             Case: 13-13104     Date Filed: 09/04/2014   Page: 1 of 13


                                                              [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-13104
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 1:12-cr-20291-CMA-3



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

WONDERA EASON,

                                                              Defendant-Appellant.

                          ________________________

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

                               (September 4, 2014)

Before TJOFLAT, JORDAN, and BLACK, Circuit Judges.

PER CURIAM:

      Wondera Eason appeals her conviction and 120-month sentence after a jury

found her guilty of conspiring to commit health care fraud in violation of 18 U.S.C.
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§§ 1347, 1349. Eason had been the medical records director at Health Care

Solutions (HCS), a partial hospitalization program providing intensive group

psychotherapy services at three locations: East Miami (HCS-East), West Miami

(HCS-West), and North Carolina (HSC-NC). The Government alleged Eason

defrauded Medicare by submitting claims for services that were not provided or

were medically inappropriate, by forging signatures on forms submitted to

Medicare, by directing therapists to fabricate medical records, and by helping

conceal HCS’s fraud during on-site audits by Medicare. A jury found Eason

guilty, and the district court sentenced Eason to 120 months’ imprisonment.

       On appeal, Eason challenges the sufficiency of the evidence against her, 1 a

number of the district court’s evidentiary rulings, two sentencing enhancements,

and the substantive reasonableness of her 120-month sentence. Upon review, we

affirm.




       1
          Eason also appeals the district court’s denial of her motion under Federal Rule of
Criminal Procedure 29 for a judgment of acquittal. We consider this issue together with Eason’s
challenge to the sufficiency of the evidence because the analysis is identical. Compare United
States v. Gamory, 635 F.3d 480, 497 (11th Cir. 2011) (“We will uphold the denial of a Rule 29
motion if we determine that a reasonable fact-finder could conclude that the evidence established
the defendant’s guilt beyond a reasonable doubt.” (internal quotation marks omitted)) and United
States v. Thompson, 422 F.3d 1285, 1290 (11th Cir. 2005) (“When a jury verdict is challenged
on the ground of sufficiency of the evidence, the reviewing court must view the evidence in the
light most favorable to the government and determine whether the jury could have found the
defendant guilty beyond a reasonable doubt.” (internal quotation marks omitted)).


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                                     I. DISCUSSION

A.     Sufficiency of the Evidence 2

       Viewing the evidence in the light most favorable to the Government with all

inferences and credibility determinations made in the Government’s favor, we

conclude that a reasonable jury could have found Eason guilty beyond a reasonable

doubt. See United States v. Gamory, 635 F.3d 480, 497 (11th Cir. 2011). To find

Eason guilty under § 1347, the jury had to determine beyond a reasonable doubt

“(1) that a conspiracy existed; (2) that the defendant knew of it; and (3) that the

defendant, with knowledge, voluntarily joined it.” United States v. Vernon, 723

F.3d 1234, 1273 (11th Cir. 2013) (internal quotation marks omitted). Testimony

from a variety of HCS employees established that a conspiracy existed between

them to defraud Medicare by submitting claims for therapy sessions for patients

who either did not participate in the sessions or for whom the sessions were

medically inappropriate due to cognitive deficits that precluded them from

participating in or benefitting from the sessions. HCS employees also testified

about the fabrication of progress notes concealing that some therapy sessions

actually consisted of picnics or film viewings rather than billable treatments.

Accordingly, sufficient evidence established the first element of Eason’s offense.


       2
         We review both a challenge to the sufficiency of the evidence and a district court’s
denial of a motion for a judgment of acquittal under Rule 29 de novo. United States v. Gamory,
635 F.3d 480, 497 (11th Cir. 2011).


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       The evidence was also sufficient to show that Eason knew of the essential

nature of the conspiracy. See id. Eason was in charge of the medical records at all

three HCS locations, and HCS employees Alexandra Haynes and John Thoen both

testified that the medical records were the most important aspect of the fraud

because they were the primary basis of Medicare’s decision whether to pay HCS’s

claims. Similar evidence supported the jury’s finding that Eason knowingly and

voluntarily jointed the conspiracy. Thoen testified that he and Armando Gonzalez,

HCS’s owner, explained to Eason that her role with HCS was to ensure that all

progress notes were accounted for in HCS’s Medicare claims, even for patients

who had not received treatment, and Eason subsequently accepted a position with

HCS-NC. In addition, In her role with HCS, Eason directed Sarah Keller, Haynes,

and Serena Joslin, other HCS employees, to fabricate medical records, and Haynes

and Joslin each observed Eason forging signatures on her own, all in furtherance of

the conspiracy. This evidence provided a sufficient basis for the jury to find

beyond a reasonable doubt that Eason knowingly joined the conspiracy. 3 See

Vernon, 723 F.3d at 1274.




       3
          Eason’s argument that the Government failed to show that she committed any overt act
in furtherance of the conspiracy fails first because an overt act is not required for a violation of
§ 1349 and second because the foregoing evidence establishes a variety of overt acts in
furtherance of the conspiracy, including forging documents and directing others to forge
documents.


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       Eason asks us to question the motives of her co-conspirators who testified

against her, but we make all credibility determinations in favor of the verdict, and

Eason has not advanced any argument that the testimony against her was incredible

as a matter of law. See United States v. Thompson, 422 F.3d 1285, 1291 (11th Cir.

2005). Thus, a reasonable jury could have found beyond a reasonable doubt that

Eason was guilty of conspiracy to commit health care fraud. Accordingly, there

was sufficient evidence to support Eason’s conviction, and for the same reasons,

the district court did not err in denying Eason’s motion for judgment of acquittal.

See Gamory, 635 F.3d at 497.

B.     Evidentiary Rulings 4

       Eason challenges ten of the district court’s evidentiary rulings. In three

cases, Eason raises an argument for the first time on appeal. Accordingly, we

review those arguments only for plain error, United States v. Wetherald, 636 F.3d

1315, 1320 (11th Cir. 2011), and we find none. In the remaining seven cases, we

conclude the district court did not abuse its discretion because none of these rulings

were “manifestly erroneous.” See United States v. Frazier, 387 F.3d 1244, 1258

(11th Cir. 2004) (en banc) (internal quotation marks omitted). We address each of

the challenged evidentiary rulings in turn.


       4
         We review a district court’s evidentiary rulings for abuse of discretion and the factual
findings underlying those rulings for clear error. United States v. Lebowitz, 676 F.3d 1000, 1009
(11th Cir. 2012).


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      First, Eason challenges as unduly prejudicial the admission of Gema

Pampin’s response to the Government’s question, “Is there anyone in the

courtroom here today that you conspired to commit healthcare fraud with?” in

which she stated that she conspired with Eason. We review the admission of this

statement only for plain error because, at trial, Eason challenged the question as

calling for a legal conclusion, while on appeal, she asserts Pampin’s statement was

prejudicial. Wetherald, 636 F.3d 1315, 1320. Because Eason has identified no

precedent from either this Court or the Supreme Court establishing that a

coconspirator’s statement that she conspired with a defendant is prejudicial, she

cannot show that this ruling constituted plain error. See United States v. Lejarde-

Rada, 319 F.3d 1288, 1291 (11th Cir. 2003).

      Second, Eason challenges the admission of Thoen’s testimony that his drug

activity did not impair his ability to understand what was going on at HCS on the

bases that it calls for a legal conclusion and that Thoen, as a lay witness, was not

qualified to testify on that subject. Eason raised the latter argument for the first

time on appeal, so we review that argument only for plain error, Wetherald, 636

F.3d at 1320, and conclude that the district court committed none because there is

no precedent from this Court or the Supreme Court establishing when a lay witness

may testify about his ability to understand what was happening around him despite

drug use, see Lejarde-Rada, 319 F.3d at 1291. As for Eason’s argument that



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Thoen’s statement supplied a legal conclusion, we disagree. Thoen’s statement

concerned his personal perception, not any legal implications of his conduct. See

Montgomery v. Aetna Cas. & Sur. Co., 898 F.2d 1537, 1541 (11th Cir. 1990). Put

simply, whether drug use has affected one’s ability to perceive is not a question of

law.

       Third, Eason challenges the admission of Thoen’s testimony concerning

conversations he had with Gonzalez about bringing Eason on to work at HCS-NC

on the basis that the testimony was hearsay and that admitting it violated Eason’s

right to confront the witnesses testifying against her under the Sixth Amendment.

See United States v. Jiminez, 564 F.3d 1280, 1286 (11th Cir. 2009) (citing

Crawford v. Washington, 541 U.S. 36, 51-52 (2004)). Eason raised her argument

under the Confrontation Clause for the first time on appeal, so we review this

argument only for plain error. Wetherald, 636 F.3d 1315, 1320. The district court

did not commit plain error because Gonzalez’s statements were made in a private,

informal conversation and not “under circumstances which would lead an objective

witness reasonably to believe that the statement would be available for use at a

later trial.” Crawford, 541 U.S. at 52. And Thoen’s statement was not hearsay

under Fed. R. Evid. 801(d)(2)(E) because it was offered against Eason and “was

made by [Eason’s] coconspirator during and in furtherance of the conspiracy.”




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       Fourth, Eason challenges Thoen’s testimony about how he learned Gonzalez

was paying Eason’s rent while she was in North Carolina as irrelevant. This

testimony was relevant, however, because it showed additional compensation

Eason received for participating in the fraud and, if true, tended to make it more

likely that she would have agreed to participate. 5 See Fed. R. Evid. 401.

       Fifth, Eason challenges as hearsay Thoen’s testimony that Eason directed

HCS therapists not to mention that patients had certain cognitive impairments (e.g.,

dementia, mental retardation), that patients were not participating in therapy

sessions, or to mention other “buzz words” in patients’ progress notes because

Medicare would not pay the claims if the progress notes included these buzz

words. This statement was not hearsay under Fed. R. Evid. 801(d)(2)(A) because

it was the statement of an opposing party, Eason.

       Sixth, Eason challenges Thoen’s testimony concerning a staff discussion

about a Medicare review as hearsay, but this testimony was not hearsay because it

was not offered for the truth of what it asserted. See Fed. R. Evid. 801(c)(2).

Thoen testified that when he entered an office, staff were discussing a letter

Medicare had sent HCS putting it under review, but Thoen’s statement was not

offered to show that the staff were accurate that HCS had received a letter. Rather,


       5
         Eason also challenged Thoen’s statement that she told him that Gonzalez was paying
her rent while she was in North Carolina as hearsay, but this statement is not hearsay pursuant to
Fed. R. Evid. 801(d)(2)(A) because it was the statement of an opposing party.


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Thoen’s statement was offered to show how he became aware of the review.

Moreover, Thoen also testified that Gonzalez gave him a copy of the letter in

question, so even if it was erroneous to admit Thoen’s statement about the staff

discussion, such error was harmless. See United States v. Breitweiser, 357 F.3d

1249, 1254 (11th Cir. 2004).

      Seventh, Eason challenges as hearsay Keller’s testimony that she believed

some of HCS’s patients were inappropriate for group therapy because they were

too elderly and had cognitive impairments that kept them from knowing what they

were doing at HCS, how they got there, or even their own names. This testimony

did not contain a statement by someone other than Keller and therefore is not

hearsay. Fed. R. Evid. 801(c).

      Similarly, Eason’s eighth objection is that Pampin’s testimony that she

fabricated all types of Medicare documents (e.g., initial screening documents,

patient histories, treatment plans, psychotherapy notes) constituted hearsay, but

nothing in Pampin’s testimony contained the statement of another offered to prove

the truth of the matter asserted. Accordingly, this testimony was not hearsay. Fed.

R. Evid. 801(c).

      Ninth, Eason challenges as hearsay Special Agent Bryan Piper’s testimony

that Eason told him Gonzalez had instructed the therapists that each file to be

submitted to Medicare had to contain four progress notes. Eason’s statement was



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not hearsay because it was a made by the opposing party, and Gonzalez’s

statement was not hearsay because it was made by a coconspirator during and in

furtherance of the conspiracy. Fed. R. Evid. 801(d)(2)(A), (E).

       Finally, Eason argues a chart comparing HCS employees’ salaries was

substantially more prejudicial than probative and should have been excluded under

Fed. R. Evid. 403. However, Eason has not explained why the chart was

prejudicial in light of the fact that Eason’s salary was comparable to most HCS

employees and significantly less than Thoen’s. And the fact she was compensated

for her work with HCS was surely relevant. to whether she participated in its

Medicare scheme. For these reasons, we cannot conclude that the district court

abused its discretion in admitting the chart.

       In light of the foregoing, Eason has failed to establish reversible error as to

any of the district court’s evidentiary rulings. 6

C.     Sentencing Enhancements

       Eason challenges the district court’s decision to impose a three-level

enhancement based on her role as a manager or supervisor of criminal activity




       6
         Eason also argues that the cumulative effect of the district court’s erroneous evidentiary
rulings deprived her of a fair trial. See United States v. Lopez, 590 F.3d 1238, 1258 (11th Cir.
2009). However, as we have explained, the district court did not make multiple errors, so there
can be no cumulative effect warranting reversal. See United States v. Waldon, 363 F.3d 1103,
1110 (11th Cir. 2004).


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involving five or more participants under U.S.S.G. § 3B1.1 7 and a two-level

enhancement for an offense involving sophisticated means under U.S.S.G.

§ 2B1.1(b)(10)(C). 8 Neither of these enhancements was clearly erroneous. The

enhancement for Eason’s role as a manager was supported by evidence that she

instructed other HCS employees to fabricate medical records, as well as Pampin’s

testimony that Eason was part of Gonzalez’s inner circle and that Gonzalez, who

owned HCS, relied on Eason’s advice in making important decisions. See United

States v. Ndiaye, 434 F.3d 1270, 1304 (11th Cir. 2006). 9

       Similarly, the district court did not clearly err by imposing an enhancement

for the use of sophisticated means because the scheme spanned six years and

involved coordinated efforts to produce, compile, and store fraudulent documents

at three locations across two states. See United States v. Ghertler, 605 F.3d 1256,

1268 (11th Cir. 2010) (affirming application of a sophisticated-means


       7
          “A district court’s upward adjustment of a defendant’s Guidelines offense level due to
his status as a leader or organizer under U.S.S.G. § 3B1.1 is a finding of fact reviewed only for
clear error.” United States v. Phillips, 287 F.3d 1053, 1055 (11th Cir. 2002).
       8
        “We review the district court’s findings of fact related to the imposition of sentencing
enhancements, including a finding that the defendant used sophisticated means, for clear error.”
United States v. Clarke, 562 F.3d 1158, 1165 (11th Cir. 2009).
       9
          For the first time on appeal, Eason argues application of the role enhancement violates
her Fifth and Sixth Amendment rights because the operative indictment did not support the
enhancement. We review this argument for plain error, see United States v. Shultz, 565 F.3d
1353, 1356 (11th Cir. 2009), and find none because unindicted conduct can serve as the basis for
a sentencing enhancement, United States v. Nyhuis, 8 F.3d 731, 744 (11th Cir. 1993), and a
sentencing court can make its own findings of fact on issues that do not increase the statutory
minimum or maximum sentences applicable to a defendant, see United States v. Hunt, 459 F.3d
1180, 1182 (11th Cir. 2006); Alleyne v. United States, 133 S. Ct. 2151, 2163 (2013).


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enhancement based on “the totality of [the] activities carried out over an extended

period of time). The Government also provided evidence HCS paid kickbacks to

assisted-living facilities in exchange for patients and that HCS funneled money to

Eason through a company she owned called Alberta Safe Haven. See U.S.S.G.

§ 2B1.1(b)(10)(C) cmt. 9(B). For these reasons, the district court did not commit

clear error by imposing either of the foregoing sentencing enhancements.

D.     Substantive Reasonableness 10

       Eason’s challenge to the substantive reasonableness of her sentence fails

because she cannot show that the sentence the district court imposed falls outside

the range of reasonable sentences. United States v. Irey, 612 F.3d 1160, 1190

(11th Cir. 2010) (en banc). Examining the totality of the circumstances, the

statutory factors at 18 U.S.C. § 3553(a) sufficiently support Eason’s sentence. See

United States v. Gonzalez, 550 F.3d 1319. The record indicates the district court

gave careful consideration to whether Eason’s sentence would promote respect for

the law and account for the seriousness of her offense and her role in the scheme.

The district court also considered whether the sentence it imposed would produce

disparities with Eason’s codefendants and determined that the sentences were

consistent because, unlike Eason, her codefendants had accepted responsibility for

their crimes. Eason has not shown that the district court failed to consider any

       10
          We review the reasonableness of a sentence under a deferential abuse-of-discretion
standard. United States v. Irey, 612 F.3d 1160, 1188-89 (11th Cir. 2010) (en banc).


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sentencing factors that were due significant weight, gave significant weight to an

improper factor, or otherwise committed a clear error of judgment in calculating

Eason’s sentence, which we note falls within the applicable guideline range. See

Irey, 612 F.3d at 1189; see also United States v. Hunt, 526 F.3d 739, 746 (11th Cir.

2008) (explaining that we ordinarily expect sentences within the guidelines to be

reasonable). For these reasons, we must reject Eason’s argument that her sentence

was substantively unreasonable.

                              II.    CONCLUSION

      Having carefully considered each of Eason’s challenges to her conviction

and sentence, we conclude the district court did not commit any reversible error.

      AFFIRMED.




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