                   Case: 13-10821        Date Filed: 07/03/2014       Page: 1 of 7



                                                                           [DO NOT PUBLISH]


                     IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________

                                        No. 13-10821
                                  ________________________

                            D.C. Docket No. 1:12-cr-20265-DMM-7


UNITED STATES OF AMERICA,
                                                                               Plaintiff-Appellee,
                                                versus

MARIANELA TERRERO,
DAYMI FUENTES GIL,
OLGA MARTINEZ RODRIGUEZ,
JOEL LOYOLA,

                                                                         Defendants-Appellants.
                                  ________________________

                         Appeals from the United States District Court
                             for the Southern District of Florida
                                ________________________
                                            (July 3, 2014)
Before HULL, BLACK and FARRIS,* Circuit Judges.

PER CURIAM:


*
    Hon. Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by designation.
              Case: 13-10821     Date Filed: 07/03/2014   Page: 2 of 7


      The Defendants were involved in a scheme in which a home healthcare

company, Superstar, would pay for them 1) to receive Medicare payments for care

provided by Superstar or 2) to refer other patients for Superstar’s services. The

Defendants were charged with substantive violations of the Anti-Kickback Statute,

42 U.S.C. §§ 1320a-7b(b)(1)(A), (1)(B), (2)(B), and conspiracy,18 U.S.C. § 371.

A jury found the Defendants guilty on all counts. The district court sentenced

Defendant Terrero to 16 months incarceration, three years of supervised release,

and $24,447.80 in restitution. Defendant Fuentes-Gil was sentenced to 15 months

incarceration and three years of supervised release, and $31,702.62 in restitution.

Defendant Martinez was sentenced to 15 months incarceration and three years of

supervised release, and $31,702.62 in restitution. Defendant Loyola was sentenced

to 24 months incarceration and three years of supervised release, and $14,988.04

in restitution. The Defendants appeal their convictions and sentences. This Court

has jurisdiction under 28 U.S.C. § 1291.

      I. Sufficiency of the Evidence

      The evidence was sufficient to support all convictions. A jury verdict will

only be overturned on the basis of evidentiary insufficiency if no reasonable juror

could have found the defendant guilty beyond a reasonable doubt. United States v.

Vernon, 723 F.3d 1234, 1266 (11th Cir. 2013). Here there was sufficient evidence

                                           2
              Case: 13-10821     Date Filed: 07/03/2014   Page: 3 of 7


showing that the defendants acted “voluntarily and purposely, with the specific

intent to do something the law forbids….” Vernon, 723 F.3d at 1256. There is

testimony that Terrero showed up to the Superstar office and threatened to call

Medicare and the police if she did not receive payment for her referrals. There is

evidence that Martinez and Fuentes-Gil, after learning that their legitimate

rheumatologist would not certify them as homebound, then went to a podiatrist in

order to get certification and receive a $900 kickback from Superstar. On the

record, a reasonable jury could conclude that the Defendants acted with

knowledge of the illegality of their conduct.

      Martinez also argues separately that the evidence was insufficient to support

her conspiracy charge, as she was not aware of the other kickbacks taking place.

For the conspiracy charge to be upheld, there must be evidence of knowledge of

agreement to an unlawful plan. United States v. Chandler, 388 F.3d 796, 806 (11th

Cir. 2004). Here, Martinez went beyond merely receiving her own kickback. She

attempted to recruit a new Medicare beneficiary to include in the Superstar scheme

(Barbara). A reasonable jury could properly find knowledge of the larger scheme.




                                         3
              Case: 13-10821     Date Filed: 07/03/2014   Page: 4 of 7


      Loyola attempts to incorporate these evidentiary sufficiency challenges as

his own, but evidentiary sufficiency claims cannot be adopted. United States v.

Cooper, 203 F.3d 1279, 1285 n.4 (11th Cir. 2000).

      II. Expert Testimony

      It was not error for the district court to admit the expert testimony of nurse

Gale Meade, including her opinion that Martinez was not homebound under the

Medicare statute. District courts’ evidentiary rulings are reviewed for abuse of

discretion. United States v. Stephens, 365 F.3d 967, 973-74 (11th Cir. 2004).

Evidence must be relevant, FED. R. EVID. 401(a)(b), but even relevant evidence

may be excluded if its probative value is substantially outweighed by a danger of

unfair prejudice, confusing the issues, or misleading the jury. FED. R. EVID. 403.

      Expert testimony as to the homebound status of Martinez was relevant to the

Anti-Kickback prosecution: if it were true that Martinez should not have been

certified as “homebound,” one could reasonably conclude that the payments she

received were functioning as “kickbacks.”

      This testimony did not violate Rule 403. While it could be argued that

Mead’s testimony focused the jury’s attention towards something more relevant to

a Medicare fraud prosecution, “homebound” status was also relevant for the Anti-




                                          4
              Case: 13-10821     Date Filed: 07/03/2014    Page: 5 of 7


Kickback case. The probability of confusion is not sufficient to warrant exclusion

of the testimony.

      III. Jury Instructions

      The district court did not err in refusing to grant a requested jury instruction

on the law of multiple conspiracies. A district court’s refusal to grant a requested

jury instruction is reviewed for abuse of discretion. A refusal to grant an

instruction on multiple conspiracies will only result in reversal if the record

reflects a factual basis for a finding of multiple conspiracies. United States v. Orr,

825 F.2d 1537, 1542-43 (11th Cir. 1987). The fact that the patients only dealt

directly with Superstar employees and did not know the specific identities of other

patients does not convert the single conspiracy into many. Id. There is no evidence

of separate networks operating independently of the central Superstar core. Id.

There is evidence that the Defendants knew that other people were receiving

kickbacks—all acted as recruiters for other patients, even when they were patients

themselves.

      IV. Sentencing Issues

      The record reflects no sentencing error. Questions of law regarding the

Sentencing Guidelines are reviewed de novo, United States v. Huff, 609 F.3d




                                           5
              Case: 13-10821     Date Filed: 07/03/2014    Page: 6 of 7


1240, 1245 (11th Cir. 2010), while factual findings are reviewed for clear error.

United States v. Bane, 720 F.3d 818, 827 (11th Cir. 2013).

      The district court did not err in determining the offense level. U.S.S.G. §

2B4.1 directs that the total offense level will be determined by the greater of the

“value of the bribe or the improper benefit to be conferred.” Huff, 609 F.3d at

1245. The “improper benefit” to be conferred is not, as the Defendants urge, the

same as the kickback or the bribe: it “refers to the value of the action to be taken

or effected in return for the bribe.” U.S.S.G. § 2B4.1, cmt. 2; see also Huff, 609

F.3d at 1245 (explicitly equating “bribe” with kickback). On this record, that was

the value of the Medicare payments used by Superstar to treat patients.

      It was not error to fail to credit allegedly medically necessary payments

when determining the value of the improper benefit conferred. The Defendants can

point to no authority that dictates that otherwise legitimate payments can offset

such a value. While the Defendants argue that medically necessary payments

cannot be “improper,” the impropriety comes from the illegitimacy of the means

by which the payments were procured: a kickback.

      Medical necessity is relevant for the determination of the amount of

restitution, since restitution is based on actual “loss.” Huff, 609 F.3d at 1247; see

Bane, 720 F.3d at 828 (citing United States v. Vaghela, 169 F.3d 729, 736 (11th

                                           6
              Case: 13-10821     Date Filed: 07/03/2014    Page: 7 of 7


Cir. 1999)). The district court found as a fact that all but one of the Defendants’

treatments were medically unnecessary. The efforts undertaken by the Defendants

to circumvent the normal procedures for receiving “homebound” certification

support such a finding. The district court made no such finding with respect to

Loyola, who failed to make a medical necessity argument to the sentencing judge.

A plain error review reveals nothing in the record to suggest that Loyola’s

treatments were medically necessary. United States v. Rodriguez, 398 F.3d 1291,

1299 (11th Cir. 2005).

      We reject Martinez and Fuentes-Gil’s argument that the district court should

not have combined the amount of the improper benefits attributed to each.

U.S.S.G. § 1B1.3 provides that the foreseeable harm of co-conspirators may be

attributed to other members of the conspiracy. The two women lived together and

both were present during the conspiratorial discussions. The improper benefit that

each received was foreseeable to the other.

AFFIRMED.




                                          7
