85 F. Supp. 3d 679
W.D.N.Y.2015Background
- Defendant Nina Jafari, a licensed clinical social worker, was convicted on four counts of health care fraud and acquitted on count 4 after a jury trial.
- The Government moved for a preliminary order of forfeiture under Fed. R. Crim. P. 32.2(b)(1) and 18 U.S.C. § 982(a)(7) seeking a personal money judgment of $125,000.
- The court granted a preliminary order of forfeiture, ordering that $125,000 be forfeited as gross proceeds from the health care fraud scheme against BCBS of Western New York.
- The underlying scheme involved billing BCBS using CPT code 90808 (75–80 minute individual sessions) and included misbilling for group sessions and for services that were not rendered.
- Trial evidence included family testifying to the alleged services, BCBS and FBI witnesses, forged signatures, and audio recordings showing attempts to influence BCBS inquiries.
- The court addressed forfeiture methodology, refusing a set-off for services rendered, considering uncharged and acquitted conduct, and using extrapolation to reach a reasonable forfeiture amount.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mandatory forfeiture under § 982(a)(7) | Government argues forfeiture is mandatory and may be ordered as a personal money judgment. | Jafari contends procedure or amount disputes, possibly objecting to extrapolation or scope. | Forfeiture as a personal money judgment is mandatory under § 982(a)(7). |
| Allowance of uncharged and acquitted conduct in calculating forfeiture | Government may include uncharged executions and acquitted conduct if proven by a preponderance of the evidence. | Jafari argues acquitted conduct should not be used to compute forfeiture amount. | Uncharged and acquitted conduct may be considered to determine the forfeiture amount. |
| No set-off for value of services actually rendered | Gross proceeds forfeiture requires total receipts; no credit for services provided. | Jafari seeks some credit for services rendered in calculating loss. | No right to set-off for services actually rendered. |
| Use of extrapolation to calculate loss for forfeiture | Extrapolation from known data is a reasonable method to estimate forfeiture when records are incomplete. | Jafari challenges extrapolation as potentially unreliable or inflated. | Extrapolation is permissible; $125,000 is supported under various reasonable extrapolation methods. |
Key Cases Cited
- United States v. Poulin, 461 Fed.Appx. 272 (4th Cir. 2012) (forfeiture of gross proceeds may include a money judgment)
- United States v. Kalish, 626 F.3d 165 (2d Cir. 2010) (money judgment appropriate in fraud forfeiture)
- United States v. Awad, 598 F.3d 76 (2d Cir. 2010) (criminal forfeiture need not trace to identifiable assets)
- United States v. Fruchter, 411 F.3d 377 (2d Cir. 2005) (acquitted conduct may be considered in forfeiture proceedings)
- United States v. Genova, 333 F.3d 750 (7th Cir. 2003) (acquitted conduct can inform forfeiture when nexus shown)
- United States v. Venturella, 585 F.3d 1013 (7th Cir. 2009) (consideration of acquitted conduct in forfeiture decisions)
- United States v. Jennings, 487 F.3d 564 (8th Cir. 2007) (forfeiture of proceeds from entire scheme possible despite fewer convictions)
- Capoccia, 503 F.3d 103 (2d Cir. 2007) (broad approach to forfeiture tied to scheme conduct)
- United States v. Stathakis, 320 Fed.Appx. 74 (2d Cir. 2009) (Second Circuit on forfeiture of proceeds related to broader scheme)