United States v. Borrasi
639 F.3d 774
| 7th Cir. | 2011Background
- Borrasi owned Integrated Health Centers and referred Medicare patients to Rock Creek, with Medicare reimbursements constituting the vast majority of Rock Creek's payments.
- From 1999 to 2002, Borrasi, Mamoon, Baig, and others conspired to pay bribes to increase Medicare referrals, totaling about $647,204 to Integrated physicians and Rock Creek personnel.
- To conceal the bribes, Rock Creek paid salaries and provided faux titles and time sheets for Integrated personnel, including Borrasi as 'Service Medical Director' with duties not performed.
- Rock Creek committee meeting minutes show Integrated physicians attended only a small fraction of meetings, while records and witnesses indicated they did not perform substantive administrative duties.
- In December 2006, a grand jury indicted Borrasi, Mamoon, and Baig on conspiracy and six counts of Medicare-related bribery; Baig pled guilty; Borrasi and Mamoon were tried and convicted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of minutes and related reports | Government: minutes admissible; reports themselves inadmissible hearsay | Borrasi: would allow substantive discussion of reports via minutes; materials contain hearsay | Minutes admissible for attendance; reports/ substantive discussions excluded as hearsay |
| Interpretation of 42 U.S.C. § 1320a-7b(b)(3) exemption and jury instructions | Government: statute prohibits any remuneration linked to referrals, even if part is bona fide employment | Borrasi: exemption means employment payments cannot be criminalized if bona fide; primary motive not required | Jurisdiction adopted common-sense approach; conviction affirmed; no primary-motive doctrine required |
| Loss calculation sufficiency for sentencing | Government: loss proven at $647,204; district court properly increased offense level | Borrasi: district court failed to provide detailed methodologies; excessive credit for on-call services | District court's loss estimate reasonable; no clear error; credit for services affirmed as reasonable |
| Leadership enhancement of defendant | Government: four-level enhancement warranted by Borrasi's leadership role | Borrasi: overbroad enhancement; Mamoon less culpable | Court upheld four-level leadership enhancement for Borrasi |
| Sentencing disparity between co-defendants | Government: disparities justified by differing roles and circumstances | Borrasi: disparity ineffective and unwarranted under 3553(a)(6) | Disparity reasonable and properly supported by individualized 3553(a) findings |
Key Cases Cited
- United States v. Rogers, 587 F.3d 816 (7th Cir. 2009) (abuse of discretion standard; de novo for rules interpretation)
- United States v. Oros, 578 F.3d 703 (7th Cir. 2009) (harmless error review)
- Ehrhart v. Sec'y of Health and Human Servs., 969 F.2d 534 (7th Cir. 1992) (select issues for review; waiver considerations)
- United States v. DiSantis, 565 F.3d 354 (7th Cir. 2009) (de novo review of jury instructions; legality)
- United States v. Tanner, 628 F.3d 890 (7th Cir. 2010) (instruction appropriateness; standards for review)
- United States v. Greber, 760 F.2d 68 (3d Cir. 1985) (remuneration can violate the statute even if some services were provided)
- United States v. Kats, 871 F.2d 105 (9th Cir. 1989) (remuneration to induce referrals; one purpose suffices)
- United States v. Davis, 132 F.3d 1092 (5th Cir. 1998) (violation when benefits extend to induce future referrals)
- United States v. McClatchey, 217 F.3d 823 (10th Cir. 2000) (any remuneration violates the Act if intended to induce referrals)