                                                                           [DO NOT PUBLISH]


                   IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT                              FILED
                             ___________________________                 U.S. COURT OF APPEALS
                                                                           ELEVENTH CIRCUIT
                                                                             September 18, 2008
                                      No. 07-11422
                                                                            THOMAS K. KAHN
                              ___________________________                         CLERK

                            D.C. Docket No. 05-20849-CR-JEM

UNITED STATES OF AMERICA,

                                                                              Plaintiff-Appellee,

                                               versus


LUIS JACINTO MARTI,

                                                                           Defendant-Appellant.

                              ___________________________

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

                                     (September 18, 2008)


Before ANDERSON, HULL and SILER,* Circuit Judges.

SILER, Circuit Judge:

       *
         Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by
designation.
      Dr. Luis Jacinto Marti was convicted on one count of conspiring to defraud the

United States, commit health care fraud, and pay and receive health care kickbacks.

He was also convicted on fifteen substantive counts of health care fraud and aiding

and abetting. The crux of Marti’s appeal is that the evidence against him was

insufficient because his signature was forged on the documents that form the basis of

the charges. Marti seeks reversal of his convictions on the following grounds:

(1) insufficient evidence; (2) prejudice from “fatally flawed” substantive counts;

(3) improper admission of evidence regarding civil violations; (4) improper admission

of evidence regarding “superbills”; and (5) improperly charging the jury on deliberate

ignorance. The district court rejected these arguments and denied Marti’s post-trial

motion for acquittal or new trial. We affirm.

                                 BACKGROUND

      Marti was indicted on one count of conspiracy to defraud the United States,

commit health care fraud, and pay and receive kickbacks under 18 U.S.C. § 371, and

fifteen counts of health care fraud and aiding and abetting under 18 U.S.C. §§ 2 and

1347. The indictment charged three other individuals with the same violations:

Onelio Baez, Juan Carlos Mateo, and Jorge Valido. The other defendants pled guilty

prior to trial. The district court described the charged conspiracy as follows:




                                          2
      The Government alleged that Marti and [the other defendants] were part
      of a Medicaid fraud scheme in which Medicaid recipients were induced
      through payments of kickbacks and bribes to visit particular physicians
      and medical clinics. Physicians at these particular clinics would
      prescribe unnecessary and expensive medications, such as Intravenous
      Immune Globulin (“IVIG”) drugs, which are drugs commonly
      prescribed for HIV-positive or AIDS patients. These prescriptions, paid
      for by Medicaid, would be filled and picked up at the particular
      pharmacy that filled the prescription. The drugs would then be resold
      to other pharmacies.

      Marti was charged as one of the doctors who issued a number of these
      prescriptions. Baez was charged as the organizer of the scheme. Mateo
      was charged as a patient recruiter and Valido, another doctor, was
      charged for issuing the prescriptions, and he was also charged as the
      owner and operator of the Charitte Medical Center where Marti once
      worked as a physician.

Order Denying Marti’s Motion for Judgment of Acquittal at 1-2.

      Both Baez and Valido testified on behalf of the government at Marti’s trial.

Baez admitted his involvement in the conspiracy, but testified that he did not know

Marti and had never spoken or met with him. Baez paid others to recruit Medicaid

patients and take them to participating clinics to obtain prescriptions for IVIG drugs.

Valido was a physician in Cuba before he immigrated to the United States in 1994.

In early 2000, although not a licensed physician in the United States, Valido opened

a clinic called the Charitte Medical Center (“Charitte”). Marti was the only physician

employed at the clinic and thus was the only person at Charitte who could issue

prescriptions. He was present only once or twice per week to review the patient files

                                          3
and sign prescriptions. He spent an hour or two at the clinic each time he visited and

was paid $750 per week for his services. The clinic also employed two physician’s

assistants, who were responsible for seeing the patients, and they left prescriptions

already written out for Marti to sign when he dropped by.

      In October 2000, Valido obtained a restricted license to practice medicine,

which required that he work under the direct supervision of a fully licensed physician.

Marti volunteered to be Valido’s supervising physician. Regulations required Marti

and Valido to practice in the same clinic for the first year of Valido’s restricted

license. Despite this requirement, Valido closed Charitte and began practicing at a

clinic in South Miami, while Marti practiced at an office in Hialeah. During the first

year of Valido’s restricted license, Marti visited Valido’s clinic once or twice. Valido

continued to issue medically unnecessary prescriptions for Medicaid patients at the

South Miami clinic. However, Valido could not issue prescriptions himself during

the first four months of his restricted license, and thus Marti was the only physician

at Valido’s clinic who could sign prescriptions.

      Regulations also prohibited Marti from receiving compensation for supervising

Valido. Over objection, Valido briefly testified that he completed insurance company

“superbills” for the patients he saw at his office. He then gave the superbills to Marti,




                                           4
and Marti submitted them. The two would then split the money received from the

insurance companies.

       In August 2001, Marti telephoned Valido because he received a subpoena for

the files of eighteen or twenty of Valido’s patients. Valido brought copies of the files

to Marti at his home. Marti reviewed the files and instructed Valido three times to

make corrections or alterations to the files before Marti delivered the files to the

Medicaid Fraud Control Unit.

       In 2004, Marti testified in his deposition that the majority of the patients were

seen by Valido under his supervision. Marti identified his signature in several

patients’ files from Charitte. Six of the charts on which Marti identified his signature

were for patients who had been prescribed unnecessary IVIG drugs and who

correspond with the charges in the indictment.1 Marti further stated that he would not

have signed a patient’s chart unless he had personally observed Valido’s interaction

with the patient. Marti now admits he was untruthful in this deposition about his

supervision of Valido.




       1
          The charts that Marti identified as containing his signature correspond to the following
patients’ charts: GX 1-J (Count 2), GX 1-G (Count 8), GX 1-R (Count 11), GX 1-C (Count 13), GX
1-B (Count 14), and GX 1-M (Count 15). The other patients’ charts that Marti admitted contained
his signature, GX 1-F and GX 1-S, were for patients who had been prescribed IVIG drugs pursuant
to a prescription issued by Marti, according to the Medicaid records pertaining to the twenty patients
analyzed by the data (GX 15).

                                                  5
      Dr. Michael Wohlfeiler testified as an expert for the government. He reviewed

the files of the patients who were the basis of the substantive counts in the indictment,

and he concluded that none of the files supported or established the medical necessity

of using IVIG drugs. The files were poorly documented, lacking in the necessary

tests to establish whether IVIG treatments were appropriate, and lacking records of

the administration of IVIG drugs, which must be given intravenously with someone

monitoring the patient’s vital signs during the treatment.

      Marti asserts that unauthorized recommendations for IVIG drugs were written

in the files after he had signed them. Wohlfeiler testified that many of the documents

recommending IVIG drugs appeared to be signed by someone other than Marti. The

lead investigator in the case, Lt. Eller, later conceded that no analysis of the

documents had been done before the government presented evidence to a grand jury.

At the time of trial, Eller acknowledged that he did not know whether the prescription

documents that form the basis of the substantive charges contain Marti’s genuine

signature.

      Danielle Seiger, an FBI forensic document examiner, examined 401 documents

that were either prescription forms or documents from patient files and compared the

writing on them to Marti’s known signature. Seiger identified some of the signatures

on patient charts as Marti’s authentic signature. However, she found that the majority

                                           6
of the documents contained “simulated signatures,” which a layperson would refer

to as “forgeries.” Specifically, she concluded that the signatures on each of the

prescriptions that form the basis of the substantive counts were either simulations or

“not comparable to the known signatures of Dr. Marti.” Seiger testified that many of

the simulations appeared well-practiced. Based on this testimony, the government

argues that at least some of them were “authorized simulations,” meaning Marti

authorized someone else to sign his name on the documents. Seiger did not attempt

to determine whether documents had been altered after Marti signed them.

      In 2006, Marti was found guilty on all counts. His motions for judgment of

acquittal and a new trial were denied. The district court sentenced him to 28 months

of imprisonment, followed by three years of supervised release, and ordered him to

pay joint and several restitution with his co-defendants in the amount of

$1,200,000.00. The district court departed downward from the Guidelines range

based on Marti’s “impeccable prior record, his contributions to the community and

society, and his advanced age [of 75] and the fact that he has relinquished his medical

license.”




                                          7
                                   DISCUSSION

                           A. Sufficiency of the Evidence

      We review de novo a claim that the district court erred in denying a motion for

acquittal on sufficiency of the evidence grounds. United States v. Browne, 505 F.3d

1229, 1253 (11th Cir. 2007). In so doing, we consider the evidence in the light most

favorable to the government and determine whether “a reasonable jury could

conclude that the evidence establishes guilt beyond a reasonable doubt.” Id. The

government need not disprove “every reasonable hypothesis except guilt.” Id.

However, evidence is insufficient to sustain a conviction where it is “wholly

consistent with an obvious and reasonable innocent interpretation, and where little

more than conjecture supports the hypothesis of guilt.” United States v. Kelly, 888

F.2d 732, 740 (11th Cir. 1989).

                             1. The Substantive Counts

      Marti argues that the evidence was insufficient to sustain his convictions on the

fifteen counts of health care fraud and aiding and abetting. To prove health care fraud

under 18 U.S.C. § 1347, the government must prove “knowing and willful execution

of or attempt to execute a scheme to defraud a health-care benefit program in

connection with delivery of or payment for health care.” United States v. Mitchell,

165 F. App’x 821, 824 (11th Cir. 2006). To prove aiding and abetting under 18

                                          8
U.S.C. § 2, “the government must prove that the defendant in some way associated

himself with the criminal venture, that he wished to bring it about, and that he sought

by his actions to make it succeed.” United States v. Broadwell, 870 F.2d 594, 607

(11th Cir. 1989).

      Marti claims he was a victim in the conspiracy of the other defendants, rather

than a knowing and willing participant. He asserts the evidence was insufficient

because each substantive count was based on a prescription form that contained a

forgery of his signature. The indictment lists fifteen specific counts of Medicaid

fraud, each identified by a patient’s Medicaid number and a claim date. According

to Seiger’s findings, the prescription forms that correspond to Counts Two through

Fifteen contain either simulated signatures or signatures that are not comparable to

Marti’s signature.

      Even if the signatures on the prescriptions are not genuine, the trial evidence,

considered in the light most favorable to the government, is nonetheless sufficient to

support the convictions. At a minimum, there was ample evidence to support a

finding that Marti authorized the use of his signature on prescriptions for Valido’s

patients. During the period in which Valido was not licensed and was not permitted

to sign prescriptions, Marti was the only doctor at Valido’s clinic authorized to do so.

Marti’s genuine signature appears on numerous patient records containing references

                                           9
to IVIG drugs being prescribed. Also, in preparing to comply with a subpoena during

the investigation, Marti reviewed the patient files, did not disavow his signature or

the authorization for his signature, and instructed Valido to make corrections and

alterations to the charts. During his deposition, Marti again reviewed the patient files

and acknowledged his signature on them. Several of these charts belonged to the

patients who were issued the medically unnecessary prescriptions charged in the

substantive counts. Marti also admits that he falsely testified at his deposition that

he would not have signed a patient’s chart unless he had observed Valido with the

patient. Thus, sufficient evidence was presented for a reasonable jury to conclude

that, at a minimum, Marti authorized the use of his signature. As such, we need not

determine whether the jury accepted or rejected Seiger’s testimony regarding the

genuineness of the signatures.

                             2. The Conspiracy Charge

      Marti also argues that there was insufficient evidence to sustain the conspiracy

conviction. The government must prove the following elements to establish a

conspiracy under 18 U.S.C. § 371: “(1) an agreement between two or more persons,

(2) an unlawful purpose, and (3) an overt act committed by one of the coconspirators

in furtherance of the conspiracy.” United States v. Perkins, 748 F.2d 1519, 1527

(11th Cir. 1984). The government must also prove that Marti knew of the conspiracy

                                          10
and “intended to associate himself with the objectives of the conspiracy.” United

States v. Hollifield, 870 F.2d 574, 577 (11th Cir. 1989).

      While mere presence or association with others involved in a criminal
      scheme is not sufficient to prove participation in a conspiracy, the
      essential elements of a conspiracy can be proved by inference from the
      actions of the parties or by circumstantial evidence. Direct evidence of
      an agreement to join a criminal conspiracy is rare, so a defendant’s
      assent can be inferred from acts furthering the conspiracy’s purpose.
      The government is not required to prove that each alleged conspirator
      knew all the details of the conspiracy; it is enough to establish that a
      defendant knew the essentials of the conspiracy.

United States v. Mulherin, 710 F.2d 731, 738 (11th Cir. 1983) (internal citations

omitted).

      The government established that Marti was the only physician working at

Charitte, and thus the only person capable of issuing prescriptions. He came to the

clinic once or twice a week for a few hours. When Valido obtained a restricted

license to practice medicine, Marti agreed to become his supervising physician. They

proceeded to ignore and violate numerous civil regulations that governed the

supervisory relationship. They also engaged in the scheme of submitting superbills

to health insurance companies and splitting the payments; this was done despite the

fact that Marti was not supposed to receive compensation for being Valido’s

supervising physician. Marti also directed Valido to alter files before turning them




                                         11
over in response to a government subpoena. Finally, Marti was admittedly untruthful

at his deposition.

       None of the government’s witnesses expressly testified that Marti participated

in or knew of the conspiracy. Baez did not even know Marti. Nonetheless, the

evidence presented regarding Marti’s relationship with Valido is sufficient to

demonstrate his knowledge of and willing participation in the conspiracy.

                 B. “Spillover” Prejudice from Substantive Counts

       Because we find the evidence sufficient to sustain all of the substantive counts,

we need not address Marti’s argument that his conspiracy conviction must be

reversed due to the spillover effect of the substantive counts.

                           C. Evidence of Civil Violations

       Marti argues that the district court improperly admitted evidence of alleged

civil violations and allowed the government to suggest that the jury could convict

Marti based on these violations. The government presented considerable evidence

that Marti flouted the regulations governing Valido’s restricted license by not

properly supervising Valido and not reporting Valido’s misconduct. “References to

regulations are improper if their purpose or effect is to suggest to the jury that it could

find a defendant guilty by reason of his violation of the regulation.” United States v.

Jakeway, 783 F. Supp. 590, 596 (M.D. Fla. 1992); see also United States v. Stefan,

                                            12
784 F.2d 1093, 1098 (11th Cir. 1986) (“If the evidence of civil violations is

introduced for purposes other than to show criminal misapplication and the evidence

is not presented in such a way that the jury’s attention is focused on the civil

violations rather than the criminal ones, there is no error.”). We review a district

court’s decisions regarding the admission of evidence for abuse of discretion. United

States v. Arboleaz, 450 F.3d 1283, 1289 (11th Cir. 2006).

      During the prosecutor’s closing argument, he stated that Marti’s failure to

report Valido’s misconduct is not a crime, but “is evidence that your common sense

tells you proves Dr. Marti was an active and willing participant in this crime.” The

district court ruled that the government did not suggest Marti was guilty solely

because he violated the regulations.        Instead, the “regulations explained the

relationship between Marti and Valido and framed the government’s arguments

regarding Marti’s knowledge of the conspiracy.” The use of the regulations to

explain the relationship between Marti and Valido was permissible.

      In this case, the evidence of civil violations was not “presented in such a way

that the jury’s attention [was] focused on the civil violations rather than the criminal

ones.” Stefan, 784 F.2d at 1098. Additionally, the district court gave a “curative

instruction,” stating “I caution you that the Defendant is not on trial for medical

malpractice or for any issue related to Dr. Valido’s restricted license.” The district

                                          13
court also explained that Marti could not be convicted based on negligence or

foolishness, but only if he acted with “specific intent to defraud.” Although the jury

instruction could have stated more precisely that Marti was not on trial for violating

civil regulations, it was sufficient to let the jury know that Marti could not be

convicted solely on the basis of his failure to supervise Valido.

      Because evidence of the regulations was appropriate to explain the relationship

between Marti and Valido and because the district court adequately instructed the

jury, the admission of evidence that Marti violated civil regulations was not an abuse

of discretion.

                 D. Evidence Regarding Insurance Company Superbills

      Marti next claims the district court improperly allowed Valido’s testimony

regarding the submission of superbills to health insurance companies and the fact that

Marti and Valido shared the resulting payments. Marti asserts that this testimony was

unfairly prejudicial and inadmissible under Rules 403 and 404(b) of the Federal Rules

of Evidence. Rule 404(b) states that “[e]vidence of other crimes, wrongs, or acts is

not admissible to prove the character of a person in order to show action in

conformity therewith.” Such evidence is admissible for other purposes, including to

prove knowledge or intent. Fed. R. Evid. 404(b).




                                         14
      The district court characterized the superbill evidence as intrinsic and not

subject to Rule 404(b) because “it is evidence of the arrangement between Valido and

Marti in this conspiracy and demonstrates Marti’s involvement in the operation of the

[Miami] clinic.” Evidence of other crimes or acts is “not extrinsic under Rule 404(b)

if it is (1) an uncharged offense which arose out of the same transaction or series of

transactions as the charged offense, (2) necessary to complete the story of the crime,

or (3) inextricably intertwined with the evidence regarding the charged offense.”

United States v. McLean, 138 F.3d 1398, 1403 (11th Cir. 1998).

      The superbills were submitted to private insurance companies and were not

involved in any scheme to bill Medicaid for improper drugs or services. Thus, the

superbill evidence is unnecessary to the jury’s understanding of the charged offenses

and therefore extrinsic. See United States v. Chilcote, 724 F.2d 1498, 1501 (11th Cir.

1984) (explaining that testimony about flight was extrinsic where “testimony about

appellant’s involvement in the crime charged would have been completely

comprehensible without testimony regarding appellant’s claimed flight”). Because

the superbill evidence is extrinsic, it is subject to Rule 404(b).

      We follow a two-step analysis to determine whether extrinsic evidence is

admissible under Rule 404(b). First, the evidence “must be relevant to an issue other

than the defendant’s character.” United States v. Beechum, 582 F.2d 898, 911 (5th

                                           15
Cir. 1978). Second, the evidence must comply with Rule 403, meaning that its

probative value must not be substantially outweighed by the risk of unfair prejudice,

confusion, or misleading the jury. See id. As the district court pointed out, the

superbill evidence is relevant as proof of Marti’s relationship with Valido and to

show that Marti had some knowledge of the operation of Valido’s clinic.

      When evaluating evidence under Rule 403, we “look at the evidence in a light

most favorable to its admission, maximizing its probative value and minimizing its

undue prejudicial impact.” United States v. Smith, 459 F.3d 1276, 1295 (11th Cir.

2006) (quoting United States v. Elkins, 885 F.2d 775, 784 (11th Cir. 1989)). In this

case, there was little other evidence of intent to defraud or that Marti was involved

in the operation of Valido’s clinic. This increases the probative value of the superbill

testimony. Cf. Beechum, 582 F.2d at 914 (noting if the government already “has a

strong case on the intent issue, the extrinsic evidence may add little and consequently

will be excluded more readily”). Although the district court incorrectly concluded the

superbill evidence was intrinsic, the court did not abuse its discretion in admitting the

evidence.

                    E. Jury Instruction on Deliberate Ignorance

      Finally, Marti argues that the district court erred in charging the jury on the

theory of deliberate ignorance. We review de novo the district court’s decision to

                                           16
give a deliberate ignorance instruction. United States v. Stone, 9 F.3d 934, 937 (11th

Cir. 1993). The district court included the following statement in its charge to the

jury:

        [Y]ou may find that a defendant acted knowingly if you find beyond a
        reasonable doubt either, one, that the Defendant actually knew that he
        was acting in furtherance of the conspiracy or committing healthcare
        fraud; or, two, that he deliberately closed his eyes to what he had every
        reason to believe was the fact.

A deliberate ignorance instruction “is appropriate only when there is evidence in the

record ‘showing the defendant purposely contrived to avoid learning the truth.’” Id.

(quoting United States v. Barbee, 968 F.2d 1026, 1033 (10th Cir. 1992)). Such an

instruction should not be given “when the evidence only points to either actual

knowledge or no knowledge on the part of the defendant.” Id.

        Marti argues that the evidence at most demonstrated negligent supervision of

Valido, and none of the witnesses testified that Marti purposely avoided learning of

the Medicaid conspiracy. He also claims that the prosecutor repeatedly argued he was

a knowing and active participant in the conspiracy rather than arguing deliberate

ignorance. However, the prosecutor argued that Marti intentionally stayed away from

Valido’s clinic and did “everything he could to blind himself to what was going on

so that he could be in exactly the position his lawyers are going to take in front of the

jury.” The government’s presentation of evidence regarding Marti’s indifferent

                                           17
supervision of Valido shows that the government intended to present a deliberate

ignorance theory. Therefore, Marti’s argument that the government argued only a

theory of actual knowledge is unavailing.

      The evidence in this case is sufficient to prove Marti’s actual knowledge. As

such, we may assume that the jury convicted on the basis of actual knowledge rather

than deliberate ignorance, see Stone, 9 F.3d at 937-38, and any error in charging the

jury on deliberate ignorance is harmless.

      AFFIRMED.




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