UNITED STATES of America, Plaintiff-Appellee, v. Arun SHARMA, Kiran Sharma, Defendants-Appellants.
Nos. 11-20102, 11-20167, 11-20204
United States Court of Appeals, Fifth Circuit
Dec. 20, 2012
703 F.3d 318
Smith did not rest with just the abstract reduction in his credit line, however. He also testified as to how much the decreased credit line affected his business performance and eligibility for bonuses (because he individually paid costs on behalf of his employer in order to expedite projects). He refinanced his home mortgage during this period and suffered an increased interest rate because of his erroneous credit rating. He deferred personal expenditures, which he itemized for the jury, as a cautionary measure until his rating was restored. And he suffered compensable mental pain and anguish, embarrassment, and difficult professional and family relations. Cousin v. Trans Union Corp., 246 F.3d 359 (5th Cir. 2001) is not controlling here, because in the absence of a special verdict, the amount of any recovery for Smith‘s non-economic damages, and therefore its sustainability, is purely speculative. Santander challenged all of these damage contentions at trial. The jury verdict, which is general and un-itemized, reflects considerably less than Smith sought. Because the evidence is sufficient for “reasonable and fair-minded men in the exercise of impartial judgment” to support the ultimate award, whether or not this court would have reached the same result, the Boeing standard requires this court to affirm the jury verdict.1
As with damages, the issue of mitigation was thoroughly vetted before the jury. It is possible that the jury, in declining to award the full amount of Smith‘s claimed damages, adjusted for his alleged failure to mitigate his damages, e.g., by delaying the mortgage refinance until interest rates declined. We may not speculate on the makeup of the general verdict. This issue cannot be resolved as a matter of law in favor of Santander.
Finally, the court‘s admission of letters from Bank of America, Sears and Trans Union that purported to reflect the impact of the erroneous credit score on Smith‘s lines of credit and Smith‘s dispute with Trans Union (the credit reporting agency) was harmless error, if error at all, whether viewed for their relevance to Santander‘s liability (which the company does not dispute) or compensable damages.
For these reasons, Santander‘s challenges to the verdict lack merit. The judgment is AFFIRMED.
Chris Flood (argued), Flood & Flood, Dan Lamar Cogdell, Houston, TX, for Defendants-Appellants.
Before WIENER, CLEMENT, and PRADO, Circuit Judges.
WIENER, Circuit Judge:
Defendants-Appellants Dr. Arun Sharma (“Arun“) and Dr. Kiran Sharma (“Kiran“) pleaded guilty to defrauding health-care insurers by billing for pain injections that they never administered. As part of their sentences, the district court ordered them to pay $43,318,170.93 in restitution to thirty-two victims defrauded by the
I. Facts & Proceedings
Arun and Kiran are physicians married to each other who operated two pain management, arthritis, and allergy clinics in Houston, Texas. From 1998 to 2009, they conspired to defraud Medicare, Medicaid, and many private insurance companies of millions of dollars by billing for paravertebral facet-point injections that they never administered to patients. Sometimes, the Sharmas would actually administer a cheaper, faster, “trigger-point injection” but would “upcode” the procedure and bill insurers for the more expensive facet-point injection. Other times, the Sharmas would submit “phantom” bills for injections or patient visits that never happened.
The Sharmas were indicted on sixty-four counts of conspiracy, health-care fraud, mail fraud, unlawful distribution of controlled substances, and money laundering. Eventually, each pleaded guilty to (1) one count of conspiracy to commit health-care and mail fraud and (2) one substantive count of health-care fraud, in violation of
The United States Probation Office (“Probation Office“) prepared Presentence Investigation Reports (“PSRs“) for both defendants. The PSRs calculated that the actual loss to Medicare, Medicaid, and thirty private insurers totaled $43,318,170.93, and recommended restitution in that amount. The Sharmas objected, primarily because the recommendation did not give them a credit for amounts that the insurers would have paid for the trigger-point injections that were actually administered. They also objected that the $43,318,170.93 total overstated the insurers’ actual losses because it improperly included payments for non-injection treatments unrelated to the Sharmas’ specific offenses of conviction, such as Kiran‘s undisputedly legitimate allergy practice and treatments other than by injection.
In support of their objections, the Sharmas submitted an alternative restitution calculation prepared by a forensic accountant. According to her report, their accountant first scrutinized the insurers’ claimed losses to exclude payments for procedures other than injections, reducing the total loss to $37,670,826.32. The accountant then assumed that the Sharmas had administered a specific number of legitimate, medically necessary trigger-point injections each month and that the insurers would have paid for those procedures without the “upcoding.” Applying a credit for those injections, the accountant concluded that the actual loss to the insurers totaled $21,028,963.61.
The Sharmas timely appealed, challenging the amount of restitution ordered by the district court. In addition, Arun contends that the government breached the plea agreement by pursuing forfeiture of particular assets and by opposing a credit to the restitution award for legitimate charges.
II. Analysis
A. Standards of Review
We review the quantum of an award of restitution for abuse of discretion.2 We review the district court‘s factual findings for clear error.3 A factual finding is clearly erroneous only if “based on the record as a whole, we are left with the definite and firm conviction that a mistake has been committed.”4 We may affirm in the absence of express findings “if the record provides an adequate basis to support the restitution order.”5
As Arun did not articulate breach of the plea agreement to the district court, we review that claim for plain error.6 To show plain error, he must demonstrate that the error was clear or obvious and affected his substantial rights.7 “Even if he meets this tough standard, we will not reverse unless the error has a serious effect on the fairness, integrity, or public reputation of judicial proceedings.”8
B. Restitution
The district court awarded restitution pursuant to the Mandatory Victim Restitution Act (“MVRA“).9 The MVRA authorizes restitution to a victim “directly and proximately harmed” by a defendant‘s offense of conviction.10 The purpose of restitution under the MVRA is to compensate victims for losses, not to punish defendants for ill-gotten gains.11 An award of restitution greater than a victim‘s actual loss exceeds the MVRA‘s statutory maximum.12
The Sharmas contend on appeal, as they did in the district court, that the total restitution awarded exceeded the aggregate amount of the insurers’ actual loss by erroneously (1) including restitution for payments not related to the injection-bill
1. Actual Loss Caused by the Offenses of Conviction
The MVRA limits restitution to the actual loss directly and proximately caused by the defendant‘s offense of conviction. An award of restitution cannot compensate a victim for losses caused by conduct not charged in the indictment or specified in a guilty plea,13 or for losses caused by conduct that falls outside the temporal scope of the acts of conviction.14 Moreover, excessive restitution awards cannot be excused by harmless error; every dollar must be supported by record evidence.15
The Sharmas insist that the district court erred by awarding restitution for losses not caused by their offenses of conviction. They pleaded guilty to only two of the sixty-four counts of indictment, and both of those counts related to the scheme to bill insurers between 1998 and 2009 for facet-point injections that were never administered. Amounts that the insurers paid the Sharmas between 1998 and 2009 for those non-administered injections are actual losses properly compensable through restitution. Not so, however, for amounts paid by the insurers before 1998 or paid by them between 1998 and 2009 for unrelated treatments. Those payments do not constitute losses directly and proximately caused by the offenses of conviction and should not have been included in calculating the restitution award.
The district court adopted the precise amount from the PSRs, which it could do only if those amounts had an adequate evidentiary basis and remained unrebutted by the defendants.16 In preparing the Sharmas’ PSRs, the Probation Office apparently relied on statements from the insurers themselves. The government solicited information regarding “any financial losses and/or harm experienced as a result of” the Sharmas’ billing for injections that were not administered. Medicare, Medicaid, and thirty of the private insurers responded with “victim impact statements” claiming losses from the fraud. For Medicare, Medicaid, and twenty-eight of the thirty defrauded private insurers, the Probation Office copied the claimed losses directly into the PSRs.17
By thus directly incorporating the amounts from the victim impact statements into the PSRs as actual losses, the Probation Office went astray. Examples from three of the insurers will suffice to show how the Probation Office failed to scrutinize those amounts and thereby recommended restitution for more than the insurers’ actual losses. One insurer, Tricare, claimed as loss all of its payments to
These three errors in confecting the PSRs resulted in recommendations of restitution to Tricare, Texas Amerigroup, and Principal Life that exceeded the evidence of their actual losses under the MVRA. Moreover, these obvious mistakes undermine our confidence that the Probation Office gave any meaningful scrutiny to the actual losses of Medicare, Medicaid, and the remaining twenty-seven private insurer victims.21 Our doubts are compounded by the Sharmas’ rebuttal evidence. Their accountant examined the insurers’ claimed losses and concluded that, by failing to exclude non-injection payments, the PSRs overstated the loss by $5,647,344.61.
In sum, the record does not support the entire $43,318,170.93 of restitution recommended in the PSRs and awarded by the district court. The Sharmas identified this deficiency to the district court, but it did not address those objections and instead adopted the unsupported figure. This was an abuse of discretion.22
2. Credit for Medical Services Actually Provided
Actual loss also must not include compensation for that which would have occurred in the absence of the crime. Thus, in health-care fraud cases, an insurer‘s actual loss for restitution purposes must not include any amount that the insurer would have paid had the defendant not committed the fraud. For example, in United States v. Klein, the defendant physician was convicted of billing insurers for personally administering three shots to his patients, when in fact each patient self-
In contrast, no credit was warranted in United States v. Jones when the defendants billed Medicare for providing physical rehabilitation services, but fraudulently misrepresented the qualifications of the personnel who performed the work.27 The district court awarded restitution to Medicare for the total amount it paid to the defendants, without giving any credit for the value of the physical therapy that was actually provided.28 We affirmed because, although the patients may have received some therapeutic benefit, Medicare itself—not the patients—was the victim of the fraud and would not have paid for any of the treatment absent those fraudulent misrepresentations.29
In the instant case, the parties dispute whether this situation is closer to Klein or to Jones. The Sharmas assert that, like the defendant in Klein, they provided real medical services for which the insurers would have paid in the absence of the fraudulent upcoding.30 The government contends that this case is closer to Jones because, notwithstanding any pain relief that the patients might have received, nothing in the record suggests that the insurers would have paid for the medically unnecessary trigger-point injections.
Even though the MVRA puts the burden on the government to demonstrate the amount of a victim‘s loss, a sentencing court may shift “the burden of demonstrating such other matters as the court deems appropriate ... [to] the party designated by the court as justice requires.”31 In the past, we have approved the transfer of at least a portion of the burden to a defendant to establish his entitlement to a restitution credit. In United States v. Loe, for example, we affirmed a district court‘s rejection of a restitution credit on the basis of the defendant‘s inability “to provide reliable evidence supporting its claims” that not all of its insurance claims were fraudulent.32 Similarly, in United States v. Sheinbaum, we stated that the defendant had “the burden of proving an offset” to restitution for any amounts it paid the victim in a civil settlement.33 And, in the
The government presented unrebutted evidence that Arun (1) deliberately misdiagnosed patients as having rheumatoid arthritis and put them on an injection regimen, (2) tried to convince all of his patients to have trigger-point injections at every visit, (3) required patients who declined injections to sign mendacious acknowledgments that they had received the treatments before he would prescribe pain medication, and (4) administered injections in an assembly-line fashion without taking routine sanitary precautions.35 The Sharmas also employed six foreign medical graduates to fabricate bills en masse. Finally, the government asserted in its sentencing memorandum that patients who later went to different physicians were “universally” taken off trigger-point injections.
The Sharmas offered little in the way of concrete evidence to rebut the government‘s contentions. Their plea agreements stated that some injections were provided, but did not represent that those injections were medically necessary or that the physicians would have been reimbursed for them by the insurers. Although the Sharmas provided anecdotal statements from patients claiming some degree of pain relief, the victims of the crimes of conviction were the insurance companies, not the patients.36 The Sharmas did not produce competent evidence suggesting that even one injection to even one patient was medically necessary and met the insurer‘s reimbursement standards. Instead, they submitted only the accountant‘s report which assumed without explanation that legitimate and medically necessary injections were performed and would have been reimbursed. The district court was not required to accept that self-serving premise.
Our review of the record in the context of the burdens of proof satisfies us that the government provided sufficient evidence that the trigger-point injections were merely a revenue stream for the Sharmas and not legitimate, medically necessary treatments for which the insurers would have paid in the absence of the fraud. The Sharmas did not submit evidence refuting that conclusion. Accordingly, the district court did not abuse its discretion in declining to apply a restitution credit.
C. Breach of the Plea Agreement
Arun also contends that the government breached his plea agreement by (1) opposing the restitution credit discussed above, (2) requesting forfeiture of the remainder of the educational trust, and (3) requesting forfeiture of funds not listed in the indictment or in notices of forfeiture. “In evaluating whether a plea agreement was breached, we apply general principles of contract law, construing the terms strictly against the government as drafter, to determine whether the government‘s conduct is consistent with the defendant‘s
Assuming without deciding that Arun adequately briefed this issue, none of the purported breaches are inconsistent with a reasonable understanding of the plea agreement. First, the agreement did not stipulate to a method for calculating restitution or to a credit for any trigger-point injections.38 In fact, the government expressly reserved the right to “set forth or dispute sentencing factors or facts material to sentencing.” Second, the plea agreement did not address the balance of the $1.5 million educational trust. As the trust contained seized funds, and Arun agreed to forfeit proceeds of the fraud, he could not reasonably expect any remainder of the trust to revert to him. Third, although the plea agreement stated that particular properties listed in the indictment and in forfeiture notices were subject to forfeiture, it did not limit forfeiture to those listed items or accounts. Rather, Arun agreed categorically “to forfeit whatever interest [he] has in assets related to this case.” The government did not breach the plea agreement.
III. Conclusion
The evidence is not sufficient to support the district court‘s entire $43,318,170.93 restitution award. The Sharmas both identified these deficiencies and provided rebuttal evidence confirming that the PSRs’ recommended restitution amount exceeded the insurers’ actual losses by millions of dollars. Thus, the district court abused its discretion as a matter of law in awarding the entire amount recommended in the PSRs. The district court did not, however, abuse its discretion in declining to allow the Sharmas credit for injections that were not shown to be medically necessary or reimbursable by the insurers.
Accordingly, we vacate the order of restitution and remand for recalculation consistent with this opinion and based solely on evidence already in the record.39 On remand, the district court must specify, on the record, its findings and reasons regarding each insurer‘s actual loss. And, as the Sharmas’ plea agreements stipulated to a forfeiture money judgment in the same amount as the restitution award, we also vacate the amount of the forfeiture award and remand for recalculation.40 Finally, the government did not breach the plea agreements with the Sharmas.
In summary, we vacate the district court‘s order of restitution and order of forfeiture, and we remand this matter to that court for it to recalculate those amounts in a manner consistent with this opinion.
VACATED and REMANDED with instructions.
JACQUES L. WIENER, JR.
UNITED STATES CIRCUIT JUDGE