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.
