             Case: 10-10838   Date Filed: 08/02/2012   Page: 1 of 10

                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       _________________________

                              No. 09-15863
                       _________________________

                     D. C. Docket No. 08-20544-CR-PAS

UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

    versus

MANUEL BARBEITE,

                                                            Defendant-Appellant.



                     _____________________________

                              No. 10-10838
                     _____________________________

                    D. C. Docket No. 1:08-cr-20544-PAS-2


UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

    versus
                Case: 10-10838       Date Filed: 08/02/2012       Page: 2 of 10

WALTER F. PROANO,

                                                       Defendant-Appellant.
                  _________________________________________

                    Appeals from the United States District Court
                         for the Southern District of Florida
                  _________________________________________
                                  (August 2, 2012)

Before BARKETT, EDMONDSON, and SUHRHEINRICH,* Circuit Judges.



PER CURIAM:



       A jury convicted Defendants Manuel Barbeite and Walter F. Proano of

healthcare fraud and of conspiracy to commit healthcare fraud. On appeal -- by

briefs and oral argument -- Barbeite and Proano argue that they did not receive a

fair trial because the district court committed (they say) a series of reversible errors.

No reversible error is presented in this case; we affirm the district court’s decisions.

       Defendants, who were both physicians, worked at an HIV clinic. Briefly

stated, Defendants and their co-conspirators (other clinic employees and the

clinic’s owners) submitted false Medicare and Medicaid claims with the agreement



   *
      Honorable Richard F. Suhrheinrich, United States Circuit Judge for the Sixth Circuit,
sitting by designation.

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of their patients, paid these patients cash, and kept the remaining funds for

themselves.

       Defendants challenge several aspects of their joint criminal trial,1 but we will

elaborate on three issues only. First we discuss a decision of the trial judge that

both defendants appeal: admitting Dr. Wohlfeiler’s expert testimony. Second, we

discuss two issues about Proano’s Sixth Amendment right to counsel. (Barbeite

does not join Proano in the Sixth Amendment issues).



                                                 a.



       The district court qualified Dr. Wohlfeiler as an expert in the diagnosis and

treatment of HIV and AIDS. Wohlfeiler testified about the medical aspects of the

pertinent Medicare/Medicaid fraud scheme, a scheme that involved false diagnoses

   1
     Defendants argue that they did not receive a fair trial because the district court allowed the
jury to hear evidence of their co-conspirators’ guilty pleas and because the prosecutors
improperly vouched for the credibility of witnesses. Defendants argue that their indictment was
constructively amended by the government’s arguments and by the district court’s jury
instruction. Defendants also contend that the district court improperly admitted Dr. Michael
Wohlfeiler’s expert testimony, which we discuss in the body of the opinion. And Defendants
argue that these errors, individually and cumulatively, warrant reversal of their convictions. We
affirm the district court’s decisions of all of those issues. Proano raises issues of his own, issues
in which Barbeite does not join. Proano raises two trial issues: that the district court should have
admitted him as an expert witness and that the district court should have given the jury a limiting
instruction after the prosecutor asked Proano a question about Proano’s previous employer. We
affirm the district court for those issues. Proano, also without Barbeite, raises two Sixth
Amendment issues, which we discuss in the body of the opinion.

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of and fake treatments for low blood platelet count disorders that are most

commonly suffered by -- although rare among -- AIDS patients. He reviewed the

files of patients who had visited Defendants’ HIV clinic, explained a pattern of

problematic discrepancies that he observed in all of the clinic’s patient files, and

testified about the problems he found in particular files of Defendants’ patients.

       Defendants argue that we should reverse their convictions; they say parts of

Wohlfeiler’s testimony were improperly admitted. For all but one of their

complaints about Wohlfeiler’s testimony, Defendants made no objection at trial.

       Defendants argue that these unobjected-to purported errors require reversal

of their convictions: Defendants argue that Wohlfeiler was not qualified as an

expert about Medicare policies, and so should have given no testimony about

whether medical treatments complied with those policies;2 Defendants argue that

Wohlfeiler improperly gave opinions that would be relevant to medical

malpractice, but not to Medicare fraud; Defendants argue that allowing

Wohlfeiler’s testimony about his own patient files was error because Defendants

could not examine Wohlfeiler’s patient files;3 and Defendants argue that Wohlfeiler

   2
     Wohlfeiler was not admitted as an expert on those policies and did not testify about the
policies, except on cross-examination when he was specifically asked about them.
   3
     Defendants objected at trial to the admission of the actual patient files; that objection was
sustained. Defendants appeal the admission of Wohlfeiler’s testimony about his patient files, to
which Defendants made no objection at trial.

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improperly testified that Barbeite’s diagnosis and treatment of a particular patient

was fraudulent.

        In addition, Defendants appeal one part of Wohlfeiler’s testimony that the

district court allowed over their objection: Wohlfeiler, answering a hypothetical

question, said that the only reason for a physician to give a certain course of

treatment would be to generate income.4 Defendants argue that Wohlfeiler

impermissibly offered a legal conclusion that was unfairly prejudicial to

Defendants.

        We review the district court’s decisions to which no objection was made for

plain error. We will reverse on those issues only if there was “error,” which was

“plain,” and which affected Defendants’ “substantial rights.” Johnson v. United

States, 117 S. Ct. 1544, 1548-49 (1997). Even then, we may reverse for the error

only if the error “seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Id. at 1549 (quotation marks and alteration omitted). For

Wohlfeiler’s testimony to which Defendants objected, we review the district court’s


   4
       The pertinent part of the trial transcript reads this way:
             Q. Based on your knowledge and experience, Dr. Wohlfeiler, why would
             a physician treat a patient in this manner?
             A. Well, I’ve got to tell you, the only thing I can think of was for income
             generation.
             MR. RUBINO: I’ll object. That’s out of the scope of his knowledge.
             THE COURT: Overruled.

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decision for abuse of discretion. We will set aside a conviction for an evidentiary

error only if the error is not harmless; an abuse of discretion is not a reversible

error if the error had no substantial influence on the outcome of the case.

      The trial evidence of Defendants’ guilt shows that the purported errors

infringed no “substantial rights” of Defendants and had no substantial influence on

the outcome of the case. Several witnesses (other than Wohlfeiler) testified that the

clinic existed for the purpose of billing Medicare for particularly expensive

treatments (often not actually given to patients), that no clinic patients had the

blood platelet disorder for which Medicare was billed, that blood tests were

“doctored” to fake the disorder, that patients were brought into the clinic by a

recruiter and were paid for their visits, and that the doctors decided which drugs to

prescribe based on how much money they could get from Medicare. According to

the testimony at trial, Defendants knew that patients were brought to the clinic by a

recruiter and that patients were paid; Defendants knew that they were billing for the

maximum amount Medicare would allow; and Defendants’ patients’ charts

obviously showed that blood test results and diagnoses were faked. So, even if the

trial court erred in admitting some of Wohlfeiler’s testimony, the decisions

Defendants appeal from were neither plain error nor harmful: no reversible error.




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                                            b.



      Proano argues that his trial lawyer was ineffective because the lawyer had a

conflict of interest: Proano says the lawyer represented one of the government’s

witnesses in an unrelated criminal case (Proano’s lawyer did not represent the

pertinent witness here for his testimony against Defendants). Proano brought the

purported conflict of interest to the trial court’s attention for the first time after

Defendants were convicted, when Proano’s new lawyer filed a motion to continue

sentencing. Proano did not move for a new trial. The district court granted

Proano’s motion to continue sentencing and made no findings about the trial

lawyer’s conflict of interest.

      Proano’s ineffective assistance of counsel claim is not properly before the

Court. We will consider an ineffective assistance of counsel claim on direct appeal

if the district court record is sufficiently developed to do so. United States v.

Camacho, 40 F.3d 349, 355 (11th Cir. 1994), overruled in part on other grounds by

United States v. Sanchez, 269 F.3d 1250 (11th Cir. 2001). We do not reach

Proano’s conflict-of-interest-related ineffective assistance of counsel claim because

the district court record is insufficiently developed for us to address the merits of

Proano’s argument. Id.; see also Massaro v. United States, 123 S. Ct. 1690, 1694

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(2003) (in most cases it is preferable that a motion for ineffective assistance of

counsel be raised on collateral review rather than on direct appeal).



                                          c.



      Proano also argues that the trial judge’s instructions that Proano was not to

talk to his lawyer about his trial testimony violated his Sixth Amendment right to

counsel. Proano’s testimony spanned three days: he gave direct testimony the first

and second day and was cross-examined the second and third day. The trial judge

allowed Proano to speak to his lawyer about Proano’s testimony when the court

recessed for the evening after Proano’s first day of direct testimony.

      The trial judge’s instructions changed after Proano’s second day of

testimony. The court recessed that evening before the government had finished

cross-examining Proano. The trial judge told Proano to talk to no person about his

testimony. The prosecutor asked the judge to clarify the instruction to Proano

“because you’ve been giving him a different instruction until now, that at this point

includes his lawyer.” The judge then specified that Proano could not talk that

night to his lawyer about Proano’s testimony. No objection was made.




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      Proano’s cross-examination continued the next morning, which was the third

day of Proano’s testimony. That morning, before a brief recess, the judge

instructed Proano not to “talk to anyone about [his] testimony.” Proano’s lawyer

did not object. But Proano asked, “I can’t even talk to my attorney?” and the judge

answered, “No, you can’t even talk with your attorney now, because it’s just a short

break.” The court reconvened twenty-seven minutes later. Proano’s

cross-examination continued. Before the lunch recess later that day, the trial judge

advised Proano not to talk to anyone about his testimony. No objection was made.

      To preserve a deprivation of assistance of counsel claim when a district court

prohibits a defendant from consulting with his attorney “a defendant or the

defendant’s counsel must indicate, on the record, a desire to confer.” Crutchfield v.

Wainwright, 803 F.2d 1103, 1109 (11th Cir. 1986) (en banc) (Hatchett, J., plurality

opinion); id. at 1118-19 (Edmondson, J., specially concurring) (making a majority

for the decision that there was no deprivation of a right to counsel because the trial

record indicated no desire to confer).

      The trial judge told Proano, at three separate times during Proano’s

cross-examination, not to discuss his testimony with his lawyer. Proano’s lawyer

did not object. The record reflects only one instance of Proano himself saying




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anything about these prohibiting instructions: Proano’s question of “I can’t even

talk to my attorney?”

      Proano asked this question before a short break. Proano had no

constitutional right to speak with his lawyer during that short break in the middle of

Proano’s being cross-examined. See Perry v. Leeke, 109 S. Ct. 594, 602 (1989)

(testifying defendant has no constitutional right to consult with his lawyer “in a

short recess in which it is appropriate to presume that nothing but the testimony

will be discussed.”). So we need not decide whether Proano’s one question

sufficiently indicated his desire to confer with his lawyer to preserve some

supposed Sixth Amendment claim for deprivation of assistance of counsel about

the morning break.

      For the other two instances in which the trial judge instructed Proano to

speak to no person -- once specifically including Proano’s lawyer -- about his

testimony, Proano failed to preserve his deprivation of assistance of counsel claim:

no part of the record indicates that Proano wished to speak with his lawyer at either

of these times. The district court committed no plain error by just instructing

Proano not to discuss his testimony with his lawyer.

Defendants have shown no reversible error; we affirm.

      AFFIRMED.




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