United States v. Scott , 112 F. App'x 965 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 19, 2004
Charles R. Fulbruge III
Clerk
No. 03-20199
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BEVERLY SCOTT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-686-1
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Beverly Scott appeals from a jury-trial conviction for
conspiracy (count one), theft (count two), and health care fraud
(count three). Scott argues that the evidence was insufficient
to support her conviction for health care fraud, that the trial
court erred with respect to its jury instructions, that the trial
court erred in assigning her a leadership role enhancement, and
that she received ineffective assistance of counsel at trial.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 03-20199
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Sufficiency of the evidence
Scott argues that the evidence was insufficient to support
her conviction for health care fraud because under the section of
the indictment entitled “execution of the scheme to defraud,” the
only detailed acts alleged occurred on July 10, 2000, and that
there was no evidence presented at trial regarding the July 10,
2000, transaction between Scott and a co-conspirator, William
Carrillo. Alternatively, Scott argues that on July 10, 2000, she
was acting as a Government agent during the transaction with
Carrillo and did not possess the requisite criminal intent.
In deciding the sufficiency of the evidence, this court
determines whether, viewing the evidence and the inferences that
may be drawn from it in the light most favorable to the verdict,
a rational jury could have found the essential elements of the
offense beyond a reasonable doubt. United States v. Charroux,
3 F.3d 827, 830-31 (5th Cir. 1993).
The court’s jury instruction did not track the indictment
with respect to count three. The “execution to defraud” sections
were redacted from the indictment as read to the jury.
Specifically, the court instructed the jury that “[b]eginning on
an unknown date in 1995 and continuing on or until on or about
July 10, 2000,” Scott had devised a scheme to defraud a health
care program by removing drugs from the Veterans Affairs Medical
Center (VAMC) pharmacy for transfer and sale to a private
pharmacy in exchange for cash. Testimony at trial revealed that
No. 03-20199
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Scott had engaged in health care fraud at some time between 1995
and July 10, 2000. See United States v. Hernandez, 962 F.2d
1152, 1157 (5th Cir. 1992); United States v. Grapp, 653 F.2d 189,
195 (5th Cir. 1981). Accordingly, the evidence was sufficient to
sustain Scott’s conviction for health care fraud.
Jury instructions
Scott argues that the trial court constructively amended the
indictment with respect to the health care fraud count by
instructing the jury that a scheme to defraud included “a scheme
to deprive another of the intangible right to honest services.”
Scott concedes that she did not object to the court’s jury
instruction. Therefore, review is for plain error. See United
States v. Daniels, 252 F.3d 411, 414 & n.8 (5th Cir. 2001).
Scott is correct that count three (health care fraud) of the
indictment did not include the definition of “scheme to defraud”
defined as depriving another of the intangible right of honest
services under 18 U.S.C. § 1346. Nevertheless, Scott was on
notice via the charge for health care fraud that her offense was
in connection with the “delivery of health care benefits, items
and services” in violation of 18 U.S.C. § 1347. Accordingly,
Scott cannot establish plain error with respect to this issue.
Scott also argues that the trial court erred in refusing her
submission of a supplemental jury instruction on abandonment.
No. 03-20199
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This Court reviews the district court’s refusal to give a
requested jury instruction for an abuse of discretion. U.S. v.
Sellers, 926 F.2d 410, 414 (5th Cir. 1991).
The record reflects that Scott proceeded on the theory that
she had removed drugs from the VAMC that were of no value because
they were either expired or had been discarded. The jury
rejected Scott’s theory and found that the drugs were worth a
value of $1000 and that she had committed theft. The jury thus
determined that Scott possessed the requisite criminal intent for
theft. Accordingly, no abuse of discretion occurred in the
district court’s rejection of Scott’s abandonment instruction.
See Sellers, 926 F.2d at 414.
Leadership role enhancement
Scott argues that the trial court erred in assigning a four-
level enhancement for her leadership role in the offense. Scott
has also filed a supplemental letter with the court arguing that
her leadership role enhancement as well as an 11-point adjustment
for the value of the drugs and a two-point adjustment for more
than minimal planning violated Blakely v. Washington, 124 S. Ct.
2531 (2004). Scott correctly concedes that this argument is
foreclosed by this court’s holding in United States v. Pineiro,
377 F.3d 464 (5th Cir. 2004), petition for cert. filed, (July 14,
2004), but seeks to preserve the issue.
A district court’s finding that a defendant had an
aggravating role is reviewed for clear error. See United States
No. 03-20199
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v. Valencia, 44 F.3d 269, 272 (5th Cir. 1995). “A factual
finding is not clearly erroneous if it is plausible in light of
the record read as a whole.” Id.At sentencing, the Government reiterated that, although
there was not sufficient evidence to prosecute the individuals,
Scott had orchestrated the delivery of the drugs by the named
participants. See U.S.S.G. § 3B1.1(a), comment. (n.1). Scott
presented no specific evidence to rebut this argument at
sentencing or the findings contained in the presentence report.
See United States v. Puig-Infante, 19 F.3d 929, 943 (5th Cir.
1994); United States v. Mir, 919 F.2d 940, 943 (5th Cir. 1990).
Accordingly, the trial court’s leadership enhancement was not
clearly erroneous. See Valencia, 44 F.3d at 272.
Ineffective assistance of trial counsel
Scott argues that trial counsel was ineffective for failing
to request supplemental voir dire after a break in the trial that
lasted more than six weeks. Scott’s arguments are entirely
speculative as is evident by her hypothetical scenarios given in
her reply brief. Accordingly, because the record is not
developed as to this issue, we decline to review the issue in
this appeal. See United States v. Bounds, 943 F.2d 541, 544
(5th Cir. 1991). Scott’s conviction and sentence are AFFIRMED.