           Case: 18-14805   Date Filed: 02/28/2020   Page: 1 of 11


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-14805
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 1:18-cr-20368-KMW-2



UNITED STATES OF AMERICA,

                                                            Plaintiff - Appellee,

                                  versus

FRANCEL RODRIGUEZ,

                                                        Defendant - Appellant.

                       ________________________

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

                            (February 28, 2020)

Before WILSON, WILLIAM PRYOR and JILL PRYOR, Circuit Judges.

PER CURIAM:
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       Defendant Francel Rodriquez was convicted of one count of conspiring to

commit health care fraud, in violation of 18 U.S.C. § 1349, and sentenced to 60

months’ imprisonment. He now appeals both his conviction and sentence, arguing

that the district court erred at trial in instructing the jury on deliberate ignorance

and at sentencing in imposing an aggravating-role enhancement. After careful

consideration, we conclude that there was no reversible error and thus affirm. 1

                                                  I.

       Rodriguez argues for the first time on appeal that the district court erred

when it instructed the jury on deliberate ignorance because the instruction

misstated the law. “We review jury instructions challenged in the district court de

novo to determine whether the instructions misstated the law or misled the jury to

the prejudice of the objecting party.” United States v. Gibson, 708 F.3d 1256,

1275 (11th Cir. 2013) (internal quotation marks omitted). But when, as here, a

party challenges a jury instruction for the first time on appeal, we review for plain

error only. Id.2 “We will not reverse a defendant’s conviction based on a

challenge to the jury charge unless we are left with a substantial and ineradicable



       1
        Because we write only for the parties, we set out only what is necessary to address
Rodriguez’s arguments.
       2
          To show plain error, the defendant bears the burden of showing that (1) the district court
erred; (2) its error was plain; (3) the error affected the defendant’s substantial rights; and (4) the
error “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.”
United States v. Olano, 507 U.S. 725, 732 (1993) (internal quotation marks omitted).

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doubt as to whether the jury was properly guided in its deliberations.” Id. (internal

quotation marks omitted). “When the jury instructions, taken together, accurately

express the law applicable to the case without confusing or prejudicing the jury,

there is no reason for reversal even though isolated clauses may, in fact, be

confusing, technically imperfect, or otherwise subject to criticism.” Id. (internal

quotation marks omitted).

      Turning to Rodriguez’s challenge to the district court’s jury instruction

regarding deliberate ignorance, it is well established that the government may

show a defendant acted with knowledge by proving beyond a reasonable doubt that

he was deliberately ignorant. See United States v. Jeri, 869 F.3d 1247, 1268 (11th

Cir. 2017) (internal quotation marks omitted). To establish deliberate ignorance,

the government must prove that the “defendant was aware of a high probability of

the existence of the fact in question and purposely contrived to avoid learning all

of the facts in order to have a defense in the event of a subsequent prosecution.”

Id. (internal quotation marks omitted).

      Specifically, Rodriguez argues that the district court misstated the law about

deliberate ignorance. The district court gave the following instruction about

deliberate ignorance:

             So, with respect to the issue of the defendant’s knowledge in this
      case, if you find from all the evidence beyond a reasonable doubt that
      the defendant believed that he participated in a scheme or artifice to
      defraud Blue Cross [] and deliberately and consciously tried to avoid
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          learning that there was a scheme or artifice to defraud Blue Cross [] in
          order to be able to say, if apprehended, that he was unaware of the
          scheme to defraud Blue Cross [], you may treat such deliberate
          avoidance of positive knowledge as the equivalent of knowledge.

                 In other words, you may find that the defendant acted knowingly
          if you find beyond a reasonable doubt either the defendant actually
          participated in a scheme or artifice to defraud a health care benefit
          program; or that he deliberately closed his eyes to what he had every
          reason to believe was the fact.

Doc. 101 at 16.3 On appeal, Rodriguez argues that the district court’s instruction

failed to inform the jury that it had to find beyond a reasonable doubt that

Rodriguez (1) subjectively believed that there was a scheme to defraud Blue Cross

and (2) had taken conscious and deliberate actions to avoid knowledge. Because

the jury never was told that it had to find beyond a reasonable doubt that he

subjectively believed there was a scheme to defraud Blue Cross, Rodriguez argues,

the instruction allowed the jury to convict him if it found that he was merely

reckless.4


          3
              Citations in the form “Doc. #” refer to the numbered entries on the district court’s
docket.
          4
          In the district court Rodriguez raised a different challenge to the deliberate ignorance
jury instruction. At the charge conference, Rodriguez argued that the instruction was not
warranted because the government had relied on the theory that Rodriguez had actual knowledge
and introduced no evidence indicating that he avoided learning about the fraud or conducted
business in a way to shield himself from knowledge about the fraud.
       We do not address whether a deliberate ignorance was warranted under the facts of this
case because Rodriguez abandoned this argument on appeal. “We have long held that an
appellant abandons a claim when he either makes only passing references to it or raises it in a
perfunctory manner without supporting arguments and authority.” Sapuppo v. Allstate Floridian
Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014). In his initial brief, Rodriguez made, at best,
passing references to the argument that the evidentiary record did not support the deliberate
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       We conclude that the district court correctly stated the law. The court

instructed the jury about both requirements for deliberate ignorance when it stated

that the jury could conclude Rodriguez acted with deliberate ignorance only if it

found “from all the evidence beyond a reasonable doubt that the defendant

believed that he participated in a scheme or artifice to defraud Blue Cross [] and

deliberately and consciously tried to avoid learning that there was a scheme or

artifice to defraud Blue Cross.” Id.5 Because this instruction covered both

elements required for deliberate ignorance, we reject Rodriguez’s argument that

the district court misstated the law by allowing the jury to convict based upon a



ignorance instruction. The brief included a heading stating that “[t]he government did not
introduce any evidence of active efforts to avoid knowledge,” but this section contained only two
sentences, discussed no relevant facts or law, and merely served as background to his main
argument that the jury instruction misstated the law. Appellant’s Br. at 44. Two other sentences
under different headings in the initial brief also mentioned the issue of whether the instruction
was warranted. But, again, these conclusory sentences merely served as background to the
separate argument that the jury instruction misstated the law. After the government pointed out
in its response brief that Rodriguez had abandoned this argument, Rodriguez filed a reply brief in
which he cited authority to support it. But his attempt to develop this argument with supporting
arguments and authority in his reply brief “come[s] too late.” Sapuppo, 739 F.3d at 683. The
relevant question is whether Rodriguez adequately developed in his initial brief the argument
that a deliberate ignorance instruction was not warranted under the facts of the case. Because he
raised the issue in a perfunctory manner in his initial brief without supporting arguments or
authority, he abandoned it. See id.
       5
          In the second paragraph of its deliberate ignorance instruction, the court emphasized the
requirement that Rodriguez had to deliberately and consciously take actions to avoid knowledge
when it instructed the jury that deliberate ignorance required a finding that Rodriguez
“deliberately closed his eyes to what he had every reason to believe was the fact.” Doc. 101 at
16. It’s true that in this paragraph the district court did not mention the other element required to
find deliberate ignorance—that Rodriguez subjectively believed that he was participating in a
scheme to defraud Blue Cross. But we cannot say that this instruction was misleading when in
the immediately preceding sentence the district court instructed the jury about the subjective
knowledge requirement.
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determination that Rodriguez acted with reckless indifference to the truth. We thus

see no error, much less plain error.

                                          II.

      Rodriguez also challenges his sentence, arguing that the district court erred

in applying a three-level enhancement to his offense level on the basis that he was

a manager or supervisor. We review for clear error a district court’s decision to

impose an aggravating-role enhancement at sentencing. United States v. Sosa, 777

F.3d 1279, 1300 (11th Cir. 2015). Review for clear error is deferential, and we

will not disturb a district court’s findings unless we are left with a definite and firm

conviction that a mistake has been made. Id.

      The Sentencing Guidelines provide for a three-level enhancement in offense

level “[i]f the defendant was a manager or supervisor (but not an organizer or

leader) and the criminal activity involved five or more participants or was

otherwise extensive.” U.S.S.G. § 3B1.1(b). For the enhancement to apply, the

defendant must exert “some degree of control, influence, or leadership” in the

criminal conspiracy. United States v. Ndiaye, 434 F.3d 1270, 1304 (11th Cir.

2006) (internal quotation marks omitted). The commentary to the Guidelines

directs a court, in assessing a defendant’s role, to consider the following factors:

(1) whether he exercised decision-making authority, (2) the nature of his

participation in the commission of the offense, (3) whether he recruited


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accomplices, (4) whether he claimed a right to a larger share of the fruits of the

crime, (5) his 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

he exercised over others. U.S.S.G. § 3B1.1 cmt. n.4. This multi-factor analysis

requires a district court to decide on a “case-by-case basis,” under the totality of

the circumstances, whether the enhancement should apply. See United States v.

Ramirez, 426 F.3d 1344, 1356 (11th Cir. 2005). There is no requirement that all

the considerations have to be present for the enhancement to be applied. Id.

       The district court committed no clear error in finding that Rodriguez acted as

a supervisor or manager.6 When the circumstances are viewed in totality, several

of the relevant factors—including the nature of Rodriguez’s participation, his place

in the chain of command, his recruitment of an accomplice, and the fact that he

claimed a larger share of the fruits of the crime than others—support the

conclusion that he functioned in a managerial or supervisory role. 7




       6
         Because there is no dispute in this case that the criminal activity involved five or more
participants, we focus our analysis on whether Rodriguez functioned as a manager or supervisor.
       7
         We do not address each of the seven factors because there is no requirement that all
factors be present for the enhancement to apply. See Ramirez, 426 F.3d at 1356. Indeed, our
prior decisions demonstrate that we may affirm the application of this enhancement without
addressing whether each factor supported the enhancement. See id. (concluding that
enhancement was warranted given the defendant’s nature of participation in the criminal
conduct, the scope of the criminal activity, and the degree of control and authority that he
exercised over others without addressing the remaining four factors).
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      The nature of Rodriguez’s participation indicates that he exercised some

degree of control or leadership. To understand his role in the scheme, we must

briefly review how the healthcare fraud scheme worked. Rodriguez’s employer,

Billing USA, was a medical billing company that prepared and submitted claims

for health care provider clients to private insurers, including Blue Cross. Although

it is legitimate for a medical provider to contract with a billing company to prepare

and submit its insurance claims, Billing USA’s business was illegitimate because

the company contracted with medical providers to submit claims for

reimbursement knowing that the services reflected in the claims were never

provided.

      Billing USA assisted medical providers in submitting fraudulent medical

claims in two distinct ways. First, some of Billing USA’s clients sent the company

fraudulent superbills, which were statements listing the dates when particular

patients purportedly received medical services from the clients. Even though

Billing USA knew that the providers had not provided the services to the patients

listed in the superbills, Billing USA prepared claims based on the superbills and

submitted the claims to Blue Cross. For its role in preparing and submitting the

claims, Billing USA charged the medical providers a fee equal to 6% of the

amount Blue Cross paid on the claims.




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      Second, for the majority of its medical provider clients, Billing USA played

an even more active role in the fraud. These medical providers brought Billing

USA billing information for prospective patients. Billing USA then fabricated

superbills—statements purporting to identify the dates and treatments a patient

received from the provider—reflecting that patients had received expensive

treatments from the providers. When Billing USA created superbills, it invented

the patients’ diagnosis codes, the dates they were treated, and the services they

received. Billing USA then sent copies of the superbills to the providers so that the

providers could create fraudulent records in their patient files showing that the

patients had received the treatments listed in the superbills. Based on the

superbills, Billing USA prepared and submitted claims to Blue Cross on the

providers’ behalf. For its services, Billing USA charged these medical providers a

fee equal to 10% of the amount that Blue Cross paid on the claims.

      Rodriguez played a central role in Billing USA’s creation of the fraudulent

superbills. Although Billing USA’s founder, Danny Palma, created many of the

fraudulent superbills, he also relied on a small group of employees, including

Rodriguez, to create them. When Rodriguez created fraudulent superbills, he

simply made up the services that were included on the superbills. After he

prepared the superbills, he would direct other employees to prepare the claims

based on the superbills and submit them to Blue Cross.


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      In addition, Rodriguez acted as Palma’s right-hand man at Billing USA.

Palma frequently traveled and left Rodriguez in charge of overseeing “every

aspect” of the business. Doc. 98 at 126. Rodriguez also was in charge of the

accounting for Billing USA, including making sure that Billing USA collected a

higher fee from the medical providers for whom it created fraudulent superbills. In

addition, Rodriguez fielded complaints from medical providers who relied on

Billing USA to create superbills when insurance companies questioned the

providers’ claims. Taken together, this evidence supports an inference that

Rodriguez exercised some control or leadership in the scheme.

      The evidence also indicates that Rodriguez recruited at least one accomplice.

He introduced Sergio Carratala to Palma and recommended Carratala for a job

with Billing USA. Upon joining the company, Carratala also participated in the

scheme by creating fraudulent superbills.

      In addition, the evidence supports an inference that Rodriguez claimed a

right to a larger share of the proceeds than other participants. When one of Billing

USA’s clients paid bonuses to Billing USA employees, Rodriguez received $6,000.

In contrast, other Billing USA employees received only $500.

      Rodriguez nonetheless argues that he was not a supervisor or manager

because he played a smaller role in the scheme and received a far smaller share of

proceeds from the scheme than Palma. We agree that Palma played a larger role in


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the conspiracy and profited more from the scheme. But an enhancement may be

warranted based on the defendant’s role in the offense “[e]ven though others may

have had a larger role in the conspiracy.” Ndiaye, 434 F.3d at 1304. And here the

record reflects that the Rodriguez exercised sufficient authority to qualify as a

manager or supervisor.

      After reviewing the record, we are left with no definite and firm conviction

that the district court clearly erred in applying the enhancement. We thus affirm

Rodriguez’s sentence.

                                         III.

      For the reasons set forth above, we affirm Rodriguez’s conviction and

sentence.

      AFFIRMED.




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