575 F. App'x 624
6th Cir.2014Background
- Defendant Jonathan Agbebiyi was tried and convicted of one count of conspiracy to commit health care fraud (18 U.S.C. §§ 1349, 1347) and five substantive health-care-fraud counts arising from his work at three diagnostic clinics in Michigan that billed Medicare for unnecessary diagnostic tests.
- Clinics recruited Medicare beneficiaries (often paid and fed) and used minimally trained staff to administer tests; physicians’ signatures on orders (including Agbebiyi’s) enabled Medicare claims submission. Medicare paid roughly $2.98 million to the three clinics; clinics billed substantially more over their operation.
- Agbebiyi worked for ~20 months, was paid hourly and later a portion of clinic billings, ordered numerous nerve conduction and Doppler tests for nearly all his patients, and reviewed test results without challenging procedures or personnel qualifications.
- At sentencing the Presentence Report attributed $2,982,029.19 in actual loss (payments to the clinics) to the defendant, triggering an 18-level Guidelines enhancement under U.S.S.G. §2B1.1; district court sentenced Agbebiyi to 60 months and ordered restitution and forfeiture.
- On appeal Agbebiyi argued (1) the district court erred by not specifically allocating loss attributable to him after joining the conspiracy, (2) the Sixth Amendment required a jury finding on loss used for Guidelines and restitution, and (3) insufficient evidence supported the conspiracy conviction. The Sixth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Agbebiyi) | Held |
|---|---|---|---|
| Appropriate loss amount for Guidelines | PSR/Govt treated $2,982,029.19 (Medicare payments to clinics) as loss attributable to defendant; amount supports 18-level enhancement | Loss should be limited to amounts for tests defendant personally ordered (~$1.26M) or otherwise reduced; court failed to apportion post-joining loss | Court approved PSR approach; loss need only be a reasonable estimate; defendant waived/constructively conceded challenge by agreeing to PSR calculations at sentencing |
| Sixth Amendment jury finding for loss used in Guidelines/restitution | Judge may find facts for advisory Guidelines and determine restitution; Apprendi/Alleyne do not apply to advisory-Guidelines findings or restitution | Apprendi/Alleyne/Southern Union require jury findings for facts that increase punishment or monetary penalties (loss amount) | Court held no Sixth Amendment violation: Booker preserves judicial factfinding for advisory Guidelines; restitution is determined by court; Southern Union (fines) doesn't extend to restitution |
| Sufficiency of evidence for conspiracy conviction | Evidence showed tacit agreement and overt acts: Agbebiyi ordered many unnecessary tests, accepted payment structure, reviewed results, acquiesced to clinic practices | He provided legitimate medical services, was unaware of fraud, not involved in billing, reasonably compensated; thus insufficient proof of knowing participation | Viewing evidence in government’s favor, rational juror could find knowing, voluntary participation; no manifest miscarriage of justice; conviction affirmed |
| Preservation of issues on appeal | Govt relied on sentencing record and PSR; many arguments resolved on waiver/forfeiture grounds | Defendant failed to object at sentencing/trial, so appellate review is limited or waived | Court found defendant waived or forfeited certain challenges by agreeing to PSR calculations and not raising contemporaneous objections |
Key Cases Cited
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts increasing statutory maximum must be found by jury)
- Alleyne v. United States, 133 S. Ct. 2151 (2013) (facts increasing mandatory minimum must be found by jury)
- Southern Union Co. v. United States, 132 S. Ct. 2344 (2012) (facts that increase a criminal fine beyond statutory maximum require proof beyond a reasonable doubt)
- United States v. Booker, 543 U.S. 220 (2005) (advisory Sentencing Guidelines; district courts may engage in judicial factfinding for Guidelines calculations)
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for appellate review of sufficiency of the evidence)
- United States v. Martinez, 588 F.3d 301 (6th Cir.) (actual and intended loss may be included in loss calculations)
- United States v. Triana, 468 F.3d 308 (6th Cir.) (loss need only be a reasonable estimate where exact quantification is difficult)
- United States v. Smith, 749 F.3d 465 (6th Cir.) (Apprendi/Alleyne do not disturb district court’s discretionary factfinding for advisory-Guidelines ranges)