                                                                        [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS
                                                                               FILED
                            FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                              ________________________   ELEVENTH CIRCUIT
                                                                           MAY 17, 2011
                                     No. 09-14190                           JOHN LEY
                                                                              CLERK
                               ________________________

                           D. C. Docket No. 08-20895-CR-UU

UNITED STATES OF AMERICA,


                                                                           Plaintiff-Appellee,

                                             versus

JORGE L. PACHECO,
KEITH RUSSELL,



                                                                      Defendants-Appellants.


                               ________________________

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

                                        (May 17, 2011)

Before PRYOR and COX, Circuit Judges, and PANNELL,* District Judge.

       *
          Honorable Charles A. Pannell, Jr., United States District Judge for the Northern
District of Georgia, sitting by designation.
PANNELL, District Judge:

      The main issue in this appeal is whether the district court’s order striking the

core of government expert Dr. Michael Wohlfeiler’s testimony, along with its

curative instruction that the jury disregard that testimony, was sufficient to protect

Keith Russell and Jorge L. Pacheco from substantial prejudice.

      Russell and Pacheco also make seven other arguments. First, Russell and

Pacheco contend that there was insufficient evidence to support their convictions.

Second, Russell argues that the district court improperly denied his motion to

admit polygraph evidence on the ground that it was untimely. Third, Russell and

Pacheco contend that the improper lay opinions of government witness Tony

Marrero were inadmissible and usurped the role of the jury as to the finding of

guilt or innocence. Fourth, Russell and Pacheco argue that the government failed

to disclose evidence in violation of the Due Process Clause of the Fifth

Amendment. See Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d

104 (1972); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215

(1963). Fifth, Pacheco contends that the district court improperly provided the jury

with a Pinkerton instruction and improperly declined to instruct the jury as to one

aspect of his theory of defense. See Pinkerton v. United States, 328 U.S. 640, 66

S.Ct. 1180, 90 L.Ed. 1489 (1946). Sixth, Russell and Pacheco argue that there



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were cumulative errors which denied them the right to a fair trial. Seventh, Russell

and Pacheco contend that the district court abused its discretion by the sentences it

imposed upon them. These arguments lack merit and require no further discussion

by the court. We affirm the convictions and the sentences.

                                   I. Background

      In 2008, a federal grand jury in the Southern District of Florida returned a

sixteen-count indictment, charging Keith Russell, Jorge L. Pacheco, Juan (“Tony”)

Marrero, Orlando Pascual, Belkis Marrero, David Rothman, Luz Borrego, and Eda

Milanes with health care fraud conspiracy in violation of 18 U.S.C. § 1349.

Russell, Pacheco, Tony Marrero, Belkis Marrero, Pascual, and Milanes were also

charged with substantive counts of health care fraud that involved submitting

fraudulent claims for purported services to specified Medicare beneficiaries, in

violation of 18 U.S.C. §§ 1347 and 2. The remaining counts variously charged the

co-defendants, but not the appellants, with similar counts of health care fraud,

money laundering, and money laundering conspiracy. The indictment further

sought criminal forfeiture against the appellants and the co-defendants in the

amount of $2,511,387. Russell and Pacheco, along with co-defendants Rothman

and Milanes, went to trial before a jury.

      At trial, the government presented testimony from its expert, Dr. Michael



                                            3
Wolhfeiler. Wohlfeiler was shown summary charts of medications purportedly

administered to patients at the health care clinics at issue in this case. Wohlfeiler

opined over the appellants’ continuing objection that treating HIV/AIDS and its

complicating conditions with the listed medications was neither medically

necessary nor appropriate and in some instances possibly dangerous, except with

regard to a couple of the medications that might be used in extremely rare

instances. Throughout an evidentiary hearing prior to trial and at trial, Russell and

Pacheco objected to Wohlfeiler’s expert testimony, stating that the applicable

standard for judging whether prescribed treatments for HIV/AIDS should be

approved was defined by the local government contracting entities that

administered the Medicare program. Those standards were set forth as “Local

Medical Review Policy (LMRP) and Local Coverage Determinations (LCD),”

which authorized and paid for the use of the medications in certain therapeutic

circumstances, as certified by the medical provider.

       The district court admitted Wohlfeiler’s testimony. Nonetheless, after

hearing his trial testimony, the district court voiced doubts about its specific

relevance. Ultimately, the district court struck Wohlfeiler’s testimony with regard

to the medications prescribed for the treatment of HIV/AIDS and instructed the

jury to disregard it in its deliberations.



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      The jury found Russell and Pacheco guilty as charged. The district court

sentenced them to 97 months of imprisonment and 36 months of supervised release

and further ordered that judgments of forfeiture be entered against them in the

amount of $2,511,387.

                               II. Standard of Review

      The district court’s evidentiary rulings are reviewed for abuse of discretion.

United States v. Ellisor, 522 F.3d 1255, 1269-70 (11th Cir. 2008); United States v.

Edouard, 485 F.3d 1324, 1343 (11th Cir. 2007). If the district court takes a

curative measure, this court will reverse only if the evidence is so prejudicial as to

be incurable by that measure. See United States v. Trujillo, 146 F.3d 838, 845

(11th Cir. 1998). “[E]rroneous admission of evidence does not warrant reversal if

the error had no substantial influence on the outcome and sufficient evidence

uninfected by error supports the verdict.” See United States v. Harriston, 329 F.3d

779, 789 (11th Cir. 2003).

                                    III. Discussion

      Russell and Pacheco contend that Wohlfeiler’s testimony was improper

because the content of his testimony did not match the content of the testimony

disclosed in the Daubert hearing and was wholly categorical with no deference

given to the Medicare LMRP’s. Wohlfeiler was qualified to serve as an expert



                                           5
witness, the content of his testimony was sufficiently disclosed to allow Russell

and Pacheco to prepare for trial, and his testimony was relevant. Even if the

testimony should not have been allowed at trial, the district court’s curative

instruction was sufficient to cure any prejudice caused by its admission.

                                   IV. Conclusion

      In sum, we find no reversible error in any of the issues raised by the

appellants for reversing their convictions and sentences.

      AFFIRMED.




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