United States v. Ming Pon, No. 17-11455 (11th Cir. 2020)Annotate this Case
The Eleventh Circuit affirmed defendant's conviction of twenty counts of health care fraud. Defendant's convictions stemmed from his involvement in a fraud scheme conducted through his ophthalmology office that resulted in a loss of nearly $7 million.
The court held that the district court did not abuse its discretion by not allowing defendant's expert to testify, under Daubert and Federal Rule of Evidence 702, about the use of subthreshold micropulse photostimulation as a treatment for wet age-related macular degeneration. The court also held that the district court did not abuse its discretion by admitting rebuttal evidence showing that defendant billed Medicare for performing services on a patient's blind left eye. Even if the district court erred in partially limiting defendant's surrebuttal evidence, and that error violated the Sixth Amendment, the court held that it was harmless beyond a reasonable doubt. Finally, the court vacated defendant's sentence on each count and remanded the case for the limited purpose of letting the district court modify defendant's sentence structure to bring it in line with USSG 5G1.2(d).