         Case: 15-10953     Date Filed: 06/21/2017   Page: 1 of 24


                                                      [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-10953
                      ________________________

                  D.C. Docket No. 1:13-cr-20505-RNS-7


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

versus

BLANCA RUIZ,
ALINA FONTS,

                     Defendants - Appellants.

                      ________________________

               Appeals from the United States District Court
                   for the Southern District of Florida
                      ________________________



                              (June 21, 2017)
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Before MARCUS, JILL PRYOR, and SILER, * Circuit Judges.

SILER, Circuit Judge:

       Blanca Ruiz and Alina Fonts were convicted for their roles in a Medicare

fraud perpetrated by Health Care Solutions Network, Inc. (“HCSN”). Ruiz was

convicted on one count of conspiracy to commit health care fraud in violation of

18 U.S.C. § 1349. Fonts was convicted on one count of conspiracy to commit

health care fraud in violation of 18 U.S.C. § 1349 and two counts of health care

fraud in violation of 18 U.S.C. § 1347.             Both Ruiz and Fonts challenge the

sufficiency of the evidence against them, claim cumulative error necessitates a new

trial, and appeal the imposition of a twenty-two-level increase based on fraud loss

calculation when calculating their Guidelines sentencing ranges.                  Fonts also

appeals the imposition of a two-level leadership enhancement. We affirm.

                FACTUAL AND PROCEDURAL BACKGROUND

       Ruiz and Fonts were charged, along with a number of codefendants, with

conspiracy to commit health care fraud in violation of 18 U.S.C. § 1349. Fonts

was separately charged with two substantive counts of health care fraud in

violation of 18 U.S.C. § 1347. A jury convicted Ruiz and Fonts on all of the

counts against them.       Each was sentenced to a term of seventy-two months’



*
  Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by
designation.
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imprisonment to be followed by three years of supervised release and ordered to

pay over $10 million in restitution.

                               The Fraud at HCSN

      Ruiz and Fonts were employees at HCSN, a company operating partial

hospitalization programs (“PHPs”). There were eventually three HCSN facilities.

Two were located in Miami: HCSN-East and HCSN-West. The third facility was

in North Carolina. Each facility had a medical director who was a doctor, a

clinical director, a group of therapists, and a number of support staff. Both Ruiz

and Fonts worked primarily at HCSN-West, although Ruiz also spent a brief period

at HCSN-East.

      PHPs offer mental health treatment that is either a step up from outpatient

care or a step down from inpatient treatment in a mental health ward. A PHP

provides intensive, all-day treatment up to six days per week and engages patients

with treatment activities throughout the day. Treatment plans are customized for

each patient, and PHPs seek to stabilize symptoms and to keep patients out of the

hospital.   Patients are most often referred to PHPs by other mental health

professionals. Paying kickbacks for PHP referrals contravenes medical ethics and

violates federal law, see 42 U.S.C. § 1320a-7b(b)(2)(A).        Medicare does not

prescribe a fixed length of time for a stay in a PHP, but a typical stay lasts two to

three weeks and longer stays generally demonstrate that the treatment is


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ineffective. The attending psychiatrist decides when a patient is discharged, but a

PHP discharging a patient at one location only to readmit him at another location

after a set interval of time likely indicates that neither admission was predicated

upon patient needs.

      Medicare imposes documentation requirements for each patient at a PHP

from intake to discharge. United States v. Moran, 778 F.3d 942, 951 (11th Cir.

2015).   Intake notes include patient history, symptoms, and notes from other

doctors. While therapy is ongoing, therapists record the treatment provided to each

patient and the patient’s level of participation in therapeutic activities.   Such

notations should be made promptly and backdating notes is inappropriate. All

information in patient files, including treatment records and therapy notes, should

be truthful.

      HCSN billed Medicare for medically unnecessary treatments that were often

not even provided to patients. Participants in the fraud recruited PHP patients

without regard to their suitability for such a program. Kickbacks were paid to

mental health workers in hospitals and assisted care facilities who referred

Medicare beneficiaries to HCSN facilities. Some HCSN employees enrolled their

parents in order to receive kickbacks themselves. Many HCSN patients suffered

from dementia or other memory problems making therapy useless and slept

through the therapy sessions that were offered.


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      There was rampant fabrication of documentation to maintain appearances

that the facility complied with Medicare requirements. This included inventing

information for patient files during intake, having unqualified individuals conduct

intake interviews, and having doctors sign admissions documents without

reviewing the files or meeting with the patients.        Group therapy notes were

fabricated, and when group therapy sessions did occur notes were altered if they

indicated that a patient fell asleep, did not participate, or was suffering from

memory problems. Therapy notes were copied and pasted from one session to

another so that patients’ files contained multiple versions of the same notes.

Therapists were instructed in how to write their notes to meet Medicare

requirements, regardless of the notes’ accuracy. At both HCSN facilities located in

Florida, there were also lists of non-existent ghost patients for whom HCSN billed

Medicare. The group in the HCSN-West facility was called the “white group,”

named after Casper the ghost.

      Once a patient was enrolled at an HCSN facility, there was a concerted

effort to keep him there for as long as possible. This resulted in Medicare being

billed for 612 days of services for a single patient, even though a normal stay in a

PHP lasts no more than three weeks.          Patients were cycled between HCSN

facilities and were sent to other fraudulent PHPs. Approximately four to six weeks

after a patient was discharged from one facility, he would be perfunctorily


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admitted at a different facility. HCSN-West contained a whiteboard with detailed

information as to when patients were discharged and how long HCSN had to wait

before readmitting them without raising regulatory suspicion.

                                 The Defendants

      Ruiz was a registered mental health intern counselor. She worked primarily

in HCSN-West’s intake department inputting patient history information after

meeting with patients and bringing patient files to the attending psychiatrist who

would design a treatment plan. She also worked briefly at HCSN-East.

      Fonts was a registered mental health counselor at HCSN-West. Initially she

had similar job responsibilities to Ruiz, but during the final months of her

employment she was the “clinical coordinator and responsible for running groups.”

Fonts was the de facto clinical director of HCSN-West during that period.

                           STANDARD OF REVIEW

      We review the sufficiency of evidence to support a conviction de novo while

viewing the evidence in the light most favorable to the jury’s verdict and resolving

all credibility evaluations in favor of the jury’s verdict. Moran, 778 F.3d at 958.

Evidentiary rulings are reviewed for an abuse of discretion.       United Sates v.

Tokars, 95 F.3d 1520, 1530 (11th Cir. 1996). Unpreserved claims are reviewed for

plain error. United States v. Olano, 507 U.S. 725, 734 (1993).




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        Claims of prosecutorial misconduct are reviewed de novo. United States v.

Merrill, 513 F.3d 1293, 1306 (11th Cir. 2008). Review of a claim of cumulative

error is de novo. United States v. Dohan, 508 F.3d 989, 993 (11th Cir. 2007).

Giving an Allen charge is reviewed for an abuse of discretion. United States v.

Woodard, 531 F.3d 1352, 1364 (11th Cir. 2008). A verdict following an Allen

charge will only be reversed when there is a finding that the charge was

“inherently coercive.” United States v. Dickerson, 248 F.3d 1036, 1050 (11th Cir.

2001).

        The fraud loss calculation is reviewed for clear error. United States v.

Barrington, 648 F.3d 1178, 1197 (11th Cir. 2011). We also review the assessment

of an aggravating role enhancement for clear error. United States v. Martinez, 584

F.3d 1022, 1025 (11th Cir. 2009).

                                    DISCUSSION

   I.      Sufficiency of the Evidence

           a. Ruiz

        Ruiz was solely charged with one count of conspiracy to commit healthcare

fraud, distinguishing her from each of her co-defendants who were also separately

indicted for substantive healthcare fraud. To obtain a conviction on a charge of

conspiracy to commit healthcare fraud in violation of 18 U.S.C. § 1349, the

government must prove beyond a reasonable doubt that: (1) a conspiracy existed;


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(2) the defendant knew of it; and (3) the defendant knowingly and voluntarily

joined it.   United States v. Vernon, 723 F.3d 1234, 1273 (11th Cir. 2013).

Conspiracy can be proven by circumstantial evidence since it is a predominantly

mental crime. See United States v. Mateos, 623 F.3d 1350, 1362 (11th Cir. 2010)

(affirming Medicare fraud convictions based on circumstantial evidence of

knowledge). The government is not required to prove that the defendant knew all

the conspiracy’s details, only its essential nature. See Moran, 778 F.3d at 960.

      There was ample testimony implicating Ruiz in the creation of false

documentation to support Medicare claims. Ruben Busquets testified generally

that a willingness to fabricate medical records was a job requirement at HCSN-

East (Ruiz worked there briefly), and John Thoen testified that those who, like

Ruiz, performed patient intake interviews were instructed to avoid using certain

“buzzwords” that might trigger regulatory scrutiny or the rejection of a claim.

Thoen also testified that Ruiz created documents for a December 2007 Medicare

review and that those documents were inaccurate. Gema Pampin testified that she

and Ruiz falsified patient intake documentation while they worked together.

Alexandra Haynes testified that when she was hired at HCSN she was instructed to

determine if documents were missing from medical files, write up those missing

documents, and then give them to another employee who worked in the same




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office as Ruiz. This creates the inference that Ruiz was aware of and supervised

this falsification of medical records for Medicare review.

        Haynes also testified regarding a meeting she had with Armando Gonzalez,

the owner of HCSN, regarding Ruiz. It had been decided that either Ruiz or

another employee needed to be fired, and Gonzalez chose to fire Ruiz since “he

knew that he could trust Blanca Ruiz to not turn him in to Medicare because she

was aware of all the fraud that had been committed, everything that [HCSN] did

wrong, and he knew that she was a good person and that she would cover for him

at the end of the day.” Ruiz did not report HCSN’s fraud to Medicare.

        During the criminal investigation, Ruiz told investigators she was aware that

HCSN paid kickbacks. At trial, the testifying agent initially said that Ruiz had told

him she was unaware of kickbacks but amended his answer after reviewing the

interview report. This awareness distinguishes Ruiz’s case from United States v.

Willner upon which she relies. 795 F.3d 1297 (11th Cir. 2015). In Willner, no

evidence was offered to show Dr. Abreu, who had her conviction for conspiracy to

commit healthcare fraud reversed, was aware kickbacks were being paid. Id. at

1309.

        Testimony tied Ruiz to the creation of documentation for the “white group”

of patients who never received treatment at HCSN. John Thoen read a document

listing Ruiz as being responsible for documentation of the “white group” and


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described her actions in that role. Another document listed Ruiz as the therapist

affiliated with the “white group” as of January 23, 2008. Names were commonly

forged and otherwise improperly signed onto documents throughout HCSN, but

this paper trail tends to show that Ruiz was involved with the fictional “white

group” of patients.

      Evidence that Ruiz was compensated for maintaining the “white group” of

non-existent patients consisted of a check made out to Ruiz’s company containing

the notation “notes.” Only four individuals received checks with “notes” in the

memo line. Two of those individuals testified that their checks were compensation

for maintaining the patient list for a non-existent group of patients at HCSN-East.

Based on that testimony, a reasonable jury could find that Ruiz too received

remuneration for maintaining a “white group” of patients who did not receive

treatment at HCSN-West. This further distinguishes Ruiz from Dr. Abreu in

Willner, where we noted the lack of evidence that she gained anything from the

conspiracy. 795 F.3d at 1310. Sufficient evidence was before the jury to convict

Ruiz of conspiracy to commit healthcare fraud.

         b. Fonts

                i. Conspiracy to Commit Healthcare Fraud

      There is also sufficient evidence to support Fonts’s conviction for

conspiracy to commit healthcare fraud. Busquets testified that Fonts needed to


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fabricate group therapy notes to keep her job. Fonts altered a patient’s prescribed

medication to hide the fact that the patient had dementia and should have been

disqualified from participating in a PHP. She was responsible for finding missing

documentation for the December 2007 Medicare review and documents were

falsified for the purpose of that review. Thoen testified that Fonts fabricated

documentation for the “white group” of fictional patients. Thoen also testified that

there were no patients at HCSN-West facility during his visits while Fonts served

as de facto clinical director, suggesting that every patient listed as receiving

treatment at HCSN-West during early 2009 was part of the fictitious “white

group.” Fonts, like Ruiz, received checks containing the word “notes” in the

memo line written out to her as payee, creating the same reasonable inference that

Fonts received additional compensation for managing the “white group” patients.

Lisset Palmero, an office manager at HCSN-East, testified that Fonts managed the

billing spreadsheet at HCSN-West tracking kickbacks. Fonts had her own parents

admitted to HCSN in order to receive a referral kickback.

      Fonts also persuaded ownership to hire her son (“Wilson”) to assist her in

drafting fabricated therapy notes to be used by the HCSN facility in North

Carolina. Fonts and Wilson faxed fraudulent notes to the North Carolina facility to

be placed in patient files when workers in the North Carolina facility refused to




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create false documentation. The evidence was sufficient to find Fonts guilty of

conspiracy to commit healthcare fraud.

               ii. Substantive Healthcare Fraud

      Fonts also challenges the sufficiency of the evidence supporting her

convictions on two counts of substantive healthcare fraud under 18 U.S.C. § 1347.

A defendant violates § 1347 if she “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.” 18 U.S.C. § 1347. The specific

allegations were that Fonts submitted false and fraudulent Medicare and Medicaid

claims seeking reimbursement of $225 on each claim for treatment not provided to

the two listed beneficiaries. These claims were based on group therapy notes from

March and April 2009.

      Fonts’s claim is that her signature was forged onto the group therapy notes

underlying the specific Medicare claims. There was testimony that signatures were

commonly forged at HCSN, but we need not ultimately consider whether a

reasonable jury could have found that the purported signatures were actually hers.

Under a Pinkerton theory of liability, the jury could have convicted Fonts for a


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reasonably foreseeable crime committed during and in furtherance of the

conspiracy of which she was a part. See Moran, 778 F.3d at 961. We affirm her

conviction on this basis. Fonts was not only a member of the HCSN conspiracy

but acted in a supervisory role overseeing the creation of fraudulent medical

records seeking Medicare reimbursement. Since a significant aspect of the fraud

was the creation of fraudulent medical records, it was foreseeable that those

records would be submitted to Medicare in furtherance of the conspiracy’s aim to

bilk Medicare of funds.

   II.     Trial Proceedings

         Both Ruiz and Fonts challenge a series of trial rulings. None of these

challenges or their cumulative effect necessitates reversal for new trials.

            a. Ruiz

         Ruiz claims five errors cumulatively rendered her trial constitutionally

defective. Her first challenge is to the admission in evidence of Medicare rules,

guidelines, and ethical standards and to jury instructions allowing their

consideration.    The Medicare rules were admitted through the testimony of

Rebekah Paone, a government witness who investigated Medicare fraud at HCSN

for a private company. She testified that during her review she viewed local

coverage determinations (“LCDs”), which are state-specific criteria for Medicare

reimbursement. Over defense objection, the district court admitted in evidence


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Florida’s LCDs for PHPs and contemporaneously instructed the jury that any

violation of the standards listed in the LCDs is not a crime but “may be relevant in

determining whether a defendant acted with criminal intent, that is, knowingly,

willfully, and with intent to defraud Medicare.” The same instruction regarding

LCDs was repeated during the jury charge.

      Ruiz challenges the admission of the LCDs on two bases. The first basis is a

lack of testimony that Ruiz knew of or received any training regarding Medicare

rules and a lack of testimony that she was even aware of the LCDs. The lack of

testimony that Ruiz was trained in the LCD standards does not rebut their

relevance as evidence through providing background information on Medicare

coverage of PHPs. See Willner, 795 F.3d at 1302. She asserts that the government

introduced the LCDs in order to lower the burden of proof needed to obtain a

conviction against her, but the court’s limiting instruction sufficiently addressed

that concern. The court made clear that a violation of the LCD standards was not

evidence of a criminal act and that the evidence could only be considered for its

possible relevance in determining mens rea. Juries are presumed to follow court

instructions, United States v. Stone, 9 F.3d 934, 938 (11th Cir. 1993), and there is

no reason to believe that the jury failed to do so here. Ruiz’s second basis for

challenging the admission of the LCDs is that those admitted in evidence contained

effective dates “until February 2009” and “as of 2010” while Ruiz left HCSN in


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2008. Since the LCDs were only offered for background information and were not

the standard against which Ruiz’s conduct was judged in determining criminal

liability, this is insufficient to find the district court abused its discretion by

admitting the evidence.

      Ruiz’s second challenge involves Brady, the Jencks Act, and handwritten

notes regarding Ruiz’s interview with the FBI where she admitted awareness of

kickbacks. The court reviewed the handwritten notes in camera and concluded

that they were not Brady material. Inculpatory information is not subject to Brady

disclosure, see, e.g., United States v. Jordan, 316 F.3d 1215, 1251-52 (11th Cir.

2003), and Ruiz’s awareness of kickbacks was inculpatory information. Rough

drafts or preparatory notes fall outside the Jencks Act when the government agent

prepares and discloses the report forming the basis of the agent’s testimony. See

United States v. Soto, 711 F.2d 1558, 1562 (11th Cir. 1983). Here, the final report

was properly disclosed so no error occurred.

      Ruiz’s third claim of error focuses on the testimony and questioning of FBI

Special Agent Cox. The prosecutor asked Cox whether it was unusual in his

experience that someone would confess to knowing that kickbacks were being paid

at their workplace. Defense counsel successfully objected to the question before it

was answered, but Ruiz claims asking the question ran afoul of our holding in

United States v. Sorondo.     845 F.2d 945 (11th Cir. 1988).      In Sorondo, we


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overturned a conviction where the government introduced evidence on rebuttal that

an informant who testified during the government’s case-in-chief had provided

information leading to over one hundred convictions.             Id. at 949-50.   We

determined that this created an improper risk that the jury credited the informant’s

testimony on the basis of those other convictions and so based its decision on

something not in evidence.      Ibid.   This case, where there was no testimony

regarding other prosecutions and the court sustained an objection to the question, is

entirely unlike Sorondo. The objection was sustained, and the prosecutor asking

the question does not necessitate reversing Ruiz’s conviction.

      Ruiz’s fourth claim of error is that her ability to present an effective closing

argument was impaired by the court’s instruction that closing arguments be limited

to just “the evidence and any reasonable inferences from the evidence.” This

instruction to counsel was not in error (much less plain error), as evidenced by the

cases Ruiz cites in her brief. In each of those cases, we made clear that closing

arguments must relate to the evidence adduced at trial. See, e.g., United States v.

Bailey, 123 F.3d 1381, 1400 (11th Cir. 1997) (holding there is no prohibition on

colorful and flamboyant remarks so long as they relate to the evidence adduced at

trial). That is exactly what the district court required here. It is also unclear from

Ruiz’s briefing what counsel would have said in closing argument had the court




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not given its instruction.      Even after the instruction, counsel equated the

government’s witnesses with cockroaches.

      Ruiz’s final claim challenges the court’s initial refusal to grant an Allen

charge as to the conspiracy charge and then later giving an Allen charge as to the

other charges. Ruiz argues that this combination of rulings confused and coerced

the jury. After deliberating for over two days, the jury told the court it could not

reach a unanimous verdict on the conspiracy count. Defendants moved for an

Allen charge, but the court declined. Instead, the district court instructed the jury

to consider the substantive counts and then return to the conspiracy count. When

the jury returned another note three hours later saying it was deadlocked as to some

of the substantive counts, the court gave a modified Allen charge taken from

pattern jury instructions.    The court orally prefaced its instruction with an

admonition thanking the jury for paying attention to the evidence during the

lengthy trial and telling them “please don’t feel like I’m pressuring you and forcing

you to go back there and do something that’s against your conscience.” After

another hour and a half, the jury returned its verdicts.

      While there is no bright-line requirement for how long a jury must deliberate

before an Allen charge is appropriate, United States v. Bush, 727 F.3d 1308, 1320-

21 (11th Cir. 2013), the jury was in its third day of deliberations when the Allen

charge was given. The court used the pattern jury instruction and prefaced the


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instruction saying the purpose of the instruction was not to apply pressure to reach

a verdict quickly. The jury did not return a verdict as to all defendants even after

receiving the Allen charge, so the jury was not intimidated or coerced into reaching

a guilty verdict against Ruiz. The district court did not abuse its discretion in

either denying the request for an Allen charge after the jury returned its first note or

in giving an Allen charge after the jury returned its second note.

          b. Fonts

      Three of Fonts’s challenges to trial rulings mirror claims made by Ruiz.

Fonts contests the district court’s limiting the scope of closing argument, alleges

prosecutorial misconduct through vouching for FBI Special Agent Cox and

inflaming the passions of the jury, and challenges the district court’s rulings first

denying then giving a modified Allen charge. We reject Fonts’s challenges for the

same reasons we reject Ruiz’s identical challenges. Fonts also asserted that the

issuance of a deliberate ignorance instruction added to the jury’s confusion, but a

single-sentence argument is considered waived. See Zhou Hua Zhu v. U.S. Att’y.

Gen., 703 F.3d 1303, 1316 n.3 (11th Cir. 2013).

      Fonts also raises two additional claims of trial error. Her first additional

claim of error is that the government intimidated Alina Feas, another employee at

HCSN called by another defendant as a witness. Feas pleaded guilty to charges in

connection with the fraud at HCSN, but then filed a motion to withdraw her plea


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claiming ineffective assistance of counsel under 28 U.S.C. § 2255. When the

government learned that defendant Rousseau planned to call Feas as a witness, the

government contacted the attorney that filed Feas’s § 2255 motion. There is some

dispute as to the manner and tone of voice used during that conversation, but it is

clear that the prosecutor conveyed that Feas could commit perjury if she testified

on behalf of the defense and that Feas stated she was afraid as a result of the

communication. The district court conducted a hearing the day before Feas was

scheduled to testify during which she admitted to perjuring herself during her prior

plea colloquy, and on that basis the court determined there was no legal basis for

declining to testify. The following day, Feas testified in general accord with what

she had told the court the day prior, including saying she had perjured herself

during her plea colloquy.

      While reversal is necessary when the government substantially interferes

with a defense witness’s “free and unhampered choice” to testify, United States v.

Terzado-Madruga, 897 F.2d 1099, 1108 (11th Cir. 1990), that did not occur here.

Fatal to Fonts’s claim is that she cites no authority suggesting a constitutional

violation can occur when the witness testifies. Further, but not necessary to our

holding, Feas was called as a witness by another defendant and so it is not certain

that Fonts’s ability to present her defense was prejudiced. Since Feas admitted to

perjuring herself, it was acceptable for the government to notify Feas’s counsel that


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she could face prosecution even if the manner of notification could have been more

effective (such as notifying the court). A subjective state of fear in relation to

giving testimony in open court is insufficient for a finding that a constitutional

violation occurred. Since Feas testified and did so in accordance with the proposed

testimony she gave at a hearing the day before, the government did not

substantially interfere with Fonts’s ability to present her defense. Fonts’s assertion

that the government’s actions affected Feas’s demeanor and the strength of her

testimony is also insufficient to necessitate reversal as the strength of a witness’s

testimony is not the focus of our substantial interference inquiry.

      Fonts asserts that the admission of testimony that she had her parents who

did not medically qualify for PHP treatment admitted to HCSN for the purpose of a

kickback was in error since she was not charged with soliciting kickbacks.

Applying a Federal Rule of Evidence (“Rule”) 404(b) framework, Fonts challenges

the relevance of the evidence to a proper purpose and the sufficiency of the

evidence presented to prove the bad act occurred, argues that the evidence was

unfairly prejudicial, and asserts that it was not intrinsic to the conspiracy offense.

The evidence was admitted by the district court not under Rule 404(b) but instead

as intrinsic to the charged conspiracy. For evidence to be admissible as intrinsic to

the offense, it must be “(1) an uncharged offense which arose out of the same

transaction or series of transactions as the charged offenses, (2) necessary to


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complete the story of the crime, or (3) inextricably intertwined with the evidence

regarding the charged offenses.” United States v. Ford, 784 F.3d 1386, 1393 (11th

Cir. 2015) (citation and alterations omitted). Fonts was charged with fabricating

and falsifying medical records to reflect treatment services which were not

provided to patients at HCSN facilities. Testimony that Fonts had her parents

admitted to HCSN so that she would receive a kickback is “inextricably

intertwined” with the charged healthcare fraud conspiracy whose purpose was to

bill Medicare for unnecessary and nonexistent treatments. Since the evidence was

properly admitted as intrinsic to the charged conspiracy, analysis under Rule

404(b) is unnecessary.

   III.   Sentencing Proceedings

      For Ruiz, the district court calculated a final offense level of 30 and a

criminal history category of I, giving her a guidelines sentencing range of 97-120

months. For Fonts, the district court calculated a final offense level of 32 after

imposing a two-level leadership enhancement and a criminal history category of I,

giving her a guidelines sentencing range of 121-151 months. Both were sentenced

to seventy-two-month terms of imprisonment followed by three years of

supervised release and ordered to pay restitution exceeding $10 million. Both

challenge the district court’s loss calculation, and Fonts separately challenges her

leadership enhancement.


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      The challenges to the loss calculation are based on attribution.       Ruiz’s

guidelines sentencing range was calculated using a loss amount of $22,589,625 and

Fonts’s guidelines sentencing range was calculated using a loss amount of

$26,742,075. Both result in a 22-level increase as the loss amount attributed to

each was greater than $20 million. If the loss amount had been more than $7

million but less than $20 million, then a 20-level increase would have been applied

instead.

      Defendants can be held accountable both for losses they intended to inflict

and for losses stemming from the reasonably foreseeable acts of co-conspirators

done in furtherance of the conspiracy.       Moran, 778 F.3d at 973-74.         The

government must prove the attributable loss by a preponderance of the evidence

using reliable and specific evidence. United States v. Dabbs, 134 F.3d 1071, 1081

(11th Cir. 1998). When determining loss amount, a district court is required to

make only a reasonable and not a precise determination since the amount of loss

caused by fraud is often difficult to calculate with absolute precision. United

States v. Miller, 188 F.3d 1312, 1317 (11th Cir. 1999).

      The district court did not clearly err in its loss determinations. The amounts

attributed to both Ruiz and Fonts were based on trial evidence of the amounts

billed to Medicare by HCSN while each was employed there, specifically four

exhibits containing all Medicare billings submitted during their employment. The


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court gave defense counsel the opportunity to re-review those exhibits and submit

any specific objections, but the defendants raised none. We also note that neither

Ruiz nor Fonts has showed that her sentencing outcome would have been different

under the lower loss calculation amount they seek. Even reducing their guidelines

sentencing ranges by two levels, Ruiz would have faced a guidelines sentencing

range of 78-97 months and Fonts a range of 97-121 months. Both women were

sentenced to seventy-two-month terms of imprisonment, so their sentences would

still have been below the guidelines range. This means Ruiz and Fonts cannot

show prejudice.

      Fonts also challenges the imposition of a two-level leadership enhancement

or in the alternative a special skills enhancement. To apply a two-level leadership

enhancement, the government must prove by a preponderance of the evidence that

Fonts exercised authority over at least one person. United States v. Perry, 340

F.3d 1216, 1217 (11th Cir. 2003) (per curiam). Fonts only contests the supervision

prong.   There was testimony that Fonts was the clinical director supervising

employees at HCSN-West during the first half of 2009 and that she supervised her

son in the falsification of therapy notes for use by the North Carolina facility.

Fonts relies on her lack of a license to interact with patients without supervision,

but this does not rebut the evidence that Fonts supervised the production of




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fraudulent therapy notes by her son and so does not show the district court clearly

erred by imposing the two-level leadership enhancement.

      AFFIRMED.




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