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United States v. Pagan-Romero

United States Court of Appeals, First Circuit

July 9, 2018

UNITED STATES OF AMERICA, Appellee,
v.
ANIBAL PAGÁN-ROMERO, Defendant, Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO Hon. Gustavo Gelpi, U.S. District Judge

          Paul M. Glickman and Glickman Turley LLP, were on brief, for appellant.

          Francisco A. Besosa-Martínez, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

          Before Lynch and Lipez, Circuit Judges, and Ponsor, District Judge. [*]

          PONSOR, District Judge.

         For many years, Appellant, Dr. Anibal Pagán-Romero, operated a medical clinic in Quebradillas, Puerto Rico. On October 5, 2015, a jury found him guilty of conspiracy to commit mail fraud and substantive mail fraud, based upon his certification of false injury claims submitted to the American Family Life Insurance Company ("AFLAC").

         This appeal arises from the district court's decision to grant the jury's oral request, made during deliberations, for a dictionary. As will be seen below, this decision, made over defendant's objection and with no discussion on the record, was improper. A review of the record, however, reveals that the trial judge took thorough, effective action to investigate the impact of the error and properly concluded that Appellant suffered no prejudice. We therefore conclude that the judge did not abuse his discretion in denying Appellant's motion for a new trial. Based on this, we will affirm.

         I. Background

         Appellant owned the Policlínica Familiar Shalom, a medical clinic and pharmacy in Quebradillas, Puerto Rico, where he also practiced medicine. On May 8, 2014, Appellant was charged, along with thirty-five co-defendants, with twenty-one counts of conspiracy to commit mail fraud in violation of 18 U.S.C. §§ 1349 and 1341, and sixty-one counts of mail fraud in violation of 18 U.S.C. §§ 2 and 1341. The indictment alleged that between January 2004 and November 2009, Appellant conspired with others to defraud AFLAC by filing false claims under its accidental injury policies.

         On August 31, 2015, the case went to trial before a jury. The government's theory was straightforward: before paying a claim, AFLAC required certification from a physician that he had, in fact, provided treatment on a specific date for a particular medical condition. Appellant, the government contended, had falsely certified claims over many years without ever treating, often without even seeing, the claimants. Former employees of the clinic testified pursuant to plea agreements and confirmed the extent of the fraud, admitting that they had overseen the submission of false claims and had even submitted bogus claims, certified by Appellant, on behalf of themselves and family members.

         Eventually, the scope of the fraud reached such proportions that some of Appellant's staff became uncomfortable, and Appellant directed AFLAC claimants to come through a side entrance of the clinic and work directly with co-conspirators closer to the heart of the fraudulent operation. Paperwork related to the AFLAC claimants was filed separately by Appellant and his co-conspirators; the claimants' files routinely contained no progress notes or other routine medical documentation, only the claim forms. Certification by Appellant of treatment supposedly given to these claimants was sometimes noted as occurring on dates when Appellant was out of the country, or on Saturdays and Sundays when the clinic was closed. Testimony confirmed that Appellant received $10 to $20 for each falsified claim. The government's evidence included over 270 exhibits, including audio recordings in which Appellant was heard speaking to two undercover FBI agents about claim forms he certified using false information.

         At trial, Appellant's defense was that he was unaware of the fraudulent scheme, which he contended was perpetrated without his knowledge by employees who stole his signature. Appellant's nephew Noel Pagán-Rivera testified that he had filed fraudulent claims at his uncle's clinic without the latter's knowledge. Appellant himself testified, denying any wrongdoing, asserting that some of the fraudulent claim forms had been filled out by a person or persons unknown to him, and asserting that he did not knowingly participate in any scheme to defraud.

         On September 30, 2015, counsel rested. The following day, the jury heard closing argument and instructions from the court and began deliberations.

         The jury instructions made clear that an essential element of mail fraud was that "Anibal Pagán-Romero knowingly and willingly participated in this scheme with the intent to defraud."[1]The instructions expanded on this point by stating that "Anibal Pag├ín-Romero acted knowingly if he was conscious and aware of his actions, realized what he was doing or what was happening around him and did not act because of ...


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