United States v. Eric Opitz
704 F. App'x 66
| 3rd Cir. | 2017Background
- Opitz, a Medicare beneficiary with a human growth hormone (Genotropin) prescription, sold prescribed Genotropin kits via Craigslist from July 2012–June 2014. Medicare paid about $461 per kit.
- Undercover agents and over 20 identified purchasers bought Genotropin from Opitz; law enforcement found over 1,800 Craigslist ads and unopened kits in his home.
- A grand jury indicted Opitz on 20 counts: health care fraud (18 U.S.C. § 1347), mail fraud, and drug distribution; Opitz pled guilty to all counts without a plea agreement, including submitting fraudulent claims totaling $171,353 to Medicare.
- At sentencing the Government sought a loss figure of $171,353 (the amount billed to Medicare) and presented bank records, casino buy-ins, handwritten customer notes, and Craigslist postings; Opitz argued actual resale totaled $46,514 and that much of the drug was for his own use.
- The District Court adopted the $171,353 intended-loss figure under U.S.S.G. § 2B1.1 cmt. n.3(F)(viii), sentenced Opitz to 18 months imprisonment, and ordered $171,353 in restitution to Medicare; Opitz objected to the Guidelines loss calculation but not to restitution at sentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Loss amount for Guidelines calculation | Government: amount billed to Medicare ($171,353) is prima facie intended loss under the health-care special rule | Opitz: should be reduced to actual resale value he proved ($46,514); most was for personal use | Court: Affirmed $171,353 as intended loss; Opitz failed to rebut prima facie showing |
| Restitution basis | Government: restitution should equal the loss reflected by Medicare payments ($171,353) | Opitz: restitution must reflect actual loss and should be reduced to account for HGH he used himself | Court: Affirmed restitution; record supports at least $171,353 actual loss and District Court focused on actual conduct, so any failure to say "actual" was not plain error |
Key Cases Cited
- United States v. Evans, 155 F.3d 245 (3d Cir. 1998) (Government bears burden to prove loss at sentencing)
- United States v. McDowell, 888 F.2d 285 (3d Cir. 1989) (allocation of burden on loss amounts at sentencing)
- United States v. Jimenez, 513 F.3d 62 (3d Cir. 2008) (prima facie case shifts burden of production to defendant)
- United States v. Popov, 742 F.3d 911 (9th Cir. 2014) (Application Note 3(F)(viii) makes billed amounts prima facie evidence of intended loss in health-care fraud)
- United States v. Napier, 273 F.3d 276 (3d Cir. 2001) (interpretation of Guidelines loss is plenary review)
- United States v. Feldman, 338 F.3d 212 (3d Cir. 2003) (restitution limited to actual loss caused by defendant)
- United States v. Bryant, 655 F.3d 232 (3d Cir. 2011) (defendant bears burden to prove offsets to reduce restitution)
- Puckett v. United States, 556 U.S. 129 (2009) (plain-error review standard)
- Atl. States Cast Iron Pipe Co. v. 612 F. Supp. 2d 453 (D.N.J. 2009) (reasonable-estimate support for loss calculations)