FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO Hon. Gustavo Gelpi, U.S. District Judge
M. Glickman and Glickman Turley LLP, were on brief, for
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
Lynch and Lipez, Circuit Judges, and Ponsor, District Judge.
PONSOR, District Judge.
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").
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
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.
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.
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.
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.
September 30, 2015, counsel rested. The following day, the
jury heard closing argument and instructions from the court
and began deliberations.
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."The instructions expanded on this point
by stating that "Anibal Pagán-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 ...