Melgen: Upholding Medicare Fraud Convictions Over Multiple Challenges

In United States v. Melgen, No. 18-10991 (July 31, 2020) (Grant, Martin, Lagoa), the Court affirmed the defendant’s Medicare fraud convictions and sentence.

First, the Court rejected the defendant’s argument that the district court erred by giving the pattern instruction on materiality.  The Court rejected the defendant’s reliance on a Supreme Court case addressing the False Claims Act.

Second, the Court found no error in the introduction of summary charts comparing the defendant’s billing to peer physicians.  The charts were admissible under Rule 1006.  The Confrontation Clause did not permit the defendant to cross examine decision-makers about the criteria used to make the charts (namely, the prosecutors).  And no expert witness was required to admit the charts.

Third, the Court rejected five errors about his trial.  First, the district court did not err in admitting evidence of multi-dosing, since it was probative of his profit motive.  Second, no mistrial was required due  to a witness’ false testimony because the court immediately issued a thorough curative instruction.  Third, the court’s refusal to instruct the jury that a sample of patient files was not statistically random did not require a mistrial, because the court instructed the jury to disregard any statements concerning statistical confidence.  Fourth, the district court did not commit plain error by giving the jury unredacted copies of the indictment because the court told the jury that it was not evidence of guilt and there was no potential prejudice.  Finally, no mistrial was required by contact between the government and defense witnesses after the court conducted a hearing and determined that the contact had not been prejudicial or altered any testimony.

Fourth, the Court concluded that sufficient evidence supported the convictions, as the defendant’s argument went to the weight of the evidence.

Fifth, the Court upheld the denial of a motion for new trial based on a Brady violation, which was based on medical testimony by a government witness at sentencing.  This testimony was neither new nor likely to change the outcome of the trial.  And it was merely impeachment evidence, and so not the basis of a new trial under Rule 33. 

Finally, as to the sentence, the Court found no clear error in the loss amount, as the government presented enough evidence that the sample patient group was representative of the defendant’s patient population.  And his below-guideline sentence was not substantively unreasonable.

Smith: Upholding Hobbs Act Robbery Conviction Against Individual Victims and Holding that Section 403 of the First Step Act Does Not Apply Retroactively

In United States v. Smith, No. 18-13969 (July 30, 2020) (Ed Carnes, Luck, Marcus), the Court affirmed the defendant’s Hobbs Act robbery and 924(c) convictions.

First, the Court held that the district court’s finding that a photographic lineup was not unduly suggestive was not clearly erroneous.  And the Court held that admission of the defendant’s rap video at trial did not violate the First Amendment or Rule 403, as it had significant probative value for contested issues of identity and display of a firearm.

Second, as to one Hobbs Act robbery conviction, the Court held that the defendant’s proposed jury instruction about how to satisfy interstate commerce element in the context of an individual (as opposed to a business) was incorrect, because it changed illustrative examples to exclusive examples.  The Court also held that the evidence was sufficient to show that his robbery affected interstate commerce because he stole a thumb drive containing software that the victim used for her business, and that business was engaged in interstate commerce.

Third, and joining other circuits, the Court held that Section 403 of the First Step Act, limiting the stacking of 924(c) convictions, applies only to cases where a sentence has not yet been “imposed.”  And a sentence is “imposed” when the district court enters a final judgment, not when the sentence becomes final on appeal.

Finally, the Court rejected the defendant’s challenges to his 92-year sentence.  It found no Eighth Amendment violation because he robbed four people at gunpoint and caused severe injury to one, and the sentence was below the statutory maximum.  The sentence was also not substantively unreasonable because all but 121 months were mandated by statute, and the court did not abuse its discretion in considering the 3553(a) factors.

Carmichael: Upholding Denial of 2255 Motion Based on IAC

In Carmichael v. United States, No. 17-13822 (July 22, 2020) (Proctor (ND Ala), Wilson, Newsom), the Court affirmed the denial of a 2255 motion based on ineffective assistance of counsel.

The government conceded, and the Court agreed, that counsel performed deficiently by failing to communicate Carmichael’s total 40-year sentence, seek a negotiated plea as requested, or relay 10-year and 20-year plea offers.  However, the Court concluded that Carmichael could not show prejudice because he could not show that he would have accepted the plea offer had it been communicated to him.  The offers were conditioned on his substantial assistance and “super-cooperation,” and Carmichael did not show that he was willing or able to do so before he went to trial and was convicted, or that the government would have deemed his cooperation satisfactory.

Hall: Upholding 40-Year Child Pornography Sentence

In United States v. Hall, No. 18-14145 (July 21, 2020) (Ed Carnes, Rosenbaum, Vinson (ND Fla)), the Court affirmed the defendant’s 40-year sentence for receiving child pornography, an upward variance from a guideline range of 15 years.

First, the Court rejected the defendant’s argument that the sentencing court improperly relied on unreliable hearsay evidence from an earlier sexual abuse case.  The Court concluded that the defendant did “not even come close” to meeting his burden to prove that the evidence was unreliable.

Second, the defendant argued that the district court failed to give notice required by Rule 32(h) before imposing an upward departure.  The Court rejected that argument because the district court expressly imposed an upward variance (not a departure), for which no notice is required.  And the reasons for the sentence above the guideline range were based on the 3553(a) factors, not a departure provision in the Guidelines.  It did not matter that those reasons might have also fit under a departure provision.

Third, the Court concluded that the sentence was not substantively unreasonable.  The Court emphasized that the defendant had engaged in repeated acts of sexual abuse of children over two decades, even after he went to prison for it and was released; he blamed the victims rather than showed remorse; and he inflicted substantial and long-lasting harm to the victims.

Deason: Upholding Enticement and Obscene Transfer Convictions

In United States v. Deason, No. 17-12218 (July 17, 2020) (Ed Carnes, Branch, Tjoflat), the Court affirmed the defendant’s convictions for enticement of a minor and attempted transfer of obscene material.

First, the Court upheld the denial of a motion to suppress statements made by the defendant in his home without receiving Miranda warnings.  The Court concluded that the defendant was not “in custody” based on the totality of the circumstances.

Second, the Court found the evidence sufficient to convict on one of the obscene transfer counts.  The Court rejected the defendant’s argument that the government did not put all of the underlying videos as a whole into evidence, and instead admitted only screenshots from each video and had an agent testify about the contents.  The Court concluded that the evidence admitted was sufficient to establish that the material was obscene; the entire videos were not required.

Third, the Court concluded that the defendant invited any error with respect to the sufficiency of the indictment because the government superseded the indictment in response to the defendant’s specificity objection, and the defendant indicated that the problem had been cured.

Finally, the Court rejected three evidentiary claims under plain error.  First, the defendant argued that various rules of evidence were violated when the government admitted screenshots and testimony rather than the videos themselves, but the Court concluded that the defendant could not show than any error affected his substantial rights because, had he objected, the government would have simply admitted the videos.  Second, the Court concluded that, even if the obscene transfer charges were duplicitous for including multiple obscene images/videos in each count, any error did not affect his substantial rights because the jury would have unanimously agreed that at least one image in each count was obscene.  Lastly, the Court concluded that, for the same reason, the defendant could not show any effect on his substantial rights in failing to give an instruction to cure the duplicity problem.  

Gumbs: Upholding Convictions for Forcibly Assault Federal Officers with a Vehicle

In United States v. Gumbs, No. 18-13182 (July 15, 2020) (Luck, William Pryor, Jill Pryor), the Court affirmed the defendant’s convictions for using a deadly weapon to forcibly assault a federal officer.

First, the Court found no abuse of discretion in refusing to give the defendant’s proposed jury instructions.  With regard to the term “forcibly,” the court’s instruction tracked the language of the federal assault statute, which had a generally understood meaning using basic grade-school grammar.  With regard to “use of a deadly weapon,” the defendant’s proposed instruction relating to a car as a deadly weapon was substantially covered by the court’s instruction, and the court was not required to separately define the word “use” because it has a common meaning.  With regard to the court’s failure to give an instruction on the lesser included offense of simple assault, the Court concluded that there was no way the jury could have found him guilty of assault without finding him guilty of forcible assault.

Second, the Court found no abuse of discretion in the district court’s response to the jury’s question relating to the use of a car as a deadly weapon.  The court repeated the relevant portion of its earlier instruction, which was a correct statement of the law.

Third, the Court found sufficient evidence to support one of his convictions.  The Court rejected the defendant’s argument that he did not direct force against officers next to his car, because he stepped on the gas pedal as officers were reaching inside the car to arrest him.

Martinez: Upholding Guideline Enhancement for Possessing Gun In Connection With Another Felony

In United States v. Martinez, No. 18-12950 (July 14, 2020) (Luck, William Pryor, Jill Pryor), the Court affirmed an enhancement under USSG 2K2.1(b)(6)(B) for unlawfully possessing a firearm with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony.

The issue on appeal was whether the enhancement applied where the defendant plans to trade a gun for drugs in the future.  The Court held that it does where the  defendant “knew, intended, or had reason to believe (rather than hoped, wished, or dreamed) the gun was going to be used to buy drugs, and the sale would have (rather than may or might have) happened but for the defendant’s arrest or something else getting in the way.”  Because the district court in this case found that the defendant to trade his gun for a pound of drugs that he planned to sell, and that finding was not clearly erroneous, the Court upheld the enhancement.

Chalker: Upholding Healthcare Fraud Convictions Over Various Challenges

In United States v. Chalker, No. 18-15102 (July 13, 2020) (Marcus, Wilson, Thapar), the Court affirmed the defendant pharmacist’s healthcare fraud convictions and sentence.

First, the Court found that the evidence was sufficient to support convictions for conspiracy to commit healthcare fraud and substantive healthcare fraud.

Second, the Court found that the indictment tracked the language of the statute and otherwise sufficiently informed the defendant of the charges.

Third, the Court found no error in permitting an FBI forensic accountant to testify as a lay witness because he never gave expert testimony, but rather merely summarized bank/wage records.  The Court also found no error in admitting expert testimony where the government disclosed the substance of the testimony before trial, but swapped out a new expert for the original expert, as there was no showing of prejudice.

Fourth, the Court found no abuse of discretion in denying the defendant’s motion to continue the trial based on defense counsel’s time to prepare and the expert swap.  The Court concluded that there was not enough to show prejudice.

Fifth, the Court found no clear error at sentencing in the loss calculation.  The defendant arguably waived that issue at sentencing.  And, in any event, the trial testimony supported the finding.

Stein: Upholding Restitution Order and Deeming Other Challenges Barred by the Mandate Rule/Law of Case

In United States v. Stein, No. 18-13762 (July 13, 2020) (Marcus, Luck, Ed Carnes), the Court re-affirmed the defendant’s fraud convictions and affirmed an award of restitution.

In a previous appeal, the Eleventh Circuit remanded for the district court consider to reconsider its loss finding with respect to restitution.   The Court held that, on remand, the district court relied on sufficient evidence to establish causation, and the court was permitted to rely on the government’s expert witness.

The Court declined to consider the defendant’s Brady/Giglio challenges to this convictions, or his challenges to the forfeiture order, because those challenges were outside the scope of the limited remand and could have been raised in the initial appeal.  The Court found no exception to either the mandate rule or the law of the case doctrine.  As for the convictions, the Court found that the evidence was neither newly discovered nor material.  As for the forfeiture order, the Court concluded that the defendant was not entitled to raise a new argument just because the judgment was amended for unrelated restitution purposes, and the Supreme Court’s intervening decision in Honeycutt dealt with a distinguishable forfeiture statute.

Ruan: Rejecting Numerous Challenges to Physicians' Convictions for Distributing Opioids

In United States v. Ruan, No. 17-12653 (July 10, 2020) (Coogler (ND Ala.), Wilson, Newsom)), the Court, in a 137-page opinion, affirmed all but one the defendant doctors’ numerous health-care/opioid related convictions.

The Court found sufficient evidence to support convictions for unlawfully prescribing opioids, health care fraud conspiracy, conspiracy to receive kickbacks, mail/fraud wire fraud conspiracy, and RICO conspiracy.  The government’s main expert witness for some of the counts revealed after testifying that he was suffering from early-onset dementia, but the defense could not show plain error because the defense did not ask for that to be disclosed to the jury and the expert was cross examined.  The Court found insufficient evidence for one count of conspiracy to receive kickbacks because the government failed to prove the existence of a “federal health care program” being defrauded.

The Court rejected the defendants’ evidentiary challenges.  The Court found that the admission of information from a state prescription drug database was not hearsay (but rather an opposing party’s statement and business records), and was not testimonial for purposes of the Confrontation Clause.  The Court next found that the exclusion of certain categories of evidence did not violate the defendants’ constitutional right to present a complete defense, despite improper (yet harmless) prosecutorial remarks about one of them.  The Court also found no error in qualifying a government expert and, although the court violated the Confrontation Clause by preventing the defense from eliciting the scope of the expert’s work for the government in the past, that error was harmless.

The Court found no error in refusing to give the defendants’ proposed jury instructions relating to a physician’s conduct under the Controlled Substances Act.  It found that the defendants’ proposed “good-faith” and “drug pusher” instructions were incorrect statements of law.  And it found that the defendants’ proposed negligence-is-not-enough instruction was correct, but its absence did not prevent them from presenting their defense.

As to the defendants’ sentences, the Court first rejected the government’s argument that the purported guideline errors were harmless because, although the court said it would impose the same sentence, it did not sufficiently justify an upward variance from 57-71 months (which would have been the correct range) all the way up to 252 months, and so that sentence would have been substantively unreasonable.  Thus, the Court proceeded to address the guideline issues, but found: no clear error in the drug quantity calculation based on a finding that 10% of the prescriptions were illegal; no clear error in an obstruction enhancement based on false testimony at trial; and, although the court erroneously applied a two-level rather than one-level money laundering conviction enhancement, that error was harmless because it did not affect the guideline range.  As to restitution, the Court found no clear error in awarding a certain percentage of payments that insurers made for the prescriptions.

In re Price: Denying SOS Application Based on Davis and Rehaif

In In re Price, No. 20-12133 (July 7, 2020) (Ed Carnes, Luck, Lagoa), the Court denied a pro se application for leave to file a second or successive 2255 motion based on both Davis and Rehaif.

As for the Davis claim, the applicant challenged his 924(c) convictions predicated on both bank robbery and conspiracy to commit bank robbery.  Although the jury returned a general verdict, and although the Court had not yet determined whether the latter offense remained a “crime of violence” after Davis, it was certain that the jury relied on the former offense, which did remain a “crime of violence” after Davis.  The Court was certain because the district court instructed the jury that it could find him guilty of the 924(c) offense only if it found him guilty of the corresponding bank robbery offense.

As for the Rehaif claim, that decision did not announce a new rule of constitutional law made retroactive by the Supreme Court.  It therefore failed to satisfy the gatekeeping criteria in 2255(h)(2) to file a second or successive 2255 motion.

Harris: Above Guideline Range Sentence in 922(g) Case Was Not Unreasonable

In United States v. Harris, No. 18-15055 (July 1, 2020) (Grant, William Pryor, Jung (MD Fla.), the Court held that the defendant’s sentence above the guideline range was not procedurally or substantively unreasonable.

For the 922(g) offense, the district court accepted the parties’ joint view that the guideline range was 33-41 months, rejecting the probation officer’s view that it was 92-115 months.  However, the court varied upward to 92 months.  On appeal, the Eleventh Circuit held that the district court adequately justified the variance, emphasizing the defendant's criminal history and that the defendant’s firearm possession ultimately led to someone’s death.  The district court also considered the defendant’s salutary post-offense conduct.  No more explanation was required.  The Eleventh Circuit also concluded that the 92-month sentence was not substantively unreasonable because the sentencing court did not abuse its discretion by giving great weight to the seriousness of the offense and criminal history, but less weight to his post-offense conduct.

Cuya: No Right to Discovery Before 2255 Motion is Filed

In Cuya v. United States, No. 18-14380 (July 1, 2020) (Marcus, Wilson, Thapar), the Court affirmed the denial of preliminary discovery motions filed in anticipation of a forthcoming 2255 motion.  Relying on former Fifth Circuit cases, the Court held that the denial of these motions was proper, because a defendant who has not yet filed a 2255 motion is not entitled to discovery.  Only after the 2255 motion is filed may a movant seek discovery based on a showing of good cause.