United States v. Yosany Sosa
777 F.3d 1279
| 11th Cir. | 2015Background
- Discovery Therapy, Inc. (Discovery) was licensed as a Medicare Part C provider and submitted over $1.24 million in claims for 12 patients between May–Aug 2011 while purchasing only a tiny fraction of the billed drugs; BCBS paid about $443,000 before stopping payments.
- Leon formed and ran Discovery; Sosa invested $10,000, became a partner, was added as an authorized signatory on the clinic bank account (June 29–Sept 12, 2011), and withdrew roughly $119,000.
- Discovery paid a recruiter (Milian Martinez) about $43,000 to bring HIV/AIDS patients who were paid to appear for sham treatments (vitamins), while claims billed expensive drugs (e.g., octreotide) that were not provided.
- Sosa signed multiple checks to the recruiter (with “transport” memos), admitted in interview he knew patients were being paid and that paying them was illegal, but testified at trial denying those statements.
- A jury convicted Sosa of conspiracy to commit health care fraud, eight counts of health care fraud, conspiracy to pay kickbacks, and three substantive kickback counts (13 of 15 counts); the district court sentenced him to 102 months; Sosa appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency — conspiracy to commit health care fraud | Gov’t: circumstantial evidence shows an agreement, Sosa’s investment/signatory role, shared profits, acts in furtherance | Sosa: no proof of agreement or that he knowingly joined the conspiracy | Affirmed — reasonable jury could infer agreement, knowledge, and voluntary participation from investment, bank access, checks, presence at clinic, and shared proceeds |
| Sufficiency — substantive health care fraud (18 U.S.C. §1347) | Gov’t: Discovery submitted false claims for treatments not provided; Sosa aided/abetted by transporting patients and writing checks | Sosa: no evidence he made material misrepresentations or prepared claims | Affirmed — aiding-and-abetting proved by affirmative acts (transportation, checks) and intent inferred from circumstances |
| Sufficiency — payment of kickbacks (42 U.S.C. §1320a-7b) | Gov’t: checks to recruiter and Sosa’s admissions show payments were remuneration for referrals, not mere transport fees | Sosa: payments were for transport; he lacked knowledge that they were illegal reimbursements | Affirmed — jury could infer willful payment of kickbacks from amounts, frequency, memos, and Sosa’s admissions |
| Prosecutorial misconduct (closing) — vouching, opinion, inflammatory appeals | Sosa: prosecutor vouched for agent, expressed personal opinions, appealed to passion and duty; no contemporaneous objections | Govt: comments were fair response to defense attack and argument on credibility; independent evidence of guilt | No plain error — remarks were either proper credibility argument/fair response or harmless given the strong evidence of guilt |
| Sentencing enhancements — managerial role & sophisticated means | Sosa: court erred applying §3B1.1(b) (manager/supervisor) and §2B1.1(b)(10)(C) (sophisticated means) | Govt: Sosa supervised at least the recruiter, had decision-making/banking control, split profits; scheme used billing service, surreptitious payments, fictitious invoicing | Affirmed — clear‑error review found sufficient evidence that Sosa supervised participants and the overall scheme involved sophisticated means |
Key Cases Cited
- United States v. Wright, 392 F.3d 1269 (11th Cir. 2004) (standard for sufficiency review in criminal cases)
- United States v. Utter, 97 F.3d 509 (11th Cir. 1996) (reasonable‑jury standard for affirming convictions)
- United States v. Toler, 144 F.3d 1423 (11th Cir. 1998) (conspiracy may be proved by circumstantial evidence)
- United States v. Vernon, 723 F.3d 1234 (11th Cir. 2013) (elements of conspiracy and willfulness under anti‑kickback law)
- United States v. Miranda, 425 F.3d 953 (11th Cir. 2005) (knowledge of essential nature of conspiracy)
- United States v. Medina, 485 F.3d 1291 (11th Cir. 2007) (§1347 — claims false if treatment not delivered)
- Rosemond v. United States, 572 U.S. 65 (2014) (aiding and abetting requires affirmative act with intent to facilitate the offense)
- United States v. Ghertler, 605 F.3d 1256 (11th Cir. 2010) (sophisticated‑means enhancement analysis; totality of scheme)
- United States v. Clarke, 562 F.3d 1158 (11th Cir. 2009) (clear‑error standard for guideline fact‑finding)
- United States v. Bernal‑Benitez, 594 F.3d 1303 (11th Cir. 2010) (limits on prosecutor vouching and permissible credibility argument)
- United States v. Lopez, 590 F.3d 1238 (11th Cir. 2009) (fair‑response doctrine in closing argument)
- Young v. United States, 470 U.S. 1 (1985) (prohibition on exhorting jurors to do their job can be error depending on context)