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Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 1:12-cr-20219-WJZ-2.
For United States of America, Plaintiff - Appellee: Nicole D. Mariani, Wifredo A. Ferrer, Jon M. Juenger, Kathleen Mary Salyer, Arimentha R. Walkins, U.S. Attorney's Office, Miami, FL.
For Yosany Sosa, Defendant - Appellant: Richard Carroll Klugh Jr., Law Offices of Richard C. Klugh, Miami, FL.
Before HULL and JULIE CARNES, Circuit Judges, and ROTHSTEIN,[*] District Judge.
HULL, Circuit Judge:
After a jury trial, Yosany Sosa appeals his convictions for one count of conspiracy to commit health care fraud, in violation of 18 U.S.C. § § 1349 and 1347; eight counts of health care fraud, in violation of 18 U.S.C. § 1347; one count of conspiracy to pay health care kickbacks, in violation of 18 U.S.C. § § 371 and 1320a-7b(b)(2)(A); and three counts of payment of kickbacks in connection with a federal health care program, in violation of 42 U.S.C. § 1320a-7b(b)(2)(A). Sosa also appeals his total 102-month sentence. Sosa contends that the government failed to introduce evidence to sustain his convictions, that the prosecution's closing statements amounted to misconduct requiring reversal, and that the district court erred in calculating his advisory sentencing guidelines range. After a careful review of the record and the briefs, and with the benefit of oral argument,
we affirm Sosa's convictions and sentence.
On March 29, 2012, a federal grand jury returned a 15-count indictment against defendant-appellant Sosa and Arsenio Leon. The indictment charged Sosa and Leon each with one count of conspiracy to commit health care fraud, eight counts of health care fraud, one count of conspiracy to pay health care kickbacks, and five counts of payment of kickbacks in connection with a federal health care program. The kickback counts specifically alleged that Sosa and Leon paid kickbacks of $1,550 on or around May 21, 2011; $2,200 on or around June 28, 2011; $2,250 on or around July 11, 2011; $2,400 on or around August 1, 2011; and $2,400 on or around August 8, 2011. Sosa and Leon each pleaded not guilty, and the pair was tried jointly.
Because Sosa challenges, inter alia, the sufficiency of the evidence, we begin by recounting the evidence presented at trial relating to his convictions.
A. Evidence Presented at Trial
On May 31, 2002, Leon incorporated Discovery Therapy, Inc. (" Discovery" ). Nearly nine years later, on April 21, 2011, Leon opened a bank account for Discovery at J.P. Morgan Chase and hired a company named DNA Billing to prepare Medicare claims for Discovery. On April 25, 2011, Discovery applied to become an authorized provider of Medicare Part C services through Blue Cross Blue Shield (" BCBS" ), which administers the Medicare Part C program.
Discovery eventually became a licensed Medicare Part C provider, and listed itself as a " convenient care center," which is a clinic designed to provide physical examinations, injections, and treatment for non-serious illnesses. In connection with Discovery's licensing as a Medicare Part C provider, Leon filed an authorization agreement with BCBS, which stated that all Medicare claim payments made to Discovery should be directly deposited into the J.P. Morgan Chase bank account that Leon opened on April 21, 2011.
Beginning on May 30, 2011, Discovery began to submit Medicare Part C claims to BCBS. On June 29, 2011, while Discovery continued to submit Medicare claims to BCBS, Leon added Sosa as an authorized signatory on Discovery's J.P. Morgan Chase bank account. Sosa had invested $10,000 in Discovery and had become a partner in the enterprise.
Sosa and Leon eventually withdrew about $119,000 each from Discovery's bank account. Sosa's withdrawals included $30,000 in checks written to Y& R Medical Center Group, a company Sosa created but never opened, while the rest of Sosa's profits were distributed directly to him.
Between May 30, 2011 and August 19, 2011, Discovery ostensibly served as a community health clinic and provided treatment for 12 Medicare Part C patients for whom it billed BCBS. Nearly all the Medicare Part C claims Discovery submitted to BCBS were fraudulent because they were for pharmaceutical injections and infusions that Discovery's patients did not receive.
Discovery implemented its fraud scheme as follows. The clinic hired an individual named Miguel Angel Milian Martinez to recruit patients who would seek medical services at Discovery. Milian Martinez found, recruited, and paid individuals who were HIV-positive or suffering from AIDS to come to the clinic for so-called treatments. These " patients" would receive " treatment" in the form of vitamin shots or protein injections. However, Discovery would then submit Medicare claims to BCBS indicating that these patients had received doses of expensive drugs, frequently octreotide depot. But Discovery never even purchased octreotide depot, let alone provided patients with injections of the drug.
For example, Discovery paid Edward Caldero $450 to $500 in cash every week for approximately three months to be a " patient" at the clinic. Although Discovery submitted claims stating that Caldero had received 12 injections of octreotide depot in July 2011--including three injections all on July 1, 2011, and another three injections on July 15, 2011--Caldero never received octreotide depot injections or received three injections of any substance on any single day. Instead of receiving octreotide, Caldero received injections of Vitamin C or Vitamin B-12. After receiving his injections, Caldero would " wait around" Discovery's offices for a while before someone would " take [him] to the side and slip [him] the money" he was promised. Although Sosa never personally paid Caldero, Caldero testified that Sosa hung around the clinic, transported patients to and from Discovery's offices, and even gave Caldero rides at times. In sum, Discovery billed $143,450.65 for Caldero's " treatment," and BCBS paid Discovery $90,701.20 for services purportedly rendered to Caldero.
Similarly, Discovery paid Gustov Llerena, an HIV-positive patient suffering from AIDS and affected by bipolar disorder, $150 a week for three to four weeks to go to Discovery for " treatment for neuropathy." However, when he went to the clinic, Llerena received only shots of Vitamin B-12. Llerena never received infusions of any drug during his visits to Discovery, and he never received more than one injection per visit. But Discovery submitted claims to BCBS that indicated Llerena had received multiple injections and infusions on single days, including on June 3, 2011, June 6, 2011, and June 10, 2011. Llerena stopped going to Discovery after he realized that " there was no treatment" and an individual working at Discovery wrongly informed him that he had syphilis. When asked to identify anyone he knew to be associated with the clinic, Llerena identified Sosa.
Another former patient at Discovery, Kenneth Mackens, went to the clinic one to three times a week for six weeks in 2011. Mackens, who is HIV-positive, went to Discovery because he " needed the money." When Mackens went to the clinic, he would sometimes receive a shot, which the people at the clinic told him was of a protein. Although Discovery submitted claims that said Mackens received injections of octreotide, Mackens never received any treatments of that drug. On cross-examination, Mackens admitted that he previously had used aliases and that he sometimes used cocaine and marijuana.
These patients and others were identified by Milian Martinez, the recruiter, whom Discovery paid $43,000 for services over a period of about three months. The payments to Milian Martinez included checks signed by Sosa for $2,250 on July 11, 2011; for $2,400 on August 1, 2011; and for $2,400 on August 8, 2011. In an interview with law enforcement, Sosa admitted that he knew that Milian Martinez was in charge of bringing patients to the clinic and that the check was payment for bringing those patients to the clinic. Sosa also knew that the patients were being paid and that it was illegal to pay the patients. Nonetheless, Sosa signed Milian Martinez's checks and included memo lines that indicated they were for " transport."
The fraud continued undetected from May 30, 2011 through August 17, 2011, when BCBS became suspicious of some of Discovery's billing. BCBS detected possible fraud after noting that Discovery had submitted claims indicating that patients had received injections of octreotide depot on consecutive days, even though octreotide depot is a long-acting drug that is absorbed in large muscles over the course of a month. Further, BCBS's policy does not allow for patients to receive more than one treatment of the drug in a four-week span. BCBS instituted controls on Discovery's claims account by August 19, 2011. But by then, Discovery had billed BCBS for $1,244,088.13 in Medicare claims for 12 patients, and BCBS had already paid the clinic $443,000.65 for Medicare Part C claims. During the final 52 days of this 82-day fraud, Sosa was a signatory on Discovery's bank account.
On Monday, September 12, 2011, BCBS auditor Mary Tejada and two investigators visited Discovery as part of BCBS's probe into Discovery's suspected fraudulent billing. The clinic was located on the second floor of a strip mall west of Miami, and it included a waiting room, a physical therapy room, an exam room, and what appeared to be a laboratory room. Tejada arrived at approximately 1:00 p.m.--during Discovery's stated business hours, which ran from 9:00 a.m. to 3:00 p.m. Although the visit occurred during the middle of official hours, the only two people present at Discovery were Leon, who identified himself as the owner, and a woman who identified herself as Leon's wife. Dr. Hector Maldonado, who was listed as the physician in charge at Discovery, was not present, even though his official office hours at the clinic ran from 9:00 a.m. to 3:00 p.m. on Mondays.
During Tejada's visit, Leon took Tejada and the investigators to the laboratory room and opened the room's refrigerator, which contained fewer than six small vials of substances and some small containers similar to urine containers. Leon told the investigator that he did not know what was in the vials or the containers because he did not provide the services at Discovery. In fact, Leon said he had " no idea" what services were performed in the office he owned.
The investigators also asked Leon to provide Discovery's medical records for an audit. Leon responded that he had given everything he had to another BCBS investigator who had visited Discovery previously. But BCBS had not previously received any medical records from Discovery. Tejada, the investigators, and Leon then searched Discovery's offices for any in-house medical records. They found none.
Leon also told Tejada that his office clerk, who was not working at the time, was " the one in charge of all that" and would be able to answer Tejada's questions. By the end of the day, Leon had removed Sosa as a signatory on Discovery's J.P. Morgan Chase bank account. About a week and a half later, Tejada
received by mail the files for seven of Discovery's 12 patients. She never received the other files.
A review of Discovery's financial records and the claims it submitted to BCBS revealed that, although the clinic billed BCBS for 29,245 units of drugs totaling $1,128,830.00, it had purchased only 187 units of drugs for a total of $2,613.20.
On April 2, 2012, Agent Suzzette Bohmer, who is a special agent for the Office of Personnel Management's Office of the Inspector General, interviewed Sosa in connection with the Office of Personnel Management's investigation into Discovery's fraudulent billing practices. After being given his Miranda rights, Sosa admitted that he had written at least one check to Milian Martinez, that he knew Milian Martinez was in charge of bringing patients to the clinic, and that the check was payment for bringing those patients to the clinic. Sosa also admitted that he knew that the patients were being paid and that it was illegal to pay the patients.
At the conclusion of the government's case in chief, Sosa moved for a judgment of acquittal on all counts. The district court reserved its ruling on the motion.
During the defense's case in chief, Sosa testified and denied that he ever told Agent Bohmer that Milian Martinez was referring patients to Discovery. Sosa also denied that he ever told Agent Bohmer that he knew Discovery's patients were being paid.
Before closing arguments, Sosa renewed his motion for judgment of acquittal, which the district court denied.
B. Jury Verdict
On September 21, 2012, after approximately three hours of deliberations, the jury returned a verdict. The jury found Leon guilty on all counts and found Sosa guilty of 13 of the 15 counts against him. The jury found Sosa guilty of one count of conspiracy to commit health care fraud, eight counts of health care fraud, one count of conspiracy to pay health care kickbacks, and three counts of payment of kickbacks in connection with a federal health care program (the three counts relating to the kickbacks allegedly paid on or around July 11, 2011, August 1, 2011, and August 8, 2011). The jury found Sosa not guilty of two counts of payment of kickbacks in connection with a federal health care program (the two counts relating to the kickbacks allegedly paid on or around May 21, 2011 and June 28, 2011).
Sosa timely appealed.
II. SUFFICIENCY OF THE EVIDENCE
On appeal, Sosa first argues that the government introduced insufficient evidence to support his convictions.
We review de novo the sufficiency of the evidence, " viewing the evidence in the light most favorable to the government, with all reasonable inferences and credibility choices made in the government's favor." United States v. Wright, 392 F.3d 1269, 1273 (11th Cir. 2004) (quotation marks omitted and alterations adopted). We will affirm a conviction where " a reasonable jury could find the defendant's guilt beyond a reasonable doubt." United States v. Utter, 97 F.3d 509, 512 (11th Cir. 1996).
A. Conspiracy Charges
Sosa argues that the government presented insufficient evidence to sustain his convictions for conspiracy to commit health care fraud and conspiracy to pay health care kickbacks. Specifically, Sosa contends that the government failed to prove an agreement to defraud Medicare, an agreement to pay kickbacks, or that Sosa
knowingly and voluntarily joined any such agreement.
" For a defendant to be found guilty of conspiracy, the government must prove beyond a reasonable doubt (1) that a conspiracy existed; (2) that the defendant knew of it; and (3) that the defendant, with knowledge, voluntarily joined it." United States v. Vernon, 723 F.3d 1234, 1273 (11th Cir. 2013) (quotation marks omitted). This Court has made clear that, " [b]ecause the crime of conspiracy is predominantly mental in composition, it is frequently necessary to resort to circumstantial evidence to prove its elements."  United States v. Toler, 144 F.3d 1423, 1426 (11th Cir. 1998) (quotation marks and citations omitted).
With regard to the first element, " 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."
Vernon, 723 F.3d at 1273 (quotation marks omitted and alteration adopted). In other words, " the government need not demonstrate the existence of a formal agreement, but may instead demonstrate by circumstantial evidence a meeting of ...