United States v. Roger Bergman, 852 F.3d 1046

Background

ATC operated Partial Hospitalization Programs (PHPs) and billed Medicare ≈ $200M; scheme included admitting unsuitable patients, recycling discharges, falsified records, and paying patient recruiters.
Bergman was a physician’s assistant who prepared and signed many medical records and notes used to bill Medicare; ATC billed ≈ $38M based on his paperwork. He resigned/was removed in Aug–Sept 2008.
Santaya worked as an outside patient recruiter (2006–2010), received cash kickbacks for referring Medicare beneficiaries, coached recruits to feign symptoms, and generated ≈ $2.9M in ATC billings.
Indictment (2014) charged Bergman with health-care/wire fraud conspiracy and making false statements; charged Santaya with health-care/wire fraud conspiracy, conspiracy to pay/receive kickbacks, and receipt of kickbacks. Both convicted after trial.
On appeal the Eleventh Circuit reviewed sufficiency-of-the-evidence (including Bergman’s withdrawal defense), jury selection and voir dire, several evidentiary rulings (including lay/expert testimony about Medicare rules), alleged prosecutorial misconduct, and sentencing challenges. Court affirmed convictions and sentences.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Withdrawal / statute of limitations (Bergman)	N/A (Gov’t) — indictment timely unless withdrawal proved	Bergman: he withdrew in Aug/Sept 2008 (resigned), so conspiracy prosecution (2014) barred by 5‑yr SOL	Jury question existed on withdrawal; insufficiency claim denied — court affirmed submission to jury and conviction
Sufficiency of evidence for conspiracy (Santaya)	N/A	Santaya: challenged sufficiency for conspiracy and kickback counts	Ample circumstantial evidence (payments, coaching, MPL, billing) supported knowing participation; conviction affirmed
Voir dire / strike entire panel (Santaya)	N/A	Santaya: juror (victim of fraud) biased; questioning by magistrate flawed and chilled panel	No manifest abuse of discretion; juror said she could be fair; panel not stricken
Limitation on cross‑examination about ATC intimate relationships	N/A	Defendants: limiting cross caused Confrontation Clause violation and prevented showing bias	No violation: sufficient testimony and cross‑examination allowed to show potential bias; ruling affirmed
Admission of Medicare‑rules testimony by Quindoza	N/A	Defendants: Quindoza offered undisclosed expert testimony (should be excluded)	No plain error: government had given notice that testimony might be expert or lay; even if error was possible, not prejudicial here
Prosecutorial misconduct (various closing/cross) (Santaya)	N/A	Santaya: prosecutor shifted burden, inflamed jury, argued facts not in evidence	Reviewed for plain error; isolated remarks cured by instructions and supported by evidence; no reversible error
Sentence reasonableness (Bergman & Santaya)	N/A	Bergman: 180 months > necessary; Santaya: enhancements (vulnerable victims & manager) improper	Sentences not procedurally or substantively unreasonable; enhancements for Santaya upheld as non‑mutually exclusive; sentences affirmed
MPL hearsay/business records admissibility (Santaya)	N/A	Santaya: MPL inadmissible hearsay	Admissible as co‑conspirator statements and/or business records; any inaccuracies go to weight not admissibility

Key Cases Cited

Smith v. United States, 568 U.S. 106 (withdrawal ends conspiracy liability if proved) (sets burdens for withdrawal defense)
Morton’s Mkt., Inc. v. Gustafson’s Dairy, 198 F.3d 823 (11th Cir.) (resignation/exit from business can constitute effective withdrawal)
United States v. Arias, 431 F.3d 1327 (11th Cir. 2005) (withdrawal instruction warranted where defendant took affirmative steps and notified payer)
United States v. Finestone, 816 F.2d 583 (11th Cir.) (withdrawal requires affirmative steps; mere cessation insufficient)
United States v. Moran, 778 F.3d 942 (11th Cir.) (elements for §1349 conspiracy and assessment of lay/expert testimony)