United States v. Rose Umana

713 F. App'x 106
CourtCourt of Appeals for the Third Circuit
DecidedNovember 2, 2017
Docket17-1044
StatusUnpublished

This text of 713 F. App'x 106 (United States v. Rose Umana) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third 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. Rose Umana, 713 F. App'x 106 (3d Cir. 2017).

Opinion

OPINION **

KRAUSE, Circuit Judge

Rose Umana challenges the amount of restitution ordered in her criminal judgment after her conviction for health care fraud offenses. For the following reasons, we conclude that her challenges are unpersuasive, and we will affirm the District. Court’s judgment.

I. Background

Umana was charged with several offenses related to health, care fraud in connection with her- operation of Vision Healthcare Services, Inc. (“Vision”), a medical staffing company- and homecare services provider that was approved to receive Medicaid compensation. She eventually pleaded guilty to .one count of making false statements or using false writings under 18 U.S.C. § 1035(a)(2); one count of identity theft in relation to the 18 U.S.C. § 1035(a)(2) violation; and one count of engaging in monetary transactions using criminally derived property in violation of 18 U.S.C. § 1957. 1

The Government sought restitution for the Pennsylvania Medical Assistance Program (“Medicaid”), the victim of the crimes. The Government derived Medicaid’s total loss amount, which forms the basis for the restitution order, from two separate investigations, one by the Pennsylvania Department of Human Services Bureau of Financial Obligations (“the BFO audit”), supporting a $674,996.31 loss, and one by Medicare Fraud Control Unit (“the MFCU audit”), supporting a $441,806.12 loss. As a result of these calculations,, a total restitution figure of $1,116,802.43 was included in the Probation Office’s presen-tence investigation report (“PSR”).

Umana objected to this restitution figure on two grounds. Through her expert, David H. Glusman, Umana argued, first, that the Government misreported the amount actually calculated in the BFO au- . dit by $9,361.27, and, second, that it improperly included Medicaid payments for legitimate services provided to Vision clients totaling $115,837.00 in relation to the BFO audit and $228,399.03 in relation to the MFCU audit.

At the hearing on these objections, counsel for the Government explained that the Government did not dispute the “change figures” related to the BFO audit. Appendix (“App.”) 56. That is, the Government agreed that $9,361.27 and $115,837.00 should not have been included in the restitution calculation, and stated at one point that it was “not disputing those amounts' proposed by the Defendant for purposes of the BFO audit,” App. 61-62. However, the Government did dispute Umana’s proposed $228,399.03 reduction in relation to the MFCU audit, and it substantiated that amount through, among other things, the testimony of two witnesses; Jennifer Snerr, an MFCU supervisory special agent, who testified about timesheets for-services for the patients and Umana’s falsification of employee records and fabricar tion of documents; and Carol Palinkas, a fraud auditor with the Medicaid Fraud Control Section, who testified about the documentation requirements and her analysis of the claims submitted monthly for the patients in the relevant time period.

The Government also argued that the loss amount for which it advocated was conservative given that the MFCU audit focused on the claims of six patients over a finite period whereas Umana had approximately 150 clients during that time and had been in business since 2006. While Umana’s counsel secured from Snerr on cross-examination the admissions that “of that 150, [she] limited [her] review in the criminal sense of those 6 cases you testi-fled about,” and that she “d[id]n’t have any information here today that any of the other 150 cases have any fraudulent billings or any issues with respect to fraud,” App. 70, Snerr also affirmed that there were “additional clients identified during the BFO audit ... with additional billing issues.” App. 87.

After further briefing, 2 the District Court overruled Umana’s objections and ruled that Umana owed the amount requested by the Government. 3 The District Court concluded that the Government had met its burden to show the amount of loss, and Umana had not shown that she was entitled to any offset. The District Court further noted that “based on the evidence presented during the loss hearings and the pervasiveness of the fraud, the loss figure as calculated by the Government understates the total actual loss.” App. 16. The District Court then stated that, “although some small amount of the services provided with regard to the six patients may have been reimbursable ..., [Umana] is not entitled to a credit against the restitution amount due to the understatement of the loss.” App. 16. Thus, in Umana’s criminal judgment, the District Court included an order of $1,184,224.67 in restitution under the Mandatory Victims Restitution Act of .1996, 18 U.S.C. §§ 3613A, 3663A (“MVRA”). This appeal followed.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We “review a restitution order under a bifurcated standard: plenary review as to whether restitution is permitted by law, and abuse of discretion as to the appropriateness of the particular award.” 4 United States v. Fallon, 470 F.3d 542, 548 (3d Cir. 2006) (citation and quotation marks omitted). The District Court’s fact-finding is reviewed for clear error, meaning that we consider whether it is “completely devoid of a credible evidentia-ry basis or bears no rational relationship to the supporting data.” See United States v. Vitillo, 490 F.3d 314, 330 (3d Cir. 2007) (citation and quotation marks omitted).

III. Discussion

The calculation of restitution is governed by the MVRA, which requires a court to order restitution for the “full amount” of the victim’s loss. 18 U.S.C. § 3664(f)(1)(A); see also United States v. Bryant, 655 F.3d 232, 254 (3d Cir. 2011). Where the defendant disputes the proper amount or type of restitution, the district court resolves that dispute “by the preponderance of the evidence.” 18 U.S.C.

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Bluebook (online)
713 F. App'x 106, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rose-umana-ca3-2017.