United States v. David Ming Pon ( 2020 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-11455
________________________
D.C. Docket No. 3:14-cr-00075-BJD-PDB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID MING PON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 29, 2020)
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Before ED CARNES, MARTIN, and ROGERS,* Circuit Judges.
CARNES, Circuit Judge:
A jury found David Pon guilty of twenty counts of health care fraud, in
violation of 18 U.S.C. § 1347, and the district court entered a judgment of
conviction on the verdict. After finding that Pon’s fraud scheme resulted in a loss
of nearly $7 million, the court sentenced him to 121 months in prison. He appeals
his convictions and sentence.
I. FACTS
Pon was an ophthalmologist.1 As a sole practitioner, he established his
practice with a main office in Leesburg, Florida, and a satellite office in Orlando.
Many of his patients were elderly. He diagnosed hundreds of them with, and
lasered their eyes to purportedly treat, a debilitating and uncurable eye disease
known as wet age-related macular degeneration (WMD).
Here is how his scheme worked. Pon would run diagnostic tests on a
patient. After diagnosing the patient with WMD, he would move on to the
“treatment” phase, which involved lasering one or both of the patient’s eyes. Pon
would laser his patients’ eyes with the laser set on the lowest power setting and in
*
Honorable John M. Rogers, United States Circuit Judge for the Sixth Circuit, sitting by
designation.
1
Pon was once a licensed doctor but we do not refer to him as one because Florida’s
Board of Medicine revoked his license in August 2016 as a result of the jury’s guilty verdict.
2
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micropulse mode.2 He would then submit a claim to Medicare for the diagnostic
tests and the laser session. As a result, he would receive from Medicare around
$1,200 total for each set of diagnostic tests and lasering.
Pon would bill his micropulse laser sessions under Medicare code 67220, the
code for “laser photocoagulation for [WMD], for a choroidal neovascular
membrane,” or in other words, “burning an area of abnormal leaking blood vessels
with a laser.” Laser photocoagulation is a treatment for WMD that creates a scar
in the eye by “cooking” shut the abnormal blood vessels (feeder vessels) that are
characteristic of WMD. But the extremely low power settings that Pon set his laser
to before each session were not high enough to achieve coagulation, so his
purported treatments left no scars and did not fit under code 67220. One expert
testified that Pon’s settings were “way too low” for coagulation purposes, and that
his method was tantamount to “jump-start[ing] [a car] off a flashlight. It’s so little
energy.”
And Pon agreed. He described his purported treatment technique — which
he referred to as “the micropulse laser technique for treatment of feeder vessels”
— as treating WMD while leaving “no or minimal scarring.” According to Pon,
2
The laser that Pon used has several different user-selectable modes of operation. When
micropulse mode is selected, the laser is on for only a predetermined percentage of the exposure
time. For example, a 15 percent duty cycle means that the laser is on for only 15 percent of the
exposure time and is off for the remaining 85 percent of the exposure time. Pon would set his
laser to micropulse mode with a 15 percent duty cycle before lasering his patients’ eyes.
3
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“the whole concept” behind his purported treatment was to use the laser to heat up
the WMD feeder vessels “without causing a burn.” His intention was “to get the
effect from the laser without causing a burn, coagulation.” In fact, according to
Pon, he would “virtually never get a scar or a burn” if he did his “technique
properly.” But Pon continued to bill Medicare for his laser “treatments” under
code 67220 for laser photocoagulation — or laser scarring.
And Pon became a top Medicare biller of WMD laser scarring treatment,
billing Medicare for his micropulse laser (which is intended not to create a scar),
under code 67220 for laser photocoagulation (which is intended to create a scar).
The percentage of his patients whom he diagnosed with WMD and billed Medicare
under code 67220 for laser photocoagulation treatment substantially increased over
the years. Around 2006, drug injections had supplanted laser photocoagulation as
the typically favored WMD treatment method, so other ophthalmologists’ laser
treatments and billing amounts for laser photocoagulation went down. Pon’s, by
contrast, went up dramatically.
Pon’s practice produced puzzlement and sowed suspicion. Other doctors
who also treated Pon’s patients were puzzled about his WMD diagnoses and laser
“treatments.” In the fall of 2008, for example, Virginia-based doctor Robert Vogel
was treating his longtime patient, D.M., and noticed that the 83-year-old had
several left-eye maladies, but not WMD. Because D.M. would be in Florida for
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the winter months, Dr. Vogel told him to check in with an eye doctor after he got
there. D.M. chose Pon, who diagnosed him with WMD and micropulse lasered his
eyes. When D.M. returned to Virginia a few months later, Dr. Vogel was
“shocked” when D.M. told him that Pon had lasered both of his eyes. Dr. Vogel
examined both eyes, did not see WMD in either of them, and could not understand
why either one would have been lasered. Nor did Dr. Vogel see a scar in either eye
that would indicate Pon had used a laser at settings that would have treated WMD
if D.M. had actually suffered from it. This “unusual” situation prompted Dr. Vogel
to tell D.M. to find a doctor other than Pon the next time he went to Florida.
Other experts observed similar anomalies involving Pon’s practice and
patients. Optometrist Sam Williams referred some of his own patients to Pon, who
diagnosed every one of them with WMD. Dr. Williams, who has more than forty-
five years of experience as an optometrist, became concerned when some of those
patients told him that Pon had lasered their eyes on multiple occasions. As a result,
Dr. Williams sent them to other ophthalmologists for second opinions about the
medical necessity of the suspicious laser treatments. “[O]n every occasion” the
ophthalmologists found that there was no sign Pon had lasered those patients’ eyes
in a way that would actually treat WMD or that the patients needed any laser
treatment for any eye disease. Dr. Williams stopped referring his patients to Pon.
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Ophthalmologist and retinal specialist Elias Mavrofrides discovered much
the same thing. He examined at least thirty of Pon’s patients and determined that,
although many reported having undergone repeated laser treatment by Pon for
WMD, their eyes showed no signs of the disease. Many of Pon’s patients told Dr.
Mavrofrides that they were not sure why Pon was lasering their eyes, but “were
told that they would lose vision without treatment.” Dr. Mavrofrides thought that
Pon’s reported use of lasers on his patients “over and over and over [was]
extremely atypical or unusual.” In 2008 an optometrist referred to Dr. Mavrofrides
a patient Pon had diagnosed with WMD and lasered eight months in a row. After
examining the patient, Dr. Mavrofrides wrote a letter to the optometrist stating that
he “honestly d[id] not see any necessity for the [laser] treatments [the patient] has
had.”
Sometime before the fall of 2011 the government discovered Pon’s scheme.
It happened when Special Agent Christian Jurs conducted a data analysis to
determine whether any doctors were billing Medicare under codes associated with
what he was told were outdated WMD treatment methods, including laser
photocoagulation.3 That analysis revealed that Pon was a “significant outlier” with
3
Special Agent Jurs is a Medicare fraud investigator who became an agent with the
United States Department of Health and Human Services after having worked as a naval
intelligence officer and as an agent for the Naval Criminal Investigative Service. He has worked
with Medicare data on numerous occasions since he became a HHS special agent nearly two
decades ago.
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respect to the Medicare claims he submitted under 67220, the billing code for laser
photocoagulation. In 2010, for example, Pon had submitted claims under that code
for approximately 93 percent of his Medicare patients, while his ophthalmologist
peers had submitted claims under that code for an average of only seven-
hundredths of one percent of their patients. That is a disparity of about 132-to-1.
The disparity prompted Agent Jurs to run Pon’s name through a complaint
database, which showed that an unidentified person had lodged a complaint about
Pon’s WMD treatment. And that, in turn, prompted him to interview
approximately thirty doctors who had seen patients whom Pon had diagnosed with
WMD and micropulse lasered. After Agent Jurs conducted some of those
interviews, the government obtained a warrant to search Pon’s offices.
In September 2011 federal law enforcement officers executed the search
warrant and seized Pon’s patient files along with thousands of photographs and
videos of his patients’ eyes. The next month the Centers for Medicare and
Medicaid Services sent Pon a letter notifying him that it had suspended his
Medicare payments based on what it identified as “credible allegations of [health
care] fraud.” The suspension letter stated that between 2004 and 2011 Pon had
submitted Medicare claims under codes associated with laser photocoagulation
treatment and a type of WMD diagnostic test “that were disproportionate to claims
submitted by other ophthalmologists for these codes,” and “that many of [Pon’s]
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patients did not have the underlying medical conditions that would support the
procedures represented by these codes.”
Sometime after Pon’s Medicare payments were suspended, Agent Jurs
retained an expert, Dr. Thomas Friberg, to review the photos and videos of the eyes
of about 500 patients whom Pon had diagnosed with WMD. Dr. Friberg was asked
to review whether Pon’s patients did, in fact, have WMD. Dr. Friberg had
obtained his medical degree from the University of Minnesota, completed an
ophthalmology residency at Stanford University Medical Center, and held
fellowships at the Harvard Medical School and the Duke University Eye Center.
He is a professor of ophthalmology and a professor of bioengineering at the
University of Pittsburgh, has authored or co-authored more than 175 articles in
peer-reviewed publications, and has, over the course of his four-decade career,
received more than $7 million in grants to study age-related eye diseases, including
WMD.
Dr. Friberg’s review of the more than 10,000 images of the eyes of patients
whom Pon had diagnosed with WMD and “treated” took him about a year to
complete. He found what he saw “shocking.” He realized that he “was looking at
hundreds of images of patients that had nothing wrong with their eye[s].”
According to Dr. Friberg, maybe “five to ten” –– only one or two percent –– of the
500 patients whom Pon had diagnosed with WMD actually had any form of
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macular degeneration. Dr. Friberg concluded that Pon had shown a “reckless
disregard for his patients.”
II. PROCEDURAL HISTORY
In April 2014 a federal grand jury returned a twenty-count indictment
against Pon. Each count charged him with health care fraud, in violation of 18
U.S.C. § 1347.4 The indictment alleged that he committed health care fraud by
falsely diagnosing eleven of his patients with WMD and using those false
diagnoses as a basis for submitting a total of twenty Medicare reimbursement
claims (a different one described in each count) for performing both additional
WMD testing that he knew was medically unnecessary and laser sessions that
could not actually treat the disease even if the patients had been suffering from it,
which they had not.5 Pon faced a statutory maximum of ten years per count. 18
U.S.C. § 1347(a). He went to trial.
4
Section 1347 makes it a crime to “‘knowingly and willfully’ engage in a scheme (1) ‘to
defraud any health care benefit program’ or (2) to use false pretenses to obtain money from ‘any
health care benefit program,’ ‘in connection with the delivery of or payment for health care
benefits, items, or services.’” United States v. Bergman, 852 F.3d 1046, 1065 (11th Cir. 2017)
(quoting 18 U.S.C. § 1347).
5
To protect their privacy, the indictment does not refer to the patients by name, and we
will follow that lead by referring to them as the eleven patients, or individually as Patient One,
Patient Two, and so on.
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A. The Daubert Hearing
Before trial Pon notified the government that he intended to offer the expert
testimony of Giorgio Dorin, a former director of development at the company that
manufactured the laser Pon used. Dorin’s proposed testimony boiled down to two
main points. First, he would testify about the general concepts of lasers and their
application to eye diseases. Second, he would testify about a “newer method” of
treating WMD that Pon said he had used on his patients: “subthreshold micropulse
laser photostimulation.” Dorin would opine that the newer method could be used
to close feeder vessels in a way that, unlike laser photocoagulation, would not
leave a scar. Dorin chose to use the term “photostimulation” because the term
“photocoagulation” suggests that the treatment necessarily produces a visible scar.
The object of Dorin’s testimony would be to show that the low-power laser
sessions Pon had subjected his patients to could actually treat WMD and could do
so without leaving a telltale scar.
The government moved to exclude Dorin’s proposed testimony under
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), after its
medical and laser experts advised it that “Dorin’s assertion regarding subthreshold
micropulsed laser ‘photostimulation’ is not a medically accepted standard of care
for the treatment of [WMD].” The government stated in its motion “that the term
now used by the defense, laser ‘photostimulation[,]’ is apparently an attempt to
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somehow legitimatize the fact that there is no scarification in the retinas of [Pon’s]
victims.”
The district court held a three-day Daubert hearing. Dorin was the only
witness for the defense. The government put on two witnesses — Dr. Friberg and
David Buzawa, the co-founder of the company that manufactured Pon’s laser. All
three of the witnesses testified about whether subthreshold micropulse laser
photostimulation (which left no scar) could treat WMD.
At the hearing, Dorin testified that the use of subthreshold micropulse laser
photostimulation to treat WMD was “[t]heoretical[].” He conceded that he was
unaware of any journal article stating that it is possible to use subthreshold
micropulse photostimulation with Pon’s laser to treat WMD. But he talked about
previous research that he said at least supported the idea. He described a study
showing that subthreshold micropulse laser treatment was effective for diabetic
macular edema, but that is a different medical condition than WMD. Defense
counsel then asked Dorin whether he could, as a result of that one study involving
diabetic macular edema, infer that subthreshold micropulse laser treatment was
effective for WMD. Dorin responded: “I don’t see why . . . not, but we don’t have
so many paper[s] published yet. I have not seen the clinical data.”
Dorin also discussed a paper he authored that a peer-reviewed
ophthalmology journal published in 2004, when Dr. Friberg was the journal’s
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editor-in-chief. In the paper Dorin stated that “laser pulses” could treat WMD by
closing feeder vessels and could do so without causing “retinal burns.” Dorin’s
paper concluded, however, that “[i]t does take a ‘leap of faith’ to accept that a
retina with serious disease can be treated with . . . sub-visible-threshold protocols
and without the use of additional pharmacological agents.”
At the Daubert hearing, the government called Dr. Friberg. Dr. Friberg
testified that Dorin’s proposed theory about subthreshold micropulse laser
photostimulation had not been tested and had “absolutely not” gained general
acceptance in the scientific community. He also testified that Dorin’s statement
that subthreshold micropulse laser photostimulation can produce the same
beneficial effect as laser photocoagulation was “crazy.” When asked whether there
was even one study showing that the type of laser Pon used has closed a feeder
vessel without leaving a scar while in micropulse mode, Dr. Friberg responded:
“No.” He believed that there was “absolutely no acceptance in the
ophthalmological community for Dorin’s conjecture.”
The government’s other witness at the Daubert hearing, David Buzawa, held
nine patents related to laser technology and had nearly forty years of experience
with lasers. He was also the co-founder of the company that manufactured Pon’s
laser. Buzawa testified that the power settings that Pon said he set his laser to
before each laser session were “unusually low for micropulse.” Buzawa also stated
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that he had “never heard of or read a publication of successful feeder vessel closure
using micropulse [mode] at [Pon’s] settings or any settings.” He concluded that
feeder vessel treatment always creates a visible scar, according to “every paper and
presentation that [he had] heard or read.”
At the end of the Daubert hearing, defense counsel admitted that his
proffered witness “Dorin [was] drawing conclusions that have not yet been
scientifically tested.” The district court ruled that Dorin could testify about the
general concepts of lasers and their applications. But he could not offer his
opinion that subthreshold micropulse laser photostimulation could treat WMD by
closing feeder vessels. The court found that Dorin’s proposed opinion was
“conjecture” and ruled that it did not satisfy either Federal Rule of Evidence 702 or
Daubert. Then came the jury trial.
B. The Trial
The jury trial began in September of 2015. The government presented
nineteen witnesses and introduced more than 700 exhibits during its seven-day
case-in-chief.
Dr. Friberg was one of the government’s first witnesses. He began with an
overview of the science behind WMD and how it is diagnosed and treated. He
explained, for example, that laser photocoagulation, which is billed under
Medicare code 67220, is a WMD treatment that can be used to “cook” feeder
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vessels. He testified that laser photocoagulation did not “have much uptake” in the
medical community because the laser leaves behind a scar that can itself impair
vision. Dr. Friberg also testified that he was “very certain” that if a doctor uses
“enough [laser] energy . . . to cook the feeder vessel, you’re going to leave a
[scar].” And he stated that he was “[a] hundred percent” certain that Pon’s
micropulse laser technique could not close a feeder vessel.
Dr. Friberg also explained the science behind drug injections, another WMD
treatment that was introduced after laser photocoagulation. He testified that “there
is no [WMD] treatment that we know of that is better than these [drug injections].”
Dr. Friberg then described how Agent Jurs had retained him to review the
photos and videos of the eyes of the approximately 500 patients whom Pon had
diagnosed with WMD and “treated” with his micropulse laser technique. Dr.
Friberg described how his review of those photos and videos revealed that the vast
majority of those patients did not actually have WMD. For that reason, what he
saw in his review “got [him] kind of mad.” According to Dr. Friberg, Pon was
unnecessarily lasering the eyes of patients for a disease they did not have.
Dr. Friberg discussed in front of the jury hundreds of images of the eyes of
the eleven patients identified in the indictment — patients Pon had diagnosed with
WMD and for whom Pon had billed Medicare under code 67220 for laser
photocoagulation treatment for that disease. Dr. Friberg testified that based on his
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review of the images he did not see any indication that any of those eleven patients
had WMD or any evidence of the scarring that necessarily results from laser
photocoagulation treatment. See infra pp. 41–56.
The government also presented the testimony of other doctors who had
personally examined the eleven patients. With each of those doctors the
government went patient by patient, eliciting testimony about each patient; the
doctors explained to the jury the medical records they had created to document
their examinations of the patients. See id. None of those doctors concluded that
any of the eleven patients had WMD when Pon diagnosed them with it. Some of
those patients did not even have dry age-related macular degeneration, which
typically precedes WMD. And several doctors echoed Dr. Friberg’s conclusion;
they testified that treating WMD by using laser photocoagulation always leaves a
scar indicating the use of that treatment method — a scar that the doctors testified
they did not see in the eyes of the eleven patients listed in the indictment, even
though Pon had billed Medicare under code 67220 for the laser photocoagulation
treatment of each patient.
One doctor read from a medical record of his own examination of one of the
eleven patients. Pon had billed Medicare more than ten times under code 67220
for the laser photocoagulation of that patient. In his own medical record, the
doctor stated that both of the patient’s retinas were “completely normal.” He
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testified that he had seen many of Pon’s patients for a second opinion, and all of
them “had a history of multiple [billed laser photocoagulation] procedures without
any visible indication for such procedures or any clinical evidence that such
procedures had been performed.”
The jury also heard from some of the eleven patients themselves. One of
them testified that only after a second doctor confirmed that she did not actually
have WMD was she relieved of the shock and fear she felt as a result of her
diagnosis. Another testified that Pon never gave her the option of drug injections
instead of laser treatments, and she “felt terrible” after another doctor told her that
she did not have WMD. Despite the fact that Pon had diagnosed both of those
patients with WMD years before the trial, and they had never received any
medically recognized treatment for it, each of them testified that they still had the
requisite vision to (and did) drive a car.
After the government rested, Pon himself took the stand. He testified that he
ran so many diagnostic tests (and billed Medicare for them) because he wanted to
be “as comfortable as possible not to miss a diagnosis.” He claimed that the reason
the patients did not have a scar in their eyes showing that they had undergone the
laser photocoagulation treatment he had billed Medicare for was his use of what he
termed his “miraculous treatment.” As had Dorin at the Daubert hearing, Pon
testified that his micropulse laser technique could not only treat WMD but could
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do so without leaving a telltale scar. His technique, Pon explained, was to set his
laser to the lowest power settings before each session and then adjust those settings
during the session “until [he] s[aw] the reaction that [he] want[ed] to get.” He said
that he had attended a presentation “in the early 2000s sometime” that discussed
this purported treatment, which he described as “the most fantastic news [he had]
ever heard,” and “a major breakthrough.” He did not, however, have any memory
of when or where the presentation took place. None.
After hearing the presentation, Pon was “real enthusiastic” that he could use
the technique described “to help a lot more patients.” Pon said that he believed the
technology used to perform the technique described in the presentation was “the
greatest thing since sliced bread,” so he purchased the necessary equipment. But
he later testified that “it all happened about the same time,” so he couldn’t “recall
exactly” whether he bought the new equipment before or after the presentation he
claimed had inspired him.
Pon said that once he had the equipment, he began to practice the technique
he had heard about in the presentation. He first attempted the technique “on the
patients that [we]re very advanced, so there’s really not very much downside risk
there.” Eventually he “got the procedure to evolve” so that the risk was “almost
zero.” He did not say whether he had billed Medicare under code 67220 for laser
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photocoagulation on these early, experimental patients as he had billed Medicare
for laser photocoagulation on the patients listed in the indictment.
Pon testified that an important part of his purported treatment was his ability
to identify and diagnose WMD in its very early stages. He claimed that by using
the new technology he could “visualize, directly visualize, these blood vessels”
that caused WMD. But, even with the new technology, “finding the feeder vessel
. . . is extremely difficult, even for someone” with a lot of experience diagnosing
WMD. Pon testified that learning how to accurately interpret the diagnostic
images and identify the feeder vessel locations “takes a lot of learning,” and “takes
years, literally years, to learn how to do.”
Pon admitted he did not “know of anybody specifically” who used the same
micropulse laser technique to treat WMD. He said that one reason he might be the
only one doing so is that the technique has “a steep learning curve.” But he was
“too busy” — despite taking at least two months of vacation each year — and
didn’t “feel obligated” to publish anything describing his technique or the
treatment results he was achieving.
After Pon’s testimony, the defense called thirteen of his patients and the
spouse of one deceased patient. Only one of those patients was among the eleven
listed in the twenty counts of the indictment. They generally testified that they
thought Pon was generous and trustworthy and that their vision had improved after
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seeing him. They were not, of course, qualified to testify whether they had ever
actually had WMD.
After the government presented some rebuttal testimony, Pon presented
some surrebuttal testimony, and the case eventually went to the jury, which found
him guilty on all twenty counts.
C. The Sentencing
At Pon’s sentence hearing, the district court rejected the probation office’s
finding and the government’s argument that the amount of loss attributable to
Pon’s fraud scheme was more than $11 million. Instead, the court found that the
loss amount was approximately $7 million, which resulted in an 18-level
enhancement to the base offense level. The court’s application of that and other
enhancements yielded an advisory guidelines range of 121 months to 151 months
in prison. The court sentenced Pon to 121 months in prison on each count, to run
concurrently.
III. THE CONVICTION ISSUES
Pon raises two contentions about his convictions, neither of which questions
the sufficiency of the evidence to convict him. First, he contends that under
Daubert and Federal Rule of Evidence 702, the district court should have allowed
his expert to testify about the use of subthreshold micropulse photostimulation as a
treatment for WMD. Second, Pon contends that the district court should not have
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allowed the government to present rebuttal evidence showing that he billed
Medicare for performing services on patient J.L.’s blind left eye. In the alternative,
he argues that even if that rebuttal evidence was properly admitted, the court
should have allowed him to present all of his surrebuttal evidence.
A. The Daubert Issue
It is not easy to persuade a court of appeals to reverse a district court’s
judgment on Daubert grounds. United States v. Brown, 415 F.3d 1257, 1264 (11th
Cir. 2005). Doing so is tough toil because the “theme that shapes appellate review
in this area is the limited nature” of that review. Id. We review evidentiary
decisions under the abuse of discretion standard. Id. at 1264–65 (citing Gen. Elec.
Co. v. Joiner, 522 U.S. 136, 141 (1997)). And under that standard district courts
have a “significant” range of choice, which is to say that we defer to their
evidentiary “decisions to a considerable extent.” Id. at 1265; accord McCorvey v.
Baxter Healthcare Corp., 298 F.3d 1253, 1257 (11th Cir. 2002) (“[O]ur review of
evidentiary rulings by trial courts . . . is very limited.”) (quotation marks omitted).
The deference we show trial courts on evidentiary rulings is especially
pronounced in the Daubert context, where the abuse of discretion standard places a
“heavy thumb” — “really a thumb and a finger or two” — “on the district court’s
side of the scale.” Brown, 415 F.3d at 1268. That’s done for a number of reasons.
The district court occupies the best position to rule on Daubert issues given its
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familiarity “with the procedural and factual details” of the trial, which it presides
over and is immersed in. Id. at 1266. The rules that control the admission of
expert testimony “must be applied in case-specific evidentiary circumstances that
often defy generalization.” Id. And deference maintains the importance of the trial
and discourages appeals of rulings about expert witness testimony. See id. As a
result, “the task of evaluating the reliability of expert testimony is uniquely
entrusted to the district court,” and we must grant “the district court considerable
leeway in the execution of its duty.” Rink v. Cheminova, Inc., 400 F.3d 1286,
1291 (11th Cir. 2005) (citations and quotation marks omitted). We do so mindful,
of course, that granting that leeway “is not the same thing as abdicating appellate
responsibility.” Brown, 415 F.3d at 1266.
After holding a three-day Daubert hearing, the district court found that
Dorin’s theory that subthreshold micropulse photostimulation could treat WMD by
closing feeder vessels was unreliable. As a result, it allowed Dorin to testify about
only the general concepts of lasers and their application to eye diseases. That
ruling was not an abuse of discretion.
Federal Rule of Evidence 702 “controls the admission of expert testimony.”
United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en banc). Under
that rule expert witnesses may testify if, among other things, their “testimony is the
product of reliable principles and methods.” Fed. R. Evid. 702(c). Determining
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whether expert testimony is the product of “reliable principles and methods” is the
province of the Daubert test. See City of Tuscaloosa v. Harcros Chems., Inc., 158
F.3d 548, 562 (11th Cir. 1998) (stating that courts must determine whether “the
methodology by which the expert reaches his conclusions is sufficiently reliable as
determined by the sort of inquiry mandated in Daubert”).
Daubert instructs that a reliability determination involves four main inquiries
about the expert’s theory or technique: “(1) whether it can be (and has been) tested;
(2) whether it has been subjected to peer review and publication; (3) what its
known or potential rate of error is, and whether standards controlling its operation
exist; and (4) whether it is generally accepted in the field.” Brown, 415 F.3d at1267 (citing Daubert, 509 U.S. at 593–94).
In Joiner the Supreme Court added another inquiry to gauge reliability:
whether there is “an analytical gap between the data and the opinion proffered.”
522 U.S. at 146; accord McDowell v. Brown, 392 F.3d 1283, 1300 (11th Cir.
2004) (“[A]n expert opinion is inadmissible when the only connection between the
conclusion and the existing data is the expert’s own assertions . . . .”) (citing
Joiner, 522 U.S. at 146). If the analytical distance between the data and the
opinion proffered “is simply too great,” a court may conclude that the opinion is
unreliable. Joiner, 522 U.S. at 146.
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Here, three of the four Daubert factors weigh against the reliability of
Dorin’s theory. First, Dorin testified that although his theory could be tested, it has
not been. Dr. Friberg agreed. So did defense counsel, who conceded that “Dorin
[was] drawing conclusions that have not yet been scientifically tested.” And like
Pon, Dorin acknowledged that he did not “know of anybody doing it.” Second,
Pon failed to provide evidence about the theory’s known or potential rate of error
and whether any standards exist to control for error. Dorin himself acknowledged
that he “ha[d] not seen . . . clinical data” about it. And third, the record shows that
Dorin’s theory is not generally accepted in the ophthalmology field. Dr. Friberg
testified that the theory has “[a]bsolutely not” gained that acceptance. Buzawa’s
testimony that “[f]eeder vessel treatment has always been superthreshold,” instead
of subthreshold, according to “every paper and presentation that [he had] heard or
read” confirmed the point.
That leaves only one factor that weighs — ever so slightly — in favor of
reliability: Dorin’s peer-reviewed paper mentioning the theory. But just as
“[p]ublication . . . is not a sine qua non of admissibility,” Daubert, 509 U.S. at 593,
publication alone is not enough to conclude that a district court abused its
discretion in not admitting expert testimony, see Allison v. McGhan Med. Corp.,
184 F.3d 1300, 1313 (11th Cir. 1999).
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A further indication that Dorin’s theory was unreliable is the analytical gap
between it and the research that Dorin said supports it. See Joiner, 522 U.S. at 146.
At the hearing, Dorin suggested that because a study showed subthreshold
micropulse laser treatment can treat diabetic macular edema, his theory that it
could treat WMD is sound. That is a “leap[] from an accepted scientific premise to
an unsupported one.” Allison, 184 F.3d at 1314. Diabetic macular edema is a
different condition than WMD. Between the premise that subthreshold micropulse
laser treatment can treat the first condition and Dorin’s theory that it can treat the
second one, there is an analytical gap.
Instead of properly bridging that gap, Dorin tried to ipse dixit over it; but a
bald assertion cannot carry the Daubert burden. See Williams v. Mosaic Fertilizer,
LLC, 889 F.3d 1239, 1249 (11th Cir. 2018) (“[N]othing in either Daubert or the
Federal Rules of Evidence requires a district court to admit opinion evidence that is
connected to existing data only by the ipse dixit of the expert.”) (quoting Joiner,
522 U.S. at 146). The district court concluded that “there [was] simply too great
an analytical gap between the data and the opinion proffered.” Joiner, 522 U.S. at
146. That was not an abuse of discretion but a proper exercise of the “considerable
leeway” the court had. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999).6
6
Pon also argues that the district court violated his Sixth Amendment right to put on a
meaningful defense because it “mechanistically” applied the Daubert factors. We disagree. The
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B. The Rebuttal Issue
Pon also contends that his convictions must be reversed because the district
court erred in two of the evidentiary rulings it made during his fourteen-day trial:
(1) allowing the government to present rebuttal evidence showing that he billed
Medicare for performing certain medical services on J.L., who was one of his
patients, and (2) partially limiting the scope of his surrebuttal evidence about J.L.
We review both of those evidentiary rulings only for an abuse of discretion. See
Frazier, 387 F.3d at 1270; United States v. Haimowitz, 706 F.2d 1549, 1560 (11th
Cir. 1983). And an abuse of discretion does “not warrant reversal where the
resulting error was harmless.” United States v. Barton, 909 F.3d 1323, 1330 (11th
Cir. 2018).
One of the fourteen defense witnesses (not counting Pon) was J.L., who took
the stand on the eleventh day of the trial. Like some of Pon’s other patients who
appeared as defense witnesses, J.L. testified about his history as Pon’s patient and
described him as generous and trustworthy. He also told the jury that in 1994 both
of his retinas had detached because of a complication from diabetes and Pon had
performed surgery that year on each eye — the left eye in July and the right eye in
August. Pon knew J.L. was unemployed and uninsured at the time and performed
district court gave ample reasons why three of those factors weighed against the reliability of
Dorin’s theory and outweighed the fourth factor.
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the surgeries without any guarantee he would be paid. The 1994 surgery on J.L.’s
right eye was successful, but the one on his left eye was not; he lost all of his sight
in it soon after that surgery.
Defense counsel also put into evidence excerpts of Pon’s treatment records
for J.L. Those records included logs in which Pon documented procedures he had
performed on J.L.’s right eye between 2004 and 2015. They also indicated that
Pon had diagnosed J.L. with WMD in 2009 and had micropulse lasered J.L’s right
eye several times. The excerpts from Pon’s records of treating J.L. did not list any
tests or procedures that Pon had performed on J.L.’s blind left eye.
During cross-examination, the prosecutor asked J.L. when Pon had last
performed any procedure on his left eye, the one in which he had been completely
blind for more than twenty years. J.L. said it had “been a couple years”; he said
Pon did a “regular eye check on it,” which involved an exam with “the eye charts,”
an “ultrasound,” and “pictures,” but that Pon had done no “major procedures” on
his left eye. The prosecutor then asked J.L. whether Pon had ever done “any kind
of an injection” or any “dye tests” in J.L.’s left eye. J.L. responded: “No. I’ve
never had anything done in my left eye.” On redirect, J.L. reiterated that Pon had
not done “any tests on [his] left eye,” including fluorescein angiograms, but Pon
had examined that eye “a couple times” by looking at it “through a lens” to see if
he could improve the vision in it. J.L.’s firm testimony that Pon had never done
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any fluorescein angiograms on his left eye was significant because it contradicted
the bills Pon submitted to Medicare on at least a half dozen occasions — bills for
performing fluorescein angiogram tests on J.L.’s totally blind left eye. See infra
pp. 30–32.
In light of J.L.’s testimony and the medical records Pon’s attorney had put
into evidence, the government sought to introduce through one of its agents
rebuttal evidence in the form of a spreadsheet and related testimony. Agent Jurs
had created the spreadsheet after J.L.’s testimony by looking through Pon’s
Medicare claims history for billings related to J.L.’s left eye after 1994, when he
had lost all of his sight in it. The billing records for the decade between 1994 and
2004 were not available,7 but the records from 2004 until the trial in 2015 were.
The spreadsheet showing the billings and Agent Jurs’ testimony established
that Pon had billed Medicare for performing services on J.L.’s left eye –– in which
he had been blind since 1994 –– 52 times between 2004 and 2015. Those 52
billings totaled approximately $19,500 and, aside from three billings for a January
2009 surgery on the blind eye (which Pon would later testify were merely the
7
Agent Jurs testified that he wasn’t certain why he had not been able to access Pon’s
Medicare billing records before 2004. He thought the most likely explanation was that the
Medicare system did not give records that “go back, you know, to when the earth cooled. They
usually go [back] a five- or ten-year time frame.”
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result of clerical errors), all of the billings were for ophthalmic ultrasounds,
fluorescein angiograms, and fundus photography, which are diagnostic tests.
Pon billed Medicare all of those times and for all of that money claiming
that he had done procedures on J.L.’s blind left eye, including fluorescein
angiograms, even though his own witness, J.L., testified that Pon never performed
a fluorescein angiogram or any test involving the injection of dye on his left eye.
All Pon had ever done on that eye, J.L. insisted, was perform a “regular eye check
on it,” and examine it by looking through a lens “a couple of times.” His
testimony evidenced, at the very least, that Pon’s six billings for fluorescein
angiograms, which involve the injection of dye, on J.L.’s left eye were fraudulent.
Defense counsel moved to exclude the spreadsheet and Agent Jurs’
testimony about it, arguing that the evidence was not proper rebuttal. The district
court allowed the government to present the rebuttal evidence because the court
recalled (incorrectly, it turned out) that the defense, during J.L.’s testimony, had
been the first to bring up the fact that Pon had treated J.L.’s blind left eye. Pon
asserts that ruling was reversible error. It wasn’t.
Rule 611(a) vests district courts with authority to “exercise reasonable
control over the mode and order of examining witnesses and presenting evidence.”
Fed. R. Evid. 611(a). District courts have “broad discretion” in exercising that
authority and will not be reversed except for abuse of that discretion. United States
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v. Hill, 643 F.3d 807, 845 (11th Cir. 2011); accord Haimowitz, 706 F.2d at 1560.
Pon presented J.L.’s testimony as an example of how he had treated a patient out of
the goodness of his heart and not for a profit motive. In light of that, the district
court did not abuse its discretion in admitting billings Pon had generated for
services he claimed to have rendered on that patient’s blind eye.
C. The Surrebuttal Issue
1. The Procedural Facts
Pon alternatively asked the district court, if it was not going to keep out the
government’s rebuttal evidence, to let Pon retake the stand and present as
surrebuttal evidence his explanation for billing Medicare for services on J.L.’s
blind left eye. The court reserved a ruling on that alternative request until after the
government presented its rebuttal evidence.
After the government did so, Pon renewed his request to present surrebuttal
testimony, arguing that he had not had an “opportunity to respond” to the
“impression” the government created that Pon improperly conducted and billed for
treatments on a blind eye. The district court characterized the government’s
rebuttal evidence as “very damning” and stated that it had “this idea of fairness
tug[ging]” at it, but its “inclination” was to deny the defense’s request that Pon be
allowed to testify again. The court also asked “the further question of whether, in
deference to . . . Dr. Pon’s Sixth Amendment right . . . he should be given an
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opportunity to offer an explanation” about the billed procedures for J.L.’s blind left
eye. The court gave the attorneys the weekend to research the surrebuttal issue and
indicated it would do the same.
On Monday, the court heard argument from both sides about whether it had
erred by allowing the government’s rebuttal testimony and, if so, how any error
should be remedied. Neither side mentioned the Sixth Amendment or any other
constitutional right that Pon might have to present surrebuttal testimony. Before
ruling, the court allowed Pon to proffer the testimony he wished to present in
response to the government’s rebuttal evidence. He took the stand in a testimonial
proffer, stating that he had performed services on J.L.’s blind left eye to determine
whether it had a problem that could lead to complications that might result in a
complete loss of vision in the right eye.
Pon testified that ophthalmic ultrasounds, which made up 41 of the 52
billings in the spreadsheet, are used to look for abnormalities in the eye. And in
J.L.’s case, “it’s very important to examine his left eye and continue to examine his
left eye” to make sure he was not developing sympathetic ophthalmia — a
condition that can lead to blindness in both eyes. For that reason, Pon said that it
was necessary to examine J.L.’s left eye “periodically.” But Pon didn’t explain
what “periodically” meant, and he didn’t explain why he needed to examine J.L.’s
left eye as frequently as he billed Medicare for doing. The records proved that Pon
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sometimes billed Medicare for performing ophthalmic ultrasounds on J.L.’s left
eye multiple times in one month and, on at least four occasions, twice on the same
day.
When asked about the six fluorescein angiograms he had billed Medicare for
conducting on J.L.’s blind left eye, Pon said they are “a very useful test to help
diagnose sympathetic ophthalmia.” Of course, J.L. himself had emphatically
testified that Pon never performed a fluorescein angiogram on his left eye. Pon
didn’t offer any explanation for that contradiction.
Finally, Pon also proffered that the January 2009 surgery was done on J.L.’s
right eye, not his left as Pon had billed Medicare. He said that billing for surgery
on the left eye resulted from a “clerical error.”
After the proffer, defense counsel argued that it would be “incorrect” and
“misleading” to prevent Pon from testifying about the clerical error in the billing of
the January 2009 surgery. The district court agreed and decided to let Pon testify
that he billed for surgery on the wrong eye as a result of a clerical error. The court
would not allow Pon to testify about any of the numerous non-surgical services on
the blind left eye and why he claimed they were necessary.
After the jury returned, Pon took the stand and testified that the billing for
surgery on J.L’s left eye in 2009 was a clerical error, and that surgery actually had
been performed on J.L.’s right eye. On cross-examination, Pon admitted that those
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three 2009 clerical errors about the surgical services were “just three entries out of
two pages of entries,” and that the total billing for those three entries was “less
than $3,000.” The two pages of entries showed that Pon had billed $16,441 for the
49 non-surgical services on J.L.’s blind left eye — billings that Pon never claimed
were the result of clerical error.
During closing arguments to the jury, the government spent its time and
aimed its arguments at the evidence involving the fraudulent billings for treatments
Pon claimed to have rendered to the eleven patients listed in the indictment —
evidence it had presented through nineteen witnesses and nearly 760 exhibits over
seven days of the fourteen-day trial. It mentioned J.L. (who had testified for less
than one hour of the trial), but just barely. It described him only as someone Pon
had incorrectly diagnosed with WMD. It said nothing at all about any services that
Pon had billed for J.L.’s blind left eye. Not one word.
Defense counsel, by contrast, discussed J.L. at length in his closing
argument. Referring to the surgery Pon had performed on J.L. in 1994, for which
Pon did not know if he would get paid, counsel asked the jury: “Is that, ladies and
gentlemen, what a fraudster would do?” And addressing the rebuttal evidence that
Pon billed for services on J.L.’s blind left eye, counsel argued:
I submit to you that the diagnostic tests and examinations that Dr. Pon
did, whether it’s on the right eye, which still was viable, or the left eye,
which he was legally blind in, are still tests that are appropriate for a
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doctor to do, and there’s absolutely nothing wrong with doing those
tests and billing Medicare for it.
However, he did not offer the jury any explanation for why J.L., the witness he
called who would have been the subject of those tests — including tests involving
dye injections — would testify under oath that at least some of them had never
been performed.
After closing arguments, the court instructed the jury, among other things,
that Pon was “on trial only for the specific crimes charged in the indictment,” and
the jury’s task was to determine whether Pon was “guilty or not guilty of those
specific crimes.” The jury found him guilty of all twenty counts of health care
fraud, none of which mentioned J.L.
We review rulings about whether to allow surrebuttal evidence only for an
abuse of discretion. See Frazier, 387 F.3d at 1270; Haimowitz, 706 F.2d at 1560.
The district court’s ruling partially granted and partially denied Pon’s request to
present surrebuttal evidence. The court granted his request to re-take the stand and
testify that the three billings for surgery on J.L.’s left eye were clerical errors, and
he had actually performed the surgery on J.L’s functioning right eye. But the court
denied Pon’s request to testify that the reason he billed for so many diagnostic tests
on J.L.’s blind left eye was to determine if there was a problem with it that could
lead to complications that might result in a loss of vision in the right eye.
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2. The Preservation Issue
Pon contends the court’s refusal to let him testify to that was both trial error
and constitutional error. The constitutional error he claims is a violation of his
Sixth Amendment right “to defend against the government’s evidence” and denial
of a fair opportunity to respond to the government’s rebuttal testimony. Pon
clearly preserved the trial error issue in the district court, but it is far from clear
that he preserved the constitutional issue.
“No procedural principle is more familiar . . . than that a constitutional right
may be forfeited in criminal as well as civil cases by the failure to make timely
assertion of the right before a tribunal having jurisdiction to determine it.” Yakus
v. United States, 321 U.S. 414, 444 (1944). To preserve an error in a criminal trial,
a party must “inform[] the court — when the court ruling or order is made or
sought — of the action the party wishes the court to take, or the party’s objection
to the court’s action and the grounds for that objection.” Fed. R. Crim. P. 51(b).
Failing to contemporaneously object “ordinarily precludes the raising on appeal of
the unpreserved claim of trial error.” Puckett v. United States, 556 U.S. 129, 135
(2009).
Although a contemporaneous objection preserves an issue for appellate
review, “not every objection is a constitutional objection.” United States v.
Candelario, 240 F.3d 1300, 1304 (11th Cir. 2001). We have held over and over
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again that to preserve an issue, a litigant must “first clearly present it to the district
court, that is, in such a way as to afford the district court an opportunity to
recognize and rule on it.” See, e.g., Juris v. Inamed Corp., 685 F.3d 1294, 1325
(11th Cir. 2012) (quotation marks omitted).
While Pon did preserve through objection and argument the issue of whether
the district court’s partial limitation on his surrebuttal evidence violated the rules
governing the presentation of rebuttal and surrebuttal evidence, he never once
mentioned the Sixth Amendment or argued to the district court that the limitation
violated that or any other constitutional provision. Our precedent indicates that an
objection on nonconstitutional grounds is not enough to preserve a constitutional
issue. For example, in United States v. Chau, 426 F.3d 1318 (11th Cir. 2005), we
held that the defendant’s hearsay objection in the district court did not preserve the
Confrontation Clause issue he pressed on appeal. Id. at 1321–22 (“[A] hearsay
objection does not preserve the [Confrontation Clause] issue . . . .”). In United
States v. Hawkins, 934 F.3d 1251, 1264 (11th Cir. 2019), we concluded that the
“tepid objections made by defense counsel” and the “rumblings of concern about
the phrasing of questions” did not preserve the argument the defendants made on
appeal that the trial court had admitted improper opinion testimony. And in United
States v. Elbeblawy, 899 F.3d 925, 938 (11th Cir. 2018), we held that a defendant
had not preserved an argument when he only “mentioned it, in passing, in a post-
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trial reply motion” because the “post-trial remark was neither timely nor
sufficiently developed” to preserve the issue. Pon did not even mention in passing
to the district court the constitutional issue he wants to pursue before us.
It is true that at one point the district court — not Pon — stated: “[T]here’s
the further question of whether, in deference to . . . Dr. Pon’s Sixth Amendment
right . . . he should be given an opportunity to offer an explanation at that point.”
That probably is not enough to preserve the Sixth Amendment issue for appeal,
even under the view of the treatise that the dissent relies on to reach the contrary
conclusion. See Dissent at 8 n.4.
The relevant part of that treatise states:
[I]f the record reveals that the parties and the court were aware of the
claim or issue and litigated it, then whether or not it served as the
basis for determination the claim or issue was raised and is reviewable
on appeal. Moreover, if the district court sua sponte raised an issue of
law and explicitly resolved the issue on the merits, that ruling is fully
reviewable on appeal even though no party raised it below.
19 James Wm. Moore et al., Moore’s Federal Practice § 205.05(1) (3d ed. 2019)
(emphases added) (footnotes omitted). Like our precedent, the treatise states that
the mere mention of an issue does not preserve it. Instead, the issue must have
been “decide[d],” “litigated,” and “explicitly resolved . . . on the merits” to be
preserved. Id.
As our discussion of the surrebuttal argument in the district court has shown,
the Sixth Amendment issue was not decided, litigated, or explicitly resolved on the
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merits there. Defense counsel did not even mention it; the government did not
mention it; and the district court mentioned it only in passing in a single sentence.
Even after the district court referred to it, defense counsel did not argue that Pon
had a Sixth Amendment right to present surrebuttal evidence in these
circumstances. The failure to do so is all the more significant because counsel
objected on Sixth Amendment grounds to five other rulings against Pon on
evidentiary issues during the trial.8 But he did not assert or even mention the Sixth
Amendment in connection with the partial limitation on surrebuttal evidence. On
this record, the author of the treatise might well say that the Sixth Amendment
issue does not “fairly appear[] in the record as having been raised or decided.”
Moore’s § 205.05(1).
But we don’t have to decide if that Sixth Amendment issue was presented to
the district court. We can assume that it was. We can make that assumption
because even if partially limiting Pon’s surrebuttal did violate his Sixth
8
For example, in objecting to the district court’s ruling that he could not admit exhibits
during cross-examination, counsel argued that “the restriction impinge[d] Dr. Pon’s Sixth
Amendment constitutional right to cross-examination”; he moved for a mistrial after information
came out about what a nontestifying doctor said, invoking the Sixth Amendment and arguing
that Pon was “deprived of [his] right to confrontation”; in offering an exhibit that the government
sought to have excluded, he argued that Pon’s “Sixth Amendment constitutional right to present
evidence” entitled him to have the exhibit accepted; he sought the court’s permission for Pon to
confer with counsel during breaks in his testimony, arguing that Pon was entitled to do so
because of “the right to counsel under the Sixth Amendment”; and he again argued that one of
Pon’s exhibits should have been admitted because the district court’s “exclusion of [the proffered
exhibit was] a denial of Dr. Pon’s Sixth Amendment right to present evidence.”
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Amendment rights, that error was harmless beyond a reasonable doubt, which
necessarily means that any nonconstitutional error from that limitation was
harmless as well.
3. The Harmless Error Standard
We review preserved assertions of error — both constitutional and
nonconstitutional error — for harmlessness. See Fed. R. Crim. P. 52(a) (“Any
error, defect, irregularity, or variance that does not affect substantial rights must be
disregarded.”); United States v. Olano, 507 U.S. 725, 734 (1993) (“When the
defendant has made a timely objection to an error and Rule 52(a) applies, a court
of appeals normally engages in a specific analysis of the district court record — a
so-called ‘harmless error’ inquiry — to determine whether the error was
prejudicial.”).
As this Court sitting en banc has recognized, the Supreme Court has
repeatedly held that “the vast majority of constitutional errors that occur at a
criminal trial, including Sixth Amendment violations, should be examined for
prejudicial effect and those errors do not require reversal if they are harmless.”
United States v. Roy, 855 F.3d 1133, 1167 (11th Cir. 2017) (en banc). The
harmless error doctrine is important because it “promotes public respect for the
criminal process by focusing on the underlying fairness of the trial.” Neder v.
United States, 527 U.S. 1, 18 (1999) (quotation marks omitted). Review for
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harmlessness “is also essential to avoid a ‘sporting theory of justice’ and a regime
of gotcha review.” Roy, 855 F.3d at 1142 (quoting United States v. Agurs, 427
U.S. 97, 108 (1976)).
A constitutional error is harmless if the government proves “beyond a
reasonable doubt that the error complained of did not contribute to the verdict
obtained.” Chapman v. California, 386 U.S. 18, 22 (1967). And “[t]o say that an
error did not contribute to the verdict is . . . to find that error unimportant in
relation to everything else the jury considered on the issue in question, as revealed
in the record.” Yates v. Evatt, 500 U.S. 391, 403 (1991); accord Cape v. Francis,
741 F.2d 1287, 1294–95 (11th Cir. 1984) (“If, upon its reading of the trial record,
the appellate court is firmly convinced that the evidence of guilt was so
overwhelming that the trier of fact would have reached the same result without the
tainted evidence, then there is insufficient prejudice to mandate the invalidation of
the conviction.”).
A nonconstitutional error, on the other hand, is harmless unless it “resulted
‘in actual prejudice because it had substantial and injurious effect or influence in
determining the jury’s verdict.’” United States v. Guzman, 167 F.3d 1350, 1353
(11th Cir. 1999) (quoting United States v. Lane, 474 U.S. 438, 449 (1986)). If a
reviewing court “can say with fair assurance . . . that the judgment was not
substantially swayed by the [nonconstitutional] error,” the court must affirm even
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if the district court erred. United States v. Hornaday, 392 F.3d 1306, 1315–16
(11th Cir. 2004).
Under both harmless error standards, the reviewing court examines the trial
record in its entirety to make its prejudice determination. See Neder, 527 U.S. at
19 (constitutional standard); United States v. Sweat, 555 F.3d 1364, 1367 (11th
Cir. 2009) (nonconstitutional standard). The government bears the burden of
showing harmlessness in both situations when the issue was properly preserved by
timely objection. See, e.g., United States v. Vonn, 535 U.S. 55, 62 (2002) (noting
that it is the government’s “burden of showing that any error was harmless” under
harmless-error review). As may be apparent, the constitutional harmless error
hurdle is the higher of the two for the government to clear. See generally United
States v. Mathenia, 409 F.3d 1289, 1291 (11th Cir. 2005) (noting “the less
demanding [harmless error] test that is applicable to non-constitutional errors”);
United States v. Robles, 408 F.3d 1324, 1327 (11th Cir. 2005) (noting that “[w]hen
the error is of the constitutional variety, a higher standard is applied” than when the
error is nonconstitutional). For that reason, a holding that a constitutional error is
harmless necessarily means that it is also harmless if it happens to be
nonconstitutional error.
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4. The Harmlessness of the Assumed Error
We are persuaded that, even if the district court erred in partially limiting
Pon’s surrebuttal evidence, and that error violated the Sixth Amendment, it was
harmless beyond a reasonable doubt. See United States v. Willner, 795 F.3d 1297,
1322 (11th Cir. 2015) (“One circumstance in which courts find constitutional
errors harmless beyond a reasonable doubt is when the evidence of the defendant’s
guilt is ‘so overwhelming.’”) (quoting Harrington v. California, 395 U.S. 250, 254
(1969)). Here’s why.
a. The Eleven Patients Listed in the Indictment
First, the government presented a slew of compelling evidence that not a
single patient out of the eleven identified in the indictment had WMD, yet Pon had
diagnosed every one of them with that degenerative eye disease anyway. And
those patients’ eyes showed no signs at all of having undergone laser
photocoagulation treatment for WMD, though Pon had billed Medicare under code
67220 for laser photocoagulation treatment for each patient. The government
presented the testimony of not one, but a dozen doctors about the patients listed in
the indictment. Dr. Friberg and eleven other doctors who had examined the eleven
patients identified in the indictment testified against Pon. All told, the twelve of
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them collectively had more than 330 years of experience.9 None of those doctors
could find any evidence that any of the eleven patients identified in the indictment
had WMD when Pon diagnosed them with it, and they all concluded that the
patients did not have the telltale scars associated with the laser photocoagulation
treatment that Pon had billed Medicare for performing on each patient. Because
the overwhelming amount of the evidence is important, we recount in detail the
doctors’ testimony about each of the eleven patients.
(1) Patient One
About Patient One, the jury heard testimony from three ophthalmologists:
Dr. Friberg and two others. Dr. Friberg testified that before trial he reviewed
images of both of Patient One’s eyes, each of which Pon had diagnosed with
WMD and for each of which he had billed Medicare under code 67220 as though
he had performed laser photocoagulation treatment. The images of the patient’s
left eye (the basis for Count One) were taken both on and after the “treatment”
date, and the images of the patient’s right eye (the basis for Count Two) were taken
before, on, and after the “treatment” date. Dr. Friberg told the jury about his
review of those images and explained that he did not see any indication at all that
9
Dr. Friberg: 32 years; Dr. Williams: 45 years; Dr. Berger: 31 years; Dr. Magruder:
26 years; Dr. Gills: 47 years; Dr. Pennachio: 30 years; Dr. Wehrly: 21 years; Dr. Mavrofrides:
11 years; Dr. Schwenk: 31 years; Dr. Beneke: 24 years; Dr. Vogel: 21 years; Dr. Kraut: 19 years.
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the patient had WMD in either of her eyes or a scar showing she had actually
received laser photocoagulation treatment in either eye.
The second ophthalmologist testified about five examinations he had
conducted on Patient One after Pon’s diagnosis and purported treatment. He was
“confident that [the patient] was not” suffering from WMD when he examined her,
and he said she did not have the disease when Pon billed Medicare for laser
photocoagulation treatment on her eyes.
Patient One went to the third testifying ophthalmologist to get a second
opinion about whether she had WMD. That ophthalmologist had examined Patient
One on three separate occasions after Pon’s diagnosis and purported laser
treatment of her eyes. He discussed with the jury the medical records of his
examinations of Patient One. Based on those three examinations, he testified that
she did not have WMD when Pon billed Medicare for laser photocoagulation
treatment of her eyes nor did she have a laser-related scar in her eyes afterwards.
None of Pon’s excluded surrebuttal evidence, which is the assumed error we are
talking about, had anything to do with Patient One.
(2) Patient Two
About Patient Two, the jury heard from Dr. Friberg and two other
ophthalmologists. Before trial, Dr. Friberg reviewed images of this patient’s left
eye, which Pon had diagnosed with WMD and for which he had billed Medicare
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under code 67220 as though he had performed laser photocoagulation treatment on
two separate occasions. The images Dr. Friberg reviewed were taken before, on,
and after the first “treatment” date (the basis for Count Three), and before and on
the second “treatment” date (the basis for Count Four). Dr. Friberg testified that
based on his review there was “a high degree of medical certainty” that the patient
had not had WMD. He also testified that he did not see any indication that the
patient had a scar in her eye showing she had actually undergone laser
photocoagulation treatment.
The second ophthalmologist testified about six examinations he had
conducted on Patient Two’s eye after Pon’s diagnosis and supposed treatment.
After reviewing for the jury the medical records of his examinations, he testified
that this patient did not have WMD when Pon billed Medicare for laser
photocoagulation treatment of her eye.
The third ophthalmologist testified that he had examined Patient Two on two
separate occasions just months before Pon diagnosed her with WMD. He had not
seen any evidence that the patient had WMD, and he testified that the chance of
her developing the disease in the brief period between the time he examined her
and the time Pon billed Medicare for laser photocoagulation of her eye was “very
unlikely.” None of Pon’s excluded surrebuttal evidence, which is the assumed
error we are talking about, had anything to do with Patient Two.
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(3) Patient Three
Patient Three was also the subject of testimony from Dr. Friberg and two
other ophthalmologists. Before trial, Dr. Friberg reviewed images of both of this
patient’s eyes, each of which Pon had diagnosed with WMD and for each of which
he had billed Medicare under code 67220 as though he had performed laser
photocoagulation treatment. The images of the patient’s left eye (the basis for
Count Five) were taken on and after the “treatment” date, and the images of the
patient’s right eye (the basis for Count Six) were taken before, on, and after that
date. Dr. Friberg testified that based on his review he did not see any indication
that on any of those dates the patient had WMD or a scar indicating he had actually
undergone laser photocoagulation treatment.
The second ophthalmologist explained to the jury the medical records
documenting some of Patient Three’s visits with him. He testified to his “shock[]”
of learning that the patient had purportedly undergone laser photocoagulation
treatment at Pon’s office just months after he himself had concluded that the
patient did not have WMD. He also stated that he had examined the patient after
Pon did and had concluded that the patient did not have WMD or any laser
photocoagulation scars in his eyes.
The third ophthalmologist testified that he examined this patient on three
separate occasions more than four years after Pon’s diagnosis and purported
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treatment and, on each occasion, he saw no indication that the patient had WMD.
He also testified that he did not see any laser photocoagulation scars in the
patient’s eyes. None of Pon’s excluded surrebuttal evidence, which is the assumed
error we are talking about, had anything to do with Patient Three.
(4) Patient Four
The jury heard from Dr. Friberg and another ophthalmologist about Patient
Four. Before trial, Dr. Friberg reviewed images of this patient’s right eye, which
Pon had diagnosed with WMD and for which he had billed Medicare under code
67220 as though he had performed laser photocoagulation treatment on two
separate occasions. The images Dr. Friberg reviewed were taken before, on, and
after the two “treatment” dates (the basis for Counts Seven and Eight). Dr. Friberg
testified that based on his review he did not see any indication that the patient had
WMD or a scar in her eyes showing that she had actually received laser
photocoagulation treatment for that disease. Instead, the patient’s eye that Pon said
suffered from WMD “look[ed] pristine” and there was “[n]o medical reason” to
laser it.
The other ophthalmologist testified about his examination of Patient Four
several years after Pon had diagnosed her with WMD and supposedly treated her.
He stated that she did not have WMD when Pon diagnosed her with it and billed
Medicare for laser photocoagulation of it, that he did not see any scarring in her
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right eye that would indicate she had undergone that treatment, and that she still
did not have WMD at the time he had examined her eyes. He added that the
patient’s eyesight was “[v]ery good” for her age. None of Pon’s excluded
surrebuttal evidence, which is the assumed error we are talking about, had anything
to do with Patient Four.
(5) Patient Five
The jury heard from Dr. Friberg and another ophthalmologist about Patient
Five. Before trial, Dr. Friberg reviewed images of the patient’s right eye, which
Pon had diagnosed with WMD and for which he had billed Medicare under code
67220 as though he had performed laser photocoagulation treatment. The images
Dr. Friberg reviewed were taken on and after the purported treatment date (the
basis for Count Nine). Dr. Friberg testified that he was “[v]ery certain” the patient
did not have WMD. He added that her blood vessels looked “[e]xcellent.” And
although Pon had billed Medicare for laser photocoagulation of this patient’s right
eye six times, Dr. Friberg saw no scars indicating she had ever received any laser
photocoagulation in that eye.
The second ophthalmologist testified about seven examinations he
conducted on Patient Five after her optometrist referred her to him for a macular
degeneration evaluation. All seven of the examinations were after Pon had
diagnosed Patient Five with WMD and purportedly treated her. Based on his
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examinations, this ophthalmologist testified that there was no way that Patient Five
had WMD when Pon diagnosed her with the disease. And he testified that he saw
no scarring in her right eye that would indicate she had received laser
photocoagulation treatment for WMD. None of Pon’s excluded surrebuttal
evidence, which is the assumed error we are talking about, had anything to do with
Patient Five.
(6) Patient Six
The jury heard about Patient Six from Dr. Friberg and two other
ophthalmologists. Before trial, Dr. Friberg reviewed images of both of the
patient’s eyes, each of which Pon had diagnosed with WMD and for which he had
billed Medicare under code 67220 as though he had performed laser
photocoagulation treatment. The images Dr. Friberg reviewed were taken before
and after the “treatment” date for this patient’s right eye (the basis for Count Ten)
and before, on, and after the “treatment” date for this patient’s left eye (the basis
for Count Eleven). Dr. Friberg testified that based on his review the patient had
not had WMD in either eye. And he testified that the patient’s eyes had no scars
indicating that she had ever received any laser photocoagulation treatment.
The second ophthalmologist testified about his treatment of Patient Six over
a nine-year period that overlapped with the time Pon had treated her. This
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ophthalmologist reviewed for the jury his medical records from twelve
examinations of the patient and testified that she had never showed signs of WMD.
The third ophthalmologist testified about examinations he had conducted on
Patient Six after Pon’s diagnosis and purported treatment. He stated that she did
not have WMD and did not have any scarring from laser photocoagulation
treatments. None of Pon’s excluded surrebuttal evidence, which is the assumed
error we are talking about, had anything to do with Patient Six.
(7) Patient Seven
The jury heard from Dr. Friberg and two other ophthalmologists about
Patient Seven. Before trial, Dr. Friberg reviewed images of both of the patient’s
eyes, each of which Pon had diagnosed with WMD and for each of which he had
billed Medicare under code 67220 as though he had performed laser
photocoagulation treatment. The images Dr. Friberg reviewed were taken before,
on, and after the “treatment” date for this patient’s left eye (the basis for Count
Twelve) and on the “treatment” date for this patient’s right eye (the basis for Count
Thirteen). Dr. Friberg testified that based on his review the patient never had
WMD in either eye and did not have a laser scar indicating that he ever received
laser photocoagulation treatment in either eye.
The second ophthalmologist examined Patient Seven after Pon had billed
Medicare numerous times for laser photocoagulation treatment of his right eye.
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This ophthalmologist testified that he found “no evidence whatsoever of any
previous laser treatment.” He was “[a] hundred percent” certain that the patient
did not have WMD or any scars indicating laser treatment.
The third ophthalmologist examined Patient Seven after the patient was
referred to him for a cataract evaluation. He went over for the jury the five
examinations he had conducted on Patient Seven after Pon’s diagnosis and
purported treatment. None of the evaluations showed any sign of WMD. None of
Pon’s excluded surrebuttal evidence, which is the assumed error we are talking
about, had anything to do with Patient Seven.
(8) Patient Eight
The jury heard about Patient Eight from Dr. Friberg, two other
ophthalmologists, and an optometrist with 45 years of experience. Before trial, Dr.
Friberg reviewed images of both of the patient’s eyes, each of which Pon had
diagnosed with WMD and for each of which he had billed Medicare under code
67220 as though he had performed laser photocoagulation treatment. Those
images were taken before, on, and after the “treatment” date for this patient’s left
eye (the basis for Count Fourteen) and before and on the “treatment” date for this
patient’s right eye (the basis for Count Fifteen). Dr. Friberg testified that based on
his review the patient did not have WMD in his left eye and did not have a scar
indicating he had ever received laser photocoagulation treatment in either eye. Dr.
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Friberg also testified that there was no WMD in the area of the patient’s right eye
that Pon had marked for treatment. That area, Dr. Friberg added, was “quite
pristine.”
The second ophthalmologist testified about five examinations conducted on
Patient Eight — one before and four after Pon’s diagnosis and purported laser
photocoagulation treatment of the patient’s eyes. He testified that none of the
examinations showed any indication of WMD or scarring from laser
photocoagulation treatment.
The third ophthalmologist performed cataract surgery on Patient Eight after
Pon had diagnosed the patient with WMD and billed Medicare for laser
photocoagulation treatment of both eyes. This ophthalmologist discussed his pre-
and post-operation examinations of the patient’s eyes and testified that he never
saw any evidence of WMD.
The optometrist was another witness who testified about his examinations of
Patient Eight’s eyes after Pon had diagnosed them with WMD and purportedly
treated them. He testified that he saw no evidence of the scarring that would
accompany laser photocoagulation treatment, and no evidence of WMD in the
patient’s eyes. And he explained that because the patient did not have WMD when
he examined him after Pon had diagnosed and supposedly treated his eyes, there
was no way the patient had WMD when Pon diagnosed him with it. None of Pon’s
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excluded surrebuttal evidence, which is the assumed error we are talking about,
had anything to do with Patient Eight.
(9) Patient Nine
The jury heard from Dr. Friberg and another ophthalmologist about Patient
Nine. Before trial, Dr. Friberg reviewed images of both of this patient’s eyes, each
of which Pon had diagnosed with WMD and for each of which he had billed
Medicare under code 67220 as though he had performed laser photocoagulation
treatment. The images Dr. Friberg reviewed were taken on and after the
“treatment” date for this patient’s left eye (the basis for Count Sixteen) and before,
on, and after the “treatment” date for this patient’s right eye (the basis for Count
Seventeen). Dr. Friberg testified that based on his review the patient did not have
WMD in either eye at the time Pon diagnosed her with that disease, and she did not
have scarring from laser photocoagulation treatment in either eye.
The other ophthalmologist examined Patient Nine after Pon had diagnosed
her with WMD and purportedly treated her eyes. This ophthalmologist testified
that he was “[a] hundred percent” certain that she had not had WMD or any
scarring from laser photocoagulation treatment for that disease. None of Pon’s
excluded surrebuttal evidence, which is the assumed error we are talking about,
had anything to do with Patient Nine.
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(10) Patient Ten
The jury heard about Patient Ten from Dr. Friberg, from another
ophthalmologist, and also from an optometrist with 45 years of experience. Before
trial, Dr. Friberg reviewed images of the patient’s left eye, which Pon had
diagnosed with WMD and for which he had billed Medicare under code 67220 as
though he had performed laser photocoagulation treatment. The images Dr.
Friberg reviewed were taken on the “treatment” date for this patient’s left eye (the
basis for Count Eighteen). He testified that based on his review the patient did not
have WMD at the time Pon diagnosed her with that disease, nor did she have a scar
indicating that she had ever received laser photocoagulation treatment for the
disease.
The other ophthalmologist testified about his treatment of Patient Ten after
Pon had diagnosed her with WMD and purportedly treated her. Patient Ten had
come to him for a second opinion about whether she had macular degeneration.
He testified that he was “[a] hundred percent certain” that she did not have WMD
or any scars from laser treatment for that disease.
The optometrist told the jury about four examinations he had conducted on
Patient Ten after Pon’s diagnosis and purported laser treatment. He testified that
he never saw any indication that she had WMD and he had never seen any scarring
from laser photocoagulation treatment for that disease. None of Pon’s excluded
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surrebuttal evidence, which is the assumed error we are talking about, had anything
to do with Patient Ten.
(11) Patient Eleven
The jury heard about Patient Eleven from Dr. Friberg, from another
ophthalmologist, and from the optometrist with 45 years of experience. Before
trial, Dr. Friberg reviewed images of this patient’s right eye that Pon had diagnosed
with WMD and for which he had billed Medicare under code 67220 as though he
had performed laser photocoagulation treatment on two separate occasions. The
images he reviewed were taken before, on, and after the first “treatment” date (the
basis for Count Nineteen) and on and after the second “treatment” date (the basis
for Count Twenty). Dr. Friberg testified that based on his review, he was
“[c]ertain” that the patient did not have WMD when Pon diagnosed her with that
disease, and that she did not have a scar indicating she had received laser
photocoagulation treatment for the disease.
The other ophthalmologist told the jury that Patient Eleven had been referred
to him for a second opinion about whether Pon’s frequent lasering of her eye was
necessary. He testified that he examined the patient twice and both examinations
showed no evidence of WMD and no scar indicating she had received laser
photocoagulation treatment for that disease.
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The optometrist testified about his treatment of Patient Eleven over a period
of six years, some of which overlapped with Pon’s treatment of her. He testified
that none of his examinations revealed any sign of WMD. None of Pon’s excluded
surrebuttal evidence, which is the assumed error we are talking about, had anything
to do with Patient Eleven.
(12) Summary
In regard to the eleven patients whose cases were the basis for all of the
counts in the indictment, the jury heard from twelve different doctors, each of
whom testified that Pon had diagnosed patients with WMD when those patients
clearly had never had it. Those doctors also testified that none of those patients
had the telltale scarring that necessarily results from the laser photocoagulation
treatment that Pon billed Medicare for performing on them. Other than himself,
Pon presented no ophthalmologist or optometrist to testify that any one of the
eleven patients actually had WMD at the time he purportedly treated them for it or
had the scarring that would necessarily have resulted from the laser
photocoagulation treatment he billed Medicare for performing. Not only that, but
he billed Medicare for laser photocoagulation treatment of the eleven patients,
which necessarily causes a scar, even though Pon himself conceded that his
treatment did not cause any scarring. And nobody (other than Pon) testified to
support his claim that WMD could be laser-treated without scarring. None of
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Pon’s excluded surrebuttal evidence, which is the assumed error we are talking
about, had anything to do with any of the eleven patients listed in the indictment or
the bills he submitted to Medicare for the laser photocoagulation treatment that he
never administered to those patients.
b. The Hundreds of Other Patients
The overwhelming proof of Pon’s guilt did not stop there. There was also
strong evidence — uninfluenced and unaffected by the partial limitation on Pon’s
surrebuttal evidence (the assumed error we are talking about) — that Pon
incorrectly diagnosed and improperly “treated” not just the eleven patients listed in
the indictment but also hundreds of other patients.
As discussed, Dr. Friberg testified that almost none of the 500 patients
whom Pon had diagnosed with WMD actually had the disease. He recounted how,
during his close review of the files of approximately 500 of Pon’s patients, it was
“rare” for him to see any indication that any patient had any form of macular
degeneration — either dry or wet. Only a “very minimal minority” — one or two
percent — of the 500 patients whose charts he reviewed had any sort of macular
degeneration. Other eye doctors corroborated Dr. Friberg’s diagnoses for dozens
of Pon’s patients not named in the indictment.
Only Pon testified that his WMD diagnoses were correct, and that he
believed the treatments he administered were helpful and medically necessary. But
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Pon had strong motivation to say that –– a substantial interest in the outcome of the
trial. He acknowledged that most of his patients were Medicare beneficiaries and
that the vast majority of the money he made was from Medicare. If convicted, he
would lose his medical license and livelihood. And, of course, he faced a prison
sentence –– ten years as it turned out.
The jury was entitled to take Pon’s interest into account in evaluating his
testimony, as it undoubtedly did. We have even held that because a jury is free to
infer from a testifying defendant’s demeanor that he is not telling the truth, “a
statement by a defendant, if disbelieved by the jury, may be considered as
substantive evidence of the defendant’s guilt” when combined with other evidence.
United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995); accord United States v.
McCarrick, 294 F.3d 1286, 1293 (11th Cir. 2002) (“In Brown, we held that, in
combination with other evidence, the jury’s disbelief of a defendant’s testimony
may be used to help establish his guilt.”); see also United States v. Hough, 803
F.3d 1181, 1188 (11th Cir. 2015) (“Having seen and heard [the defendant’s]
testimony, the jury was free to discredit her explanation, to infer that the opposite
of what she said was true, and to consider that inference as substantive evidence of
her guilt.”). This is especially true in regard to “highly subjective elements” such
as “the defendant’s intent or knowledge.” Brown, 53 F.3d at 315. The jury
observed Pon for more than three days on the witness stand and had ample time to
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evaluate his demeanor and credibility. See United States v. Devorso, 518 F.3d
1250, 1258 (11th Cir. 2008) (“Given the opportunity to evaluate [the
defendant’s] demeanor and credibility, the jury was entitled not only to disbelieve
his testimony but, in fact, to find that the opposite of his testimony was true.”).
The government also offered overwhelming evidence — again, completely
separate from the assumed error about limiting Pon’s surrebuttal evidence — that
Pon knew the patients he diagnosed with WMD did not have that disease and knew
that his micropulse laser technique did not treat that disease. Almost every doctor
who testified — even Pon himself — said that a person with untreated WMD
would suffer a substantial decline in the quality of his vision. And yet, the
evidence at trial showed that Pon abruptly stopped all WMD treatments on at least
four patients he had diagnosed with WMD and on whom he had been using his
micropulse laser technique. But Pon continued to treat these patients for other eye
conditions, so he would have known that the WMD he had diagnosed in them did
not progress even though they were not receiving any treatment for it, which had to
mean there was no WMD to begin with and Pon knew it.
c. Different Treatment for Patients Who Actually Had WMD
The evidence also showed that Pon used very different WMD treatment
methods for different patients. Recall the testimony that at the time of Pon’s trial,
injecting drugs directly into the eye had become the most widely used, accepted
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treatment for WMD. See supra pp. 4, 14. But evidence at trial showed that Pon
used those drug injections as a WMD treatment for only some of the patients he
diagnosed with WMD, at least of those he called as witnesses at trial.
Significantly, the evidence showed that he used drug injections to treat WMD
largely, if not only, for those patients whose WMD diagnoses were corroborated
by another doctor. In other words, he used drug treatments for the rare patients of
his who actually had WMD. For other patients, ones for whom there was no
evidence of WMD but he billed as if there were, Pon didn’t use drug injections as a
WMD treatment or he used it only rarely.
For example, four of the thirteen patients who testified on Pon’s behalf had a
WMD diagnosis that had been confirmed by another doctor. Pon gave all four of
these patients drug injections. For two of these patients, Pon used the accepted
drug injection treatment as well as his micropulse laser “treatment,” all in the same
eye. For the other two of these four, he administered injections often and
consistently, and he never discontinued the injections for either of them. The sum
of it is that for the few patients whose WMD was confirmed by other doctors, Pon
treated with the accepted drug injections, as well as his micropulse laser technique,
and billed for both.
At least seven of the patients who testified on Pon’s behalf had WMD
diagnoses from Pon that Dr. Friberg rejected. For these patients, Pon either did not
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use injections to treat what only he had diagnosed as WMD, or he used injections
only occasionally. And, as we discussed, for four of these patients, Pon stopped
administering any WMD treatment — laser or injections — but continued to treat
them for other eye diseases. That, of course, is evidence that Pon knew those
patients did not actually have WMD, but he nonetheless diagnosed them with it
and administered his micropulse laser “treatment,” while billing Medicare under
code 67220 for laser photocoagulation treatment.
d. The Ineffectiveness of Pon’s Micropulse Laser “Treatment”
The government also offered testimony from other doctors — uninfluenced
by Pon’s excluded surrebuttal evidence — that Pon’s micropulse laser technique
could not treat WMD and could not coagulate a feeder vessel. One
ophthalmologist testified that he was “certain far beyond a reasonable medical . . .
certainty” that Pon’s micropulse laser technique would not close a feeder vessel.
Another testified that he was not aware of any way that Pon’s micropulse laser
technique could coagulate a feeder vessel, which was necessary to treat WMD, and
was what Pon billed Medicare for doing. And yet another ophthalmologist
testified that there was no way to achieve “subthreshold coagulation” of a feeder
vessel, as Pon claimed, because those two “terms are mutually exclusive.” And so
it went.
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Numerous doctors testified that WMD could not be treated with a laser
without leaving a scar. Dr. Friberg was “very certain” that using a laser at a power
high enough to “cook the feeder vessel,” which is how WMD is treated with a
laser, would leave a mark in the eye. He testified that even if the scars did not
show up in the eye immediately, “you could see them down the road.” His
certainty about this came from his experience directing a clinical trial in which the
doctors “used very minimal laser” and thought they “didn’t leave any marks.” But
in “[a] month or two,” the patients’ eyes showed signs of scarring.
Another ophthalmologist had participated in a clinical trial in which the
doctors attempted to treat dry macular degeneration — which usually precedes
WMD — using “very, very light laser treatment.” But the trial was stopped early
because the patients being treated were developing WMD more quickly than their
counterparts who were receiving no treatment at all. This ophthalmologist testified
that laser photocoagulating leaking blood vessels, the treatment Pon was billing
Medicare for, would “by definition, pretty much create a full-thickness burn” and
leave a scar in the eye. He testified that laser treatment for WMD leaves scars that
don’t ever completely heal, “and that’s the point actually,” because that is how
WMD is treated with a laser.
Other doctors agreed. Another ophthalmologist testified that if a feeder
vessel had been closed with a laser, “you would see a scar.” And another testified
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that laser treatment for WMD that has “any kind of effect on the underlying blood
vessels” would cause “some kind of scar.” And another testified that “the purpose
of” laser treatment for WMD is to “cook[]” the tissue in the eye, which stops the
blood vessels from leaking and necessarily results in a visible scar in the eye. And
another testified that laser treatment for WMD results in “tiny focal laser scars”
that are generally visible with a standard eye exam and that would always show up
on a fluorescein angiogram. And yet another testified that “there’s no description
of [its] being possible” to close a feeder vessel without scarring, and “there’s a lot
of theoretical and scientific reasons why that would seem extremely unlikely to be
possible.” Nonetheless, as we discussed, every single doctor who examined the
eyes of a patient listed in the indictment testified that the patient’s eyes showed no
indication of the scarring that necessarily accompanies laser photocoagulation —
the WMD treatment that Pon billed Medicare for administering. See supra pp. 41–
56.
e. Filling Out Charts in Advance
The record also shows that Pon filled out portions of some patients’ charts
with WMD diagnoses and planned diagnostic tests before he had even seen the
patients. The government admitted patient notes for three of Pon’s patients who
had not shown up for a scheduled appointment. Even though Pon didn’t examine
the patients on the date listed in their charts, parts of their charts were filled out as
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though he had seen them, including diagnoses and treatment plans. For each of the
three patients, the prefilled patient notes diagnosed the patient with WMD and
indicated that fluorescein angiogram and ICG tests (the tests Pon used in making
his WMD diagnoses) would be performed in both of the patient’s eyes.
Pon testified that the patient notes were filled out ahead of time likely
because his technicians were “trying to save time.” He stated that “if anything
needed to be corrected” after he actually examined the patient, he “would have
crossed it off” to “make sure everything was consistent with [his] examination.”
And he identified seven patients whose prefilled notes he had modified to replace
the diagnosis or treatment plan with one he thought was more appropriate.
But the government had a response to that. Agent Jurs testified about three
patients whose prefilled charts Pon had changed to indicate that fluorescein
angiogram and ICG tests would be done only on one eye (instead of on both eyes,
as the prefilled charts had originally indicated). For each of those three patients,
the government introduced an exhibit listing the procedures that Pon had billed
Medicare for. Those exhibits showed that Pon had billed Medicare for fluorescein
angiograms and ICGs on both eyes for each of the patients. In other words,
although Pon had modified the three patients’ prefilled charts to show that those
tests were done on only one eye, he still billed Medicare as though he had done the
tests on both eyes.
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f. The Sound of Silence
Finally, the record shows that Pon was professionally silent about his
purported treatment. He acknowledged that he didn’t know of any other doctor
anywhere who used subthreshold micropulse laser to treat WMD. Yet even though
he claimed to have discovered a “miraculous treatment” for WMD, he did
absolutely nothing to present, publish, or even talk with other doctors about what
he thought of as a cure for the leading cause of irreversible blindness in older
people. His silence spoke volumes.
g. Summary
All of this great volume of evidence we have just recounted was presented
before and was completely unrelated to and uninfluenced by the exclusion of any
of Pon’s proposed surrebuttal evidence. And it was that great volume of evidence
that the government discussed in its closing, not anything about Pon billing
Medicare for testing he did on J.L.’s blind left eye. In view of the totality of the
evidence presented, what the jury heard about billing for testing on J.L.’s left eye
was miniscule. J.L. was one of 34 witnesses who testified at trial, one of fifteen
who testified for Pon. J.L.’s testimony about the procedures done on his blind left
eye took up only fifteen pages of transcript. And Agent Jurs’ rebuttal testimony
concerning that subject, which is what Pon wanted to present surrebuttal testimony
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about, took up only eleven pages. That’s eleven out of more than 2,000 pages, or
about one half of one percent, of the testimony that was presented during the trial.
And it bears repeating that J.L. was not one of the patients listed in the
crimes charged in the indictment. As we noted, the district court instructed the
jury that Pon was “on trial only for the specific crimes charged in the indictment,”
and that it had to determine whether Pon was “guilty or not guilty of those specific
crimes.” “[T]he Supreme Court has repeatedly held that we must presume that
juries follow their instructions,” and this Court has “obediently followed” that
direction. Roy, 855 F.3d at 1186–87 (collecting cases). Following that direction,
we presume that the jury’s guilty verdict was based on its determination that Pon
was guilty as charged of fraudulently billing Medicare for laser photocoagulation
for the eleven patients listed in the indictment, not for fraudulently billing
Medicare for procedures on J.L.’s blind left eye.
For all these reasons, we have no doubt, much less a reasonable doubt, that if
the district court had not partially limited Pon’s surrebuttal evidence about J.L., the
jury would still have found Pon guilty as charged. The ruling we are assuming was
an error did not contribute to the jury’s guilty verdict. See Chapman, 386 U.S.
at 22. Any error was harmless beyond a reasonable doubt.
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5. Our Application of the Harmless Error Rule is Faithful to Precedent
Our conclusion that the partial limitation on Pon’s surrebuttal testimony was
harmless beyond a reasonable doubt is in keeping with the Supreme Court’s
understanding, expressed in Neder, that “[a] reviewing court making th[e]
harmless-error inquiry does not, as Justice Traynor put it, become in effect a
second jury to determine whether the defendant is guilty.” 527 U.S. at 19(quotation marks omitted). And it is consistent with the Court’s description of the
harmless-error determination as a task done in “typical appellate-court fashion.”
Id. Of course harmless error inquiries are typical: “We are, after all, talking about
‘the harmless error rule,’ not ‘the harmless error exception.’ Because errorless
trials are not expected, much less required, harmless error analysis is the rule, not
the exception.” Roy, 855 F.3d at 1143.
And for good reason. “The harmless error rule serves vital interests, chief of
which is conserving scarce judicial resources by avoiding pointless retrials.” Id. at
1142. And, as we have mentioned, the rule “is also essential to avoid a ‘sporting
theory of justice’ and a regime of gotcha review.” Id. (quoting Agurs, 427 U.S. at
108). The Supreme Court has recognized and relied on these important
considerations in holding — over and over again — that the harmless error rule
applies in a wide variety of circumstances. The Court has explained that the
harmless error rule “promotes public respect for the criminal process by focusing
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on the underlying fairness of the trial.” Neder, 527 U.S. at 18 (quotation marks
omitted). It has directed that when “the record developed at trial establishes guilt
beyond a reasonable doubt, the interest in fairness has been satisfied and the
judgment should be affirmed.” Rose v. Clark, 478 U.S. 570, 579 (1986). And it
has noted that “[r]eversal for error, regardless of its effect on the judgment,
encourages litigants to abuse the judicial process and bestirs the public to ridicule
it.” Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986) (quoting R. Traynor, The
Riddle of Harmless Error 50 (1970)).
The Supreme Court has instructed us that “if the defendant had counsel and
was tried by an impartial adjudicator, there is a strong presumption that any other
errors that may have occurred are subject to harmless-error analysis.” Rose, 478
U.S. at 579 (emphasis added). The Court has “consistently made clear that it is the
duty of a reviewing court to consider the trial record as a whole and to ignore
errors that are harmless, including most constitutional violations.” 10 United States
v. Hasting, 461 U.S. 499, 509 (1983) (emphasis added); accord Neder, 527 U.S. at
10
As the Court’s use of the word “duty” indicates, when the Supreme Court applies
harmless error analysis to a certain kind of error, it does not merely suggest that we do the
same — it dictates that we are bound to do so. See, e.g., Mathis v. United States, 136 S. Ct.
2243, 2254 (2016) (“[A] good rule of thumb for reading [Supreme Court] decisions is that what
they say and what they mean are one and the same . . . .”); United States v. Johnson, 921 F.3d
991, 1001 (11th Cir. 2019) (“[W]e must apply Supreme Court precedent neither narrowly nor
liberally — only faithfully.”); Prison Legal News v. Sec’y, Fla. Dep’t of Corr., 890 F.3d 954,
966 (11th Cir. 2018) (“The only Court that can properly cut back on Supreme Court decisions is
the Supreme Court itself.”).
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8 (noting that “most constitutional errors can be harmless” and only “a very limited
class of cases” evade harmless error review) (quotation marks omitted); Arizona v.
Fulminante, 499 U.S. 279, 306 (1991) (noting that “the Court has applied
harmless-error analysis to a wide range of errors and has recognized that most
constitutional errors can be harmless”); Van Arsdall, 475 U.S. at 681 (“[W]e have
repeatedly reaffirmed the principle that an otherwise valid conviction should not be
set aside if the reviewing court may confidently say, on the whole record, that the
[error was harmless].”). The Fulminante decision is the paramount example of the
breadth of the harmless error rule because it held that even where the error was the
admission of an unconstitutionally coerced confession, courts must still assess the
totality of the evidence and determine if it was harmless beyond a reasonable
doubt. See 499 U.S. at 310 (“When reviewing the erroneous admission of an
involuntary confession, the appellate court, as it does with the admission of other
forms of improperly admitted evidence, simply reviews the remainder of the
evidence against the defendant to determine whether the admission of the
confession was harmless beyond a reasonable doubt.”).
The Supreme Court has also strictly limited the power of federal courts to
circumvent a harmless-error inquiry and has rebuked courts who shirk their
harmless-error review duties. See, e.g., Bank of Nova Scotia v. United States, 487
U.S. 250, 254 (1988) (“[A] federal court may not invoke supervisory power to
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circumvent the harmless-error inquiry prescribed by Federal Rule of Criminal
Procedure 52(a).”); Hasting, 461 U.S. at 507 (stating that the harmless-error
doctrine “cannot be so lightly and casually ignored in order to chastise what the
court view[s] as prosecutorial overreaching”).
We are not saying, of course, that courts shouldn’t be careful with the
harmless error rule. Courts should be careful in the application of all rules.
Carelessness is not desirable in any field. But it is not careless to rely on
overwhelming evidence of guilt to find an error harmless. The Supreme Court
itself has done it. See, e.g., Neder, 527 U.S. at 17 (“In this situation, where a
reviewing court concludes beyond a reasonable doubt that the omitted element was
uncontested and supported by overwhelming evidence, such that the jury verdict
would have been the same absent the error, the erroneous instruction is properly
found to be harmless.”) (emphasis added); cf. Yates, 500 U.S. at 405 (describing
the Chapman harmless-error inquiry as requiring a court to “ask[] whether the
force of the evidence presumably considered by the jury in accordance with the
instructions is so overwhelming as to leave it beyond a reasonable doubt that the
verdict resting on that evidence would have been the same”) (emphasis added).
And in doing so, the Supreme Court has found errors harmless based on
overwhelming evidence without displaying special wariness.
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Our own precedent is thick with decisions finding errors, even serious errors,
harmless, oftentimes because of overwhelming evidence of guilt. See United
States v. Esquenazi, 752 F.3d 912, 931 (11th Cir. 2014), superseded by statute in
non-relevant part, 18 U.S.C. §§ 1956, 1957 (finding an error in the trial court’s jury
instructions harmless “[b]ecause overwhelming evidence support[ed] the jury’s
finding” of guilt); United States v. Jones, 601 F.3d 1247, 1264 (11th Cir. 2010)
(finding the constitutional error the district court allegedly committed harmless
because even without the error “the government’s case against [the defendant] was
strong”); United States v. Phaknikone, 605 F.3d 1099, 1109 (11th Cir. 2010)
(affirming, in spite of an error, the conviction “in the light of the overwhelming
evidence of [the defendant’s] guilt”).
We do that here.
IV. THE SENTENCE ISSUES
Pon challenges the procedural reasonableness of his sentence, arguing that
the district court improperly calculated his guidelines range by erroneously
applying an 18-level enhancement to his base offense level. The primary issue at
sentencing was the amount of loss that resulted from Pon’s health care fraud
scheme. The government said the loss amount was $11.5 million, which would
result in a 20-level enhancement. See U.S.S.G. § 2B1.1(b)(1)(K) (Nov. 2010)
(providing for a 20-level enhancement when the total loss amount is more than $7
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million but not more than $20 million). The district court, however, rejected the
government’s number and instead estimated the loss amount at $6.97 million,
which resulted in an 18-level enhancement. See id. § 2B1.1(b)(1)(J) (providing for
an 18-level enhancement when the total loss amount is more than $2.5 million but
not more than $7 million). The guidelines range those calculations produced was
121 to 151 months.
Pon contends that the district court did not base the loss amount on reliable
and specific evidence. We review the district court’s loss determination only for
clear error. United States v. Cobb, 842 F.3d 1213, 1218 (11th Cir. 2016). For that
determination to be clearly erroneous, “we must have a definite and firm
conviction that a mistake has been made.” United States v. Ford, 784 F.3d 1386,
1396 (11th Cir. 2015).
Under the guidelines, “loss is the greater of actual loss or intended loss.”
U.S.S.G. § 2B1.1, cmt. n.3(A). Although the district court “may not speculate
about the existence of facts and must base its estimate on reliable and specific
evidence, [it] is required only to make a reasonable estimate of the loss.” Ford,
784 F.3d at 1396. That is “because often the amount of loss caused by fraud is
difficult to determine accurately.” United States v. Medina, 485 F.3d 1291, 1304
(11th Cir. 2007) (quotation marks omitted). And the district court “is in a unique
position to assess the evidence and estimate the loss based upon that evidence,” so
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its “loss determination is entitled to appropriate deference.” United States v.
Campbell, 765 F.3d 1291, 1301 (11th Cir. 2014) (quoting U.S.S.G. § 2B1.1 cmt.
n.3(C)).
Contrary to what Pon says, the district court did base its loss estimate on
reliable and specific evidence. It considered a spreadsheet that Agent Jurs
prepared for the sentence hearing, which shows the total amount of money that
Medicare paid Pon for the thousands of claims he billed on behalf of the patients
Dr. Friberg determined did not have WMD. The spreadsheet lists each patient’s
name, the notes that Dr. Friberg took when he reviewed the photos and videos of
the patient’s eyes, and the number of Medicare claims that Pon had submitted for
that patient.
The district court also heard extensive testimony from Agent Jurs, who at the
time had nearly seventeen years of experience working with Medicare data. He
testified that the spreadsheet’s total loss amount was accurate because it was
calculated on a patient-by-patient basis. He also explained that for each of the
patients Dr. Friberg determined did not have WMD, he “went into the Medicare
records, pulled the claims that were specific to that [patient], went into
the diagnosis code section of the claims history, pulled the [WMD] diagnosis code
that [HHS] knew to be fraudulent and incorrect, and then totaled up only those
claims, the numbers amount billed and the amount paid for only those claims.”
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Agent Jurs also testified that the amount billed, the amount paid, and the number of
actual claims came directly from Medicare’s database.
That evidence is reliable and it is specific. And based on it, the district court
made a reasonable estimate of the loss. See Cobb, 842 F.3d at 1218–19. There
was no error in calculating the loss amount. 11
There is one other sentence issue. Pon has not raised it, but the government
has. The district court imposed concurrent 121-month terms of imprisonment on
each of Pon’s twenty counts of conviction. The government concedes that this was
error because the statutory maximum penalty for each count is only 120 months.
See 18 U.S.C. § 1347(a). We agree, and we commend the government for bringing
the error to our attention.
Section 5G1.2(d) of the guidelines provides that where, as here, there are
multiple counts of conviction,
[i]f the sentence imposed on the count carrying the highest statutory
maximum is less than the total punishment, then the sentence imposed
on one or more of the other counts shall run consecutively, but only to
the extent necessary to produce a combined sentence equal to the total
punishment. In all other respects, sentences on all counts shall run
concurrently, except to the extent otherwise required by law.
11
Relying on out-of-circuit decisions, Pon also argues that due process required the
district court to use the beyond a reasonable doubt standard instead of the preponderance of the
evidence standard in determining the loss amount. But “it is the settled law of this circuit that at
sentencing, a federal defendant’s due process rights are . . . satisfied by the preponderance of the
evidence standard.” United States v. Patti, 337 F.3d 1317, 1323 n.9 (11th Cir. 2003) (quoting
United States v. Jackson, 57 F.3d 1012, 1019 (11th Cir. 1995)).
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U.S.S.G. § 5G1.2(d). We have interpreted § 5G1.2(d) to require “multiple
sentences to be served consecutively if the sentence specified by the guidelines is
longer than the sentence authorized for any individual count of conviction.”
United States v. Pressley, 345 F.3d 1205, 1213 (11th Cir. 2003); accord United
States v. Sarras, 575 F.3d 1191, 1209 n.22 (11th Cir. 2009) (concluding that
§ 5G1.2(d) remains binding even “[]though the guidelines are now advisory”).
Those multiple sentences must, of course, run consecutively “to the extent
necessary to reach the defendant’s guidelines range.” United States v. Johnson,
451 F.3d 1239, 1243 (11th Cir. 2006).
The district court erred in imposing concurrent 121-month terms on each of
Pon’s twenty counts. While the guidelines specify a sentence of 121 to 151
months in prison, the statutory maximum for the count with the highest maximum
(of any of the twenty counts) is 120 months in prison. Because the statutory
maximum is one month less than the 121-month bottom of the guidelines range,
§ 5G1.2(d) called for at least some of the sentences to run consecutively “to the
extent necessary to reach [Pon’s] guidelines range” of 121 to 151 months in prison.
Id. The sentence structure must be modified to reach that range.
We vacate Pon’s sentences on each count and remand the case to the district
court for the limited purpose of letting it modify Pon’s sentence structure to bring
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it in line with § 5G1.2(d). We leave to the court’s discretion how it will do so.12
Because we do not set aside Pon’s “entire sentencing package” or the time he will
remain in prison, the modification does not require a resentencing hearing at which
Pon must be present. See United States v. Tamayo, 80 F.3d 1514, 1518, 1519
& n.7 (11th Cir. 1996).
V. CONCLUSION
We AFFIRM Pon’s convictions but VACATE his sentences on Counts One
through Twenty and REMAND the case for resentencing.
12
The government has argued on appeal that one of Pon’s twenty 120-month sentences
should be made to run consecutive to the other nineteen by one month. Pon has not addressed
that issue. But in any event it’s an issue for the district court to decide.
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MARTIN, Circuit Judge, concurring in part and dissenting in part:
Like the majority, I see no abuse of discretion in the District Court’s
exclusion of David Pon’s expert witness at trial. Nor do I see clear error in the
District Court’s loss amount calculation. I agree, too, that this Court’s precedent
forecloses Mr. Pon’s due process challenge to the loss amount calculation. But I
part ways with the conclusion reached in the majority opinion that any error in
denying Mr. Pon a surrebuttal was harmless. I believe the denial of a surrebuttal
violated Mr. Pon’s constitutional right to present a complete defense. And I do not
believe this error was harmless. Rather than affirm his conviction, I would give
Mr. Pon a new jury trial. I therefore dissent from the majority opinion’s ruling on
the harmlessness of any surrebuttal error.
I.
“[T]he Constitution guarantees criminal defendants a meaningful
opportunity to present a complete defense.” Holmes v. South Carolina, 547 U.S.
319, 324, 126 S. Ct. 1727, 1731 (2006) (quotation marks omitted). Whether this
right springs from the fundamentals of due process or from the Sixth Amendment,
see Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 2146 (1986), it
encompasses “the right to present the defendant’s version of the facts as well as the
prosecution’s to the jury so it may decide where the truth lies.” Washington v.
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Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 1923 (1967). This right is not boundless.
If it were, trials might be never-ending. District courts wield broad discretion to
control the mode and order of presenting evidence, both to preserve the trial’s
truth-seeking function and to avoid wasting time. See Fed. R. Evid. 611; United
States v. Jeri, 869 F.3d 1247, 1262 (11th Cir. 2017). But this “discretion does not .
. . extend to the exclusion of crucial relevant evidence necessary to establish a
valid defense.” United States v. Kelly, 888 F.2d 732, 743 (11th Cir. 1989)
(quotation marks omitted).
When the government presents rebuttal evidence in a criminal case, the right
to present a defense sometimes requires district courts to allow criminal defendants
a surrebuttal. See, e.g., United States v. Murray, 736 F.3d 652, 656–59 (2d Cir.
2013); United States v. Barnette, 211 F.3d 803, 821–24 (4th Cir. 2000); United
States v. Moody, 903 F.2d 321, 330–31 (5th Cir. 1990). “The purpose of rebuttal
evidence is to explain, repel, counteract, or disprove the evidence of the adverse
party.” United States v. Frazier, 387 F.3d 1244, 1269 (11th Cir. 2004) (en banc)
(quotation marks and alteration omitted). The same is true of a surrebuttal, except
that its function is to explain, repel, counteract, or disprove evidence presented in a
rebuttal. Though narrower in scope than a defense to the government’s case-in-
chief, surrebuttal nonetheless serves an important purpose. It allows criminal
defendants to present their version of any new issues that arise in the course of the
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government’s rebuttal. Juries sometimes cannot “decide where the truth lies” if
they hear only the government’s side of a rebuttal issue. Washington, 388 U.S. at
19, 87 S. Ct. at 1923.
I say Mr. Pon was entitled to a surrebuttal. The rule in this Circuit, as in
others, is that a “surrebuttal is merited where (1) the government’s rebuttal
testimony raises a new issue, which broadens the scope of the government’s case,
and (2) the defense’s proffered surrebuttal testimony is not tangential, but capable
of discrediting the essence of the government’s rebuttal testimony.” Moody, 903
F.2d at 331; see also United States v. Durnin, 632 F.2d 1297, 1301 n.8 (5th Cir.
Unit A 1980). 1 Under this standard, this Court’s sister circuits have ruled that the
Constitution requires a surrebuttal where the government’s rebuttal raised new,
uncharged allegations of fraud in a fraud case, Moody, 903 F.2d at 330–31,
advanced a new mental health diagnosis as evidence of future dangerousness to
support a death sentence, Barnette, 211 F.3d at 821–24, and introduced new
evidence placing a defendant more frequently in the vicinity of the crime, Murray,
736 F.3d at 658–59. Rightly so. Without a surrebuttal, the government could use
rebuttal in those cases both to meet the defense case and to make a new,
unchallenged case of, respectively, fraud, future dangerousness, and frequent
1
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), this Court adopted as
binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.
Id. at 1209.
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presence at the scene of the crime. That result would eviscerate the right to present
a defense.
Both conditions for a surrebuttal were plainly met here. The government’s
rebuttal certainly introduced a new issue about the treatment of J.L.’s left eye for
conditions wholly unrelated to wet macular degeneration.2 Mr. Pon’s proffered
surrebuttal testimony about that treatment would have discredited the essence of
the government’s rebuttal case. Mr. Pon’s right to present his defense required the
District Court to allow him to testify to his reasons for treating J.L.’s left eye.
I discern no real dispute about whether the government’s rebuttal evidence
introduced a new issue. The rebuttal evidence concerned treatment of J.L., a
patient who testified during the defense case. The substance of J.L.’s testimony
was that Mr. Pon treated J.L. for detached retinas even knowing J.L. did not have
insurance, that Pon restored vision in J.L.’s right eye but not his left, and that Pon
later diagnosed J.L. with wet macular degeneration and treated him with the laser
method. On cross examination, the government asked J.L. whether Mr. Pon had
performed any tests on his left eye. J.L. said he had not. J.L. reiterated on redirect
examination that Mr. Pon hadn’t treated his left eye. After the defense rested, the
2
Mr. Pon contends the District Court abused its discretion in allowing a rebuttal. Not so. The
District Court had discretion to allow the government to rebut the impression J.L.’s testimony
created of Mr. Pon’s altruism and to clarify J.L.’s treatment history.
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District Court allowed the government to put on rebuttal, 3 including a spreadsheet
made by the government’s investigator showing Mr. Pon billed Medicare for
treating J.L.’s left eye on more than fifty occasions between 2004 and 2015. All
told, the services added up to $19,350 worth of Medicare charges over eleven
years.
Up to the point the government put the spreadsheet into evidence, nothing
would have indicated to Mr. Pon that he had to defend his reasons for treating
J.L.’s left eye. For that matter, he would have had no reason to prove that those
treatments even happened. The government’s case-in-chief revolved around Mr.
Pon’s false diagnosis and treatment of wet macular degeneration, see Maj. Op. at
13–16, while the defense case depended on showing Mr. Pon lacked the necessary
intent to defraud Medicare. With the spreadsheet, the government injected an
entirely new, unrelated, and uncharged fraud. The clear implication of the rebuttal
evidence was that Mr. Pon fraudulently billed Medicare not only for diagnosing
and treating nonexistent wet macular degeneration, but for other procedures as
well. This broadened the scope of the government’s case. See Moody, 903 F.2d at3
The District Court’s decision to allow rebuttal seemed to rest in part on the government telling
the District Court that it was Mr. Pon who first put the matter in issue by asking about J.L.’s left
eye on redirect. The District Court sided with the government, believing the defense first asked
about treatments on J.L.’s left eye on redirect. The government’s representation and the District
Court’s belief in this regard is contradicted by the record. It was the government who first
introduced the issue of J.L.’s left eye by inquiring about it on cross-examination.
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331 (holding the government broadened its fraud case when it brought up new,
uncharged frauds in rebuttal).
Nor is there any real disputing that Mr. Pon’s proffered surrebuttal testimony
would have gone right to the heart of the government’s rebuttal. In his proffer, he
explained that he did in fact treat J.L.’s left eye and that he had a medical reason
for doing so—namely, preventing blindness in J.L.’s right eye. This evidence, if
believed, would squarely rebut the government’s contentions that Mr. Pon never
treated J.L.’s left eye but billed for it anyway. The limitation of surrebuttal on this
record violated Mr. Pon’s right to present a defense.
The government stresses that the District Court limited rather than outright
denied Mr. Pon’s surrebuttal. And the District Court did allow Mr. Pon to testify
in surrebuttal that three of the more than fifty entries were the result of a clerical
error. However, limiting Mr. Pon to this explanation may have exacerbated the
problem. By allowing Mr. Pon to explain only three of the over fifty treatments,
the jury may have been left with the impression that Pon had no explanations for
the remaining treatments. Indeed, the government’s cross-examination of Mr. Pon
played up the fact that Mr. Pon only had an explanation for “just three entries out
of two pages of entries.” I question the propriety of this argument by the
government when it knew Mr. Pon had an explanation for the other entries the
court forbade him from testifying about. Mr. Pon’s full explanation (treating the
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left eye helped prevent issues in the right eye) would have rebutted a key
contention of the government’s rebuttal case. The exclusion of this testimony
violated the right to present a defense just as surely as a complete denial of
surrebuttal would have. The limited surrebuttal allowed the government to exploit
the District Court’s ruling, creating the impression that Mr. Pon had no explanation
at all for more than forty treatments. In fact he did.
The short of it is that the District Court allowed the government to inject a
whole new allegation of fraud into the trial, then hobbled Mr. Pon’s ability to
respond to it. Mr. Pon had no chance to defend himself against allegations that he
billed Medicare for treatment he never provided on an eye that couldn’t see.
Rather than decline to decide the issue, see Maj. Op. at 37–38, I would hold the
District Court violated Mr. Pon’s constitutional right to present a defense.
II.
Not all errors require reversal. This one does.
Under the harmless error doctrine, this Court will not reverse a district
court’s constitutional trial error if it is “clear beyond a reasonable doubt that a
rational jury would have found the defendant guilty” regardless of the error. Neder
v. United States, 527 U.S. 1, 18, 119 S. Ct. 1827, 1838 (1999); see Chapman v.
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California, 386 U.S. 18, 24, 87 S. Ct. 824, 828 (1967). 4 Following the Supreme
Court’s lead, this Court has identified cases in which “the evidence of the
defendant’s guilt is ‘so overwhelming’” as “[o]ne circumstance in which courts
find constitutional errors harmless beyond a reasonable doubt.” United States v.
Willner, 795 F.3d 1297, 1322 (11th Cir. 2015) (quoting Harrington v. California,
395 U.S. 250, 254, 89 S. Ct. 1726, 1728 (1969)).
But the Supreme Court has equally cautioned us to be careful with the
harmless error doctrine. Take, for example, Neder. It raised the question of
whether the harmless error doctrine applies in cases where a district court omits an
element of the offense from the jury instructions. Neder, 527 U.S. at 8, 119 S. Ct.
at 1833. The Court held the error “is subject to harmless-error analysis.” Id. at 15,
119 S. Ct. at 1837. But it warned that courts “should not find [an] error harmless”
where the defendant contested the omitted element and “raised evidence sufficient
to support a contrary finding.” Id. at 19, 119 S. Ct. at 1838. Those circumstances
would, the Court said, preclude the reviewing court from “conclud[ing] beyond a
4
As the majority recognizes, the parties dispute which harmless error standard applies. See Maj.
Op. at 37–38. The government says Mr. Pon did not preserve his constitutional error because he
did not object on constitutional grounds below. I think the issue was sufficiently preserved. The
District Court specifically raised Mr. Pon’s Sixth Amendment right to offer an explanation when
considering whether to grant a surrebuttal. The issue seems to me to “fairly appear[] in the
record as having been raised or decided” and thus is before the Court. 19 James Wm. Moore et
al., Moore’s Federal Practice § 205.05(1) (3d ed. 2019).
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reasonable doubt that the jury verdict would have been the same absent the error.”
Id.
It is important to remember that harmless error review is no substitute for a
jury trial. The Sixth Amendment demands no less. U.S. Const. amend. VI (“In all
criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,
by an impartial jury.”). A reviewing court treads on the right to a jury trial when it
uses harmless error review to “‘become in effect a second jury to determine
whether the defendant is guilty.’” Neder, 527 U.S. at 19, 119 S. Ct. at 1839
(quoting Roger J. Traynor, The Riddle of Harmless Error 21 (Ohio State Univ.
Press 1970)). And there are practical consequences, too. Whenever we invoke
harmless error, “the deterrent force of a reversal remains unfelt by those who
caused the error.” Harry T. Edwards, To Err Is Human, But Not Always Harmless:
When Should Legal Error Be Tolerated?, 70 N.Y.U. L. Rev. 1167, 1170 (1995).
We should be particularly wary of invoking “overwhelming evidence” to
hold an error harmless. “[T]he Constitution does not trust judges to make
determinations of criminal guilt.” Neder, 527 U.S. at 32, 119 S. Ct. at 1844
(Scalia, J., concurring in part and dissenting in part) (emphasis omitted). The right
to a jury trial forbids us from doing so. This is why a federal judge may direct a
judgment of acquittal but never a judgment of guilt. See Rose v. Clark, 478 U.S.
570, 578, 106 S. Ct. 3101, 3106 (1986); Fed. R. Crim. P. 29. We owe it to
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defendants who come before us to ask ourselves always whether a rational jury
could acquit, and never whether we ourselves think the defendant guilty.
Taking up this task, I believe a rational jury might have voted to acquit Dr.
Pon. The majority opinion concludes the government’s evidence against Mr. Pon
proved beyond a reasonable doubt that “Pon had diagnosed patients with [wet
macular degeneration] when those patients clearly had never had it” and that Pon
“billed Medicare for laser photocoagulation treatment of the[se] . . . patients.”
Maj. Op. at 55. But the government had to prove more than misdiagnosis and
unnecessary treatment to win a conviction. To win, it had to show Mr. Pon
intended to defraud Medicare by submitting claims he knew “were, in fact, false.”
United States v. Crabtree, 878 F.3d 1274, 1285 (11th Cir. 2018) (quotation marks
omitted); see also Pattern Crim. Jury Instr. 11th Cir. O53 (2019). The focus on
whether there was any doubt that the patients named in the indictment had wet
macular degeneration or needed laser treatment elides this point.
Of course, I do not contend the evidence the government presented about
Mr. Pon’s diagnoses and treatments lacked probative value. The evidence of
misdiagnosis and unnecessary treatment supplied circumstantial evidence of Mr.
Pon’s intent, and enough of it to support a conviction. See United States v. Clay,
832 F.3d 1259, 1309 (11th Cir. 2016); United States v. Bradley, 644 F.3d 1213,
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1239 (11th Cir. 2011). But Mr. Pon also met the government’s case with enough
evidence to support an acquittal, had the jury so decided.
Mr. Pon spent more than three days on the stand. At the outset, he testified
he “absolutely [did] not” intend to defraud Medicare. He spent the next several
days explaining in granular detail how he diagnosed and treated patients. He said
he got the idea for his diagnostic method from a talk given by Dr. Robert Murphy,
a leading ophthalmologist. Dr. Murphy proposed using an emerging technology to
visualize “occult neovascularization”—essentially, new, difficult-to-see blood
vessels forming in the eye. Mr. Pon said he thought the technique was “the
greatest thing since sliced bread, because this technology was going to allow direct
visualization of those tiny, tiny little blood vessels.” Mr. Pon said he believed
based on Dr. Murphy’s presentation that he could detect wet macular degeneration
in its earliest stages using a cutting-edge technique.
As for treatment, Mr. Pon said he got some ideas about that from Dr.
Murphy’s presentation, too. Dr. Murphy reported using a laser to create a “thermal
gradient”—a heat differential—in the eye to close the feeder vessels that caused
wet macular degeneration. This technique did not cause scarring, as do traditional
laser techniques for treating wet macular degeneration. Dr. Pon also thought this
was “the greatest thing since sliced bread.”
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Mr. Pon bought the equipment he believed he needed to put Dr. Murphy’s
diagnostic and treatment techniques into practice. He later upgraded the
equipment with a purchase he explained he would not have made if his intent had
been to defraud. Mr. Pon began treating patients with it and said he found lower
power settings provided better results than Dr. Murphy’s thermal-gradient method.
And the jury didn’t have to take Mr. Pon’s word for it. Mr. Pon called
twelve of his patients and the spouse of another to testify that the lasers improved
their (or her spouse’s) vision. One witness, who has advanced public health
degrees and background as a nurse, testified she learned from Mr. Pon to identify
feeder vessels on a diagnostic monitor during Pon’s treatment of her husband, who
Pon diagnosed with wet macular degeneration. Another, a laser nurse, likewise
testified she could see the problem areas Mr. Pon identified and that her vision
improved with laser treatments. The government agreed some of these thirteen
patients actually had wet macular degeneration. It disagreed as to others. But for
all the patients who testified for Mr. Pon, their testimony was uniform that Mr.
Pon’s laser treatment helped.
With this evidence before it, a rational jury could acquit Mr. Pon. This
hypothetical acquitting jury could do so without any belief that: (1) Mr. Pon indeed
diagnosed his patients with wet macular degeneration no one else could see or (2)
treated it using miraculous new technologies in ways no other doctor could. Yet
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these are the two issues the majority opinion focuses on. To acquit, a jury would
have to conclude only that Mr. Pon believed in good faith he could do these things.
His own testimony and that of his patients, some of whom even the government
admits had wet macular degeneration, would suffice for a rational jury to believe
Mr. Pon acted in good faith. If a patient who couldn’t read a menu before says he
can after a doctor gave him a laser treatment, reasonable people could agree the
doctor believed the treatment worked. I do not dispute that reasonable jurors could
also convict Mr. Pon. But the government’s evidence of intent, as distinct from the
evidence that Mr. Pon misdiagnosed and unnecessarily treated his patients, is not
so overwhelming that this Court should affirm the judgment of guilt.
The case for acquittal would have been even stronger if Mr. Pon had the
chance to give his full surrebuttal. The government’s rebuttal evidence was highly
prejudicial, or “very damning,” as the District Court saw it. In a case all about Mr.
Pon’s intent, the government’s rebuttal certainly created the impression that Mr.
Pon either 1) billed Medicare for treatments he never provided, or 2) billed
Medicare for dozens of useless treatments on a blind eye. And then the
government nailed Mr. Pon during his surrebuttal, emphasizing how limited an
explanation he gave, just three entries, in the face of a spreadsheet showing years
of treatments. The government implied Mr. Pon had nothing to say about the other
entries, when of course it knew he had an explanation. The jury may well have
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taken this as essentially a confession to an unrelated fraud. A “defendant’s own
confession is probably the most probative and damaging evidence that can be
admitted against him.” Arizona v. Fulminante, 499 U.S. 279, 296, 111 S. Ct. 1246,
1257 (1991) (quotation marks omitted).
Between the spreadsheet and the limited surrebuttal, so far as the jury knew
Mr. Pon had no explanation at all for treating a blind eye. And so far as we know,
the jury went back to their deliberations thinking Mr. Pon was a crook because of
it. A rational jury allowed to hear the case with Mr. Pon’s explanation could
render a different verdict than this one did. That being the case, I must say this
error was harmful. I believe Mr. Pon should get a new trial.
III.
I believe a second jury should have decided Mr. Pon’s guilt or innocence.
For this reason, I dissent from the majority opinion’s holding that any error in Mr.
Pon’s case was harmless.
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