IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-60455

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

ALBERT DIAZ, M.D., 

 Defendant - Appellant

Appeals from the United States District Court

for the Southern District of Mississippi

USDC No. 2:17-CR-31-1

Before STEWART, Chief Judge, and JONES and OWEN, Circuit Judges.

PER CURIAM:*

Following a five-day jury trial, Albert Diaz was convicted on various 

counts of healthcare fraud, distribution of controlled substances, and 

obstruction of justice. He was sentenced to 42 months of imprisonment and 

ordered to pay more than $3 million in restitution. He now appeals his 

convictions and the restitution order. We affirm.

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

September 13, 2019

Lyle W. Cayce

Clerk

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I. Factual & Procedural Background

In October 2014, Gerald Schaar, a pharmaceutical sales representative 

for Advantage Pharmacy1 (“Advantage”), approached Albert Diaz, a practicing 

physician with clinics in Biloxi and Ocean Springs, Mississippi, and asked Diaz

to write prescriptions for specific compounded medications. The prescriptions 

would be written to patients whose personal identification information was

provided to Schaar by Randy Thomley, an employee of a marketing company 

for Advantage. Diaz agreed to write the prescriptions with the knowledge that 

Schaar would receive a commission when each prescription claim was paid by 

the health care benefit administrator. The primary benefit administrator was

Tricare, a Department of Defense health care program providing coverage to 

members of the military and their families. From October 2014 through 

September 2015, Diaz wrote multiple prescriptions that resulted in the filing 

of 573 false claims, totaling more than $2.3 million in payments from Tricare

and over $1 million in payments from private insurance companies. The 

fraudulent prescriptions Diaz wrote included prescriptions for an ointment 

containing ketamine, a Schedule III controlled substance used for pain.

In December 2015, Diaz received an audit letter from Tricare, inquiring 

about specific claims related to the prescriptions he had written for Schaar. 

After receiving the letter, Diaz asked Schaar to arrange for him to see the 

patients who had received the prescriptions he had written so that he could 

create a medical chart showing that he had examined them. In January 2016, 

Diaz and Schaar traveled to Hattiesburg, Mississippi on a Saturday to meet 

with Thomley and make house calls to see the patients. Diaz then created 

 

1 Advantage was a compounding pharmacy that operated out of Hattiesburg, 

Mississippi.

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medical charts with either backdated or omitted dates to conceal the fact that 

he had not examined the patients before writing the prescriptions.2

Over the course of 2016 and 2017, Diaz made multiple false statements 

to federal agents during the investigation of the offense to conceal his 

involvement. In September 2016 and January 2017, investigators recorded 

two conversations between Diaz and Schaar, who was cooperating with 

investigators. In the recordings Diaz admitted that he had prescribed the 

compounded medications without first seeing the patients and had 

subsequently engaged in a coverup to escape culpability.

In October 2017, a federal grand jury charged Diaz with multiple counts 

of health care and wire fraud, controlled substance (i.e., ketamine) distribution 

and dispensing, and obstruction of justice, including conspiracy offenses. The 

week before trial, Diaz sought a third continuance on grounds that the 

government had belatedly disclosed discovery and impeachment material

related to Schaar. The district court denied the motion and the case proceeded 

to trial.

Following a five-day jury trial, Diaz was convicted of conspiracy to 

commit health care and wire fraud, substantive wire fraud, conspiracy to 

distribute a controlled substance, distribution of controlled substances, 

conspiracy to obstruct justice by falsifying medical records, and multiple 

substantive obstruction of justice offenses. Although Diaz had been on pretrial 

release, he was detained following his conviction, and the district court denied 

his request for bail pending sentencing. The district court also denied Diaz’s 

motions for a new trial and for bond pending appeal. 

 

2 Prior to creating the backdated charts, Diaz had provided blank charts to Schaar, 

which Schaar gave to Thomley to gather the information contained in the medical files 

submitted in support of the false claims. 

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On October 16, 2018, four months after Diaz had lodged his appeal with 

this court, the district court, on receiving the required financial information 

from Diaz, amended its judgment to include restitution in the amount of 

$3,374,409.16. Two months later in December 2018, Diaz moved this court for 

release pending appeal which was denied on January 28, 2019. The record 

indicates that Diaz did not file a second notice of appeal after the district court 

amended its judgment to include restitution. 

Diaz advances seven issues on appeal. We address each in turn.

II. Discussion

A. Sufficiency of the Evidence 

Diaz challenges his convictions for conspiracy to commit health care fraud or 

wire fraud, in violation of 18 U.S.C. § 1349, and substantive wire fraud, in 

violation of 18 U.S.C. §§ 1343 and 2. He also challenges his convictions for 

obstruction of justice and conspiracy to distribute a controlled substance 

outside the scope of medical practice and not for a legitimate medical purpose.

“We review preserved challenges to the sufficiency of the evidence de 

novo, but we are ‘highly deferential to the verdict.’” United States v. Scott, 892 

F.3d 791, 796 (5th Cir. 2018) (citation omitted). “When reviewing the 

sufficiency of the evidence, we view all evidence, whether circumstantial or 

direct, in the light most favorable to the government, with all reasonable 

inferences and credibility choices to be made in support of the jury’s verdict.” 

Id. It is the province of the jury to “weigh any conflicting evidence and to 

evaluate the credibility of witnesses.” Id. at 797. We consider the evidence 

“sufficient to support a conviction if ‘any rational trier of fact could have found 

the essential elements of the crime beyond a reasonable doubt.’” Id. (emphasis 

in original) (citation omitted). Our question is whether “the jury’s verdict was 

reasonable, not whether we believe it to be correct.” Id.

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We have reviewed the voluminous record in this case and conclude that

sufficient evidence was presented at trial to support Diaz’s multiple

convictions. Id. The jury’s verdict was reasonable. Id.

B. Constructive Amendment

We conduct a de novo review of Diaz’s claim that the government 

constructively amended the indictment. See United States v. Thompson, 647 

F.3d 180, 183 (5th Cir. 2011). “[T]he two primary functions of an indictment 

are that it (1) provides notice of the crime for which the defendant has been 

charged, allowing him the opportunity to prepare a defense; and (2) interposes 

the public into the charging decision, such that a defendant is not subject to 

jeopardy for a crime alleged only by the prosecution,” meaning that he is 

protected against subsequent prosecution for the same offense. United States 

v. Robinson, 367 F.3d 278, 287 (5th Cir. 2004) (citations omitted). “A 

constructive amendment occurs when the government changes its theory 

during trial so as to urge the jury to convict on a basis broader than that 

charged in the indictment, or when the government is allowed to prove an 

essential element of the crime on an alternative basis permitted by the statute 

but not charged in the indictment.” United States v. Girod, 646 F.3d 304, 316 

(5th Cir. 2011) (internal quotation marks and citation omitted). “Not all 

variations between allegation and proof, however, rise to the level of a 

constructive amendment and thus violate this rule.” Thompson, 647 F.3d at 

184. 

Although Diaz argues otherwise, nothing in the evidence presented at 

trial or in the government’s closing argument modified an essential element of 

the offenses with which he was charged. On the health care and wire fraud 

charges, the indictment alleged that Diaz and others devised a scheme to 

defraud Tricare for financial gain. The evidence established at trial, and the 

government argued, that Diaz, Schaar, Thomley, and others agreed to issue

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medically unnecessary compounded medication prescriptions to Tricare 

beneficiaries and submit those prescriptions for reimbursement to Tricare. The 

government’s statement that Diaz was not compensated for his participation 

in the scheme did not modify or expand the basis on which the jury could 

convict him. Rather, it clarified that Diaz’s personal financial gain was not 

required to prove the charge that he conspired with others to commit health 

care fraud—a correct statement of the applicable law. See United States v.

Ganji, 880 F.3d 760, 767 (5th Cir. 2018) (“To support a conviction under 18 

U.S.C. § 1349, the Government must prove beyond a reasonable doubt that: 

‘(1) two or more persons made an agreement to commit health care fraud; (2) 

that the defendant knew the unlawful purpose of the agreement; and (3) that 

the defendant joined in the agreement . . . with the intent to further the 

unlawful purpose.’” (citation omitted)).

On the obstruction of justice charges, the indictment alleged that Diaz 

falsified and backdated patient records and submitted them to Tricare to cover 

up the fact that he authorized the compounded prescriptions without 

examining any of the Tricare beneficiaries. The evidence established at trial, 

and the government argued, that Diaz coordinated with Schaar and Thomley 

to drive to Hattiesburg to examine the Tricare beneficiaries for the purpose of 

creating falsified and backdated patients records in response to the Tricare

audit. To the extent, if any, that the government relied at trial on Diaz’s

statements to investigators that he had lied and falsified the records to cover 

up his participation in the scheme, this did not expand or modify the factual 

basis upon which the jury was permitted to convict on the obstruction of justice 

charges. Diaz’s claims that the government constructively amended the 

indictment fail. See Girod, 646 F.3d at 316.

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C. Jury Bias

This court reviews a district court’s denial of a motion for a new trial on 

the basis of juror bias for abuse of discretion. See United States v. Thomas, 627 

F.3d 146, 161 (5th Cir. 2010). The Sixth Amendment guarantees criminal 

defendants the right to trial by an impartial jury. See Solis v. Cockrell, 342 

F.3d 392, 395 (5th Cir. 2003). “A defendant may show either actual or implied 

juror bias.” Thomas, 627 F.3d at 161. Actual bias can be shown through 

admission or factual proof and “exists when a juror fails to answer a material 

question accurately because he is biased.” Id. (citation omitted). “Juror bias 

may also be implied in ‘extreme circumstances,’ as in ‘when the juror is 

employed by the prosecuting agency, is a close relative of a participant in the 

trial, or is somehow involved in the transaction that is the subject of the trial.’”

Id. (citation omitted).

After the jury instruction conference on the final day of trial, a Court 

Security Officer informed the district court’s staff that Juror 1 was upset and 

crying in the bathroom because she believed she had been threatened by Diaz’s

family. In response, the district court sequestered Juror 1 from the rest of the 

jury and began an inquiry. She ultimately stated that nobody actually

threatened her and that she had told the other jurors that she felt 

“uncomfortable going out of the courthouse” but she denied attributing her 

discomfort to Diaz. The district court then excused Juror 1 from jury service. 

To determine whether the jury had been tainted, the district court 

examined each juror under oath and gave counsel for both sides an opportunity 

to question each of them. In denying Diaz’s motion for a new trial, the district 

court stated that after interviewing each individual juror, he determined that

every other juror believed that Juror 1 was paranoid 

and overreacted, and none of them actually believed 

that [Diaz] or anyone associated with him had followed 

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her, spoken to her, or done anything to intimidate her. 

None of the remaining jurors attributed Juror 1’s 

discomfort to [Diaz] or anyone associated with him, 

and each one affirmed under oath that these events 

had no effect on their ability to be fair to each side and 

render an impartial verdict.

The district court further declined to impute bias to the jury noting that “[t]his 

case is wholly dissimilar to ones where the Fifth Circuit has imputed implied 

bias to a jury. None of the remaining jurors were employees of the prosecuting

agency, close relatives of anyone associated with the trial, or involved in the 

criminal transactions that were the subject of the trial.” 

Diaz argues that Juror 1’s statements to the other jurors created implied 

jury bias against him and violated his right to due process and trial by an 

impartial jury. We disagree. The district court took adequate steps to ensure 

that the jury that rendered the verdict in Diaz’s case was not impliedly biased 

against him. The district court ensured that Juror 1’s statements and 

subsequent dismissal from the jury did not taint the remaining jurors or 

jeopardize his right to a fair trial. We agree with the government that, while 

the remaining jurors’ reassurances that they could be fair to both sides is “not 

controll[ing]” under Brooks v. Dretke, 418 F.3d 430, 434 (5th Cir. 2005), it does 

support the conclusion that this is not an “extreme situation” warranting a 

finding of implied juror bias. See Thomas, 627 F.3d at 161 (“Juror bias may 

also be implied in ‘extreme circumstances,’ as in ‘when the juror is employed 

by the prosecuting agency, is a close relative of a participant in the trial, or is 

somehow involved in the transaction that is the subject of the trial.’”). The

district court did not abuse its discretion in denying his motion for a new trial 

on this issue. See id. at 161.

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D. Recordings

As noted, prior to Diaz’s trial, Schaar pled guilty to conspiring to commit 

health care fraud and agreed to cooperate with the government. At the 

government’s request, Schaar recorded two conversations with Diaz at his

clinic in Biloxi. The first recorded conversation between Schaar and Diaz took 

place in September 2016. In that conversation, Diaz discussed authorizing

compounded medication prescriptions without examining the patients first 

and falsifying patient records to cover it up. In that recording, Diaz asks 

Schaar, “So what’s your attorney saying?” Schaar also asks Diaz if he had 

talked to his own attorney and Diaz replies that his attorney “hadn’t heard 

anything” but did not go into further detail about his communications with his 

attorney. The second recording took place in Diaz’s office in late January 2017 

after Diaz asked Schaar to meet with him. During this conversation, Diaz 

showed Schaar a text that he had received from his own attorney stating that 

IRS investigators wanted to interview Diaz about the Tricare audit. Diaz told 

Schaar, “I’m not gonna say that you filled out the [prescription] forms.” Diaz 

further states, “You see cause I’m not, I’m not supposed to sign a prescription 

unless I’ve seen and examined the patient. And I signed the prescription 

without seeing them.” Diaz then states to Schaar, “Don’t volunteer [Thomley’s 

name]. Don’t say anything, just answer the questions and have an attorney 

cause if you don’t. Cause that will keep you out of trouble.” The district court 

denied Diaz’s motions seeking to exclude the recordings. The district court also 

denied Diaz’s request for an evidentiary hearing before trial and his 

subsequent motion for a new trial. 

Diaz argues that the government violated his Sixth Amendment right to 

counsel by directing Schaar to record conversations he had with Diaz while 

Diaz was represented by counsel. He also argues that, because he is alleging 

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“prosecutorial misconduct” or “government misconduct,” the district court 

erred in not holding an evidentiary hearing on the matter.

This court reviews constitutional claims, like Diaz’s Sixth Amendment 

right to counsel claim, de novo. See United States v. Hernandez, 633 F.3d 370, 

373 (5th Cir. 2011). We review the district court’s denial of Diaz’s request for 

an evidentiary hearing for abuse of discretion. See Thompson v. Davis, 916 F.3d 

444, 455 (5th Cir. 2019). A governmental intrusion “through surreptitious 

electronic means or through an informant” upon “the confidential relationship 

between a criminal defendant and his attorney” violates the Sixth Amendment 

right to counsel. United States v. Zarzour, 432 F.2d 1, 3 (5th Cir. 1970). The 

Supreme Court held in Rothgery v. Gillespie Cty., Tex., 554 U.S. 191, 198 (2008) 

that the Sixth Amendment right to counsel attaches when “prosecution is 

commenced.” There, the Court explained that commencement means “the 

initiation of adversary judicial criminal proceedings—whether by way of 

formal charge, preliminary hearing, indictment, information, or arraignment.” 

Id. To prevail on a claim that the government has invaded the attorney-client 

privilege, the defendant must establish that prejudice resulted. See United 

States v. Davis, 226 F.3d 346, 353 (5th Cir. 2000); see also Weatherford v. 

Bursey, 429 U.S. 545, 558 (1977) (determining that there was no Sixth 

Amendment violation where there was “no tainted evidence in this case, no 

communication of defense strategy to the prosecution, and no purposeful 

intrusion by [the federal agent]”).

Mississippi Rule of Professional Conduct 4.2 provides that “[i]n 

representing a client, a lawyer shall not communicate about the subject of the 

representation with a party the lawyer knows to be represented by another 

lawyer in the matter, unless the lawyer has the consent of the other lawyer or 

is authorized by law to do so.” MISS. CODE OF PROF’L CONDUCT R. 4.2. This rule 

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is common among many states and is often referred to as the “no-contact rule.” 

28 U.S.C. § 530B(a) provides that “[a]n attorney for the Government shall be 

subject to State laws and rules, and local Federal court rules, governing 

attorneys in each State where such attorney engages in that attorney’s duties, 

to the same extent and in the same manner as other attorneys in that State.” 

In the context of § 530B, however, this court has determined that “[state bar]

professional disciplinary rules do not apply to government conduct prior to 

indictment . . . and certainly do not apply to the indiscretions of a non-attorney 

government informant.” United States v. Johnson, 68 F.3d 899, 902 (5th Cir. 

1995).

At the point in the investigation when the recordings took place in 2016 

and 2017, Diaz had retained counsel, but prosecution had not yet commenced. 

See Rothgery, 554 U.S. at 198. Although the government was in the 

investigatory phase, there had been no “initiation of adversary judicial 

criminal proceedings—whether by way of formal charge, preliminary hearing, 

indictment, information, or arraignment.” Id. The record indicates that a grand 

jury subpoena issued to Diaz on October 5, 2017—approximately nine months 

after the second (and last) recording took place. Thus, his Sixth Amendment 

argument fails under Rothgery. 

Moreover, as the district court notes, Diaz “misrepresented the factual 

record” by suggesting that Schaar had “repeatedly” questioned him about 

attorney-client privileged information when that was not true—Schaar did not 

question Diaz as to any of his communications with his attorney and Diaz did 

not disclose any such information.3 Consequently, because Diaz did not 

 

3 The record reveals that Schaar stated, “Have you talk [sic] to your attorney?” Diaz 

replied, “Yeah, I get a bill from him all the time,” to which Schaar replied, “And he’s saying 

nothin’?” to which Diaz responds, “[His attorney] hadn’t heard anything.” There is no further 

questioning directed at Diaz from Schaar regarding Diaz and his attorney’s conversations.

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disclose any privileged information, he would be unable to establish prejudice. 

See Davis, 226 F.3d at 353; Weatherford, 429 U.S. at 558.

With respect to Diaz’s implications that the government violated

Mississippi’s professional or ethical rules, specifically Mississippi Rule of 

Professional Conduct 4.2, there is no Fifth Circuit precedent holding that a 

government’s use of a coconspirator to record conversations with a subject of 

investigation in a non-custodial, pre-indictment setting constitutes a violation 

of a state bar’s no-contact rule. Further, this court has clarified that 

“professional disciplinary rules do not apply to government conduct prior to 

indictment.” See Johnson, 68 F.3d at 902. 

Finally, the district court correctly determined that there was no need 

for an evidentiary hearing prior to trial because the issue of the recordings 

presented legal questions, and Diaz had “not articulated any factual disputes”

for the district court to resolve. See United States v. Fields, 565 F.3d 290, 298 

(5th Cir. 2009) (“We have held that ‘[t]he district court need not hold an 

evidentiary hearing to resolve ineffective assistance claims where the 

petitioner has failed to allege facts which, if proved, would admit of relief. If, 

on the record before us, ‘we can conclude as a matter of law that [the petitioner] 

cannot establish one or both of the elements necessary to establish his 

constitutional claim, then an evidentiary hearing is not necessary and we may 

affirm.’” (internal citations omitted)). Although Diaz disputed the legal 

significance of the recordings, he did not, and could not, dispute their content. 

Thus, no factual dispute existed warranting the district court’s consideration 

of his request for an evidentiary hearing and Diaz’s arguments to the contrary 

are unavailing. See Fields, 565 F.3d at 298.

E. Motion to Continue

On February 23, 2018, the Friday before trial, Diaz orally moved to 

continue the trial arguing that the government had recently disclosed 

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information that Schaar had been treated for substance abuse and mental 

health issues. Diaz also claimed that the government had recently disclosed a 

report that revealed that Schaar said that other unidentified employees had

stamped the Advantage prescriptions. Diaz claimed he needed to identify five 

additional witnesses to address the stamp issue. The government opposed 

Diaz’s motion and the district court, after hearing from counsel for both sides, 

denied the motion. Diaz argues on appeal that this was error. We do not agree.

This court reviews a district court’s denial of a motion to continue for 

abuse of discretion. See Squyres v. Heico Cos., L.L.C., 782 F.3d 224, 236–37

(5th Cir. 2015). “In reviewing the denial of a continuance, this court looks to 

the ‘totality of the circumstances,’ including (a) the amount of time available; 

(b) the defendant’s role in shortening the time needed; (c) the likelihood of 

prejudice from denial; (d) the availability of discovery from the prosecution; (e) 

the complexity of the case; (f) the adequacy of the defense actually provided at 

trial; and (g) the experience of the attorney with the accused.” United States v. 

Walters, 351 F.3d 159, 170 (5th Cir. 2003).

Prior to Diaz’s oral continuance motion on February 23rd, the district 

court had granted two other continuance motions that he had filed. In denying

Diaz’s third continuance motion the district court observed that Diaz’s able and 

experienced attorneys had obtained a copy of Schaar’s original guilty plea 

colloquy from July 2017 where he disclosed his substance abuse issues, so they 

could not feign surprise four days before trial as to their existence. As to

Schaar’s mental health, the district court commented that “being bipolar 

doesn’t necessarily make someone incompetent” and regardless, while Diaz 

may choose to more heavily cross- examine Schaar on the issue, his condition

was not a surprise to the defense. The district court further observed that the 

signature stamps could not have been a surprise since Diaz had proffered a 

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primary defense of not personally signing the prescriptions as far back as the 

previous August and the government sent discovery via email on January 25th 

with copies of the stamped signatures on the prescriptions. 

We conclude that the district court’s evaluation of the continuance 

motion was proper. It considered the “totality of the circumstances,” 

specifically addressing Diaz’s prior knowledge of both issues that he argued 

warranted the continuance, the experience and ability of all defense counsel, 

and perhaps most significantly, the low chance of prejudice to the defense in 

denying the continuance given their prior knowledge of the issues relating to 

Schaar and the prescription stamps. See Walters, 351 F.3d at 170. The district 

court did not abuse its discretion in denying the continuance. See Squyres, 782 

F.3d at 237–38. 

F. Jury Instructions

Diaz argues that the district court’s decision to give deliberate ignorance

and aiding and abetting jury instructions was erroneous. Both deliberate 

ignorance jury instructions and aiding and abetting jury instructions are 

reviewed for abuse of discretion. See United States v. Ricard, 922 F.3d 639, 

654–55 (5th Cir. 2019) (reviewing deliberate ignorance for abuse of discretion); 

United States v. Turner, 674 F.3d 420, 442 (5th Cir. 2012) (reviewing aiding 

and abetting for abuse of discretion). In conducting our review, we “ask 

whether the court’s charge, as a whole, is a correct statement of the law and 

whether it clearly instructs jurors as to the principles of the law applicable to 

the factual issues confronting them.” United States v. Martinez, 921 F.3d 452, 

477 (5th Cir. 2019) (citation omitted). “A jury instruction must: (1) correctly 

state the law, (2) clearly instruct the jurors, and (3) be factually supportable.” 

United States v. Fairley, 880 F.3d 198, 208 (5th Cir. 2018). Specific jury 

instructions should be “considered in the context of the instructions as a whole 

and the trial record” and “not in isolation.” Id. 

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A deliberate ignorance instruction “inform[s] the jury that it may 

consider evidence of the defendant’s charade of ignorance as circumstantial 

proof of guilty knowledge.” Ricard, 922 F.3d at 655. This instruction “guards 

against a defendant who ‘choos[es] to remain ignorant so he can plead lack of 

positive knowledge in the event he should be caught.’” Id. (quoting United 

States v. Lara-Velasquez, 919 F.2d 946, 951 (5th Cir. 1990)). “[A] deliberate 

ignorance instruction ‘should only be given when a defendant claims a lack of 

guilty knowledge and the proof at trial supports an inference of deliberate 

ignorance.’” Id. at 655–56 (citation omitted). An inference can be made that 

deliberate ignorance exists if there is evidence showing “(1) subjective 

awareness of a high probability of the existence of illegal conduct, and (2) 

purposeful contrivance to avoid learning of the illegal conduct.” Id. at 656.

“Aiding and abetting is not a separate offense, but it is an alternative 

charge in every indictment, whether explicit or implicit,” and a district court’s 

decision to give an aiding and abetting instruction will not be reversed absent 

a showing of unfair surprise. See Turner, 674 F.3d at 442. “To be convicted 

under an aiding and abetting theory, the defendant must ‘share[ ] in the 

principal’s criminal intent’ and take some affirmative steps ‘to aid the venture 

or assist[ ] the perpetrator of the crime.’” Id. (citation omitted). Further, he 

“must have aided and abetted each material element of the alleged offense[s].”

Id. 

Given Diaz’s statements to Schaar on the recordings (specifically the 

2017 recording) that he would pretend to know nothing of the scheme and 

advising Schaar to do the same to keep himself “out of trouble,” the deliberate 

ignorance instruction was appropriate. Additionally, although Diaz claims that 

he believed the prescriptions were “medically necessary” this does not comport 

with his failure to examine the Tricare beneficiaries until he received notice of 

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the audit—especially given his decades of experience as a physician. The

district court did not abuse its discretion in issuing the instruction. See Ricard, 

922 F.3d at 654–55. Likewise, the aiding and abetting instruction was also 

proper. “Aiding and abetting is not a separate offense, but it is an alternative 

charge in every indictment, whether explicit or implicit.” See Turner, 674 F.3d 

at 442. The district court instructed the jury consistently with the indictment, 

which charged the specific offenses and aiding and abetting in the alternative 

under 18 U.S.C. § 2. 

G. Restitution 

Diaz does not dispute that the district court ordered an amount of 

restitution equal to the total loss sustained by the Tricare, CVS Caremark, 

Express Scripts, and Optum Rx. Instead, he complains that the district court

never considered his financial resources or his earning capacity in determining 

his ability to pay the ordered restitution. The government counters that Diaz’s 

appeal of the restitution order should be dismissed under Manrique because 

he failed to timely file an appeal of the district court’s amended judgment 

ordering restitution. See Manrique v. United States, 137 S. Ct. 1266, 1271 

(2017).

“We review the quantum of an award of restitution for abuse of 

discretion.” United States v. Sharma, 703 F.3d 318, 322 (5th Cir. 2012). This 

court may affirm “if the record provides an adequate basis to support the 

restitution order.” Id. The Mandatory Victim Restitution Act (“MVRA”)

authorizes restitution to a victim “directly and proximately harmed” by a 

defendant’s offense of conviction. See Sharma, 703 F.3d at 322 (quoting 18 

U.S.C. § 3663A). Restitution awarded under the MVRA “is to compensate 

victims for losses, not to punish defendants for ill-gotten gains.” Id. “An award 

of restitution greater than a victim’s actual loss exceeds the MVRA’s statutory 

maximum.” Id. 

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The district court sentenced Diaz to concurrent terms of 42 months of 

imprisonment followed by a three-year term of supervised release but deferred 

imposing restitution to a later date because Diaz had failed to provide the 

financial information needed for the court to make the calculation. Diaz noticed 

his appeal with this court on June 20, 2018. In denying Diaz’s motion for 

release pending appeal, the district court expressed its exasperation, noting 

that Diaz and his counsel failed to provide sufficient information to enable the 

court to make a restitution finding and that Diaz had professed ignorance even 

when faced with such basic questions as whether he had any bank accounts at 

all. On October 16, 2018, four months after Diaz had lodged his appeal with 

this court, the district court, upon receiving the required financial information 

from Diaz, amended its judgment to include restitution in the amount of 

$3,374,409.16, pursuant to the MVRA. See 18 U.S.C. § 3663A. The total 

restitution amount was comprised of four subtotals to four separate companies: 

(1) Tricare ($2,345,242.92); (2) CVS/Caremark ($599,686.49); (3) Express 

Scripts ($419,236.44); and (4) Optum RX ($10,243.31). Two months later in 

December of 2018, Diaz moved this court for release pending appeal which was 

denied on January 28, 2019. Diaz never filed a second notice of appeal after 

the district court amended its judgment to include restitution. 

As the government argues, the Supreme Court has recently held that 

“[t]he requirement that a defendant file a timely notice of appeal from an 

amended judgment imposing restitution is at least a mandatory claimprocessing rule.” See Manrique, 137 S. Ct. at 1271 (citing Greenlaw v. United 

States, 554 U.S. 237, 252–253 (2008)). The Supreme Court explained in 

Manrique that “[u]nlike jurisdictional rules, mandatory claim-processing rules 

may be forfeited ‘if the party asserting the rule waits too long to raise the 

point.’” Id. at 1272. If, however, properly raised “they are ‘unalterable.’” Id. 

(noting that appellate court had a mandatory duty to dismiss appeal where the 

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No. 18-60455

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government timely raised petitioner’s failure to file a notice of appeal from the 

amended judgment imposing restitution).

Here, Manrique appears to mandate that this court dismiss Diaz’s 

appeal of the district court’s restitution order since he failed to notice an appeal 

from the district court’s amended judgment imposing restitution. Id. at 1272. 

Even if Manrique did not require dismissal of Diaz’s restitution claim on 

appeal, the district court’s restitution order is clearly supported by the 27-

volume record in this case. See United States v. Mathew, 916 F.3d 510, 516 (5th 

Cir. 2019) (“The district court must support ‘every dollar’ of a restitution order 

with record evidence.”) (citation omitted). A review of the record reveals that 

the dollar amounts listed by the district court comport with, and do not exceed, 

the actual losses of the four named pharmacies, therefore, the amounts are 

compliant with the MVRA’s statutory requirements. See Sharma, 703 F.3d at 

322. In other words, “the record provides an adequate basis to support the 

restitution order.” Id. 

III. Conclusion

For the foregoing reasons, we affirm Diaz’s convictions, the district 

court’s denial of Diaz’s motion for a new trial, and the district court’s amended 

judgment and restitution order.

 Case: 18-60455 Document: 00515117518 Page: 18 Date Filed: 09/13/2019