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                                                                     [DO NOT PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 14-10530
                              ________________________

                         D.C. Docket No. 1:13-cr-20298-JEM-1



UNITED STATES OF AMERICA,

                                                         Plaintiff - Appellee,

versus

DORA MOREIRA,

                                                         Defendant - Appellant.

                              ________________________

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

                                     (March 30, 2015)

Before HULL, and DUBINA, Circuit Judges and BOWEN, * District Judge.

PER CURIAM:



       * Honorable Dudley H. Bowen, Jr. United States District Judge for the Southern District
of Georgia, sitting by designation.
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      Appellant, Dora Moreira, appeals her convictions for various health care

fraud offenses and her 235 month total sentence. Following a review of the record,

we affirm the convictions and total sentence.

                               I. BACKGROUND

      A. Background

      A grand jury returned a 12-count indictment charging Moreira, along with

two co-defendants, with various Medicare fraud and money laundering violations.

The indictment charged Moreira with conspiring to commit health care fraud, in

violation of 18 U.S.C. § 1349 (Count I); conspiring to defraud the United States

and receive and pay health care kickbacks, in violation of 18 U.S.C. § 371 (Count

II); paying kickbacks in connection with Medicare, in violation of 42 U.S.C. §

1320a-7(b)(2)(A) (Count III); and conspiring to launder, and laundering, money

derived from the conspiracy to commit health care fraud, in violation of 18 U.S.C.

§§ 2 and 1956(a)(1)(B)(i) and 1956(h) (Counts VII–XII). The indictment also

included a criminal forfeiture count.

      Following a seven-day trial, the jury returned guilty verdicts against Moreira

on all counts. The probation officer prepared a pre-sentencing investigation report

(“PSI”) that calculated a total adjusted offense level of 38. Moreira’s criminal

history score was zero. This resulted in a guideline sentence range of 235 to 293

months. Prior to sentencing, Moreira moved for a downward departure under 18

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U.S.C. § 3553(b) and the United States Sentencing Guidelines (“USSG”) § 5H1.6,

arguing that a departure was warranted based on the extraordinary circumstances

presented by her role as a single parent. The district court denied the motion. The

district court adopted the PSI and sentenced Moreira to 235 months’ imprisonment

on Counts I, II, III, VII, and VIII–XII and imposed a term of three years’

supervised release.

      B. Trial proceedings

      The trial record discloses the following facts. Moreira was the sole owner,

administrator, and president of Anna Nursing Services, a home health agency

certified as a Medicare provider. When signing an enrollment application as a

Medicare provider of home health services covered under Part A, the provider

represents that all statements in the application are true and accurate. In order to

bill Medicare for home health services, the provider must have rendered the

services to Medicare beneficiaries who need skilled services, are homebound, are

under the care of a physician, and are under a plan of care that has been completed

and signed by the physician.

      In October 2012, Sandra Hurst informed the Federal Bureau of Investigation

(FBI) that her husband, Frank Hurst, was involved in a Medicare fraud scheme

with Moreira at Anna Nursing in Miami. Both Sandra and Frank were Medicare

beneficiaries, and both received kickbacks for serving as patients of Anna Nursing.

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Frank was also a patient recruiter for Anna Nursing, and Moreira would pay him

$1,800 to $2,000 in cash per patient recruit. He sought out Medicare beneficiaries

who agreed to provide and receive payment for their Medicare information in

exchange for Anna Nursing to submit fraudulent claims for homebound health

services to Medicare. After being contacted by the FBI, Frank agreed to

participate in consensual recordings of his participation in the scheme.

      Under the scheme, Moreira would direct one of the recruited clients to a

doctor of her choosing. The doctor would give the client a prescription for home

health care. An individual from Anna Nursing, usually Ivan Alejo, a nurse and

administrator at Anna Nursing, would go to the client’s home and have the client

sign papers attesting to the fact that he had received home health services. In fact,

the client did not receive such services and was not homebound. Following the

conclusion of the alleged home health services, usually 30 days, someone from

Anna Nursing would provide the client with a kickback of approximately $1,500.

[R. DE226; 227; 228.] This scheme lasted for about two and one half years, until

May 2013.

      From 2008 until 2013, Miguel Jimenez was one of the owners and operators

of Flores Home Health. He took orders for his patients to Moreira so that Anna

Nursing could provide them with home health services. For the referrals, Moreira

paid Jimenez $2,300 in cash per patient per 30-day cycle. In the first few months,

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he referred about 30 patients to Moreira. These patients were not homebound and

did not need therapy. [R. DE229.]

      An acquaintance of Moreira, Orlando Torres, confessed to the FBI during an

interview that he had laundered money for Moreira. Moreira would write checks

on Anna Nursing’s Bank of America account, and Torres would give her cash in

the amount of the checks, less his ten percent fee. Torres owned several different

corporations, Medley Consulting, Medley Marketing, OCGMT, All Your Service

Needs, Act Now Services, Gusmagil, and Merline Consulting. [R. GEX9a-e, 12‒

21, 24e.] These companies did not provide any services to Anna Nursing. At the

request of the FBI, Torres agreed to conduct consensual recordings of his meetings

with Moreira when they exchanged checks and cash. [R. DE228‒229.]

      In May 2013, the FBI conducted a search of Anna Nursing and seized

patient files and other business records. [R. DE227; GEX25a‒m, 26‒30.] Among

the records were forms signed by patients that did not have any date or description

of services provided, and other forms that had Anna Nursing listed as the provider

but did not contain a doctor’s signature. Normally, the doctor signs the form

before the home health agency is designated. The FBI also discovered fax

transmittal confirmations for the necessary forms that Anna Nursing completed

and faxed to the doctor for a signature, rather than the doctor generating the

documents as a result of a face-to-face encounter with the patient.

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      FBI Special Agent Michael Finnerty reviewed the Medicare claims records

for Anna Nursing, as well as the bank records for Anna Nursing, Moreira, and her

co-conspirators. [R. DE228.] Between July 2010 and April 2013, Medicare paid

into Anna Nursing’s bank accounts over $7 million. These Medicare payments

accounted for 97% of all of the deposits into Anna Nursing’s bank accounts. Of

that amount, $6.5 million was paid on claims for home health care involving

physical or occupational therapy, and $801,864 was paid on all other diagnoses.

[R. GEX24.] Medicare paid to Anna Nursing $667,924.32 in claims for 36

Medicare beneficiaries who were clients of Frank Hurst. From the account, a total

of $447,381 was paid to eight companies owned by Torres. From the Anna

Nursing accounts, Moreira received a total of $1,533,072 in cash.

      In her defense, Moreira presented numerous witnesses at trial. Joaquin

Pereira testified that he worked as a coder for Anna Nursing for approximately six

months, and during that time, Moreira never asked him to change the information

in the documents he was using for coding and never gave him any instructions to

falsify the coding. [R. DE230.] Marimer Rensoli testified that she worked as a

registered nurse for Anna Nursing and performed initial assessments for patients

who had home health prescriptions from a doctor. She stated that Moreira never

instructed her to falsify assessments, and she was not aware of any Medicare fraud




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at Anna Nursing. She did admit, however, that she obtained patient signatures on

several assessment forms that did not have any patient information provided. [Id.]

      Maritza Vila testified that while she was employed at Anna Nursing, she

gave the nurses the packages they needed to sign up patients for home health care,

followed up with nurses who did not timely turn in the documents, and prepared

the payroll. She did not suspect that anything fraudulent was occurring at Anna

Nursing. [R. DE220.] Vincente Perez testified that he worked part-time at Anna

Nursing, inputting data that dealt with patient care. He knew both Ivan Alejo and

Moreira, knew they were good friends, but did not know whether Alejo recruited

patients for Anna Nursing. [Id.] Two other witnesses, Raymond Wright and

Carmen Ortiz, provided irrelevant testimony.

      Moreira testified and denied any knowing participation in a Medicare fraud

scheme. [R. DE220‒221.] She stated that she and Alejo had a personal as well as

business relationship, and Alejo assumed the administrative duties when she was

absent from Anna Nursing. She claimed that Alejo was not a patient recruiter at

her behest, and she did not know that he was not seeing the patients he said he was

visiting. She knew that Frank Hurst had referred his wife to Anna Nursing but did

not know that he referred other patients. She denied paying recruiters and denied

any knowledge of payments from Alejo to Frank Hurst. She admitted to treating

patients from Flores Home Health but denied that she paid Jimenez any money for

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the referral of those patients. The prosecutor showed the video recordings of

Moreira’s meetings with Frank Hurst. One recording showed Moreira giving an

envelope to Frank Hurst and, when questioned about the recording and the contents

of the envelope, she responded that she was unable to determine what was inside

the envelope she gave him.

      In response to the prosecutor’s questions about the checks she gave to

Torres, she said that the money was for an investment in a club. She could not

explain why the checks were written from the Anna Nursing account and made out

to different companies. She could not provide the name, location, or type of club

in which she was investing. [R. DE231.] She also did not know the names,

locations, or activities of the companies to which she wrote the checks. When

presented with the recording from a meeting with Torres in which Moreira

indicated that she needed the money to pay people, she stated that she engaged in

the discussion about patient recruiting to play along with Torres so she could get

her money.

                                    II. ISSUES

      1. Whether sufficient evidence supports the jury’s guilty verdicts.

      2. Whether the district court abused its discretion by striking Moreira’s list

      of 75 witnesses and by limiting the introduction of defense evidence.




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      3. Whether the district court erred by excluding evidence of Moreira’s

      compliance with some Medicare rules and regulations.

      4. Whether the district court erred at Moreira’s sentencing hearing because

      of the way in which the court conducted the colloquy regarding allocution.

                          III. STANDARDS OF REVIEW

      This court reviews de novo whether there is sufficient evidence to support a

guilty verdict in a criminal trial. United States v. Doe, 661 F.3d 550, 560 (11th

Cir. 2011).

      The district court has wide discretion in its evidentiary rulings. “Ordinarily,

a district court's evidentiary rulings are reviewed for abuse of discretion.” United

States v. Edouard, 485 F.3d 1324, 1343 (11th Cir. 2007). However, when the

defendant fails to preserve a challenge to an evidentiary ruling by

contemporaneously objecting, our review is for plain error. Id.

      This court reviews for plain error a claim of the denial of the right of

allocution when the defendant made no objection at sentencing. United States v.

Prouty, 303 F.3d 1249, 1251 (11th Cir. 2002). “Under the plain error standard,

before an appellate court can correct an error not raised at trial, there must be (1)

error, (2) that is plain, and (3) that affects substantial rights.” United States v.

McKinley, 732 F.3d 1291, 1296 (11th Cir. 2013) (internal quotation marks

omitted). If these three conditions are satisfied, the court may exercise its

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discretion to correct the error, “but only if (4) the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Id. (quoting

United States v. Cotton, 535 U.S. 625, 631, 122 S. Ct. 1781, 1785 (2002)).

                                  IV. DISCUSSION

      A. Sufficient evidence supports the verdicts

      Moreira argues that the Government did not present sufficient evidence of

her knowing participation in a scheme to defraud Medicare and in laundering the

proceeds of the unlawful scheme. Our review of the record convinces us

otherwise.

      To sustain the Medicare fraud conspiracy conviction, the Government had to

prove beyond a reasonable doubt that (1) a conspiracy existed; (2) the defendant

knew of it; and (3) the defendant knowingly and voluntarily joined it. United

States v. Vernon, 723 F.3d 1234, 1273 (11th Cir. 2013). The Government may

prove these elements by circumstantial evidence because conspiracy is

“predominantly mental in composition.” Id. The Government does not have to

show that the defendant knew all of the details of the conspiracy or participated in

every aspect of the conspiracy. Id. Rather, the Government’s burden is to prove

“that the defendant knew of the essential nature of the conspiracy.” Id. (quoting

United States v. Miranda, 425 F.3d 953, 959 (11th Cir. 2005)).




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      For the money laundering charge, the Government had to prove that an

agreement between two or more persons to commit a money laundering offense

existed, and the defendant knowingly and voluntarily participated in that

agreement. United States v. Broughton, 689 F.3d 1260, 1280 (11th Cir. 2012). To

sustain the conviction for paying kickbacks in connection with Medicare, the

Government had to show that Moreira made payments of money to persons “in

return for referring an individual to a person for the furnishing . . . of any item or

service for which payment may be made in whole or in part under a Federal health

care program.” 42 U.S.C. § 1320a‒7b(b)(1) and (2).

      The Government presented sufficient evidence to support these convictions.

The testimony, recordings, and documents seized by the FBI are sufficient proof

that Moreira reached agreements with patients to sign for alleged home health

therapy in return for a cash kickback. She instructed Frank Hurst to recruit

Medicare beneficiaries as patients of Anna Nursing, and she paid him in cash for

each of the recruits he obtained. Evidence showed that Moreira paid Jimenez for

his patient referrals, and Torres testified that Moreira told him that she needed cash

to pay her patients and patient recruiters. She paid doctors and clinics for

providing prescriptions for home health services and retrieved the prescriptions for

Anna Nursing to submit claims for the services to Medicare. There was more than

sufficient evidence from which the jury could infer, beyond a reasonable doubt,

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that Moreira was directly involved in the patient recruiting and payment of

kickbacks so that Anna Nursing could submit fraudulent claims to Medicare.

      Additionally, there was sufficient evidence to support the money laundering

convictions. Torres testified that he received the checks from Moreira, written on

the Anna Nursing bank account, and gave her cash in the amount of the checks less

his ten percent fee. Alejo witnessed Torres bringing Moreira a bag of cash one

time. Torres testified that he laundered between $10,000 and $15,000 per week for

Moreira. Moreira’s defense that she gave Torres the checks for an investment are

nonsensical. She was unable to provide the name of the club in which she was

investing, or its location, or its business, and she did not present any documentary

evidence to substantiate any club investment.

      In addition to the aforementioned evidence of guilt, Moreira elected to take

the stand and to testify in her own defense. In this circuit, “when a defendant

chooses to testify, [s]he runs the risk that if disbelieved the jury might conclude the

opposite of h[er] testimony is true.” United States v. Brown, 53 F.3d 312, 314

(11th Cir. 1995) (internal quotation marks omitted). Where the Government has

presented some corroborative evidence of guilt for the charged offenses, and the

defendant takes the stand in her own defense, her testimony professing innocence

may establish, by itself, the elements of the offense. Id. at 315. “This rule applies

with special force where the elements to be proved for a conviction include highly

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subjective elements: for example, the defendant’s intent or knowledge.” Id.; see

also United States v. Williams, 390 F.3d 1319, 1325‒26 (11th Cir. 2004).

      The record is replete with evidence supporting Moreira’s convictions. The

jury was free to believe the Government’s witnesses rather than Moreira’s

mythomania. When a defendant testifies, she runs the risk of bolstering the

Government’s case if the jury chooses not to believe her. The jury had the

opportunity to listen to Moreira and judge her credibility and demeanor. It was

free to choose among reasonable interpretations, and it did so. Accordingly, we

conclude from the record that there was more than sufficient evidence to support

Moreira’s convictions.

      B. Striking Moreira’s witness list was not abuse of discretion

      Moreira contends that the district court severely hampered her presentation

of relevant evidence by striking her list of 75 witnesses. The district court has

wide discretion in ruling on evidentiary issues as to relevance and materiality, and

we will not disturb its rulings absent a clear showing of an abuse of discretion.

Moreira fails to make such a showing.

      Prior to the commencement of the trial, the parties agreed that the case

would take three to four days to complete. Because of the agreed upon trial time,

the district court found that Moreira’s list of 75 witnesses was baseless and

unrealistic. Even though defense counsel reduced the list of witnesses, the district

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court commented that most of the remaining witnesses’ testimony was not

relevant. [R. DE 220: 51‒52.] However, Moreira presented numerous witnesses

in her defense, and she cannot show that the district court prevented her from

presenting any relevant testimony. Hence, we conclude that the district court did

not abuse its discretion in striking the list of 75 defense witnesses and having the

defense reduce its number of witnesses.

      C. Excluding evidence of Medicare rules compliance was not erroneous

      Moreira argues that the district court abused its discretion by excluding

evidence of her compliance with Medicare rules and regulations because this

evidence supported her defense that she did not intend to defraud Medicare.

Moreira makes this argument for the first time on appeal; thus, our review is for

plain error. Edouard, 485 F.3d at 1343.

      Generally, “[e]vidence of good conduct is not admissible to negate criminal

intent.” United States v. Camejo, 929 F.2d 610, 613 (11th Cir. 1991); see also

United States v. Ellisor, 522 F.3d 1255, 1270‒71 (11th Cir. 2008) (affirming the

exclusion of evidence of defendant’s legitimate business activities in order to

negate evidence of his fraudulent intent). The Government did not charge and did

not argue that there was no legitimate business conducted at Anna Nursing. Thus,

evidence that some of the claims filed by Anna Nursing may have been for

services legitimately provided to eligible patients without the payment of

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kickbacks was irrelevant. Accordingly, we conclude that the district court did not

err in excluding such evidence.

      D. There was no plain error at sentencing

      Moreira contends that the district court effectively deprived her of her right

to allocute because it warned her that any statement she made at the sentencing

hearing could be used later if there were a new trial after appeal. She did not

object at sentencing. Thus, we review for plain error her claim of a denial of the

right of allocution. Prouty, 303 F.3d at 1251; see also United States v. Quintana,

300 F.3d 1227, 1231‒32 (11th Cir. 2002) (stating that review of a district court’s

denial of a defendant’s right to allocute is for manifest injustice, which is

equivalent to plain error review).

      At sentencing, the district court had a discussion with Moreira’s counsel

concerning the lack of an interpreter at the sentencing because Moreira’s native

language was Spanish. [R. DE234, p.15‒17.] An interpreter had been present

during the trial, and counsel assumed that the interpreter would be present at the

sentencing as well. Counsel acknowledged that Moreira understood English but

communicated better in Spanish. The district court cautioned counsel that Moreira

should be careful if she wanted to allocute in case she appealed and received a new

trial because anything she said could be used at a retrial. The district court

emphasized, however, that it was not trying to stop her from making any

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statements, and it would listen to her speak on her behalf no matter how long it

took. Counsel consulted with Moreira, and she decided not to speak.

      “Allocution is the right of the defendant to make a final plea on his own

behalf to the sentencer before the imposition of sentence.” Prouty, 303 F.3d at

1251. This right is protected under the Federal Rules of Criminal Procedure. See

Fed. R. Crim. P. 32. The rule provides that the court, prior to imposing sentence,

must “address the defendant personally in order to permit the defendant to speak or

present any information to mitigate the sentence.” Fed. R. Crim. P. 32(i)(4)(A)(ii).

The district court failed to address Moreira personally before it sentenced her.

Thus, there was error, and it was plain. Prouty, 303 F.3d at 1252.

      Although the district court plainly erred by not addressing Moreira

personally, regardless of whether its warning deprived her of the right to allocute,

Moreira still has the burden of demonstrating that the error affected her substantial

rights. See id. She cannot meet this burden because the district court sentenced

her at the bottom of the sentencing guideline range. “We have held that the denial

of the right of allocution presumptively affects a defendant’s substantial rights only

where the possibility of a lower guidelines sentence exists.” United States v.

Perez, 661 F.3d 568, 583 (11th Cir. 2011); see also Quintana, 300 F.3d at 1231‒32

(holding that denial of right to allocute was not prejudicial because district court

sentenced defendant to low end of guideline range).

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      Moreira’s guideline sentencing range was 235 to 293 months, and the

district court sentenced her to 235 months, the lowest end of the sentencing

guideline range. Hence, she suffered no prejudice, and her substantial rights were

not affected by the court’s error. Accordingly, she is entitled to no sentencing

relief, and we affirm her sentence.

                                 V. CONCLUSION

      There was sufficient evidence to support the jury’s guilty verdicts, and the

district court did not abuse its discretion with regard to the evidentiary rulings.

Moreira failed to demonstrate that the district court’s sentencing error affected her

substantial rights or that she was prejudiced by the error.

      Thus, for the aforementioned reasons, we affirm Moreira’s convictions and

sentence.

      AFFIRMED.




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