941 F.3d 729
5th Cir.2019Background
- Albert Diaz, a Mississippi physician, wrote prescriptions for compounded medications (including ketamine) without timely examining patients, at the request of Advantage Pharmacy sales rep Gerald Schaar and marketer Randy Thomley.
- Schaar and Thomley provided patient identifying information; commissions were paid to Schaar for prescriptions submitted to Tricare and private insurers.
- From Oct 2014–Sept 2015, Diaz’s prescriptions generated 573 false claims totaling over $3.3 million paid by Tricare and private insurers.
- After a Tricare audit, Diaz participated in creating backdated/altered medical charts and making post hoc house calls to conceal that patients had not been examined; recorded conversations captured Diaz admitting the misconduct and advising coconspirators to lie.
- A grand jury indicted Diaz on multiple counts (healthcare and wire fraud, controlled-substance distribution, obstruction, and related conspiracies); after a five-day jury trial he was convicted and later sentenced to 42 months and ordered to pay $3,374,409.16 in restitution.
- The district court amended the judgment to impose restitution after Diaz had already filed a timely appeal but Diaz did not file a new notice of appeal from the amended judgment; the Fifth Circuit affirmed the convictions and the restitution order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for fraud, obstruction, and controlled-substance offenses | Diaz contends evidence was insufficient to prove elements of the charged offenses | Government points to recordings, falsified charts, payments, and other record evidence supporting convictions | Affirmed — evidence sufficient under highly deferential standard (convictions reasonable) |
| Constructive amendment of the indictment | Diaz argues the government changed its theory at trial and broadened the indictment | Gov. says proof matched indictment; clarifications (e.g., on personal gain) did not alter elements | Rejected — no constructive amendment; proof aligned with charged offenses |
| Juror bias/new trial based on Juror 1’s statements | Diaz claims Juror 1’s conduct and statements implied bias tainting the jury | Gov. and district court say thorough inquiry and juror interviews showed no contamination | Denied — district court did not abuse discretion; not an "extreme" implied-bias situation |
| Recordings and Sixth Amendment/no-contact rule | Diaz asserts government-directed recordings while he had counsel violated Sixth Amendment and state no-contact rule | Gov. notes recordings occurred pre-indictment (no attachment of Sixth Amendment right) and no privileged disclosures; state bar rules don’t control pre-indictment conduct | Denied — Rothgery governs attachment (pre-indictment), no prejudice shown, no evidentiary hearing required |
| Denial of continuance one week before trial | Diaz sought continuance due to late disclosure about Schaar’s issues and stamp evidence; claimed need to develop additional witnesses | Gov. and court emphasized prior notice, defense knowledge, and lack of prejudice | Denied — district court did not abuse discretion under totality of circumstances |
| Jury instructions: deliberate ignorance and aiding-and-abetting | Diaz contends deliberate-ignorance and aiding-and-abetting instructions were improper | Gov. points to recorded admissions and other evidence supporting instructions | Affirmed — instructions appropriate and supported by the record |
| Restitution: timeliness and consideration of ability to pay | Diaz argues court failed to consider his financial resources and appeal of restitution is timely | Gov. contends Diaz forfeited appeal of amended judgment under Manrique; alternatively record supports restitution amount | Court noted Manrique compelled dismissal of a late appeal of amended judgment but nevertheless found record supported restitution; restitution order upheld (appeal timeliness issue dispositive) |
Key Cases Cited
- United States v. Scott, 892 F.3d 791 (5th Cir. 2018) (standard for reviewing sufficiency of the evidence)
- Rothgery v. Gillespie Cty., Tex., 554 U.S. 191 (2008) (when Sixth Amendment right to counsel attaches)
- Manrique v. United States, 137 S. Ct. 1266 (2017) (notice-of-appeal from amended judgment is a mandatory claim-processing rule)
- United States v. Ganji, 880 F.3d 760 (5th Cir. 2018) (elements required to prove conspiracy to commit health-care fraud under § 1349)
- United States v. Girod, 646 F.3d 304 (5th Cir. 2011) (definition and analysis of constructive amendment)
- United States v. Thompson, 647 F.3d 180 (5th Cir. 2011) (indictment notice and jeopardy functions)
- United States v. Thomas, 627 F.3d 146 (5th Cir. 2010) (standard for juror-bias/new-trial review)
- United States v. Davis, 226 F.3d 346 (5th Cir. 2000) (prejudice required to prove invasion of attorney-client privilege)
- Weatherford v. Bursey, 429 U.S. 545 (1977) (no Sixth Amendment violation absent tainted evidence or purposeful intrusion)
- United States v. Johnson, 68 F.3d 899 (5th Cir. 1995) (state bar rules do not constrain pre-indictment government conduct)
- United States v. Fields, 565 F.3d 290 (5th Cir. 2009) (when evidentiary hearing is unnecessary because no factual disputes are alleged)
- United States v. Ricard, 922 F.3d 639 (5th Cir. 2019) (standards for deliberate-ignorance jury instructions)
- United States v. Turner, 674 F.3d 420 (5th Cir. 2012) (aiding-and-abetting instruction principles)
- United States v. Mathew, 916 F.3d 510 (5th Cir. 2019) (district court must support each dollar of restitution with record evidence)
- United States v. Sharma, 703 F.3d 318 (5th Cir. 2012) (MVRA restitution standards and appellate review)