Dr. Santeiro’s Supplemental Sentencing Memorandum — United States v. Dr. Jose Santeiro (Dkt. 751, S.D. Fla.)

Summary

Dr. Jose Santeiro's supplemental sentencing memorandum, entered on the Southern District of Florida docket on 07/06/2022 in Case 0:21-cr-60020-WPD, answers the government's sentencing memorandum [D.E. 738]. That memorandum says Santeiro's conduct caused greater loss than any other defendant's; counsel Marcos Beaton, Jr. argues the loss figure rests mainly on Florida Life and Future Now, clinics offered at trial as extrinsic evidence of intent and backed only by a summary witness's charts. Citing United States v. Stein, the memo notes the Court cut every other defendant's loss to 10% of the government's figure and argues Santeiro's share should be cut further, because Dr. Lieberman and others kept Santeiro in the dark. If loss cannot be determined, it points to gain: Santeiro made $267,041 from Compass/War. It asks for an individualized sentence under Gall v. United States.

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Case 0:21-cr-60020-WPD Document 751 Entered on FLSD Docket 07/06/2022 Page 1 of 10

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. DIMITROULEAS/SNOWUNITED

STATES OF AMERICA

DR. JOSE SANTEIRO,

Defendant.
/

DR. SANTEIRO’S SUPPLEMENTAL SENTENCING
MEMORANDUM

Dr. Santeiro submits this supplement to his original sentencing memorandum to

respond, in part, to the government’s sentencing memorandum [D.E. 738] and

sentencing proposal.

This case, and Dr. Santeiro’s individual culpability, has gone from generally

being an absent physician and medical director, who should have retired, to: “Dr.

Santeiro therefore caused even more financial loss, and committed fraud more

pervasively, than did even Jonathan Markovich” [D.E. 738 at p. 2] and “There is no

escaping the fact that Dr. Santeiro’s conduct was more expansive, and resulted in

greater loss, than any other defendant in this case.” [D.E. 738 at p. 9].

The government’s purported “limited “use of 404(b) extrinsic evidence relating

to Florida Life and Future Now, for the purpose of proving intent has now (at
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Case 0:21-cr-60020-WPD Document 751 Entered on FLSD Docket 07/06/2022 Page 2 of 10

sentencing as it did at trial) taken on a life of its own, becoming not just a feature in

this case, but the main attraction. The government devotes five pages – the most

specific, heavily-cited five pages -- of its sentencing memorandum to Florida Life and

Future Now. [D.E.738 at pp. 4-9]. Florida Life and Future have gone extrinsic

matters, used to prove intent, based on “trends” the government’s “summary witness”

observed in “samples of patient files” to: “Dr. Santeiro Committed Health Care Fraud

at Florida Life and Future Now.” [D.E. 738 at 4]. It is therefore unsurprising (but still

shocking) that the primary driver of the government’s proposed loss calculation as to

Dr. Santiero are Florida Life and Future Now. [D.E. 738 at pp. 8-9].

The governments arguments about the evidence, the sentencing guidelines and

Dr. Santeiro’s individual culpability are at best speculative and unsupported by the

record.

Whatever the jury verdict means, the verdict is not an authorization to

indiscriminately apply the sentencing guidelines, the verdict is not an invitation to

abdicate the individualized application of the sentencing factors in 18 U.S.C. § 3553,

and the verdict does not absolve the government of its burden of proof at sentencing.

While the government’s burden is measured against a preponderance standard,

the Court must ensure that the government carries this burden by presenting reliable

and specific evidence. United States v. Lawrence, 47 F.3d 1559, 1566 (11th Cir.1995).

And despite what the government’s sentencing memorandum might suggest, this is a

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real burden, which the Eleventh Circuit has described by pointing to the following

description:

Although not as rigorous as the reasonable doubt or clear and convincing
standards, the preponderance standard is not toothless. It is the district
court's duty to ensure that the Government carries this burden by
presenting reliable and specific evidence. As one of our sister circuits
noted: [T]he Guidelines do not reduce district court judges to mere
automatons, passive compilers of ciphers, or credulous naifs who must
accept as canon all that which is presented to them regarding a defendant's
involvement in the crime charged or conduct relevant thereto.... [T]he
preponderance of the evidence standard ... does not relieve the sentencing
court of the duty of exercising the critical factfinding function that has
always been inherent in the sentencing process.... [The standard signifies]
a recognition of the fact that if the probation officer and the prosecutor
believe that the circumstances of the offense, the defendant's role in the
offense, or other pertinent aggravating circumstances, merit a lengthier
sentence, they must be prepared to establish that pertinent information by
evidence adequate to satisfy the judicial skepticism aroused by the
lengthier sentence that the proffered information would require the district
court to impose.

Lawrence, 47 F.3d 1559, 1566–67 (11th Cir. 1995)(citing United States v. Wise, 976
F.2d 393, 402-03 (8th Cir. 1992),cert. denied,___ U.S. ___, 113 S.Ct. 1592, 123
L.Ed.2d 157 (1993) .

For example, regarding loss, the Eleventh Circuit outlined the government’s

obligation as follows:

The government bears the burden of proving by a preponderance of the
evidence actual loss attributable to the defendant's conduct. United States
v. Rodriguez, 751 F.3d 1244, 1255 (11th Cir. 2014). "[A] sentencing court
is not generally required to make detailed findings of individualized losses
to each victim." United States v. Orton, 73 F.3d 331, 335 (11th Cir. 1996)
(considering the similar predecessor guideline, U.S.S.G. § 2F1.1 ).
Instead, the court may employ a variety of methods to derive a "reasonable
estimate of the loss" to the victims based on the information available to
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Case 0:21-cr-60020-WPD Document 751 Entered on FLSD Docket 07/06/2022 Page 4 of 10

the district court. United States v. Snyder, 291 F.3d 1291, 1295 (11th Cir.
2002) ; accord United States v. Ford , 784 F.3d 1386, 1396 (11th Cir.
2015) ; see also U.S.S.G. § 2B1.1 cmt. n.3(C)(iv) (providing that district
courts should "tak[e] into account, as appropriate and practical under the
circumstances," a variety of factors including the "approximate number of
victims multiplied by the average loss to each victim"). Although the
district court may estimate the amount of loss, it cannot "speculate about
the existence of facts and must base its estimate on reliable and specific
evidence." Ford, 784 F.3d at 1396 ; accord United States v. Sepulveda ,
115 F.3d 882, 890-91 (11th Cir. 1997).

United States v. Stein, 846 F.3d 1135, 1152 (11th Cir. 2017).

In Stein, a securities fraud case, the Eleventh Circuit reversed for resentencing

because the Court did not require the government to prove, with specificity, facts that

affected the defendant’s loss calculation. Id. at 1156. In reaching this conclusion, the

court went through an extensive analysis of loss determination, setting forth a two-part

inquiry, consisting of factual causation and legal causation. Id. at 1153-55. The court

held that the government had failed to prove the loss amount under both types of

causation. Id.

The Stein case is instructive because, the government in Stein argued that the

loss calculation should encompass 2,415 investors that lost money, without regard to

whether the investors actually relied on the defendant’s misrepresentation and without

regard to whether intervening events lowered the defendant’s loss amount. Id.

As to investor reliance, the Stein court held that the testimony, victim impact

statements and testimony that the only source for stock information was public filings,

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Case 0:21-cr-60020-WPD Document 751 Entered on FLSD Docket 07/06/2022 Page 5 of 10

was “insufficient to support the inference that all 2,415 investors relied on Mr. Stein's

fraudulent information when deciding to purchase Signalife stock.” Id. at 1154. The

court went on to note that “on this thin record, the district court ‘"engage[d] in the kind

of speculation forbidden by the Sentencing Guidelines."’ Id. (citations omitted).

As to intervening events, the court in Stein held that sentencing court failed to

consider whether the stock decline that the defendant argued was attributable to short-

selling and a general market decline were unforeseeable and should result in a lower

loss amount. Id. at 1155-56. The Court noted that “[o]nce Mr. Stein pointed to

intervening events that may have affected the stock price, the district court was obliged

to make findings regarding the effects of these intervening events, if any, and whether

these events were reasonably foreseeable to Mr. Stein.” Id. at 1156.

The reasoning in Stein translates directly to a rejection of the indiscriminate loss

amount arguments advanced by the government as to Dr. Santeiro. This Court has

obviously recognized the flaw in the government’s view of the evidence and loss

calculations, by rejecting and reducing the government’s loss proposals as to every

other defendant to be sentenced in this matter. The Court has reduced the loss amount

to 10% of what the government has proposed for every other defendant

However, consistent with the applicable law, and contrary to what the

government takes as a given, the Court should “discount” – to use the government’s

word – Dr. Santeiro’s loss amount as to Compass and War more so than any other

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Case 0:21-cr-60020-WPD Document 751 Entered on FLSD Docket 07/06/2022 Page 6 of 10

defendant. While the reasoning behind the “discounts” applied to other defendants

equally applies to Dr. Santeiro, the evidence at trial established that Dr. Santeiro was

never told and had no way of knowing or foreseeing what the defendants that received

the 90% discount were doing because they were actively lying to him on almost every

front.

Take Dr. Lieberman, for example: The government outlandishly still claims that

Dr. Santeiro “allowed” Dr. Lieberman to use his credentials and that this was a “blank

check”, when the testimony at trial by Dr. Lieberman was that Dr. Lieberman – a

highly regarded and credentialed physician – was impersonating Dr. Santeiro in the

medical records software, was actively involved in sedating patients with the comfort

drink, discussed the need and desire to increase patient numbers with co-conspirators,

was physically at Compass to see what was going on, all the while understanding that

Dr. Santiero trusted Lieberman’s judgment because Santeiro told Lieberman as much.

Dr. Lieberman also testified that Miami’s most respected and responsible physicians

had relied on Dr. Lieberman for decades and that those physicians reasonably relied on

him based on his reputation and experience, and because he gave them no reason to

distrust him. This is no less applicable to Dr. Santeiro. Additionally, there was zero

evidence presented by the government, either through witness testimony or written

communication, regarding conversations with Dr. Santeiro permitting the improper use

of his credentials.

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Add to this, the testimony that established the secret kick back agreement

between Garnto and Markovich, which was kept from Santeiro. Add to this, the

testimony that Garnto and others were actively getting patients high to qualify for

treatment and paying the patients, which was also kept from Santeiro. Add to this, the

evidence established laboratory testing ordered in the name of Dr. Santiero, but in

reality, auto-generated by the software using an IP address of 0.0.0.

These lies, all of which the government has acknowledged, are the kind of

“intervening events” discussed in Stein and which were not foreseeable to Dr. Santeiro

under any of the government’s evolving theories. This begs the question: How much

of the 10% loss should be attributable to Dr Santeiro when that 10% has been applied

to demonstrably – as in there is actual evidence of it – more culpable defendants, who

were intricately aware of the scope of the fraud and actively kept Dr. Santeiro in the

dark? Can that subset be established or determined with any specificity or reliability,

if we accept for the sake of argument, that Dr. Santeiro was convicted of falling asleep

at the wheel?

As the Court is surely aware, if the district court determines that the loss

"reasonably cannot be determined," the court may use instead "the gain that resulted

from the offense.”. United States v. Stein, 846 F.3d at 1154. (citing to §2B1.1 cmt.

n.3(B)). As the Court is also aware, Dr. Santeiro made $267,041 from Compass/War.

Florida Life and Future now are not relevant conduct just because the

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government calls it fraud. And because overstatement and exaggeration have been the

constant in this case, it’s not enough to call it fraud. Nope, it’s all fraud. And as such,

just because the government says so, it should be included in the loss amount and

indeed turn out to be the largest loss amount in the case. To call this all speculative

almost dignifies the argument.

The actual, provable loss at Compass and War, which were the subject of two

multi-week trials, saw the testimony of a parade of witnesses, some of whom were

cooperators that admitted to and described the fraud was reduced by 90% to arrive at

what this Court felt was the best estimate of the actual loss. Florida Life and Future

Now, on the other hand, were the subject of a “summary” witness who backed

handpicked, theory-driven numbers into a chart to identify “trends.” [D.E. 738 at p.

5]. That Florida Life or Future Now are wholesale frauds, resulting in some loss

attributable to Dr. Santeiro, is more than just speculative, its imagined. It has not been

proven by any quantum of proof, much less a preponderance standard. It is not

supported by any reliable or specific. Frankly, it has all been just argued into existence

by the government.

Therefore, to hold Dr. Santeiro accountable for a single dollar of this imaginary

loss would, to understate it, "engage in the kind of speculation forbidden by the

Sentencing Guidelines." United States v. Bradley, 644 F.3d 1213, 1292 (11th Cir.

2011). To do so, would also violate Dr. Santeiro’s Sixth Amendment rights, including

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the constitutional right as set forth in Apprendi v. New Jersey, 530 U.S. 466 (2000).

Whatever this Court decides the guidelines are, it is well established that a

sentencing court “may not presume that the Guideline range is reasonable, but rather

“must make an individualized assessment based on the facts presented.” Gall v. United

States, 552 U.S. 38, 50 (2007). The Gall Court specifically rejected the use of rigid

mathematical formulas to determine whether a variance from the Guidelines’ sentence

range is justified. Id. at 47. The Court also rejected the idea that “extraordinary

circumstances” are required to justify a sentence outside the Guidelines’ advisory

range. Id.

Thus, as the Court considers what constitutes a reasonable sentence and how the

§ 3553(a) factors weigh as to Dr. Santeiro, we urge the Court to reject the government’s

dystopian argument on the facts of the case, the sentencing guidelines and Dr.

Santeiro’s individual culpability.

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The United States Supreme Court has clearly established that our sentencing

regime is set up to do quite the opposite of what government appears to suggest, and

that is “to consider every convicted person as an individual and every case as a unique

study in the human failings that sometimes mitigate, sometimes magnify, the crime and

the punishment to ensue,” Pepper v. United States, 131 S.Ct. 1229, 1239-40 (2011)

(internal quotations and citations omitted); and, as such, that “the punishment should

fit the offender not merely the crime.” Id.

Respectfully submitted,

BEATON LAW FIRM PA
12925 SW 132nd Street, Ste 4
Miami, Florida 33186
Tel: (305) 378-5950
E-mail: mbeaton@beatonlawfirm.com

/s/ Marcos Beaton Jr.
Marcos Beaton, Jr.
Florida Bar No. 0573787
Counsel for Dr. Jose Santeiro

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the foregoing document was filed via the Court’s CM/ECF
system on June 6, 2022 and electronically served on the parties included on the service list.

/s/ Marcos Beaton Jr.
Marcos Beaton Jr.

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