           Case: 13-11844   Date Filed: 06/12/2014   Page: 1 of 14


                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-11844
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:11-cr-20773-JAG-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

OSMAN J. PAYAN,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                              (June 12, 2014)

Before PRYOR, MARTIN, and ANDERSON, Circuit Judges.

PER CURIAM:
              Case: 13-11844     Date Filed: 06/12/2014    Page: 2 of 14


      Osman J. Payan appeals his convictions and sentences for conspiracy to

commit health care fraud, in violation of 18 U.S.C. § 1349, and health care fraud,

in violation of 18 U.S.C. § 1347, for his involvement with defrauding Medicare

through the fake company A-1 Medical. On appeal, Payan argues that the district

court committed several reversible evidentiary errors, including allowing the

admission of hearsay, speculative testimony, and by allowing the government to

lead witnesses. He further argues that even if there was no reversible error, the

district court committed enough harmless errors in the aggregate to deprive him of

his constitutional right to a fair trial. Additionally, Payan argues that the evidence

admitted at trial was insufficient to support his convictions because there was no

proof that he had knowledge of the conspiracy, there was no evidence that he

received any money for his involvement, and the government’s case was based on

inadmissible and circumstantial evidence.

      Payan also argues that the district court erred at sentencing by applying an

aggravating role adjustment for being a leader or organizer to his Sentencing

Guideline calculation rather than a mitigating role adjustment for a minor role.

Additionally, he argues there was no evidence that he played a leading role, and he

maintains that he was recruited into the scheme. Finally, he argues that his

sentence was unreasonable because the district court did not grant him a downward




                                           2
              Case: 13-11844      Date Filed: 06/12/2014    Page: 3 of 14


variance, which was warranted because his codefendants received lesser sentences,

he had little criminal history, and he played a minor role.

                                            I.

      We review preserved challenges to evidentiary rulings for clear abuse of

discretion. United States v. Gamory, 635 F.3d 480, 492 (11th Cir. 2011). An

abuse of discretion occurs if the district court’s evidentiary decision was based on a

“clearly erroneous finding of fact, an errant conclusion of law, or an improper

application of law to fact.” United States v. Baker, 432 F.3d 1189, 1202 (11th Cir.

2005). Even if we determine that an abuse occurred, we will only overturn an

evidentiary ruling if it resulted in a substantial prejudicial effect. United States v.

Breitweiser, 357 F.3d 1249, 1254 (11th Cir. 2004).

      The Federal Rules of Evidence provide that the district court exercises

“reasonable control over the mode and order of examining witnesses and

presenting evidence.” Fed.R.Evid. 611(a). It further provides that “[l]eading

questions should not be used on direct examination except as necessary to develop

the witness’s testimony.” Id. 611(c); see also United States v. Hewes, 729 F.2d

1302, 1325 (11th Cir. 1984) (holding that the district court has the discretion to

tolerate leading questions during direct examination).

      Rule 701 limits opinion testimony by a lay witness to testimony that is “(a)

rationally based on the witness’s perception; (b) helpful to clearly understanding


                                            3
              Case: 13-11844     Date Filed: 06/12/2014     Page: 4 of 14


the witness’s testimony or to determining a fact in issue; and (c) not based on

scientific, technical, or other specialized knowledge within the scope of Rule 702.”

Fed.R.Evid. 701. However, “[a]n opinion is not objectionable just because it

embraces an ultimate issue.” Fed.R.Evid. 704(a).

      “Hearsay is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” United States v. Baker, 432 F.3d 1189, 1203 (11th Cir. 2005). A

statement that is not offered to prove the truth of the matter asserted is not hearsay.

See Fed.R.Evid. 801(c)(2). Hearsay is inadmissible unless the statement is deemed

not hearsay under Rule 801(d), or it falls within a hearsay exception. Baker, 432

F.3d at 1203. A statement offered against an opposing party is not considered

hearsay if it was made by that party in an individual or representative capacity.

Fed.R.Evid. 801(d)(2)(A). Further, statements made by a “coconspirator during

and in furtherance of the conspiracy” are not hearsay. Id. 801(d)(2)(E).

      The Federal Rules of Evidence permit a witness that is having difficulty

recalling information to refresh her recollection through any writing. Fed.R.Evid.

612; United States v. Scott, 701 F.2d 1340, 1346 (11th Cir. 1983). This rule may

not be used to circumvent the Federal Rules of Evidence to introduce inadmissible

evidence. Scott, 701 F.2d at 1346. If the prosecution uses this evidentiary tool, the

defendant has the right to have the writing produced at the trial, inspect it, cross-


                                           4
              Case: 13-11844     Date Filed: 06/12/2014    Page: 5 of 14


examine the witness about it, and to introduce into evidence portions of the writing

relevant to the witness’s testimony. Fed.R.Evid. 612(b). If the prosecution does

not comply with such a request, the district court must strike the witness’s

testimony or declare a mistrial. Id. 612(c).

      The district court did not commit a clear abuse of discretion at trial. The

district court permitted the government to lead witnesses when appropriate to

develop the witness’s testimony, which is permissible under the Federal Rules of

Evidence. Fed.R.Evid. 611(c); Hewes, 729 F.2d at 1325. Allowing the

investigating agent to provide an opinion about a material fact at trial was not error

because the opinion was rationally based on his perception, helpful to determine a

fact at issue, and not based on specialized knowledge. Fed.R.Evid. 701; see also

id. 704(a). Further, allowing the agent to refresh his recollection using another

agent’s report was not hearsay and was not erroneous because any writing may be

used for that purpose. Id. 612; Scott, 701 F.2d at 1346.

      The district court did not allow impermissible hearsay at trial. Any out-of-

court statements made by Payan were not hearsay because they were admissions

by a party opponent. 801(d)(1)(A). Further, statements by others involved in the

conspiracy were not hearsay because they were statements made by co-

conspirators in furtherance of the conspiracy. Id. at 801(d)(2).

                                          II.


                                          5
              Case: 13-11844     Date Filed: 06/12/2014    Page: 6 of 14


      Under the cumulative error doctrine, we review the record as a whole to

determine whether the defendant was afforded a fundamentally fair trial. United

States v. Lopez, 590 F.3d 1238, 1258 (11th Cir. 2009). Both preserved and plain

errors are considered in the aggregate. Baker, 432 F.3d at 1203. The cumulative

effect of several harmless errors can result in the denial of the constitutional right

to a fair trial. Id. at 1223. The cumulative prejudicial impact of the several errors

depends upon: (1) the nature and number of the errors committed, (2) the

interrelatedness of the errors and their combined effect, (3) the district court’s

handling of the errors as they arose, and (4) the strength of the government’s case.

Id. However, if there are no errors, or only a single error, then there can be no

cumulative error. United States v. Waldon, 363 F.3d 1103, 1110 (11th Cir. 2004).

Further, we generally presume “that jurors follow their instructions.” United States

v. Hill, 643 F.3d 807, 829 (11th Cir. 2011).

      Upon review of the record and the specific alleged errors that Payan

enumerates in his brief, there was no individual evidentiary error at trial. The

district court sustained many of Payan’s objections, struck evidence from the

record that was improperly received, and ensured that evidence would be admitted

properly. Because there was no error or even a single error, there was no

cumulative error. Waldon, 363 F.3d at 1110.

                                          III.


                                           6
              Case: 13-11844     Date Filed: 06/12/2014   Page: 7 of 14


      We review de novo a district court’s denial of a motion for judgment of

acquittal on sufficiency of evidence grounds, construing the evidence in the light

most favorable to the government. United States v. Capers, 708 F.3d 1286, 1296

(11th Cir. 2013), cert. denied, 134 S.Ct. 108 (2013). In making this determination,

all reasonable inferences and credibility choices are viewed in favor to the verdict.

Id. A verdict cannot be overturned if there is a reasonable construction of the

evidence that would allow the jury to find the defendant guilty beyond a reasonable

doubt. Id. at 1297. The evidence need not be inconsistent with every reasonable

hypothesis except that of a defendant’s guilt, and the jury is free to choose among

the reasonable conclusions drawn from the evidence. Id. Further, “[w]here

corroborative evidence of guilt exists for the charged offense . . . and the defendant

takes the stand in [his] own defense, the defendant’s testimony, denying guilt, may

establish, by itself, elements of the offense.” United States v. Williams, 390 F.3d

1319, 1326 (11th Cir. 2004).

      To support a conviction for health care fraud under 18 U.S.C. § 1347, the

government must prove that the defendant: (1) knowingly and willfully executed,

or attempted to execute, a scheme to (2) defraud a health care program or to obtain

by false or fraudulent pretenses money or property under the custody or control of

a health care program, (3) “in connection with the delivery of or payment for

health care benefits, items, or services.” 18 U.S.C. § 1347. We have held that “the


                                          7
              Case: 13-11844    Date Filed: 06/12/2014    Page: 8 of 14


defendant must be shown to have known that the claims submitted were, in fact,

false.” United States v. Medina, 485 F.3d 1291, 1297 (11th Cir. 2007).

      To establish conspiracy for a related conviction, the government must prove

that the defendant “knew of and willfully joined in the unlawful scheme to defraud;

circumstantial evidence can supply proof of knowledge of the scheme.” United

States v. Maxwell, 579 F.3d 1282, 1299 (11th Cir. 2009).

      The evidence admitted at trial supported Payan’s convictions. The

government introduced a large amount of evidence demonstrating that Payan had

previously engaged in Medicare fraud before his involvement with A-1 Medical by

engaging in another related fraudulent scheme. The government introduced

evidence that Payan purchased L. Creagh Corporation, became the owner of that

company and the sole name on its bank account, and fraudulently billed over

$2,000,000 to Medicare. It provided fingerprint evidence on the sale documents

that tied Payan to the purchase of that company.

      The evidence adduced at trial supported Payan’s convictions regarding his

involvement with the A-1 Medical scam to defraud Medicare. Co-conspirators

testified at trial that Payan agreed to join in the scheme, and each of them pooled

the money to purchase the company. Given his experience and knowledge with L.

Creagh and his co-conspirators’ testimonies about his involvement, there was

evidence to support that Payan conspired to defraud Medicare because he “knew of


                                          8
               Case: 13-11844    Date Filed: 06/12/2014   Page: 9 of 14


and willfully joined in the unlawful scheme to defraud.” Maxwell, 579 F.3d at

1299.

        After fronting the money, evidence at trial supported the element that Payan

and his partners executed the scheme when they directed a nominee owner to

acquire A-1 Medical on their behalf, money was paid into A-1 Medical’s bank

account from Medicare, and the nominee owner withdrew the money to pay the

partners. Evidence showed that A-1 Medical fraudulently billed almost

$2,500,000, and Medicare reimbursed $614,599. Payan made an agreement with

another co-conspirator to open Med-X, a shell company, so he could receive his

reimbursements.

        Further, Payan testified on his own behalf, denying he was guilty of his

offense. Along with the corroborating evidence above, this testimony, by itself,

was sufficient to establish the elements of the charged offenses. Williams, 390

F.3d at 1326. Thus, there was sufficient evidence for the jury to reasonably

conclude that Payan committed the crimes of conspiracy to commit health care

fraud and committing heath care fraud. Capers, 708 F.3d at 1296.

                                          IV.

        We review de novo questions of law implicating the Sentencing Guidelines.

United States v. Kapordelis, 569 F.3d 1291, 1314 (11th Cir. 2009). Elements of a

crime must be proved to the jury beyond a reasonable doubt, but “[s]entencing


                                           9
             Case: 13-11844     Date Filed: 06/12/2014    Page: 10 of 14


factors, on the other hand, can be proved to a judge at sentencing by a

preponderance of the evidence.” United States v. O’Brien, 560 U.S. 218, 224, 130

S.Ct. 2169, 2174, 176 L.Ed.2d 979 (2010). “[T]he essential Sixth Amendment

inquiry is whether a fact is an element of the crime,” which constitutes a fact that

alters the statutory range of legally prescribed sentences, and such a fact must be

submitted to the jury. Alleyne v. United States, 133 S.Ct. 2151, 2153, 186 L.Ed.2d

314 (2013). However, sentencing factors may guide or confine a judge’s

discretion when sentencing an offender within the statutory range. O’Brien, 560

U.S. at 224, 130 S.Ct. at 2174-75. Neither the Fifth nor Sixth Amendments

prevent the district court from finding facts that enhance a sentence under the

Sentencing Guidelines. United States v. Gibson, 434 F.3d 1234, 1246 (11th Cir.

2006).

      The Sentencing Guidelines provide that, “[i]f a defendant was an organizer

or leader of a criminal activity that involved five or more participants or was

otherwise extensive, increase by 4 levels.” U.S.S.G. § 3B1.1(a). In determining

the role of a defendant in a criminal act, the district court should consider the

following:

      (1) the exercise of decision making authority, (2) the nature of
      participation in the commission of the offense, (3) the recruitment of
      accomplices, (4) the claimed right to a larger share of the fruits of the
      crime, (5) the degree of participation in planning or organizing the
      offense, (6) the nature and scope of the illegal activity, and (7) the
      degree of control and authority exercised over others.
                                          10
             Case: 13-11844     Date Filed: 06/12/2014    Page: 11 of 14




United States v. Gupta, 463 F.3d 1182, 1198 (11th Cir. 2006) (quoting U.S.S.G.

§ 3B1.1 cmt. n.4.) The Sentencing Guidelines also provide a mitigating role

adjustment, stating “[i]f the defendant was a minor participant in criminal activity,

decrease by two levels.” U.S.S.G. § 3B1.2(b). This section applies “to a defendant

. . . who is less culpable than most other participants, but whose role could not be

described as minimal.” Id. § 3B1.2 cmt. n.5.

      The district court did not err by applying the four-level aggravating role

adjustment for Payan, because he was a leader and organizer in the scheme to

defraud Medicare. He was one of the three true owners of A-1 Medical, he

contributed to the money to purchase the company, and he recruited assistance to

receive his share of the profits. Thus, he met the criteria to be considered a leader

or organizer. See Gupta, 463 F.3d at 1198. The record does not support the notion

that Payan played a minor role. Furthermore, the district court’s findings that

enhanced Payan’s sentences did not violate his rights under the Fifth or Sixth

Amendment because they were sentencing factors, and the findings did not alter

the statutory range. See O’Brien, 560 U.S. at 224, 130 S.Ct. at 2174; Gibson, 434

F.3d at 1246.

                                          V.

      We review the reasonableness of a sentence under a deferential abuse-of-

discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597,
                                          11
             Case: 13-11844     Date Filed: 06/12/2014   Page: 12 of 14


169 L.Ed.2d 445 (2007). The district court must impose a sentence “sufficient, but

not greater than necessary, to comply with the purposes” listed in 18 U.S.C.

§ 3553(a)(2), including the need to reflect the seriousness of the offense, promote

respect for the law, provide just punishment for the offense, deter criminal conduct,

and protect the public from the defendant’s future criminal conduct. See 18 U.S.C.

§ 3553(a)(2). In imposing a particular sentence, the court must also consider the

nature and circumstances of the offense, the history and characteristics of the

defendant, the kinds of sentences available, the applicable guidelines range, the

pertinent policy statements of the Sentencing Commission, the need to avoid

unwarranted sentencing disparities, and the need to provide restitution for victims.

Id. § 3553(a)(1), (3)-(7). However, the district court need not discuss or explicitly

state on the record each § 3553(a) factor. United States v. Turner, 474 F.3d 1265,

1281 (11th Cir. 2007). “Rather, an acknowledgment by the district judge that he or

she has considered the § 3553(a) factors will suffice.” Id.

      In reviewing the reasonableness of a sentence, we first ensure that the

sentence was procedurally reasonable, meaning the district court properly

calculated the guideline range, treated the Sentencing Guidelines as advisory,

considered the § 3553(a) factors, did not select a sentence based on clearly

erroneous facts, and adequately explained the chosen sentence. Gall, 552 U.S. at

51, 128 S.Ct. at 597. Once we determine that a sentence is procedurally sound, we


                                          12
             Case: 13-11844     Date Filed: 06/12/2014   Page: 13 of 14


examine whether the sentence was substantively unreasonable in light of the

totality of the circumstances. Id.

      The party who challenges the sentence bears the burden of showing that the

sentence is unreasonable in light of the record and the § 3553(a) factors. United

States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). Although we do not

automatically presume a sentence falling within the guideline range to be

reasonable, we ordinarily expect such a sentence to be reasonable. United States v.

Hunt, 526 F.3d 739, 746 (11th Cir. 2008). There is no unwarranted sentencing

disparity for substantially differing sentence between a defendant who provided

substantial assistance and one that did not. United States v. Williams, 526 F.3d

1312, 1324 (11th Cir. 2008).

      The weight given to any specific § 3553(a) factor is committed to the sound

discretion of the district court. United States v. Williams, 526 F.3d 1312, 1322

(11th Cir. 2008). However, we will reverse if left with the firm conviction that the

district court committed a clear error of judgment in weighing the § 3553(a) factors

by arriving at a sentence that lies outside the range of reasonable sentences dictated

by the facts of the case. United States v. Irey, 612 F.3d 1160, 1190 (11th Cir.

2010) (en banc).

      Payan’s sentences are not unreasonable. The district court was not required

to make individualized findings for each § 3553(a) factor. The evidence showed


                                          13
             Case: 13-11844     Date Filed: 06/12/2014    Page: 14 of 14


that Payan played a leading role in two schemes that defrauded Medicare of

millions of dollars. Although Payan’s codefendants’ sentences are substantially

lower than his, the difference is not unwarranted because they provided the

government with substantial assistance. Williams, 526 F.3d at 1324. Further, his

sentences are within the guideline range, which we ordinarily expect to be

reasonable. Hunt, 526 F.3d at 746. Payan does not leave us with a “firm

conviction that the district court committed a clear error in judgment,” and he fails

to carry his burden that the sentence was unreasonable.

      Upon review of the record and in consideration of the parties’ briefs, we

affirm.

      AFFIRMED.




                                         14
