Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Tull-Abreu

United States Court of Appeals, First Circuit

April 19, 2019

UNITED STATES, Appellee,
v.
JUAN JOSE TULL-ABREU, Defendant, Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Jay A. García-Gregory, U.S. District Judge]

          Guillermo A. Macari-Grillo for appellant.

          Andrew W. Laing, Criminal Division, Appellate Section, with whom Rosa E. Rodríguez-Vélez, United States Attorney, Brian A. Benczkowski, Assistant Attorney General, Matthew S. Miner, Deputy Assistant Attorney General, and Dennise N. Longo Quiñones, Assistant United States Attorney, were on brief, for appellee.

          Before Lynch, Lipez, and Barron, Circuit Judges.

          LYNCH, CIRCUIT JUDGE

         After a fourteen-day jury trial, Dr. Juan Jose Tull-Abreu was convicted of one count of conspiracy to commit health care fraud, eight counts of health care fraud, six counts of aggravated identity theft, and four counts of furnishing false or fraudulent information in prescriptions for controlled substances. Tull-Abreu's scheme went on for about four years and he profited by over $500, 000 from his defrauding of the federal Medicare program and Medicare insurance plans. He was sentenced to a total of eighty-seven months' imprisonment.

         On appeal, Tull-Abreu's counselled brief challenges the sufficiency of the evidence underlying his convictions for aggravated identity theft, the denial of his motion for a new trial (concerning an alleged violation of his right to testify), the denial of his motion for a judgment of acquittal as to furnishing false or fraudulent information in prescriptions, and the substantive reasonableness of his sentence. In a pro se brief, Tull-Abreu challenges the sufficiency of the evidence for his conspiracy and health care fraud convictions and argues that an aspect of the trial violated his Sixth Amendment rights.

         We affirm.

         I. A. Factual Background

         Because Tull-Abreu challenges the sufficiency of the evidence for his convictions, these "facts are drawn from the record created at trial and are presented in the light most favorable to the guilty verdict." United States v. Monserrate-Valentín, 729 F.3d 31, 37 (1st Cir. 2013). Additional facts are discussed in the analysis where relevant, and we state only the facts pertinent to this appeal.

         From 2009, Tull-Abreu, a medical doctor, operated two medical offices in Puerto Rico, one in Arecibo and one in Utuado, and employed staff including secretaries. Three secretaries testified at trial. One had worked for Tull-Abreu from April 2009 to July 2014 (with a two-week break in early 2013), one from 2011 to 2013, and one from February to September 2013. Between 2009 and 2013, Tull-Abreu regularly traveled to the Dominican Republic, sometimes several times per month.

         From 2009 to 2013, Tull-Abreu and his secretaries asked for and received patients' signatures on extra Medicare reimbursement forms which had certain information missing, such as the date of service, and Tull-Abreu and his secretaries submitted these forms to obtain payment. The form was the "Health Insurance Claim Form" ("CMS 1500 form"), a standard form for Medicare billing and reimbursement. See United States v. López-Díaz, 794 F.3d 106, 109 (1st Cir. 2015). The CMS 1500 form has six spaces for "Date(s) of Service" and, corresponding to these dates, spaces for "Procedures, Services, or Supplies."

         Tull-Abreu and his secretaries obtained signatures from patients on these often-undated CMS 1500 forms by falsely telling patients, for example, that "one form was for the visit, and the other was for the [prescription]" or that one "form is for the prescription, [and the other one] is for the referral." Tull-Abreu and his secretaries took these forms and fabricated corresponding "progress notes" for patients, which included dates of fictitious appointments and services.

         Tull-Abreu was caught on an audio recording instructing his secretaries how to fill out these forms for services that were not rendered, and he and they filled out such forms. There is no evidence that Tull-Abreu forced his staff to do this, and one of his secretaries worked for him for nearly the full four years of the scheme. Tull-Abreu and his staff then submitted these fraudulent forms for reimbursement from Medicare plans, including for visits and services that did not and could not have occurred because Tull-Abreu's pertinent medical office was closed or he was in the Dominican Republic on the dates that the visits purportedly took place. The submitted CMS 1500 forms contained identifying information of the patients and had their signatures in a box on the form that stated the patients' agreement to "authorize payment of medical benefits to the undersigned physician or supplier for services described below."

         Tull-Abreu took steps to hide the fraud: His staff kept records, in internal "roll books," of dates that they had used earlier on fraudulent CMS 1500 forms, "to avoid repeating dates." This helped to avoid alerting insurers, who provided reimbursement through the Medicare plans, of the fraud. Tull-Abreu kept a supply of undated but patient-signed CMS 1500 forms.

         From 2011 to 2013, Tull-Abreu also wrote prescriptions for Percocet. Because Percocet was, and is, a controlled substance, see United States v. Alvarez-Núñez, 828 F.3d 52, 54 (1st Cir. 2016), such prescriptions must be dated and signed on the day that they are issued, see 21 C.F.R. § 1306.05(a). Tull-Abreu did not do that; he wrote in dates when he was in fact out of the country or traveling. The government put in evidence of four such falsely-dated prescriptions. Tull-Abreu's patients and staff testified that Tull-Abreu would leave postdated prescriptions before his trips, to be given to patients while he was gone.

         B. Procedural History

         Tull-Abreu was indicted on August 12, 2014, by a grand jury on one count of conspiracy to commit health care fraud, in violation of 18 U.S.C. § 1349; eight counts of health care fraud, in violation of 18 U.S.C. § 1347; six counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1); and four counts of furnishing false information in prescriptions for controlled substances, in violation of 21 U.S.C. § 843(a)(4)(A). The conspiracy charge outlined an agreement between Tull-Abreu and unnamed others to "unlawfully enrich [Tull-Abreu] by submitting false and fraudulent claims to Medicare." The fraud charges set forth Tull-Abreu's particular claims for reimbursement for eight patient office visits that never occurred. The aggravated identity theft charges set forth six uses of different patients' identifying information on fraudulent CMS 1500 forms. The furnishing false information charges concerned four Percocet prescriptions bearing dates and signatures for dates on which they had not been signed.

         Tull-Abreu's jury trial began on March 29, 2016. On the thirteenth day of trial, Tull-Abreu was set to testify. Before he took the stand, the prosecutor asked that Tull-Abreu be advised of his rights regarding testifying on his own behalf. With no objection from Tull-Abreu's counsel, the district court then explained, out of the presence of the jury, to Tull-Abreu his constitutional right not to testify and the legal ramifications of a choice to testify. The court then recessed so that Tull-Abreu and his counsel could confer. They did so for about half an hour. His counsel then informed the court that Tull-Abreu had decided not to testify, counsel again made no objection to the actions of the prosecution or the district court, and the defense rested. Later, the district court instructed the jury that Tull-Abreu was "entitled to the presumption of innocence" and so "his silence is not to be taken against him."

         Tull-Abreu was convicted of all counts on April 15, 2016. On May 27, 2016, he moved for a judgment of acquittal and for a new trial under Federal Rules of Criminal Procedure 29 and 33, respectively. In his Rule 29 motion, he alleged that insufficient evidence supported all convictions (except conspiracy). In his Rule 33 motion, he argued, among other things, that he had received an unfair trial due to the prosecutor's request that the district court remind Tull-Abreu of his constitutional right not to testify and the legal ramifications of choosing to testify. On August 23, 2016, the district court denied Tull-Abreu's motions for a judgment of acquittal and for a new trial.

         The district court sentenced Tull-Abreu to eighty-seven months' imprisonment and three years' supervised release. The court calculated a sixty-three month sentence, at the bottom of the Sentencing Guidelines' range of sixty-three to seventy-eight months' imprisonment for all counts except the aggravated identity theft counts, and added the consecutive mandatory fixed term of twenty-four months for the violations of the aggravated identity theft statute.

         II.

         We deal with the primary issues raised by Tull-Abreu's counselled brief and at oral argument, then the subsidiary issues, then the issues raised pro se.

         A. Challenge to Convictions for ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.