United States v. Robert Kolbusz, 837 F.3d 811

Robert Kolbusz, a dermatologist, was convicted by a jury on six counts of mail or wire fraud and sentenced to 84 months’ imprisonment plus about $3.8 million in restitution.
He submitted thousands of Medicare and private-insurer claims for treatment of actinic keratosis and received millions in payments; the jury reasonably found many claims were not honest medical judgments.
The indictment alleged a scheme to defraud and identified six exemplar fraudulent claims (the charged counts).
After indictment, Kolbusz continued submitting claims and receiving payments; he sought to introduce evidence of those later payments at trial.
In post-trial proceedings, Kolbusz argued certain private insurer agreements (waivers/payments) should reduce the restitution ordered by the United States.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether allowing evidence of additional victims/claims beyond six exemplars constructively amended the indictment	Kolbusz: Prosecutor was limited to the six charged frauds; presenting evidence of other patients altered the indictment	Government: Indictment charged a scheme; prosecutor may prove the scheme as a whole, not just exemplars	Court: No constructive amendment; prosecution may present broader-scheme evidence beyond exemplars
Whether the court erred in excluding evidence of post-indictment Medicare payments (2013–2014)	Kolbusz: Payments show good faith and undermine fraud allegations	Government: Later payments relate to Medicare processing, not Kolbusz’s mens rea during charged period (2003–2010)	Court: No abuse of discretion; excluded as irrelevant and risk of diverting trial to claims-processing issues
Whether private insurer waivers/payments should offset restitution to the United States	Kolbusz: Payments/waivers by insurers should reduce restitution owed to government	Government: Private agreements do not bind the United States in its restitution action	Court: Private agreements do not bind the U.S.; restitution not reduced by those insurer deals

United States v. Phillips, 745 F.3d 829 (7th Cir. 2014) (prosecutor may prove a fraud scheme beyond charged exemplars)
United States v. Salmonese, 352 F.3d 608 (2d Cir. 2003) (same: proof of scheme as a whole permitted)
United States v. Blagojevich, 794 F.3d 729 (7th Cir. 2015) (discussing relevance of defendant’s good-faith evidence)
EEOC v. Waffle House, Inc., 534 U.S. 279 (2002) (private agreements do not bind the United States)
United States v. Rizk, 660 F.3d 1125 (9th Cir. 2011) (private settlements do not preclude government restitution)
United States v. Gallant, 537 F.3d 1202 (10th Cir. 2008) (same)
United States v. Karam, 201 F.3d 320 (4th Cir. 2000) (same)
United States v. Parsons, 141 F.3d 386 (1st Cir. 1998) (same)
United States v. Sheinbaum, 136 F.3d 443 (5th Cir. 1998) (same)

Affirmed