                   Case: 12-10034          Date Filed: 09/20/2012   Page: 1 of 11

                                                                         [DO NOT PUBLISH]


                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-10034
                                        Non-Argument Calendar
                                      ________________________

                               D.C. Docket No. 1:11-cr-20446-FAM-1


UNITED STATES OF AMERICA,

lllllllllllllllllllllllllllllllllllllll                                    lPlaintiff-Appellee,

                                                  versus

JOEL MARTINEZ HERNANDEZ,

llllllllllllllllllllllllllllllllllllllll                                 Defendant-Appellant.

                                     ________________________

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

                                           (September 20, 2012)

Before TJOFLAT, WILSON and FAY, Circuit Judges.

PER CURIAM:

         This is a Medicare fraud case, involving money laundering of Medicare
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payments and avoidance of currency transaction reporting requirements. On June

30, 2011, a grand jury returned a 17-count indictment against Joel Martinez

Hernandez, charging him in Counts 1 through 8 with money laundering, in

violation of 18 U.S.C. § 1957, in Counts 9 through 15 with money laundering, in

violation of 18 U.S.C. § 1956(a)(1)(B)(i), and in Counts 16 and 17, for the purpose

of evading the currency transaction reporting requirements of 31 U.S.C. § 5313(a),

attempting to cause Bank of America to fail to file a report required under §

5313(a) while he was violating another law of the United States as part of a pattern

of illegal activity involving more than $100,000 in a 12-month period, in violation

of 31 U.S.C. § § 5324(a)(1) and (d)(2) and 31 C.F.R. pt. 103. A jury convicted

Hernandez on all counts, and the District Court sentenced him to concurrent prison

terms of 84 months. He now appeals his convictions.

      Hernandez argues that the District Court erred in denying his motion for

judgment of acquittal (1) on Counts 1 through 8 of the indictment, because the

Government failed to prove that he knew that the transactions to which he was a

party involved the proceeds of illegal activity; (2) on Counts 9 through 15,

because the Government failed to prove that he knew either that an entity from

which he received $350,000 was fraudulently billing Medicare or that the

$350,000 represented the proceeds of the fraud; and (3) on Counts 16 and 17,

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because the Government failed to prove that he knew that attempting to avoid the

currency transaction reporting requirement was illegal. Alternatively, Hernandez

argues that if we deny him a judgment of acquittal on all counts, we should grant

him a new trial on the ground that the court abused its discretion in denying his

motion for a mistrial based on the prosecutor’s comment regarding his right to

remain silent. We find no merit in Hernandez’s arguments and therefore affirm his

convictions.

                                         I.

      We review de novo whether the evidence was sufficient to sustain a

conviction. United States v. Jiminez, 564 F.3d 1280, 1284 (11th Cir. 2009). We

take the evidence in the light most favorable to the Government, making all

reasonable inferences and credibility choices in favor of its case. United States v.

Frank, 599 F.3d 1221, 1233 (11th Cir. 2010).

      The credibility of witnesses’ testimony is a matter for the jury to decide. We

assume that the jury resolved the credibility issues in a manner supporting its

verdicts. United States v. Thompson, 473 F.3d 1137, 1142 (11th Cir. 2006).

Testimony will not be considered incredible as a matter of law unless it is

incredible on its face, such as testimony as to facts the witness could not have

observed or events that could not have occurred under the laws of nature. United

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States v. Thompson, 422 F.3d 1285, 1291 (11th Cir. 2005). The testimony of an

accomplice can be sufficient to prove guilt, even though the witness is, for

example, an admitted wrongdoer, and even if the testimony is uncorroborated. See

Craig v. Singletary, 127 F.3d 1030, 1044-45 (11th Cir. 1997) (en banc); United

States v. Andrews, 953 F.2d 1312, 1318 (11th Cir. 1992). Moreover, a defendant’s

statement, if disbelieved by a jury, may be considered as substantive evidence of

guilt. United States v. McDowell, 250 F.3d 1354, 1367 (11th Cir. 2001).

                                         II.

      To obtain a § 1957 conviction on Counts 1 through 8, the Government had

to prove: (1) that the defendant knowingly engaged or attempted to engage in a

monetary transaction in criminally derived property of a value greater than

$10,000, and (2) that the property was derived from specified unlawful activity.

See 18 U.S.C. § 1957(a); United States v. Silvestri, 409 F.3d 1311, 1332-33 (11th

Cir. 2005). The Government need not prove that the defendant knew that the

property was derived from “specified unlawful activity”; it only needs to prove

that the defendant knew that the property was criminally derived. See 18 U.S.C.

§ 1957(c); United States v. Baker, 19 F.3d 605, 614 (11th Cir. 1994). Hernandez

only challenges the knowledge element of the § 1957 offense, arguing that the

Government did not prove that he knew the funds he received were derived from a

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criminal offense.

      The evidence established that Hernandez received $356,000 from Mercy

Medical, a Medicare provider. Mercy Medical provided a variety of services and

items to Medicare beneficiaries, including visits to doctors’ offices, hospital stays,

and durable medical equipment. Between February 2005 and February 2008,

Mercy Medical submitted claims to Medicare totaling $12.8 million for the

treatment of approximately 882 patients and the provision of 18,776 items to

beneficiaries. Medicare allowed over $8 million in claims and paid Mercy $6.4

million.

      Mercy billed Medicare an average of $14,000 per patient, including

$446,238 in illegitimate claims for services and items furnished to patients after

their death. For example, Mercy submitted claims for services to 223 beneficiaries

pursuant to prescriptions from only one doctor, who wrote prescriptions for only

one of the beneficiaries. Another 226 beneficiaries received prescriptions from

another doctor, who wrote none of the prescriptions. Hernandez obtained the

patient lists needed to fabricate the bogus prescriptions, and he arranged for others

to cash the Medicare checks to Mercy Medical. The evidence that he knew that

the money he received was derived from criminal activity was overwhelming.

                                         III.

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      Section 1956(a)(1)(B)(i) is known as the “concealment” provision of the

money laundering statute, the violation of which “must follow in time the

completion of the underlying transaction as an activity designed to conceal or

disguise the origins of the proceeds.” United States v. Majors, 196 F.3d 1206,

1211-12 (11th Cir. 1999) (quotation omitted); see also 18 U.S.C.§ 1956. To

obtain a § 1956(a)(1)(B)(i) conviction on Counts 9 through 15, the Government

had to prove that:

             (1) the defendant conducted or attempted to conduct a
             financial transaction; (2) the transaction involved the
             proceeds of a statutorily specified unlawful activity; (3)
             the defendant knew the proceeds were from some form
             of illegal activity; and (4) the defendant knew a purpose
             of the transaction was to conceal or disguise the nature,
             location, source, ownership, or control of the proceeds.

United States v. Miles, 290 F.3d 1341, 1355 (11th Cir. 2002). Once again,

Hernandez claims that the Government failed to prove that he knew the funds were

derived from healthcare fraud.

      We are not persuaded. The same evidence that established Hernandez’s

violation of § 1957 established his violation of § 1956(a)(1)(B)(i). Hernandez

knew that the funds he received were derived from a criminal offense. He does

not dispute the Government proved the existence of a Medicare fraud scheme and

that the funds he received were the proceeds of this scheme.

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                                         IV.

      To obtain convictions on Counts 16 and 17, structuring financial

transactions to avoid reporting requirements, the Government had to show that the

defendant “cause[d] or attempt[ed] to cause a domestic financial institution to fail

to file a report required” under the applicable currency transaction reporting

statutes and regulations. See 31 U.S.C. § 5324(a)(1). In Ratzlaf v. United States,

the Supreme Court held that, to convict a defendant for violating the anti-

structuring laws, the Government had to prove that the defendant knew that the

structuring in which he engaged was unlawful. 510 U.S. 135, 149 (1994).

However, since Ratzlaf, Congress has amended § 5324, and to establish a violation

of § 5324, the Government must now prove that the defendant acted with “a

purpose to evade the filing requirement.” United States v. Vazquez, 53 F.3d 1216,

1218 n.2 (11th Cir. 1995). Hernandez only challenges the statute’s mens rea

requirement, arguing that the Government failed to prove that he knew that the

structuring in which he engaged was unlawful.

      To convict Hernandez of structuring, the Government did not have to prove

that he knew that the way he structured transactions was unlawful. Instead, all it

had to prove was that he acted with a purpose to evade the reporting requirement.

See Vazquez, 53 F.3d at 1218 n.2. The Government presented sufficient evidence

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to establish that Hernandez purposefully acted to evade the reporting

requirements. The jury heard testimony that Hernandez told a co-conspirator that

withdrawals had to be made for sums of less than $10,000 so that the Internal

Revenue Service would not look into the transactions. His bank statements

reflected that, on three days, he made multiple cash withdrawals of amounts

slightly less than $10,000. A jury reasonably could conclude that he acted with “a

purpose to evade the filing requirement.”

                                          V.

      We review the District Court’s denial of a motion for a mistral based on a

prosecutor’s comment regarding a defendant’s right to remain silent for abuse of

discretion. United States v. Dodd, 111 F.3d 867, 869 (11th Cir. 1997). Because a

trial judge is in the best position to evaluate both the tone and demeanor of the

prosecutor, United States v. Wilson, 149 F.3d 1298, 1303 (11th Cir. 1998), and the

prejudicial effect of a statement or evidence on the jury, it is within that judge’s

discretion to grant or deny a mistrial, United States v. Delgado, 321 F.3d 1338,

1346-47 (11th Cir. 2003).

      The Fifth Amendment forbids the Government from suggesting to a jury

that a defendant’s failure to testify may be taken as evidence of guilt. See

Thompson, 422 F.3d at 1298-99. However, not every reference to a defendant’s

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failure to testify is a constitutional violation. See id. In determining whether a

comment upon a defendant’s invocation of his right to silence is impermissible, we

consider whether the statement was manifestly intended to refer to the defendant’s

silence, or if it was of such character that a jury would “naturally and necessarily”

take it to be a comment on the defendant’s silence. Dodd, 111 F.3d at 869

(quotation omitted). The defendant bears the burden of establishing the existence

of one of the two criteria. United States v. Carter, 760 F.2d 1568, 1578 (11th Cir.

1985). A court must consider the circumstances under which the statement was

made. United States v. Chastain, 198 F.3d 1338, 1351 (11th Cir. 1999). “[We]

will not find that a prosecutor manifestly intended to comment on a defendant’s

failure to testify if some other explanation for the prosecutor’s remark is equally

plausible.” United States v. Chirinos, 112 F.3d 1089, 1099 (11th Cir. 1997)

(citation ommitted). Under the second part of the test, the question is not whether

the jury “possibly or even probably” would view the remark as a comment on

one’s failure to testify, but whether the jury “necessarily” would have done so.

Carter, 760 F.2d at 1578 (emphasis in original, quotations omitted).

      Improper remarks at trial may be cured by an instruction from the district

court. See United States v. Hernandez, 145 F.3d 1433, 1439 (11th Cir. 1998).

Accordingly, the mistrial determination must be made in the context of the entire

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trial, including curative instructions. United States v. Newsome, 475 F.3d 1221,

1227 (11th Cir. 2007). “When a district court gives a curative instruction, the

reviewing court will reverse only if the evidence is so highly prejudicial as to be

incurable by the trial court’s admonition.” Id. (quotation omitted).

      The District Court did not abuse its discretion in denying Hernandez’s

motion for a mistrial. First, the record does not demonstrate that the prosecutor

manifestly intended to comment on Hernandez’s invocation of his Fifth

Amendment rights, which occurred in the middle of his interview with an FBI

agent. See Dodd, 111 F.3d at 869. The prosecutor did not ask the testifying agent

about Hernandez’s response to the question of where the funds derived from the

Medicare fraud went; nor did he ask whether Hernandez had invoked his right to

remain silent.

      Moreover, the line of questioning was not such that the jury would

“naturally and necessarily” take it to be a comment on Hernandez’s silence. See

Dodd, 111 F.3d at 869. Hernandez initially waived his Miranda1 rights and agreed

to speak with the FBI agent. From the agent’s testimony, the jury did not know

that Hernandez invoked his right to remain silent during the interview after the

agent asked about the location of the funds. Moreover, the prosecutor’s


      1
          Miranda v. Arizona, 384 U.S. 436 (1966).

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question—which asked whether the FBI’s “trail ended with” Hernandez—was

struck, and the District Court gave a curative instruction, which did not refer to the

question, but reminded the jury that the prosecutor had the burden of proof and

that the defendant did not have to testify or present any evidence whatsoever. In

the context of Hernandez’s entire trial, and in light of the other evidence of his

guilt, this isolated comment was not so highly prejudicial that it could not be cured

by this instruction. See Newsome, 475 F.3d at 1227; Hernandez, 145 F.3d at 1439.

      For the foregoing reasons, Hernandez’s convictions are

      AFFIRMED.




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