FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Jay A. García-Gregory, U.S. District
Guillermo A. Macari-Grillo for appellant.
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.
Lynch, Lipez, and Barron, Circuit Judges.
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
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.
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
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.
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."
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.
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."
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.
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.
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.
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."
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.
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.
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.
Challenge to Convictions for ...