United States v. Carlos Rodriguez Nerey
877 F.3d 956
| 11th Cir. | 2017Background
- Carlos Rodriguez Nerey was tried by jury and convicted on two counts: conspiracy to defraud the United States by paying/receiving health‑care kickbacks (18 U.S.C. § 371 / 42 U.S.C. § 1320a‑7b) and knowingly soliciting/receiving kickbacks connected to a federal health care program (42 U.S.C. § 1320a‑7b). He was sentenced to 60 months’ imprisonment and ordered to pay $2,366,746 restitution.
- The scheme involved home‑health agencies (Mercy HC and D&D&D) that billed Medicare for unnecessary or unperformed services; patient recruiters (including Nerey) procured Medicare beneficiaries and received kickbacks disguised as therapy or payments to shell companies (Sweet Life; Nerey Professional Services, Inc.).
- Major trial evidence: co‑conspirator testimony (Perez, Alvarez, Jaramillo, Garcia), ledger/logbooks tracking recruiters and coded entries ("G" for Nerey), forged or brokered prescriptions via doctors/medical staff, altered/false therapy notes, and forensic accounting tracing at least $249,098 in checks to Nerey from Medicare‑paid claims (and total Medicare payments of $2,366,746 to the two agencies).
- District court denied Nerey’s motions for acquittal and to interview a juror post‑verdict (juror wore an “American Greed” style T‑shirt); admitted various Rule 404(b)/res gestae evidence; and applied a Guidelines increase based on the full value of the improper benefit conferred ($2,366,746) as relevant conduct.
- On appeal, Nerey challenged (1) sufficiency of evidence, (2) alleged prosecutorial misconduct during closing, (3) denial of leave to interview juror No. 4, (4) admission of Rule 404(b) evidence, and (5) the district court’s calculation of the benefit amount for Guidelines purposes.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Nerey) | Held |
|---|---|---|---|
| Sufficiency of the evidence to support conspiracy and Anti‑Kickback convictions | Co‑conspirator testimony corroborated by documentary evidence and forensic bank tracing established that Nerey solicited/received kickbacks and knowingly participated in the scheme | Co‑conspirator testimony was unreliable and uncorroborated; government did not prove willfulness or that Nerey was responsible for the entire fraud | Affirmed. Viewing evidence in the light most favorable to the Government, testimony + bank trail were sufficient and willfulness shown by evasive conduct and consciousness of guilt |
| Prosecutorial misconduct (closing argument burden‑shifting) | Comments were proper or harmless; district court cured any improper remarks with sustained objections and curative instructions | Prosecutor’s remarks improperly shifted burden to defense and prejudiced jury | Affirmed. Some remarks may have been improper but were isolated, curatively addressed, and prejudice unlikely given curative instructions and overwhelming evidence |
| Motion to interview juror No. 4 (post‑verdict T‑shirt) | No impropriety shown; defense failed to identify questions or show T‑shirt belonged to program or constituted outside influence | Juror’s “American Greed” T‑shirt indicated bias and raised good cause to interview juror about impartiality | Affirmed. Denial not an abuse of discretion—shirt did not establish extraneous influence or juror dishonesty on voir dire and allegations were speculative |
| Admissibility of Rule 404(b) evidence and res gestae materials (other agencies; knowledge; confrontation of informant) | Evidence was inextricably intertwined with charged conduct or admissible under Rule 404(b) for motive, intent, absence of mistake, and consciousness of guilt | Evidence was prejudicial, not sufficiently proved, and not necessary to story of the charged offenses | Affirmed. Evidence was relevant as part of the same course of conduct or necessary context; probative value not substantially outweighed by prejudice |
| Sentencing: amount of "improper benefit to be conferred" for Guidelines | Entire Medicare payments ($2,366,746) were reasonably foreseeable relevant conduct because Nerey was a principal recruiter whose payments depended on submitted/paid Medicare claims | Nerey should be responsible only for his personal kickbacks (~$249,098) because he did not cause all claims or recruit all patients | Affirmed. Court did not clearly err: Nerey’s role made the larger payments reasonably foreseeable and in furtherance of jointly undertaken criminal activity |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (Sup. Ct.) (standard for sufficiency review: whether any rational trier of fact could have found guilt beyond a reasonable doubt)
- Vernon v. United States, 723 F.3d 1234 (11th Cir. 2013) (definition of willfulness under Anti‑Kickback statute; conspiracy elements)
- Broadwell v. United States, 870 F.2d 594 (11th Cir. 1989) (co‑conspirator testimony, even if uncorroborated, can support conviction)
- Eckhardt v. United States, 466 F.3d 938 (11th Cir. 2006) (standard for reviewing prosecutorial misconduct claims; mixed questions of law and fact)
- McLean v. United States, 138 F.3d 1398 (11th Cir. 1998) (admission of evidence as necessary to complete the story of the crime; prejudice analysis)
- Perkins v. United States, 748 F.2d 1519 (11th Cir. 1984) (standard for juror nondisclosure claims: materiality and actual bias)
- Valarezo‑Orobio v. United States, 635 F.3d 1261 (11th Cir. 2011) (relevant conduct and foreseeability in jointly undertaken criminal activity)