United States v. Medina

485 F.3d 1291, 2007 U.S. App. LEXIS 11107, 2007 WL 1373790
CourtCourt of Appeals for the Eleventh Circuit
DecidedMay 11, 2007
DocketNo. 05-14864
StatusPublished
Cited by103 cases

This text of 485 F.3d 1291 (United States v. Medina) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Medina, 485 F.3d 1291, 2007 U.S. App. LEXIS 11107, 2007 WL 1373790 (11th Cir. 2007).

Opinion

FAY, Circuit Judge:

Defendants Pura Medina, Isabel Cane-pa, and Isabel Guerra (collectively “defendants”) appeal their convictions for Conspiracy to Defraud the United States, Commit Health Care Fraud, and to Pay Kickbacks under 18 U.S.C. § 371, Health Care Fraud under 18 U.S.C. § 1347, Conspiracy to Commit Money Laundering under 18 U.S.C. § 1956(h), and Money Laundering under 18 U.S.C. § 1956(a)(1)(B). Defendants argue that the government did not produce sufficient evidence to warrant their convictions, and that the district court erred at sentencing when calculating the amount of loss. For the reasons set out below, we vacate the convictions of Canepa on all counts except the conspiracy to pay kickbacks count, and we find that her loss amount was erroneously calculated at sentencing. As to Medina, we vacate her conviction on all counts of the indictment. As to Guerra, we vacate her convictions on the six substantive health care fraud counts involving Ocean Medical Supply that occurred before May 4, 2001, but affirm all the remaining convictions. [1295]*1295We also find that her loss amount was erroneously calculated at sentencing. Accordingly, we remand for resentencing as to Guerra and Canepa, and remand with instructions to dismiss all counts as to Medina.

BACKGROUND

This case arises from transactions involving Ocean Medical Supply (“Ocean”) and United Pharmacy (“United”). Guerra owned 50% stakes in both companies.1 Ocean dealt in Durable Medical Equipment (“DME”) such as braces and oxygen tanks while United was a typical pharmacy that dealt in prescription drugs. Canepa was the secretary at Ocean and Medina was the secretary/technician at United.

At trial, Rubin Martinez, another pharmacy owner, testified that before Guerra and Gonzalez became Medicare providers through Ocean and United, they worked as patient recruiters, bringing patients to Martinez’s pharmacy in exchange for illegal kickbacks. However, after receiving their own provider numbers through Medicare, Guerra and Gonzalez began taking the patients to their own businesses— Ocean and United.

There is testimony from Wendy Evans, a Special Agent with the FBI, that Guerra, in her capacity as part owner of both Ocean and United, signed documents to become a Medicare provider. Among other things, these documents certified that the Medicare provider would abide by the relevant Medicare regulations, specifically 42 CFR § 424.57. Subsection (c)(1) of this regulation provides that the supplier must “[o]perate[ ] its business and furnish[ ] Medicare-covered items in compliance with all applicable Federal and State licensure and regulatory requirements.” According to Special Agent Evans’s testimony, Guerra signed these documents for Ocean on May 4, 2001, and for United on May 18, 2000.

Several witnesses testified about the schemes Ocean and United were conducting. Nearly all the evidence presented at trial concerned kickbacks for patients, doctors, an orthotic fitter, and patient recruiters. Kickbacks were paid to entice patients to submit their medicare claims through Ocean and/or United. A number of patient recruiters testified that they would bring patients who needed to fill prescriptions to Ocean or United in exchange for 50% of the profits made after submitting the claim to Medicare. The recruiter would then share their 50% with the patient. Recruiters also testified that doctors were paid to send patients to United and Ocean, including a Dr. Brito who worked across the hall from Ocean.

Miguel Ugarte, an orthotic fitter who measured and constructed braces for Ocean’s customers, testified that he was paid $25 to measure each patient Ocean sent him. He also testified that he did not actually measure many of the patients himself, despite signing forms to that effect.

Mauricio Abanto, a government informant, testified about his interactions with the defendants. Abanto testified that he was in the business of money laundering and dealt with several Medicare providers, including Ocean and United. Abanto used his advertising businesses as a cover to give the impression that any money Medicare providers paid him was for advertising. When federal authorities confronted [1296]*1296him, he agreed to cooperate and videotape his money laundering transactions. Several videos were admitted at trial that showed all three defendants meeting separately with Abanto. During the taped encounters they would generally give him a check for $10,800, and they would get back $10,000 in cash. Abanto would keep the remaining $800 as a fee for cashing the checks.

The defendants would count the money and sometimes would discuss their scheme. While Guerra usually dealt with Abanto on behalf of Ocean, Canepa, Guerra’s secretary, dealt with Abanto when Guerra was unavailable. Canepa was recorded as saying that Ocean needed the cash to pay doctors and patients with whom they did business. Canepa also stated that patients were being paid $250 per knee brace.

Usually Carlos Gonzalez dealt with Abanto on behalf of United. However, there were some instances when Medina received and counted the cash delivered, and where she wrote out checks for Aban-to. However, she did not sign any of the checks herself. In one instance, Medina was quoted as saying they “needed the money by Tuesday.” However, on cross examination, Abanto testified that whenever Gonzalez and he would talk about the kickback scheme, Gonzalez would send Medina out of the room because she was just a secretary and Gonzalez didn’t want her knowing that the cash was for paying kickbacks. The defendants were convicted on all the counts put before the jury.2

At sentencing, after the defendants were convicted, the district court determined that every claim United and Ocean submitted to Medicare was fraudulent, and thus, every one of those claims that medicare paid was part of the total loss calculated under U.S.S.G. § 2Bl.l(b)(l). The district court calculated Ocean’s loss amount to be $1,863,962.84. This loss amount was attributed to Canepa, raising her base offense level by 16. The district court calculated United’s loss amount while Medina was employed3 at $6,173,828, which raised her base offense level by 18. Finally, since Guerra was involved with both Ocean and United through the entire time period of the indictment, her loss amount was the total Medicare paid to both businesses, $9,405,114.90. This loss amount raised Guerra’s base offense level by 20 under the sentencing guidelines.

With these loss amounts taken into account, the district court sentenced Guerra to 99 months in prison, and Canepa and Medina to 48 months in prison.

STANDARD OF REVIEW

There are two issues before this Court:

I. Whether there was sufficient evidence of the charged offenses to sustain the defendants’ convictions.

II. Whether the district court erred in calculating the amount of loss at sentencing.

When analyzing sufficiency of the evidence, our review is

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Cite This Page — Counsel Stack

Bluebook (online)
485 F.3d 1291, 2007 U.S. App. LEXIS 11107, 2007 WL 1373790, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-medina-ca11-2007.