United States v. Barnes

125 F.3d 1287, 97 Daily Journal DAR 12013, 97 Cal. Daily Op. Serv. 7453, 1997 U.S. App. LEXIS 25026, 1997 WL 576049
CourtCourt of Appeals for the Ninth Circuit
DecidedSeptember 18, 1997
DocketNo. 96-50611
StatusPublished
Cited by60 cases

This text of 125 F.3d 1287 (United States v. Barnes) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Barnes, 125 F.3d 1287, 97 Daily Journal DAR 12013, 97 Cal. Daily Op. Serv. 7453, 1997 U.S. App. LEXIS 25026, 1997 WL 576049 (9th Cir. 1997).

Opinion

BRUNETTI, Circuit Judge:

Appellant Gerald Barnes appeals the sentence imposed by the district court following his guilty plea for charges stemming from his fraudulent impersonation of a medical doctor. Appellant contends that the district court misapplied the United States Sentencing Guidelines (“Guidelines”) to his case. Except for the court’s application of the Guidelines’ amount of loss provision, we affirm the decision. Accordingly, we remand for recalculation of the loss suffered by the victims and resentencing of Appellant.

I. Facts

The facts in this case are undisputed. Appellant, a trained pharmacist, was bom Jerald Barnbaum; he later changed his name to Gerald Barnes. In 1976, after his indictment for mail fraud in Illinois, Appellant’s pharmaceutical license was revoked. He subsequently moved to Southern California and began to practice medicine, although he had never attended medical school nor received a medical license. To impersonate a trained physician, Appellant fraudulently obtained documents pertaining to the qualifications of a legitimately licensed doctor, also named Gerald Barnes. He then used these documents to acquire medical positions.

The media has written extensively about Appellant’s conduct over the past two decades, and the details are not relevant to this decision and need not be recounted. See, e.g., Kenneth B. Noble, Doctor’s Specialty Turns Out to Be Masquerade, N.Y. Times, Apr. 17, 1996, at Al; John Carlova, “A Loaded Gun Waiting to Go Off’, Medical Economics, Jan. 21, 1985, at 56. Appellant’s prior malfeasance resulted in three convictions for practicing without a license and at least one patient’s death.

In October 1991, after his release from state custody, Appellant obtained employment as a medical doctor with a medical clinic in the Los Angeles area. Over the next five years, he worked at six area medical climes and doctor’s groups and received a salary from his employers for examining and treating patients. In short, Appellant fraudulently represented himself as Doctor Gerald Barnes.

In April 1996, Appellant was indicted for his fraudulent actions. In May, the grand jury issued a thirty-one count superseding indictment charging Appellant with mail fraud in violation of 18 U.S.C. § 1341, distribution of controlled substances in violation of 21 U.S.C. § 841(a)(1), and use of a Drug Enforcement Administration registration is[1290]*1290sued to another person in violation of 21 U.S.C. § 843(a)(2). In June, Appellant entered into an agreement with the government, pleading guilty to counts covering each of the three charges. In October, the district court sentenced Appellant to 150 months in prison. Appellant timely appealed.

II. Discussion

A. Standard of Review

We review the district court’s interpretation and application of the Sentencing Guidelines de novo. United States v. Robinson, 94 F.3d 1325, 1327 (9th Cir.1996). The district court’s application of the Sentencing Guidelines to the facts is reviewed for abuse of discretion. Id. Factual findings underlying the sentencing decision are reviewed for clear error. Id.

B. Calculating the Amount of Loss

Appellant contends that the district court erred under U.S.S.G. § 2F1.1 in calculating the amount of loss due to his fraud. The Sentencing Guidelines provide a base offense level of six for offenses involving fraud and deceit. See U.S.S.G. § 2Fl.l(a). The Guidelines increase this level incrementally based upon the amount of monetary loss attributable to the fraud. See U.S.S.G. § 2Fl.l(b)(l). The government and the probation officers calculated losses by using the total amount of billings attributable to Appellant’s services. Here, the district court found that Appellant’s fraud resulted in a loss of more than $2,500,000 but less than $5,000,000. Although the district court failed to specify the exact amount of loss it found, the court stated at the sentencing hearing that it agreed with the government’s valuation of loss. In various documents, the government listed a total loss ranging from $3,496,323.10 to 5,551,167. Because the court increased Appellant’s offense level by thirteen steps, we know that it found between $2,500,000 and $5,000,000 in losses. See U.S.S.G. § 2Fl.l(b)(l)(n) & (o). Appellant takes issue with the court’s evaluation of the total loss caused by his actions and the resulting sentence.

Under the Sentencing Guidelines, loss is “the value of the money, property, or services unlawfully taken.” U.S.S.G. § 2F1.1, comment, (n.7). When the government seeks an upward adjustment of the offense level it bears the burden of proving loss by a preponderance of the evidence. United States v. Joetzki, 952 F.2d 1090, 1096 (9th Cir.1991). Although “the loss need not be determined with precision” and a “reasonable estimate” is enough, mere speculation is insufficient. U.S.S.G. § 2F1.1, comment. (n.8).

Here, the district court used the “recision method” to calculate the total loss caused by Appellant’s fraud. In doing so, the court calculated the amount necessary to refund the total charges billed by Appellant’s employers for all patients Appellant treated or examined. The court, however, ignored any benefit which Appellant may have provided to the clinics.

Because the loss caused by Appellant’s employment at Bio-Medics presents the only real issue, we will concentrate on that calculation. From October 1991 through June 1994, Appellant worked part-time at the Bio-Medics plasma center, which sells donated plasma to third parties. During his employment, Appellant performed physical examinations on potential blood donors and reviewed and signed quarterly lab reports containing the results of tests performed on the donated plasma. The government estimated that Appellant’s work accounted for $4,214,655 of the center’s gross revenues during his tenure. Appellant received $181,989 in total wages for this work. It is important to note that no Bio-Medics customers demanded a refund for monies paid for plasma donated by people examined by the Appellant. In addition, the clinic billed neither the plasma donors nor their insurance companies for the physical examination or the blood tests performed by Appellant or any other employee. Apparently, Appellant’s fraudulent actions resulted in no harm to either patients or plasma customers. In short, absent his total salary, Appellant’s fraud imposed no monetary loss upon the clinic, donors, or customers.

Despite this evidence of Appellant’s satisfactory, albeit illegitimate service, the district court accepted the government’s valuation of loss, which was based on the revenue generated by Appellant’s services. The court [1291]*1291found that the total loss to Bio-Medics exceeded $4,000,000. This approach, however, runs counter to established precedent.

In United States v. Maurello,

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125 F.3d 1287, 97 Daily Journal DAR 12013, 97 Cal. Daily Op. Serv. 7453, 1997 U.S. App. LEXIS 25026, 1997 WL 576049, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-barnes-ca9-1997.