United States v. Sandra Mateos

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 19, 2010
• Docket: 08-17178
• Status: Published

Opinion

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS ___________________ ELEVENTH CIRCUIT OCT 19, 2010 No. 08-17178 JOHN LEY ____________________ CLERK

D. C. Docket No. 08-20270-CR-FAM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SANDRA MATEOS, ANA ALVAREZ,

Defendants-Appellants.

_______________________

Appeals from the United States District Court for the Southern District of Florida _______________________ (October 19, 2010)

Before O’CONNOR, Associate Justice,* CARNES and ANDERSON, Circuit Judges.

* Honorable Sandra Day O’Connor, Associate Justice of the United States Supreme Court (Ret.), sitting by designation pursuant to 28 U.S.C. § 294(a). O’CONNOR, Associate Justice (Ret.):

Dr. Ana Alvarez and Nurse Sandra Mateos were employees at St. Jude

Rehabilitation Center during its brief time as an operating clinic in 2003. St. Jude

was ostensibly an HIV treatment center, but it was established as a front for a

massive Medicare scam. The fraud involved falsely diagnosing patients with a

condition that would justify treatments of WinRho, an expensive drug

reimbursable by Medicare at a rate of about $4,900 per treatment to St. Jude.

Because the treatment was medically unnecessary, employees at St. Jude would

purchase only a small fraction of the drugs and drug treatments for which they

billed Medicare. They would then use a simple saline solution or an extremely

diluted dose of WinRho to inject patients, thereby pocketing much of the money

that Medicare had paid for the WinRho treatments. All of the patients were HIV-

positive Medicare beneficiaries who had been recruited for the purpose of seeking

WinRho treatments they did not actually need. The patients were typically paid

about $150 per visit in exchange for their knowing participation. During the

approximately five-month span in which this scam continued, St. Jude received

more than $8 million from Medicare.

For their roles in this operation, Dr. Alvarez and Nurse Mateos were indicted

on several counts. Both Alvarez and Mateos were indicted for: (1) conspiracy to

2 defraud the United States, to cause the submission of false claims, and to pay

health care kickbacks, in violation of 18 U.S.C. § 371; and (2) conspiracy to

commit health care fraud, in violation of 18 U.S.C. §§ 1347 and 1349. While

Mateos was charged with only those two counts, Alvarez faced three additional

counts of (3–5) submission of false claims, in violation of 18 U.S.C. § 287.

Mateos was convicted of both counts, and Alvarez was convicted of all five of her

counts. Mateos was sentenced to 7 years’ imprisonment, and Alvarez to 30 years’

imprisonment.

On appeal, Alvarez and Mateos each raise various arguments challenging

their convictions and sentences. We reject all but one of their arguments outright.

The one meritorious argument is raised by Alvarez, who correctly contends that the

district court improperly excluded a videotape containing exculpatory evidence.

The surreptitious recording, made near the tail end of the clinic’s operation,

arguably showed coconspirators assuring Alvarez that there was no fraudulent

scheme at St. Jude. We agree with Alvarez that the statement at issue in the tape

was potentially powerful exculpatory evidence because a conspirator’s denial of

the existence of Medicare fraud to Alvarez is certainly in tension with the theory

that Alvarez was privy to the scheme. We also agree with Alvarez that the

statement was not hearsay, contrary to the district court’s ruling, because it was not

3 being offered for the truth of the matter asserted. See Fed. R. Evid. 801(c)

(“‘Hearsay’ is a statement . . . offered in evidence to prove the truth of the matter

asserted.”). That is, Alvarez was not seeking to prove through the statement that

there was no fraud at St. Jude—a point that was repeatedly conceded during her

own testimony—but that the behavior of concealing the scheme from her was

inconsistent with the prosecution’s theory that she had knowledge of the scam.

Nonetheless, the exclusion of this videotape was harmless error because it

was duplicative of witness testimony discussing the exculpatory content of the

videotape. Indeed, Alvarez’s attorney stressed this testimony in his closing

argument.

Because this lone error was harmless, we A FFIRM the convictions and

sentences of both Alvarez and Mateos.

I

The fraud at St. Jude involved an extensive cast of characters. Aisa Perera

and Mariela Rodriguez (M. Rodriguez) were the catalysts behind St. Jude’s

creation. Perera approached M. Rodriguez in 2002 with an opportunity to work

with her in starting up a new health care clinic. The two eventually decided the

clinic should target Medicare patients. Perera then met with Rita Campos, who

owned a medical billing company, to discuss the endeavor. Campos told her that

4 Luis Benitez would be able to provide her with everything she needed to start a

lucrative clinic treating HIV-positive patients. Perera then met with Benitez, and,

as Campos indicated, he provided the money and personnel necessary to start the

clinic.

St. Jude was one of eleven clinics funded and established by Luis Benitez

and his brothers Carlos and Jose Benitez. They started their clinics for the purpose

of committing Medicare fraud. Luis Benitez provided the start-up capital, nurses,

and supplies, and he sent an individual named Thomas McKenzie to train St.

Jude’s medical personnel. McKenzie had trained the staff at many of the Benitez

brothers’ clinics. He had a medical degree from Guatemala but was not licensed to

practice medicine in the United States. He instructed St. Jude’s two doctors as to

how they should document their patients’ charts so that Medicare would pay for

WinRho treatments. WinRho is generally used to treat HIV patients suffering from

thrombocytopenia or idiopathic thrombocytopenic purpura (ITP), a condition

marked by an abnormally low platelet count. Before St. Jude began operating,

McKenzie instructed the clinic’s medical staff that the objective in filling out

patient charts was to make the patient files compatible with a diagnosis of

thrombocytopenia, and that bleeding disorders would justify the diagnosis even

though a laboratory test would be necessary to confirm the condition.

5 The clinic employed two licensed doctors, Dr. Orestes Alvarez-Jacinto and

his daughter, Appellant Ana Alvarez. During their careers, Alvarez-Jacinto

specialized in gynecology, and Alvarez’s field of expertise was endocrinology and

internal medicine. Neither had significant experience treating HIV patients.

McKenzie trained each of them to note bleeding disorders on their patients’ charts

so as to justify WinRho treatments.

Alvarez-Jacinto and Alvarez began seeing patients on the day that St. Jude

opened. All of the patients were HIV-positive Medicare beneficiaries, but they

were not seeking treatment in earnest; they, too, were in on the scam. The Benitez

brothers recruited them to seek treatment at St. Jude, provided transportation to the

clinic for those who needed it, and paid the patients kickbacks ranging from $150

to $300 per visit. While the patients were apparently coached to make generic

complaints about bleeding disorders, Dr. Alvarez-Jacinto and Dr. Alvarez would

prescribe WinRho even when patients neglected to complain of any relevant

symptoms. Occasionally, McKenzie would review the patient charts prepared by

Alvarez, and if they failed to indicate a history of bleeding so as to support a

thrombocytopenia diagnosis, he would instruct her to correct the charts, and she

would comply.

6 An institution can only bill Medicare for treatments if it has a Medicare

provider number. Because St. Jude did not have a provider number, Alvarez was

enlisted to obtain one in her own name (Alvarez-Jacinto already had his own

number). To obtain her provider number, Alvarez signed a form agreeing to

comply with applicable laws and Medicare regulations and certifying that she

would not “knowingly present or cause to be presented” false or fraudulent claims,

nor submit claims “with deliberate ignorance or reckless disregard for their truth or

falsity.” All of St. Jude’s claims were submitted under either Alvarez-Jacinto’s or

Alvarez’s provider number. Rita Campos was in charge of billing Medicare for the

treatments, a service she had provided for the Benitez brothers at their various

clinics. She would help prepare what are known as “superbills” for the patients,

each showing the same diagnosis code: 287.3, the Medicare billing code for

thrombocytopenia. Either Alvarez or Alvarez-Jacinto would sign each of the

superbills before it was sent to Medicare.

The nurses at St. Jude were charged with administering the

treatments—typically an injection of saline solution or heavily diluted

WinRho—and with paying the patients their kickbacks with money they received

from M. Rodriguez and Perera. The two nurses at St. Jude were both sent by the

Benitez brothers: Appellant Mateos, who had once been married to Luis Benitez,

7 and Carmen Gonzalez, a cousin of the Benitez brothers. Also working at the clinic

were Angel Rodriguez (A. Rodriguez), a medical assistant who helped with the

infusions, and Beatriz Delgado, a receptionist who was paid $8,000 per month for

allowing her name to be listed as president on St. Jude’s corporate papers.

St. Jude was an operating clinic for less than five months, from July 2003 to

mid-November 2003. The doctors saw about 70 patients per week, and most of the

patients came multiple times each week. Many of the patients were homeless or

otherwise impoverished; some were “professional patients” who would sit for

multiple treatments at as many clinics as were willing to pay them. Sometimes

patients did not stay to receive an infusion of any sort, but were paid anyway. On

several occasions patients got angry and loudly demanded more money, and these

demands were loud enough to be heard throughout the small clinic, which was only

about 1100 square feet.

All told, the clinic billed Medicare for about $11 million, and Medicare

actually paid more than $8 million. Payment for bills submitted under the two

doctors’ provider numbers went directly into St. Jude’s bank account. The doctors

received a fixed salary. Despite her lack of experience in HIV treatment, Dr.

Alvarez was paid $4000 a week (later raised to $5000) for working three days per

week at the clinic. For her role, Nurse Mateos was paid approximately $500 a

8 week. The bulk of the money went to the Benitez brothers, who received 60

percent of the profits, and Perera and M. Rodriguez, who split the remainder.

The investigation into St. Jude began shortly after the clinic’s opening. In

mid-August 2003, Alvarez discussed her work at St. Jude with a colleague at her

second place of employment, a legitimate clinic where Alvarez worked two days a

week and was paid substantially less. The colleague became concerned and urged

Alvarez to speak with the director of the legitimate clinic. The director in turn had

Alvarez contact the F.B.I., which scheduled an interview with Alvarez.

Alvarez had her first meeting with F.B.I. agents on August 27, 2003. One of

the agents present at this first interview was Special Agent Thomas Adams.

Alvarez told the agents that she was concerned about the tax consequences of the

clinic billing under her provider number, and that she had heard that patients might

be getting paid. Alvarez concealed much of her own involvement in the fraud,

though, hiding the fact that she was prescribing medically unnecessary treatments

and fraudulently billing Medicare for the treatments. The agents asked her about

the infusion treatments she prescribed at St. Jude and showed her Medicare’s Local

Medical Review Policy. The Policy stated that WinRho was only approved for

treating patients with platelet counts below 30,000 per microliter of blood, and was

not an appropriate treatment for any other medical condition. None of Alvarez’s

9 patients were anywhere near that benchmark, as the lowest recorded platelet count

for any of her patients was 90,000 per microliter of blood. Although Alvarez

claimed that the FBI encouraged her to stay at St. Jude during the rest of her tenure

there, Agent Adams testified that he gave her no such advice. Even after the agents

showed her Medicare’s Local Medical Review Policy indicating that it was not

medically appropriate, Alvarez continued to prescribe WinRho infusions to

patients at St. Jude until she quit in November 2003.

Alvarez told the agents that she wanted to quit the clinic on November 14,

2003. Agent Adams asked her to stay a few more days so that the agents would

have time to set up a covert recording of her conversation. Agent Adams testified

that his aims in making the recording were twofold: to obtain incriminating

statements from Perera and M. Rodriguez, and to evaluate the credibility and

possible involvement of Alvarez and Alvarez-Jacinto in the fraud. Alvarez agreed

to make the recording, and on November 17, 2003, she went to the clinic wearing a

microphone and carrying a concealed video camera in her purse. In the recorded

conversation, Alvarez and her father told Perera and M. Rodriguez that they were

worried about the amount of money being billed under their provider numbers, and

Alvarez announced her intention to quit. At one point during the conversation,

Perera said, “there’s no fraud whatsoever here, doctor,” but it is not clear what

10 prompted that statement. Alvarez and Alvarez-Jacinto then quit working at the

clinic. Without any doctors and without a provider number, St. Jude could no

longer bill Medicare and had to suspend its operations.

After St. Jude closed its doors, the investigation progressed slowly as federal

authorities first turned their attention to other Benitez clinics. The first charge

specifically related to St. Jude did not come until mid-2007, when Alvarez-Jacinto

pled guilty to a single count of conspiracy to commit health care fraud. He was

sentenced to only 18 months of imprisonment after the sentencing judge granted

him a downward variance on account of his advanced age and poor health. Rita

Campos pled guilty in 2007 to one count of conspiracy to commit health care fraud

and one count of submitting false claims. She initially received a sentence of 120

months, but her sentence was later reduced to 48 months after the government

moved for a Rule 35(b) sentence reduction on account of her substantial assistance.

Fed. R. Crim. Pro. 35(b). In May 2008, the three Benitez brothers and Thomas

McKenzie were indicted on numerous counts involving fraud at eleven different

HIV-treatment clinics (including St. Jude). The Benitez brothers fled the country,

and McKenzie pled guilty to one count of conspiracy to commit health care fraud

and one count of submitting false claims. McKenzie was initially sentenced to 168

11 months, but his sentence was reduced to 95 months based on the government’s

Rule 35(b) motion.

The particular proceeding below began with the indictment of seven

individuals: Ana Alvarez, Sandra Mateos, Aisa Perera, Mariela Rodriguez, Beatriz

Delgado, Angel Rodriguez, and Carmen Gonzales. Gonzales skipped bail and

disappeared before trial. Perera and M. Rodriguez pled guilty and, after initially

receiving sentences of 30 months and 70 months respectively, each was ultimately

sentenced to 24 months of imprisonment after the government’s Rule 35(b)

motions for sentence reductions. Four defendants proceeded to a joint trial:

Alvarez, Mateos, Delgado, and A. Rodriguez.

At trial, the government’s basic theory was that the fraud at St. Jude was so

transparent and so flagrant that it would have been impossible for any employee

not to have known what was going on. The government’s witnesses included

Perera, M. Rodriguez, McKenzie, Agent Adams, and Dr. Michael Wohlfeiler, an

expert witness who testified that among approximately 2,500 HIV-positive patients

he was treating in his own practice, he had not seen a single case within the last ten

years where a patient’s platelet level was low enough to require treatment with

WinRho. He also testified that if a patient actually needed a drug like WinRho, it

would be given once every several weeks and only after careful monitoring,

12 whereas the patients at St. Jude would receive infusions several times a week.

Wohlfeiler also testified that WinRho could have potentially harmful side effects

ranging from allergic reactions to kidney failure and death. He noted that this

information was easily available both in the Physician’s Desk Reference, a

standard reference book typically found in any doctor’s office and available online,

and in the manufacturer’s product information sheet that was packaged with each

vial of the drug.

Each of the four defendants conceded that St. Jude was a fraudulent

operation, but claimed that they themselves were unaware of the fraud during their

employment because they had been duped by Perera, M. Rodriguez, and

McKenzie.

Alvarez testified in her own defense. She said that she relied on McKenzie’s

instructions because she thought he was an expert in treating HIV; she claimed to

have no idea that the WinRho infusions were medically unnecessary. She denied

any knowledge of the billing fraud, and said she was unaware that the code 287.3,

which appeared on all the superbills she signed, was the billing code for

thrombocytopenia. Alvarez also relied heavily on her contacts with the F.B.I. as

evidence that she had no knowledge of the scheme, and argued that any criminal

activity taken after her first meeting with F.B.I. agents was at their behest because

13 they urged her to continue working at the clinic, a claim which Agent Adams

denied in his testimony.

During the government’s cross-examination, Alvarez conceded that WinRho

was medically unnecessary for her patients, but asserted that she did not know as

much during her time at St. Jude because she trusted McKenzie. She also testified

that she never consulted the Physicians Desk Reference or looked at WinRho’s

product insert before prescribing hundreds of doses of the drug. She claimed that

she did not become aware until shortly before trial that Medicare’s Local Medical

Review Policy dictated that WinRho was not appropriate unless a patient had a

platelet count below 30,000 per microliter of blood. Agent Adams’s testimony

again contradicted her on this point, as he testified that the agents had shown her

the Policy at their first meeting.

At several points during the trial, including during her own testimony,

Alvarez sought to admit the surreptitiously recorded videotape of her resignation,

during which Perera appears to assure Dr. Alvarez and Dr. Alvarez-Jacinto that

there was no fraud occurring at St. Jude. The government objected to the tape’s

admission, citing hearsay concerns. Alvarez countered that the exculpatory

statements were not hearsay at all; Perera’s assurances that there was no fraud at

St. Jude were clearly false, and Alvarez sought to admit them not for their truth,

14 but as circumstantial evidence that Alvarez was not privy to the scheme at St. Jude.

Alternatively, Alvarez argued that the comments in the tape could be admitted as

coconspirator statements, see Fed. R. Evid. 801(d)(2)(E), or as fitting within the

“state of mind” exception to the rule against hearsay, see Fed. R. Evid. 803(3).

The judge sustained the government’s objections and excluded the videotape.

However, some of the tape’s content was admitted into evidence through witness

testimony. During cross-examination of M. Rodriguez, the following exchange

occurred:

Q: Now, at the time that Dr. Ana Alvarez came and questioned you and Aisa, back on November 17, 2003, do you recall that date?

A: Yes.

....

Q: Dr. Alvarez was there, Angel Rodriguez was there, you were there, Aisa Perera was there and Dr. Orestes [Alvarez-]Jacinto was there, correct?

A: That is correct.

Q: At that time, the doctors confronted you and Aisa about what was going on at the clinic, correct?

Q: At that time, you and Aisa told the doctors and Mr. Angel Rodriguez that there was no fraud going on at the clinic whatsoever, isn’t that true?

15 A: We told the doctors, actually Angel wasn’t even part of that conversation. It was very little what he said.

Q: Let me rephrase my question. . . . Did you and Aisa tell the doctors that there was no fraud going on whatsoever at the clinic, yes or no?

A: Okay. Well, there is one issue on that conversation, where I do specify to Dr. Orestes Alvarez-Jacinto because he does emphasize us on using his [provider] number somewhere else on another office and I did tell him there, that we are not doing fraud with your number, nowhere else. That’s what I meant. That’s what he was talking about.

Q: Aisa Perera says, “there’s no fraud going on at this clinic whatsoever doctor,” does she not?

A: She did say that.

Doc. 317:934–35. Counsel for Alvarez stressed this exchange during his closing

Mateos did not testify, but her defense theory was that she was but a lowly

employee at St. Jude with no knowledge of the fraud. Her defense focused on the

fact that her salary was only $500 a week, a measly sum for somebody

participating in such a large-scale fraud in which the ringleaders were pocketing

millions of dollars. She also filed a pre-trial motion seeking to prevent the

government from making any mention of her prior marriage to Luis Benitez on the

basis that such evidence would be overly prejudicial. See Fed. R. Evid. 403. The

district court denied the motion, and the government mentioned the close

16 relationship between Mateos and L. Benitez on several occasions during the trial to

combat Mateos’s claimed ignorance about the fraud.

The jury convicted Alvarez and Mateos on all counts, and acquitted Delgado

and A. Rodriguez on all counts.

At sentencing, Alvarez faced a statutory maximum of 30 years’

imprisonment. The Presentence Report began the calculation of Alvarez’s

guidelines sentencing range with a base offense level of 6 under U.S.S.G. §

2B1.1(a)(2), because the offense was one involving fraud. Added to that base

offense level were twenty levels under § 2B1.1(b)(1) because the loss amount was

between $7 million and $10 million; two levels under § 2B1.1(b)(9)(C) because the

offense involved sophisticated means; two levels under § 2B1.1(b)(13)(A) because

the offense involved conscious or reckless risk of death or serious bodily injury;

three levels under § 3B1.1(b) for Alvarez’s managerial role in an offense involving

more than five participants; and two levels under § 3B1.3 for abuse of a position of

trust. Alvarez’s PSR calculated a Guidelines range of 168 to 210 months’

imprisonment. The district court’s acceptance of the enhancements and the

addition of two levels under § 3C1.1 for obstruction of justice for delivering

perjured testimony at trial produced an adjusted offense level of 37. Alvarez

objected to the obstruction enhancement and offered the results of three polygraph

17 examinations she had commissioned to support her claim that she had been

unaware of the fraud at St. Jude while working there. The first two polygraphs

came back “inconclusive,” but the third determined that she was answering

truthfully during the following exchange:

Q: Prior to talking with FBI agents, did you know that anyone from St. Jude planned to send fraudulent bills to the U.S. Government?

A: No.

Q: Prior to talking with FBI agents, did you agree with anyone who was working at St. Jude to participate in a fraudulent scheme to collect money from the U.S. Government?

The district court was unmoved by the polygraphs, explaining that it was basing its

finding of perjury on its own assessment of Alvarez’s trial testimony.

With the obstruction enhancement, Alvarez’s Guidelines range was 216 to

262 months, and the government recommended a sentence of 262 months. The

court considered the sentencing factors provided in 18 U.S.C. § 3553(a) at some

length, and concluded that the seriousness of the crime, the position of trust

Alvarez held as a doctor, and the need to deter the growing number of people

committing Medicare fraud all warranted a sentence above the Guidelines range.

The court sentenced Alvarez to the statutory maximum on each count, running

each sentence consecutively, for a total prison term of thirty years. The court also

18 imposed three years’ supervised release, restitution of $8,289,286 to be paid to the

United States government, and forfeiture of various assets.

Mateos faced a statutory maximum of 15 years of imprisonment. Her PSR

calculated her Guidelines range as 97 to 121 months, and included two

enhancements that Mateos objected to at sentencing. The first was a twenty-level

enhancement because the amount of loss caused by the fraud was more than $9

million. See U.S.S.G. § 2B1.1(b)(1)(K) (twenty-level enhancement if the loss was

between $7 million and $20 million). Mateos argued that she should not be held

responsible for the full amount because her role in the conspiracy was extremely

limited, and the district court should have calculated the loss directly attributable to

her behavior. She also objected to an enhancement under U.S.S.G. §

2B1.1(b)(13)(A), which applies to offenses involving “conscious or reckless risk of

death or serious bodily injury,” claiming that there was no evidence that she knew

giving saline or diluted WinRho treatments could be harmful. The district court

rejected both arguments. Mateos’s Guidelines range was 78 to 97 months, and the

court sentenced her to 84 months’ imprisonment. It also imposed three years of

supervised release and ordered Mateos to pay restitution to the United States

government in the amount of $8,289,286.

19 Alvarez and Mateos now challenge their convictions and sentences on

appeal.

II

Both Alvarez and Mateos challenge the sufficiency of the evidence

supporting their convictions. Alvarez contends that there was insufficient evidence

to convict her of any of her five charges. Mateos concedes there was sufficient

evidence to convict her of paying kickbacks under count 1 of the indictment, see

18 U.S.C. § 371, and challenges only the more serious conviction for health care

fraud conspiracy under 18 U.S.C. §§ 1347 and 1349.

When considering a sufficiency challenge, we view the evidence in the light

most favorable to the jury’s verdict, and draw all reasonable inferences and resolve

all credibility determinations in favor of the government. United States v. Ellisor,

522 F.3d 1255, 1271 (11th Cir. 2008). “[I]t is not necessary that the evidence

exclude every reasonable hypothesis of innocence or be wholly inconsistent with

every conclusion except that of guilt, provided that a reasonable trier of fact could

find that the evidence established guilt beyond a reasonable doubt.” United States

v. Merrill, 513 F.3d 1293, 1299 (11th Cir. 2008) (citation omitted). We consider

each of their challenges in turn.

A. Alvarez

20 Alvarez argues that the evidence was insufficient to support her convictions

on all counts. With regard to the conspiracy counts (counts 1 and 2), Alvarez

concedes that the government proved that a conspiracy to commit healthcare fraud

existed at St. Jude, but she claims that none of the evidence established that she

knowingly participated. In particular, she argues that the evidence showed that

she: (1) was recruited by her father and not by Benitez, (2) was not involved in the

billing process and never saw the Medicare checks, (3) never paid kickbacks, and

(4) merely followed McKenzie’s instructions. With regard to the submission of

false claims counts (counts 3–5), Alvarez concedes that the three superbills she

signed were false but argues that there was no evidence that she knew they were

false when she signed them.

The circumstantial evidence that Alvarez was privy to the scheme at St.

Jude is sufficient to support her convictions. She was trained by McKenzie to

document each patient’s chart in the same manner; she altered the charts when

instructed; she was informed by Agent Adams at her first meeting with the F.B.I.

that her patients did not qualify for WinRho treatments; she was present when

patients at St. Jude screamed about wanting more money; and the billing code

number on the Medicare superbills she signed was always the same, regardless of

what the patient charts said. While it is hypothetically possible that a person under

21 these circumstances could have been ignorant of the fraud, the jury was entitled to

draw the reasonable inference from this evidence that Alvarez was in on the

scheme. “The very nature of conspiracy frequently requires that the existence of

an agreement be proved by inferences from the conduct of the alleged participants

or from circumstantial evidence of a scheme.” United States v. Molina, 443 F.3d

824, 828 (11th Cir. 2006) (citation omitted). Likewise, “[a] conspiracy conviction

will be upheld . . . when the circumstances surrounding a person’s presence at the

scene of conspiratorial activity are so obvious that knowledge of its character can

fairly be attributed to [her].” United States v. Figueroa, 720 F.3d 1239, 1246 (11th

Cir. 1983).

Even putting the government’s affirmative case aside, Alvarez’s own

testimony greatly undermines her sufficiency argument. 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.”

United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995) (citation omitted); see

also United States v. Hunt, 526 F.3d 739, 745 (11th Cir. 2008) (same). This is

especially so in cases, such as the one at bar, that turn mainly on subjective

elements, like a defendant’s intent or knowledge. Brown, 53 F.3d at 315. When

Alvarez insisted that she did not know that the procedures she prescribed were

22 medically unnecessary, or that the bills she signed were being doctored to obtain

payment from Medicare, the jury was entitled to conclude that she was lying, and

we must accept that credibility determination. The evidence was sufficient for a

reasonable jury to find Alvarez guilty beyond a reasonable doubt on all counts.

B. Mateos

Mateos argues that the evidence failed to show that she knew that St. Jude

was submitting fraudulent claims to Medicare. In particular, she claims that she

(1) had no access to the clinic’s accounts, (2) played no role in the billing process,

(3) was not paid based on the clinic’s earnings, (4) merely provided the patients

with treatment the doctors prescribed, and (5) had no knowledge that Medicare

may have been billed for services not actually provided. Mateos also places a great

deal of weight on the fact that, in rejecting her motion for judgment of acquittal,

the district court described the evidence against her as “weak.”

While we agree with the district court that the evidence against Mateos was

not overwhelming, it was sufficient to support the jury’s guilty verdicts. The

evidence showed that Mateos was recruited by the Benitez brothers to work as an

infusionist at St. Jude and to pay kickbacks to the patients, which she did. In

addition, Mateos provided patient care and administered the treatments of diluted

WinRho and saline, leading to the reasonable inference that she knew the

23 treatments the patients were receiving were all the same and that she knew there

was not enough medication on hand to administer the thousands of doses that the

charts indicated were being administered. There was also evidence that she paid

some patients who did not even receive treatment, which lends strong support to an

inference that she knew any billing for those patients was fraudulent.

Mateos counters that her role was similar to the secretary’s role in United

States v. Medina, 485 F.3d 1291 (11th Cir. 2007), a case in which this Court

reversed the conviction of a secretary who was involved in paying kickbacks to

patients because the evidence was insufficient to establish that she knew the clinic

was providing medically unnecessary services or fraudulently billing Medicare. Id.

at 1297–1300. But unlike the secretary in Medina, Mateos both paid the patients

and administered the treatments. It was not necessary for Mateos to know “all the

details” of how the fraud worked in order for her to be guilty of the conspiracy.

United States v. Perez-Tosta, 36 F.3d 1552, 1557 (11th Cir. 1994). Mateos was

not a mere secretary. She was a licensed nurse and had been trained as a doctor in

her native Cuba. In light of her medical expertise, the circumstances of the fraud

going on around her were so obvious that knowledge of it can fairly be attributed

to her. Because Mateos was one of only three people who worked in the infusion

room, and one of only two nurses who were responsible for mixing the correct

24 quantity of the drug into saline solution for intravenous infusion, the jury could

reasonably infer her awareness of the discrepancy between the amounts of WinRho

prescribed and the amounts actually given. Mateos, like anyone else in the

cramped clinic quarters, also could not have avoided overhearing patients

screaming that someone was getting rich with their Medicare number. The

presence of fraud at St. Jude was so obvious that, as with Alvarez, Mateos’s

knowledge of its character could fairly be attributed to her. See Figueroa, 720

F.3d at 1246.

III

Alvarez and Mateos each raise one claim of evidentiary error. Alvarez

argues that the district court erred when it excluded a videotape showing Perera

assuring her and her father that there was no fraud occurring at St. Jude, and

Mateos argues that the district court erred when it denied her motion to exclude

any mention of her past marriage to Luis Benitez.

A. The videotape

At trial, Alvarez argued that the surreptitiously recorded videotape of her

resignation was strong exculpatory evidence. In particular, Perera’s statement that,

“there’s no fraud whatsoever here, doctor,” showed that Alvarez was not privy to

the fraudulent scheme. The government objected to the tape’s admission on the

25 basis that it was hearsay, and the district court sustained the objection and excluded

the videotape from evidence.

The district court erred when it excluded the videotape. The relevant

comment on the tape was not hearsay at all because it was not being offered for the

truth of the matter asserted. See Fed. R. Evid. 801(c). Alvarez sought to admit the

statement not as evidence that there was no fraud at St. Jude, a point which no

defendant contested, but as evidence that she did not know of the fraud. “If the

significance of an offered statement lies solely in the fact that it was made, no issue

is raised as to the truth of anything asserted, and the statement is not hearsay.”

Fed. R. Evid. 801(c), Advisory Committee’s Note; see also 5 J. Weinstein and M.

Berger, Weinstein’s Federal Evidence § 801.10(2)(c) (2d ed. 2008) (“Sometimes

the relevance of words or actions to show a particular fact depends on drawing an

inference that a person would not have spoken or acted in a certain way unless the

person believed a certain fact to be true.”).

The government’s response to this reasoning tracks the exact error the

district court made in excluding the tape: it argues that the comment does not

qualify as a coconspirator statement under Fed. R. Evid. 801(d)(2)(E), and does not

fit within the “state of mind” exception in Fed. R. Evid. 803(c). These responses

are totally inapposite. If the statement is not hearsay in the first place, there is no

26 need for it to fit within an exception to the rule against hearsay. Cf. Fed. R. Evid.

402 (establishing presumption that all relevant evidence is admissible). Just as the

district court did, the government focuses on the fact that the statements do not fit

within an exception to the rule against hearsay, thereby skipping over the prior and

all-important question of whether the statement was hearsay at all.

While the district court erred in excluding the relevant portion of the

videotape, the error was harmless because the exculpatory content of the tape was

effectively admitted through witness testimony. See Kotteakos v. United States,

328 U.S. 750, 764 (1946) (“If, when all is said and done, the conviction is sure that

the error did not influence the jury, or had but very slight effect, the verdict and the

judgment should stand . . . .”). In this case, the only exculpatory statement in the

videotape that Alvarez relies on is Perera’s statement that there was no fraud going

on at St. Jude—a statement that was admitted during the cross-examination of M.

Rodriguez. Alvarez’s attorney even attempted to capitalize on this point during his

closing argument, without interruption from the government or the district court.1

The jury was simply unconvinced that Perera’s denial established that Alvarez did

1 During closing argument, Alvarez’s counsel stated: “They’d like to forget the part about when confronted with the fraud, how Mariela [Rodriguez] reacts. Mariela says, there is no fraud. Mariela and Aisa [Perera] go running to the Benitez brothers. The doctors discovered the fraud, what do we do? Benitez brothers say, offer them more money. What happens when the doctors discover the fraud? They have to close down the clinic.” Doc. 319:1578. In this excerpt, Alvarez’s counsel mistakenly attributes the statement to M. Rodriguez, when it was actually made by Perera (though it came into evidence during cross-examination of M. Rodriguez).

27 not know of the conspiracy. Because the only exculpatory statement on the tape

was admitted into evidence through other means, the erroneous exclusion of the

tape was harmless error.

B. Mateos’s past marriage to Luis Benitez

Over Mateos’s objection, the district court allowed government witnesses to

mention that she was once married to Luis Benitez, whom the prosecutor referred

to as the “Godfather” of St. Jude. The district court found that the evidence was

relevant because it suggested that Mateos was somebody who Luis Benitez would

trust, but it gave the jury a limiting instruction, which stated that “the mere fact that

certain persons may have associated with each other” does not by itself establish a

conspiracy. On appeal, Mateos does not dispute the relevance of her relationship

with Benitez. See United States v. Ritz, 548 F.2d 510, 522 (5th Cir. 1977) (“The

fact of the close association of the [defendants is] . . . one circumstance from which

the jury might infer knowledge” of a conspiracy.). She instead argues that the

district court abused its discretion in admitting evidence of her relationship with

Luis Benitez because it was substantially more prejudicial than its minimal

probative value, see Fed. R. Evid. 403, and the prejudice was not adequately

curbed by the limiting instruction.

28 Relevant evidence “may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” Fed. R. Evid. 403. “Because a trial court

has broad discretion to determine the admissibility of evidence,” this Court reviews

evidentiary rulings for an abuse of discretion. Ellisor, 522 F.3d at 1266 n.12.

Moreover, a limiting instruction may be sufficient to cure the risk of undue

prejudice in limited circumstances. See United States v. Hands, 184 F.3d 1322,

1329 (11th Cir. 1999).

Here, the district court did not abuse its discretion by refusing to exclude

evidence that Luis Benitez was Mateos’s ex-husband. The evidence was relevant

to the issue of her guilt, Ritz, 548 F.2d at 522, and it posed little threat of undue

prejudice. The concept expressed in the limiting instruction, that people should not

be adjudged guilty based on their past or present relationships, is a simple one that

the jury could easily understand and take to heart.

Mateos’s reliance on Hands, 184 F.3d 1329, is misplaced. In Hands, this

Court found reversible error when the district court allowed the government to

impeach a testifying defendant with evidence that he had beaten his wife. Id. at

1325. Because the evidence of spousal abuse had nothing to do with the drug

29 conspiracy for which the husband was on trial, we held that its minimal probative

value in impeaching the defendant was outweighed by its prejudicial impact. Id. at

1328–29. Hands is not similar to this case. Unlike the violent spousal abuse in

that case, there is nothing visceral or inflammatory about the fact that Mateos was

previously married to Benitez. It simply suggests that the organizers of the

conspiracy were likely to trust Mateos, and it increases the likelihood that she

knew what was going on at St. Jude. And it certainly was not inflammatory to

such an extent that the district court’s limiting instruction would not have been

effective.

The district court did not abuse its discretion in concluding that the

prejudicial impact of this evidence did not substantially outweigh its probative

value.

IV

The five remaining claims of error all target the sentencing phase of the

proceedings below. Alvarez raises three claims: (1) that her sentence was

substantively unreasonable; (2) that the district court erred when it refused to

consider the results of her polygraph examination at sentencing; and (3) that the

district court’s restitution order was unlawful because the United States is not a

“person” who can be a “victim” owed restitution under the Mandatory Victim

30 Restitution Act of 1996 (MVRA). Mateos raises two claims of error: (1) that the

district court erred by attributing the entire intended loss of the conspiracy to her

when calculating her Guidelines range; and (2) that the district court erred when it

enhanced her Guidelines range based on its finding that her offense involved a

conscious or reckless risk of death or serious bodily injury. We consider each

A. The reasonableness of Alvarez’s sentence

We review the reasonableness of the district court’s sentencing decision for

an abuse of discretion. Gall v. United States, 552 U.S. 38, 46 (2007); United States

v. Irey, 612 F.3d 1160, 1188–89 (11th Cir. 2010) (en banc). “[A] district judge

must give serious consideration to the extent of any departure from the Guidelines

and must explain his conclusion that an unusually lenient or an unusually harsh

sentence is appropriate in a particular case with sufficient justifications.” Gall, 552

U.S. at 46. We will not invalidate a sentence unless we are “left with the definite

and firm conviction that the district court committed a clear error of judgment in

weighing the § 3553(a) factors by arriving at a sentence that lies outside the range

of reasonable sentences dictated by the facts of the case.” Irey, 612 F.3d at 1190

(quoting United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)).

31 The district court sentenced Alvarez to the statutory maximum, imposing the

maximum penalty on each count and then running all counts consecutively. Her

thirty-year sentence exceeds the top of the Guidelines range (262 months) by

slightly more than eight years. Because of the deviation from the Guidelines, the

district court was required to provide “sufficiently compelling” justifications to

support the degree of the variance. Gall, 552 U.S. at 50; Irey, 612 F.3d at 1187.

Nevertheless, this Court reviews all sentences (whether below, within, or above the

Guidelines range) under the same deferential abuse of discretion standard, and it

may not presume that a sentence outside of the Guidelines range is unreasonable.

Gall, 552 U.S. at 51; Irey, 612 F.3d at 1187.

Here, the district court did not abuse its discretion by varying upward from

the Guidelines range and sentencing Alvarez to a total of 360 months’

imprisonment. The court provided specific reasons to justify its deviation from the

Guidelines range, including: (1) a doctor should be punished more severely than

other participants because the doctor is breaching a position of trust and an ethical

obligation to put the patient’s interest first; (2) the crime was not a fleeting

moment, but a sustained conspiracy over a period of months; (3) Alvarez followed

a lower standard of care with regard to the health of the HIV-positive patients as

compared to her prior patients; and (4) there was a need to promote adequate

32 deterrence of Medicare fraud because it was becoming rampant in the Miami area

and the risk of getting caught was fairly low. See United States v. Martin, 455 F.3d

1227, 1240 (11th Cir. 2006) (finding that deterrence is an especially important

element to consider during sentencing for fraud-based crimes because of their

thought-out nature).

In addition to those four reasons, the district court added two other

significant ones. First, it found that Alvarez had “blatantly lied” during her

testimony at trial, Doc. 312:7, referring to her “perjurious testimony” as a reason to

impose a harsh sentence. See Doc. 312:93 (“[T]aking into consideration her

criminal conduct, her background, the need to deter Medicare fraud, her position as

a doctor, as a leader in this criminal enterprise, her perjurious testimony, the

combination of all those factors leads me to a sentence above the guidelines.”);

Doc. 299:1 (Order Denying Emergency Motion to Correct Sentence) (“The

variance resulted in a reasonable sentence, because the defendant, as a licensed

medical doctor, prescribed to HIV patients medically unnecessary treatment with

potential harmful effects on these vulnerable patients. This along with her

perjurious testimony during trial, her lack of remorse, and the extent and

sophistication of the fraud justified the sentence.”).

33 Second, the court focused on Alvarez’s “lack of remorse,” which Alvarez

did not and could not dispute in light of her unwavering assertions of innocence

even after her conviction. Doc. 299:1; see also Doc. 312:37 (“THE COURT: . . .

We have an individual who has shown no remorse, agreed, because she doesn’t

think she did anything wrong . . . —true? [Counsel for Alvarez]: True.”); Doc.

312:79 (stating that a “big factor” in the sentence imposed was that Alvarez had

“no acceptance of responsibility whatsoever” and “[n]o remorse”). It was

reasonable for the district court to consider those two factors, which support the

differences between her sentence and those of her coconspirators, most of whom

accepted responsibility, pleaded guilty, and cooperated.

It is true that Alvarez’s 360-month sentence amounted to a significant

variance and exceeded the sentences of her coconspirators (some of whom were

the undisputed ringleaders of the operation), and that 18 U.S.C. § 3553(a)(6)

instructs a district court to take such disparities into account when imposing a

sentence. But the court based this difference, in part, on Alvarez’s status as a

doctor and her leadership role in the offense, a designation that Alvarez does not

challenge on appeal. This finding is entitled to due deference.

To be sure, it is troubling that some coconspirators who were more deeply

involved in the fraudulent scheme orchestrated by the Benitez brothers received

34 only a fraction of the sentence that Alvarez did. McKenzie received 95 months;

Campos, 48 months; Perera and M. Rodriguez, 24 months each. All four of those

coconspirators, however, provided the government with substantial assistance, and

Campos, Perera, and M. Rodriguez entered guilty pleas. This Court has held that

“there is no unwarranted disparity when a cooperating defendant pleads guilty and

receives a lesser sentence than a defendant who proceeds to trial.” United States v.

Langston, 590 F.3d 1226, 1237 (11th Cir. 2009); see also United States v.

Docampo, 573 F.3d 1091, 1101 (11th Cir. 2009); United States v. Williams, 526

F.3d 1312, 1323-24 (11th Cir. 2008).

The sentencing disparities in the present case are not unwarranted. In

addition to pleading guilty and cooperating with the government, only one of the

apparently comparable coconspirators was, like Alvarez, a medical doctor licensed

to practice in the United States. That coconspirator was Alvarez’s father, but at

sentencing he was 81 years old and suffered from heart disease, impaired lung

function requiring use of an oxygen mask, degenerative back disease, and what

appeared to be either Alzheimer’s or some other form of dementia. Furthermore,

the district court relied not only on Alvarez’s abuse of trust in her position as a

doctor but also focused on the potential harmful effects that her conduct had on her

patients. Finally, unlike her, none of Alvarez’s coconspirators went to trial, none

35 testified, none committed perjury, and none displayed an utter and total lack of

remorse from the beginning through the end of the proceedings.

Although the sentencing disparities are a concern, the district court gave

many compelling reasons justifying its departure from the Guidelines, and it is

within that court’s discretion to decide how much weight to give each of the §

3553 factors as long as it has not committed a clear error of judgment. See United

States v. McBride, 511 F.3d 1293, 1297–98 (11th Cir. 2007) (per curiam); Irey,

612 F.3d at 1191 (“A district court’s sentence need not be the most appropriate

one, it need only be a reasonable one. We may set aside a sentence only if we

determine, after giving a full measure of deference to the sentencing judge, that the

sentence imposed truly is unreasonable.”).

Furthermore, Congress has recently amended the Guidelines to ensure that

health care fraud is punished more severely. In health care reform legislation

enacted in March 2010, Congress directed the Sentencing Commission to amend

U.S.S.G. § 2B1.1 by adding a specific offense enhancement for “a Federal health

care offense relating to a Government health care program” that involves $1

million or more. Patient Protection and Affordable Care Act of 2010, Pub. L. No.

111-148, § 10606(a)(2)(C), 124 Stat. 119, 1006–07 (March 23, 2010). If the loss

amount is between $1 million and $7 million, 2 levels are added; if it is between $7

36 million and $20 million, as it was in this case, 3 levels are added; and if it is $20

million or more, 4 levels are added. Id. Congress also directed the Sentencing

Commission to review the Guidelines and policy statements for health care fraud

offenses to ensure that they “reflect the serious harms associated with health care

fraud and the need for aggressive and appropriate law enforcement action to

prevent such fraud” and to provide “increased penalties for persons convicted of

health care fraud offenses in appropriate circumstances.” Id. § 10606(a)(3)(A).

If the new enhancement had been applicable to Alvarez’s sentence, then

(holding everything else constant) her total offense level would have been 40 and

her guidelines range would have been 292–365 months, or 292–360 with the

ceiling imposed by the statutory maximum of 30 years. What that means is if

Alvarez committed her crime today, the district court’s 30-year sentence would fall

within the upper limit of her guidelines range, and we would fully expect that it

was reasonable. See Rita v. United States, 551 U.S. 338, 347–48 (2007) (appellate

court may presume within-guidelines sentence is reasonable); United States v.

Alfaro-Moncada, 607 F.3d 720, 735 (11th Cir. 2010) (we ordinarily expect that a

sentence within the guidelines is reasonable). That expectation would be

reinforced by the district court’s findings about the specific circumstances of this

case: Alvarez’s abuse of her position of trust as a doctor; the ongoing nature of the

37 conspiracy; the lower standard of care Alvarez provided to her HIV-positive

patients; the need to deter Medicare fraud, particularly in the Miami area; and

Alvarez’s perjury at trial and her complete lack of remorse.

Even though the amendment to the guidelines does not apply retroactively to

Alvarez, it can still inform our consideration of whether thirty years is a reasonable

sentence for her crime, particularly in light of all of the specific reasons the district

court provided for varying upward on her sentence. Even under the earlier version

of the guidelines, only three more points would have put the top of Alvarez’s

sentence range at 30 years (offense level 40), and only two more in addition to that

would have put the bottom of her sentence range at 30 years (offense level 42).

The district court gave many compelling reasons justifying its departure

from the Guidelines, and it is within that court’s discretion to decide how much

weight to give each of the § 3553 factors. The district court thoroughly considered

the § 3553 factors and offered compelling justifications for its decision that, taken

together, justified a sentence above the Guidelines. See Gall, 552 U.S. at 51; Irey,

612 F.3d at 1187. Giving that decision the deference it is due, we cannot say that

Alvarez’s sentence is outside the range of reasonable sentences, or that the district

court committed a clear error of judgment in imposing it. See Irey, 612 F.3d at

1190; McBride, 511 F.3d at 1297–98.

38 B. The polygraph examinations

Alvarez next argues that the district court erred by refusing to consider the

exculpatory results of a post-verdict polygraph examination in determining

whether to apply an obstruction of justice enhancement. This was error, she

argues, because the district court may not “invent a blanket prohibition against

considering certain types of evidence at sentencing.” See United States v. Watts,

519 U.S. 148, 152 (1997). While Mateos tries to couch this claim in the terms of a

“refusal to consider” argument, the district court’s ruling is better understood as a

refusal to give dispositive weight to the results of the third polygraph examination.

That is, it was not a blanket prohibition on considering the exams in any case; it

was instead a finding that the evidence that Alvarez gave perjured testimony was

so overwhelming that no polygraph could sway the district court’s decision,

especially not a third exam taken after the first two were inconclusive. Given the

narrowly worded questions, and the fact that she only passed the test on her third

try, the probative value of the test results was minimal.

There was no error in the district court’s refusal to give the polygraph exams

dispositive weight when they directly contradicted the jury’s verdict. In fact, the

district court may have abused its discretion if it had given them any weight at all,

insofar as they contradicted the jury’s verdict that Alvarez had knowledge of the

39 fraud at St. Jude. See United States v. Hunt, 521 F.3d 636, 649 (6th Cir. 2008)

(below-Guidelines sentence was substantively unreasonable when based on a

district court’s doubts that defendant actually had criminal intent, which

contradicted the jury’s verdict). The district court did not clearly err by

disregarding the results of the third polygraph exam and applying an obstruction of

justice enhancement based on the evidence presented at trial.

C. The United States as a “victim” under the MVRA

The Mandatory Victims Restitution Act of 1996 requires district courts to

impose restitution in certain cases where “an identifiable victim or victims has

suffered a physical injury or pecuniary loss.” 18 U.S.C. § 3663A(c)(1)(B). The

MVRA defines “victim” as:

[A] person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered including, in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant’s criminal conduct in the course of the scheme, conspiracy, or pattern.

18 U.S.C. § 3663A(a)(2).

Alvarez argues that the district court was not authorized to order her to pay

restitution to the United States government, because the government is not a

“victim” or a “person” under the plain terms of the MVRA. While Alvarez is

correct that it is somewhat awkward to refer to a government as a person, the

40 surrounding provisions of the MVRA indicate that the term “victim,” as used in the

MVRA, includes the government.

It is dispositive that the enforcement provisions of the Act explicitly

recognize the government as a possible victim. 18 U.S.C. § 3664(i) (“In any case

in which the United States is a victim, the court shall ensure that all other victims

receive full restitution before the United States receives any restitution.”).

“[N]othing indicates that Congress intended two different meanings when it used

the same word in §§ 3663A and 3664(i)—related provisions adopted at the same

time and codified in serial sections in the United States Code.” United States v.

Ekanem, 383 F.3d 40, 43 (2d Cir. 2004). This provision conclusively resolves any

ambiguity in the meaning of the word “victim” in favor of the conclusion that

Congress treated the United States government as a potential victim under the

MVRA. In reaching this holding, we are in agreement with each of our sister

circuits that has addressed this issue. See United States v. Senty-Haugen, 449 F.3d

862, 865 (8th Cir. 2006); Ekanem, 383 F.3d at 43; United States v. Lincoln, 277

F.3d 1112, 1113 (9th Cir. 2002); United States v. Martin, 128 F.3d 1188, 1190 (7th

Cir. 1997).

D. The intended loss attributable to Mateos

41 We now turn to Mateos’s claims of sentencing error, both relating to the

district court’s calculation of her Guidelines range. First, Mateos argues that the

district court erroneously found her responsible for the entire intended loss of the

conspiracy (more than $9 million), leading to a twenty-level enhancement of her

Guidelines range. See U.S.S.G. § 2B1.1(b)(1)(K). She argues that the court erred

because it failed to make individualized findings of fact as to the specific scope of

her involvement in the conspiracy. We disagree.

A “district court may hold participants in a conspiracy responsible for the

losses resulting from the reasonably foreseeable acts of co-conspirators in

furtherance of the conspiracy.” United States v. Hunter, 323 F.3d 1314, 1319

(11th Cir. 2003). Under the Guidelines, “to determine a defendant’s liability for

the acts of others, the district court must first make individualized findings

concerning the scope of criminal activity undertaken by a particular defendant.”

Id. at 1319 (citation omitted). Once the court determines the scope of the

defendant’s involvement in the conspiracy, it then may consider “all reasonably

foreseeable acts and omissions of others in the jointly undertaken criminal

activity.” United States v. McCrimmon, 362 F.3d 725, 731 (11th Cir. 2004)

(citation omitted).

42 Mateos’s primary argument against attributing the entire loss to her is that,

even if Mateos knew that St. Jude was providing medically unnecessary treatments

(as the jury concluded), there was no evidence that she knew St. Jude was billing

Medicare for infusions that were not provided at all. That is, she only consented to

participating in the scheme insofar as patients were actually injected with

unnecessary medicine; not to billing Medicare when no treatment was provided at

all. The position defies common sense. The evidence established that Mateos

knew that St. Jude was purchasing far less WinRho than it was billing Medicare

for, and that was the essence of the fraud. Whether a particular patient was

injected with saline, a diluted dose of WinRho, or nothing at all, is irrelevant to the

object of the conspiracy: to overbill Medicare.

Because it is reasonably foreseeable that a clinic engaged in fraudulently

diluting doses of medicine might also be in the practice of billing Medicare when

no treatment was provided whatsoever, the district court did not err in attributing

the entire intended loss to Mateos. See McCrimmon, 362 F.3d at 731–32

(defendant responsible for losses stemming from all reasonably foreseeable acts of

coconspirators).

E. Risk of death or serious injury

43 Finally, Mateos challenges the district court’s two-level enhancement of her

Guidelines range based on its finding that her offense involved “conscious or

reckless risk of death or serious bodily injury.” U.S.S.G. § 2B1.1(b)(13)(A). She

argues that there was no evidence supporting the district court’s conclusion that

she knew or recklessly disregarded the severe risks associated with giving HIV-

positive patients the unnecessary treatments prescribed by the doctors at St. Jude.

The district court did not clearly err in finding that a trained nurse, such as

Mateos (who also received training as a doctor in Cuba), would be well aware that

any injection always carries some risk of infection or other complications, and that

the risk is especially high when the patients have HIV and weakened immune

systems. See United States v. Campbell, 491 F.3d 1306, 1315 (11th Cir. 2007)

(reviewing “for clear error the district court’s findings of fact regarding whether a

defendant should receive an enhanced sentence under the Guidelines” (citation and

ellipsis omitted)). Even though there was no evidence that any patient was actually

harmed from the treatments, the enhancement was nevertheless appropriate

because the Guidelines provision focuses on the defendant’s disregard of risk

rather than on the result. See United States v. Snyder, 291 F.3d 1291, 1294–95

(11th Cir. 2002). The district court did not err in applying the enhancement.

44 V

For the foregoing reasons, we A FFIRM the district court’s judgments.