United States v. Vanessa Cattanea , 425 F. App'x 577 ( 2011 )

FILED
NOT FOR PUBLICATION MAR 29 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30158
Plaintiff - Appellee, D.C. No. 4:09-cr-00002-BLW-2
v.
MEMORANDUM *
VANESSA CATTANEA,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted February 10, 2011
Seattle, Washington
Before: B. FLETCHER, PAEZ, and IKUTA, Circuit Judges.
Appellant Vanessa Cattanea (“Cattanea”) seeks reversal of her jury
conviction for Medicaid fraud under 18 U.S.C. § 1347. She argues that the district
court committed several errors over the course of the trial, including: (1) failing to
grant her motion to sever her trial from that of her co-defendant; (2) erroneously
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
instructing the jury on the element of intent; and (3) denying her motion for
judgment of acquittal based on insufficiency of the evidence. She also argues that
the prosecution made improper and prejudicial comments in its closing argument.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
First, Cattanea challenges the district court’s denial of her motion to sever.
We review the district court’s ruling for abuse of discretion. United States v.
Mayfield, 189 F.3d 895, 899 (9th Cir. 1999). A party moving for severance based
on the need for a co-defendant’s testimony must show that he or she would call the
co-defendant to testify, that the co-defendant would testify, and that the testimony
would be favorable to the moving party. United States v. Hernandez, 952 F.2d
1110, 1115 (9th Cir. 1991); United States v. Castro, 887 F.2d 988, 998 (9th Cir.
1989). Here, the district court denied Cattanea’s motion based on its conclusion
that she “failed to make any showing that [her co-defendant] would in fact testify
on her behalf if severance was granted.” The record reflects that Cattanea failed to
make any statement or offer any evidence as to the likelihood that Hamilton, her
co-defendant, would in fact testify at her separate trial. The district court,
therefore, did not abuse its discretion. See Castro, 887 F.2d at 998 (upholding a
trial court’s denial of a motion to sever because the movant failed to make the
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foundational showing that his co-defendant “offered or agreed to testify” on his
behalf).
Cattanea argues that the district court failed to consider the effect of United
States v. Cuozzo, 962 F.2d 945, 950 (9th Cir. 1992). Cuozzo, however, in no way
calls the holding of Castro into question, nor does it expressly alter its test as to the
movant’s initial burden. This argument is therefore unavailing.
Second, Cattanea argues that the district court erred in its instructions to the
jury as to “intent to defraud.” We review the district court’s failure to instruct that
good faith constituted a complete defense to the crime de novo, United States v.
Perdomo-Espana, 522 F.3d 983, 986 (9th Cir. 2008), and its instruction that the
jury could conclude that the defendant acted with the requisite intent if the
government proved that she “acted with reckless indifference to the truth or falsity
of statements” for plain error, United States v. Barajas-Montiel, 185 F.3d 947, 953
(9th Cir. 1999).
As to the first issue, the district court committed no error because “a
criminal defendant has ‘no right’ to any good faith instruction when the jury has
been adequately instructed with regard to the intent required to be found guilty of
the crime charged, notwithstanding the normal rules governing ‘theory of defense’
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requests.” United States v. Shipsey, 363 F.3d 962, 967 (9th Cir. 2004) (citation
omitted).
As to the second objection, in United States v. Dearing, 504 F.3d 897, 903
(9th Cir. 2007), we upheld the use of reckless indifference language in an
instruction on intent to defraud as an element of 18 U.S.C. § 1347, the Medicaid
fraud statute at issue here. Thus, the district court did not commit plain error in
instructing that the jury could find specific intent if the government proved
Cattanea “acted with reckless indifference to the truth or falsity of statements.”
Third, Cattanea argues that the district court erred in denying her motion for
acquittal due to the insufficiency of the evidence from which a jury could find
beyond a reasonable doubt that she acted with intent to defraud a health care
benefit program. We review the sufficiency of the evidence de novo, United States
v. LeVeque, 283 F.3d 1098, 1102 (9th Cir. 2002), and consider whether, “after
viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (citing Johnson
v. Louisiana, 406 U.S. 356, 362 (1972)).
In the light most favorable to the prosecution, the evidence presented at trial
would allow a rational trier of fact to conclude that the government proved the
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essential elements of the crime of Medicaid fraud, including intent, beyond a
reasonable doubt. The trial testimony reflects that Cattanea instructed her
employees to generate notes that inaccurately reflected both where the provision of
services took place and who provided the services. In addition, the testimony
revealed that Cattanea made misleading statements to a Medicaid auditor. In light
of Cattanea’s apparent knowledge of the Medicaid regulations, a rational fact
finder could infer that Cattanea had the specific intent to defraud Medicaid in order
to maximize profits at Teton.
Cattanea’s fourth and final argument is that the prosecutor made improper
and prejudicial remarks to the jury, precluding a fair trial. Specifically, Cattanea
points to the government’s statements to the jury that Cattanea reached an
agreement with her co-defendant Hamilton to maximize Teton’s billings in
exchange for her promotion to treatment director of all three Teton facilities.
We review the question of whether the government made improper closing
arguments to which the defendant did not object for plain error. United States v.
Brown, 327 F.3d 867, 871 (9th Cir. 2003). The government’s statements were not
improper because, although they were unsupported by direct evidence, an inference
could be drawn from the evidence that Cattanea was rewarded for her acquiescence
in Teton’s policy of maximizing billing. Further, even if the government’s
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statements were improper, they were not prejudicial because the jury was explicitly
instructed that statements made by the prosecution in its closing argument are not
evidence.
AFFIRMED.
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