2005). Next, the court must consider the sentencing factors, or objectives,

found in 18 U.S.C. § 3553(a).138 Id. These two steps satisfy the court’s procedural

duties. Since the Guidelines sentencing range is non-binding post-Booker, the

court is free, after considering the § 3553(a) factors, to impose a sentence above or

below that range. United States v. Crawford, 407 F.3d 1174, 1179 (11th Cir.

2005). All that is required is that the sentence be substantively reasonable, id.,

meaning that, in part, it is proportional to such broad notions as “the nature and

circumstances of the offense and history and characteristics of the defendant,” 18

138 Titled “Factors to Be Considered in Imposing a Sentence,” that provision mandates, in pertinent part:

The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider— (1) the nature and circumstances of the offense and history and characteristics of the defendant; (2) the need for the sentence imposed— (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; ©) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; (3) the kinds of sentences available; .... (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a).

160 U.S.C. § 3553(a)(1). There is not, and has never been, a requirement that the

district court make its sentencing decision based solely on conduct the jury found

beyond a reasonable doubt.

Understood in this way, the Sentencing Guidelines represent but one means

of settling on a substantively reasonable sentence commensurate with the

seriousness of the crime. For that reason, we have repeatedly held that, after

identifying the guideline that applies to the offense of conviction and the base

offense level, the district court may find all other facts relevant to Specific Offense

Characteristics and Adjustments by a preponderance of the evidence. United

States v. Hamaker, 455 F.3d 1316, 1336 (11th Cir. 2005). And in this case, that is

exactly what the district court did.

As we have indicated, § 2E1.1, the RICO guideline, provided the appropriate

structure for determining the base offense level of Bradley, Jr.’s Count 1 sentence.

That section instructs the district court to apply a base offense level of 19 or the

offense level applicable to the underlying racketeering activity, whichever is

greater. U.S.S.G. § 2E1.1.

Meanwhile, § 1B1.3 tells the district courts to consider all relevant conduct

when determining the defendant’s total offense level.139 Hamaker, 455 F.3d at

139 In pertinent part, § 1B1.3, entitled “Relevant Conduct (Factors that Determine the Guideline Range),” reads as follows:

161 1336. When an offense involves “jointly undertaken criminal activity,” relevant

conduct includes “all reasonably foreseeable acts and omissions of others in

furtherance of the jointly undertaken criminal activity.” U.S.S.G.

§ 1B1.3(a)(1)(B). Commentary to that section further defines “jointly undertaken

criminal activity” as “a criminal plan, scheme, endeavor, or enterprise undertaken

by the defendant in concert with others, whether or not charged as a conspiracy.”

U.S.S.G. § 1B1.3, comment. (n.2). It continues:

In the case of a jointly undertaken criminal activity, subsection (a)(1)(B) provides that a defendant is accountable for the conduct (acts and omissions) of others that was both:

(a) Chapters Two (Offense Conduct) and Three (Adjustments). Unless otherwise specified, (i) the base offense level where the guideline specifies more than one offense level, (ii) special offense characteristics and (iii) cross references in Chapter Two, and (iv) adjustments in Chapter Three, shall be determined on the basis of the following: (1) (A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and (B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense; (2) solely with respect to offenses of a character for which §3D1.2(d) [Groups of Closely Related Counts] would require grouping of multiple counts, all acts and omissions described in subdivisions (1)(A) and (1)(B) above that were part of the same course of conduct or common scheme or plan as the offense of conviction; (3) all harm that resulted from the acts and omissions specified in subsections (a)(1) and (a)(2) above, and all harm that was the object of such acts and omissions.

U.S.S.G. § 1B1.3(a)(1)–(3).

162 (i) in furtherance of the jointly undertaken criminal activity; and (ii) reasonably foreseeable in connection with that criminal activity. .... In order to determine the defendant’s accountability for the conduct of others under subsection (a)(1)(B), the court must first determine the scope of the criminal activity the particular defendant agreed to jointly undertake (i.e., the scope of the specific conduct and objectives embraced by the defendant’s agreement). The conduct of others that was both in furtherance of, and reasonably foreseeable in connection with, the criminal activity jointly undertaken by the defendant is relevant conduct under this provision.

Id. Accordingly, under § 1B1.3(a), when a defendant is acting in concert with

others, the appropriate conduct to consider for sentencing purposes is far broader

than the conduct that drove the original conviction.140

By definition, the RICO violation charged in Count 1 is a criminal enterprise

undertaken by a defendant in concert with others. 18 U.S.C. § 1962©). And the

jury’s guilty verdict on Count 1 confirms that Bradley, Jr., was part of just such an

enterprise. Therefore, in this case, the relevant conduct rules for “jointly

undertaken criminal activity” must apply. See, e.g., United States v. Carrozza, 4

F.3d 70, 74–75 (1st Cir. 1993) (remanding for the district court to consider as

140 Intuitively, this makes sense. Once a defendant is convicted of an offense, the next step is determining an appropriate punishment. A district court, under 18 U.S.C. § 3553(a), takes into account multiple factors to determine how much harm the offense caused and how culpable the defendant is in relation to that harm. Faced with “jointly undertaken criminal activity,” the Sentencing Guidelines attempt to do the same thing, using relevant conduct to determine the exact “scope” of the defendant’s offense. That will often include acts which are committed by others and which are not directly attributable to the defendant, but nevertheless are foreseeable results of the defendant’s entry into a criminal enterprise.

163 underlying racketeering activity certain acts not charged in the indictment).

Because the relevant conduct rules apply, the district court was required to

decide, by a preponderance of the evidence, the exact “scope” of the RICO

enterprise Bradley, Jr., joined. Namely, the court had to determine whether

Bradley, Jr., agreed to take part in a criminal organization engaged in wire fraud,

interstate trafficking, and mail fraud. Adopting the PSI, it found that he had done

so. Accordingly, it correctly treated those acts as relevant conduct racketeering

offenses under § 1B1.3.141 And pursuant to § 2E1.1’s instruction to apply the

greatest total offense level for all underlying racketeering offenses, it did not err in

selecting a sentencing range based on those predicate acts.

Since, as we have explained, the district court found by a preponderance of

the evidence that Bradley, Jr., had acted in concert with others in relation to the

fraud schemes, we find his argument that being acquitted of the wire fraud counts

(and racketeering acts) related to those schemes means those acts were not “jointly

undertaken criminal activity” fanciful on its face. We believe, however, that

Bradley, Jr., might also be making a second, slightly different argument. Viewed

141 Once the wire fraud, interstate transportation of stolen property, and mail fraud racketeering acts were determined to be within the “scope” of the enterprise Bradley, Jr., intended to join, their inclusion as relevant conduct was a foregone conclusion. There can be no argument that those acts were not undertaken in furtherance of an enterprise engaged in these Medicaid recycling schemes or that they were not reasonably foreseeable by a member of that enterprise. See U.S.S.G. § 1B1.3, comment. (n.2).

164 in another light, his contention might be that the jury’s not guilty verdicts limited

the scope of the enterprise the district court could consider;142 in other words,

Bradley, Jr.’s alternative argument is that the jury’s special verdict conclusively

established that he was not part of any enterprise other than one engaged only in

illegal money laundering and concealing funds from the IRS, as alleged in Counts

54, 285, and 286.143

Bradley, Jr., relies on Callanan v. United States, 881 F.2d 229 (6th Cir.

1989), in support of this position. His quotation from that case, however, is

incomplete, and he misconstrues its holding. The full quotation reads,

A number of courts have held that other verdicts of the same jury may serve the function of a special verdict on the predicate acts, where those other verdicts necessarily required a finding that the RICO defendant had committed the predicate acts.

Id. at 234 (emphasis added). That logic seems right—if, at the conclusion of the

trial, the jury finds beyond a reasonable doubt that a defendant committed a

substantive offense, that finding will satisfy the preponderance of the evidence

142 Bradley, Jr., suggests that “this case is one in which ‘other verdicts of the same jury may serve the function of a special verdict on the predicate acts . . . .”’ 143 Bradley, Jr., surmises that the jury’s verdicts were “perfectly consistent with the finding that Bradley Jr. participated with unnamed non-defendants in an enterprise whose purpose was to evade income taxes by the use of a Nassau bank account.” He concludes, “The other conduct attributed to Bradley Jr. by the district court is not relevant to the count of conviction, which is ultimately defined by the jury’s special verdict findings. The district court effectively convicted Bradley Jr. of charges as to which he was acquitted by the jury, violating his rights under the Fifth and Sixth Amendments.”

165 standard used to determine relevant conduct at sentencing. See, e.g., United States

v. Tocco, 306 F.3d 279, 290 (6th Cir. 2002) (deciding that the defendant’s

conviction on a Hobbs Act conspiracy count served the function of a special

verdict on the Hobbs Act conspiracy alleged as an act of racketeering and holding

that the district court should have included the Hobbs Act conspiracy as relevant

conduct in calculating the defendant’s base offense level under U.S.S.G.

§ 2E1.1(a)(2)).

Callanan does not prove Bradley, Jr.’s point. There is nothing inconsistent

with a jury verdict to the effect that the Government had not proven certain acts

beyond a reasonable doubt and a judicial finding that the Government had proven

those acts by a preponderance of the evidence.

The district court did not infringe Bradley, Jr.’s constitutional rights in

considering conduct for which the jury acquitted him. It did not err in calculating

Bradley, Jr.’s Count 1 base offense level based on relevant conduct that amounted

to underlying racketeering activity. And for the same reasons, it did not err in

ordering restitution based on such activity.

Much as it did with Bradley III, the district court calculated Bradley, Jr.’s

sentence on Count 1 by determining which group of predicate acts resulted in the

166 greatest base offense level. U.S.S.G § 2E1.1(a)(2). And as in Bradley III’s case,

the greatest base offense level corresponded to the offense levels for mail and wire

fraud and interstate transportation of stolen property. The result was a total offense

level of 40.144

A total offense level of 40, coupled with a criminal history category of I,

yielded a Guidelines sentencing range of between 292 and 365 months’

imprisonment. The district court nevertheless sentenced Bradley, Jr., to 225

months, a term less than the lower end of the suggested range and the 240 months’

maximum imprisonment prescribed by statute, 18 U.S.C. § 1963(a).

Bradley, Jr., takes issue with this sentencing range, contending that the court

erred in calculating the amount of loss pursuant to § 2B1.1(b)(1) and applying the

fifty-victim enhancement under § 2B1.1(b)(2)(B). Bradley, Jr., likewise challenges

the court’s application of the vulnerable victim Adjustment prescribed by §

3A1.1(b)(1). He also challenges, more generally, the application of any Special

144 The court calculated the total offense level for that underlying racketeering activity by using the base offense level of six and adding three Special Offense Characteristics enhancements: (1) 22 levels pursuant to § 2B1.1(b)(1) based on a $30,701,756.40 loss; (2) four levels pursuant to § 2B1.1(b)(2)(B) because the offense involved fifty or more victims; (3) two levels under § 2B1.1(b)(8)(A) and ©) because Bradley, Jr., relocated or participated in relocating a fraudulent scheme to another jurisdiction to evade law enforcement or regulatory officials or otherwise used sophisticated means to evade those officials. This gave the court an offense level of 34. The court then added two Adjustments from Chapter Three: (1) two levels under § 3A1.1(b)(1) because Bradley, Jr., targeted vulnerable victims; and (2) four levels based on § 3B1.1(a) because Bradley, Jr., was an organizer or leader and the offense involved five or more participants.

167 Offense Characteristics or Adjustments based on conduct not attributed to him by

the jury. Were it not for these errors, Bradley, Jr., argues, his total offense level

would have been 30 and his sentencing range 97 to 121 months.

Having already disposed of the latter challenge based upon our discussion of

relevant conduct, see supra subpart B.1, we address Bradley, Jr.’s other objections.

We previously upheld the district court’s application of the § 3A1.1(b)(1)

Adjustment, see supra subpart A.1.c, finding the Government had succeeded in

proving by a preponderance of the evidence that Bradley III had targeted

vulnerable victims. We adhere to that decision with respect to Bradley, Jr., and we

extend our reasoning to cover the § 3A1.1(b)(2) Adjustment for numerous

vulnerable victims. We have also addressed the controversy surrounding the

§ 2B1.1(b) loss finding, agreeing that at least $20 million of the district court’s

total was properly attributed to Bradley III. See supra subpart A.1.d. We see

nothing in the record to change our analysis in regard to Bradley, Jr.145

The district court did, however, improperly apply the four-level

§ 2B1.1(b)(2)(B) enhancement for fifty or more victims. See supra subpart A.1.a.

145 The district court attributed a loss of $30,701,756.40 to Bradley, Jr. Of that total, $7,776,722.04 came from the Florida Medicaid Scheme and $17,944,608.32 from the Medi- Cal/GHPP Scheme. We have already approved the court’s calculation of that loss amount, totaling $25,721,330.36. See supra subpart A.1.d. Accordingly, the loss attributable to Bradley, Jr., amounts to more than $20 million, and the § 2B1.1(b)(1) specific offense characteristic was correctly calculated at twenty-two levels.

168 That error, unless harmless, would require us to vacate Bradley, Jr.’s Count 1

sentence. See United States v. Crawford, 407 F.3d 1174, 1178–79 (11th Cir. 2005)

(“Booker did not affect 18 U.S.C. section 3742(f), which mandates remand of any

case in which the sentence was imposed as a result of an incorrect application of

the sentencing guidelines.”).

It is not harmless. See United States v. Foley, 508 F.3d 627, 634 (11th Cir.

2007). A four-level reduction of Bradley, Jr.’s total offense level, from 40 to 36,

would reduce the Guidelines sentencing range from one well above the 225-month

sentence actually imposed, at 292 to 365 months, to one subsuming it, at 188 to

235 months. Moreover, the district court previously evinced its desire to vary

below both the 292 to 365 Guidelines range and 240 month statutory maximum.

Given the circumstances, then, we cannot be certain that the 225 months’ prison

term still approximates the district court’s intended sentence. See United States v.

Shelton, 400 F.3d 1325, 1333–34 (11th Cir. 2005) (vacating sentence where the

defendant established that he was likely to receive a different sentence absent a

Guidelines calculation error); cf. United States v. Scott, 441 F.3d 1322, 1329 (11th

Cir. 2006) (refusing to vacate a sentence for procedural error where it was unlikely

that the defendant would have received a different sentence, even under the

correctly calculated guidelines).

169 As it may be that Bradley, Jr., would have received a lesser sentence, we

vacate his Count 1 sentence and remand that count for resentencing. On remand,

the district court will recalculate Bradley, Jr.’s Guidelines sentencing range and

reweigh the 18 U.S.C. § 3553(a) factors to determine whether Bradley, Jr.’s

original sentence is still reasonable in light of this decision.146

Bradley, Jr., also challenges his sentence on the money laundering

conspiracy, Count 54, brought under 18 U.S.C. § 1956(h). Count 54 alleged that

the Bradleys had conspired to commit five money laundering objects, in violation

of 18 U.S.C. §§ 1956(a)(1)(A)(i), 1956(a)(1)(A)(ii), 1956(a)(1)(B)(i),

1956(a)(1)(B)(ii), and 1957. Despite being instructed that it could not convict

either Bradley without determining that he had conspired to commit one of those

acts,147 the jury returned a general verdict of guilty. Over Bradley, Jr.’s objection,

the court accepted the PSI’s recommendation that Bradley, Jr.’s Count 54 sentence

be based on the money laundering object with the highest possible offense level.

146 It may be that the district court will once again vary downward when deciding Bradley, Jr.’s sentence. Then again, the district court is not bound to do so. 147 The district court correctly informed the jury that it could return a guilty verdict on Count 54 so long as it found beyond a reasonable doubt that the defendant had conspired to commit at least one of the objects. It also instructed the jury that it was to determine which of the objects the defendant had conspired to commit: the court informed the jury that, “[Y]ou must unanimously agree upon which one or more of the types of money laundering offenses Bradley Jr. and Bradley III conspired to commit.”

170 Pursuant to Sentencing Guidelines § 1B1.2(d), when a defendant is

convicted of a conspiracy to commit multiple object offenses, he shall be sentenced

as if he had been convicted on a separate count of conspiracy for each.

Commentary to the guideline explains:

Particular care must be taken in applying subsection (d) because there are cases in which the verdict or plea does not establish which offense(s) was the object of the conspiracy. In such cases, subsection (d) should only be applied with respect to an object offense alleged in the conspiracy count if the court, were it sitting as a trier of fact, would convict the defendant of conspiring to commit that object offense. Note, however, if the object offenses specified in the conspiracy would be grouped together under § 3D1.2(d) (e.g., a conspiracy to steal three government checks) it is not necessary to engage in the foregoing analysis, because § 1B1.3(a)(2) [Relevant Conduct] governs consideration of the defendant’s conduct.

U.S.S.G. § 1B1.2(d), comment. (n.4). We have held that these instructions require

the district court to find beyond a reasonable doubt which offense(s) the defendant

conspired to commit. United States v. McKinley, 995 F.2d 1020, 1026 (11th Cir.

1993); see also Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348,

2362–63, 147 L. Ed. 2d 435 (2000) (requiring facts that increase a sentence to be

found beyond a reasonable doubt).

Bradley, Jr., contests the district court’s offense level calculation on the

ground that the district court failed to find beyond a reasonable doubt which

offense(s) he conspired to commit. The Government answers that, because all of

171 the object offenses listed in Count 54 are grouped together under § 3D1.2(d),148

there was no need for the court to “engage in the foregoing analysis” by making a

reasonable doubt determination.

The district court erred in failing to make the necessary finding. See, e.g.,

United States v. Venske, 296 F.3d 1284, 1292, 1294 (11th Cir. 2002) (vacating

defendants’ sentences and remanding where the sentencing court did not determine

beyond a reasonable doubt whether defendants conspired to commit a violation of

18 U.S.C. § 1956(a)(1)(A)(i) or 18 U.S.C. § 1956(a)(1)(B)(i)). Though § 3D1.2(d)

does allow all of the object offenses in Count 54 to be grouped together as § 1B1.3

relevant conduct for purposes of calculating the total offense level, that provision

does not obviate the district court’s core responsibility to identify beyond a

reasonable doubt the object offense that drove the conviction.149 See United States

v. Ross, 131 F.3d 970, 989–94 (11th Cir. 1997). Accordingly, we vacate Bradley,

Jr.’s sentence on Count 54 and remand the count for resentencing.150

148 Section 2S1.1 is the applicable guideline for all five object offenses listed in Count 54. Section 3D1.2(d) requires that offenses covered by 2S1.1 be grouped. 149 As discussed supra, relevant conduct is only useful to establish the “scope” of an offense for sentencing purposes after it has been determined which offense the defendant committed. To allow the district court to skip directly to sentencing would be akin to putting the proverbial cart before the horse. 150 Since we have vacated both 225 months’ sentences imposed on Counts 1 and 54, the concurrent sentence doctrine does not apply. See United States v. Fuentes-Jimenez, 750 F.2d 1495, 1497 (11th Cir. 1985).

172 Since we vacate this sentence, we need not address Bradley, Jr.’s argument

that the district court improperly enhanced his offense level by four levels under

§ 3B1.1(a) for being an organizer or leader of criminal activity involving five or

more participants. The district court may reconsider that enhancement when

resentencing Bradley, Jr., in light of our discussion on relevant conduct. See supra

subpart B.1.

As to his sole conviction on the Count 3 dual-object conspiracy, Tellechea

appeals both the application of several enhancements as well as the district court’s

failure to make a specific determination of which object was proven beyond a

reasonable doubt.151 We only need to review the preliminary question of the

district court’s failure to make that finding.

As discussed supra, when confronted with a multi-object conspiracy in

conjunction with a general jury verdict, a district court is required to make a

finding as to which object offense drove the conviction. See, e.g., Venske, 296

151 Tellechea contests the application of an eighteen-level § 2B1.1(b)(1) enhancement based on a loss between $2.5 million and $7 million, a two-level § 2B1.1(b)(2)(A) enhancement based on the involvement of between 10 and 50 victims, a two-level § 2B1.1(b)(4) enhancement based on Tellechea’s involvement in the business of receiving and selling stolen products, and a two-level § 3A1.1(b) enhancement based on the presence of vulnerable victims. These enhancements, and others, brought his total offense level to 36 from a base offense level of 6. Because we remand, we do not address those enhancements. On remand, the district court should review its application of the challenged enhancements pursuant to our previous discussion. See supra subpart A.1.

173 F.3d at 1293. The district court failed to do so in this case. Accordingly, we

vacate Tellechea’s sentence and remand his case for resentencing.

Bio-Med also asks us to vacate its sentence and remand for further

proceedings in the district court. It initially contends that the district court erred in

calculating the amount of loss attributed to its fraud under § 2B1.1(b)(1). Bio-Med

also challenges the court’s application of both the § 2B1.1(b)(4) enhancement for a

defendant in the business of receiving and selling stolen property and the §

2B1.1(b)(2) enhancement for an offense involving fifty or more victims. Finally,

Bio-Med argues that the district court abused its discretion in failing to impose a

lower fine under U.S.S.G. § 8C3.3(b) based on its demonstrated inability to pay.152

Adopting the PSI’s sentencing factual findings and its grouping of Bio-

Med’s convictions on Counts 1 through 53, the district court calculated Bio-Med’s

offense level by applying the highest offense level resulting from any of those

offenses. United States Sentencing Commission, Guidelines Manual, §§ 3D1.2(d),

152 Recall that the district court ordered the Bradleys’ shares of Bio-Med forfeited to the United States. Because we are affirming the Bradleys’ and Bio-Med’s convictions and the Bradleys are not contesting the forfeiture of their Bio-Med shares, when the Supreme Court denies certiorari or the Bradleys fail to seek certiorari review, the United States will have unfettered ownership of the company. We entertain Bio-Med’s challenges to the fine the court imposed on Bio-Med because our decision today may not bring an end to the Bradleys’ challenges to their convictions.

174 3D1.3(b) (Nov. 1, 2006).153 Just as it had with Bradley III, see supra subpart A.1,

and Bradley, Jr., see supra subpart B.1 (with respect to Count 1 only), the court

then found Bio-Med’s base offense level for Counts 1 and 2 by dividing the acts of

racketeering into three sets, and applying the greater of 19 or the offense level

applicable to those sets. U.S.S.G. § 2E1.1(a).

As with the Bradleys, the greatest offense level was based on the

racketeering acts of wire fraud, mail fraud, and interstate transportation of stolen

property. The court determined that offense level by adding to the base offense

level of six prescribed by § 2B1.1(a)(2), the levels prescribed for the following

Specific Offense Characteristics:

- twenty-two levels based on § 2B1.1(b)(1) for an amount of loss, $33,713,200.68, between $20 million and $50 million; - four levels based on the challenged § 2B1.1(b)(2) enhancement; - two levels based on the challenged § 2B1.1(b)(4) enhancement; and - two levels based on § 2B1.1(b)(9)(A) and ©) because Bio-Med relocated, or participated in relocating, a fraudulent scheme to another jurisdiction to evade law enforcement or regulatory officials or otherwise used sophisticated means to evade those officials.

The total offense level thus became 36. Because it was the largest of the available

offense levels, the district court used 36 to fashion Bio-Med’s sentences. See

U.S.S.G. § 2E1.1(a).

153 The district court applied the 2006 version of the Sentencing Guidelines in effect at the time of sentencing. We will also. See supra note 123.

175 Section 8C2.7 mandates that the district court impose a fine within a

prescribed range. That range is determined by using maximum and minimum

multipliers corresponding to the defendant’s culpability score as well as the

greatest of: (1) a fine amount corresponding to the total offense level; (2) the

pecuniary gain to the organization; or (3) the pecuniary loss caused by the

organization. U.S.S.G. § 8C2.4. The district court reached a culpability score of

10 based on: (1) a starting score of five pursuant to § 8C2.5(a); (2) an increase of

two pursuant to § 8C2.5(b)(4) because Bio-Med had fifty or more employees, at

least one of whom had substantial authority to act on behalf of the organization and

participated in, condoned, or was willfully ignorant of the criminal conduct; and

(3) an increase of three pursuant to § 8C2.5(e) because Bradley III, on behalf of

Bio-Med, obstructed justice.

A score of 10 corresponds to a minimum multiplier of 2.00 and a maximum

of 4.00. A total offense level of 36 corresponds to a fine amount of $45.5 million,

§ 8C2.4(d), which far exceeds the pecuniary gain/loss amount identified in the PSI,

$33,713,200.68. Accordingly, the Guidelines fine range for Bio-Med came to

between $91 million and $182 million. The district court instead imposed the

statutory maximum fine of $26.5 million.154 18 U.S.C. § 3663A. While not

154 All fifty-three convictions carried an individual fine of up to $500,000. When added together, the maximum fine exposure equaled $26.5 million.

176 expressly contesting the fine amount, Bio-Med contends that we should remand for

resentencing because the district court erred in calculating its total offense level.

Alternatively, Bio-Med claims that the court abused its discretion by failing to

impose a fine lower than the statutory maximum.

As for the fine imposed, based on a minimum multiplier of 2.00, for an error

by the district court to be anything other than harmless the base fine total under §

8C2.4 must be less than half the statutory maximum fine of $26.5 million, or

$13.25 million.

We have already determined that enhancements based on §§ 2B1.1(b)(2) and

2B1.1(b)(4) were not supported by the evidence presented at trial. See supra

subpart A.1.a–b. A six-level reduction in the overall offense level would drop the

corresponding offense level fine amount to $10.5 million, below the

$33,713,200.68 pecuniary gain/loss total. See U.S.S.G. § 8C2.4. Because § 8C2.4

requires that we use the greater of gain/loss and that offense level fine, we would

have to use the gain/loss amount to determine the appropriate fine range. And we

have previously sustained more than $28 million of that total loss, see supra

subpart A.1.d, meaning the minimum Guidelines fine would be at least $56

million, see U.S.S.G. § 8C2.4(d). Since this is far more than the $26.5 million fine

177 imposed, the claimed error is harmless. See United States v. Foley, 508 F.3d 627,

634 (11th Cir. 2007).

Under the abuse of discretion standard, we review a district court’s choice of

sentence, including the decision to not impose a fine lower than that recommended

by the Sentencing Guidelines, for procedural and substantive unreasonableness.

Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597, 169 L. Ed. 2d 445

(2007); United States v. Suarez, 601 F.3d 1202, 1223 (11th Cir. 2010).

To ensure that a sentence is not procedurally unreasonable, we determine

whether the district court committed a significant error “such as failing to calculate

(or improperly calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on

clearly erroneous facts, or failing to adequately explain the chosen sentence . . . .”

Gall, 552 U.S. at 51, 128 S. Ct. at 597. Although the district court must consider

the § 3553(a) sentencing factors, it is not a requirement that it “state on the record

that it has explicitly considered each of the section 3553(a) factors or to discuss

each of [them].” United States v. McNair, 605 F.3d 1152, 1231 (11th Cir. 2010).

When reviewing the district court’s decision for substantive reasonableness,

we determine the range of reasonable sentences dictated by the facts of the case,

178 taking into account the totality of the circumstances and giving deference to the

district court. See id. “The fact that the appellate court might reasonably have

concluded that a different sentence was appropriate is insufficient to justify

reversal of the district court.” Gall, 552 U.S. at 51, 128 S. Ct. at 597, “The burden

of establishing unreasonableness belongs to the party challenging the sentence.”

Suarez, 601 F.3d at 1223.

Bio-Med’s fine is procedurally reasonable. The district court said that it

“considered the factors set forth in federal law that deal with sentencing,

specifically 18 U.S.C. [§] 3553(a)” and sentenced Bio-Med “pursuant to the

Sentencing Reform Act of 1984.” Any errors in calculating the Guidelines

sentencing range were harmless, and the court imposed the correct statutory

maximum fine.

The fine is also substantively reasonable. In contending that it is not, Bio-

Med relies on both Sentencing Guidelines § 8C3.3(b), which allows the court to

“impose a fine below that otherwise required by § 8C2.7 (“Guideline Fine

Range—Organizations”) if the court finds that the organization is not able and,

even with the use of a reasonable installment schedule, is not likely to become able

to pay the minimum fine required by § 8C2.7 (Guideline Fine

Range—Organizations),” and 18 U.S.C. § 3572(a)(1), which requires a sentencing

179 court to consider, before imposing a fine or setting a payment schedule, “the

defendant’s income, earning capacity, and financial resources.” Bio-Med argues

that, according to the receiver appointed to marshal and distribute its assets, it is

unable to pay the $26.5 million fine; the receiver testified that, after paying the

$39.5 million forfeiture judgment as well as the fines imposed on the Bradleys and

Tellechea, Bio-Med would only have financial resources “somewhere between 12

and 15 Million Dollars.” The court’s unwillingness to impose a lower fine, Bio-

Med posits, was therefore an abuse of discretion.

Yet, as Bio-Med concedes, this permissive reduction only becomes

mandatory if the fine imposed would impair its ability to make restitution.

U.S.S.G. § 8C3.3(a); see also 18 U.S.C. § 3572(b). A defendant’s financial

hardship does not make a fine substantively unreasonable even if the defendant

cannot pay the entire fine or if the fine would drive the defendant into bankruptcy.

See United States v. Eureka Lab., 103 F.3d 908, 912, 914 (9th Cir. 1996). And the

receiver’s testimony notwithstanding, Bio-Med has offered nothing to demonstrate

that it lacks sufficient assets to pay the fine it owes, much less that it would be

unable to pay restitution to its victims.155 It has thus failed to establish substantive

155 While the receiver testified that Bio-Med was most likely to retain $12 to $15 million after forfeiture, restitution, and other financial penalties, she also testified that the amount could be far larger:

180 unreasonableness, and we affirm the fine imposed.

V.

The indictment contained a forfeiture count in which the Government sought

the following:

If any defendant was convicted of the Count 1 RICO charge, the United States would acquire, under 18 U.S.C. § 1963(a), (1) “any interest the [defendant] acquired or maintained” in violation of 18 U.S.C. § 1962©); (2) “any property constituting or derived from, and any proceeds which the [defendant] obtained . . . from racketeering activity” in violation of § 1962©); (3) “a sum of money equal to the total value of the property [so described], but at least $45,000,000”; and (4) “Bio-Med[], including all common and preferred stock, all inventory, [and] all accounts receivable.” If any defendant was convicted of conspiring to commit, or committing, money laundering, the United States would acquire, under 18 U.S.C. § 982(a)(1), “[a]ll right, title, and interest in any and all property involved in each offense . . . and all property traceable to such property, including” (1) “all money . . . that was the subject of each transaction . . . in violation of [18 U.S.C. §§ 1956 or 1957]”; (2)

The range that I have today is somewhere between 2 and 26 million. But if I took the mid point of the range, Your Honor, where I will be in excess after satisfying all of the debts will be somewhere between 12 and 15.

Bio-Med’s attorney also indicated that the true value of Bio-Med was, as the time of sentencing, still indeterminate:

Now the problem is, in sentencing today, is that we cannot get to hard numbers. And that is part of what I put in my response that I know the Court has reviewed in preparation. Because not all of the assets have been sold. And the most important asset hasn’t been sold, and it has substantial value. The only way that we could know that is if we delayed. And we can’t delay.

In the end, the district court apparently felt comfortable with the $26.5 million fine, stating, “This is a sentence that the Court felt that it could perform itself, without the government’s pleading and all. I have been privy to as many facts as I needed.”

181 “all . . . proceeds obtained as a result of those violations”; and (3) “all property used . . . to commit or to facilitate the . . . violations.” If such property or interests were beyond the Government’s reach, the forfeiture would be “[a] sum of money equal to the total amount of money involved in each offense, for which the defendant is convicted, but not less that $45,000,000.” If any defendant was convicted of wire fraud, or conspiracy to commit wire fraud, the United States would acquire, under 18 U.S.C. §§ 982(a)(2) and 981(a)(1)©), and under 28 U.S.C. § 2461©), “[a]ll right, title, and interest in any property constituting, or derived from proceeds the [defendant] obtained . . ., as the result of such violations of [18 U.S.C. §] 1343 . . . .”

The jury returned its verdicts on March 29, 2006. The Bradleys, Bio-Med,

and Tellechea were found guilty of offenses that triggered one or more provisions

of the forfeiture count. Because the forfeiture provisions were triggered, both the

Government and the defendants were entitled to jury findings as to “whether the

government ha[d] established the requisite nexus between the property [sought to

be forfeited] and the offense committed by the defendant.” See Fed. R. Crim. P.

32.2(b)(4).156 If neither side requested a jury determination, the district court

would have to determine whether the Government had satisfied its burden. See

Fed. R. Crim. P. 32.2(b)(1).

Neither side requested a jury determination; rather, the Bradleys and Bio-

Med consented to the entry of a forfeiture order and, with the Government, jointly

156 We refer in this opinion to the version of Rule 32.2 in effect at the time of trial in 2006. The rule has since been amended.

182 moved the court to enter a “Consent Preliminary Order of Forfeiture” (the

“Preliminary Forfeiture Order”), which they represented as satisfying the

requirements of Rule 32.2.157 In addition to the signatures of the Bradleys and a

Bio-Med representative, the order bore the signatures of Maria Bradley and Norma

Bradley, Bradley III’s and Bradley, Jr.’s respective spouses, indicating that they

also consented to the entry of the order.158

The district court entered the Preliminary Forfeiture Order on April 3, 2006,

five days after the jury returned its verdicts.159 That order stated that, depending on

157 Though subject to forfeiture on his Count 3 conviction pursuant to the forfeiture count alleged in the indictment, Tellechea did not join in the Preliminary Forfeiture Order. 158 The court granted the motion only after Maria Bradley and Norma Bradley appeared before the court without counsel and, along with Bradley III and Bradley, Jr., agreed to the entry of the Preliminary Forfeiture Order. As part of that order, the Bradleys’ spouses agreed to forfeit up to $2 million of their own assets in exchange for the Government promising not to pursue forfeiture against their primary residences. 159 Entry of the Preliminary Forfeiture Order relieved the court of its duty to determine whether the Government had established the requisite nexus for forfeiture. In relevant part, the order stated,

Based on the allegations set forth in the Indictment and the evidence adduced at trial, the United States has established the requisite nexus between the properties and the offenses to which the Defendants have been found guilty. Accordingly, the above stated properties are subject to forfeiture to the United States pursuant to 18 U.S.C. § 982 and 1963.

Presumably, the “above stated properties” included Bio-Med and certain properties sufficient to satisfy the total amount of the $39.5 million judgment. We cannot be sure, however, because the order did not indicate what those properties were. The Preliminary Forfeiture Order additionally permitted the United States, pursuant to 18 U.S.C. §§ 982 and 1963, and Rule 32.2(b)(3) of the Federal Rules of Criminal Procedure, to undertake “whatever discovery is necessary to identify, locate, or dispose of [the] property subject to forfeiture, or substitute assets for such property, and to conduct any discovery

183 the outcome of the defendants’ appeals of their convictions, the United States

would obtain Bio-Med, i.e., the Bradleys’ shares in the company, and a judgment

against the Bradleys and Bio-Med in the sum of $39.5 million.160

necessary to determine the validity of any ancillary claims which may be filed.” Moreover, the court would continue to have jurisdiction over the implementation of the Preliminary Forfeiture Order, and “[a]ny unresolved disputes [would] be resolved by the Court.” 160 To be more specific, the order provided for the “[f]orfeiture of $39,500,000 against Martin J. Bradley, III, Martin J. Bradley, Jr., and Bio-Med Plus, Inc. . . . .” The $39.5 million figure was based, in part, on “the present value of accounts receivable for Bio-Med Plus,” estimated to be $8,500,000, and “the present value [of the product inventory],” estimated at $5,000,000. To the extent that the liquidation of Bio-Med’s accounts receivable and product inventory returned more than the estimated sum, the Preliminary Forfeiture Order instructed that the parties would divide the proceeds “at 2/3 to the United States in additional forfeiture and 1/3 to Maria and Norma Bradley.” Once Bio-Med was liquidated, the Bradleys would forfeit additional property until the entire judgment was satisfied. If, however, the Bradleys and Bio-Med interfered with the receiver’s duty to marshal enough assets to satisfy the $39.5 million judgment contemplated by the Preliminary Forfeiture Order—that is, to the extent the liquidation of Bio-Med and the unidentified and undescribed “above stated properties” returned less than $39.5 million—the order permitted the Government to seek forfeiture of substitute property. The relevant provision of the order, paraphrasing 18 U.S.C. § 1963(m), which applies to RICO forfeiture but not money laundering or wire fraud forfeiture, explained,

Pursuant to 18 U.S.C. § 1963(m), each Defendant shall forfeit substitute property, up to the value of the amount of the above-described properties, if, by any act or omission of the Defendant, the above-described properties, or any portion thereof, cannot be located upon the exercise of due diligence; has been transferred, sold to or deposited with a third party; has been placed beyond the jurisdiction of the court; has been substantially diminished in value; or has been commingled with other property which cannot be divided without difficulty; it is the intention of the parties that the United States may seek forfeiture of any other property of the Defendants, pursuant to 18 U.S.C. § 1963(m), up to the value of the forfeitable property.

Finally, as explained supra, any sums the Government collected in satisfaction of the $39.5 million judgment would be used to satisfy any restitution the court might order the defendants to pay as part of their sentences; the order stated, “It is understood . . . that any amount tendered and forfeited shall be credited to the defendants as restitution.”

184 The district court followed the Preliminary Forfeiture Order by entering the

“Order Appointing Receiver and Monitor,” also on April 3, which provided for the

appointment of Marta Alphonso, C.P.A., and Madison Associates, Inc. (“Madison

Associates”). The order gave Alphonso, as receiver, sweeping powers, among

them the authority to marshal the Bradleys’ assets so as to make them available to

satisfy the monetary judgments the district court would be entering against the

Bradleys and Bio-Med. The order also enjoined all individuals involved with the

Bradleys and Bio-Med from interfering with Alphonso’s attempts to marshal the

Bradleys’ assets. At one point, it enjoined

the Defendants, their directors, officers, agents, servants, employees, attorneys, depositories, banks, and those persons in active concert or participation with any one or more of them, and each of them, [to] (a) take such steps as are necessary to repatriate to the territory of the United States all funds and assets of the Defendants which are held by them or are under their direct or indirect control, jointly or singly, and deposit such funds into the registry of the United States District Court, Southern District of Georgia[,] where they will be held until further order of the Court.

Order Appointing Receiver and Monitor at 14 (April 3, 2006). The court labeled

this particular injunction, “REPATRIATION ORDER.”161

The district court scheduled the defendants’ sentencing hearings for

161 Other than the Bradleys and Bio-Med, none of the individuals and entities referred to in this injunction were parties to the proceedings before the court.

185 September 6, 2006. The day before the hearing, the Government moved the court

(1) to appoint Marta Alphonso as Receiver to marshal and liquidate defendants’ assets in the event the Court imposes monetary penalties [other than forfeiture] against one or more of the defendants at sentencing; (2) to appoint Madison Associates, Inc. as Monitor; and (3) for the Receiver to remit all asset sale proceeds into the registry of the Court pending further order of distribution.

On September 6, after the court announced the sentences it planned to impose,

Bradley, Jr.’s lawyer indicated that the defendants would object to the

Government’s motion. The court indicated that it would grant the motion, but

deferred its ruling. It would grant the motion on October 4, as indicated below.

On September 11, the court sentenced the defendants as indicated in part IV,

supra, making the forfeiture provisions of the Preliminary Forfeiture Order part of

the Bradleys’ and Bio-Med’s sentences.162

On September 19, Bradley, Jr., and his wife, Norma, filed an objection to the

Government’s September 5 motion, and Bradley III and his wife, Maria, adopted

that objection on September 20. The gist of the objection was that court

appointment of a receiver to assist the Government in obtaining satisfaction of the

monetary obligations the sentences imposed on the Bradleys in favor of the United

States—the payment of the $39.5 million judgment, fines, and special

162 The court did not order forfeiture against Tellechea for his Count 3 conviction.

186 assessments—had no foundation in federal law.163 If the court granted the

Government’s motion, the Bradleys argued, it would be doing nothing more than

turning the receiver into a collection agent for the Government. The United States

already owned Bio-Med, having acquired the Bradleys’ shares in the company, and

it could obtain satisfaction of the $39.5 million judgment and the fines and special

assessments by invoking the judgment-execution procedures provided by the

Federal Debt Collection Procedure Act (“FDCPA”), 28 U.S.C. § 3001 et seq.

Accordingly, the Bradleys and their spouses maintained that there was no need for

the appointment of a receiver.

On September 26, the Government supplemented its September 6 motion by

attaching a proposed order. On October 4, the district court, drawing on the

authority provided by the FDCPA, the All-Writs Act, 28 U.S.C. § 1651, and the

court’s inherent power, overruled the Bradleys’ and Bio-Med’s previous

objections, granted the Government’s motion, and entered the proposed order. The

receiver then set about the task of finding assets the Bradleys’ owned, liquidating

them, and depositing the proceeds into the registry of the district court. The

163 The Bradleys’ objection did not mention the restitution ordered to be paid as part of the Bradleys’ (and Bio-Med’s) sentences. The beneficiaries of the restitution orders were not parties to the proceedings. Nonetheless, the district court had the authority to enforce those in personam orders via its contempt power and/or its power to modify the conditions of supervised release that were part of the Bradleys’ sentences.

187 receiver also undertook to aid the court in enforcing the injunctions, including the

REPATRIATION ORDER, which the October 4 order lifted in substance from its

April 3 order.

As provided in the October 4 order, the United States was entitled to receive

the funds the receiver collected, and deposited, up to the $39.5 million judgment

amount plus the total amount of the fines and special assessments imposed as part

of the respective defendants’ sentences, $33,146,400,164 for a total of $72,646,400.

Under the Preliminary Forfeiture Order, the first $27,804,995 of the funds the

Government received would be used to satisfy the restitution the court had ordered

the defendants to make.165 In other words, the United States was subsidizing the

defendants to the extent that they were required to make restitution in the sum of

$27,804,955. The Bradleys and Bio-Med would be liable to the United States for

balance needed to satisfy the $39.5 million judgment and pay the fines and special

assessments their judgments imposed; Tellechea would be liable for his fine and

special assessment. In sum, the October 4 order instructed the receiver to collect

164 Bradley III was fined $5 million and ordered to pay $24,700 in assessments. Bradley, Jr., was fined $1.5 million and ordered to pay $400 in assessments. Bio-Med was fined $26.5 million and ordered to pay $21,200 in assessments. Tellechea was fined $100,000 and ordered to pay $100 in assessments. 165 Bradley III, Bradley, Jr., Bio-Med, and Tellechea were jointly and severally liable for restitution to the extent they individually had been ordered to pay; that is, $27,804,995, $25,461,314, $27,804,995, and $3,294,077, respectively.

188 the full amount specified in the defendants’ sentences—$39.5 million (owed by the

Bradleys and Bio-Med) and the fines and special assessments the sentences of the

respective defendants imposed.

On October 19, Tellechea moved the district court to reconsider its October

4 ruling. Reiterating the objections the Bradleys (and their spouses) had made on

September 19 and 20, Tellechea added that the court should reconsider its ruling

because he was not a party to the Consent Preliminary Order of Forfeiture and had

not been given fair notice of the Government’s September 5 and 26 filings. The

court denied his motion on December 4, 2006.166

Meanwhile, Bradley, Jr., Norma Bradley, Bradley III, Maria Bradley, and

Tellechea (collectively “appellants”) separately appealed the October 4 order.167

Relying on the rationale underpinning their objections to the Government’s

September 5 and 26 motions, appellants argue that the district court erred in

granting the October 4 order. We agree.168

166 Tellechea did not appeal the December 4 order. 167 The Bradleys, Bio-Med, and Tellechea had already appealed their convictions and sentences. 168 Before the district court, appellants argued that the receiver had already marshaled sufficient assets to satisfy the $39.5 million judgment and that negotiations were nearing their conclusion for the Government’s sale of Bio-Med. Therefore, appellants argued, the receivership should be brought to a close; the receiver had discharged every one of her duties described in the Preliminary Forfeiture Order and could not be, without their consent, nominated by the Government to collect fines and special assessments. The Government has not contested the facts underlying appellants’ argument. Assuming,

189 The defendants’ sentences contained money judgments in favor of the

United States and in personam orders to pay restitution to the victims of the

defendants’ fraudulent schemes. We first explain why the appointment of a

receiver to obtain satisfaction of the money judgments was an abuse of discretion,

and we then explain why the appointment of the receiver to effectuate the

defendants’ payment of restitution to the victims was likewise inappropriate.169

The FDCPA provides “the exclusive civil procedures for the United States”

to obtain satisfaction of a judgment in a criminal proceeding that imposes a “fine,

assessment, penalty, [or] restitution” in favor of the United States. 28 U.S.C.

§§ 3001(a)(1), 3002, (3)(B),(8). Although the procedures prescribed are

“exclusive,” the Act does not “curtail or limit the right of the United States under

any other Federal law or any State law . . . to collect any fine, penalty, assessment,

restitution, or forfeiture arising in a criminal case.” 28 U.S.C. § 3003(b)(2). Thus,

then, that the receiver has marshaled more than $39.5 million in forfeiture and sold Bio-Med, our holding would dictate that the receivership be terminated. To the extent, however, that the forfeiture judgment cannot be satisfied out of the assets marshaled by the receiver, or to the extent that Bio-Med has yet to be sold, the receivership will continue until the receiver’s duties under the Preliminary Forfeiture Order are discharged. 169 We review the court’s expansion of the Preliminary Forfeiture Order for abuse of discretion. “A district court abuses its discretion when it misapplies the law in reaching its decision or bases its decision on findings of fact that are clearly erroneous.” Arce v. Garcia, 434 F.3d 1254, 1260 (11th Cir. 2006).

190 the provisions of the Federal Rules of Civil Procedure relating to the satisfaction of

civil judgments, e.g., Rule 66 (“Receivers”) and 69 (“Execution”), apply.

In this case, the judgments at issue imposed in favor of the United States

fines totaling $33.1 million, assessments totaling $46,400, and a money judgment

for $39.5 million. The judgments against the Bradleys also gave the United States

ownership of Bio-Med via the forfeiture of the Bradleys’ ownership of the

company’s shares and certain properties the judgments did not identify.

The FDCPA provided the Government with all the tools necessary to obtain

payment of the fines, special assessments, and the $39.5 million.170 Assuming that

no payment was forthcoming, all the Government had to do was to identify

property the Bradleys and Tellechea owned and utilize the Act’s tools. If the

Government knew of property these defendants owned, it could seize the property

via writs of attachment (for tangible property) and garnishment (for intangible

property, like a bank account).171 If the Government was unaware or uncertain of

170 Since it owned Bio-Med, the Government effectively forgave Bio-Med of its liability for its fine, special assessment, and $39.5 million. That is, to the extent that Bio-Med satisfied any of these obligations, it would reduce its value and thus the value of the Bio-Med shares the United States owned. 171 We assume that the lawyers in the United States Attorney’s office ensured that the fines, special assessments, and $39.5 million judgment were appropriately recorded so as to create liens on the Bradley’s and Tellechea’s properties. See 28 U.S.C. § 3201 (concerning the creation of liens); 18 U.S.C. § 3613©) (explaining that a “fine . . . is a lien on all property and rights to property of the person fined . . . .”).

191 what the defendants owned, it could (1) depose the Bradleys, Tellechea, and

anyone else having knowledge of their assets and (2) obtain any other discovery

provided for by the Federal Rules of Civil Procedure or state law. 28 U.S.C. §

3015. These tools are designed for use by all lawyers, including those in the

United States Attorney’s office.

A district court’s appointment of a receiver, by way of contrast, is “an

extraordinary equitable remedy.” 13 Moore’s Federal Practice, § 66.04[2][a] (3d

ed. 2010). And equity intervenes only when there is no remedy at law or the

remedy is inadequate. Here, the Government has not, and we believe could not,

explain why the FDCPA’s procedures, or those provided by the Federal Rules of

Civil Procedure, are inadequate. At bottom, they are more adequate than the self-

help devices, whatever they might be, that a receiver would have to use. It is for

this reason that the court’s appointment of a receiver to collect the defendants’

fines and special assessments was inappropriate.

We assume that what the Government had in mind for this case was

something like the following. The receiver identifies a piece of property, real or

tangible, which, she has reason to believe, is owned by one of the Bradleys or

Tellechea. She asks the owner to turn the property over to her, but he refuses. So,

she has the United States Attorney, or a private attorney hired with the district

192 court’s permission, move the district court to order the owner to turn over the

property or face a civil contempt sanction. The court grants the motion, and the

owner complies; if not, the owner is held in contempt and sanctioned.

The problem with this approach, which is an implicit consequence of what

the district court provided in its October 4 order, is that it runs afoul of Eleventh

Circuit precedent, Combs v. Ryan’s Coal Co., 785 F.2d 970, 980 (11th Cir.), cert.

denied sub nom, Simmons v. Combs, 479 U.S. 853, 107 S. Ct. 187, 93 L. Ed. 2d

120 (1986).172 There, we said, “A federal court should not . . . enforce a money

judgment by contempt or methods [other] than a writ of execution, except in cases

where established principles so warrant.” Id. (citation omitted). Rather, the

principles of equity cited above counsel against the approach taken by the district

court. The court found authority for the receivership in three sources—the

FDCPA, the All Writs Act, and its inherent power—all sounding in equity.

Because federal and state law provide the United States with ample means of

obtaining satisfaction of the judgments at hand—all of them far more efficient than

the means the court fashioned—the court abused its discretion in appointing a

receiver to perform the Government’s work.

172 We find nothing in the October 4 order or the Government’s moving papers indicating that the court or the Government were aware of this precedent.

193 A receiver was likewise not needed to enforce the payment of restitution to

the victims of the defendants’ fraudulent schemes. Bio-Med owed the full amount

of the restitution, $27,804,995. The United States owns Bio-Med; therefore, if

Bio-Med is liquidated, as provided in the October 4 order, for $27,804,995 (or

more), the United States will have paid the victims all they are to receive under the

defendants’ judgments. To the extent that the proceeds of Bio-Med’s liquidation

are less than $27,804,995, and the defendants do not voluntarily make up the

difference, the court can enforce payment to the victims via its contempt power or

the revocation or modification of the defendants’ terms of supervised release. In

light of this, the appointment of a receiver to oversee and ensure the payment of

restitution constituted an abuse of discretion.173

VI.

We AFFIRM the Bradleys’, Bio-Med’s, and Tellechea’s convictions, and

173 On May 17, 2007, the district court entered an order extending indefinitely the appointments of the receiver and the monitor to enable them to complete their assignments. That order established the relative priority of the defendants’ financial penalties and required Alphonso to submit a comprehensive asset liquidation plan in which the Bradleys and Bio-Med were each to contribute equally to the $39.5 million forfeiture judgment. The Bradleys and Norma Bradley objected to the order, once again urging the court to disband the receivership as improvidently established. Aside from that, they argued that the receiver should be discharged because she had marshaled assets more than sufficient to satisfy the $39.5 million forfeiture judgment. We have jurisdiction. See 28 U.S.C. § 1292(a)(2) (jurisdiction over orders refusing to terminate receivership). Given our vacation of the October 4 order terminating the receivership as it relates to fines, special assessments, and restitution, the May 17 order is a dead letter.

194 Bradley III’s and Bio-Med’s sentences. We VACATE Bradley, Jr.’s sentences on

Counts 1 and 54 and Tellechea’s sentence on Count 3, and REMAND those counts

for resentencing. Finally, we REVERSE the district court’s October 4, 2006 order

appointing the receiver and monitor, and its supplemental receivership order of

May 17, 2007. As soon as circumstances allow, the receivership should be brought

to an immediate close.

SO ORDERED.