921 F.3d 294
1st Cir.2019Background
- Dr. Juan Jose Tull‑Abreu operated two Puerto Rico medical offices (2009–2013) and ran a scheme submitting fraudulent CMS‑1500 Medicare claim forms signed by patients but often undated, with fabricated progress notes and dates for services that did not occur.
- Secretaries participated over multi‑year periods; an audio recording captured Tull‑Abreu instructing staff how to fill out claims for services not provided.
- He also prepared postdated Percocet prescriptions (controlled substances) bearing dates when he was out of the country; four such prescriptions were admitted at trial.
- Indicted on conspiracy to commit health‑care fraud, eight counts of health‑care fraud, six counts of aggravated identity theft (based on CMS‑1500 submissions), and four counts of furnishing false information in controlled‑substance prescriptions.
- Convicted on all counts after a 14‑day jury trial; sentenced to 87 months (63 months within Guidelines + consecutive 24 months mandatory for aggravated identity theft).
- On appeal, defendant challenged aggravated identity theft sufficiency, denial of new trial (alleged coercion regarding right to testify), denial of Rule 29 on prescription counts, and substantive reasonableness of sentence; pro se raised additional sufficiency and Confrontation Clause claims.
Issues
| Issue | Tull‑Abreu's Argument | Government's Argument | Held |
|---|---|---|---|
| Sufficiency of aggravated‑identity‑theft convictions (§1028A) | Submission of CMS‑1500 forms did not constitute "use" of another's ID; convictions improperly rest on postdated prescriptions (mistaken) | Filing fraudulent CMS‑1500s that include patient names, DOBs, Medicare IDs and reassign benefits constitutes "use" — defendant acted on patients' behalf to obtain payment | Affirmed — under Berroa the filing of CMS‑1500s amounted to "use" of patients' means of identification |
| Motion for new trial based on prosecutor/district‑court admonition about right not to testify | Prosecutor and judge intimidated/coerced defendant into not testifying, violating right to present a defense | Court properly and non‑coercively informed defendant of Fifth Amendment right; defense counsel made no contemporaneous objection and defendant consulted counsel before waiving testimony | Affirmed — no coercion, no prejudice; judge's advisals were proper and defendant had counsel and recess |
| Sufficiency of evidence for furnishing false information in controlled‑substance prescriptions (Rule 29) | Prescriptions could have been signed before travel or transmitted electronically while abroad; evidence insufficient | Testimony showed prescriptions were prepared and dated to appear issued on days defendant was abroad; secretaries and patients described postdating practice; no evidence of electronic issuance | Affirmed denial of acquittal — evidence could support conviction beyond reasonable doubt |
| Substantive reasonableness of sentence | Sentence unreasonable if convictions vacated or Sixth Amendment right to present a complete defense violated | Sentencing within Guidelines and consecutive mandatory term lawful; appellate challenges to convictions fail | Affirmed — sentence substantively reasonable; challenges to convictions rejected |
Key Cases Cited
- United States v. Berroa, 856 F.3d 141 (1st Cir. 2017) (interpretation of "use" in §1028A includes purporting to act on another's behalf)
- United States v. López‑Díaz, 794 F.3d 106 (1st Cir. 2015) (background on CMS‑1500 form and Medicare billing)
- United States v. Monserrate‑Valentín, 729 F.3d 31 (1st Cir. 2013) (standard for viewing trial evidence on sufficiency review)
- United States v. Michael, 882 F.3d 624 (6th Cir. 2018) (affirming §1028A liability where false claims used patient/doctor IDs to obtain reimbursement)
- United States v. Padilla‑Galarza, 886 F.3d 1 (1st Cir. 2018) (no duty for judge to solicit waiver of right to testify)
- United States v. Rodríguez‑Vélez, 597 F.3d 32 (1st Cir. 2010) (consideration of prejudice from alleged Fifth Amendment violations)