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                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-11171
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:18-cr-20615-MGC-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

LOUIS ROBAINA,

                                                         Defendant-Appellant.
                      ________________________

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

                             (May 28, 2020)

Before ROSENBAUM, BRANCH and BLACK, Circuit Judges.

PER CURIAM:
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      Louis Robaina appeals following his conviction for one count of conspiring

to commit health care fraud and wire fraud and two counts of money laundering,

and his 85-month total sentence. The charges arose out of Robaina’s involvement

in a scheme to fraudulently obtain kickbacks and reimbursements from Blue Cross

Blue Shield of Florida (BCBS-FL) via two Florida corporations: Culumbia Rehab

Medical Center Corporation (Culumbia) and Esmeralda Medical Center

Corporation (Esmeralda Medical). The indictment alleged Robaina, the registered

agent and President of Culumbia, conspired with Ibelis Hernandez, the registered

agent and President of Esmeralda Medical, and others to defraud BCBS-FL by

paying kickbacks to patient recruiters who referred patients to Culumbia and

Esmeralda Medical for health care services that were never provided and then

submitting the fraudulent claims to BCBS-FL for reimbursement.

      On appeal, Robaina raises three issues. First, Robaina argues the district

court erroneously admitted extrinsic other acts evidence under Federal Rule of

Evidence 404(b). Second, he contends the district court erred by failing to give a

curative instruction following the prosecutor’s improper statements during closing

arguments. Lastly, Robaina argues the district court erred in calculating his

guideline range because it improperly (1) determined the amount of loss for which

he was responsible, (2) imposed an aggravating role enhancement, and

(3) enhanced his offense level for obstruction of justice.


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       After review, we affirm.

                               I. RULE 404(b) EVIDENCE

       Robaina first challenges the district court’s admission of other acts evidence

that he insists constituted impermissible propensity evidence. Prior to trial, the

government filed a notice of intent to introduce evidence that Robaina previously

owned and (along with Hernandez) operated Staffing Solutions and More (Staffing

Solutions), a staffing company that purported to provide licensed physical

therapists to HHAs when, in reality, it sent unlicensed therapists to visit patients

and obtain their signatures on medical documents. The court ruled that the

evidence would not be admitted generally, but would be admissible if Robaina

“opened the door” in some way. At trial Robaina testified in his own defense and,

on cross-examination, claimed he had no knowledge that Hernandez had engaged

in any fraudulent conduct while working at Staffing Solutions. At that point, the

Staffing Solutions evidence was admitted, and Robaina did not object.

       The district court did not err in admitting the Staffing Solutions evidence.1

While evidence of uncharged, criminal activities generally is considered


       1
          The parties dispute the standard of review we should apply to the admission of this
evidence. Ordinarily, a district court’s evidentiary rulings are reviewed for an abuse of
discretion. United States v. Flanders, 752 F.3d 1317, 1334 (11th Cir. 2014). If, however, a party
fails to preserve an evidentiary objection through contemporaneous objections, we review only
for plain error. United States v. Turner, 474 F.3d 1265, 1275 (11th Cir. 2007); see also United
States v. Wilson, 788 F.3d 1298, 1313 (11th Cir. 2015). The government argues we should apply
plain-error review, as Robaina did not offer a contemporaneous objection when the evidence was
admitted at trial, though he did contest the government’s initial notice of intent to introduce the
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inadmissible, extrinsic evidence under Rule 404, intrinsic evidence is admissible if

it is “(1) an uncharged offense which arose out of the same transaction or series of

transactions as the charged offense, (2) necessary to complete the story of the

crime, or (3) inextricably intertwined with the evidence regarding the charged

offense.” United States v. McLean, 138 F.3d 1398, 1403 (11th Cir. 1998).

       The Staffing Solutions evidence falls into the third category and thus was

not subject to exclusion under Rule 404(b). This Court addressed a similar issue in

United States v. Nerey, 877 F.3d 956 (11th Cir. 2017). There, the defendant was

charged with various crimes related to his role as a patient recruiter and his receipt

of kickbacks in a complex healthcare fraud scheme. 877 F.3d at 962. We held the

district court did not err in admitting evidence of the defendant’s involvement with

other HHAs because it was inextricably intertwined with, and probative of, how

the defendant became familiar with the HHAs involved in the charges against him,

and the evidence explained the full extent of his relationship with other

co-conspirators. Id. at 975, 977.

       Similarly, here, Robaina’s involvement with Staffing Solutions provided

necessary background information concerning how he came to work with

Hernandez and how he came to operate the clinics that engaged in the fraudulent




evidence. We need not resolve this dispute here, however, as we affirm the district court’s
evidentiary ruling even under an abuse of discretion standard of review.
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activity at issue. His involvement with Staffing Solutions was temporally and

circumstantially related to his charged offenses because he incorporated Staffing

Solutions four years before he incorporated Culumbia, both companies committed

similar fraudulent activities involving the purported provision of medical treatment

to health care beneficiaries, and he and Hernandez were significant actors in both

companies. See United States v. Williford, 764 F.2d 1493, 1499 (11th Cir.

1985) (“Evidence, not part of the crime charged but pertaining to the chain of

events explaining the context, motive and set-up of the crime, is properly admitted

if linked in time and circumstances with the charged crime, or forms an integral

and natural part of an account of the crime, or is necessary to complete the story of

the crime for the jury.”).

      Moreover, even assuming the evidence were extrinsic, it would still have

been admissible under Rule 404(b). Extrinsic evidence of uncharged conduct is

admissible under Rule 404(b) for non-propensity purposes, “such as proving

motive, opportunity, intent, preparation, plan, knowledge, identity, absence of

mistake, or lack of accident.” Fed. R. Evid. 404(b)(2); see United States v.

Lehder-Rivas, 955 F.2d 1510, 1515-16 (11th Cir. 1992). Here, Robaina claimed

that he did not know that Hernandez had participated in other fraudulent schemes

and did not know that she was committing fraud through Culumbia, and his

involvement with her in a prior insurance fraud scheme was admissible to show


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that his acts were without mistake and with the intent to defraud health care

companies. Accordingly, we affirm as to this issue.

                       II. PROSECUTOR’S STATEMENTS

      Robaina next challenges the district court’s failure to issue a curative

instruction following two statements during the prosecutor’s closing argument.

The first concerned Robaina’s contention he did not commit fraud because he used

all the cash he withdrew from Culumbia’s accounts to purchase new equipment for

the clinic. The prosecutor asked the jury whether they “actually believe that

[Robaina] spent $195,000 on all of this [new equipment], and, yet, there is not a

single record?” Robaina objected that this impermissibly shifted the burden to him

to produce exculpatory evidence. The second statement was in response to

Robaina’s testimony that he trusted Hernandez. The prosecutor stated that “[s]he

might be one of the last people in Miami-Dade County that I would have trusted

with giving the keys to my business to, one of the absolute last people.” Robaina

objected that in making the statement, the government had impermissibly offered

its opinion of a witness.

      The district court overruled the objections. As to the first statement, the

district court found it did not impermissibly shift the burden because Robaina had

been the one who had “brought in” the issue by testifying he had used the money

he withdrew to purchase new equipment. As to the second statement, the district


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court acknowledged it may have been improper, but found it unlikely the comment

“would have influenced the outcome” as it was such a “de minimis” part of the

prosecutor’s overall closing argument. The district court further noted it had

cautioned the jury through the trial that the arguments of counsel are not evidence.

       The district court did not err in failing to give a curative instruction

following the prosecutor’s statements during closing argument. 2 Prosecutorial

misconduct during closing arguments, such as an improper burden-shifting

argument, requires a new trial only where (1) the prosecutor’s remarks were

improper, and (2) the remarks prejudicially affected the defendant’s substantial

rights. Nerey, 877 F.3d at 970. The second prong of the test is met where there is

a reasonable probability that, but for the improper statements, the outcome of the

case would have been different. Id.

       The challenged remarks here were not improper because they merely urged

the jury to draw reasonable inferences from the evidence presented at trial. See

United States v. Reeves, 742 F.3d 487, 505 (11th Cir. 2014) (“The purpose of

closing argument is to assist the jury in analyzing the evidence, and although a

prosecutor may not exceed the evidence presented at trial during her closing

argument, she may state conclusions drawn from the trial evidence.”).



       2
         We review determinations regarding prosecutorial misconduct de novo. Nerey, 877
F.3d at 969.
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         Moreover, even assuming the statements were improper, they did not affect

Robaina’s substantial rights. See Nerey, 877 F.3d at 970. That is, there is no

reasonable probability the prosecutor’s statements affected the outcome of the trial.

The jury had before it ample evidence from which it could have drawn the

conclusions the prosecutor was urging. And, importantly, although the district

court did not offer a specific curative instruction, it did instruct the jury that (1) the

law did not require Robaina to produce any evidence, and (2) the lawyers’

statements were not evidence. Robaina has therefore failed to show the

prosecutor’s statements, even if improper, require reversal. Accordingly, we

affirm as to this issue.

                                III. SENTENCING ISSUES

         Finally, Robaina challenges three aspects of the district court’s application

of the Sentencing Guidelines: (1) the loss amount for which he was held

responsible; (2) its imposition of an aggravating-role enhancement; and (3) its

imposition of an obstruction-of-justice enhancement. We address each issue in

turn.3




         3
          This Court reviews de novo the district court's interpretation of the guidelines and its
application of guidelines to the facts. Findings of fact by the trial court at sentencing, however,
are reviewed for only clear error. United States v. Medina, 485 F.3d 1291, 1297, 1303 (11th Cir.
2007) (loss amount); United States v. Shabazz, 887 F.3d 1204, 1222 (11th Cir. 2018)
(aggravating role); United States v. Singh, 291 F.3d 756, 763 (11th Cir. 2002) (obstruction of
justice).
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      A. Loss Amount

      Robaina argues the district court improperly included claims filed by

Esmeralda Medical (of which Hernandez was the registered agent and President) in

the loss amount. According to Robaina, only the claims filed by Culumbia should

have been used to calculate the loss attributable to him.

      In kickback cases such as this one, the base offense level should be

increased, under § 2B1.1, “[i]f the greater of the value of the bribe or the benefit

conferred . . . exceeded $6,500.” U.S.S.G. § 2B4.1(b)(1)(B). The “value of the

improper benefit conferred” refers to “the value of the action to be taken or

effected in return for the bribe.” Id. § 2B4.1 comment. (n.2). Where the criminal

activity is jointly undertaken, “the relevant conduct includes acts and omissions of

others that were (1) within the scope of the jointly undertaken criminal activity, (2)

in furtherance of that criminal activity, and (3) reasonably foreseeable in

connection with that criminal activity.” Nerey, 877 F.3d at 978.

      The district court here did not clearly err in calculating the amount of loss

for which Robaina was responsible. While Robaina may, on paper, have been

involved only with Culumbia, the losses resulting from the fraudulent claims filed

by Esmeralda Medical were nonetheless foreseeable in connection with the

conspiracy. See id. at 978. The evidence at trial showed that (1) Robaina and

Hernandez conspired together to file fraudulent healthcare claims, (2) Culumbia


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and Esmeralda Medical occupied the same office space, (3) Robaina regularly

visited both clinics, (4) Hernandez testified she and Robaina operated the clinics

together, (5) Culumbia and Esmeralda Medical shared the same assistant (who

Robaina paid), and (6) the clinics paid kickbacks to the same recruiters.

      Given this evidence, we cannot say it was clear error for the district court to

include fraudulent claims filed by Esmeralda Medical in the loss amount

attributable to Robaina.

      B. Aggravating Role

      Robaina next contends the district court improperly imposed an

enhancement based on its finding he was an organizer or leader of the conspiracy.

He insists there was no evidence he directed the recruiters, billers, doctors, or

therapists.

      Section 3B1.1 of the United States Sentencing Guidelines calls for a

four-level enhancement in a defendant’s base offense level if he was an organizer

or leader of a criminal activity that involved either five or more participants or was

otherwise extensive. U.S.S.G. § 3B1.1(a). To establish a defendant acted as an

organizer or leader, “section 3B1.1 requires the exercise of some authority in the

organization, the exertion of some degree of control, influence, or leadership.”

United States v. Martinez, 584 F.3d 1022, 1026 (11th Cir. 2009) (quotation marks




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and alterations omitted). In assessing whether a defendant was an organizer or

leader, we consider the following factors:

      (1) the exercise of decision making authority, (2) the nature of
      participation in the commission of the offense, (3) the recruitment of
      accomplices, (4) the claimed right to a larger share of the fruits of the
      crime, (5) the degree of participation in planning or organizing the
      offense, (6) the nature and scope of the illegal activity, and (7) the
      degree of control and authority exercised over others.

Shabazz, 887 F.3d at 1222.

      Here, the district court did not err in determining that Robaina was an

organizer or leader. The evidence showed that he incorporated Culumbia and was

its registered agent and President. It further showed Robaina made the decision to

pay one of the patient recruiters as a “consultant” for Culumbia, signed the

recruiter’s checks (as the sole signatory on Culumbia’s bank account) and

instructed that the recruiter be paid in laundered funds. This provided a sufficient

basis for the district court to find Robaina exercised significant decision-making

authority, and the court did not err in increasing his base offense level based on his

role in the conspiracy.

      C. Obstruction of Justice

      Robaina’s last objection to the district court’s guidelines calculation

concerns the court’s imposition of an enhancement for obstruction of justice. The

district court found Robaina’s trial testimony “went beyond . . . merely justifying



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his behavior” and “showed a consistent and calculated effort to misrepresent his

behavior and his role in the offense.”

      The Guidelines provide that a defendant’s offense level can be enhanced by

two levels if he willfully obstructed or impeded a prosecution and his obstructive

conduct related to his offense of conviction. U.S.S.G. § 3C1.1. A defendant

obstructs justice when he commits perjury, which is “false testimony concerning a

material matter with the willful intent to provide false testimony, rather than as a

result of confusion, mistake, or faulty memory.” United States v. Duperval, 777

F.3d 1324, 1337 (11th Cir. 2015) (quotation marks omitted). Testimony is

material where, if believed, it would tend to influence or affect the issue under

determination. U.S.S.G. § 3C1.1, comment (n. 6). Typically, material testimony

goes to the issue of a defendant’s guilt. See United States v. McKinley, 732 F.3d

1291, 1297–98 (11th Cir. 2013).

      Here, the district court did not err in determining Robaina obstructed the

prosecution of his case by providing deliberately misleading testimony. At trial,

Robaina represented that: (1) he was not aware of any fraud occurring at

Culumbia; (2) he rarely went to visit Culumbia’s and Esmeralda Medical’s offices;

(3) he did not pay recruiters to bring patients to Culumbia; and (4) he did not know

Culumbia’s patients were not receiving treatments. Those representations were

directly contradicted by the testimony of other participants in the conspiracy,


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including Hernandez. And the representations were unquestionably material, as

they went to the core issue of his guilt: whether he conspired to commit healthcare

fraud. See id. at 1297–98.

      Accordingly, we affirm the district court’s guidelines calculation and the

resultant sentence the court imposed.

                               IV. CONCLUSION

      For the reasons discussed above, we affirm Robaina’s convictions and

sentences.

      AFFIRMED.




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