RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Raithatha No. 02-6013 ELECTRONIC CITATION: 2004 FED App. 0328A (6th Cir.)
File Name: 04a0328a.06 David P. Grise, ASSISTANT UNITED STATES ATTORNEY, Lexington, Kentucky, for Appellee. ON BRIEF: Glenn V. Whitaker, Eric W. Richardson, UNITED STATES COURT OF APPEALS VORYS, SATER, SEYMOUR & PEASE, Cincinnati, Ohio, for Appellant. David P. Grise, Charles P. Wisdom, Jr., FOR THE SIXTH CIRCUIT ASSISTANT UNITED STATES ATTORNEYS, Lexington, _________________ Kentucky, for Appellee.
UNITED STATES OF AMERICA , X ______________________ Plaintiff-Appellee, -
- AMENDED OPINION - No. 02-6013 ______________________ v. -
> FEIKENS, District Judge. ,
P.G. RAITHATHA, - I. INTRODUCTION Defendant-Appellant. -
N Defendant, Dr. P.G. Raithatha, was convicted by a jury of Appeal from the United States District Court scheming to defraud private health insurance companies and for the Eastern District of Kentucky at London. Medicare/Medicaid, in violation of 18 U.S.C. §1347, and of No. 00-00041—Karl S. Forester, Chief District Judge. making false statements to the Department of Labor (DOL)
and to the Immigration and Naturalization Service (INS), in Argued: January 29, 2004 violation of 18 U.S.C. §1001. Defendant was sentenced to 27 months of imprisonment. Defendant appeals his conviction Decided and Filed: September 29, 2004 and sentence.
Before: MERRITT and SUTTON, Circuit Judges; On appeal, Defendant argues: (1) the jury’s conviction as FEIKENS, District Judge.* to all counts should be reversed because Defendant alleges there is insufficient evidence to sustain his conviction, or _________________ alternatively, that Defendant should be granted a new trial;
and (2) the district court erred in attributing any loss figure to COUNSEL Defendant as to Counts 1 through 20, and that therefore the district court’s loss calculations for sentencing purposes ARGUED: Glenn V. Whitaker, VORYS, SATER, should be reversed.1 SEYMOUR & PEASE, Cincinnati, Ohio, for Appellant.
1
On M ay 19, 2004, this Court issued an Opinion affirming
*
Defendant’s conviction an d sentence. Subsequently, on June 2, 2004, The Honorab le John Feikens, United States District Judge for the Defendant filed a Petition for P anel R ehearing. Now, in accordance with Eastern District of Michigan, sitting by designation. Rule 40(a)(4) of the Federal Rules of Appellate Procedure, this Court
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II. FACTUAL BACKGROUND to the most expensive, 99205. (Cost. Tr. 53.) One type of “up-coding” scheme occurs where the CPT numbers are A. Defendant’s Medical Practice changed on the encounter forms and/or billing sheets sent to the insurance companies so that it appears as if the clinic Defendant is a physician who owned and operated two performed more expensive services than were actually clinics in 1997, the McKee Medical Center in McKee, provided. Kentucky, and the Richmond Medical Center in Richmond, Kentucky. In 1997, defendant sold the clinics to Mountain In 1998, defendant helped recruit seven foreign physicians After Hours Clinic Corporation (“MAHC”). As part of the for MAHC. Defendant recruited them under a program that sale, defendant became an employee of MAHC and was allows foreign doctors to stay in the United States if they issued one-sixth of the shares of stock in MAHC. By 1998, secure employment in medically under-served areas. Under MAHC owned four other clinics in Hazard, Nicholson, this program, MAHC had to meet several requirements London, and Somerset, Kentucky. including submitting a Labor Condition Application (“LCA”)
to the DOL, and a Petition for Nonimmigrant Worker (an “I-
During 1997, when defendant owned the McKee and 129 form”) to the INS, setting forth information such as the Richmond clinics, the billing for both clinics was done at the physician’s wage, for each physician hired. MAHC was McKee clinic. Tammy Spurlock, defendant’s office manager, required to pay each foreign doctor no less than the prevailing testified that she, Beverly Lainhart, and Renee Hudson did wage for the area – the average wage paid to physicians in the billing work. Between January and December of 1998, all area for comparable work. billing for the six MAHC clinics was performed by an outside billing service, Office Management Services (“OMS”). In The McKee clinic was designated a “rural health clinic” by April of 1999, OMS stopped providing billing services for Medicare. As a rural health clinic, the McKee clinic was MAHC, and the McKee clinic began doing billing for all of reimbursed a flat rate for each Medicare/Medicaid patient it the clinics. saw, regardless of the treatment rendered. The McKee clinic was required to submit to Medicare a yearly “cost report” – a To bill its services, a medical clinic issues an invoice to the summation of the costs incurred by the clinic in treating patient’s insurer that contains a current procedure terminology patients. Once a clinic reached the maximum reimbursement (“CPT”) code. The CPT code indicates to the insurer the rate set by Medicare/Medicaid, additional expenses on the level of service rendered by the clinic and the amount of cost report were not reimbursed during that year. However, reimbursement owed to the clinic. When a medical reported costs were used to calculate future practitioner sees a patient, the practitioner records a CPT code Medicare/Medicaid reimbursement rates per patient. (Shreve, on an “encounter form” to record the services performed. The Tr. 100.) CPT codes for established patients range from the least expensive, 99211, to the most expensive, 99215. The CPT In May 1998, a cost report was prepared for the McKee codes for new patients range from the least expensive, 99201, clinic for the period of October 1, 1996 through September 30, 1997, which included $50,393.53 of defendant’s personal expenses. Defendant alleges that when defendant operated as a sole proprietor of the Richmond and grants Defendant’s Petition for Panel Rehearing and makes a final McKee clinics, prior to their purchase by MAHC, defendant disposition of this case without reargument in this Amended O pinion.
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“often used business checks to pay personal expenses and Count 3 charged Defendant with defrauding would, at the end of the year, separate the personal and Medicare/Medicaid, in violation of 18 U.S.C. §1347, by business expenses in order to prepare the corporation’s tax submitting a cost report for 1997 that included personal returns.” (Def. Br. 113.) Defendant contends that his expenses unrelated to patient care. Included in those personal expenses were inadvertently included on the cost expenses was money which was actually spent to furnish and report. complete Defendant’s home. (Indictment, 6-7.)
B. Prosecution of Defendant Counts 6 through 13 charged Defendant with submitting false statements to the DOL, in violation of 18 U.S.C. §1001, On July 24, 2000, a twenty-count indictment was filed by submitting LCAs that misstated the salaries of seven against Defendant. Counts 1 and 4 charged Defendant with foreign physicians employed by MAHC. The indictment defrauding private insurance companies in 1997 (Count 1) charged defendant as “the person in charge of recruiting and 1998 and 1999 (Count 4), in violation of 18 U.S.C. physicians for the Corporation.” (Indictment, 12.) The §1347. Counts 1 and 4 charged Defendant with instructing indictment alleged that the “forms falsely overstated the billing staff to: (a) raise the CPT codes on invoices when the salary to be paid to the physicians, in order to disguise the physician had reported a lower level of service; (b) submit fact that the physicians were being paid less than the required invoices to insurance companies for services performed by amount.” (Indictment, 13.) other physicians, as if Defendant had performed them; and (c) submit claims with a diagnosis listing an illness, when the Counts 14 through 20 charged Defendant with submitting patient did not have an illness. (Indictment, 2-3, 8-10.) false statements to the INS, in violation of 18 U.S.C. §1001, by submitting I-129 forms that misstated the salaries of the Counts 2 and 5 charged Defendant with scheming to seven foreign physicians identified in Counts 6 through 13. defraud Medicare/Medicaid in 1997 (Count 2) and 1998 and (Indictment, 15-16.) 1999 (Count 5), in violation of 18 U.S.C. §1347. (Indictment, 4-6, 10-12.) Counts 2 and 5 charged Defendant with causing Defendant pleaded not guilty to all counts. patients to present themselves for medically-unnecessary visits by: (a) refusing to authorize refills on prescriptions and Trial began on July 2, 2001, before Chief Judge Karl S. preventing employees from authorizing refills of Forester. Defendant moved for a judgment of acquittal. The prescriptions; (b) making unannounced and unrequested home district court denied the motion. On July 19, 2001, the jury visits to patients; (c) approaching people on the street and returned a guilty verdict as to all counts (Counts 1 through ushering them into the clinic for unscheduled examinations; 20). Defendant timely moved for a new trial. On (d) examining people who had come into the clinic for non- September 12, 2001, the district court denied the motion for medical reasons, such as to pay debts owed to Defendant; a new trial. This appeal followed, both as to Defendant’s (e) ordering medical tests not related to patients’ conditions; conviction and sentence as to all counts. (f) falsely representing that other physician employees had specialties so that patients would be examined an additional time by a “specialist”; and (g) refusing to give test results until an additional appointment was kept. (Indictment, 4-6, 10-12.)
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C. Presentence Investigation Report (PSR) Loss insurance companies would have suffered had encounter Calculation forms marked with a 99211 been up-coded and billed under a 99213 CPT code. The probation office determined the The probation office determined that it would be difficult payment differences between the following additional CPT to discern an actual loss figure for Counts 1 and 4, but that an categories for each of the ten insurance companies: 99212 to intended loss figure could be calculated “for the up-coding 99213, 99201 to 99203, and 99202 to 99203. conduct which occurred in 1999.” Therefore, the PSR calculated an intended loss figure of $206,461.43 for Counts Fifth, an average payment difference was computed for 1 and 4, based on evidence of defendant’s up-coding scheme. each of the above categories of possible CPT up-codes. For The PSR calculated an intended loss figure of $50,393.53 for example, the probation office determined that the average Count 3, equal to the amount of defendant’s personal payment difference between services coded 99211 and 99213 expenses which were included in the cost report submitted to was $28.24. (PSR, ¶50-54.) Sixth, the number of encounter Medicare/Medicaid. The probation office determined that an forms in each CPT category (determined in step 2) was intended loss amount for Counts 2 and 5, related to multiplied by the average payment difference for each defrauding Medicare/Medicaid, could not be quantified. category (determined in step 5) to calculate an intended loss Thus, the PSR recommended that a total intended loss figure figure for each category of CPT codes. For example, for CPT of $256,854.96 ($206,461.43 + $50,393.53) should be code 99211, the probation office calculated an intended loss attributed to defendant as to Counts 1 through 5. figure for 1999 of $35,221.10 by multiplying $28.45 (the average payment difference between 99211 and 99213) by The PSR arrived at the intended loss figure of $206,461.43 1,238 (the number of 99211 encounter forms for 1999 seized for Counts 1 and 4 through a complex series of ten steps. from the McKee Clinic). Seventh, the intended loss figures First, the probation office went through encounter forms for each CPT category were added together to come up with seized from the McKee Medical Center on November 17, a total intended loss figure for 1999 of $112,820.45. This 1999, and extracted all of the encounter forms from 1999 for figure represents the loss which would have occurred had patients with private insurance that were marked with 99211, each claim in each CPT category for 1999 been up-coded. 99212, 99201, and 99202 CPT codes. Second, the encounter (PSR, ¶55-56.) forms in each CPT code category were counted. Third, of the sixty-four private insurance companies billed by MAHC in Eighth, the probation office determined an intended loss 1999, a sample of ten insurance companies were contacted to figure for 1998 of $56,410.23, by backtracking from the determine their usual and customary charges for each CPT intended loss figure calculated for 1999. The probation office code. determined that defendant had “extensive control” over the billing of three of the six clinics in the MAHC system during Fourth, using the customary charges for each CPT code at 1998, when the billing for MAHC was conducted by OMS. each of the ten selected insurance companies, the probation (PSR, ¶57.) Therefore, the probation office calculated the office computed the payment difference that would have intended loss figure for 1998 by multiplying the intended loss resulted had each category of CPT codes been up-coded and figure for 1999 by 50%. billed at a higher CPT code. For example, the probation office calculated the payment difference between 99211 to Ninth, the probation office determined an intended loss 99213 to determine the amount of loss each of the ten figure for 1997 of $37,230.75. Since defendant operated only
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two clinics in 1997, the probation office calculated an recommended a guideline range for imprisonment of 33 to 41 intended loss for 1997 by multiplying the intended loss figure months. for 1999 by 33%. (PSR, ¶58.) Finally, the probation office added together its intended loss calculations for 1999, 1998, D. Defendant’s Sentencing and 1997 to arrive at a total loss calculation of $206,461.53 for Counts 1 and 4. (PSR, ¶59.) On August 2, 2002, the district court sentenced Defendant to 27 months. The district court did not order restitution.
For Counts 6 through 20, the probation office calculated an (Sentencing, Tr., 37.) The district court adopted the PSR’s actual loss figure of $216,833.94. (PSR, ¶73.) This was calculation of an intended loss of $206,461.43 for Counts 1 based on the amount of pay the foreign physicians were and 4, and an intended loss of $50,393.53 for Count 3, for a entitled to but did not receive during their employment with total intended loss of $256,854.96 for Counts 1 through 5. MAHC. (PSR, ¶73.) For Counts 6 through 20, the probation office calculated an intended loss of $523,670.00. This figure With regards to Counts 6 through 20, the district court equals the difference between the wage reported to the United adopted the PSR’s actual loss calculation of $216,833.94, States minus the contract amount, multiplied by the number after determining that the intended loss calculation relating to of years of the contract, for each foreign physician. This Counts 6 through 20 was too speculative. (Sentencing, Tr. intended loss amount represents the amount of money per 77-80.) However, because the court determined that the contract that MAHC stood to gain by illegally paying its conduct charged in Counts 6 through 20 fell outside the foreign physicians below the prevailing wage. The probation heartland of cases that U.S.S.G. §2F1.1 (the applicable office used the intended loss calculation for Counts 6 through Sentencing Guideline) was designed to address, the court 20 ($523,670.00), because it was greater than the calculated decided not to hold Defendant accountable for the actual loss actual loss, and combined it with the intended loss calculation caused by his alleged conduct in Counts 6 through 20. for Counts 1 through 5 ($256,854.96) to calculate a total Accordingly, the district court determined that the total loss intended loss figure for Counts 1 through 20 of $780,524.96. attributable to Defendant was $256,854.96 (the intended loss calculated for Counts 1 through 5 minus the actual loss Based on this loss calculation, the probation office calculated for Counts 6 through 20). recommended a total offense level of 20. U.S.S.G §2F1.1 calls for a base offense level of 6 for violations of 18 U.S.C. Applying U.S.S.G. §2F1.1, the district court determined §1347 and §1001. The PSR recommended a 10 level increase that the base offense level was 6, and added 4 points as because the intended loss totaled more than $500,000 but less recommended in the PSR because the offense involved more than $800,000. U.S.S.G. §2F1.1(b)(1)(K). The PSR than minimal planning and the violation of a private trust. recommended a 2 level increase because the offense included The district court added an 8 level increase because the more than minimal planning, and an additional 2 level amount of loss it determined was attributable to Defendant increase because the abuse of a private trust facilitated the was above $200,000 and below $350,000. U.S.S.G. offense. Thus the PSR recommended a base offense level of §2F1.1(b)(1)(I). Thus, the district court assessed a total 6 plus a 14 level increase, for a total offense level of 20. offense level of 18, for which the applicable guideline range Based on the recommended total offense level of 20 and was 27 to 33 months. (Sentencing Tr. 86.) The district court Defendant’s criminal history category of I, the PSR sentenced Defendant to 27 months of imprisonment and two years supervised release on each count to be served
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concurrently. (Sentencing Tr. 95.) Now Defendant appeals 125 F.3d 346, 354 (6th Cir. 1997) (cited in US v. DeSantis, both his conviction and sentence as to all counts. 134 F.3d 760, 764 (6th Cir. 1998)). III. ANALYSIS Defendant argues there is insufficient evidence to sustain his conviction for Counts 1 and 4, defrauding or attempting A. SUFFICIENCY OF EVIDENCE to defraud private health insurance companies. However, many staff members testified that Defendant instructed them 1. Standard of Review to bill office visits covered by private insurance under CPT codes 99213 or 99203, regardless of the CPT code entered by When evaluating a claim of insufficient evidence, a the attending physician on the encounter form. The staff reviewing court must determine “whether, after viewing the members were aware that this “up-coding” scheme resulted in evidence in the light most favorable to the prosecution, any higher reimbursement from private insurance companies. rational trier of fact could have found the essential elements (Justice, Tr. 164.) After the FBI searched the McKee clinic of the crime beyond a reasonable doubt." U.S. v. Harris, 293 and Defendant’s home and seized encounter forms, insurance F.3d 970, 974 (6th Cir. 2002) (citing Jackson v. Virginia, 443 information, and records, staff members testified that the up- U.S. 307, 319 (1979)(emphasis in original)). A defendant coding ceased. (Howard, Tr. 76-77.) claiming insufficiency of evidence bears a “very heavy burden.” US v. Vannerson, 786 F.2d 221, 225 (6th Cir. In addition, staff members testified that Defendant routinely 1986). “[C]ircumstantial evidence alone can sustain a guilty ordered tests unrelated to his patients’ conditions and verdict.” US v. Ellerbee, 73 F.3d 105, 107 n.2 (6th Cir. supported the tests with false diagnoses. (Meadors, Tr. 5-10.) 1996) (citation omitted). The evidence need not remove Zeren, a nurse practitioner working at the McKee clinic, every possible hypothesis except that of guilt. US v. testified that after she performed sports physicals on children Williams, 195 F.3d 824, 826 (6th Cir. 1999) (citations at local schools and found no indication of upper-respiratory omitted). infections, Defendant, who had not been present at the examinations, falsely diagnosed them as having upper 2. Health Care Fraud (Counts 1-5) – 18 U.S.C. respiratory infections. (Zeren, Tr. 45-51.) Taking this §1347 evidence in the light most favorable to the prosecution, a reasonable juror could have found Defendant guilty of To convict a defendant of health care fraud under 18 U.S.C. defrauding or attempting to defraud private insurance §1347, the Government must demonstrate that the defendant: companies, as charged in Counts 1 and 4. (1) knowingly devised a scheme or artifice to defraud a health care benefit program in connection with the delivery of or Defendant argues there is insufficient evidence to sustain payment for health care benefits, items, or services; his conviction for Counts 2 and 5, defrauding (2) executed or attempted to execute this scheme or artifice to Medicare/Medicaid by causing patients to come into defraud; and (3) acted with intent to defraud. (Jury Defendant’s clinics for medically unnecessary examinations Instruction No. 12, July 19, 2001.) The defendant must have or treatments. However, physicians working for Defendant intended, through some deception, “to induce another to part testified that Defendant told them to bring Medicaid patients with property or to surrender some legal right.” US v. Frost, back for additional office visits, instead of giving them a prescription with refills, so that Medicaid could be billed for
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additional visits. (Patel, Tr. 25-26.) Staff members testified 3. Making False Statements (Counts 6-20) – that when business was slow, Defendant solicited patients 18 U.S.C. §1001 from the street and billed them as office visits. (Justice, Tr. 183.) Staff members testified that people would come into In order to establish a violation of 18 U.S.C. §1001, the the office for purposes unrelated to receiving medical care, Government must demonstrate that: (1) the defendant made such as paying debts to Defendant, and “before they left, they a statement; (2) the statement is false or fraudulent; (3) the were a patient,” and billed as a patient. (Amon, Tr. 114.) statement is material; (4) the defendant made the statement Taking this evidence in the light most favorable to the knowingly and willfully; and (5) the statement pertained to an prosecution, a reasonable juror could have found Defendant activity within the jurisdiction of a federal agency. US v. guilty of defrauding or attempting to defraud Logan, 250 F.3d 350, 361 (6th Cir. 2001) (citations omitted). Medicare/Medicaid, as charged in Counts 2 and 5. A statement is “material” if it “has the natural tendency to influence, or is capable of influencing, the federal agency.”
Defendant also argues there is insufficient evidence to Id. at 361 (citations omitted). sustain his conviction for Count 3, defrauding Medicare/Medicaid by including personal expenses in a cost Defendant argues there is insufficient evidence to sustain report submitted to Medicare/Medicaid for the McKee Clinic his conviction for making false statements or causing false in 1997. The cost report included expenses for Defendant’s statements to be made to the DOL and the INS, regarding the personal residence totaling $50,393.53. Though Defendant salaries of seven foreign physicians employed by MAHC. did not sign the report, he was given an opportunity to review For each foreign physician hired, MAHC was required to file it before it was submitted. (Lynn, Tr. 131-132.) When an LCA with the DOL and an I-129 form with the INS stating Defendant purchased a TV and stereo system for his residence the employee’s prevailing wage salary. The evidence he instructed the salesman to issue the invoice to the McKee demonstrated that the submitted LCAs and I-129 forms Clinic, as if the items had been purchased by the clinic and overstated the salary MAHC actually paid the foreign not for Defendant’s personal use. (Miller, Tr. 203; Ware, physicians. Defendant’s payroll manager testified that she Tr.198.) Taking this evidence in the light most favorable to signed the LCAs and I-129 forms at Defendant’s direction. the prosecution, a reasonable juror could have found that (Bowling, Tr. 13.) Defendant intended to defraud Medicare/Medicaid by including personal expenses on the cost report submitted to In addition, several foreign physicians testified to Medicare/Medicaid.2 Defendant’s role in making contracts with the physicians, after the forms had been submitted to the DOL and the INS, that reduced the physician’s salary from that stated on the 2 submitted forms. (Dani, Tr. 37-39.) One physician testified In Defendant’s Petition for Panel Rehearing, Defendant that Defendant threatened her with visa problems when she inappropriately attempts to reargue the sufficiency of the evidence questioned having to sign an amendment to her original underlying his convictions. This Court adequately addressed and rejected Defendant’s arguments regarding the sufficiency of the evidence in its contract (for $110,000/year) which reduced her salary to Opinion, by summarizing the evidence against Defendant and citing, by $70,000/year. (Ravisankar, Tr. 6-9.) Taking this evidence in way of example, to the testimony of a few of the many witnesses who provided testimony supporting Defendant’s convictions. It is clear that after taking all of the evidence in the record in the light most favorable to the prosecutio n, a reasonable juror co uld have found Defendant guilty of Counts 1 through 5.
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the light most favorable to the prosecution, a reasonable juror B. AMOUNT OF LOSS ATTRIBUTED TO could have found that defendant was guilty of intentionally DEFENDANT FOR SENTENCING causing false statements to be made to the DOL and INS.
1. Standard of Review
Defendant argues that his conviction on Counts 7 and 15, charging defendant with causing false statements to be made A court of appeals reviews de novo a sentencing court’s to the DOL and INS about one of the foreign physicians, Dr. interpretation of the Sentencing Guidelines, but must uphold Vivek Patel, should be reversed. Defendant contends that the a sentencing court’s factual findings unless “clearly forms submitted by the government are forms which were erroneous.” US v. Ware, 282 F.3d 902, 907 (6th Cir. 2002). actually prepared and submitted for Dr. Divya Joshi, and not A factual finding is “clearly erroneous” when “the reviewing for Patel. With regard to defendant’s contention as to Counts court on the entire evidence is left with the definite and firm 7 and 15, the record is abundantly clear that such false conviction that a mistake has been committed.” Id. (citing US statements were made. Defendant’s contention that certain v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). forms referring to another physician were submitted mistakenly for Patel is therefore harmless error.3 A sentencing court “need not determine the amount of loss with precision.” US v. Kohlbach, 38 F.3d 832, 835 (6th Cir. 1994) (citations omitted). A sentencing court “need only 3 make a reasonable estimate, given the available information.”
In Defendant’s Petition for Panel Rehearing, Defendant again argues US v. Guthrie, 144 F.3d 1006, 1011 (6th Cir. 1998). A that Defend ant’s convictions as to C ounts 7 and 15 should be reversed, and asserts that “the Government cannot point to any forms (i.e. any defendant who challenges such a computation must carry the alleged ly false statem ents) actually submitted as to D r. Patel.” (De f. Pet. burden of demonstrating “that the court’s evaluation of the Panel Rehearing, 12.) Defendant is mistaken. The record contains an loss was not only inexact but outside the universe of LCA and an I-129 form for each of the 7 physicians, including Patel, acceptable computations.” US v. Tardiff, 969 F.2d 1283, 1288 about whom Defendant was convicted of causing false statements to be (1st Cir. 1992) (cited in Kohlbach, 38 F.3d at 841). mad e (for a total of 14 statem ents).
The LCA for Patel, which corresponds to Count 8, is dated July 14, 1998 and appears as the first page of Government Exhibit 8A. (J.A. For sentencing purposes, a defendant will be held 194 6.) The I-129 form for Patel, which corresponds to Count 15, is dated accountable for the actual or intended loss to a victim, July 14, 1998 and appears (somewhat confusingly) as the next three pages of Governme nt Exhibit 8A. (J.A. 1947-49.) The LCA and I-129 form for Dr. Joshi, which correspond to Count 6 and C ount 1 4, are dated March 20, 1998 and appear respectively as Government Exhibit 6A and 14A. Count 7), the LCA for Joshi. Thus, it appears that a single document was Thus, the record suppo rts Defenda nt’s conviction for causing false used erroneously by the Government as the basis to convict Defendant for statements to be mad e regarding both Patel and Joshi, and D efendant’s both Counts 6 and 7. argum ent with respect to Co unt 15 has no merit. However, as this Court noted in our Opinion, any error with regard W hile the record supports Defendant’s conviction as to making two to Defendant’s conviction as to Count 7 is “harmless.” The district court false statements regarding Patel, Defendant was actually convicted of did not attribute any loss to Defendant as to Counts 6 through 20. making three false statements regarding Patel. In addition to C ounts 8 (Sentencing Tr. 84-86, J.A. 1096-98.) The district cour t sentenced and 15, Defendant was also convicted of Count 7, for allegedly submitting Defendant to 27 months on each count to be served conc urrently. a second false LCA regarding Patel. Defendant’s conviction as to Count (Sentencing Tr. 94-96, J.A. 1100 -1101.) Therefore, Defendant’s 7 may ha ve be en in error, be cause the LCA subm itted as Government conviction as to Count 7 did no t affect Defendant’s sentence, an d this Exhibit 7A (for Count 7), allegedly the second LCA for Patel, appears to Court properly considered any error with regard to Defendant’s be an exact copy of the LCA submitted as Government Exhibit 6A (for conviction fo r Count 7 to be harmless.
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whichever is greater, or a combination thereof. US v. Wade, Unlike the contentions of Defendant as to evidence 266 F.3d 574, 586 (6th Cir. 2001). See also U.S.S.G. §2F1.1, regarding his conviction, his contentions regarding Counts 1, comment. n.7. “[S]o long as the intended loss is supported by 4, and 3 relate only to sentencing procedures. Defendant was a preponderance of the evidence, the district court may use it found guilty of the charges in these counts and our inquiry in reaching the appropriate offense level.” US v. Logan, 250 goes only to the amount of loss for which Defendant may be F.3d 350, 371 (6th Cir. 2001). In 2001, amendments to the held accountable. Sentencing Guidelines clarified that “intended loss” means “the pecuniary harm that was intended to result from the As to the loss calculation regarding Counts 1 and 4, offense” and “includes intended pecuniary harm that would Defendant contends there was no evidence that any order was have been impossible or unlikely to occur.” §2B1.1, given to up-code new patient CPT codes (the “9920-" series). comment. n.3(A)(ii) (emphasis added).4 The record shows otherwise:
2. Loss Calculation Q. “Okay. Now, did he also give you orders to up-code a 99201 code to a higher-paying code?”
In this case, the only amounts of loss attributed to A. “We was [sic] told to up-code any office visit like Defendant, and thus at issue on appeal, are $206,461.43 for that.” Counts 1 and 4 and $50,393.53 for Count 3. Defendant argues the loss calculation for Counts 1 and 4 adopted by the Q. “Okay. All Right. So he told you to code a 99201 up to district court is based on speculation. Defendant argues that the highest level that you could do, 99203?” there is no evidence that he ordered “all” encounter forms to A. “Yes.” be up-coded, that all of the encounter forms in the Government’s sample were not up-coded, and that there was (Lainhart, Tr. 40-41.) Defendant suggests that his encounter never an order to up-code new patient forms or to up-code forms were erroneously included in the loss calculation. defendant’s encounter forms and that therefore neither of However, the Government stated unequivocally at these should have been included in the loss calculation. Defendant’s sentencing hearing that “Dr. Raithatha’s forms Defendant argues the intended loss calculation as to Count 3 were not counted in the encounter forms for the 1999 figures is clearly erroneous because it was allegedly impossible for that were given to the probation office.” (Grise, Sentencing, him to inflict the amount of loss for which the district court Tr. 74.) held him accountable.
In addition, the selection of the ten most frequently billed insurance companies to provide figures upon which to compute average pay differences between CPT code 4 categories was reasonable. Furthermore, Defendant’s This Court’s reference to the 2001 amendm ents to the Sentencing argument that all of the encounter forms in the Government’s Guidelines are inconseq uential to this case because removing $50,393.53 from the loss calculatio n – an intended loss amo unt attribu ted to sample were not up-coded goes to actual loss, and therefore Defendant by the district court as to Count 3 that Defendant argues was does not disturb the district court’s calculation of intended impossible for him to inflict – would not have affected D efendant’s loss. Finally, the use of the 1999 intended loss amount to offense level. Remo ving that amo unt would have resulted in a loss calculate the lesser intended loss amounts for 1998 and 1997 amount of $206,46 1.43, and the same 8 level increase in effect prior to the was reasonable. Therefore, it was not clearly erroneous for 200 1 am endments.
No. 02-6013 United States v. Raithatha 19 20 United States v. Raithatha No. 02-6013
the district court to hold Defendant accountable for an Defendant accountable for an intended loss of $50,393.53 as intended loss of $206,461.43 as to 1 and 4. Defendant has to Count 3. failed to demonstrate that the loss calculation as to Counts 1 and 4 was “outside the universe of acceptable computations.” IV. CONCLUSION Kohlbach, 38 F.3d at 841.
For the above reasons, the conviction and sentence of the With regards to Count 3, Defendant argues that no loss district court is AFFIRMED. should be attributed to him because he contends that it was impossible for him to have caused Medicare/Medicaid any loss by including the $50,393.53 in personal expenses on the cost report because his clinic had already reached its maximum reimbursement rate. (Appellant, Br. 62.) However, loss can be attributed to a Defendant based on a finding of actual loss or intended loss, and a finding of intended loss is not limited to those losses possible to inflict, or those gains possible for a Defendant to achieve. U.S.S.G. §2B1.1, comment. n.3(A)(ii).5 There was sufficient evidence to find that Defendant intended to mislead Medicare/Medicaid as to the $50,393.53 in personal expenses included on the cost report. It is unclear what difference Defendant anticipated the inclusion of his personal expenses would make in the amount Defendant’s clinic was reimbursed for 1997, or in future reimbursement rates. However, where a defendant seeks to fraudulently pass off an amount of personal expenses as legitimate patientrelated expenses, as in the present case, logic dictates that a defendant be held accountable for intending to cause the amount of loss about which he intentionally lied. Therefore, it was not clearly erroneous for the district court to hold
5 As noted above, whether it was “possible” or “impossible” for Defendant to inflict a loss of $50,393.53 as to Count 3 is of no consequence. However, there is evidence in the record that the inclusion of Defendant’s personal expenses on the co st repo rt, even after the maximum reimbursement rate had been reached for the clinic, would have resulted in an actual loss for M edica re/M edica id by way of an increase in future rates of reimbursem ent. (See e.g. Shreve, Tr. 100, J.A. 580; Sco ggins, T r. 173 , J.A. 611.)