Eleventh Circuit Court of Appeals - Published Opinions

Monday, June 29, 2020

Pon: Any Error in Limiting Defense Sur-Rebuttal Case Was Harmless

In United States v. Pon, No. 17-11455 (Ed Carnes, Martin, Rogers (CA6)), the Court affirmed the ophthalmologist defendant’s Medicare fraud convictions.

First, the Court found no abuse of discretion under Daubert when the district court found that the defense expert’s specific medical treatment theory was unreliable, and it therefore limited the expert to testifying about general concepts relating to eye diseases.  The Court concluded that three of the four Daubert factors weighed against the reliability of the expert’s theory.

Second, the defendant argued that the district court erred by allowing the government to present rebuttal evidence showing that he billed Medicare for providing certain services to one patient, and then limiting the defense’s surrebuttal evidence about that treatment of that patient.  After a lengthy discussion of preservation rules and the importance of harmless error, the Court held that, even if the district court erroneously limited the scope of the defense’s surrebuttal case, and that error violated his Sixth Amendment right to present a complete defense, that error was harmless given the overwhelming evidence of guilt that was unrelated to the error.  In response to the dissent, the Court emphasized that there were numerous Supreme Court and Eleventh Circuit precedents finding harmless error in the face of overwhelming evidence.

Third, as to sentencing, the Court concluded that the district court based its loss amount finding on specific and reliable evidence, including a spreadsheet showing the claims paid and extensive testimony by a special agent about Medicare data.  However, the Court vacated the sentences because the district court imposed concurrent 121-month sentences on all counts, the low end of the guideline range, but the statutory maximum was 120 months.  The Court remanded so that the district court could modify the sentence structure.

Judge Martin concurred in part and dissented in part.  In her view, the limitation of the surrebuttal defense violated the defendant’s right to present a complete defense.  And, in her view, that error was not harmless.  She emphasized that the Court should be cautious about using harmless error, particularly when based on overwhelming evidence.