                                       PUBLISH

                     UNITED STATES COURT OF APPEALS
Filed 10/7/96
                                  TENTH CIRCUIT



 UNITED STATES OF AMERICA,

                Plaintiff-Appellee/Cross-
                Appellant,

           v.                                           No. 95-2159, 95-2182

 JAMES D. C. JARAMILLO,

                Defendant-Appellant/
                Cross-Appellee.


            APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF NEW MEXICO
                         (D. Ct. No. CR-94-333JP)


James P. Moran, Assistant Federal Public Defender (Michael G. Katz, Federal
Public Defender, with him on the briefs), Denver, Colorado, appearing for the
Appellant/Cross-Appellee.

Paula G. Burnett, Assistant U.S. Attorney (John J. Kelly, United States Attorney,
and Mary L. Higgins, Assistant U.S. Attorney, with her on the brief), appearing
for the Appellee/Cross-Appellant.


Before TACHA, REAVLEY, * and LUCERO, Circuit Judges.




       The Honorable Thomas M. Reavley, Senior Circuit Judge, United States Court of
       *

Appeals for the Fifth Circuit, sitting by designation.
TACHA, Circuit Judge.
    A jury convicted James Jaramillo of 118 counts of Medicare fraud, 95

counts of Medicaid fraud, and 15 counts of filing false claims with the

CHAMPUS program. The jury, however, acquitted Jaramillo of one count of

conspiracy to file false claims. During the trial, Jaramillo made motion in limine

to exclude certain evidence under Federal Rule of Evidence 404(b), but the

district court denied the motion. After the trial, Jaramillo moved for a new trial

on the ground that there were exhibits in the jury room during deliberations that

had not been admitted into evidence. The district court also denied this motion.

At sentencing, the trial court found that the loss to the government was $12,573,

which reduced the base offense level recommended in the defendant’s presentence

report by five levels. The court also reduced the base offense level by two levels

for acceptance of responsibility. The government objected to both these rulings.

      The government and Jaramillo now appeal. Jaramillo contends that the

district court erred in denying him a new trial and by admitting certain evidence

under Rule 404(b). The government argues that the court incorrectly calculated

the loss to the government and erred when it reduced Jaramillo’s sentence for

acceptance of responsibility. We exercise jurisdiction under 28 U.S.C. § 1291.

We affirm in part, reverse in part, and remand for proceedings consistent with this

opinion.



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                                 BACKGROUND

      Jaramillo was a psychiatrist licensed in Albuquerque, New Mexico, who

practiced under the name of Medical Institute for Mental Health. Jaramillo was

also a staff psychiatrist and part owner of Memorial Hospital, a private

psychiatric hospital located in Albuquerque. In 1983, Jaramillo hired Wayne

Meyerowitz to provide psychotherapy to Jaramillo’s patients. Although

Meyerowitz had a masters degree in counseling and a medical degree from the

University of Guadalajara in Mexico, he was not licensed to practice medicine in

the United States because he had failed the foreign medical graduates examination

more than twenty times. As Jaramillo’s employee, Meyerowitz had contact with

Jaramillo’s patients at the hospital, but his credentials there did not include

privileges to perform psychotherapy.

      Medicare, Medicaid, and CHAMPUS are federally funded health insurance

programs. Under the programs’ regulations, Jaramillo was permitted to submit

claims to these programs because he, as a medical doctor, was an authorized

provider of services. On the other hand, Meyerowitz, who was not licensed to

practice medicine, was not an authorized provider. Thus, the regulations did not

permit Jaramillo to bill for services provided by Meyerowitz if Jaramillo was

absent from his office or the hospital. On all the dates charged in the indictment,

Jaramillo was not in Albuquerque, but his office staff nonetheless submitted


                                         -3-
claims for services provided by Meyerowitz.

      Before the trial, the government filed a notice of intention to introduce the

following evidence: (1) the average length of time Jaramillo and Meyerowitz

spent with patients; (2) the length of office visits and how much time patients

spent waiting to see Jaramillo and Meyerowitz; (3) the extensive use of

videotapes during office appointments; (4) the use of videotapes in English which

were shown to Spanish-speaking patients; (5) the lack of documentation or

insufficient documentation in office and patient files; (6) the use of presigned

prescription forms; (7) the presence of improperly documented progress notes in

hospital patient files; (8) the submission by Meyerowitz of progress notes at the

hospital in advance of his group therapy sessions; and (9) the absence of Jaramillo

from the hospital treatment planning sessions for patients. The government

argued that this evidence was directly relevant to the conspiracy count and to

Jaramillo’s knowledge and intent on all counts under Federal Rule of Evidence

401, and, alternatively, that the evidence was relevant under Rule 404(b) to show

Jaramillo’s knowledge, intent, preparation, plan, and absence of mistake. The

trial court admitted evidence in categories 1 through 6 under Rule 401 as direct

proof of the conspiracy charge. The court also found the evidence relevant under

Rule 404(b) as proof of Jaramillo’s intent to defraud the government and as proof

of his knowledge, preparation, and planning. The court admitted the evidence in


                                         -4-
categories 7, 8, and 9 under Rule 404(b) to show knowledge and absence of

mistake or accident.

      Prior to trial, the government also notified Jaramillo that it intended to

introduce evidence that he falsely documented the time he spent with patients at

the Presbyterian Hospital. Jaramillo objected to the admission of this evidence at

trial, arguing that it would raise issues of medical malpractice unrelated to the

criminal charges. The court admitted the evidence under Rule 404(b), however,

as proof of knowledge, intent, preparation, plan, and absence of mistake.

      At trial, the government presented evidence regarding the billing of

Jaramillo’s office and hospital patients. The government also introduced copies

of checks sent to Jaramillo from the three federal programs as proof of payment

of claims. Jaramillo objected to the admission of certain checks (Exhibits 296,

297, and 298) because, in addition to showing the claim amounts that were the

subject of Jaramillo’s indictment, the checks also reflected legitimate claims that

were not part of the indictment. The parties then stipulated that Exhibits 296,

297, and 298 would not go to the jury, but could be used as a basis for the

testimony of other witnesses without reference to the face amounts shown on the

checks. The stipulation informed the jury that Jaramillo had received payment for

all charged claims to Medicaid and for claims charged in the conspiracy count,

but that the checks would not be given to them during deliberations.


                                         -5-
      After the trial, the district judge notified the attorneys that Exhibits 296,

297, and 298 had inadvertently gone to the jury during its deliberations. Jaramillo

moved for a new trial, arguing the amounts on the checks in the exhibits were far

more than the total amount of charged claims, and that the jury could have used

this information to find that he had the necessary state of mind to file false

claims. The district court denied the motion on the ground that the information in

the exhibits, the amounts paid on Medicaid claims, was also present in other

exhibits and testimony. Moreover, the court noted that the information in these

exhibits was similar to information admitted without objection in exhibits

involving Medicare and CHAMPUS payments.

      At sentencing, the court rejected the presentence report’s determination of

the base offense level which used $259,922 as the amount of loss to the

government, an amount which included money paid on both indicted and

unindicted claims. The trial court instead found that the loss to the government

was $12,573, the amount paid on the indicted claims. This amount of loss

reduced the base offense level by five levels. The presentence report also

recommended a two-level reduction in the base level offense for acceptance of

responsibility pursuant to U.S.S.G. § 3E1.1(a). At sentencing, the court told

Jaramillo that his initial statement of acceptance of responsibility in the

presentence report was insufficient to support an adjustment in his sentence, but


                                         -6-
that an appropriate statement would allow the court to impose probation. When

Jaramillo then told the court that he accepted the jury’s finding that he was guilty

and that he was remorseful and accepted responsibility, the court decreased the

offense level by two levels for acceptance of responsibility. The government

objected to the court’s findings on the amount of the government’s loss and the

sufficiency of Jaramillo’s acceptance of responsibility.

                                   DISCUSSION

      A.     Rule 404(b) Evidence

      Jaramillo claims that the court erred in denying his motion in limine to

exclude part of the government’s evidence admitted under Rule 404(b). We

review the district court’s decision to admit evidence under Rules 401 or 404(b)

for abuse of discretion. United States v. Hardwell, 80 F.3d 1471, 1492 (10th Cir.

1996) (Rule 401); United States v. Olivo, 69 F.3d 1057, 1064 (10th Cir. 1995)

(Rule 404(b)).

      The government offered the evidence in question as direct proof that

Jaramillo conspired with Meyerowitz to conceal the fact that Meyerowitz, not

Jaramillo, provided psychological services, in order to defraud the federal

programs. The evidence was also offered, alternatively, as evidence of

Jaramillo’s intent, preparation, plan, knowledge, or absence of mistake or

accident. After reviewing the record, we conclude that the district court did not


                                         -7-
err by admitting the evidence. Most of the evidence was directly relevant to the

conspiracy charge and therefore was properly admitted under Rule 401.

      In addition, the court did not err in admitting evidence under Rule 404(b).

Evidence of other bad acts, like the evidence admitted in this case, is admissible

only when it is relevant and offered for a proper purpose. United States v.

Jefferson, 925 F.2d 1242, 1258 (10th Cir.), cert. denied, 502 U.S. 884 (1991). In

addition, the district court must determine that the probative value of the evidence

outweighs its potential for unfair prejudice and must give a limiting instruction if

a party requests. Id. In this case, Jaramillo contended that he lacked the

knowledge and intent to file false claims because he believed he could properly

bill for Meyerowitz’s services when Jaramillo was not present. The court

admitted four categories of evidence under Rule 404(b) on the knowledge and

intent issue: (1) the noncompliance by Jaramillo and Meyerowitz with required

documentation of progress notes in the hospital files; (2) the submission of

progress notes by Meyerowitz before meeting with the patients; (3) the absence of

Jaramillo at hospital treatment planning sessions; and (4) the Presbyterian

Hospital incident in which Jaramillo recorded spending more time with patients

than he actually spent. All this evidence was probative of Jaramillo’s knowledge

that he was defrauding the government and of his intention to do so. The court

did not abuse its discretion by admitting this evidence.


                                         -8-
      B.     New Trial

      Jaramillo next argues that the court should have granted him a new trial

after discovering that the jury saw unadmitted evidence while deliberating. We

review the court’s refusal to grant a new trial for abuse of discretion. Patton v.

TIC United Corp., 77 F.3d 1235, 1240 (10th Cir.), cert. denied, 116 S. Ct. 2525

(1996). A new trial is warranted when there was the “slightest possibility” that

viewing the unadmitted evidence affected the verdict. United States v. Wood,

958 F.2d 963, 966 (10th Cir. 1992). On appeal, we look to whether the defendant

was harmed or prejudiced by the jury seeing the evidence. United States v. Marx,

485 F.2d 1179, 1184 (10th Cir. 1973), cert. denied, 416 U.S. 986 (1974).

      In this case, the jury inadvertently saw copies of Medicaid checks that had

not been admitted into evidence and that contained amounts legitimately paid to

Jaramillo. Jaramillo contends that the jury could have used this evidence to

decide that he had the requisite intent to defraud the government, and

consequently, that he was prejudiced and entitled to a new trial. The record

indicates, however, that Jaramillo was not harmed or prejudiced by the jury seeing

this evidence. Other evidence that was admitted showed that Jaramillo had been

paid far more than the total amount of money shown in the three exhibits. In

addition, checks which paid Jaramillo for Medicare and CHAMPUS claims were

admitted without objection, and many of these checks had face amounts for more


                                        -9-
than one claim. The copies of the Medicaid checks were cumulative and

duplicative of other evidence. We cannot say that there was the slightest

possibility that this evidence affected the verdict. Thus, we hold that the district

court did not abuse its discretion in denying a new trial.

         C.    Loss to the Government

         The government argues that the court erred in finding that the loss to the

government was $12,573, rather than $259,922, which allowed the court to reduce

the base offense level by five levels. We review the district court’s application of

the Sentencing Guidelines de novo, United States v. Belt, 89 F.3d 710, 713 (10th

Cir. 1996), and its factual findings for clear error. United States v. Lacey, 86

F.3d 956, 967 (10th Cir. 1996). The government has the burden of proving the

amount of loss by a preponderance of the evidence. United States v. McAlpine,

32 F.3d 484, 487 (10th Cir.), cert. denied, 115 S. Ct. 610 (1994). The record

must support the conclusion that the defendant intended the loss or that a loss in

that amount was probable. United States v. Smith, 951 F.2d 1164, 1166 (10th Cir.

1991).

         At sentencing, the court determined that the amount of loss to the

government was $12,573, which was the total amount Jaramillo claimed for

services provided by Meyerowitz when Jaramillo was out of Albuquerque. This

amount formed the basis for all the counts in the indictment except the conspiracy


                                          - 10 -
count. At sentencing, the government contended that it proved at trial that the

loss to the three programs greatly exceeded the amounts involved in the charged

counts and asked the court to calculate the loss to the government at $259,922.

The record, however, supports the court’s determination on the amount of loss.

While the court could have adopted the presentence report’s recommendation and

found that the amount of loss was $259,922, its decision not to do so was not

clear error.




                                       - 11 -
                           Acceptance of Responsibility

      The government contends that Jaramillo’s acceptance of responsibility

statement was insufficient to warrant a decrease in the offense level. We review

the court’s decision on this issue for clear error. United States v. Ivy, 83 F.3d

1266, 1292 (10th Cir. 1996).

      Sentencing Guideline § 3E1.1 allows a decrease of two offense levels for

defendants who clearly demonstrate acceptance of responsibility. Application

Note 2 states that “[t]his adjustment is not intended to apply to a defendant who

puts the government to its burden of proof at trial by denying the essential factual

elements of guilt, is convicted, and only then admits guilt and expresses remorse.”

The Note further states that “[i]n rare situations a defendant may clearly

demonstrate an acceptance of responsibility for his criminal conduct even though

he exercises his constitutional right to a trial,” such as when the defendant goes to

trial to preserve issues that do not relate to factual guilt. The Note also states,

however, that when the defendant has gone to trial, “a determination that a

defendant has accepted responsibility will be based primarily upon pre-trial

statements and conduct.”

      At sentencing, the court found that based on the statement Jaramillo made

to the probation officer, Jaramillo had not accepted responsibility for his actions.

However, the court told Jaramillo that if he made an appropriate statement of


                                         - 12 -
acceptance of responsibility, the reduction in the base offense level would allow

the court to give Jaramillo probation. The court recessed to allow Jaramillo to

create an acceptable statement. After the recess, Jaramillo stated to the court:

“The jury has found me guilty and I accept the jury’s findings and therefore I am

remorseful and I will accept the responsibility.” The court then found that

Jaramillo had accepted responsibility and awarded him the two-level decrease in

the base offense level.

      After reviewing the record, we conclude that the court’s decision to grant

the reduction for acceptance of responsibility was clear error. In this case,

Jaramillo contested his guilt from the beginning by denying that he had the

requisite intent to commit the crimes charged. In addition, Jaramillo’s initial

statement of acceptance of responsibility was so inadequate that the court decided

to allow Jaramillo to devise a more suitable statement before imposing a sentence.

This is hardly the sort of “rare situation” involving a defendant convicted by a

jury that warrants an acceptance of responsibility reduction.

      In sum, we hold that the district court did not err by admitting government

evidence under Rule 404(b) and by denying Jaramillo a new trial. Furthermore,

the court did not err in its calculation of the amount of the government’s loss.

However, the court committed clear error in its decision to grant the two-level

decrease in the base offense level for acceptance of responsibility. Accordingly,


                                        - 13 -
we AFFIRM Jaramillo’s conviction but REVERSE and REMAND for

resentencing consistent with this opinion.




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