                                                                             FILED
                            NOT FOR PUBLICATION                               MAR 29 2011

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 10-30158

              Plaintiff - Appellee,               D.C. No. 4:09-cr-00002-BLW-2

  v.
                                                  MEMORANDUM *
VANESSA CATTANEA,

              Defendant - Appellant.



                    Appeal from the United States District Court
                              for the District of Idaho
                  B. Lynn Winmill, Chief District Judge, Presiding

                      Argued and Submitted February 10, 2011
                               Seattle, Washington

Before: B. FLETCHER, PAEZ, and IKUTA, Circuit Judges.

       Appellant Vanessa Cattanea (“Cattanea”) seeks reversal of her jury

conviction for Medicaid fraud under 18 U.S.C. § 1347. She argues that the district

court committed several errors over the course of the trial, including: (1) failing to

grant her motion to sever her trial from that of her co-defendant; (2) erroneously



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
instructing the jury on the element of intent; and (3) denying her motion for

judgment of acquittal based on insufficiency of the evidence. She also argues that

the prosecution made improper and prejudicial comments in its closing argument.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      First, Cattanea challenges the district court’s denial of her motion to sever.

We review the district court’s ruling for abuse of discretion. United States v.

Mayfield, 189 F.3d 895, 899 (9th Cir. 1999). A party moving for severance based

on the need for a co-defendant’s testimony must show that he or she would call the

co-defendant to testify, that the co-defendant would testify, and that the testimony

would be favorable to the moving party. United States v. Hernandez, 952 F.2d

1110, 1115 (9th Cir. 1991); United States v. Castro, 887 F.2d 988, 998 (9th Cir.

1989). Here, the district court denied Cattanea’s motion based on its conclusion

that she “failed to make any showing that [her co-defendant] would in fact testify

on her behalf if severance was granted.” The record reflects that Cattanea failed to

make any statement or offer any evidence as to the likelihood that Hamilton, her

co-defendant, would in fact testify at her separate trial. The district court,

therefore, did not abuse its discretion. See Castro, 887 F.2d at 998 (upholding a

trial court’s denial of a motion to sever because the movant failed to make the




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foundational showing that his co-defendant “offered or agreed to testify” on his

behalf).

      Cattanea argues that the district court failed to consider the effect of United

States v. Cuozzo, 962 F.2d 945, 950 (9th Cir. 1992). Cuozzo, however, in no way

calls the holding of Castro into question, nor does it expressly alter its test as to the

movant’s initial burden. This argument is therefore unavailing.

      Second, Cattanea argues that the district court erred in its instructions to the

jury as to “intent to defraud.” We review the district court’s failure to instruct that

good faith constituted a complete defense to the crime de novo, United States v.

Perdomo-Espana, 522 F.3d 983, 986 (9th Cir. 2008), and its instruction that the

jury could conclude that the defendant acted with the requisite intent if the

government proved that she “acted with reckless indifference to the truth or falsity

of statements” for plain error, United States v. Barajas-Montiel, 185 F.3d 947, 953

(9th Cir. 1999).

      As to the first issue, the district court committed no error because “a

criminal defendant has ‘no right’ to any good faith instruction when the jury has

been adequately instructed with regard to the intent required to be found guilty of

the crime charged, notwithstanding the normal rules governing ‘theory of defense’




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requests.” United States v. Shipsey, 363 F.3d 962, 967 (9th Cir. 2004) (citation

omitted).

      As to the second objection, in United States v. Dearing, 504 F.3d 897, 903

(9th Cir. 2007), we upheld the use of reckless indifference language in an

instruction on intent to defraud as an element of 18 U.S.C. § 1347, the Medicaid

fraud statute at issue here. Thus, the district court did not commit plain error in

instructing that the jury could find specific intent if the government proved

Cattanea “acted with reckless indifference to the truth or falsity of statements.”

      Third, Cattanea argues that the district court erred in denying her motion for

acquittal due to the insufficiency of the evidence from which a jury could find

beyond a reasonable doubt that she acted with intent to defraud a health care

benefit program. We review the sufficiency of the evidence de novo, United States

v. LeVeque, 283 F.3d 1098, 1102 (9th Cir. 2002), and consider whether, “after

viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (citing Johnson

v. Louisiana, 406 U.S. 356, 362 (1972)).

      In the light most favorable to the prosecution, the evidence presented at trial

would allow a rational trier of fact to conclude that the government proved the


                                           -4-
essential elements of the crime of Medicaid fraud, including intent, beyond a

reasonable doubt. The trial testimony reflects that Cattanea instructed her

employees to generate notes that inaccurately reflected both where the provision of

services took place and who provided the services. In addition, the testimony

revealed that Cattanea made misleading statements to a Medicaid auditor. In light

of Cattanea’s apparent knowledge of the Medicaid regulations, a rational fact

finder could infer that Cattanea had the specific intent to defraud Medicaid in order

to maximize profits at Teton.

      Cattanea’s fourth and final argument is that the prosecutor made improper

and prejudicial remarks to the jury, precluding a fair trial. Specifically, Cattanea

points to the government’s statements to the jury that Cattanea reached an

agreement with her co-defendant Hamilton to maximize Teton’s billings in

exchange for her promotion to treatment director of all three Teton facilities.

      We review the question of whether the government made improper closing

arguments to which the defendant did not object for plain error. United States v.

Brown, 327 F.3d 867, 871 (9th Cir. 2003). The government’s statements were not

improper because, although they were unsupported by direct evidence, an inference

could be drawn from the evidence that Cattanea was rewarded for her acquiescence

in Teton’s policy of maximizing billing. Further, even if the government’s


                                          -5-
statements were improper, they were not prejudicial because the jury was explicitly

instructed that statements made by the prosecution in its closing argument are not

evidence.

AFFIRMED.




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