United States Court of Appeals

For the First Circuit 

Nos. 13-2113 

 13-2118 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

JOSÉ LÓPEZ-DÍAZ; CARLOS LÓPEZ-DÍAZ, 

Defendants, Appellants. 

APPEALS FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

[Hon. Francisco A. Besosa, U.S. District Judge] 

Before 

Lynch, Kayatta, and Barron, 

Circuit Judges. 

John H. Cuhna, Jr., with whom Jaime Zambrana and Cuhna & 

Holcomb, P.C., were on brief, for appellant José López-Díaz. 

H. Manuel Hernández for appellant Carlos López-Díaz. 

John A. Mathews II, Assistant United States Attorney, with 

whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and 

Nelson Pérez-Sosa, Assistant United States Attorney, Chief, 

Appellate Division, were on brief, for appellee. 
July 13, 2015 
- 3 - 

KAYATTA, Circuit Judge. These consolidated appeals 

present a rare example of a trial record that lacks sufficient 

evidence to support a guilty verdict returned by a jury. Carlos 

López-Díaz ("Carlos"), a dentist, operated a mobile dental clinic 

in Puerto Rico.1 His brother, José López-Díaz ("José"), is a 

medical doctor who billed Medicare for services to Carlos's 

patients that José never provided. The jury convicted José of 

health-care fraud, conspiracy to commit health-care fraud, and 

aggravated identity theft for using personal information gathered 

from Carlos's patients. Based on the fact that Carlos gave José 

access to his patient billing information while knowing that José 

never treated, or even saw, any of the patients, the government 

also obtained a verdict against Carlos on the conspiracy and 

aggravated identity theft charges. While we find no error in 

José's convictions, we reverse the verdict against Carlos because 

the prosecution did not present enough evidence to support his 

convictions without undue speculation. 

I. Background 

We limit our summary here to the basic contours of the 

health-care fraud scheme and proceedings below, reserving a fuller 

exposition of the relevant facts in the proper light for our 

 1 For the sake of convenience, we refer to the defendants by 

their first names only. 
- 4 - 

discussion of particular issues. See United States v. FloresRivera, 787 F.3d 1, 9 (1st Cir. 2015). 

Between January 2006 and July 2011, José submitted 

10,231 claims for reimbursement to Medicare, totaling 

approximately $3,500,000, of which Medicare actually paid about 

$700,000. He submitted the claims using Health Insurance Claim 

Form 1500 ("CMS 1500 Form"), a form used for Medicare billing by 

Centers for Medicare and Medicaid Services ("CMS"), which 

administers the Medicare program. As it turns out, José never 

provided any of the medical procedures for which he sought 

reimbursement. In some instances, he claimed to have provided 

services to Medicare beneficiaries who were deceased. He also 

repeatedly billed for the same unusual procedures. José filed 

1,177 claims (far more than anyone else in Puerto Rico) for a 

procedure typically performed by urologists, and more than half of 

those claimed urological procedures were for female patients, even 

though the procedure can be performed on male patients only. 

In order to submit those false claims, José needed the 

Medicare beneficiaries' identifying and health coverage 

information. His principal sources were the patient records of 

his brother Carlos, a licensed dentist. Beginning sometime in 

2007, Carlos operated a mobile dental clinic--essentially, a large 

trailer with three dental chairs and necessary equipment--to 

provide dental services to underserved patients at nursing homes, 
- 5 - 

mental health residential facilities, and schools. Carlos 

employed a coordinator to visit potential facilities, market the 

clinic, schedule visits, and collect patient medical histories, 

consent and release forms, and health coverage information before 

the mobile clinic visited each facility. Carlos also employed two 

dental assistants. 

José never treated or even saw any of Carlos's patients. 

Rather, José testified that Carlos gave him access to dental 

patient information as part of a safety protocol developed by the 

brothers after one of Carlos's elderly patients suffered a heart 

attack or stroke in the mobile clinic in late 2007, an event 

confirmed by the director of the stricken patient's nursing home. 

Two of the witnesses called by the government, Leslie WilliamsNieves ("Williams") and Nahír Rodríguez-Candelario ("Rodríguez"), 

explained that they were told that a regulation enacted by the 

Puerto Rico State Department required Carlos to have his patients 

medically evaluated and to use a medical consultant. When asked 

about this regulation, José said that he could not recall its 

name.2 Pursuant to the protocol, José paid Carlos's dental 

assistants to take and record vital signs of dental patients before 

Carlos treated them, with José available for phone consultations, 

 2 José also testified that he and Carlos learned at a 

conference on mobile clinics that a mobile dental clinic should 

have a consulting physician. 
- 6 - 

and José would later review the patient files, vital signs, and 

medical histories to see that Carlos's staff was acting properly.3 

The parties agree that José did indeed pay the dental assistants 

to take and record patient vital signs, and the actual patient 

records show that José did review, or at least initial, that 

information in each record. According to José's testimony, 

"[t]here are several formulas through which the physician can be 

paid for these services." 

José also gathered from Carlos's patient records the 

personal identifying information needed to bill Medicare. José 

used that information to complete and submit CMS 1500 Forms for 

medical procedures that he never performed on those patients. José 

paid Williams4 and Rodríguez,5 employees of his wife's pediatric 

 3 One of Carlos's dental assistants testified that José "would 

be given the vital signs taken from patients. And then he would 

correct them, he would observe them." 

4 For eight or nine months in 2009 and 2010, Williams completed 

sections of CMS 1500 Forms for José using a "log book" that listed 

the necessary billing information. In May 2010, three months after 

she stopped billing for José, Williams began working during the 

evenings for Carlos, entering patient billing information into an 

electronic database. At that point, Williams realized based on 

the service locations in Carlos's patient files and in José's log 

book that José's patient information came from Carlos's patient 

files. 

5 From April 2010 to July 2011, Rodríguez worked for Carlos 

on Fridays entering patient data from Carlos's patient files into 

a computer. From August to December 2010, Rodríguez also entered 

patient information into CMS 1500 Forms for José, for which José 

paid her $1 per form. Rodríguez recognized the patient files she 

used for José's CMS 1500 Forms as Carlos's dental patient files. 
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clinic, to complete his CMS 1500 Forms using information gleaned 

from Carlos's patient files. Williams and Rodríguez also did 

separate billing and data entry work part-time for Carlos. 

Williams and Rodríguez testified that they filled out José's CMS 

1500 Forms either at their own homes or at José's home office, and 

never in Carlos's presence or at his office. The government 

stipulated that Carlos did not sign or prepare any of José's CMS 

1500 Forms, and that Carlos's name did not appear on those forms. 

Investigators eventually caught on to José's falsified 

bills, and a grand jury indicted José, Carlos, Williams, Rodríguez, 

and others for conspiracy to commit health-care fraud in violation 

of 18 U.S.C. § 1349 (count one) and health-care fraud in violation 

of 18 U.S.C. § 1347 (counts ten through thirty), and José and 

Carlos for aggravated identity theft in violation of 18 U.S.C. 

§ 1028A(a)(1) (counts thirty-one through thirty-five). All of the 

defendants except for Carlos were also indicted for additional 

counts of health-care fraud (counts two through nine).6 After a 

fifteen-day trial, the jury convicted José of all counts.7 The 

jury also convicted Carlos of the conspiracy and aggravated 

identity theft counts, but acquitted him of the substantive health-

 6 Prior to trial, the government dropped the charges against 

all other indicted conspirators, and called Williams and Rodríguez 

as witnesses in the government's case-in-chief. 

7 The government dismissed one count (count twenty) of 

substantive health-care fraud before trial. 
- 8 - 

care fraud counts. The district court sentenced José to a total 

of 121 months in prison. Carlos received a total prison sentence 

of thirty-six months and a day. Carlos and José timely filed 

separate appeals challenging their convictions.8

II. Carlos's Insufficiency of the Evidence Claim 

We turn first to Carlos's appeal from the order denying 

his motion for acquittal based on insufficient evidence to convict. 

See Fed. R. Crim. P. 29. We review de novo the denial of a Rule 

29 motion for acquittal, asking whether a reasonable jury could 

find guilt beyond a reasonable doubt. United States v. BurgosMontes, 786 F.3d 92, 112 (1st Cir. 2015). In assessing a challenge 

to the sufficiency of the evidence, we "examine the evidence, 

together with all inferences that may be reasonably drawn from it, 

in the light most favorable to the prosecution." United States v. 

Andújar, 49 F.3d 16, 20 (1st Cir. 1995). Where, as here, "a jury 

draws inferences from circumstantial evidence, a reviewing court 

should refrain from second-guessing the ensuing conclusions as 

long as (1) the inferences derive support from a plausible 

rendition of the record, and (2) the conclusions flow rationally 

from those inferences." United States v. Spinney, 65 F.3d 231, 

234 (1st Cir. 1995). Our deference to jury verdicts is not without 

limit, however: "[I]f the evidence viewed in the light most 

 8 This court consolidated the two appeals. 
- 9 - 

favorable to the verdict gives equal or nearly equal circumstantial 

support to a theory of guilt and a theory of innocence of the crime 

charged, this court must reverse the conviction," because in such 

a case "a reasonable jury must necessarily entertain a reasonable 

doubt." United States v. Flores-Rivera, 56 F.3d 319, 323 (1st 

Cir. 1995) (internal quotation marks and emphasis omitted). 

The parties agree that the conspiracy charge9 against 

Carlos turns largely on whether the jury could reasonably find 

that Carlos "knew" that his brother was defrauding Medicare. The 

parties likewise agree that the aggravated identity theft counts 

required the jury to find that Carlos, either as a principal or 

aider and abettor, "knew" of the underlying health-care fraud.10 

 9 18 U.S.C. § 1349 provides as follows: "Any person who 

attempts or conspires to commit [health-care fraud] shall be 

subject to the same penalties as those prescribed for the offense, 

the commission of which was the object of the attempt or 

conspiracy." The substantive offense of health-care fraud 

consists of (a) "knowingly and willfully execut[ing], or 

attempt[ing] to execute, a scheme or artifice," either (1) "to 

defraud any health care benefit program," or (2) "to obtain, by 

means of false or fraudulent pretenses, representations, or 

promises, any of the money or property owned by, or under the 

custody or control of, any health care benefit program"; and doing 

so (b) "in connection with the delivery of or payment for health 

care benefits, items, or services." Id. § 1347. 

10 To convict Carlos for aggravated identity theft, the 

government needed to prove that, "during and in relation to 

[health-care fraud], [the defendant] knowingly transfer[red], 

possesse[d], or use[d], without lawful authority, a means of 

identification of another person." 18 U.S.C. § 1028A(a)(1); see 

also id. § 1028A(c)(5). To convict Carlos under an aiding and 

abetting theory, the government needed to establish, among other 

things, that Carlos "consciously shared [José's] knowledge of the 

underlying criminal act, and intended to help [José]." United 
- 10 - 

Such knowledge for either offense could be proven by knowledge in 

fact, or by proof of "willful blindness." To establish willful 

blindness, the government had to show that Carlos (1) "was aware 

of a high probability of wrongdoing," and (2) "consciously and 

deliberately avoided learning of the wrongdoing." United States 

v. Appolon, 695 F.3d 44, 57 (1st Cir. 2012). 

The government did manage to prove that Carlos knew that 

José gathered from the files of Carlos's patients information to 

be used by José to bill Medicare for something. In its brief and 

at argument, the government also claimed that the evidence showed 

that Carlos paid his employees to complete the CMS 1500 Forms used 

by José to bill Medicare. Apparently accepting the government's 

view of its proof in denying Carlos's motion to acquit, the 

district court expressly pointed to such payments by Carlos. See 

United States v. López-Díaz, 940 F. Supp. 2d 39, 64 (D.P.R. 

2013) ("[Carlos] even paid his employees for filling out billing 

forms when [José] was unable to pay them."). As the government 

clarified after oral argument, however, the record shows only that 

Carlos paid his employees to record his patients' vital signs for 

José's review, and only when José was unavailable to make this 

payment himself.11 Further, the government points us to no evidence 

 

States v. Lyons, 740 F.3d 702, 715 (1st Cir. 2014) (quoting 

Spinney, 65 F.3d at 235). 

11 Carlos also paid Williams and Rodríguez to help with billing 

and data entry for his legitimate dental services. There is no 
- 11 - 

that José needed (or even used) the vital signs data to deceive 

Medicare. 

Of course, if Carlos knew that José had no basis 

whatsoever to bill Medicare for any amount in connection with 

Carlos's patients, then his knowledge that José was billing for 

something could suffice to sustain the verdict. So the question 

is posed: Did Carlos know that José could not bill merely for the 

gathering and review of vital signs information? On this crucial 

point, the record is a complete blank. The record does not even 

show that such a file review is not billable, much less that Carlos 

knew it was not billable. The government did not submit any 

evidence challenging the existence of the regulation that its own 

witnesses cited as a reason for taking the vital signs and 

reviewing them. Nor did it seek an instruction on the regulation. 

The government also failed to counter José's testimony that 

"[t]here are several formulas through which the physician can be 

paid" for services to mobile dental clinics. Instead, the 

government simply argued in closing that José did not bill for 

reviewing the vital signs. This was a compelling point against 

José, but carried weight against Carlos only if there was evidence 

that Carlos knew what José was billing for. 

 

evidence that Carlos ever paid Williams and Rodríguez to help José 

with his billing. 
- 12 - 

In an effort to fill this gap, the government in its 

brief tells us that Carlos "is also a medical provider, submits 

dental billing claims himself, and understands what is required of 

medical provider [sic] in order to submit claims." Cf. United 

States v. Singh, 390 F.3d 168, 188 (2d Cir. 2004) (jury could infer 

that physician/clinic owner was aware that claims he submitted 

were false, based on his possession of and familiarity with the 

applicable billing code guidebook and manual, and discussions with 

employees revealed his "detailed knowledge" about billing). The 

government, however, cites no evidence to support this crucial 

assertion, nor can we find any. To the contrary, the record shows 

that the dental billing codes (with which one could assume Carlos 

was familiar) were so different from the physician billing codes 

that the government's own witness on Medicare billing professed 

almost complete ignorance about dental billing codes.12

Our own review of the record points to no other means to 

close this gap. Notwithstanding the indictment's express charge 

that the aim of the conspiracy was to enrich both José and Carlos, 

there is no evidence at all that Carlos received even one penny of 

the fraudulent proceeds. What little else we could find on our 

own review of the record added nothing to the government's case; 

 12 While some evidence supported an inference that Carlos 

sometimes billed Medicare Advantage plans, there was no evidence 

that he used medical or surgical billing codes, rather than dental 

billing codes, in order to bill those plans. 
- 13 - 

rather, it helped Carlos.13 We also do not think that whether and 

when file reviews are billable to Medicare are matters of common 

knowledge that lay jurors might bring to bear to connect the toowidely spaced dots in the government's case. 

José's behavior as described by the government's 

evidence offered no hint that Carlos was aware of the nature of 

José's billing. The fact that José indisputably initialed the 

patient files suggests strongly that he was trying to deceive 

someone other than Medicare (e.g., Carlos?), given that the vital 

signs data from Carlos's patients provided no information that 

José used to bill or to justify billing for the surgical and other 

procedures he claimed to have performed. José was also careful 

that Williams and Rodríguez, his wife's employees whom he paid to 

 13 Carlos's clinic coordinator marketed the dental clinic to 

directors of nursing homes and residential facilities in part 

through PowerPoint slides. One slide indicated that the clinic 

had a "consultant physician," whom the coordinator understood to 

be José. That same coordinator, who also collected patients' 

medical histories, testified that José told her to focus on whether 

the patient had had recent surgery, in order to prevent adverse 

reactions to the dentist's anesthesia. And the consent and release 

forms that the coordinator collected from Carlos's patients did 

not clearly prohibit use of patient information to bill for a file 

review by another doctor. The forms stated that the patients 

consented to use of their information to "carry out your treatment, 

payment activities and operations in your health care." The 

attached notice of privacy practices informed the patients that 

Carlos "may use your health information for treatment (e.g., 

sending copy of your clinical information to a specialist as part 

of your referral), to obtain payment for treatment (e.g., bill an 

insurance agency), or for other health care operations (e.g., 

evaluate the quality of treatment you receive)" (emphasis added). 
- 14 - 

fill out the demographic and health plan sections of his CMS 1500 

Forms, performed their task out of Carlos's presence. Neither did 

those two employees suggest that Carlos knew the services for which 

José was billing. 

Though not clear from its brief, the government appears 

to argue that the jury could infer Carlos's knowledge of José's 

fraud if the jury doubted the utility of the treatment protocol, 

and thus the plausibility of Carlos's explanation for handing his 

files to José. If the evidence allowed the jury to conclude that 

the treatment protocol was obviously useless, then the jury might 

have inferred that Carlos could not possibly have thought the 

protocol valuable. And from that the jury could, perhaps, have 

further inferred that Carlos must have had some other, criminal, 

reason for handing over his patient files to José, and thus still 

further inferred that Carlos must have had the requisite knowledge 

of José's fraud. 

The government, though, did not present any evidence to 

support such a chain of inferences. Acting almost as if it bore 

no burden of proof in making its case against Carlos, the 

government did not present any direct evidence that the protocol 

was, in fact, not an accepted or recognized method of ensuring 

that the mobile clinic's practice was adhering to medical 
- 15 - 

standards.14 Nor did the government present any direct evidence 

that Carlos believed the protocol was useless. And, indeed, the 

fact that Carlos supervised his dental assistants in taking vital 

signs--and paid them for doing so when José was out of town--would 

seem to suggest that Carlos viewed the protocol as beneficial. As 

a result, the record cannot support the first link in a chain of 

inferences that would be needed to justify the jury's verdict 

against Carlos on these grounds. See United States v. Burgos, 703 

F.3d 1, 10 (1st Cir. 2012) ("[W]e are loath to stack inference 

upon inference in order to uphold the jury's verdict." (quoting 

United States v. Valerio, 48 F.3d 58, 64 (1st Cir. 1995))). 

Our respect for a jury's ability to get it right does 

nevertheless cause us to pause cautiously before concluding that 

the evidence is insufficient to support the verdict. We note, 

though, that the prosecutor in closing told the jury that "it 

doesn't matter for purposes of this case if [Carlos] knew what 

[José] was writing on those [CMS 1500 forms]. It doesn't make a 

difference." The prosecutor also seems to have slipped into an 

argument based on a lesser negligence standard, rather than 

knowledge or willful blindness: "[Carlos], as a dentist, should 

 14 The government also failed to challenge one of the apparent 

rationales for the protocol, that it was required by some 

Commonwealth regulation. If there is no such regulation, the 

government easily could have called witnesses from the relevant 

Puerto Rico government departments to debunk this rationale. 
- 16 - 

have known better, or should have known better to question himself-

-or his brother in this case--what he was billing for if he--once 

he knew he wasn't even seeing his patients." While we have not 

been asked to vacate the verdict because of these statements, and 

while the statements might be read in context in a manner that 

would render them proper, they do explain how a jury could 

mistakenly convict Carlos in light of the absence of any evidence 

that his brother could not bill Medicare at all for his work under 

the protocol, or that Carlos knew of or willfully ignored such a 

limitation. We have in mind, too, the fact that in a three-week 

trial focused mostly on José, both the prosecutor and the trial 

judge themselves mistakenly thought that Carlos paid to have some 

of José's falsified claim forms completed.15 In any event, the key 

point now is that the record contains insufficient evidence to 

support a reasonable inference that, beyond a reasonable doubt, 

Carlos knew that José had no basis for submitting any type of claim 

in connection with his review of Carlos's patient records. 

We therefore vacate Carlos's convictions and remand for 

a judgment of acquittal of Carlos on all counts.16

 15 See López-Díaz, 940 F. Supp. 2d at 64 ("[Carlos] even paid 

his employees for filling out billing forms when [José] was unable 

to pay them."). 

16 We need not address Carlos's remaining arguments. 
- 17 - 

III. José's Claims 

 José does not challenge on appeal the sufficiency of the 

evidence against him on any of the counts. Rather, he points to 

what he claims are errors in the indictment, the review of alleged 

Brady material, and the jury instructions. We address these 

claimed errors in turn. 

A. The Sufficiency of the Indictment's Aggravated Identity Theft 

Counts 

José first argues that the aggravated identity theft 

counts (counts thirty-one through thirty-five) of the superseding 

indictment were defective for lack of a corresponding substantive 

health-care fraud count. The aggravated identity theft counts of 

the indictment alleged that José knowingly possessed, transferred, 

or used the identification of another person without lawful 

authority "in relation to felony violations enumerated in 

subsection (c) [of 18 U.S.C. § 1028A] as: (1) Healthcare Fraud, a 

violation of [18 U.S.C. § 1347], not charged herein." Each count 

listed a specific individual whose identity was used to commit the 

offense. The indictment did not include separate section 1347 

health-care fraud charges with respect to the individuals named in 

the aggravated identity theft counts. According to José, because 

the government did not separately charge and convict him of the 
- 18 - 

predicate health-care fraud crimes underlying the aggravated 

identity theft charges, the indictment was defective.17

The predicate felony violation in section 1028A is 

simply an element of the crime of aggravated identity theft. The 

statute requires proof beyond a reasonable doubt of a felony 

violation, not a felony conviction. It therefore did not require 

the government to charge José separately with the predicate healthcare fraud offenses. See United States v. Stepanian, 570 F.3d 51, 

59-60 & n.15 (1st Cir. 2009) ("To the extent [the defendant] wishes 

to argue that the government must separately allege and charge the 

predicate crime in order to charge a § 1028A offense . . . the 

statutory language lends no support to that proposition."); see 

also United States v. Jenkins-Watts, 574 F.3d 950, 970 (8th Cir. 

2009). Moreover, the indictment adequately informed José that the 

predicate offenses for the aggravated identity theft counts were 

health-care fraud crimes "not charged herein." See United States 

v. Savarese, 686 F.3d 1, 6 (1st Cir. 2012) ("[A]n indictment is 

adequate if it specifies the elements of the offense charged, 

fairly apprises the defendant of the charge against which he must 

defend, and allows him to contest it without fear of double 

 17 Although the basis for this claim of error is not clear 

from José's brief, we interpret this argument to be a challenge to 

the sufficiency of the indictment. 
- 19 - 

jeopardy."). We therefore detect no error in the aggravated 

identity theft counts of the indictment. 

B. In Camera Review of Potential Brady Material 

José next faults the district court for rejecting his 

request to order the government to turn over documents José claims 

were potentially exculpatory. See Brady v. Maryland, 373 U.S. 83, 

87 (1963) (government has an obligation to disclose evidence in 

its possession favorable to a criminal defendant and material to 

guilt). In particular, José argues that he was entitled to 

materials related to a government search of the offices of one of 

the Medicare Advantage insurers he fraudulently billed, Medical 

Card System ("MCS"). 

Both defendants filed separate pre-trial motions 

requesting specific exculpatory and impeachment material. The 

requested information included the following materials: 

Any documents, reports, affidavits in support 

of search warrants, grand jury subpoenas, or 

other materials and information regarding any 

investigation of any wrongdoing by any health 

insurance company that processes any Medicare 

or other insurance claim that is the subject 

of the charges alleged in the indictment, 

including, but not limited to, MCS . . . . 

The district court referred the matter to a magistrate judge, who 

granted the defendants' request subject to a protective order that 

restricted the disclosure and use of patients' individually 

identifiable health information. The government did not disclose 
- 20 - 

prior to trial any documents related to a search warrant executed 

at MCS. On the fifth day of trial, however, before the defendants 

cross-examined a fraud investigator at MCS, Carlos's defense 

attorney renewed his request in light of press coverage of a 

government search of MCS offices. The government agreed to review 

the MCS search documents during a pre-scheduled eight-day break in 

the trial, and to disclose any exculpatory or impeachment material, 

while complying with the protective order. On cross-examination, 

the MCS fraud investigator confirmed that government agents had 

searched the MCS office, but she did not speak with the agents and 

did not know whether the investigation was ongoing. 

The government again produced no documents, and on the 

next day of trial, Carlos's attorney asked that "the Court order 

them to produce those records or that they be submitted to the 

Court and that copies be left in the record under seal for future 

review, if necessary." The government agreed to provide the MCS 

search warrant affidavit for the court's in camera review, to 

determine if the search may have revealed information relevant to 

Carlos and José's case. The next day, the district court informed 

counsel that its "review of the search warrant, the application, 

and affidavit has completed, and I don't think any of it has any 

relevance to this case. . . . [Y]our motion is denied." The 

district court then denied Carlos's motion to seal the search 

warrant, application, and affidavit and make those documents part 
- 21 - 

of the record in this case, because the court was "worried about 

making it a part of this record even as a sealed document." The 

district court and government noted that the documents could be 

made available to this court if necessary for appellate review. 

Shortly thereafter, José's counsel joined Carlos's motions. 

On appeal, José asks us to review the search warrant, 

application, and affidavit to determine whether the district court 

erred in refusing to require disclosure by the government. We 

review a district court's Brady determinations after its in camera 

review for an abuse of discretion. United States v. RosarioPeralta, 175 F.3d 48, 57 (1st Cir. 1999); see also United States 

v. Caro-Muñiz, 406 F.3d 22, 28-29 (1st Cir. 2005). 

We decline the invitation to join José on his fishing 

expedition. His theory about the relevance of the MCS documents 

is that those documents "could have very well" contained 

instructions from MCS to physicians, including José, to submit 

false information on CMS 1500 Forms, thereby corroborating José's 

testimony that he used inaccurate billing codes based on 

instructions from health insurance companies. How such evidence 

would have exonerated José from billing for urological services 

performed on women whom he did not treat is a complete mystery 

concerning which José offers no insight. Additionally, José points 

to nothing that suggests that the government's search of MCS had 

anything to do with its telling doctors to use incorrect billing 
- 22 - 

codes. Hence his theory of relevance amounts to little more than 

"mere speculation." United States v. Prochilo, 629 F.3d 264, 269 

(1st Cir. 2011). The district court therefore would have acted 

well within its discretion even if it had refused to conduct the 

in camera review in the first place. See id. at 268-69 ("To 

justify [in camera] review, the defendant must make some showing 

that the materials in question could contain favorable, material 

evidence. This showing cannot consist of mere speculation." 

(citations omitted)). Because José's request amounts to no more 

than a "shot in the dark," United States v. Espinal-Almeida, 699 

F.3d 588, 618 (1st Cir. 2012), we find it unnecessary to review 

the sealed documents that the district court viewed in camera. 

C. Challenges to the Jury Instructions 

1. Prior Knowledge for Aiding and Abetting 

José claims that the district court erred in failing to 

instruct the jury that, in order to convict him of aiding and 

abetting aggravated identity theft, the jury had to find that José 

had "prior knowledge" of one purported element of aggravated 

identity theft: that the patients' identifying information was 

obtained without lawful authority.18 In support of this argument, 

 18 José also argues that, for the counts of conviction 

involving deceased patients, he needed prior knowledge that the 

patients were in fact deceased when José claimed to have treated 

them. None of the aggravated identity theft counts involve 

deceased beneficiaries, however, so we need say nothing more about 

this argument. 
- 23 - 

José cites Rosemond v. United States, 134 S. Ct. 1240 (2014), in 

which the Supreme Court held that, to convict a defendant for 

aiding and abetting the knowing use of a firearm during and in 

relation to a drug trafficking crime under 18 U.S.C. § 924(c), the 

government must prove that the defendant had advance knowledge of 

each element of the offense (i.e., the drug part and the gun part). 

Id. at 1248-49. 

José did not request that the district court give the 

instructions he now claims it should have given. To the contrary, 

he asked the court to give an instruction materially the same as 

that which it gave. José therefore arguably waived this challenge 

to the jury instructions. See United States v. Alberico, 559 F.3d 

24, 27 (1st Cir. 2009). 

Even if José did not waive the argument, his failure to 

object would justify only plain error review, see Fed. R. Crim. P. 

30(d), 52(b), a standard José fails to satisfy. See United States 

v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001) ("Review for plain error 

entails four showings: (1) that an error occurred (2) which was 

clear or obvious and which not only (3) affected the defendant's 

substantial rights, but also (4) seriously impaired the fairness, 

integrity, or public reputation of judicial proceedings."). The 

so-called element of which José says he needed prior knowledge--

that the identifying information was initially obtained without 

lawful authority--is not actually an element of the offense. 
- 24 - 

Section 1028A punishes the knowing transfer, possession, or use 

without lawful authority of protected information, 18 U.S.C. 

§ 1028A(a)(1), regardless of how that information was first 

obtained. United States v. Ozuna-Cabrera, 663 F.3d 496, 499 (1st 

Cir. 2011) ("[R]egardless of how the means of identification is 

actually obtained, if its subsequent use breaks the law . . . it 

is violative of § 1028A(a)(1)."). Even if an instructional error 

had occurred, it could not have affected José's substantial rights. 

The evidence overwhelmingly showed that José knew that he did not 

have the patients' consent to use their information to bill for 

surgical and medical procedures he never performed. 

2. Typographical Error in an Instruction 

José also challenges a typographical error in the 

aggravated identity theft jury charge. The district court 

instructed the jury that the first element of aggravated identity 

theft was "that the defendants committed the crime of health care 

fraud as set forth in jury instruction number 11." This 

instruction should have cross-referenced jury instruction number 

12, listing the elements of health-care fraud, and not jury 

instruction number 11, which addressed vicarious liability for the 

acts and declarations of co-conspirators. There was no objection 

to this slip-up, and José concedes that review is for plain error 

only. The mistake here falls far short of the "exceedingly 

difficult to satisfy" plain error standard for jury instructions. 
- 25 - 

United States v. Gonzalez-Velez, 466 F.3d 27, 35 (1st Cir. 2006). 

The district court's instruction correctly indicated that the 

predicate offense was health-care fraud, and it would have been 

obvious to the jury that the crime of health-care fraud was "set 

forth" in the instruction labeled as such, and not in the plainly 

inapplicable instruction titled "Acts and Declarations of Coconspirators." Moreover, given the weight and nature of the 

evidence against José, we doubt any confusion engendered by the 

typographical error contributed to the jury's verdict. 

3. Success of the Conspiracy 

José next challenges the district court's refusal to 

instruct the jury that the government needed to prove the success 

of the conspiracy. This refusal, José contends, resulted in both 

a constructive amendment and prejudicial variance. José 

acknowledges that the government ordinarily does not need to prove 

the success of a conspiracy. See United States v. Paret-Ruiz, 567 

F.3d 1, 6 (1st Cir. 2009). According to José, though, the 

government committed itself to proving success by charging in the 

indictment that the object of the conspiracy was for the defendants 

to "enrich themselves."19

No constructive amendment occurred here. "[A] 

constructive amendment occurs where the crime charged has been 

 19 The "Object of the Conspiracy" section of the superseding 

indictment's conspiracy count read in relevant part: "The object 
- 26 - 

altered, either literally or in effect, after the grand jury last 

passed upon it." United States v. Mubayyid, 658 F.3d 35, 49 (1st 

Cir. 2011) (internal quotation marks omitted). There was no change 

to the statutory elements of the offense. See id. at 51 ("[O]ur 

practice has been to look to statutory elements in response to 

claims by defendants that 'the crime charged' has been 

changed.").20

Nor was there any variance between the charged crime and 

evidence at trial, let alone a variance that was prejudicial. See 

id. at 48 ("A variance occurs when the facts proved at trial differ 

materially from those alleged in the indictment without altering 

the crime charged."). While there was no evidence that Carlos 

made even a penny as a result of José's fraud, the government 

established that José himself billed Medicare for more than 

$3,500,000, and that Medicare paid him hundreds of thousands of 

dollars. José implausibly responds that those sums do not 

necessarily show enrichment without evidence of his "costs or 

 

of the conspiracy was that defendants . . . would unlawfully enrich 

themselves by submitting false and fraudulent claims to Medicare 

. . . ." 

20 José's reliance on United States v. Narog, 372 F.3d 1243 

(11th Cir. 2004), is beside the point. This case does not present 

a situation "where the government's failure to prove the crime as 

it was charged in the indictment opens the possibility that the 

jury convicted on the basis of conduct that was never charged." 

Mubayyid, 658 F.3d at 53 n.24 (emphasis omitted) (distinguishing 

Narog). 
- 27 - 

overhead." We think a jury could infer that José's costs were 

low, and certainly less than the amounts he received, given that 

he did not actually perform the procedures for which he billed 

Medicare.21

IV. Conclusion 

We vacate Carlos's convictions on all counts for lack of 

sufficient evidence, and remand for entry of judgment of acquittal. 

Finding no error with respect to José, we affirm his convictions. 

 21 We also reject José's last-ditch claim of cumulative error. 

Whatever errors that occurred with respect to José were at worst 

minor, and the evidence against him was overwhelming. See United 

States v. Sepulveda, 15 F.3d 1161, 1196 (1st Cir. 1993).