United States of America v. Omar Garcia

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 6, 2022
Decided May 16, 2022
Before
DIANE S. SYKES, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 21-1415
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
OMAR GARCIA,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 1:18-CR-00833(1)
Matthew F. Kennelly,
Judge.
O R D E R
Omar Garcia, formerly a physician for a company that provided healthcare to
Medicare beneficiaries, was convicted of six counts of healthcare fraud. After a five-day
trial, a jury determined that Garcia had knowingly and willingly participated in a
scheme to defraud Medicare by authorizing or prescribing medically unnecessary
allergen tests in violation of 18 U.S.C. § 1347. The judge sentenced him to a below-
Guidelines term of 18 months in prison, followed by one year of supervised release.
Garcia appeals, but his appointed counsel asserts that the appeal is frivolous and moves
to withdraw. Anders v. California, 386 U.S. 738, 744 (1967). Garcia opposes counsel’s
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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motion. 7 TH C IR . R. 51(b). Because counsel’s brief appears thorough and explains the
nature of the case and the issues that an appeal of this kind might involve, we limit our
review to the subjects she discusses and the additional issues that Garcia raises in his
response. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
First, counsel tells us that Garcia informed her that he does not wish to challenge
his below-Guidelines sentence. Because Garcia does not dispute counsel’s
representation, further discussion of the sentence is unnecessary. See United States v.
Caviedes-Zuniga, 948 F.3d 854, 856 (7th Cir. 2020).
Counsel next considers whether Garcia could challenge the judge’s denials of his
motions to dismiss the indictment and rightly determines that doing so would be
frivolous. The indictment alleged that from July 2011 to February 2015, Garcia and
others:
submitted, and caused to be submitted, fraudulent claims to Medicare that
falsely represented that Medicare beneficiaries, including Beneficiaries
PD, TC, MG, SM, LS, YF, and JF, had a medical need for certain diagnostic
tests prescribed and authorized by GARCIA and administered in the
home, including percutaneous allergen tests, nerve transmission tests, and
ultrasounds.
In one motion Garcia argued that the indictment was duplicitous because it
alleged a continuing course of conduct and, in each of six counts, a single distinct act.
The judge denied this motion, finding that allegations of multiple fraudulent claims did
not make the indictment duplicitous. As counsel rightly notes, an indictment is
duplicitous only if it charges two or more offenses within the same count. See United
States v. O'Brien, 953 F.3d 449, 454 (7th Cir. 2020). Here, each count charged only one
crime (i.e., by identifying a specific date on which a discrete fraudulent claim was
submitted to Medicare for payment with regard to a specific medically unnecessary test
authorized by Garcia for a specific patient). Thus, counsel is correct that it would be
frivolous to challenge the indictment as duplicitous.
In another motion Garcia argued that the indictment was impermissibly vague
because it did not define what is “medically necessary.” The judge denied this motion,
finding that the indictment adequately identified the scheme and the means by which it
was carried out. Counsel rightly concludes that a vagueness challenge to the indictment
would also be frivolous. We review indictments practically and not in a hypertechnical
manner, see United States v. Khan, 937 F.3d 1042, 1050 (7th Cir. 2019), and the indictment

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here—alleging separate counts for specific executions of a single scheme, specifying
precise dates and Medicare beneficiaries, and asserting that Garcia “knowingly and
willfully” participated in the scheme—amply apprised Garcia of the charges against
him.
Counsel next asks whether Garcia could challenge one evidentiary ruling that
was mentioned in his posttrial motion relating to the admission of Medicare billing data
for patients other than those identified in the indictment. Garcia argued that the data
was prejudicial and offered for propensity purposes. See FED. R. EVID. 403, 404(b). But
we agree with counsel that any challenge to the admissibility of this billing data would
be frivolous. Judges have broad discretion in making such rulings, see Houlihan v. City of
Chicago, 871 F.3d 540, 553 (7th Cir. 2017), and the billing data was probative of Garcia’s
involvement in the charged scheme, which included—but was not restricted to—the
patients identified in the indictment.
Counsel also considers whether Garcia could raise a nonfrivolous challenge to
his proposed jury instructions. But counsel rightly rejects such a challenge as frivolous
because Garcia proposed the instructions himself and thus waived any challenge to
them. See United States v. Bell, 28 F.4th 757, 763 (7th Cir. 2022).
Counsel and Garcia both consider whether he could challenge the sufficiency of
the evidence supporting his convictions. Garcia, for his part, contends that the
government did not prove his knowledge of the scheme; he points to his lack of direct
contact with patients and to a nurse practitioner’s testimony that he, Garcia, was not
informed when medically unnecessary tests were prescribed. But counsel concludes,
and we agree, that Garcia could not plausibly contend that the evidence, viewed in the
light most favorable to the verdict, was insufficient for a rational jury to find him guilty.
See Lange v. City of Oconto, 28 F.4th 825, 841 (7th Cir. 2022). The government presented
substantial evidence for a jury to find that Garcia knew of the scheme to defraud
Medicare: He was paid based on a percentage of his Medicare billings; he signed off on
more than 900 allergy tests with limited justification for their necessity; he had little
communication with the nurse practitioners whom he supervised; and he told the FBI
that many tests were “financial decisions motivated by money.”
We also agree with counsel that it would be fruitless for Garcia to challenge the
denial of his posttrial motions. Garcia had moved for a judgment of acquittal and a new
trial under Rules 29 and 33, respectively, of the Federal Rules of Criminal Procedure,
arguing that there was not sufficient evidence to support his conviction and that the
government constructively amended the indictment by not proving that he had

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authorized and prescribed any allergy tests. The judge found that the government met
its burden of proof. The judge determined that the government was required to prove
only that Garcia prescribed or authorized the tests and that the government had proved
the latter. The general rule is that when a jury returns a guilty verdict on an indictment
charging several acts in the conjunctive, the verdict stands if the evidence is sufficient
with respect to any one of the acts charged. See Turner v. United States, 396 U.S. 398, 420
(1970); United States v. Kincaid, 571 F.3d 648, 655–56 (7th Cir. 2009). The judge concluded
that the evidence “unquestionably” permitted a jury to find beyond a reasonable doubt
that Garcia signed off on hundreds of tests—thereby “authorizing” them—and
permitted them to be submitted to Medicare for payment under his identification
number. Counsel is therefore correct that Garcia could not make a nonfrivolous
challenge to the denial of his posttrial motions.
Lastly, Garcia suggests in his Rule 51(b) response that trial counsel rendered
ineffective assistance by providing a “meaningless defense,” asking him repeatedly to
plead guilty, and meeting with him only once in four years. We will not consider these
arguments, however, because as Garcia’s counsel properly advised him, a claim of
ineffective assistance of counsel is best raised on collateral review, at which time a more
complete record can be developed. See Massaro v. United States, 538 U.S. 500, 504–05
(2003); United States v. Cates, 950 F.3d 453, 456–57 (7th Cir. 2020).
Counsel’s motion to withdraw is GRANTED and the appeal is DISMISSED.

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