          United States Court of Appeals
                     For the First Circuit


No. 17-1364

                         UNITED STATES,

                            Appellee,

                               v.

                      JUAN JOSE TULL-ABREU,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Jay A. García-Gregory, U.S. District Judge]


                             Before

                    Lynch, Lipez, and Barron,
                         Circuit Judges.


     Guillermo A. Macari-Grillo for appellant.
     Andrew W. Laing, Criminal Division, Appellate Section, with
whom Rosa E. Rodríguez-Vélez, United States Attorney, Brian A.
Benczkowski, Assistant Attorney General, Matthew S. Miner, Deputy
Assistant Attorney General, and Dennise N. Longo Quiñones,
Assistant United States Attorney, were on brief, for appellee.


                         April 19, 2019
             LYNCH, Circuit Judge.      After a fourteen-day jury trial,

Dr. Juan Jose Tull-Abreu was convicted of one count of conspiracy

to commit health care fraud, eight counts of health care fraud,

six counts of aggravated identity theft, and four counts of

furnishing false or fraudulent information in prescriptions for

controlled substances.      Tull-Abreu's scheme went on for about four

years and he profited by over $500,000 from his defrauding of the

federal Medicare program and Medicare insurance plans.               He was

sentenced to a total of eighty-seven months' imprisonment.

             On appeal, Tull-Abreu's counselled brief challenges the

sufficiency    of   the    evidence    underlying     his   convictions   for

aggravated identity theft, the denial of his motion for a new trial

(concerning an alleged violation of his right to testify), the

denial of his motion for a judgment of acquittal as to furnishing

false   or    fraudulent    information       in   prescriptions,   and   the

substantive reasonableness of his sentence.             In a pro se brief,

Tull-Abreu challenges the sufficiency of the evidence for his

conspiracy and health care fraud convictions and argues that an

aspect of the trial violated his Sixth Amendment rights.

             We affirm.

                                       I.

A.   Factual Background

             Because Tull-Abreu challenges the sufficiency of the

evidence for his convictions, these "facts are drawn from the


                                      - 2 -
record created at trial and are presented in the light most

favorable to the guilty verdict."          United States v. Monserrate-

Valentín, 729 F.3d 31, 37 (1st Cir. 2013).            Additional facts are

discussed in the analysis where relevant, and we state only the

facts pertinent to this appeal.

             From 2009, Tull-Abreu, a medical doctor, operated two

medical offices in Puerto Rico, one in Arecibo and one in Utuado,

and   employed   staff    including   secretaries.         Three    secretaries

testified at trial.      One had worked for Tull-Abreu from April 2009

to July 2014 (with a two-week break in early 2013), one from 2011

to 2013, and one from February to September 2013.                  Between 2009

and 2013, Tull-Abreu regularly traveled to the Dominican Republic,

sometimes several times per month.

             From 2009 to 2013, Tull-Abreu and his secretaries asked

for    and   received     patients'    signatures     on     extra     Medicare

reimbursement forms which had certain information missing, such as

the date of service, and Tull-Abreu and his secretaries submitted

these forms to obtain payment.        The form was the "Health Insurance

Claim Form" ("CMS 1500 form"), a standard form for Medicare billing

and reimbursement.       See United States v. López-Díaz, 794 F.3d 106,

109 (1st Cir. 2015).      The CMS 1500 form has six spaces for "Date(s)

of    Service"   and,    corresponding   to   these    dates,       spaces   for

"Procedures, Services, or Supplies."




                                   - 3 -
              Tull-Abreu and his secretaries obtained signatures from

patients on these often-undated CMS 1500 forms by falsely telling

patients, for example, that "one form was for the visit, and the

other was for the [prescription]" or that one "form is for the

prescription, [and the other one] is for the referral."                    Tull-

Abreu   and     his    secretaries   took      these   forms   and    fabricated

corresponding "progress notes" for patients, which included dates

of fictitious appointments and services.

              Tull-Abreu was caught on an audio recording instructing

his secretaries how to fill out these forms for services that were

not rendered, and he and they filled out such forms.                 There is no

evidence that Tull-Abreu forced his staff to do this, and one of

his secretaries worked for him for nearly the full four years of

the   scheme.         Tull-Abreu   and   his   staff   then    submitted   these

fraudulent forms for reimbursement from Medicare plans, including

for visits and services that did not and could not have occurred

because Tull-Abreu's pertinent medical office was closed or he was

in the Dominican Republic on the dates that the visits purportedly

took place.      The submitted CMS 1500 forms contained identifying

information of the patients and had their signatures in a box on

the form that stated the patients' agreement to "authorize payment

of medical benefits to the undersigned physician or supplier for

services described below."




                                     - 4 -
             Tull-Abreu took steps to hide the fraud:           His staff kept

records, in internal "roll books," of dates that they had used

earlier on fraudulent CMS 1500 forms, "to avoid repeating dates."

This helped to avoid alerting insurers, who provided reimbursement

through the Medicare plans, of the fraud. Tull-Abreu kept a supply

of undated but patient-signed CMS 1500 forms.

             From 2011 to 2013, Tull-Abreu also wrote prescriptions

for   Percocet.       Because   Percocet     was,   and   is,   a   controlled

substance, see United States v. Alvarez–Núñez, 828 F.3d 52, 54

(1st Cir. 2016), such prescriptions must be dated and signed on

the day that they are issued, see 21 C.F.R. § 1306.05(a).                Tull-

Abreu did not do that; he wrote in dates when he was in fact out

of the country or traveling.         The government put in evidence of

four such falsely-dated prescriptions.          Tull-Abreu's patients and

staff     testified     that    Tull-Abreu      would     leave      postdated

prescriptions before his trips, to be given to patients while he

was gone.

B.      Procedural History

             Tull-Abreu was indicted on August 12, 2014, by a grand

jury on one count of conspiracy to commit health care fraud, in

violation of 18 U.S.C. § 1349; eight counts of health care fraud,

in violation of 18 U.S.C. § 1347; six counts of aggravated identity

theft, in violation of 18 U.S.C. § 1028A(a)(1); and four counts of

furnishing    false   information    in     prescriptions   for     controlled


                                    - 5 -
substances,   in   violation   of    21     U.S.C.    § 843(a)(4)(A).      The

conspiracy charge outlined an agreement between Tull-Abreu and

unnamed others to "unlawfully enrich [Tull-Abreu] by submitting

false and fraudulent claims to Medicare."             The fraud charges set

forth Tull-Abreu's particular claims for reimbursement for eight

patient office visits that never occurred. The aggravated identity

theft charges set forth six uses of different patients' identifying

information on fraudulent CMS 1500 forms.              The furnishing false

information charges concerned four Percocet prescriptions bearing

dates and signatures for dates on which they had not been signed.

            Tull-Abreu's jury trial began on March 29, 2016.            On the

thirteenth day of trial, Tull-Abreu was set to testify.            Before he

took the stand, the prosecutor asked that Tull-Abreu be advised of

his rights regarding testifying on his own behalf.                   With no

objection   from   Tull-Abreu's     counsel,    the    district   court   then

explained, out of the presence of the jury, to Tull-Abreu his

constitutional right not to testify and the legal ramifications of

a choice to testify.     The court then recessed so that Tull-Abreu

and his counsel could confer.       They did so for about half an hour.

His counsel then informed the court that Tull-Abreu had decided

not to testify, counsel again made no objection to the actions of

the prosecution or the district court, and the defense rested.

Later, the district court instructed the jury that Tull-Abreu was




                                    - 6 -
"entitled to the presumption of innocence" and so "his silence is

not to be taken against him."

          Tull-Abreu was convicted of all counts on April 15, 2016.

On May 27, 2016, he moved for a judgment of acquittal and for a

new trial under Federal Rules of Criminal Procedure 29 and 33,

respectively.    In his Rule 29 motion, he alleged that insufficient

evidence supported all convictions (except conspiracy).      In his

Rule 33 motion, he argued, among other things, that he had received

an unfair trial due to the prosecutor's request that the district

court remind Tull-Abreu of his constitutional right not to testify

and the legal ramifications of choosing to testify.   On August 23,

2016, the district court denied Tull-Abreu's motions for a judgment

of acquittal and for a new trial.

          The district court sentenced Tull-Abreu to eighty-seven

months' imprisonment and three years' supervised release.       The

court calculated a sixty-three month sentence, at the bottom of

the Sentencing Guidelines' range of sixty-three to seventy-eight

months' imprisonment for all counts except the aggravated identity

theft counts, and added the consecutive mandatory fixed term of

twenty-four months for the violations of the aggravated identity

theft statute.




                                - 7 -
                                  II.

           We deal with the primary issues raised by Tull-Abreu's

counselled brief and at oral argument, then the subsidiary issues,

then the issues raised pro se.

A.   Challenge to Convictions for Aggravated Identity Theft

           Under the relevant part of the aggravated identity theft

statute,

           [w]hoever, during and in relation to any
           felony violation enumerated in subsection (c),
           knowingly transfers, possesses, or uses,
           without   lawful   authority,   a   means   of
           identification of another person shall, in
           addition to the punishment provided for such
           felony, be sentenced to a term of imprisonment
           of 2 years.

18 U.S.C. § 1028A(a)(1).     Felonies enumerated in subsection (c)

include "any provision contained in chapter 63 (relating to mail,

bank, and wire fraud)," id. § 1028A(c)(5), which in turn includes

both health care fraud and conspiracy to commit health care fraud,

see id. §§ 1347, 1349.

           Tull-Abreu   mistakenly     argues   in   his   brief   that   his

convictions for aggravated identity theft rested on his writing

four postdated prescriptions for Percocet.            Yet his aggravated

identity   theft   convictions   are   not   based   on    these   postdated

prescriptions but on his submission of the fraudulent CMS 1500

forms.   Each count of aggravated identify theft in the indictment

is tied to a patient whose identifying information was listed on



                                 - 8 -
a particular submitted CMS 1500 form; the relevant aggravated

identity theft portion of the indictment does not mention the

Percocet prescriptions.    The evidence at trial followed suit.

            Nonetheless, we will assume arguendo -- and in Tull-

Abreu's favor -- that Tull-Abreu's challenge to the aggravated

identity theft convictions has not been waived1 and that his

argument is that the submission of the fraudulent CMS 1500 forms

did not satisfy the "use" requirement of the statute.2 The argument

still fails.

            The government argues that Tull-Abreu "purport[ed] to

take some other action on another person's behalf," as described

in United States v. Berroa, 856 F.3d 141, 156 (1st Cir. 2017),

cert. denied sub nom. Davila v. United States, 138 S. Ct. 488

(2017) (mem.).    We agree.

            This court defined the scope of the "use" term of § 1028A

in Berroa.     We held that the "use" term was ambiguous, and the

statute's    legislative      history   demonstrated   that   the   term

"require[d] that the defendant attempt to pass him or herself off



     1    The government does not expressly argue waiver, though
they do note Tull-Abreu's misunderstanding of the basis for these
charges.
     2    It is clear, and Tull-Abreu does not suggest otherwise,
that: (1) the government amply demonstrated at trial that the
filing of the forms was "in relation to any [enumerated] felony,"
health care fraud; and (2) the government demonstrated that the
use of patients' information was "without lawful authority" based
on testimony from a patient, see 18 U.S.C. § 1028A(a)(1).


                                   - 9 -
as another person or purport to take some other action on another

person's behalf."3         Id.

              By filing each of the fraudulent CMS 1500 forms for which

he was charged, Tull-Abreu "purport[ed] to take some other action

on another person's behalf," as set forth in Berroa.              The CMS 1500

forms require "the identifying information of the patient[s],

their       name[s],   date[s]   of   birth,     [and]   their    Medicare   ID

number[s]."      Each count of aggravated identity theft was connected

to a particular actual patient at trial.                 One of the patients

testified that he would "[n]ever" have authorized Tull-Abreu to

invoice services that were not provided.              The signature and date

on the authorization box meant that patients were "reassigning

their benefit payments of the claim directly to the doctor, so

that [the patients] don't have to be involved."                     Tull-Abreu

"use[d]"       patients'     "means    of      identification,"    18   U.S.C.

§ 1028A(a)(1), and assigned benefits to himself when he submitted

the fraudulent forms.




        3 In accord with Berroa, "[n]umerous . . . decisions have
upheld § 1028A(a)(1) convictions where the defendant neither stole
nor assumed the identity of the other person." United States v.
Gatwas, 910 F.3d 362, 365 (8th Cir. 2018); see also United States
v. White, 846 F.3d 170, 177 (6th Cir. 2017) (affirming a conviction
where defendant submitted to airlines "what she represented to be
actual identification that the United States Military purportedly
had issued for her clients"); United States v. Reynolds, 710 F.3d
434, 435-36 (D.C. Cir. 2013) (affirming a conviction where the
defendant submitted a document to a bank bearing the signatures of
other persons without their permission).


                                      - 10 -
          Two   cases    from    the   Sixth    Circuit,   which   we    cited

approvingly in Berroa, and which Tull-Abreu cites in his counselled

brief, do not support his argument.            In United States v. Miller,

734 F.3d 530 (6th Cir. 2013), the court held that the term "use"

in § 1028A was ambiguous, and required a defendant to "steal or

possess [others'] identities, impersonate them or pass himself off

as one of them, act on their behalf, or obtain anything of value

in one of their names."         Id. at 541 (footnote omitted).           Under

this   definition,      Tull-Abreu     "use[d]"      others'    identifying

information and acted on their behalf.

          In United States v. Medlock, 792 F.3d 700 (6th Cir.

2015), the Sixth Circuit rejected the government's contention that

the defendants had "'used' the name and Medicare Identification

Numbers of Medicare beneficiaries" when the defendants submitted

claims that contained some false information (chiefly that some

beneficiaries had been transported by stretcher when they had been

transported by other means, such as wheelchair).            Id. at 705-06.

The defendants "did transport the specific beneficiaries whose

names they entered on the forms; they lied only about their own

eligibility for reimbursement for the service."            Id. at 706.    The

Sixth Circuit distinguished Medlock from a case concerning "claim

forms for trips that did not, in fact, occur."         Id. at 707 (quoting

United States v. Abdelshafi, 592 F.3d 602, 605 (4th Cir. 2010)).

Tull-Abreu did not provide the listed medical services to the


                                  - 11 -
patients whose information was used on the fraudulent forms,

falling within the distinction drawn.

            The more recent United States v. Michael, 882 F.3d 624

(6th Cir. 2018), also supports affirming Tull-Abreu's conviction.

There, the Sixth Circuit reversed the dismissal of an indictment

under § 1028A where the defendant, a pharmacist, used a doctor's

and   a   patient's   identifying       information     to    create   a   false

prescription and so gain reimbursement for that prescription.               Id.

at 625-27.    The court determined that a jury could find that the

defendant    "used"   the    doctor's    and   the     patient's    identifying

information "even though [the defendant] did not pretend to be

them."    Id. at 626 (emphasis omitted).          The court held that "[a]

jury readily could find that a pharmacist who files a claim with

a patient's insurer to recoup costs the patient would otherwise

have to pay refer[s] to means of identification as such and acts

on [that patient's] behalf."        Id. at 628 (alterations in original)

(internal quotation marks omitted).

            Tull-Abreu's conduct as to the CMS 1500 forms fits easily

into "use" under the Berroa test.

B.    Denial of Motion for a New Trial

            Tull-Abreu's counselled brief challenges the denial of

his motion for a new trial under Rule 33, arguing loosely that

"intimidat[ion]"      by    the   district     court    and   the   prosecutor

"violated" Tull-Abreu's "rights to a [f]air [t]rial and to present


                                    - 12 -
a complete defense," though he and his counsel made no objection

at the time.4

           We review the denial of a Rule 33 motion for "manifest

abuse of discretion," United States v. González-González, 258 F.3d

16, 20 (1st Cir. 2001), with the "respect . . . due to the

'presider's sense of the ebb and flow of the recently concluded

trial,'" United States v. Connolly, 504 F.3d 206, 211 (1st Cir.

2007) (quoting United States v. Natanel, 938 F.2d 302, 313 (1st

Cir. 1991)).

           We first provide additional context for our fact-bound

inquiry.   Just after Tull-Abreu's counsel called for him to take

the witness stand, the prosecutor asked to approach the bench and

stated:

           I just want to make it clear, to avoid any
           issues on appeal, that the defendant has been
           duly given an opportunity to make a waiver of
           his rights. So I would appreciate that . . .
           we take an opportunity to advise him on the
           record so that he makes an informed,

     4    Tull-Abreu's counselled brief also argues, in passing,
that "the [district court] denied Rule 403 objections from the
defense on three occasions," and that these rulings in part led to
a constitutional violation.       Tull-Abreu does not otherwise
challenge the Rule 403 rulings, nor provide a basis for why these
evidentiary rulings constituted a constitutional violation.
Further, Tull-Abreu does not explain what specifically was wrong
with these evidentiary rulings (nor even state what the rulings
were, beyond citations to pages in the trial transcripts).
          Accordingly,   this   argument   is  waived.     It   is
"mention[ed]" in "the most skeletal way," and so would "leav[e]
the court to do counsel's work, create the ossature for the
argument, and put flesh on its bones." United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990).


                              - 13 -
          knowledgeable and voluntary          waiver   of   his
          right not to testify . . . .

(Emphasis added).      When defense counsel did not object, the

district judge agreed that this "might be a good idea," and then

excused the jury.     On the record but out of the presence of the

jury, the judge told Tull-Abreu that Tull-Abreu "doesn't have to

testify at all . . . .   It's a constitutional right," and that, if

Tull-Abreu chose not to testify, the judge would give a jury

instruction that "they are not to be taking that silence against

him."

          After   a   request   from     the   prosecutor    for   further

clarification (again, not objected to), the district judge then

told Tull-Abreu that if Tull-Abreu testified, "there is not going

to be any instruction to the jury concerning the right . . . to

remain silent."   Tull-Abreu then asked to consult with his lawyer,

and the district judge told Tull-Abreu, "If you want to consult

with your counsel, he's right here, yeah."          The prosecutor then

asked that the district judge explain to Tull-Abreu that "the

government will be able to comment . . . on everything that has to

do with his statements," and the district judge agreed and briefly

told Tull-Abreu about the possibility of cross-examination and

impeachment with respect to documents in evidence.

          The court then recessed for about thirty minutes for

Tull-Abreu to consider the matter with his counsel and "make a



                                - 14 -
very intelligent and well-oriented decision."   After returning to

the courtroom, Tull-Abreu's counsel informed the judge at sidebar

that Tull-Abreu had decided not to testify.5     The defense then

rested, making no mention to the jury of Tull-Abreu's decision not

to testify.

          While it may or may not have been unusual (we are given

no information) for the prosecutor to raise the topic of the

defendant being fully advised of his Fifth Amendment right not to

testify and the possible consequences of his taking the stand, our

review of the record shows no improprieties and certainly no

infringement of Tull-Abreu's rights.     Though a district judge

generally is under "no duty to apprise a criminal defendant of the

right to testify or to secure an explicit waiver of that right,"

United States v. Padilla-Galarza, 886 F.3d 1, 9 (1st Cir. 2018),

it is not uncommon for district judges to make sure defendants and

witnesses are fully apprised of their testimonial rights, see,


     5    Tull-Abreu's counsel stated at sidebar, in part: "What
I want to say on the record is, that following the Court's
opportunity that we discuss with our client, we have discussed it
with our client, and he has decided to exercise his constitutional
[sic] -- not . . . to testify."
          Tull-Abreu's affidavit submitted with his motion for a
new trial makes the claim that the prosecutor somehow intimidated
him into not testifying by raising the issue of his Fifth Amendment
rights. We reject his assertion for a number of reasons, including
that: he was advised by his own counsel after the prosecutor raised
the issue, and his counsel disclosed to the court that Tull-Abreu
had decided not to testify. At no time during this period did
Tull-Abreu or his counsel suggest that Tull-Abreu's decision was
involuntary.


                              - 15 -
e.g., United States v. Santiago-Becerril, 130 F.3d 11, 26 (1st

Cir. 1997) ("A judge is entitled to make sure a witness understands

her Fifth Amendment rights."); Berkovitz v. Minnesota, 505 F.3d

827, 828 (8th Cir. 2007) ("The trial court, on the record, made

sure that [the defendant] understood that she had both the right

to testify and the right to remain silent."); United States v.

Webber, 208 F.3d 545, 552 (6th Cir. 2000) (affirming the district

court's "non-coercive explanation of the law" to the defendant

about the defendant's right to testify or remain silent and

possible consequences if the defendant chose to testify).

              There is no claim that there was anything wrong in the

district court's explanation of the law, and indeed the explanation

was accurate as to the right not to testify and some potential

consequences of choosing to testify (for example, possibly facing

cross-examination).      Tull-Abreu had counsel at his side throughout

these exchanges, and his counsel did not object or in any manner

suggest that it was inappropriate for the government to raise the

issue;   to    the   contrary,   Tull-Abreu's   counsel   asked   that   the

prosecutor "finish" her explanation.            And Tull-Abreu and his

counsel were granted a recess to contemplate the matter further

and did not ask for more time after the recess.

              Further, the district judge instructed the jury after

the defense rested that Tull-Abreu was "entitled to the presumption

of innocence" and so "his silence is not to be taken against him."


                                   - 16 -
The   following        day,     the    district       judge    instructed    the    jury

similarly, with a reminder that "no inference of guilt, or of

anything else, may be drawn from the fact that [Tull-Abreu] did

not testify."

             In    the     end,       Tull-Abreu's       argument    rests     on    the

assertions that the prosecutor should not have raised the issue

(done to ensure against issues on appeal), the district court

should not have explained Tull-Abreu's rights, and the raising and

explaining        of     Tull-Abreu's         rights     essentially      coerced     or

intimidated Tull-Abreu into not testifying.                     But on this record,

accurately making sure a defendant is fully apprised of his rights

is not coercion or any such violation.                    Accord United States v.

Joelson, 7 F.3d 174, 178 (9th Cir. 1993).                       Further, Tull-Abreu

does not show prejudice, either, given the substantial amount of

evidence presented against him.                 See United States v. Rodríguez-

Vélez,   597      F.3d    32,    45    (1st    Cir.    2010)    (noting     that,   when

considering potential harm from a Fifth Amendment violation about

the right to remain silent, "[l]ast -- but far from least -- this

was not a close case").

C.    Denial of Motion for a Judgment of Acquittal

             We turn to Tull-Abreu's contention that the district

court incorrectly denied his third motion for a judgment of

acquittal pursuant to Federal Rule of Criminal Procedure 29, as to

the charges of furnishing false or fraudulent information for


                                         - 17 -
prescriptions in controlled substances.          We review the denial of

a Rule 29 motion for a judgment of acquittal de novo, United States

v. Acevedo, 882 F.3d 251, 258 (1st Cir. 2018), but that review is

"quite limited" and "we must affirm unless the evidence, viewed in

the   light    most   favorable   to   the   government,   could   not   have

persuaded any trier of fact of the defendant's guilt beyond a

reasonable doubt," United States v. Hernández, 218 F.3d 58, 64

(1st Cir. 2000) (quoting United States v. Paradis, 802 F.2d 553,

559 (1st Cir. 1986)).

              Tull-Abreu, in his counselled brief, argues that the

evidence was insufficient for the four counts of furnishing false

or fraudulent information in prescriptions for Percocet6 because

the prescriptions could have been written "before he went to the

airport" on days when he was traveling, or could have been sent




      6       The relevant statute states in part:

              It shall be unlawful for any person knowingly
              or intentionally -- . . .
                   (4)(A)   to furnish false or fraudulent
                   material information in, or omit any
                   material     information    from,     any
                   application, report, record, or other
                   document required to be made, kept, or
                   filed under this subchapter or subchapter
                   II[.]

21 U.S.C. § 843(a)(4)(A).    A federal regulation concerning the
"[m]anner of issuance of prescriptions" mandates in part that
"[a]ll prescriptions for controlled substances shall be dated as
of, and signed on, the day when issued." 21 C.F.R. § 1306.05(a).

                                   - 18 -
"to the pharmacy by electronic transmission or fax" while he was

traveling out of the country.      Not so.

            As to Tull-Abreu's airport theory (that he could have

been in one of his medical offices on a day he traveled to or from

the Dominican Republic), three of the four prescriptions at issue

had dates that were in the middle of trips Tull-Abreu took to the

Dominican Republic, not dates on which he traveled to or from

Puerto Rico. Only the December 12, 2012, prescription corresponded

to a day when he could have returned to Puerto Rico.              But his

secretaries testified that Tull-Abreu "would not come over to the

office" on days he traveled to and from the Dominican Republic,

and that he would "leave [prescriptions] ready" (that is, dated

and signed) in advance of his trips, sometimes for his secretaries

to deliver after he had left and before he returned. One secretary

explained    that   Tull-Abreu   "would    leave   [the    prescriptions]

prepared and ready.      And then, on the date that the prescription

was due, the patient would . . . be told to come over to pick up

the prescription . . . ." A patient also testified that "if [Tull-

Abreu] had a trip, he would leave [a prescription] ready."          As to

the electronic transmission theory, there was no evidence at trial

supporting it and it is contrary to the evidence just recited.

D.   Substantive Reasonableness of the Sentence Imposed

            Tull-Abreu's counselled brief challenges the substantive

reasonableness      of   his   sentence,     conceding    the   procedural


                                  - 19 -
reasonableness.           Tull-Abreu's argument here is premised entirely

on his contentions that: (1) the convictions should be vacated,

and    indictments        should    be    dismissed,    for     aggravated     identity

theft; (2) the convictions should be vacated, and the indictments

should      be        dismissed,    for    providing      false     and   fraudulent

information for the Percocet prescriptions; and (3) Tull-Abreu's

Sixth Amendment rights were violated because he could not present

a complete defense.            We have rejected each of these contentions,

and his bottom-of-the-Guidelines-range sentence is not outside the

"universe        of    reasonable    sentences,"       United    States   v.    Rivera-

González, 776 F.3d 45, 52 (1st Cir. 2015).                    That ends the matter.

E.     Pro Se Arguments

             Tull-Abreu's pro se brief raises sufficiency challenges

to his conspiracy conviction and his health care fraud convictions

and argues that his rights under the Confrontation Clause were

violated.

       1.    Sufficiency of the Evidence for Conspiracy to Commit
             Health Care Fraud

             Tull-Abreu argues pro se, and for the first time on

appeal, that his conviction for conspiracy to commit health care

fraud was not supported by sufficient evidence.                    This is because,

he argues, his secretaries who testified at trial did not say

"whether they agreed to participate in the alleged fraud."                            No

such   testimony         was   needed     for   two   reasons.      First,     such   an



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agreement    can   "be    proven   solely    by    circumstantial   evidence,"

United States v. Iwuala, 789 F.3d 1, 9 (1st Cir. 2015), and second,

an agreement can "be inferred from other evidence including a

course of conduct," United States v. Moran, 984 F.2d 1299, 1300

(1st Cir. 1993).

            The jury could easily have inferred that Tull-Abreu had

an agreement, explicit or implicit, with his secretaries to take

part in the fraudulent scheme.            Our recitation of the evidence

explains the key roles, over time, that the secretaries played in

the fraud.     The government offered an audio recording of Tull-

Abreu explaining to two of his secretaries how they should fill

out CMS 1500 forms for services that had not been provided to

patients, including explaining why some of the CMS 1500 forms and

supporting progress notes were left undated (in Tull-Abreu's own

words, "[s]o we can put the dates on").              The audio recording has

no statements of protest from the secretaries, and inference of

agreement    could   be    drawn   from     this   recording   alone.   Three

secretaries testified, covering all four years of the fraudulent

scheme.     Indeed, one secretary who worked with Tull-Abreu from

2009 to 2014 explained that she knew that "only one form per visit"

should be collected from a patient, rather than the multiple forms

that were often collected as part of the fraud.

            The overall "course of conduct," id., readily supports

an inference of conspiracy.         No more is needed.


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     2.   Sufficiency of the Evidence for Health Care Fraud

          Tull-Abreu argues in his pro se brief that insufficient

evidence supported his health care fraud convictions, on the theory

that, had he falsely billed for every patient, every visit, every

week, the proceeds from the fraudulent scheme would have been far

greater than the amount stated in the government's restitution

request and the subsequent restitution order.7

          To start, the government's case was not that every

patient of Tull-Abreu's was part of the fraudulent scheme; Tull-

Abreu was more selective.   Further, the amount of restitution is

not relevant to the sufficiency of the evidence supporting Tull-

Abreu's convictions for health care fraud.   Restitution is part of

a criminal penalty.   See, e.g., United States v. Ziskind, 471 F.3d

266, 270 (1st Cir. 2006).     Indeed, restitution can be based in

part on acquitted conduct, as it requires "the less stringent

preponderance of the evidence standard."     United States v. Pena,

910 F.3d 591, 604 (1st Cir. 2018).

     3.   Right to Challenge Particular Non-Witnesses

          In his pro se brief, Tull-Abreu argues that he was denied

his Sixth Amendment right to be confronted with the witnesses

against him. Tull-Abreu argues that the Confrontation Clause meant




     7    Tull-Abreu incorrectly states several times in his pro
se brief that the restitution amount was $1.2 million; the actual
amount imposed was $518,775.20.


                              - 22 -
that the government was required to call five of his patients whose

information was used on fraudulent CMS 1500 forms.              The argument

is subject to plain error review,8 as it was not raised before the

district court, see United States v. Acevedo-Maldonado, 696 F.3d

150, 156 (1st Cir. 2012), and is without any merit.

              It is axiomatic that "[t]he confrontation clause does

not come into play where a potential witness neither testifies nor

provides evidence at trial."          United States v. Porter, 764 F.2d 1,

9 (1st Cir. 1985); see also Michigan v. Bryant, 562 U.S. 344, 354

(2011) (noting the "limit[ing of] the Confrontation Clause's reach

to testimonial statements"); Crawford v. Washington, 541 U.S. 36,

51   (2004)    (noting   that   the    Confrontation   Clause   "applies   to

witnesses against the accused -- in other words, those who bear

testimony" (internal quotation marks omitted)).           None of the five

former patients that Tull-Abreu points to were called as witnesses

by the prosecution or provided evidence at trial.           Tull-Abreu was

free to call them but chose not to do so.              His Sixth Amendment

rights were not violated.




      8   Plain error requires a showing of "(1) 'error,' (2) that
is 'plain,' and (3) that 'affect[s] substantial rights.'" Johnson
v. United States, 520 U.S. 461, 467 (1997) (quoting United States
v. Olano, 507 U.S. 725, 732 (1993)). If those three conditions
are met, "an appellate court may then exercise its discretion to
notice a forfeited error, but only if (4) the error 'seriously
affect[s] the fairness, integrity, or public reputation of
judicial proceedings.'"     Id. (some internal quotation marks
omitted) (quoting Olano, 507 U.S. at 732).


                                      - 23 -
             III.

Affirmed.




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