*1 duty inquire into the district court’s nature of Benitez’s dissatisfac-
source and
tion, and that the court’s failure to do so right
violated his Sixth Amendment peti-
counsel. Because Benitez’s untimely in the
tion was filed absence
equitable tolling, we will remand the case
to the district court for determination of tolling.
whether Benitez entitled such is,
If he then the district court will need to at a hearing
resentence Benitez where him dispute being prop-
there is no about
erly represented by counsel.
III. CONCLUSION above,
For all of the reasons set forth judgment
we REVERSE of the dis-
trict REMAND court and the case for proceedings
further consistent this
opinion. America,
UNITED STATES of
Plaintiff-Appellee/Cross
Appellant, Wayne HUNT,
Russell Defendant-
Appellant/Cross-Appellee. 06-6300,
Nos. 06-6301. Appeals,
United States Court
Sixth Circuit.
Argued: Nov. 2007.
Decided April and Filed: 2008. *3 Hodde,
ARGUED: Kimberly S. Hodde Associates, Nashville, & Tennessee, for Appellant. Ramsaur, Lynn Jimmie Assis- tant United Attorney, Nashville, substantively argu- unreasonable. Hunt’s BRIEF: ON Tennessee, Appellee. for Associates, unavailing, are but the Government Hodde, ments Hodde & Kimberly S. Braun, substantively Tennessee, that his sentence is Nashville, Richard J. is correct PLLC, Nashville, Therefore, Crotwell, Ten- we affirm unreasonable. & Braun Lynn vacating while his sen- Jimmie Hunt’s convictions nessee, Appellant. for for Ramsaur, remanding Attor- the case resen- United States tence Assistant Tennessee, Nashville, Appellee. tencing. ney, MARTIN, SILER, and Before: I.
ROGERS, Judges. Circuit *4 case, to this Rus- At the times relevant ROGERS, J., of opinion delivered a Wayne physician Hunt was licensed sell SILER, J., court, joined. in which in medicine the state Tennes- practice to 650-55), MARTIN, delivered (pp. J. in- case revolves around his see. This and concurring part in opinion separate diagnostic testing mobile volvement with dissenting part. in Noble, by Mark who companies owned false statements re- guilty making to pled
OPINION From 1999 lated to health care matters. ROGERS, Judge. Circuit 2001, and operator Noble was the until trial, Wayne Russell Following testing diagnostic of a mobile part owner in care fraud of health Hunt was convicted Check, Inc. called Vascular company 1347, conspiracy § violation of 18 U.S.C. (“VCI”), 2002 and and between of 18 care fraud in violation commit health of an identical operator the owner and was making false statements and U.S.C. Tech Screen- company known as Health care fraud violation relating to health (“HTS”). companies per- ings Those 1035. He was sentenced 18 U.S.C. tests, artery carotid ultrasound formed $6,000 fine, a probation, a years five to determine whether which allow doctors assessment, $1,200 restitution special blockage artery in the carotid there is $151,161.78, paid to be in the amount The tests were lead to stroke. could severally co-conspira- with his jointly and of Tennes- throughout state performed that his convic- argues Hunt now tors. see, places at like senior citizens’ typically (1) because: his tions should be overturned and HTS trade shows. VCI centers and his own right present Sixth Amendment and Blue billed Medicare both Cross/Blue was and establish his defense witnesses pri- the services. Medicare Shield for ensuring by violated the Government’s only pay diagnostic vate insurance witnesses would primary that two defense that have been determined tests (2) trial; testify at not be available to treating physi- medically necessary by refusing to admit court erred district physician’s practitioner a nurse cian or by a made exculpatory hearsay statements the license of a working under assistant (3) codefendant; there was insufficient treating physician. In the his convictions. support evidence to with Noble acquainted Hunt became alternative, that the restitu- Hunt contends opened Hunt had shortly after because the order must be modified tion Noble informed private practice. incorrectly own calculated corporate the health fairs and Hunt about part, For its the Govern- amount owed. attended, and company Noble’s events that ment, contends that the cross-appeal, in a a booth at setting up Hunt decided by the district court is imposed sentence good way such events would be a to mar- vices that he was paid per signed $10 practice. ket his new order, Hunt’s attendance and that all of the tests had been at those events allowed him become ordered they before performed. were more familiar with enterprises by Noble’s addition, Neither statement was true. In observing Eventually, them. Noble asked Hunt claimed that a practitioner nurse if willing Hunt would be pa- evaluate working under his license examining tients behalf of company Noble’s patients, although he admitted that he events. those Hunt’s role was to review a had person, never met that did not know history questionnaire medical filled out name, person’s and had not confirmed a patient, perform an examination on the that person’s credentials. patient, and then make a determination as As a Hunt, result of investigation, artery whether carotid ultrasound Noble, Reed, and Patricia one of Noble’s medically test was necessary. employees, were indicted in August of 2004 point At some Hunt informed fraud, for health care conspiracy to commit that he was busy Noble too private in his fraud, health care and making false state- practice to seeing patients continue on be- ments relating to health care matters. *5 half of company. Noble’s provided Noble subsequently pled guilty to making Noble with a list of practitioners nurse and false relating statements to health care suggested that Noble hire someone off matters, and he was sentenced to 37 patients list to see under Hunt’s medi- prison, months in years three super- cal license. Noble never hired a nurse release, vised payment and of restitution in Instead, practitioner though. Noble sim- $242,738. the amount of pled guilty Reed ply began bringing the medical history to assisting making a false statement questionnaires and the unsigned orders to involving a federal health program, care Hunt after the already tests had been and she was sentenced to four years of performed, and Hunt would sign then probation and pay ordered to restitution in having orders without patients. seen the $19,000. the amount of Bartee, Dr. anoth- signed After Hunt the orders without hav- physician er signed who orders for Noble’s ing patients, seen examined the Noble companies, negotiated pretrial a diversion would submit claims to Medicare order agreement with the Government. Unlike to payment receive for the tests. For his Hunt, Dr. Bartee appears to physical- have trouble, Hunt received signature per $10 ly patients examined ordering before from Noble. If particular a patient had tests, stopped and he signing orders private through insurance Blue Cross/Blue Noble in 2002 becoming after suspicious Shield, Noble would submit a claim to that about legality of Noble’s conduct. test, company for the and Hunt would also submit a claim for his “consultation” with A superseding indictment of Hunt was In patient. the claims he submit- 20, issued on July 2005. Hunt maintained ted Blue Shield, to Hunt billed Cross/Blue his proceeded and innocence to trial. Dur- a under consultation requires code that ing trial, sought to have admitted face-to-face examination patient. of the into hearsay evidence two statements from government
In began investi- affidavit made during Noble gating Noble and companies his investigation. In suspi- statements, those Noble cion of said, Medicare fraud. During the inves- “I Hunt, don’t feel Doctor Russell Dr. tigation, Hunt special told agents Moore, from the Dr. Bartee did anything wrong,” Department of Health and Human Ser- and “Dr. Hunt does not know that RN probation, In to background. addition ble PA.” The as a represented [sic] Haines pay court ordered Hunt inad- the district statements ruled both court assessment, $1,200 fine, to elicit testi- sought $6,000 special Hunt also missible. , Bartee, they but and Dr. Noble in the amount mony from restitution Fifth Amend- testify on $151,161.78, jointly refused owe both which he would refused tes- Bartee Dr. grounds. ment severally with the defendants.2 other how his about of concerns tify because $50,000 pay further ordered to Hunt was agree- his diversion testimony might affect days. within 60 of the restitution by the finalized ment, been which had not testify trial, and Noble refused time II. potential prose- exposure to of his in other districts. cution not violate did The Government all present Hunt on right convicted Amendment Hunt’s Sixth After held on counts, hearing was sentencing a defense his own establish witnesses Although the Guide- 2006. “ac September prosecutorial were no because there months of 27 to 33 was from Range wit lines defense discouraging tions aimed court sentenced the district imprisonment, testifying....” United States nesses from In reach- probation. years five 377, 400 268 F.3d Emuegbunam, v. en- decision, district court ing that Texas, Cir.2001) 409 U.S. (citing Webb v. evi- lengthy discussion in a gaged 34,L.Ed.2d (1972); 95, 98, 93 S.Ct. indicative of that it believed dence Thomas, F.2d United part. on Hunt’s fraudulent intent lack of (6th Cir.1973)). two It is true concluded Ultimately, the district Noble witnesses—Mark defense potential *6 by No- “hoodwinked” that Hunt had been testify on to Dr. Bartee —-refused expressed court also The district ble. the Gov grounds, but Fifth Amendment the fact that several great concern about inhi discourage to or nothing ernment did to court considered whom the individuals Indeed, the Gov testifying. them bit from prosecut- had not been equally culpable be of not even the cause-in-fact ernment was to appears ed. The district testify. to their refusals Hunt the fact that weight to given have de- the Government argues license, as medical his probably lose would intentionally by rights of his him prived artery the carotid the fact well as positions and Dr. Bartee placing Noble patients on the performed ultrasound tests their likely to assert they be where would signifi- may have anyone hurt did not testify. rights Fifth Amendment dis- many individuals. cantly helped Gov- points out Specifically, that Hunt was trict court also considered sentencing continued Noble’s ernment well-respected physician well-liked trial and that Hunt’s after hearing hum- until of hard to break out worked who $113,247.85 Medi- from paid a total of Haynes, were refers to Diane statement 1. The latter Hunt, and No- by for Noble. the tests ordered registered who worked care for nurse occasionally represented patients paid a total of companies were also She was ble's , physician's $30,235.05 for as a assistant. Shield from Blue Cross/Blue Altogether, the total by Hunt. tests ordered $7,678.88 Blue from Hunt received Cross/ 2. and Blue Medicare Cross/ loss sustained "consultations” that Shield for the Blue actions was of as a result Hunt's Blue Shield $3,710 billed, paid a total and he was $151,161.78. dispute these Hunt does not Therefore, profits Hunt's companies. Noble's calculations. $11,388.88. companies Noble’s were at least the Government had failed to reach a di- hearsay statements from Noble’s affidavit. agreement version with Dr. prior Bartee Hunt alleges that the statements are ad- argument, however, to Hunt’s trial. This 804(b)(1) missible under Rule or Rule 807 ignores key First, facts. the Government for the asserted, truth of the matter or in pretrial said at the hearing it alternative, had no the under Rule 806 for the objection sentencing Noble before the purpose impeachment. We review such lawyer, however, trial. Noble’s indicated admissibility determinations for abuse of to the court that his client would refuse to Ganier, discretion. United States v. testify regardless Cir.2006). of whether or not he had F.3d Because nei- been sentenced because ther there was a statement is admissible under might chance that he prosecuted be Evidence, Federal Rules of it cannot related conduct other said that the districts.3 Sec- district court abused its ond, the Government and discretion in Dr. excluding Bartee failed them. an agreement reach on pretrial diver- Preliminarily, question we whether the sion prior Hunt’s trial not because of affidavit satisfy general statements re- any fault on the part Government, quirements for admissibility. The state- but Dr. Bartee himself delay- ment that “Dr. Hunt does not know that ing process so that he could determine RN Haines represented PA,” [sic] is aas how best to structure the agreement arguably not admissible as not based on order to disciplinary avoid issues personal witness’s knowledge. Fed. Tennessee Board Medical Examiners. R.Evid. 602. Noble’s statement that “I
Thus, because the facts indicate that the don’t Hunt, feel Doctor Moore, Russell Dr. Government did not do anything to ensure Dr. Bartee did anything wrong,” is argu- that Noble and Dr. Bartee would be un- ably not admissible an opinion by as laya trial, to testify available the Government witness that is “helpful to a clear un- did not interfere unconstitutionally with derstanding of the testimony witness’ right present his own witnesses the determination of a fact in issue.” Fed. and establish his defense. 701; R.Evid. see also Torres v. County of Oakland, (6th Cir.1985) 758 F.2d
III. *7 (a lay opinion is not helpful if it “would There was also no error in merely the tell the what result to district court’s refusal to ”). admit the two reach....
3. exposed Noble was to prosecution further in guidance internal and does not affect the the Eastern District of Tennessee rights because he parties. of Manual, Attorney See U.S. committed some the 9-2.031(F). of same Therefore, criminal acts in Hunt cannot force that district as he did in the Middle District. testify Noble to simply because the Manual Therefore, his assertion of the expresses Fifth Amend- general a policy against prosecuting ment was valid because he had reasonable fact, him in another district. Aside from that apprehend to cause danger however, a real of incrimi- the provides Manual gener- that the nating himself if were to be prosecuted policy in al can be disregarded in certain situa- the Eastern District. See In Morganroth, re tions. possible is It testimony that Noble’s Cir.1983). F.2d Hunt con- could paint uncover new facts or his conduct tends, however, that Noble's assertion of his in a new place manner so as to him one in of right Fifth Amendment was not Moreover, valid because those scenarios. Noble’s situation policies expressed the in Attorney the U.S. could have fit within one of those scenarios highly Manual made it unlikely that Noble even without new arising information actually prosecuted would be the result, in Eastern testimony. from his aAs Noble had argument ignores District. That the fact that reasonable cause apprehend to danger a real the Attorney U.S. only Manual is intended for of incriminating himself. situation, the former In the at trial. tors however, the affidavit that Assuming, infor- to obtain agents desire admissibility Government general meet the statements revealing without 701, they suspect the mation from 602 and Rules of requirements already they have. information that not admissible the nonetheless are in necessarily their First, prior Therefore, testimo- it is not the hearsay. they are Rule the declar- examine applicable. to cross not interest is best exception ny the hearsay picture to be received a of truth 804(b)(1) try paint or to permits ant however, trial, unavailable it is At if declarant they the it. into understand evidence as hearsay was lay and the a witness best interest testify as in the is Government’s hearing of “at testimony another the so given as on the table of its cards all in a or proceeding, or a different public- presented the same truth can unvarnished in law with compliance taken not deposition has jury. Because ly proceed- or another the same of the course a had Government demonstrated 804(b)(1). affi- The ing.Fed.R.Evid. motive, statements and because the similar hear- at a given not was question davit hearing deposition, or a not given were Instead, was it deposition. a ing or under are not admissible statements government with during interview made 804(b)(1). Rule of kind some hearing connotes A agents. are Additionally, the statements by an over presided proceeding adversarial 807, the residu Rule under admissible not is “deposition” party, while third impartial for Rule allows hearsay exception. al out-of-court to the referring art term of hearsay statements admission under of a witness questioning adversarial or Rule 803 covered specifically are affi- a narrative signing Writing and oath. (1) they equivalent have long as: so Government during an interview davit trustworthi guarantees circumstantial as testimo- same plainly is officers aof (2) as evidence ness, they are offered hearing deposition. during ny given (3) probative fact, they are more material Rule fail Furthermore, the statements are they offered point which 804(b)(l)’s requirement additional propo which any other evidence than testimony the former whom against party ef through reasonable procure nent can opportunity “an had have is offered (4) best will admission forts, their testimony develop motive similar of the Rules purposes general serve Id. cross, examination.” direct, or redirect justice. interests Evidence required to show Although in this 807. Fed.R.Evid. motive had similar the Government hearsay state finding that case made it had at as testimony at trial develop the trustworthiness, and lack at issue ments made, Unit see the affidavit the time *8 finding to that has not demonstrated Hunt 822, 112 317, Salerno, U.S. 505 v. ed States it argues that Hunt clearly erroneous. be (1992), has he 2503, 120 L.Ed.2d S.Ct. the state that to conclude reasonable is In that issue. no argument presented to they tend truthful ments are could demon deed, unlikely that he it is declarant, Noble, ex while incriminate agents who the Government that strate However, at least is it Hunt. culpating had investigation conducting were that to conclude equally reasonable statements develop to motive similar trustworthy. It would are not statements mo at trial. The had prosecution as the lie to individual for an not be bizarre talk who are agents Government tives of individual another protect order investigation during an suspect ing to relationship. a business has whom he prosecu- motives from the are different importantly, More a statement is not ren- being unaware that Haynes RN is some- dered trustworthy simply by the fact represented times physician’s as a assis- it exculpate tends to one other than tant. any event, In the district court’s declarant. This principle is seen clearly in determination that there were no inconsis- 804(b)(3), Rule says which that a statement tencies between the statements was nei- exposes the declarant to criminal lia- ther a clearly erroneous determination nor bility exculpating while the accused is not abuse of discretion. Because it is not admissible unless corroborating circum- clear that the inconsistent, statements are stances indicate its trustworthiness. The the district court properly determined that absence of such corroborating circum- the affidavit statement about Haynes RN stances this situation indicates that the was not admissible under Rule Hunt 806. affidavit statements lack circumstantial alleges also that Noble’s statement guarantees of equivalent trustworthiness Hunt not do did anything wrong is incon- to those found in Thus, Rule 803 or 804. it sistent with various statements on the vid- is not clear that the statements bear the eotape concerning Hunt’s knowledge, but requisite trustworthiness. The district point fails out particular incon- court accordingly amade reasonable deci- sistencies. We uphold therefore the dis- sion to exclude the statements on the basis trict ruling court’s on that issue as well. of untrustworthiness. The reasonableness Finally, the Confrontation Clause of that decision leads the conclusion that does compel not the admission of the affi it was not an abuse of discretion. davit statements purpose for the of im
The statements are
admis
peachment.
Although
is correct that
sible under Rule
purpose
purpose
of the Confrontation Clause is
impeachment. Rule 806 allows for the im
guarantee
defendants an opportunity to
peachment of hearsay evidence in any
cross-examine and attack the credibility of
manner that would be
if
allowed the hear
hearsay
witnesses and
declarants, it is also
say declarant had
witness,
testified as a
true
Confrontation Clause leaves
argues
that the two statements
the trial judge with authority to place rea
at issue should be admitted
impeach
sonable limits on cross-examination. See
certain statements
made
Noble on an
Arsdall,
Delaware
Van
475 U.S.
undercover video that was
made
(1986).
S.Ct.
645 the execu- contributes to which defendant IV. (2) to aid its crime; the intent and of a tion sufficiency-of-the-evidence Hunt’s Davis, 306 v. States United commission.” a “rational fails because argument Cir.2002) (6th Unit- 398, (quoting 409 F.3d the essential found have fact could trier 1199, 1202 Lowery, 60 F.3d v. States ed beyond a reasonable crime of the elements Cir.1995)). Thus, regardless (6th 307, 443 U.S. Virginia, v. Jackson doubt.” actually person the who Hunt was whether (1979). 560 L.Ed.2d 61 319, 99 S.Ct. scheme, he is still fraudulent the devised the evi sufficiency of reviewing the In the care fraud because of health guilty the evidence must view dence, this court finding a support sufficient is evidence prosecution. favorable light most execution to the he contributed that heavy very a faces defendant id. A See intent to defraud. with scheme sufficiency of the challenging burden only will insurance private and Medicare Garrido, 467 v. evidence, States see United have been that diagnostic tests for pay Cir.2006) (6th United (citing F.3d 984 necessary by treat- medically a as ordered 401, 424 Tocco, F.3d v. States or practitioner or a nurse ing physician three analysis of Cir.2000)), an and a under such working assistant physician’s that not met has that he shows offenses that ample evidence There is physician. burden. Blue and Medicare defrauded Cross/ claims to sub- causing be by Shield Blue Fraud Health A. Care deter- not been that had for tests mitted sup evidence is sufficient There necessary. medically to be mined fraud of health care Hunt’s conviction port at trial that testified expert Government’s a allows evidence circumstantial because necessity medical as to a determination beyond a rea find fact to rational trier on solely based been made could have caused bills that Hunt doubt sonable pa- out filled questionnaires and Blue to Medicare Cross/ submitted Therefore, in-person an examina- tients. never that he had patients Blue Shield make required to have been would tion deter not been tests that had and seen dispute does determination. necessary. To ob medically mined be but patients, not examine he did un care fraud for health requi- tain conviction lacked the that he he claims instead 1347, the Government 18 U.S.C. had a der he to defraud intent site “(1) knowingly de that Hunt: prove must erroneous —belief good-faith—-albeit to defraud or artifice on-site a scheme examined vised being were patients in connection program rational trier care benefit A health nurse practitioner. health beyond a payment for delivery however, of or be convinced fact, could with (2) services; exe is a benefits, items, Hunt’s claim or doubt care reasonable rela- requires scheme this law attempted to execute Tennessee cuted or sham. and (3) practitioner nurse defraud; tionship acted between artifice to by a governed Rai physician supervising United intent defraud.” re- are (6th Cir.2004), parties and both protocol, 1013, 1021 written thatha, F.3d sign a protocol to review quired 543 U.S. grounds, other on vacated In it. (2005). they understand saying form L.Ed.2d 125 S.Ct. that he testimony, Hunt admitted an trial his aids and abets Additionally, one who protocol with such went over never punisha committing offense other allegedly see- who was practitioner Aiding nurse 2. U.S.C. as a principal. ble Because behalf. “(1) ing patients by a an act requires: abetting *10 protocol never reviewed with the actually performed. Hunt, nurse however, practitioner even interacted with the claims that he was unknowledgeable about —or alleged practitioner nurse in any way matters, billing that he relied completely —a rational jury could infer that Hunt knew Davis, on and that he made the innocent that practitioner the nurse did not exist. mistake billing a for “consultation” when That supported conclusion is also by he should have billed for a “remote office Hunt’s unbelievable that assertion he sub- visit.” He argues further the inno- mitted a list of names to Noble and be- cence of the mistake is demonstrated by lieved on blind faith that Noble had hired a the fact that pays consultation code practitioner nurse from that list. It slightly money less than the remote office highly unlikely physician that a would al- visit code. evidence, There is however, no practitioner low nurse practice under to demonstrate that Hunt have would been his license without having ever checked entitled to payment receive even under the identity, credentials —or the for that remote office visit code. There proof is no matter —of the nurse practitioner. In oth- that a face-to-face examination is not re- words, er a jury rationally could conclude quired under the remote office visit code. that Hunt was not concerned about the face, On its the term “remote office visit” identity or credentials of practi- the nurse implies billing physician visited tioner because he knew that the nurse patient. with the The fact that the remote practitioner Therefore, did not exist. office pays visit code more than the consul- rational could that Hunt conclude or- tation code is meaningless if Hunt was not dered tests with knowledge that pa- entitled to bill for either code because he tients had by never been examined him or did not conduct a face-to-face examination practitioner nurse physician’s assis- patients. Thus, the evidence indi- tant working under his license. It follows cates that Hunt’s fraudulent bills to there is sufficient evidence to con- Shield not simply BlueCross/Blue were in- clude that Hunt intentionally contributed nocent mistakes. to the commission of health care by fraud causing claims to be submitted the false The absence of innocent mistake in pretenses they had been determined Hunt’s conduct is further confirmed to be medically necessary by a qualified phone call that he made to Laura Jarrell in medical professional. the spring of which was after his indictment, but before trial. Jarrell testi-
The conclusion that Hunt acted with in- fied that she a strange received agitat- tent to defraud Blue Shield is Cross/Blue ed answering machine message further from buttressed fact that he sub- and that when she call, mitted returned the claims under a consultation code office just said that requiring a face-to-face wanted to examination of know if patients. Jarrell Davis, clerk, Julie Hunt’s remembered billing seeing Hunt at the testified it Show, Southern Hunt who Women’s decided where Jar- which codes to bill under. rell had When received a Davis’s artery carotid ultra- testimony is combined sound test rational from HTS. call to Jarrell conclusion that Hunt knew that could reasonably neither he be interpreted display- as nor a nurse practitioner ing pa- had seen the guilt consciousness of as at- tients, a rational trier of fact could easily tempt to conceal unlawful activity by con- come to the conclusion that Hunt knowing- vincing Jarrell that she seen had Hunt in ly submitted improper billing person. codes or- an interpretation Such constitutes der paid for work that he had not valid circumstantial evidence of intent to
647 a reason- evidence which that “[c]irumstantial held court has this because defraud showing interpret as could person to able efforts inferred “from can be intent ” Id. plan.... in a common activity....” participation See unlawful the conceal 1031). Abies, 541, (citing 167 F.3d Davis, 490 F.3d v. States United Cir.2007). (6th to leads A chain of inferences reasonable tacitly that rational conclusion Hunt weigh- the consideration Finally, a critical he had sign patients orders for agreed to on the the evidence sufficiency of ing could that he and Noble examined fact that never so is the conviction care fraud health to Medicare bills for their services essentially boils submit Hunt against the case First, evidence insurance. private believ- and choice between the jury’s to down Hunt Noble finding that knew supports innocent have made claims ing Hunt’s to insurance private Medicare and billing circum- was mistakes the Government’s and signed by needed to be that the orders knowingly committed that he proof stantial in order for those bills physician Hunt’s demeanor witnessing After fraud. that he admitted explicitly Hunt that it paid. testimony, jury decided insur- billing private that Noble was knew his excuses. simply did believe not ance, admitted that he saw and he to story found the Government’s jury because patients’ Medicare cards Medicare credible, is entitled and that decision more that the to the forms they were attached See United deference. high degree to imag- (6th It is hard to had filled out. patients F.3d 330-31 Latouf, 132 v. States doing Noble thought Hunt was what Cir.1997). an ar- ine presented Hunt has if not Medicare cards patients’ enough to overcome with persuasive gument previ- on the Based billing for the tests. that deference. a rational ously reached conclusion determine that Hunt knew Conspiracy Commit could B. had practitioner Fraud a nurse Care he nor Health neither rational it is patients, examined is conviction conspiracy Hunt’s that his understood that Hunt conclude by sufficient evidence supported Noble orders so that sign role evidence was circumstantial there been tests had get paid for could tacitly to defraud agreed and Noble Therefore, tri- a rational validly ordered. A con private insurance. Medicare and to the conclusion fact could come er charge requires Government spiracy scheme to a fraudulent tacitly agreed more two or between “prove agreement fur- an overt act committed and then committing an together to act persons ordering tests. of it therance offense, act in overt furtherance and an conspiracy membership in the v. Cross United States conspiracy.” signed the that he fact supported Cir.2000) (6th (quot 224 F.3d ley, performed, had been after the tests orders Milligan, 17 F.3d v. ing States United him paid $10 fact that Noble by the Cir.1994)). (6th need The Government signature. per See agreement. written not show formal Instead, demonstrate it is sufficient to id. Relating False Statements C. understanding among a tacit mutual Matters Care Health (quoting id. United parties. See U.S.C. Cir.1999)). under 18 guilt To establish Ables, 167 F.3d relat- making false statements § 1035 for conspiracy Likewise, evidence of the direct matters, the Govern- care to health ing present necessary. enough It is is not *12 431(6th prove Cir.2007) ment must that the defendant know- (quoting Revis v. Meld ingly willfully made false rum, (6th statements 273, Cir.2007)). 489 F.3d 280 “ representations ‘in connection with the The district court properly ordered delivery of or payment for health care pay restitution in the full amount benefits, items, or services’ and in a ‘mat- of the losses that he caused Medicare and involving ter a health pro- care benefit ” Blue Shield to suffer. District Cross/Blue gram.’ Canon, United v. 141 Fed. courts required are to order restitution in (6th Cir.2005) Appx. 405 (quoting 18 the full of amount each victim’s loss. See 1035(a)(2)). § U.S.C. As the foregoing 3664(f)(1)(A). 18 U.S.C. The term “vic- analysis demonstrates, a rational jury tim” is person defined as “a directly and could conclude that Hunt knowingly and proximately by harmed a defendant’s of- willfully representations made false of the 3663A(a)(2). fense.” 18 U.S.C. Because necessity medical by tests signing Medicare and Blue Shield Cross/Blue orders without actually examining pa- would not paid have for the tests but for truly tients or determining the tests presence of signature on the medically were necessary. Moreover, the orders, Hunt was the direct jury proximate could reasonably conclude that he cause of the harm suffered made those enti- misrepresentations those so that No- ties. The district court was ble’s therefore company cor- could payment. receive rect to Thus, pay order Hunt to it would be restitution to for a jury reasonable those find entities in the that the full misrepresentation amount of the occurred in losses that connection caused. Hunt payment does for health not question the care district benefits. The court’s foregoing analysis calculation of the losses demonstrates that Hunt sustained Medicare and fraudulently Blue sub- Shield, mitted claims to Blue nor argue Cross/Blue does he Shield Cross/Blue under a he should consultation code have to requiring pay a face- restitution at all. Instead, to-face examination of the he claims that patient only when no he should have such examination had make $7,678.88 occurred. restitution There- for the fore, a rational he personally could also find that received from Blue Cross/ Hunt knowingly and willfully Blue Shield. made That argument false plainly statements in order wrong payment obtain because the says statute that Hunt from Blue for pay Shield services must Cross/Blue restitution for all of the losses that he perform. did not caused, that he not simply the losses that up wound in Hunt’s own pocket.
V.
In addition,
district
court’s
district court
restitution or
der was
within
not an abuse
its
discretion to
discretion in
order Hunt
pay
this
$50,000
case.
argues
the district
the restitution
court
within 60 days.
3664(f)(2)
erroneously calculated
Section
provides
amount of resti
that once the
tution that he owes.
amount of
We review such
determined,
restitution has been
challenge for abuse of discretion.
the district
See
court shall
“the
specify
manner
United
Guardino,
which,
States v.
F.2d
and the schedule according to
”
(6th Cir.1992).
which,
An
abuse
discretion
restitution is to
paid....
occurs when the reviewing
3664(f)(2)(A)
court is left Section
requires the district
with the “definite and firm conviction that
court in making that determination to take
the trial court committed a clear error of
into account the financial resources of the
judgment.”
Wells,
Dubay
506 F.3d
Therefore,
defendant.
not,
it was
as Hunt
context,
court
district
sentencing
contends,
discretion
abuse of
on
it relies
$50,000
when
its discretion
pay
abuses
him
to order
Law
facts. See Black
that he
clearly
erroneous
fact
days based
within 60
Ak-
City
Ass’n v.
resources.
financial
substantial
has
Officers
Enforcement
(cit-
Cir.1987)
ron,
F.2d
court did
Moreover,
the district
*13
Brewing Co. v. G.
ing Christian Schmidt
joint and
ordering
its discretion
abuse
Co.,
Brewing
753 F.2d
Heileman
involving multi-
liability.
In cases
several
Cir.1985)).
factual deter-
And a
3664(h)
gives
defendants,
explicitly
ple
erroneous
necessarily clearly
is
mination
to whether
as
discretion
courts
district
to the
found
jury
previously
has
where a
liability
joint and several
apply
they should
doubt.
beyond a reasonable
contrary
apportioned
liability
be
should
or whether
3553(a) suggests
that Con-
in
Nothing
their eco-
on
based
among the defendants
judges
sentencing
that
intended
gress
respective
and their
circumstances
nomic
innocence
a
rely on
defendant’s
should
There
losses.
victims’
contributions
already been
has
the defendant
when
court
the district
suggest that
nothing to
is
doubt.
a reasonable
beyond
guilty
found
joint and
by ordering
discretion
abused its
dis-
Moreover,
that the
does not matter
it
liability in this case.
several
number,
large
even a
on a
court relied
trict
sentencing,
in its
number,
VI.
of relevant facts
it
not
on facts that
could
if it also relied
question is
although the
Lastly,
we would
Thus
properly consider.
limited abuse-of-dis-
because
close
judge
if
a
to reverse
sentence
hesitate
v. Unit-
by Gall
prescribed
review
cretion
facts but
on numerous relevant
relied
—
-,
States,
S.Ct.
U.S.
ed
instance,
morning’s horo-
relied,
on the
for
(2007), the Govern-
L.Ed.2d 445
scope.
is
Hunt’s sentence
is correct
that
ment
district
A
substantively unreasonable.
indication that
following give an
The
substantively unreason-
imposes
court
the defen-
part
in
on
relied
court
district
dis-
sentence,
thereby
its
abuses
able
intent
defraud
having had an
dant’s
on
cretion,
it
the sentence
bases
when
contrary to the
case, a conclusion
in this
factors, see
United
impermissible
jury verdict.
(6th Cir.2007),
Brown,
501 F.3d
im-
“overarching
stated an
court
The
may
court
district
it
appears
have
“might well
that defendant
pression”
relying
on indications
have done
it not
jury”
by a
had
convicted
not been
by the
as found
was not guilty
that Hunt
in the
Mr. Noble
presence of
been for the
jury.
case. J.A. 809.
have
appears to
court
The district
that Hunt
stated
The court also
on its
part
doubt
substantial
relied in
No-
all,
by Mr.
was hoodwinked
If
first of
to commit fraud.
Hunt intended
naive,
of all
third
ble,
all was
second
is neces
rely, then it
did so
all was unknow-
trusting, fourth of
was
abuse-of-
under the
us to remand
sary for
of the
part
about
business
ledgeable
is be
review. This
scope of
discretion
many, many doctors
like
judge
practice
improper for
cause it would
are, but
professionals
other healthcare
directly in
facts
sentencing
rely
do this
of all
motivated
most
by the
found
with those
consistent
test,
good
thought it was
Indeed, we
doubt.
a reasonable
beyond
detect
it would
thought
and he
outside
repeatedly, albeit
have stated
things
some
that would be helpful
range
for
lines
of 27 to 33 months. That fact
people
alone,
to detect.
Supreme
as the
Court’s recent hold-
ing
clear,
in Gall
enough
makes
is not
J.A. 811.
excerpt
While this
could be read
conclude that the sentence is unreasonable.
as
solely
limited to a consideration
Court
moreover
Gall
directs us to
crime,
motives
there is an
great
accord
deference to district court
unmistakable
conveyance
idea
sentencing determinations under the abuse
Hunt did not have the intent to defraud.
of discretion
But if
standard.
the stan-
stated,
The court also
teeth,
dard of review to
have
it has
many
There were
things that Dr.
to require at
least
remand where the
gave
Hunt testified
him a measure of
district court appears to have
upon
relied
comfort about what Mark Noble was
*14
factors that cannot
legitimately
relied
doing, that
against
militated
his having
upon. This case
particular
is unlike the
fraudulent intent.
facts of Gall
Gall’s lenient
sen-
jury
The
found he had fraudulent in-
tence was not based on the district court’s
tent, but the court
certainly
can
consider
consideration of
lack
culpability.
Gall’s
things
those
in sentencing despite the
Instead, the district court in
merely
Gall
jury’s finding.
considered
indicating
numerous facts
added).
J.A.
(emphasis
816-17
Gall had redeemed himself since the time
The court also stated that Hunt’s “back-
Gall,
of his offense. See
general tenor of the district court’s re- marks, 813-18, see J.A. certainly permit— For reasons, the foregoing Russell they if do not require conclusion that —the Wayne Hunt’s convictions are AF- in sentencing the district court relied in FIRMED, VACATED, his sentence is and part on the absence fraudulent intent on the case is REMANDED. part the of the defendant. MARTIN, JR., BOYCE F. Circuit It is true that the district court also Judge, concurring in part dissenting and
relied on a number of factors that were part. either proper or arguably proper, such as
how
money
little
defendant
the
made off
I concur in
majority
respect
scheme,
the allegedly limited amount
everything but the reversal of Hunt’s sen-
of harm patients,
personal
circum-
tence. Because I believe the majority is in
defendant,
stances of the
the effect on the
conflict with the Supreme Court’s recent
—
defendant
losing
license,
his
and how
States,
decision Gall v. United
U.S.
valuable the defendant was to the commu-
-,
128 S.Ct.
ceived defendant, innocence of
more than in the horoscope I. example above.
The defendant here has been excused majority The holds it was substan- from any imprisonment, despite a Guide- tively unreasonable for the district court to 3553(a) § factors to “all of consider in deter- factor impermissible rely on the sen- they support whether determine impermissi- The sentence. mining Hunt’s A parties,” id. requested tence hat on is hangs its majority factor the ble “make an individu- then court must “innocence.” termed it has what pre- the facts based on assessment alized mis-labeling of majority’s is the This 596-97, of wheth- sented,” regardless id. at court found that the district fact below, above, within is in- er the sentence than other defendants culpable be less Gall, calcula- id. After guidelines, scheme fraudulent volved guidelines analysis of the correct tion and objectively him against the evidence factors merely one of the several range defendants. against other than weaker considered, id.; see also 18 U.S.C. “inno- rely on did not district court 3553(a), controlling or deter- and is not by guilty cence;” found Hunt was Finally, given. the sentence minative of him for stay with will conviction and that sentence, a district deciding on Instead, after after a thor- life. the rest of his explain adequately required “to court is analysis thoughtful ough Gall, sentence,” S.Ct. the chosen 3553(a) found factors, the district the sentence of whether “[rjegardless him ac- and sentenced culpable Hunt less the Guidelines or outside imposed is inside impermissible, is not cordingly. That *15 ...,” range id. point majority is unable tellingly, of its support in sentencing case single on the majority has focused Because holding. it has of what court’s reliance district under impermissible an factor termed of majority’s mischaracterization The anal- 3553(a), carefully lay out the I § will reasoning avoids court’s the district court under by the district Gall, undertaken ysis this in and holding Supreme Court’s 3553(a) reaching its sen- in § factors in United recent decision own Court’s so, I doing believe After tencing decision. Grossman, 592, 594 F.3d court that the district patently it is obvious that we Cir.2008), of which mandate both factor, impermissible rely on not and rea- did to reasoned due deference give culpa- Hunt less merely found rather but district of sentencing decisions sonable and sentenced defendants than other ble we, appellate as an when courts even accordingly. him sen- a different court, may have chosen clear abiding by this Instead tence. under first factor begin I review, con- majority has standard 3553(a), and circumstances “the nature factor which impermissible cocted a new history charac- and the offense and substantively un- sentence renders Hunt’s The district of the defendant.” teristics mischaracterization But this reasonable. and prosecution Hunt’s found that court reasoning does court’s of the district co-defendant by his conviction was driven scrutiny. toup stand careful were far actions whose guilty and pled who strug- The district court egregious. more out the recently laid Supreme Court giv- crime for the motive gled with court a district which proper manner regarding his of evidence Gall, the dearth en a defendant. sentence should very little mon- made He intent. criminal Procedurally, the district at 596-97. S.Ct. com- ($11,000) of the scheme when off ey guide- calculate properly must court made which practice to his overall pared parties give “both at range, lines id. year. thousand dollars several hundred sen- for whatever argue opportunity Hunt was found id., The district court appropriate,” they deem tence hoodwinked his co-defendant Mark No- count sentencing guideline. The sen- ble, ring-leader of the tencing fraudulent guideline in this case the context scheme who the court termed “a snake-oil of all the factors that I have said is not an salesman, a man.” medicine The district appropriate sentence for Hunt.” Dr. naive, court overly found trust- The district court also took into account ing, unknowledgeable about the busi- 3553(a)’s admonition that district court’s part practice. ness The district “avoid unwarranted sentence disparities court also found that the evidence was among defendants,” finding that other doc- very weak regarding Hunt’s fraudulent in- tors conducting the same activities as tent. The also found that Hunt received pretrial diversion one Hunt’s actions caused no harm pa- (Dr. Bartee) instance and received nothing tients, may and in fact have been beneficial (Dr. in other instances Moore and Dr. patients. to several The district court Adams). The district court noted that sev- took into history account Hunt’s and found eral other more culpable individuals were had humble background, was the first prosecuted all, including individuals person in family college, attend profited who much more from the enter- developed he had prac- a successful prise than Hunt. tice. The district court took into account his character and patients found that his The district court stated that it felt it and other very doctors have a high opinion was important that Dr. practice med- of him. The district court help- also found icine again because he anwas asset to the ful several letters from members community and provided a valuable re- community written on Hunt’s behalf stat- source to his patients. The district court ing that he was a preventive holistic doctor stated that felony while his twelve convic- *16 who believed in the tests at issue and may tions preclude him from practic- ever thought they were beneficial. ing again, the probationary may sentence help. regard
With to the second factor under 3553(a), § the district court stated the sen- see, I fail to in all of the above reasoning tence must reflect the seriousness of the given the district court in analysis its of offense, promote must respect law, for the 3553(a) factors, § the where the district provide must just punishment, pro- must court took into account Hunt’s “inno- public tect the crimes, from further and it fact, cence.” In the district court explicit- provide must the defendant with needed ly stated that despite “explanations education or vocational training. The dis- behavior, for his ... there’s no excuse for trict court then took into account that the behavior.” The court district went Hunt would not be able to practice medi- further, stating that were enough “[t]here cine in the foreseeable future. district The violations ... that the court cannot find court found losing that his license alone totally [Hunt] was innocent of any provided just punishment, promoted re- knowledge.” These statements indicate law, spect for the and protected public the district the court did not impermissi- from further crimes. bly consider Hunt’s “innocence.” the What district court satisfied district court did do was take into account 3553(a)(3)-(5) by correctly calculating several mitigating upon factors and settle the guidelines recommended range. The sentence, individualized something that district court then stated that “[t]he court has in been done sentencing for more than present under the system takes into ac- three centuries. See United States v. Phi-
653 Cir.2008) indictment, post- the Defendant’s of the nausee, 526 F.3d conduct, a col- obtaining especially offense (Merritt, J., dissenting). his own suc- and the start of lege degree mis-labeling majority’s the When business, family support and cessful aside, I set reasoning is court’s friends, history, and lack of criminal his Court’s decision Supreme believe conduct, the offense all at the time of age in holding Gall, recent this and Court’s in Id. at imposed,....” the sentence warrant Grossman, 513 F.3d v. United emphasized court 593. The district and re- (6th Cir.2008), directly control from voluntarily withdrawn Gall had Hunt’s sen- affirm this Court quire and that after seven months conspiracy between Gall The similarities tence. had co-conspirators, who been two of his both striking. In case are present imprisonment and 35 months’ sentenced legal cases, court exercised its a district from not withdrawn respectively, had outside recom- authority to sentence that he was The fact less conspiracy. both range, in guidelines mended despite co-conspirators, his culpable than below defendant well cases, sentenced the over- coupled with guilty plea, probation. range Gall guidelines mitiga- support in whelming evidence — -, States, 128 S.Ct. U.S. United tion, Gall the district court sentence led (2007). both In L.Ed.2d how the district I fail to see probation. sig- committed no cases, the district in differ- court’s Gall determination correctly Both errors. procedural nificant court’s decision this ent than the district range, guidelines applicable calculated ato term of Hunt be sentenced case that arguments present parties both allowed role in his minor given probation they believed support of what similarly over- and the scheme fraudulent sentences, all of considered appropriate mitiga- support whelming evidence 3553(a) factors, doc- thoroughly tion. sen- reasoning behind the their umented similarity between damning The most Id. at 598. imposed. tence that a the fact circuit and Gall is this case Gall, court sentenced the district In what it appeals has substituted court of after he probation term defendant appropriate sentence to be the believes *17 conspiracy part a of a to pled guilty being to the “due deference giving of instead cocaine, marijua- ecstasy, to distribute and reasonable reasoned Court’s District stipulated plea agreement Gall’s 3553(a) factors, na. on § the that the decision for, did not neces- but “responsible was at 602. Id. whole, the sentence.” justified 2,500 himself, at least sarily distribute the district reversed The Circuit Eighth at equivalent of [ecstasy], things, or the Gall, among other grams holding, court in marijuana.” Id. kilograms of too much gave 87.5 court least district the report recom- from the con- presentence The Gall’s withdrawal weight 592. to to 37 sort of reason- range of 30 at 594. This guidelines Id. spiracy. mended by that used eerily court The district similar imprisonment. ing sounds months’ “A case: dis- present in guidelines majority the depart from decided substantively unrea- imposes months of Gall to 36 trict court and sentenced range sentence, sentence, it bases the ... when of this sonable support In probation. factors, ... and impermissible all “considering sentence court stated just to have done 3553(a) appears ], the district Defen- under the factors [§ that Hunt relying in on indications con- from the explicit withdrawal dant’s jury.” The by guilty as found was not filing years before the four spiracy almost majority obviously disagrees with the II.
weight gave the district court to the spar- This ease is an example perfect of the sity concerning of evidence Hunt’s intent storm developing over sentencing exactly to defraud. But it type this judges in this Circuit. I pointed As have appellate Supreme review that the Court repeatedly, out struggle we have attempted stamp out Gall. The Su- sentencing review of tois determine what preme explicitly Court stated that even was intended the district court. All too Appeals clearly where Court of “[t]he dis- explanation often insufficient given agree[s] Judge’s with the District conclu- allow us to adequately 3553(a) review district sion consideration of the court’s sentencing justified pres- factors decision. In the probation, sentence of case, ... it is not ent Appeals sentencing for the Court of judge gave us an decide justification de novo whether the extensive explanation of her reasoning, yet for a variance is sufficient or the sentence majority only rejects the district reasonable.” Id. at 602. Our own Circuit explanation court’s reasonable as unrea- re-emphasized has this deferential stan- sonable, but finds that the sentence in this Grossman, dard of review in holding that case was an abuse of discretion. Such a give we must “due deference to the sen- holding completely disregards this Cir- tencing judge’s on-the-scene assessment of cuit’s Vonner, decisions in Grossman and considerations, the competing which is to and disregards Supreme Court’s say, just abuse-of-discretion review to decisions I am unhappy report Gall. the reasonableness of a sentence but that we again have once begun the slip- abuse-of-discretion review to the district pery slope agreeing with district court’s court’s determination that there legiti- is a depart upward who on the they basis that mate correlation between the size of the were reasonable and did not abuse their variance given and the reasons for it....” discretion, but when a judge decides to 513 F.3d 596. sentence below the non-binding guidelines, then we reverse view, and remand. In my majority ignored has proper only this not sense, does not make but is deferential standard of review and invent- unprincipled. I am haunted ed a the words impermissible factor, new “inno- cence,” the 19th century poet which will Matthew appellate now Arnold allow which up courts to reverse sums so much sentencing problems decisions of the re- gardless of analysis today whether an we face with sentencing: 3553(a) factors indicates that a defen- “For the world which seems dant is culpable less than others and that a to lie before dreams, us like a land of sentence guidelines outside the is more *18 appropriate. remand, hope On I the dis- various, beautiful, so new, so so trict court makes clear that it was not really Hath joy, love, neither nor nor relying on Hunt’s “innocence” when it sen- light, tenced him probation, but was instead making a “reasoned and reasonable” deci- certitude, Nor peace, nor help nor sion that a probation term of was “suffi- pain; cient, but not greater than necessary, to And we are here as on a darkling plain comply with purposes” 3553(a), imposes sentence, the same supported Swept with confused alarms of struggle by the same analysis. detailed flight, by night.” clash armies ignorant while Beach, 1851.
Dover reasons, I re- foregoing on the
Based majority’s re- from dissent
spectfully Hunt’s sentence.
versal Plaintiff-Appellant, GRACE,
Rosalyn Technical and Bartech
USCAR
Services, LLC, Defendants-
Appellees.
No. 06-2509. Appeals, Court
United States
Sixth Circuit. 31, 2008. Jan.
Argued: 26, 2008. March Filed:
Decided and