APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Gustavo A. Gelpí, U.S. District Judge.
Rachel Brill, for appellant.
Héctor E. Ramírez-Carbo, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Juan Carlos Reyes-Ramos, Assistant United States Attorney, were on brief, for appellee.
Before Torruella, Lipez, and Thompson, Circuit Judges.
TORRUELLA, Circuit Judge.
A jury convicted defendant-appellant Luz M. Vega of
fifty-eight criminal counts stemming from her participation in a Medicare fraud
scheme. Vega now appeals her convictions from the United States District Court
for the District of Puerto Rico, alleging several procedural defects.
Additionally, although Vega does not challenge her Medicare fraud convictions,
she argues the Government did not present sufficient evidence to convict her of
identity theft and money laundering. For the reasons that follow, we affirm.
Vega was the director of Preferred Medical Equipment (" Preferred" ), a supplier of durable medical equipment (" DME" ) located in Arecibo. DME are items used by individuals with certain medical conditions outside of a hospital on regular basis, such as wheelchairs, walkers, orthotics, and electric hospital beds. Typically, a patient obtains DME through a DME supplier upon the presentation of a physician order. If the patient is a Medicare beneficiary, the DME supplier can submit a claim to Medicare for partial reimbursement.
DME suppliers seeking reimbursement from Medicare must submit documentation with their claim, including proof that the DME ordered was medically necessary and prescribed by a physician. Due to the volume of claims received, Medicare does not verify every claim it receives beyond checking for paperwork showing that the DME recipient was a Medicare beneficiary and the DME was medically necessary.
Preferred defrauded Medicare by submitting claims for DME orders that were not medically necessary. Rather than waiting for beneficiaries to come with physician orders to fulfill, " equipment coordinators" at Preferred would seek out Medicare beneficiaries and persuade them to receive DME, often under the pretense that the equipment was free. The absence of documentation showing the DME ordered was medically necessary would normally prevent Medicare reimbursement. Preferred's equipment coordinators circumvented this rule by paying a doctor, Francisco A. Garrastegui-Bigas (" Garrastegui" ), to provide the required documentation. Garrastegui would either create documentation for DME already ordered, or accompany the equipment coordinators on patient visits and prescribe DME on the spot.
The Government jointly indicted Vega; Garrastegui; Preferred's secretary, María Elisa Pérez; and two of Preferred's equipment coordinators, Lissette Acevedo-Rodríguez (" Acevedo" ) and Luisa Nieves, alleging that Preferred submitted ninety-five false claims totaling $210,223.47 to Medicare between April 2010 and March 2011. For her role in this scheme, the Government charged Vega with one count of conspiracy to commit Medicare fraud in violation of 18 U.S.C. § § 1347 and 1349 and twenty-four counts of aiding and abetting the commission of health care fraud in violation of 18 U.S.C. § § 2 and 1347.
Vega also faced several other criminal charges in connection with her participation in Preferred's fraud scheme. For payments made to Preferred's equipment coordinators and Garrastegui, Vega was charged with twenty-eight counts of aiding and abetting the solicitation and receipt of kickbacks in relation to the Medicare program, in violation of 42 U.S.C. § § 2 and 1320a-7b(b)(1)(B). Vega paid commissions to Preferred's equipment coordinators based on the type and quantity of DME they sold. Additionally, Vega paid Garrastegui to visit Preferred's office in late 2010 to create medical documentation for DME that Preferred had sold without physician orders.
The Government also charged Vega with three counts of aiding and abetting aggravated identify theft in violation of 18 U.S.C. § 1028A(a)(1) and (2). These aggravated identity theft charges were in relation to Preferred obtaining the identification information of three Medicare beneficiaries -- Juan Quiles-Medina (" Quiles" ), José Figueroa-Class (" Figueroa" ), and Efraín Toro-Morales (" Toro" ) -- and continuing to bill Medicare on their behalf even after they told Preferred they did not want the equipment.
Finally, Vega was charged with two counts of transacting in criminally derived property of a value greater than $10,000 (i.e., money laundering) because she used funds from Preferred's bank account to pay for personal expenses (an auto loan and the purchase of an official check).
Garrastegui and Acevedo both pled guilty and testified against Vega at trial. The jury found Vega guilty of all counts. The district court sentenced Vega to two years and one day of imprisonment and three years of supervised release. This timely appeal followed.
II. Napue Claims
Vega first argues that the Government violated Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), and her right to due process by allowing two of its witnesses to provide false testimony to the jury. Napue prohibits prosecutors from knowingly presenting false evidence, including false testimony, to the jury. Id. at 269-70; see also United States v. Flores-Rivera, 787 F.3d 1, 31 (1st Cir. 2015). This prohibition applies even if the government does not solicit the false testimony and merely fails to correct it. Napue, 360 U.S. at 269.
According to Vega, two of Preferred's equipment coordinators who testified against her at trial, Acevedo and Marcos A. SÁrraga-Montañez (" SÁrraga" ), underrepresented the benefits they received from their plea agreements. This in turn, Vega argues, prevented the jury from fully assessing their bias and credibility. We reject Vega's Napue claims for two reasons.
First, we note that Vega did not object to Acevedo's or SÁrraga's testimony, even though the Government entered their plea agreements into evidence at trial and, as discussed in further detail below, the plea agreements contained all of the information Vega needed to impeach their testimony. If a defendant has actual knowledge of the false testimony and fails to correct it, absent unusual circumstances, we assume the defendant did so for strategic reasons and consider the Napue claim waived. United States v. Mangual-Garcia, 505 F.3d 1, 10-11 (1st Cir. 2007). Given the availability of the plea agreements, we do not think Vega has reason to complain about either witness's testimony on appeal.
Second, even if Vega's claims are reviewable, they are meritless.
A. Acevedo's Testimony
Vega contests a portion of Acevedo's testimony elicited on recross-examination. Following Acevedo's statement that she was repentant, Vega asked Acevedo if she " ha[d] to return the money that [she] received" from her crimes; Acevedo, who had yet to be sentenced, stated that she did not know. The district court then told the jury that Acevedo's plea agreement, whatever its terms, was not binding and that the court " c[ould] order full restitution" and it was " up to the Court, the amount of restitution."
Vega argues that the prosecutors (and district court with its comment) left the jury with an impression that Acevedo did not receive a benefit from the Government by pleading guilty because restitution was still up to the district court's discretion. This impression is ...