IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-50027

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

ANTHONY FRANCIS VALDEZ,

Defendant - Appellant

Appeal from the United States District Court 

for the Western District of Texas

Before HIGGINBOTHAM, OWEN, and GRAVES, Circuit Judges.

JAMES E. GRAVES, JR., Circuit Judge:

The defendant Anthony Valdez, a psychiatrist, challenges multiple

aspects of his trial and sentence in this money laundering and health care fraud

case. He argues that there is insufficient evidence to support his conviction for

money laundering; that the district court erred in applying various

enhancements to his sentence; that the jury should have been retained to decide

issues relating to the forfeiture of his property; that the court erred in admitting

evidence of medical malpractice; and that the cumulative effect of multiple

errors requires reversal. We affirm the conviction and sentence, including the

judgment of forfeiture. 

United States Court of Appeals

Fifth Circuit

F I L E D

August 12, 2013

Lyle W. Cayce

Clerk

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I. Factual and Procedural Background

Anthony Valdez operated two pain management clinics under the name

of International Institute of Pain Management, located in El Paso and San

Antonio, Texas. The indictment alleged that Valdez provided patients with

prolotherapy, a “medical procedure purported to strengthen lax ligaments or to

relieve pain by injecting an irritant. . . such as dextrose, glycerin, calcium and

phenol, around a painful joint to provoke a biological response that results in the

growth of new cells.” However, Valdez billed federal and state health insurance

programs Medicare,Medicaid and Tricare (collectively called “the Programs”)for

facet joint injections, which temporarily eliminate pain by injecting anesthetics

and/or steroids into facet joints in the vertebrae, and peripheral nerve injections,

which temporarily eliminate pain by injecting anesthetics near a nerve. 

Prolotherapy is not reimbursable by the Programs, whereas facet joint and

peripheral nerve injections are reimbursable. The indictment alleged that

Valdez submitted insurance claims to the Programs under the codes for facet

joint and peripheral nerve injections rather than the prolotherapy injections

actually performed. The indictment further alleged that Valdez billed for “Level

4” office visits, which entail extended examination and evaluation, that did not

occur, and that he trained and instructed his employees to perform and

fraudulently bill for the same services. The indictment also alleged that Valdez

engaged in financial transactions involving the proceeds of health care fraud

with the intent to promote unlawful activity and to conceal the proceeds of his

health care fraud, and engaged in monetary transactionswith criminally derived

funds of $10,000 or more. The indictment included a forfeiture demand. 

Valdez was tried by a jury and convicted of one count of conspiracy to

commit health care fraud, 18 U.S.C. §§ 1349 and 1347 (Count 1); six counts of

health care fraud relating to six specific patients, id. § 1347 (Counts 2-7); six

counts of false statements relating to health care matters relating to six specific

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insurance claims, id. §1035 (Counts 8-13); one count of money laundering, id. §

1956(a)(1) (Count 14); and two counts of engaging in monetary transactions in

property derived from unlawful activity, id. § 1957 (Counts 15-16). 

Trialtestimony from patients and expert doctors supported the allegations

that Valdez actually performed prolotherapy when he billed the Programs for

facet joint or peripheral nerve injections. The evidence included testimony that

during a Texas Department of Insurance medical review, Valdez told Dr.

Suzanne Novak that he did prolotherapy, and during that same review told Dr.

Howard Smith that he only performed prolotherapy but called it “reconstructive

anesthetic blocks” in order to bill insurance carriers who would not cover

prolotherapy. Trial evidence, including testimony from employees, patients, and

doctors, including doctors who reviewed video of Valdez performing procedures,

indicated that Valdez’s medical practices were consistent with prolotherapy and

inconsistent with facet joint or peripheral nerve injections, including that he

injected too much solution to be performing facet joint injections, repeatedly

injected patients which would not be advisable if the injections were facet joint

or peripheral nerve injections, did not have a fluoroscope (a type of x-ray

machine typically used for facet injections), did not have steroids that are

typically injected in facet joint injections but did have solutions consistent with

prolotherapy, used a patient encounter form that included a section for

prolotherapy but not facet joint or peripheral nerve injections, and advertised

prolotherapy but not facet joint or peripheral injections. The evidence also

supported the allegations that Valdez trained his employees to perform

prolotherapy but not facet joint or peripheral nerve injections, including

testimony from Rose Chavez, office manager at the El Paso clinic, who stated

that prolotherapy was performed at both clinics, but not facet joint or peripheral

nerve injections. Chavez also testified that she spoke to Valdez about the billing

for prolotherapy after reading some material from a pain management seminar

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that stated that prolotherapy was not reimbursable by the Programs. Chavez

testified that she mentioned the billing information to Valdez, but Valdez

instructed Chavez to disregard it. 

With regard to money laundering, at trial the government presented

Emmanuel Gomez, an FBI agent who analyzed Valdez’s financial records. Agent

Gomez testified about Valdez’s receipt and spending of reimbursements from the

Programs over the course of the five-year period. The evidence showed that the

proceeds of the fraudulent billing scheme were directly deposited from the

Programs into two of Valdez’s bank accounts. Based on Agent Gomez’s analysis

of the financial records, Valdez wrote checks from these accounts to pay

employee salaries and loans, to make investments, to purchase property, to

make deposits into multiple investment accounts, and to purchase multiple

vehicles classified as business transportation. 

At sentencing, the district court adopted the pre-sentence investigation

report (“PSR”), calculated a guidelines range of life, overruled all of Valdez’s

objections to the PSR, and imposed the following sentence: 

Counts 1-7: 120 months, 18 U.S.C. §§ 1347, 1349 

Count 8: 60 months, 18 U.S.C. § 1035 (to run consecutive)

Counts 9-13: 60 months, 18 U.S.C. § 1035

Count 14: 240 months, 18 U.S.C. 1956(a)(1)

Counts 15-16: 120 months, 18 U.S.C. § 1957

The district court sentenced Valdez to the statutory maximum for all offenses,

and ordered that the 60-month sentence for Count 8 run consecutive with the

other sentences, for a total of 300 months of confinement. 

The court also imposed three years of supervised release on all counts,

ordered $13,356,645.44 restitution to federal and state insurance programs and

private insurers, and ordered a mandatory assessment of $1600. The court also

ordered forfeiture of Valdez’s property, as requested by the government,

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including the contents of multiple bank accounts, real property, the proceeds

from the sale of real property, four vehicles, and a money judgment of over nine

million dollars. 

II. Discussion

A. Money Laundering Conviction

Valdez argues that the evidence was insufficient to support his conviction

on one count of money laundering under 18 U.S.C. § 1956(a)(1). “We apply de

novo review to a challenge to the sufficiency of the evidence, viewing the

evidence in the light most favorable to the verdict and upholding the verdict if,

but only if, a rational juror could have found each element of the offense beyond

a reasonable doubt.” United States v. Pennell, 409 F.3d 240, 243 (5th Cir. 2005).

Section 1956(a)(1) requires the government to prove the following

elements: (1) Valdez conducted a financial transaction; (2) which he knew

involved proceeds arising from a specified unlawful activity; (3) with the intent

to promote or further those illegal actions (“the promotion prong”); or (4) with

the knowledge that the transaction’s design was to conceal or disguise the nature

or source of the illegal proceeds (“the concealment prong”). See 18 U.S.C. §

1956(a)(1)(A)(i), (B)(i); Pennell, 409 F.3d at 243. The two prongs are alternative

ways to commit the offense; since Valdez was charged with both prongs in one

count, the government must establish guilt under one prong or the other. See,

e.g., United States v. Meshack, 225 F.3d 556, 580 n.23 (5th Cir. 2000), amended

on reh’g in part, 244 F.3d 367 (5th Cir. 2001); United States v. Seher, 562 F.3d

1344, 1361-62 (11th Cir. 2009) (reviewing cases from multiple circuits). Valdez

argues that there is insufficient evidence supporting either prong and that the

district court plainly erred by not giving a specific unanimity jury charge

regarding money laundering. We find that although there is insufficient

evidence of concealment money laundering, there is sufficient evidence to

sustain Valdez’s conviction for money laundering based on promotion of

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unlawful activity, and that it was not plain error for the court not to give a

specific unanimity instruction.

1. Concealment Money Laundering

The concealment prong of § 1956(a)(1) requires the government to

establish that the dirty money transactions are “designed. . . to conceal or

disguise the nature, the location, the source, the ownership, or the control” of the

money involved. 18 U.S.C. § 1956(a)(1)(B)(i); see United States v. Brown, 553

F.3d 768, 786 (5th Cir. 2008). To establish the design element, the government

must demonstrate that the charged transactions had the purpose, not merely the

effect, of “mak[ing] it more difficult for the government to trace and demonstrate

the nature of th[e] funds.” Brown, 553 F.3d at 787 (citing Cuellar v. United

States, 553 U.S. 550 (2008)). We have explained that: “In one sense, the

acquisition of any asset with the proceeds of illegal activity conceals those

proceeds by converting them into a different and more legitimate-appearing

form. But the requirement that the transaction be designed to conceal implies

that more than this trivial motivation to conceal must be proved.” United States

v. Willey, 57 F.3d 1374, 1384 (5th Cir. 1995) (citations omitted). Here, the

government relied on Valdez’s transfers of funds from his operating accounts to

investment accounts, and on Valdez’s purchases of property and

investments—all done openly, in his name—as proof of concealment money

laundering. None of the transactions pointed to by the government show a

specific intent to conceal the nature, location, source or ownership of the funds

used. Valdez did not use false names, third parties, or any particularly

complicated financial maneuvers, which are usual hallmarks of an intent to

conceal. See United States v. Burns, 162 F.3d 840, 848-49 (5th Cir. 1998); Willey,

57 F.3d at 1385 (noting that “a showing of simply spending money in one’s own

name will generally not support a money laundering conviction”). There is

virtually no evidence of a design to conceal, beyond the “trivial motivation”

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shown by the acquiring of assets with the proceeds of criminal activity, which

Willey instructs is insufficient to establish the necessary intent. Willey, 57 F.3d

at 1384. We thus find that there is insufficient evidence of concealment money

laundering, and turn to the promotion prong of the money laundering conviction.

2. Promotion Money Laundering 

To establish money laundering under the promotion prong of § 1956(a)(1),

the government must show that the dirty money transaction was conducted with

the specific intent to promote the carrying on of the health care fraud. 18 U.S.C.

§ 1956(a)(1)(A); see United States v. Brown, 186 F.3d 661, 670 (5th Cir. 1999). 

Here, the government has characterized two types of transactions as promotion

of unlawful activity: (1) Valdez’s use of dirty money to purchase vehicles

characterized as “business transportation,” including vans used to transport

patients to and from his pain management clinic; and (2) Valdez’s use of dirty

money to make irregular payments and “loans” to his employees. Because we

find that there is sufficient evidence to support the money laundering conviction

based on the payments to employees, it is unnecessary for us to address the

purchase of the vehicles. 

The government established that Valdez made payments to employees

who participated in the fraudulent scheme, whom Valdez had trained or

instructed to perform procedures and fraudulently bill the Programs for

procedures not performed or office visits that did not occur. The government

relies on United States v. Warshak, a case in which the Sixth Circuit noted that

“it is . . . true that a number of cases support the proposition that payments to

employees may constitute sufficient evidence of an intentto promote an unlawful

activity.” 631 F.3d 266, 318 (6th Cir. 2010) (citing United States v. Alerre, 430

F.3d 681, 693 (4th Cir. 2005) (“[T]he promotion element [was] satisfied when a

defendant paid his subordinate employee for being involved in an unlawful

scheme, because such payments compensated the employee for his illegal

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activities and encouraged his continued participation.”)). Valdez argues that

these payments to employees were simply payroll payments and thus legitimate

business expenses, which cannot constitute promotion money laundering. See 

United States v. Miles, 360 F.3d 472, 477 (5th Cir. 2004); Brown, 186 F.3d at

671. However, we need not go so far as to hold that normal payroll payments

to employees of a business that is not wholly illegitimate constitute promotion

of illegal activity. The record shows that many of the “payroll” payments Valdez

made to employees were in fact very irregular, classified not as salary but as

“loans,” undercutting Valdez’s argument that they were normal business

expenses rather than payments to secure loyalty or cooperation in the

fraudulent scheme. Further, there is a clear nexus between the payments and

the fraud. The record reflects that Valdez made the payments to subordinates

responsible for carrying out essential elements of the fraud: performing

prolotherapy injections and submitting fraudulent claims predicated on those

injections. At trial, Rose Chavez testified that she was responsible for preparing

the fraudulent claims to Medicare. Chavez also testified that Luis Cordova

performed prolotherapy injections that she billed to Medicare. Additionally, two

of Valdez’s former patients testified that they received prolotherapy injections

from Dr. Benson Chee, Irma Sanchez, Ricardo Rios, Luis Cordova, James Shea,

and Alejandro Rios. All of these employees, in addition to several others,

received payments from Valdez, including irregular payments characterized not

as payroll but as “loans.” The evidence also establishes that at least one of the

employees who received the payments—office manager Rose Chavez—knew that

Valdez’s billing practices were fraudulent. Indeed, Chavez testified that she

continued to knowingly submit fraudulent claims because she knew that by not

saying anything, she would continue to get paid. Viewing this evidence in the

light most favorable to the verdict, we conclude that a jury could draw the

reasonable inference that these employees received payments to encourage their

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continued participation in the fraudulent scheme, and thus that the payments

promoted the ongoing healthcare fraud. We therefore affirm Valdez’s conviction

of money laundering. 

3. Unanimity Instruction

Valdez also argues that the district court erred by not giving the jury a

specific unanimity charge regarding the money laundering count. Though a

general unanimity charge was given, Valdez argues that the district court was

required to instruct the jury that it had to unanimously agree that he was

guilty of money laundering based on promotion, concealment, or both, and that

a general verdict on that count is not sufficient. Valdez did not object to the

instruction; thus, we review only for plain error. See United States v. Alford,

999 F.2d 818, 824 (5th Cir. 1993). In Alford, a previous case in which the

defendant made a similar argument, this court held that “The district court’s

failure to include a unanimity instruction in this case does not rise to the level

of plain error.” Id. Valdez argues that Alford conflicts with Richardson v.

United States, which held that a jury in a “continuing criminal enterprise” case

is required to agree unanimously not only that the accused committed a

continuing series of violations, but also which specific violations made up the

continuing series. See 526 U.S. 813, 815 (1999) (interpreting 21 U.S.C. §

848(a)). This court has already considered and rejected the argument that

Richardson alters the holding of Alford. See Meshack, 225 F.3d at 579-80. 

Valdez’s argument is foreclosed. The district court did not plainly err by not

giving a specific unanimity instruction on the money laundering count.

B. Sentencing Enhancements

Valdez also argues that the district court miscalculated the applicable

sentencing range under the 2010 U.S. Sentencing Guidelines Manual by

erroneously applying multiple sentencing enhancements. The specific

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enhancements he challenges are:(1)the 2-level vulnerable victim enhancement,

§ 3A1.1(b)(1); (2) the 2-level multiple vulnerable victims enhancement, §

3A1.1(b)(2); (3) the 2-level abuse of trust enhancement, § 3B1.3; (4) the 2-level

mass-marketing enhancement, § 2B1.1(b)(2)(A)(ii); (5) the 2-level sophisticated

means enhancement, § 2B1.1(b)(9)(C), and; (6) the district court’s calculation of

loss under § 2B1.1(b)(1), which increased his offense level by 22 levels,

§2B1.1(b)(1)(L). 

We review sentences for reasonableness under an abuse of discretion

standard. See United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.

2008). First, we determine whether the district court committed any procedural

error, such as improperly calculating the Guidelines range. Id. If there is no

procedural error or the error is harmless, we may review the substantive

reasonableness of the sentence. Id. Valdez argues only that the district court

procedurally erred by miscalculating the applicable Guidelines range. Because

Valdez objected to all the enhancements that he now challenges on appeal, we

review the district court’s interpretation and application of the Guidelines de

novo, and review findings of fact for clear error. Cisneros-Gutierrez, 517 F.3d at

764 (quotation omitted). “There is no clear error if the district court’s finding

is plausible in light of the record as a whole.” Id.

1. Vulnerable Victim and Multiple Vulnerable Victims

The district court added two levels to Valdez’s offense level based on §

3A1.1(b)(1) which applies “If the defendant knew or should have known that a

victim of the offense was a vulnerable victim,” and added two additional levels

based on § 3A1.1(b)(2), which applies if “the offense involved a large number of

vulnerable victims.” A“vulnerable victim” is a person “who is a victim of the

offense of conviction” and any relevant conduct, as defined by § 1B1.3, “who is

unusually vulnerable due to age, physical or mental condition, or who is

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otherwise particularly susceptible to the criminal conduct.” § 3A1.1(b) cmt. n.

2. For purposes of this enhancement, “victim” is defined broadly. Specifically,

“the 2–level adjustment of §3A1.1(b)(1) applies not only to victims ofthe offense

of conviction, but also to victims of any relevant conduct for which the

Guidelines make the defendant accountable.” United States v. Salahmand, 651

F.3d 21, 26 (D.C. Cir. 2011); see also United States v. Moon, 513 F.3d 527, 541

(6th Cir. 2008); United States v. Zats, 298 F.3d 182, 186-87 (3d Cir. 2002). The

district court applied both enhancements because a number of Valdez’s patients

were elderly Medicare recipients and low-income Medicaid recipients. 

On appeal, Valdez does not argue that his patients were not “vulnerable,”

but argues that the primary victim of the offense was the federal government

and that no patients were victims at all because the government did not prove

that any of them were harmed medically or financially.

1

This court has “previously recognized that a physician’s patients can be

victimized by a fraudulent billing scheme directed at insurers or other health

care providers.” United States v. Sidhu, 130 F.3d 644, 655 (5th Cir. 1997). In

applying this enhancement to similar cases involving health care fraud, we

have drawn a distinction between fraud schemes that “benefitted” patients, see

United States v. Gieger, 190 F.3d 661, 664 (5th Cir. 1999) (finding that patients

were not victims where scheme to submit false claims for ambulance services

provided them with a free ride to the hospital), and cases “in which patients

suffered harm or at least potential harm from the fraudulent scheme,” id.; see

United States v. Burgos, 137 F.3d 841, 844 (5th Cir. 1998) (finding that patients

were victims where they “were often admitted to the hospital needlessly or their

stays in the hospital were extended beyond what was necessary”); Sidhu, 130

1 Valdez is clearly correct that the United States government is not a vulnerable victim.

United States v. Gieger, 190 F.3d 661, 665 (5th Cir. 1999).

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F.3d at 655 (patients were victims where they “were often debilitated by pain

or depression, and easily became addicted to the treatment proffered by [the

defendant] to support his fraud”); United States v. Bachynsky, 949 F.2d 722, 735

(5th Cir. 1991) (patients were victims where unnecessary treatment was

frequently ineffective and in some cases harmful to the patients).

Although Valdez argues that his patients benefitted from his treatment,

the district court’s finding that at least some of his patients were victims of his

relevant conduct is “plausible in light of the record as a whole.”

Cisneros-Gutierrez, 517 F.3d at 764. At trial, Dr. Smith and Dr. Novak testified

that Valdez risked causing numbness, weakness, pain and possibly permanent

nerve damage to his patients. Both doctors referenced specific patients,

including one who received approximately 357 injections, and one who received

500 injections in a three-year period. The pre-sentence investigation report

showed that multiple patients reported that employees of Valdez’s clinic told

them they had to have the injections in order to have their prescriptions for

pain medication filled. Valdez treated his Medicare- and Medicaid-dependent

patients, who were seeking treatment for pain, “during the commission” of his

fraudulent billing, when he required patients to receive the injections and then

billed the Programs for those injections. See Salahmand, 651 F.3d at 27 (noting

that defendant treated patients “during the commission” of identity theft

offense when he was posing as a doctor). Valdez has not shown that the district

court clearly erred in finding that Valdez’s treatment exposed patients to risks

of harm, and sometimes to medical treatment they did not want, and that pain

management patients who needed medication were vulnerable to his conduct

of requiring they receive the injections so he could fraudulently bill for them.

2

2 The government also points to evidence concerning Valdez’s prescription of controlled

substances, including to patients who were addicted or who had attempted suicide. We do not

rely on any evidence concerning prescription drugs in affirming application of the

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We find that the district court correctly applied the enhancement based on the

vulnerability of Valdez’s Medicare and Medicaid pain management patients,

who it construed as victims of Valdez’s relevant underlying conduct. 

Lastly, the high number of injection procedures reflected in Valdez’s

patient files and billing records, and the evidence adduced at trial that

indicated that Valdez did not perform facet joint injections or peripheral nerve

injections but actually performed prolotherapy in many, possibly even all,

instances in which he billed for injections, demonstrates that the district court’s

finding that a large number of pain management patients were vulnerable

victims of Valdez’s offenses is plausible in light of the record as a whole. The

district court did not err in applying the additional 2-level “multiple vulnerable

victims” enhancement. 

2. Abuse of Trust

Valdez next challenges the application of a 2-level enhancement under §

3B.1.3 for abusing a position of trust. This section provides an enhancement for

defendants who have “abused a position of public or private trust . . . in a

manner that significantly facilitated the commission or concealment of the

offense.” § 3B1.3. Valdez relies on precedentfrom the 11th Circuit to argue that

a Medicare-funded care provider, as a matter of law, does not occupy a position

of trust vis-a-vis Medicare. See United States v. Mills, 138 F.3d 928, 941 (11th

Cir. 1998). However, as Valdez acknowledges, this argument is foreclosed by

circuit precedent. See United States v. Miller, 607 F.3d 144, 149 (5th Cir. 2010)

(holding that owner of a medical supply store who fraudulently billed Medicare

occupied position of trust vis-a-vis Medicare); United States v. Iloani, 143 F.3d

921, 922-23 (5th Cir. 1998) (holding that chiropractor occupies a position of

enhancement in this case.

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trust with regard to the insurance companies that he bills). The district court

did not err in applying the § 3B1.3 abuse of trust enhancement.

3. Mass-Marketing

Valdez next challenges the district court’s imposition of a 2-level massmarketing enhancement under § 2B1.1(b)(2)(A)(ii). The Guidelines define

mass-marketing as a “plan, program, promotion, or campaign that is conducted

through solicitation by telephone, mail, the Internet, or other means to induce

a large number of persons to . . . purchase goods or services. . . .” § 2B1.1 cmt.

n. 4(A); see United States v. Magnuson, 307 F.3d 333, 335 (5th Cir. 2002). The

district court applied the enhancement based on a flier that Valdez sent via

mail to 16,626 El Paso residents in December 2006 and four television

commercials shown on local news from April 2008 to December 2009, all

advertising his International Institute ofPain Management and “reconstructive

therapy,” which was prolotherapy. Valdez relies on United States v. Miller, 588

F.3d 560, 562, 568 (8th Cir. 2009) to argue that the enhancement does not apply

where the mass-marketing is not targeted at the specific victims of the fraud,

which he argues were the Programs. This argument is foreclosed by circuit

precedent. In Isiwele, this court rejected the Eighth Circuit’s reasoning in

Miller and upheld the application of the mass-marketing enhancement to a

defendant who had recruited beneficiaries in a scheme to submit fraudulent

bills to Medicare for power wheelchairs. See United States v. Isiwele, 635 F.3d

196, 204-05 (5th Cir. 2011). Likewise, Valdez solicited patients to receive

injections, for which he then fraudulently billed the Programs. The district

court did not err in applying the 2-level §2B1.1(b)(2)(A)(ii) mass-marketing

enhancement. 

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4. Sophisticated Means

Valdez next challenges the application of the 2-level “sophisticated

means” enhancement under § 2B1.1(b)(9)(C). Sophisticated means are defined

as “especially complex or especially intricate offense conduct pertaining to the

execution or concealment of an offense. . . Conduct such as hiding assets or

transactions, or both, through the use of fictitious entities, corporate shells, or

offshore financial accounts also ordinarily indicates sophisticated means.” § 2

B1.1 cmt. n. 8(B). The district court applied this enhancement because, based

on the FBI’s analysis of Valdez’s bank records, it concluded that Valdez was

attempting to hide his assets by depositing proceeds from the fraudulent billing

scheme into his investment accounts. 

Valdez argues that his transfers from his operating accounts to his

investment accounts do not constitute sophisticated means. We agree. Valdez

used no false names, fictitious entities, shell companies or complicated financial

transactions, or any other particularly sophisticated means to hide or conceal

the assets. We have affirmed the application of the sophisticated means

enhancement in cases involving some method that made it more difficult for the

offense to be detected, even if that method was not by itself particularly

sophisticated. For example, in Clements, we upheld application of the

enhancement where the defendant repeatedly converted received funds into

multiple cashier’s checks made out to himself, which he then deposited into his

wife’s separate bank account, because his actions “obscure[d] the link between

the money and . . . himself,” and “undeniably made it more difficult for the IRS

to detect his evasion.” United States v. Clements, 73 F.3d 1330, 1340 (5th Cir.

1996); see also United States v. Conner, 537 F.3d 480, 492 (5th Cir. 2008)

(traveling to 23 different states to obtain information about credit accounts and

using a fictitious name and business to conduct fraudulent transactions

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involved sophisticated means); United States v. Wright, 496 F.3d 371, 379 (5th

Cir. 2007) (depositing a check into an account and then using money to

purchase a cashier’s check in another name involved sophisticated means);

United States v. Charroux, 3 F.3d 827, 837 (5th Cir. 1993) (participation in land

flip scheme to purchase property for inflated price involved sophisticated means

where defendants “structured elaborate transactions to hide their revenues”).

Here, however, the sole reason given for applying this enhancement is

that Valdez took money directly deposited from Medicare into his operating

account, which was in his name, and moved it into his investment accounts,

which were also in his name. Even though this court reviews the factual

finding that Valdez used sophisticated means for clear error, see Clements, 73

F.3d at 1340, there is no indication that this open and transparent direct

deposit and movement of funds involved sophisticated means or could have

made it more difficult for his offense of health care fraud to be detected. We

hold that the district court erred in applying the 2-level § 2B1.1(b)(9)(C)

sophisticated means enhancement.

5. Loss Calculation

Valdez next challenges the district court’s loss calculation. The amount

of loss resulting from fraud is a specific offense characteristic that increases the

base offense level under the Guidelines. See § 2B1.1(b)(1). “Loss” is defined as

“the greater of actual loss or intended loss.” § 2B1.1 cmt. n. 3(A). “Actual loss”

includes “the reasonably foreseeable pecuniary harm that resulted from the

offense.” Id. cmt. n. 3(A)(i). “Intended loss” means “the pecuniary harm that

was intended to result from the offense,” and includes “intended pecuniary

harm that would have been impossible or unlikely to occur (e.g., as in a

government sting operation, or an insurance fraud in which the claim exceeded

the insured value).” Id. cmt. n.3(A)(ii). We review the district court’s method of

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determining loss de novo, while we review background factual findings for clear

error. Isiwele, 635 F.3d at 202.

Here, the district court calculated the amount of intended loss at over

forty-four million dollars based on the gross amount of the fraudulent claims

Valdez submitted to the Programs. Valdez argues that because he never

expected full reimbursement, the loss intended by his actions was significantly

less than this amount. The intended loss calculation raised his offense level by

22. §2B1.1(b)(1)(L). 

In health care fraud cases, this court has explained that “our case law

requires the government [to] prove by a preponderance of the evidence that the

defendant had the subjective intent to cause the loss that is used to calculate

his offense level.” Isiwele, 635 F.3d at 203 (quoting United States v. Sanders,

343 F.3d 511, 527 (5th Cir. 2003)). In the health care fraud context, 

the amount fraudulently billed to Medicare/Medicaid is prima facie

evidence of the amount of loss [the defendant] intended to cause,

but the amount billed does not constitute conclusive evidence of

intended loss; the parties may introduce additional evidence to

suggest that the amount billed either exaggerates or understates

the billing party’s intent.

Id. (internal quotation marks and citations omitted); see also United States v.

Singh, 390 F.3d 168, 193-94 (2d Cir. 2004) (remanding for re-sentencing to give

the defendant an opportunity to show that the total amount he expected to

receive was less than the amount he actually billed to Medicare/Medicaid). 

Here, Valdez objected to the loss calculation at sentencing and argued to

the district court that the evidence showed that he did not subjectively intend

to cause the loss of the full amount that he billed the Programs. He argued that

for years he consistently billed a high amount, knowing that he would only be

reimbursed for a fraction of what was billed. Valdez points to trial testimony

by Rose Chavez, his office manager, who testified for the government. Her

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statements were introduced via an undercover recording with Chavez, who

stated on the recording that: “Those are our rates, which are usually based on

three times on [sic] what Medicare covers, that’s pretty much standard

practice.” Valdez argues that this evidence rebutted the finding that he

subjectively intended to cause the loss of the full amount he billed the

Programs. The district court did not reference this evidence in making the loss

calculation. 

Based on the clear guidance in Isiwele, we find that it was error for the

district court to calculate the intended loss without considering the evidence in

the record that rebutted the prima facie evidence of intended loss. However, we

note that even if we assume there was error in the intended loss calculation,

and use the amount Valdez actually received from the program to calculate

loss—which comes to around thirteen million dollars—Valdez would still receive

a 20-level enhancement. See § 2B1.1(b)(1)(K). 

6. Harmfulness of Sentencing Errors

We have found that the district court erred in applying the 2-level

sophisticated means enhancement, and in applying a 22-level increase based

on loss calculation without considering the evidence that tended to show that

Valdez did not have the subjective intent to cause the loss of the full amount

that he billed the Programs. We now consider whether those errors were

harmless. See United States v. Ibarra-Luna, 628 F.3d 712, 713-14 (5th Cir.

2010) (holding that an error in the calculation of the applicable Guidelines

range is subject to a harmless error analysis). “[T]he harmless error doctrine

applies only if the proponent of the sentence convincingly demonstrates both (1)

that the district court would have imposed the same sentence had it not made

the error, and (2) that it would have done so for the same reasons it gave at the

prior sentencing.” Id. at 714. To satisfy that high burden, there must be

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“evidence in the record that will convince us that the district court had a

particular sentence in mind and would have imposed it, notwithstanding the

error.” Id. at 718 (quoting United States v. Huskey, 137 F.3d 283, 289 (5th Cir.

1998)). 

Here, the court sentenced Valdez to 300 months. The original offense

level was 43, which together with his criminal history category I, set forth a

Guidelines range of life. However, even accounting for the district court’s

erroneous application of the sophisticated means enhancement and the loss

calculation, the offense level would still be 41.

3 The Guidelines range applicable

to an offense level of 41, in criminal history category I, is 324-405 months. 

Thus, the 300 month sentence is within the adjusted Guidelines range.

That the sentence would remain within the adjusted Guidelines range is

insufficient to indicate harmlessness; “the crux of the harmless-error inquiry is

whether the district court would have imposed the same sentence, not whether

the district court could have imposed the same sentence.” United States v.

Delgado-Martinez, 564 F.3d 750, 753 (5th Cir. 2009). There are two additional

factors present in this case which clearly indicate “(1) that the district court

would have imposed the same sentence had it not made the error, and (2) that

it would have done so for the same reasons it gave at the prior sentencing.” 

3 For the health care fraud group of offenses: Base offense level of 6, § 2B1.1(a)(2), plus

20 levels for the calculation of loss, § 2B1.1(b)(1)(K); 2 levels for mass marketing, §

1B1.1(b)(2)(a); 2 levels for reckless risk of death or serious bodily injury (not challenged on

appeal), § 2B1.1(b)(13)(A); 2 levels for vulnerable victim, § 3A1.1(b)(1); 2 levels for multiple

vulnerable victims, § 3A1.1(b)(2); 2 levels for abuse of trust, § 3B1.1; and 4 levels for an

aggravated role in the offense (not challenged on appeal), § 3B1.1(a). Total offense level: 40.

For the money laundering group of offenses: Base offense level of 30, § 2S1.1(a)(2)

(adjusted upwards for specific offense characteristics, including 20 levels for loss calculation,

2 levels for mass marketing, and 2 levels for reckless risk of death or serious bodily injury);

plus 1 level for violation of § 1957 (not challenged on appeal),§ 2S1.1(b)(2)(A); 2 levels for

vulnerable victim, § 3A1.1(b)(1); 2 levels for multiple vulnerable victims, § 3A1.1(b)(2); 2 levels

for abuse of trust, § 3B1.1; and 4 levels for an aggravated role in the offense (not challenged

on appeal), § 3B1.1(a). Total offense level: 41. The group with the highest level is used.

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Ibarra-Luna, 628 F.3d at 714. First, the district court imposed consecutive

sentences for factually related offenses. This court has recognized that “the

imposition of consecutive sentences may, under some circumstances,

demonstrate” that a Guidelines error was harmless. See United States v.

Woods, 440 F.3d 255, 260 (5th Cir. 2006); United States v. Garza, 429 F.3d 165,

170 (5th Cir. 2005) (identifying imposition of consecutive sentences as one of

only two circumstances in which this court has found a Booker sentencing error

to be harmless). Where one of the consecutive sentences is for “entirely

unrelated conduct,” this court ascribes no motivation to the district court “other

than adherence to the default rule that totally unrelated crimes should

ordinarily receive distinct punishment.” Woods, 440 F.3d at 260. Here, by

contrast, the district court imposed multiple concurrent sentences and one

consecutive sentence on one of the counts of health care fraud. The conduct was

all part of the same fraudulent scheme and all the charges were factually

related offenses. Thus, the court’s “conscious decision notto award a concurrent

sentence,” United States v. Prones, 145 Fed. App’x 481, 482 (5th Cir.2005), cert.

granted, judgment vacated on other grounds, 549 U.S. 1093 (2006), shows that

the court purposefully fashioned a sentence it thought was fair in the

circumstances, and weighs in favor of finding that the sentencing errors were

harmless, id.; cf. Woods, 440 F.3d at 260. The second factor tending to

demonstrate that the sentencing errors were harmless is the district court’s

statement that it would impose the same 300-month sentence on remand. At

the sentencing hearing, the district court stated:

THE COURT: I’ll inform you right now, Mr. Torres [defense counsel

at sentencing], if you take up an appeal and the appeal comes back

for re-sentencing, I will fashion a sentence that will meet the

300-month sentence that I’ve given him. If I miscalculated the

guideline range and it comes back because of that, there’s still a lot

to work with.

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This unequivocal statement certainly constitutes “evidence in the record that

will convince us that the district court had a particular sentence in mind and

would have imposed it, notwithstanding the error.” Ibarra-Luna, 628 F.3d at

718. Though Valdez argues that this statement indicates that the judge was

biased, it is merely a characterization of the discretion the district court had in

fashioning this sentence. Where the sentence remains within the adjusted

Guidelines range, this statement is clear evidence that the district court “would

have imposed the same sentence” absent the guidelines calculation errors, not

simply that it “could have. . . .” Delgado-Martinez, 564 F.3d at 753. 

We therefore hold that although the district court erred with respect to

the sophisticated means and loss calculation enhancements, those errors were

harmless, and affirm the sentence. 

C. Forfeiture

Valdez next argues that it was error for the district court not to inquire

whether either party requested that the jury make the forfeiture determination

with regard to specific property, as provided by Federal Rule of Criminal

Procedure 32.2(b), before the jury began deliberations. The district court issued

an order of forfeiture, which imposed a money judgment against Valdez in the

amount of $9,741,649, and ordered him to forfeit to the United States all of his

right, title, and interest in two real properties, four vehicles, and the contents

of several bank and investment accounts. Because Valdez failed to object, we

review this claim for plain error pursuant to Rule 52.

4 Fed. Rule Crim. P. 52(b). 

On plain error review, Valdez “bears the burden of proving (1) error, (2) that is

plain, and (3) that affects his substantial rights.” Johnson, 520 U.S. at 466-67;

4 Contrary to Valdez’s argument that the errors implicating the interpretation of a Rule

of Criminal Procedure are somehow immune from the rule requiring preservation, even “the

seriousness of the error claimed does not remove consideration of it from the ambit of the

Federal Rules of Criminal Procedure.” Johnson v. United States, 520 U.S. 461, 466 (1997).

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Puckett v. United States, 556 U.S. 129, 135 (2009). If the first three prongs are

satisfied, the court has “the discretion to remedy the error . . . if the error

seriously affect[s] the fairness, integrity or public reputation of judicial

proceedings.” Puckett, 556 U.S. at 135.

Criminal forfeiture is a part of sentencing imposed after conviction; it is

not a substantive element of the offense. See Libretti v. United States, 516 U.S.

29, 41 (1995). There is no constitutional right to a jury determination of

forfeiture. Id. at 49. However, Rule 32.2(b) provides that “if the indictment or

information states that the government is seeking forfeiture, the court must

determine before the jury begins deliberating whether either party requests

that the jury be retained to determine the forfeitability of specific property if it

returns a guilty verdict.” Fed. R. Crim. Pro. 32.2(b)(5)(A). We assume that the

district court clearly erred in not determining whether either party requested

that the jury determine forfeiture, given the clarity of the instructions in Rule

32.2. Id.; see United States v. Marquez, 685 F.3d 501, 509-10 (5th Cir. 2012). 

With regard to the effect on his substantial rights, Valdez argues that since the

district court imposed the full forfeiture sought by the government, there is a

reasonable probability that a jury would have imposed less forfeiture. However,

the government produced trial evidence showing that Valdez kept the proceeds

of his health care fraud in his bank and investment accounts, and used the

proceeds of the fraud to purchase specific property, vehicles, and investments.

Regardless, even assuming that Valdez could show that the failure to submit

forfeiture to the jury affected his substantial rights, we find that the error does

not meet the final requirement of the plain error standard. See Johnson, 520

U.S. at 469-70. Given that there is no constitutional right to a jury

determination of forfeiture, that there is sufficient evidence tying the forfeited

property to the proceeds of Valdez’s health care fraud, and that during the trial

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Valdez never indicated that he wished the jury to determine forfeiture, we

decline to vacate the forfeiture order on plain error review.

D. Admission of Medical Malpractice Evidence

Valdez next argues that the district court erred in admitting testimony

of physician witnesses who referred to Valdez’s prolotherapy procedures as

substandard or not medically necessary. He argues the testimony was not

relevant pursuant to Federal Rule of Evidence 402 and that the prejudicial

effect outweighed any probative value pursuant to Federal Rule of Evidence

403. He did not object to the testimony at trial, and thus review is for plain

error. See United States v. Gonzalez-Rodriguez, 621 F.3d 354, 362 (5th Cir.

2010).

The specific testimony challenged by Valdez includes: (1) two doctors’

testimony that the standard of medical care required using fluoroscopy in facet

jointinjections, and that Valdez did not use a fluoroscope in his practice; (2) one

doctor’s testimony that Valdez’s practice of not obtaining consent forms before

performing facet joint injections would violate the medical standard of care; (3)

two doctors’ testimony that it would not be “medically reasonable” or “medically

accepted” to give a patient the number of facet joint injections that Valdez

administered or to give them as frequently as he did; (4) one doctor’s testimony

that the standard of care required that medications with expired dates be

thrown away, after the government had introduced photographs taken from

Valdez’s office which appeared to show expired medications, and; (5) a pain

management doctor’s testimony that, after conducting a peer review of Valdez’s

practice, that “I found it [the medical care provided by Valdez] substandard.” 

The district court gave the jury a limiting instruction regarding any

testimony of medical malpractice. That instruction provided:

You have heard evidence of acts of the defendant which may be

similar to those charged in the superseding indictment, but which

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were committed on other occasions. You also heard opinion

testimony alleging medical malpractice by the defendant. You must

not consider any of this evidence in deciding if the defendant

committed the acts charged in the superseding indictment. 

Valdez did not object to this instruction. This limiting instruction concerning

medical malpractice testimony was added by the district court. 

We hold that there was no error in admitting the testimony here, much

less plain error. The opinion testimony concerning medical malpractice was

elicited in response to Valdez’s defense, which was that he was actually

performing facetjoint injections as defined by the Medicare guidelines. Because

Valdez contended that all the procedures which the government argued were

prolotherapy were actually facet joint injections, it was necessary for expert

doctors for the government to explain the difference between facet joint

injections and prolotherapy,including the testimony that if Valdez were actually

performing facet joint injections as he contended, then they were not correctly

performed. The medical testimony as a whole focused on a core factual

dispute—whether Valdez was performing prolotherapy or facet joint

injections—and the testimony that Valdez now complains about was largely

ancillary to that purpose. The judge gave a limiting instruction on his own

initiative. A limiting instruction minimizes the danger of undue prejudice. See,

e.g., United States v. Cooks, 589 F.3d 173, 183 (5th Cir. 2009). While some of the

government’s questioning went beyond the purpose of distinguishing

prolotherapy from facet joint injections, such as the questioning about whether

expired medications should be thrown out or questions about whether Valdez’s

practice was substandard in general, those questions were limited in the context

of the medical testimony as a whole, and the danger of any potential resulting

prejudice was reduced by the limiting instruction. For these reasons, Valdez has

not proven that the introduction of this testimony was error. 

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E. Cumulative Error

Valdez next argues that cumulative errors during his trial necessitate

reversal. See United States v. Delgado, 672 F.3d 320, 343-44 (5th Cir. 2012)

(describing the cumulative error doctrine). The only errors that we have

found—erroneous application of two sentencing enhancements and the failure

to inquire whether either party requested that the jury determine

forfeiture—relate to sentencing and thus clearly do not require reversal of the

convictions.

Valdez also argues that four times, government witnesses testified to a

legal conclusion that improper billing was fraud, or thatin the witness’s opinion,

Valdez had committed fraud. Federal Rule of Evidence 704(a) prohibits a

witness from offering an opinion on the legal conclusion that a defendant had

the mental state that constitutes an element of the offense; however, the

defendant must make a timely objection to preserve the error if it occurs. See

United States v. Setser, 568 F.3d 482, 495 (5th Cir. 2009). Valdez objected only

to one instance of this testimony. Further, the district court instructed the jury

that it should not accept the opinions of experts, but must make their own

judgments about the evidence. Given the brevity of the challenged comments

and the overall weight of the incriminating evidence against Valdez, any error

was harmless and does not justify reversal. See Setser, 568 F.3d at 495.

III. Conclusion

For the foregoing reasons, we AFFIRM the conviction and sentence.5

5 Valdez also requested reassignment on remand, arguing that the district court showed

bias against him. We need not reach this issue because we do not remand the case. However,

we note that we find no evidence of bias in this case.

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