United States v. Jonathan Markovich

USCA11 Case: 22-10978 Document: 55-1 Date Filed: 03/14/2024 Page: 1 of 23

[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-10978

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JONATHAN MARKOVICH,

DANIEL MARKOVICH,

Defendants-Appellants.

____________________

Appeals from the United States District Court

for the Southern District of Florida

D.C. Docket No. 0:21-cr-60020-WPD-1

____________________

USCA11 Case: 22-10978 Document: 55-1 Date Filed: 03/14/2024 Page: 2 of 23

2 Opinion of the Court 22-10978

____________________

No. 23-11835

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JONATHAN MARKOVICH,

DANIEL MARKOVICH,

Defendants-Appellants.

____________________

Appeals from the United States District Court

for the Southern District of Florida

D.C. Docket No. 0:21-cr-60020-WPD-1

____________________

Before WILLIAM PRYOR, Chief Judge, and JILL PRYOR and MARCUS,

Circuit Judges.

WILLIAM PRYOR, Chief Judge:

This appeal requires us to decide whether the district court

abused its discretion by denying Jonathan Markovich and Daniel

Markovich a new trial following their convictions for operating

USCA11 Case: 22-10978 Document: 55-1 Date Filed: 03/14/2024 Page: 3 of 23

22-10978 Opinion of the Court 3

fraudulent drug rehabilitation clinics. First, the Markoviches argue

that the district court violated the Due Process Clause of the Fifth

Amendment, see U.S. CONST. amend. V; Brady v. Maryland, 373 U.S.

83 (1963); Giglio v. United States, 405 U.S. 150 (1972), and the Con-

frontation Clause of the Sixth Amendment, see U.S. CONST. amend.

VI, by denying their motion to compel the prosecution to obtain

and disclose confidential medical records possessed by third parties.

Second, they argue that the district court violated Federal Rules of

Evidence 702 and 403 by admitting unreliable and confusing expert

testimony about the clinics’ medical and billing practices. Third,

they argue that the district court abused its discretion by admitting

lay summary testimony about medical and billing records. Fourth,

Jonathan Markovich argues that his two bank-fraud counts were

prejudicial. Fifth, the Markoviches argue that the district court

abused its discretion by denying their motion for discovery, an evi-

dentiary hearing, and for a new trial based on newly discovered ev-

idence. Because the prosecution did not possess the requested rec-

ords and the Markoviches do not know what the records contain;

the expert’s testimony was clear and reliable; the summary testi-

mony was proper; Jonathan Markovich forfeited any challenge to

the bank-fraud counts; and the newly discovered evidence is cumu-

lative; we affirm the Markoviches’ convictions.

I. BACKGROUND

Jonathan Markovich and his brother Daniel Markovich ran two

substance-abuse clinics in Florida. Compass Detox, LLC, provided

USCA11 Case: 22-10978 Document: 55-1 Date Filed: 03/14/2024 Page: 4 of 23

4 Opinion of the Court 22-10978

inpatient addiction treatment, and We Are Recovery, LLC, pro-

vided outpatient treatment.

The prosecution charged the Markoviches—along with six

other individuals who helped own, operate, or provide services to

the clinics—in a 35-count indictment. The indictment alleged that

the Markoviches and their co-conspirators had engaged in fraudu-

lent transactions on the clinics’ behalf. The prosecution charged

Jonathan with one count of conspiring to commit health-care

fraud and wire fraud, see 18 U.S.C. § 1349; eight counts of health

care fraud, see id. § 1347; one count of conspiring to pay and receive

kickbacks, see id. § 371; one count of paying and offering kickbacks,

see id. § 220(a)(2)(B); one count of soliciting and receiving kick-

backs, see id. § 220(a)(1); one count of conspiring to commit money

laundering, see id. § 1956(h); eight counts of money laundering, see

id. §§ 1956(a)(1)(B)(i), 1957(a); and two counts of bank fraud, see id.

§ 1344(2). The prosecution charged Daniel with one count of con-

spiring to commit health-care fraud and wire fraud, see id. § 1349;

five counts of health care fraud, see id. § 1347; one count of con-

spiring to pay and receive kickbacks, see id. § 371; and two counts

of paying and offering kickbacks, see id. § 220(a)(2)(B).

The indictment alleged that the Markoviches paid patients to

recruit other drug addicts with high-paying health insurance poli-

cies to receive “treatment” at the Markoviches’ clinics. The recruit-

ers were instructed to bribe addicts with promises of money, gifts,

and drugs if they would admit themselves to the clinics for care.

But instead of treating the patients, the Markoviches and their

USCA11 Case: 22-10978 Document: 55-1 Date Filed: 03/14/2024 Page: 5 of 23

22-10978 Opinion of the Court 5

associates used additional bribes to encourage the extended stay

and readmission of these patients, all while billing their health in-

surers over $100 million for services that were either medically un-

necessary or never provided. For example, the clinics prescribed

dangerous combinations of medications with the sole purpose of

getting patients high; billed for therapy sessions that patients did

not attend; and bribed patients with money and drugs to continue

receiving expensive treatments that they did not need. The Marko-

viches and their co-conspirators reaped about $30 million from the

fraudulent claims. And Jonathan Markovich also obtained over

$550,000 in loans on the clinics’ behalf through the federal

Paycheck Protection Program by certifying in his loan applications

that the clinics were not engaged in any illegal activity.

During discovery, the prosecution obtained from third parties

the medical and billing records for all the patients admitted to the

Markoviches’ clinics. These records revealed the treatment that pa-

tients received at the clinics and the bills submitted to the patients’

insurance companies for that treatment. The prosecution disclosed

these records to the Markoviches as part of its Brady obligation, and

the district court admitted the records into evidence.

Records that reveal information about patients’ substance-

abuse treatment are confidential and protected from disclosure by

the Public Health Service Act. See 42 U.S.C. § 290dd-2(a) (records

of the identity or treatment of any patient relating to substance-

abuse treatment are confidential). To obtain those records, the

prosecution had to abide by strict confidentiality procedures.

USCA11 Case: 22-10978 Document: 55-1 Date Filed: 03/14/2024 Page: 6 of 23

6 Opinion of the Court 22-10978

Without patient consent, treatment records may be disclosed only

if authorized by court order “after application showing good

cause.” Id. § 290dd-2(b)(2)(C). Only an “administrative, regulatory,

supervisory, investigative, law enforcement, or prosecutorial

agency” may apply for a court order to obtain patient records in

connection with a criminal prosecution. 42 C.F.R. § 2.66(a)(1). If

the court orders disclosure, the prosecution must shield the pa-

tients’ identities and afford them an opportunity to respond. Id.

§ 2.66(b), (d). The prosecution obtained court orders allowing it to

subpoena third-party banks and insurers for records of patients’

treatment at the Markoviches’ clinics. The prosecution disclosed

these records to the Markoviches after it obtained protective orders

from the magistrate judge and provided the patients with notice

and an opportunity to respond.

The Markoviches moved before trial to compel the prosecution

to obtain, and then disclose to the Markoviches, additional medical

and billing records about the substance-abuse treatment that the

patients received at other clinics. The Markoviches argued that this

information was “important to obtain a complete picture of the

patients’ medical history.” And they argued that because federal

law permits only the prosecution to apply for access to these rec-

ords, id. § 2.66(a)(1), the prosecution had a Brady obligation to seek

them on the Markoviches’ behalf. The district court denied the mo-

tion on the ground that the prosecution “does not have any [Brady]

obligation to conduct an investigation for the defense.” The Mar-

koviches renewed their motion to compel several times during

trial, and the district court denied the motion each time.

USCA11 Case: 22-10978 Document: 55-1 Date Filed: 03/14/2024 Page: 7 of 23

22-10978 Opinion of the Court 7

During a 22-day trial, the prosecution presented a robust case

against the Markoviches. It introduced thousands of pages of med-

ical and billing records. And it called 15 witnesses, including former

clinic patients, a medical expert, a forensic accountant, a certified

fraud examiner, and two of the Markoviches’ convicted co-con-

spirators.

Mario Kustura was one of the prosecution’s lead witnesses and

one of the Markoviches’ convicted co-conspirators. The clinics had

employed Kustura, a former patient, to recruit new patients.

Kustura testified that the Markoviches permitted him to use drugs

and money to lure drug addicts with high-paying insurance policies

to the clinics. He also discussed his own battle with drug addiction

and relapse but testified that he had “been clean” for “[a]bout nine

months.”

Defense counsel cross-examined Kustura at length about his

history of lying, and Kustura readily confessed his dishonesty:

Q. Mr. Kustura, you would agree with me, would

you not, that you are, in fact, a liar?

A. I have lied at times, yes.

Q. Yeah. You’re someone who tells lies, right?

Right?

A. At times.

Q. You’ve been telling lies for years, right?

A. At times.

Q. Not just a few lies. A lot of lies, right?

USCA11 Case: 22-10978 Document: 55-1 Date Filed: 03/14/2024 Page: 8 of 23

8 Opinion of the Court 22-10978

A. Yes.

Q. You’ve been telling lies to get money, right?

A. Yes.

Q. Lies to get drugs, right?

A. Yes.

Q. Lies to your family, right?

A. Yes.

Q. Lies to your friends, right?

A. Yes.

Q. Lies to women, right?

A. Yes.

Q. To business associates, right?

A. Yes.

Q. You are, in fact, are you not, someone who tells

lies?

A. Yes, I am.

Dr. Kelly J. Clark was another prosecution witness. The prose-

cution retained Clark as an expert in substance-abuse treatment.

Clark has extensive academic credentials and experience in sub-

stance-abuse treatment and billing. She told the jury that in prepa-

ration for her testimony, the prosecution provided her, and she ex-

tensively reviewed, the medical and billing records for “12 specific

patients” who were treated at the Markoviches’ clinics. She was also

given access to the records for the clinics’ other patients, and she

USCA11 Case: 22-10978 Document: 55-1 Date Filed: 03/14/2024 Page: 9 of 23

22-10978 Opinion of the Court 9

testified that she reviewed “at least a dozen” of those patients’ rec-

ords “at random” to ensure that the records the prosecution pro-

vided her were not outliers. But Clark made clear that she “did not

review” the records for “each and every patient.”

Clark described improprieties that she identified in her review

of the patient files. For example, she testified that the Markoviches’

clinics billed insurers for excessive and unnecessary urine tests, as

well as for therapy sessions that patients did not attend. And she

testified that the clinics improperly prescribed patients, and billed

insurers for, large quantities of controlled substances that provided

no therapeutic benefit and served only to intoxicate the patients.

Clark stressed that her opinions were based on the limited rec-

ords that she personally reviewed and did not necessarily ref lect

the clinics’ practices for all patients. She testified that she saw evi-

dence of drug test tampering in “the limited amount of patient files

[she] reviewed”; that based on her review of “the[] charts,” the clin-

ics “absolutely drugged” patients; that in the records that “[she]

looked at,” patients did not meet the criteria for detox treatment;

and that “[b]ased on [her] review of the files,” the clinics’ billing

practices “also w[ere] a problem.”

Defense counsel cross-examined Clark about the limited scope

of her review. Clark conceded that she had reviewed “less than 1

percent of total patients”; that she did not ask the prosecution “for

any patient files of patients who, in fact, are clean and sober today”;

and that she could not recall the names of any of the patients

whose files she reviewed at random.

USCA11 Case: 22-10978 Document: 55-1 Date Filed: 03/14/2024 Page: 10 of 23

10 Opinion of the Court 22-10978

The district court instructed the jury about how to evaluate

witness credibility generally and expert testimony specifically. The

district court instructed the jurors that they “may believe or disbe-

lieve any witness, in whole or in part” and must treat an expert’s

testimony like “any other witness’s testimony” and “decide for

[themselves]” whether to accept the expert’s opinions.

The prosecution also called Melissa Parks, a certified fraud ex-

aminer, to testify as a lay summary witness. The prosecution re-

tained Parks to review a sample of the medical records, billing rec-

ords, emails, and other documents that had been admitted into ev-

idence and then to summarize that evidence for the jury. Parks be-

gan by testifying about the scope of her review. She explained that

she had access to the medical and billing records for all the approx-

imately 1,000 patients who attended the Markoviches’ clinics dur-

ing the relevant timeframe, but that she reviewed the files for only

125—about 12 percent—of the patients. She testified that she had

“randomly selected” most of the patients in her sample using a

“random number generator,” but the prosecution selected “a few

patients” for her to include in her review. Parks then testified about

trends she observed in the patient files that she reviewed, including

patients’ drug use while at the clinics, patients’ frequent absences

at therapy sessions, patients’ repeated admissions to the clinics, and

the Markoviches’ alterations of patient files.

Like Clark, Parks emphasized that her summary was based on

the limited sample of patients whose records she reviewed. She tes-

tified, for instance, that her “sample analysis” of the clinics’ group

USCA11 Case: 22-10978 Document: 55-1 Date Filed: 03/14/2024 Page: 11 of 23

22-10978 Opinion of the Court 11

therapy notes was based on “the 125 patients that [she] reviewed,”

and that the therapy attendance rates she summarized were based

on her review of that same “sample population.” During cross-ex-

amination, Parks conceded that the scope of her review was lim-

ited and that she did not review every single patient file. And the

district court instructed the jurors that they should accord sum-

mary testimony “no greater consideration” than the record evi-

dence on which it was based; that they must determine whether

summary testimony “correctly presented the information con-

tained in the documents” on which it was based; and that they must

decide for themselves “what, if any, weight” to give summary tes-

timony.

The district court dismissed three of Daniel Markovich’s

health-care fraud counts before submitting the case to the jury, and

the jury convicted the Markoviches on all remaining counts. The

Markoviches sought a new trial, challenging the denial of their mo-

tion to compel and the admission of Clark’s and Parks’s testimony.

The district court denied the motion. The Markoviches appealed

their convictions.

While their appeal was pending, the Markoviches filed another

motion for a new trial, this time based on “newly discovered evi-

dence.” See FED. R. CRIM P. 33(b)(1). The prosecution had received

and sent the Markoviches an incident report from the Broward

Sheriff ’s Office. The report revealed that two days before Kustura

testified for the prosecution, Kustura’s mother called paramedics

to her and Kustura’s hotel room and reported that Kustura was

USCA11 Case: 22-10978 Document: 55-1 Date Filed: 03/14/2024 Page: 12 of 23

12 Opinion of the Court 22-10978

“not breathing.” When the paramedics arrived, Kustura was “up

washing his face” and “refused” to be taken to the emergency

room. Bodycam footage of the incident records Kustura telling par-

amedics that he had been drinking alcohol but had not taken illegal

drugs. And a Hampton Inn call log states that shortly after the 9-1-

1 call, there was a two-minute phone call from Kustura and his

mother’s hotel room to a Florida phone number.

The Markoviches requested discovery and an evidentiary hear-

ing to determine whether Kustura overdosed on drugs on the night

of the 9-1-1 call and, if so, whether he had called and told someone

from the prosecutor’s office about it. The Markoviches reasoned

that this evidence, if discovered, would require a new trial because

it would prove that Kustura falsely testified at trial two days later

when he said that he had “been clean” from illegal drugs for

“[a]bout nine months,” and it would prove that the prosecution

knew and suppressed that fact.

The prosecution opposed the motion for discovery and a new

trial. The prosecution argued that the emergency dispatch to

Kustura’s hotel room did not prove that he had used illegal drugs.

The prosecution argued that, to the contrary, Kustura’s many neg-

ative drug tests both before and after the incident proved that he

had not. The prosecution insisted that none of its agents knew of

the emergency visit until after trial and that the Florida phone num-

ber listed on the hotel call log did “not belong to a member of the

prosecution team.” In any event, evidence that Kustura had taken

drugs the night of the incident and falsely testified about his

USCA11 Case: 22-10978 Document: 55-1 Date Filed: 03/14/2024 Page: 13 of 23

22-10978 Opinion of the Court 13

sobriety, the prosecution argued, would be “weak, cumulative im-

peachment” evidence that could not warrant a new trial.

The district court denied the motion. It found “no indication”

that Kustura had overdosed on drugs or that the prosecution knew

about the 9-1-1 call when he testified. And it found that even if he

had overdosed and lied about it, that evidence “would have been

merely cumulative,” “merely impeaching,” and “would not have af-

fected the ultimate outcome” of the trial. The Markoviches ap-

pealed the denial of their motion for discovery and a new trial. We

consolidated the appeal with the appeal from their convictions.

II. STANDARD OF REVIEW

We review for abuse of discretion the denial of a motion to

compel discovery, United States v. Cuya, 964 F.3d 969, 970 (11th Cir.

2020), the admission of lay and expert testimony, United States v.

Crabtree, 878 F.3d 1274, 1287 (11th Cir. 2018), and the denial of a

motion for a new trial based on newly discovered evidence, United

States v. Barsoum, 763 F.3d 1321, 1341 (11th Cir. 2014).

III. DISCUSSION

We divide our discussion into five parts. First, we explain that

the district court did not abuse its discretion by denying the Mar-

koviches’ motion to compel discovery. Second, we explain that the

district court did not abuse its discretion by admitting Clark’s ex-

pert testimony. Third, we explain that the district court did not

abuse its discretion by admitting Parks’s lay summary testimony.

Fourth, we explain that Jonathan Markovich forfeited any challenge

to his bank-fraud counts. Fifth, we explain that the district court

USCA11 Case: 22-10978 Document: 55-1 Date Filed: 03/14/2024 Page: 14 of 23

14 Opinion of the Court 22-10978

did not abuse its discretion by denying the Markoviches’ motion for

post-trial discovery and a new trial based on newly discovered evi-

dence.

A. The District Court Did Not Abuse its Discretion

by Denying the Markoviches’ Motion to Compel.

The Markoviches argue that the district court abused its discre-

tion by denying their motion to compel discovery of confidential

treatment records. The Markoviches acknowledge that the prose-

cution produced records pertaining to the treatment of patients at

the Markoviches’ clinics. But they say that the prosecution must

also obtain on their behalf records pertaining to the treatment that

these patients received at other addiction clinics. Although the Mar-

koviches do not know what those records would reveal, they argue

that because the records might contain impeachment information,

the refusal to require the prosecution to help the Markoviches re-

trieve those records violated their right to due process under Brady

and Giglio and their right to confrontation under the Sixth Amend-

ment. We disagree.

The denial of the motion to compel did not violate the Marko-

viches’ right to due process. See U.S. CONST. amend V. Brady re-

quires the prosecution to disclose favorable evidence to the de-

fense, but that requirement “applies only to information possessed

by the prosecut[ion].” United States v. Naranjo, 634 F.3d 1198, 1212

(11th Cir. 2011) (emphasis added) (citation and internal quotation

marks omitted). And the Markoviches admit that the prosecution

USCA11 Case: 22-10978 Document: 55-1 Date Filed: 03/14/2024 Page: 15 of 23

22-10978 Opinion of the Court 15

never possessed the requested patient records. That admission

dooms their Brady claim.

The Markoviches ask us to excuse Brady’s possession element

for fairness reasons: because the prosecution was the only party au-

thorized to apply for a court order permitting the confidential rec-

ords’ disclosure, see 42 C.F.R. § 2.66(a)(1), the Markoviches main-

tain that we should require the prosecution to pursue the records

on their behalf. We must decline the invitation.

This Court has long held that although “‘Brady requires the

government to tender to the defense all exculpatory evidence in its

possession, it establishes no obligation on the government to seek

out such evidence.’” United States v. Luis-Gonzalez, 719 F.2d 1539,

1548 (11th Cir. 1983) (quoting United States v. Walker, 559 F.2d 365,

373 (5th Cir. 1977)). In other words, the Due Process Clause does

not allow the prosecution to hide potential evidence of innocence,

but it does not require the prosecution to conduct fishing expedi-

tions for the defense.

Nor did the denial of the motion to compel violate the Con-

frontation Clause. See U.S. CONST. amend. VI. The Markoviches ar-

gue that their inability to access the patient records prevented them

from “fully” cross-examining the prosecution’s witnesses. But the

Confrontation Clause entitles a defendant “only to an opportunity

for effective cross-examination” at trial, United States v. Ochoa, 941

F.3d 1074, 1094 (11th Cir. 2019) (citation and internal quotation

marks omitted)—it does not confer “the power to require the pre-

trial disclosure of all information that might be potentially useful

USCA11 Case: 22-10978 Document: 55-1 Date Filed: 03/14/2024 Page: 16 of 23

16 Opinion of the Court 22-10978

in contradicting unfavorable testimony,” United States v. Osmakac,

868 F.3d 937, 956 (11th Cir. 2017). A defendant is not deprived of

his right to confront the witness against him unless “a reasonable

jury would have received a significantly different impression of the

witness’ credibility had counsel pursued the proposed line of cross-

examination.” United States v. Garcia, 13 F.3d 1464, 1469 (11th Cir.

1994). Because the Markoviches do not know what the patient rec-

ords would reveal, they cannot establish that the records contain

impeachment information, let alone information that would have

given the jury “a significantly different impression of the wit-

ness[es]’ credibility.” See id.

B. The District Court Did Not Abuse its Discretion

by Admitting Clark’s Expert Testimony.

The Markoviches next challenge the admission of Clark’s ex-

pert testimony. They argue that its admission violated Federal

Rules of Evidence 702 and 403. It violated neither.

1. The Admission of Clark’s Testimony

Did Not Violate Rule 702.

Because Clark was admitted as an expert, her testimony is gov-

erned by Federal Rule of Evidence 702 and Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993). Expert testimony is admis-

sible if its proponent establishes that (1) the expert is “qualified” to

testify about the subject, (2) the “methodology” by which the ex-

pert reaches his conclusions is “sufficiently reliable” under Daubert,

and (3) the testimony will help the factfinder understand the evi-

dence or determine a fact in issue. City of Tuscaloosa v. Harcros

USCA11 Case: 22-10978 Document: 55-1 Date Filed: 03/14/2024 Page: 17 of 23

22-10978 Opinion of the Court 17

Chems., Inc., 158 F.3d 548, 562–63 (11th Cir. 1998) (first citing FED.

R. EVID. 702; and then citing Daubert, 509 U.S. at 589). The Marko-

viches do not dispute that Clark’s education and experience quali-

fied her to testify about substance-abuse treatment. Nor do they

dispute that Clark’s testimony was helpful to the jury.

The Markoviches argue only that Clark’s testimony about the

clinics’ practices was unreliable because it was based on her review

of the records for only a small percentage (around one percent) of

the clinics’ patients and because she inappropriately attributed her

findings to “the entire patient population.” The district court has

“considerable leeway” to make reliability determinations, McClain

v. Metabolife Int’l, Inc., 401 F.3d 1233, 1238 (11th Cir. 2005) (citation

and internal quotation marks omitted), and we will affirm unless

its decision is “manifestly erroneous,” Chapman v. Proctor & Gamble

Distrib., LLC, 766 F.3d 1296, 1305 (11th Cir. 2014) (citation and in-

ternal quotation marks omitted).

The admission of Clark’s testimony was not manifestly errone-

ous because Clark’s methods and opinions were reliable. Clark tes-

tified—based on her unquestioned experience and education in

substance-abuse treatment and her in-depth review of a sample of

patients’ records—about specific instances of misconduct at the

Markoviches’ clinics. The records on which her opinions were

based, as well as the records for the clinics’ other patients, were au-

thenticated, admitted into evidence without objection, and subject

to the jury’s independent review. The Markoviches’ objections “to

the inadequacies of [Clark’s] study” attack “the weight of the

USCA11 Case: 22-10978 Document: 55-1 Date Filed: 03/14/2024 Page: 18 of 23

18 Opinion of the Court 22-10978

evidence,” not its admissibility. See Rosenfeld v. Oceania Cruises, Inc.,

654 F.3d 1190, 1193 (11th Cir. 2011) (citation and internal quotation

marks omitted).

Clark never told the jury that her findings were representative

of the “entire patient population.” To the contrary, she consistently

limited the scope of her opinions to the small subset of patients

whose records she reviewed. Defense counsel explored the scope

of Clark’s review with “[v]igorous cross-examination,” and the dis-

trict court gave the jury “careful instruction[s]” about “the burden

of proof,” how to evaluate expert testimony, and how to measure

witness credibility more generally. See Daubert, 509 U.S. at 596.

These devices, the Supreme Court tells us, are the “appropriate

means of attacking shaky but admissible evidence.” Id.; accord Maiz

v. Virani, 253 F.3d 641, 667 (11th Cir. 2001).

2. The Admission of Clark’s Testimony

Did Not Violate Rule 403.

The Markoviches argue that even if Clark’s testimony satisfied

Rule 702 and Daubert, “she still should have been stricken as a wit-

ness under Rule 403.” Federal Rule of Evidence 403 permits the

district court to exclude evidence whose “probative value is sub-

stantially outweighed” by the risk of “unfair prejudice, confusing

the issues, misleading the jury, undue delay, wasting time, or need-

lessly presenting cumulative evidence.” The Markoviches maintain

that the probative value of Clark’s testimony was substantially out-

weighed by “the potential to mislead or confuse” the jury because

Clark’s testimony was “the foundation upon which the

USCA11 Case: 22-10978 Document: 55-1 Date Filed: 03/14/2024 Page: 19 of 23

22-10978 Opinion of the Court 19

government’s case was built” and because expert testimony might

be assigned “talismanic significance in the eyes of lay jurors.” We

disagree.

The district court did not abuse its discretion because there was

nothing confusing or misleading about Clark’s testimony. Clark

made clear that her opinions about the clinics’ practices were based

on, and limited to, her review of a small subset of patients’ records.

And those records, along with the records of the clinics’ other pa-

tients, were admitted into evidence without objection. The Marko-

viches’ contention that Clark’s testimony was “the foundation” of

the prosecution’s case is defeated by their own correct observation

that the Markoviches’ co-conspirators “were the ‘star’ government

witnesses” at trial. Last, the risk that the jury would accord Clark’s

testimony undue weight was mitigated by the limiting instruction,

which we presume that the jury followed. See United States v. Anna-

malai, 939 F.3d 1216, 1224 (11th Cir. 2019).

C. The District Court Did Not Abuse its Discretion

by Admitting Parks’s Lay Summary Testimony.

The Markoviches similarly argue that the admission of Parks’s

lay “summary testimony” was an abuse of discretion because Parks

reviewed only a small subset of patients’ records yet attributed her

findings to all the clinics’ patients. Federal Rule of Evidence 1006

provides that summary evidence is admissible to prove the contents

of voluminous records that cannot be conveniently examined in

court. Summaries are admissible so long as they are “supported by

evidence in the record.” United States v. Maurya, 25 F.4th 829, 840

USCA11 Case: 22-10978 Document: 55-1 Date Filed: 03/14/2024 Page: 20 of 23

20 Opinion of the Court 22-10978

(11th Cir. 2022) (citation and internal quotation marks omitted).

Summary testimony need not summarize all the records at issue,

but may be based on a mere subset, provided that the testimony

does not purport to represent “all the evidence.” See Flemister v.

United States, 260 F.2d 513, 517 (5th Cir. 1958).

The district court acted well within its discretion by allowing

Parks to summarize the records of about 12 percent of the clinics’

approximately 1,000 patients. There is no evidence that Parks’s tes-

timony “in any way misled” the jury. United States v. Daniels, 986

F.2d 451, 456 (11th Cir. 1993), withdrawn and superseded in part on

other grounds on reh’g, 5 F.3d 495. Parks “clearly explained” to the

jury that her summary ref lected only the patients whose files she

reviewed—not the entire patient population—and defense counsel

cross-examined Parks about the limitations of her summary. See id.

Moreover, all patients’ records were “before the jury in the form of

documentary evidence,” United States v. Harmas, 974 F.2d 1262,

1269 (11th Cir. 1992), so the jury could decide for itself whether

Parks accurately summarized that evidence. Last, the district court

gave a “cautionary instruction[]” about the use of summary testi-

mony, and “we presume that the jury followed” that instruction.

United States v. Hill, 643 F.3d 807, 843 (11th Cir. 2011).

D. Jonathan Markovich Forfeited Any

Challenge to His Bank-Fraud Counts.

Jonathan Markovich argues next that his two bank-fraud

counts were “prejudicial” and “should not have been counte-

nanced.” But he does not explain the legal basis of this conclusory

USCA11 Case: 22-10978 Document: 55-1 Date Filed: 03/14/2024 Page: 21 of 23

22-10978 Opinion of the Court 21

argument, and he cites no legal authority to support it. So Jonathan

forfeited any challenge to the bank-fraud charges. See Harner v. Soc.

Sec. Admin., Comm’r, 38 F.4th 892, 899 (11th Cir. 2022) (“An appel-

lant forfeits an issue when she raises it in a perfunctory manner

without supporting arguments and authority.” (citation and inter-

nal quotation marks omitted)).

E. The District Court Did Not Abuse Its Discretion

by Denying Post-Trial Discovery.

Last, the Markoviches challenge the denial of their motion for

discovery to support their motion for a new trial based on newly

discovered evidence. They argue that further investigation into the

9-1-1 call to Kustura’s hotel room might prove that Kustura used

drugs two days before testifying that he had “been clean” for

“[a]bout nine months,” and that further investigation into the call

from Kustura’s room to a Florida phone number might prove that

someone from the prosecution team knew and suppressed that

fact. The Markoviches argue that the district court abused its dis-

cretion by denying them a new trial without affording them an op-

portunity to develop this evidence. We disagree.

“This Court has repeatedly stated that motions for new trial

based on newly discovered evidence are highly disfavored.” United

States v. Stahlman, 934 F.3d 1199, 1230 (11th Cir. 2019) (citation and

internal quotation marks omitted). To succeed, the defendant must

prove that the evidence was discovered after trial, the defendant’s

failure to discover the evidence was not due to a lack of diligence,

the evidence “is not merely cumulative or impeaching,” the

USCA11 Case: 22-10978 Document: 55-1 Date Filed: 03/14/2024 Page: 22 of 23

22 Opinion of the Court 22-10978

evidence is “material,” and the evidence would “probably produce

a different result” at trial. Id. “Failure to meet any one of these ele-

ments will defeat a motion for a new trial.” United States v. Starrett,

55 F.3d 1525, 1554 (11th Cir. 1995).

The Markoviches concede that evidence that “Kustura lied

about whether he had been clean for the past nine months” would

be “‘cumulative’ given his admitted history of deceit.” But they ar-

gue that because Kustura was an important witness, we cannot say

that this new evidence about his potential dishonesty would be

“merely” cumulative. We disagree.

The importance of the witness to whom newly discovered ev-

idence pertains is relevant both to whether the evidence is “mate-

rial” and whether it would “probably produce a different result” at

trial. See Stahlman, 934 F.3d at 1230. But it is not relevant to the sep-

arate requirement that the evidence not be cumulative. And this

impeachment evidence is undeniably cumulative.

The district court was not required to permit additional discov-

ery or hold an evidentiary hearing before denying the motion for

new trial. “The law of this circuit is well established that a motion

for new trial may ordinarily be decided upon affidavits without an

evidentiary hearing.” United States v. Hamilton, 559 F.2d 1370, 1373

(5th Cir. 1977). And the Markoviches’ motion was “particularly

suitable for ruling” without discovery. Id. Because the district judge

who denied the motion “presided over this case since its inception”

and “heard and evaluated the testimony of the witness[] whose

credibility is now challenged,” he was “well qualified” to decide the

USCA11 Case: 22-10978 Document: 55-1 Date Filed: 03/14/2024 Page: 23 of 23

22-10978 Opinion of the Court 23

motion on the pleadings and exhibits alone. Id. at 1373–74. Indeed,

even if discovery were to reveal what the Markoviches hope it

would—that Kustura lied at trial about his months-long sobriety—

that evidence could not support a new trial because it is cumulative

of Kustura’s admitted dishonesty. See Stahlman, 934 F.3d at 1230.

IV. CONCLUSION

We AFFIRM the Markoviches’ convictions.