DECISION AND ORDER
I. INTRODUCTION
Defendant Nina Jafari (“Defendant”), charged in a five count indictment with health care fraud in violation of 18 U.S.C. § 1347 (Dkt. 1), was convicted after a jury trial on September 29, 2014, of counts 1, 2, 3 and 5, and acquitted of the charges in count 4 (Dkt. 82). On November 24, 2014, the Government moved for a preliminary order of forfeiture pursuant to Fed. R.Crim.P. 32.2(b)(1) and 18 U.S.C. § 982(a)(7). (Dkt. 97). Specifically, the Government' seeks a personal money judg
Defendant filed papers in opposition (Dkt. 100), and argument was held before the Court on December 5, 2014 (Dkt. 104).
After considering the various submissions and arguments submitted on behalf of the parties, and for the reasons set forth below, the Court grants the Government’s motion for a preliminary order of forfeiture and orders that Defendant’s right, title and interest in the amount of one hundred twenty-five thousand dollars ($125,000.00) shall be forfeited to the United States as gross proceeds Defendant obtained, directly or indirectly, from the scheme to defraud a health care program.
II. FACTUAL BACKGROUND
Defendant, practicing as a licensed clinical social worker, was charged on January 18, 2013, with five counts of health care fraud in violation of 18 U.S.C. § 1347.
In essence, the indictment alleged that Defendant billed BCBS using a Current Procedural Terminology (“CPT”) code that resulted in inflated payments and payments for services that were never rendered. The code typically charged by Defendant was CPT code 90808, defined to be appropriate for individual psychotherapy of approximately 75 to 80 minutes face-to-face with the patient. According to the indictment, Defendant executed the fraudulent scheme in three different ways: (1) Defendant billed BCBS for individual psychotherapy sessions using CPT code 90808 when, in fact, Defendant met with the patient for less than 75 to 80 minutes; (2) Defendant met with multiple family members for group therapy sessions, but instead of billing CPT code 90847 for family psychotherapy, she charged each family member separately under CPT code 90808; and, (3) Defendant billed BCBS for individual psychotherapy sessions using CPT code 90808, when no therapy sessions occurred. (Id. at ¶¶ 17-19).
The case was tried before a jury commencing on September 22, 2014. (Dkt. 74). Among other witnesses, the Government presented testimony from five members of the families who were the subject of the counts in the indictment, representatives of BCBS, and FBI Agent Thomas W. Provost (“Agent Provost”). Voluminous documents were introduced into evidence re-
Agent Provost explained that BCBS reported Defendant to the FBI for purposes of an investigation after BCBS investigators were stymied in their efforts to review Defendant’s records and conduct an audit. (Tr. 382; see Tr. 224^41, 243-46 (testimony concerning efforts by BCBS to review Defendant’s records and conduct an audit)). Defendant had been identified by BCBS as an “outlier” because she stood out from the rest of her field in her billings using CPT code 90808. (Tr. 210-11). BCBS had looked at the data for December 1, 2007 through November 2008, and approximately 97.5% of Defendant’s bills were charged'under CPT code 90808. (Tr. 211). Additionally, BCBS reviewed Defendant’s billings for her patients during the time frame of January 1, 2006 through April 30, 2009, and of approximately 400 patients, there were only 10 patients for whom Defendant did not bill under CPT code 90808. (Tr. 216).
As part of the investigation, a former patient of Defendant’s, Jeanette Steger, agreed to audio record conversations with Defendant. The audio recordings, which were admitted into evidence, reflected efforts by Defendant to influence Ms. Steger’s response to BCBS inquiries, including Defendant telling Ms. Steger that she should deny the existence of documents concerning her family’s visits with Defendant and falsify documentation that BCBS asked Ms. Steger to complete.
The jury returned a verdict of guilty with respect to four of the five counts in the indictment. The jury acquitted Defendant of the conduct charged in count 4. Count 4 alleged that Defendant committed health care fraud from October 2006 through December 2008, by submitting fraudulent claim forms for approximately 117 individual psychotherapy sessions billed under CPT code 90808 related to the Ferrucci family. The jury convicted Defendant of the remaining counts that charged as follows:
Count 1: from January 2009 through May 2009, Defendant submitted fraudulent claim forms for approximately 39 individual psychotherapy sessions billed under CPT code 90808 related to the Steger family;
Count 2: from July 2008 through February 2009, Defendant submitted fraudulent claim forms for approximately 56 individual psychotherapy sessions billed under CPT code 90808 related to the Sidoti family;
Count 3: from December 2005 through August 2008, Defendant submitted fraudulent claim forms for approximately 114 individual psychotherapy sessions billed under CPT code 90808 related to the Willis family; and,
Count 5: from September 2007 through July 2008, Defendant submitted fraudulent claim forms for approximately 42 individual psychotherapy sessions billed under CPT code 90808 related to the Kern family.
The indictment also included forfeiture allegations seeking to forfeit “[t]he sum of ONE HUNDRED ' TWENTY-FIVE THOUSAND DOLLARS ($125,000.00) United States currency or any other proceeds generated from the offense of each count of conviction,” as well as substitute property. (Dkt. 1 at 15).
The parties agreed prior to the commencement of the trial that any issues
III. DISCUSSION
“Criminal forfeiture under section 982 is a form of punishment, separate and apart from any restitutive measures imposed during sentencing.” United States v. Peters,
18 U.S.C. § 982(a)(7) sets forth the standard applicable to forfeiture in the context of a health care fraud conviction:
The court, in imposing sentence on a person convicted of a Federal health care offense, shall order the person to forfeit property, real or personal, that constitutes or is derived, directly or indirectly, from the gross proceeds traceable to the commission of the offense.
18 U.S.C. § 982(a)(7).
Pursuant to the express language of the statute, forfeiture is mandatory when sentencing a person convicted of health care fraud. In other words, the Court has no discretion — a procedurally proper request for forfeiture must be granted when sentencing a person convicted of health care fraud. United States v. Poulin,
The government bears the burden to prove “the propriety of forfeiture by a preponderance of the evidence.” United States v. Nicolo,
Furthermore, the traditional rules of evidence do not apply, and courts^may
A. A Personal Money Judgment Under 18 U.S.C. § 982(a)(7)
The procedures for forfeiture applicable in the health care fraud setting are found at Fed.R.Crim.P. 32.2 and 21 U.S.C. § 853. See 18 U.S.C. § 982(b)(1) (“The forfeiture of property under this section ... shall be governed by the provisions of ... (21 U.S.C. 853).”).
There is a paucity of case law addressing forfeiture in the context of health care fraud under § 982(a)(7), but those courts that have addressed the issue have held that forfeiture is authorized in the form of a personal money judgment. Poulin,
In other words, if the Government proves the amount of the gross proceeds of the fraud, it “is entitled to a money judgment in that amount.” United States v. Louthian, No. 1:12CR00002,
Although the Second Circuit Court of Appeals has not specifically addressed the appropriateness of a personal money judgment in the context of 18 U.S.C. § 982(a)(7), its rulings with respect to the appropriateness of a money judgment in other forfeiture settings support the conclusion that a money judgment may be awarded under § 982(a)(7). See United States v. Kalish,
[8, 9] As a result, the Court finds that the Government is entitled to a personal money judgment against Defendant pursuant to 18 U.S.C. § 982(a)(7). Indeed, Defendant does not appear to challenge the Government’s underlying right to a personal money judgment in this case. Rather, as discussed below, Defendant’s main opposition focuses on the amount of any money judgment that should be awarded.
B. The Amount of the Personal Money Judgment
The case law regarding the appropriate amount of a money judgment in a forfeiture case involving health care fraud is sparse, and the Court is not aware of any case within this Circuit that has addressed the issue. However, there are several relevant principles that emerge from a review of the case law from other Circuits that have addressed forfeiture in the context of 18 U.S.C. § 982(a)(7), and those cases in this Circuit that have addressed forfeiture more broadly.
Specifically, it is apparent that Defendant is not entitled to any credit or set-off for the value of health care services that she did provide as part of the fraudulent scheme. In addition, both uncharged executions of the fraudulent scheme and acquitted conduct may be considered by the Court, so long as the Government meets its underlying preponderance of the evidence burden. Finally, particularly in the context of this case where the evidence demonstrates that Defendant undertook efforts to hide her fraud, calculating the appropriate amount of a money judgment through extrapolation based upon known
1. No Right of Set-Off
Forfeiture under 18 U.S.C. § 982(a)(7) for health care fraud requires forfeiture of the entire amount a defendant received through fraudulent billing. The statute plainly requires forfeiture of “gross proceeds,” not profits, and thus refers to “ ‘the total amount brought in’ through the criminal enterprise.” United States v. Poulin,
In this case, the evidence produced at trial reflected that on many occasions Defendant provided no services to support the charges that she submitted to BCBS, but on other occasions she did provide services, albeit not in the inflated amount that she submitted to BCBS. In calculating a forfeiture amount, the Court need not give Defendant credit for the value of services that she did provide through her fraudulent scheme.
Nonetheless, in the Government’s submissions, Agent Provost attempts to calculate an appropriate amount of forfeiture by crediting Defendant with a set-off for the value of services that were provided. The appropriateness of this calculation is discussed further below.
2. Uncharged Executions of the • Scheme May be Considered
Although each count of the indictment in this case related to specific executions of the alleged scheme, the indictment charged more broadly a fraudulent scheme tó defraud BCBS during the time period January 2006 through May 2009 in violation of 18 U.S.C. § 1347. The Government could have charged each execution of the scheme as a separate count, but it certainly was not required to do so. United States v. Hickman,
Since Defendant was charged with engaging in a fraudulent scheme to defraud BCBS, and since she was convicted of some of the counts of the indictment, she may be required to forfeit the “gross proceeds” traceable to the underlying fraudulent scheme, even where those gross proceeds extend beyond the amounts at issue in the specific counts in the indictment. As the court explained in Boesen,
The law does not require the Government to charge a defendant with every execution of a health care fraud scheme, and the Government could indict a defendant for a health care fraud scheme by charging only one execution of that scheme.
Each execution does constitute a separate offense, and the Government could in fact have charged Defendant with the hundreds of other executions of the health care fraud scheme.... The statute criminalizes executions of the scheme; the overall scheme is thus inherently part of the offenses of which Defendant has been convicted.... Forfeiture of the gross proceeds of uncharged executions of the scheme that Defendant was convicted of serves this purpose.
Id. at 952-53; see also Adegboye,
Considering uncharged conduct that is part of a fraudulent scheme is consistent with the law as articulated by courts in the Second Circuit. See United States v. Stathakis,
As a résult, even though the fees paid to Defendant for the alleged counseling services at issue in the specific counts of the indictment amount to less than $40,000 (Dkt. 98 at ¶¶ 7-11), the Government may recover a forfeiture judgment equal to the gross proceeds traceable to the underlying fraudulent scheme. It is not limited to only recovering the amount' at issue in the specific counts of the indictment.
3. Acquitted Conduct May be Considered
In addition, to uncharged executions of the scheme, the Court may also consider the conduct that was the subject of count 4, even though Defendant was acquitted on that count, if the Court finds that the Government has met its preponderance of the evidence burden. In other words, even though a jury determined that the Government had not proved beyond a reasonable doubt the charges related to the Ferrucci family that were the subject of count 4, this Court may still consider the evidence related to the Ferrucci family in awarding a forfeiture judgment if it determines that the Government has met its burden with respect to the evidence under the preponderance of the evidence standard.
a. The Majority View Supports Considering Acquitted Conduct
The majority of Circuit Courts that have considered the issue have held that a sentencing court may consider acquitted conduct when determining the amount of pro
The Ninth and Tenth circuits appear to have reached a different conclusion. See United States v. Bader,
In United States v. Fruchter,
Although the Second Circuit Court of Appeals has. not squarely addressed the issue, district courts in New York have found that a sentencing court may consider counts on which a defendant was acquitted when calculating the amount of proceeds to be forfeited by a defendant. See United States v. Peters, 257 F.R.D. 377, 387 (W.D.N.Y.2009) (citing Capoccia, and finding conspiracy to commit bank fraud enables consideration of acquitted conduct
In the context of 18 U.S.C. § 982(a)(7), the court’s decision in Adegboye,
Here Defendant was charged with an overall scheme to defraud BCBS. Even though Defendant was acquitted of the specific execution of the scheme charged in count 4, the Court concludes that it may consider the conduct at issue in count 4 if it finds that the Government has proven by a preponderance of the evidence fraud related to the Ferrucci family that was part of the overall scheme.
b. The Evidence Pertaining to Count f
Count 4 of the indictment charged Defendant with health care fraud related to the Ferrucci family — specifically Mario Ferrucci, his wife Kimberly, and his daughter Ariana. The indictment alleged that Defendant fraudulently submitted claim forms for 117 outpatient individual psychotherapy sessions billed under the CPT code 90808, when such services were not rendered. By reason of the finding of not guilty on this count, the jury determined that the Government had failed to prove this conduct beyond a reasonable doubt.
However, notwithstanding the jury’s verdict of not guilty on count 4, the Court concludes that the evidence presented at trial fully supports a finding under a preponderance of the evidence standard that Defendant engaged in health care fraud with respect to charges submitted to BCBS for services allegedly rendered to the Ferrucci family. Indeed, based upon the totality of the evidence presented at trial, it is apparent that Defendant’s conduct with respect to the Ferrucci family was simply part of her underlying scheme to defraud BCBS by submitting inflated charges for counseling services under CPT code 90808.
Mario Ferrucci testified that he began seeing Defendant for individual counseling in 2006 or 2007 (Tr. 279-80), and that he typically met with Defendant for 45 minute
Government Exhibit 10 reflects a total of almost $3,000 charged by Defendant to BCBS under CPT code 90808 for 35 separate individual sessions allegedly held with Mr. Ferrucci. Moreover, on at least 13 of those occasions, Defendant also submitted a charge to BCBS under CPT code 90808 for an individual session allegedly held with Mrs. Ferrucci on the same date. (See Government Exhibit 10). In other words, Defendant submitted charges to BCBS claiming that she had met with Mr. Fer-rucci and Mrs. Ferrucci separately for 75 to 80 minute individual sessions on 13 separate occasions (i.e., for a total of over two hours on those dates).
Defendant attempts to discredit this evidence by arguing that the appropriate CPT code to be charged for a session lasting one hour is unclear, since CPT code 90808 pertains to sessions lasting “approximately 75 to 80 minutes” and the next code (CPT code 90806) pertains to sessions lasting “approximately 45 to 50 minutes”. (See, e.g., Government Exhibit 63A). In other words, there is no CPT code identified for a session lasting between 50 minutes and 75 minutes.
While Defendant’s point is well taken, and certainly could impact the court’s conclusions as to whether Defendant engaged in fraud if she met with a patient individually for one hour and submitted charges using CPT code 90808 (i.e., 75 to 80 minutes) versus CPT code 90806 (i.e., 45 to 50 minutes), the evidence with respect to Mr. Ferrucci demonstrates that Defendant did far more than simply submit charges under CPT code 90808 for an individual session with Mr. Ferrucci. Rather, as discussed above, the evidence demonstrates that on at least 13 separate occasions, Defendant submitted charges to BCBS claiming to have met individually with Mr. Ferrucci for 75 to 80 minutes and Mrs. Ferrucci for 75 to 80 minutes.
When this evidence is considered along with the other evidence relevant to Defendant’s scheme to defraud, including Mr. Ferrucci’s testimony that his daughter saw Defendant approximately five times (Tr. 286) and yet Government Exhibit 10 reflects approximately twenty charges submitted by Defendant to BCBS pertaining to Mr. Ferrucci’s daughter (Tr. 287; see Government Exhibit 10), the Court concludes that the totality of the evidence plainly demonstrates by a preponderance of the evidence that Defendant engaged in health care fraud with respect to charges she submitted to BCBS pertaining to the Ferrucci family. Indeed, from the Court’s perspective, one of the most damaging pieces of evidence against Defendant were the tape recordings made by Jeanette Steger of the Defendant. Those recordings support the conclusion that any errors in billings submitted by Defendant to BCBS were not inadvertent, but rather were a part of an orchestrated scheme by
4. Calculating the Forfeiture Money Judgment
Having determined that Defendant is not entitled to any credit for the value of services actually rendered as part of the fraudulent scheme, and that the Court may consider both uncharged and acquitted conduct, the Court is now tasked with determining an appropriate amount for the forfeiture judgment. The Government has requested a personal money judgment in the amount of $125,000, reasoning that the extent of Defendant’s fraud was extensively more significant, but that the Government would voluntarily limit itself to the amount initially set forth in the indictment.
Although Defendant raises objections to the Court’s consideration of uncharged and acquitted conduct, she does not credibly dispute the appropriateness of a money judgment in the amount of $125,000, in the event both uncharged and acquitted conduct is considered. Indeed, Defendant represents in her filing related to the loss calculation in the presentence investigation report (“PSR”), that an appropriate loss amount for sentencing purposes is in the range of $120,000 to $200,000 (as opposed to the loss calculation contained in the PSR of over $200,000). (Dkt. 99 at ¶ 10). In other words, Defendant appears to have conceded that, if acquitted and uncharged conduct is included in the calculation, a forfeiture money judgment in the amount of $125,000 is within the range of reasonableness.
• Of course, “[t]he calculation of forfeiture amounts is not an exact science. The court need not establish the loss with precision but rather need only make a reasonable estimate of the loss, given the available information. A court is permitted to use general points of reference as a starting point for calculating the losses or gains from fraudulent transactions and may make reasonable extrapolations from the evidence established by a preponderance of the evidence at the sentencing proceeding.” United States v. Treacy,
Indeed, extrapolation appears particularly relevant to calculations in the context of fraud cases where, by the very nature of the offense, the defendant attempted to
When calculating a forfeiture order amount based upon extrapolation, the test appears to be whether the calculation is reasonable under the circumstances and supported by a preponderance of the evidence. Uddin,
Here, the Government has submitted an affidavit from Agent Provost containing his calculations based upon averaging the overcharges to the families at issue in each count of the indictment, and then multiplying that average by the number of families treated by Defendant. Using this methodology, Agent Provost calculates that the average overpayment per family was $5,417.82. (Dkt. 98 at ¶ 12). Agent Provost also indicates that during the time period under investigation, Defendant treated a total of 343 patients, and of those patients, there were 94 families. (Id.). According to Agent Provost’s calculations, this resulted in a total overpayment to Defendant of $509,274.70. (Id.).
In many respects, Agent Provost’s extrapolation methodology is not unreasonable. For instance, it provides a credit to Defendant for the value of services provided as part of the fraudulent services, even though based upon the case law discussed above, Defendant is not entitled to any such set-off. Moreover, Agent Provost’s methodology assumes that Defendant correctly billed for the treatment of individuals under CPT code 90808 (id.), and the evidence introduced at trial suggests that this was not the case.
However, the Court has trouble reconciling some of the calculations contained in Agent Provost’s affidavit with the evidence introduced at trial. Most importantly, the total overpayment that Agent Provost calculates exceeds the total amount that was paid by BCBS to Defendant for CPT code 90808 during the relevant time period by almost $200,000. (Id. at ¶ 5). In other words, Agent Provosts’ extrapolation method calculates that the total overpayment to Defendant for billing families using individual codes, instead of a group therapy code, was $509,274.70. (Id. at ¶ 12). However, according to Agent Provost, the total amount paid to Defendant during the relevant time period under CPT code 90808 was $323,600.99. (Id. at ¶ 5). This would suggest that Agent Provost’s extrapolation method has grossly inflated the extent of Defendant’s fraud.
In addition, there are other discrepancies with Agent Provost’s calculations. For instance, with respect to the Ferrucci family, Agent Provost indicates that BCBS paid Defendant “$9,494.00 for counseling
Similarly, according to Agent Provost’s affidavit, BCBS paid Defendant $5,950 for counseling sessions with the Sidotis, when they only saw Defendant for approximately 35 joint counseling sessions for which Defendant should have been paid $1,855 (i.e., a resulting overpayment of $4,095). (Id. at ¶ 8). However, the evidence introduced at trial reflects that Defendant was paid for 56 visits with the Sidotis at the rate of $85 billed under CPT code 90808, for a total of $4,760. (Government Exhibits 180, 181, 181C, 182, 182C, 183, 183C, 184, 185, 185C, 186, 187, 187C, 188, 189, 189C, 190,190C, 191,, 191C).
Furthermore, Agent Provost indicates in his affidavit that BCBS paid Defendant $12,415 for counseling services related to the Steger family. (Dkt. 98 at ¶ 10). The Court is not able to reconcile this figure with the evidence admitted at the trial, but the discrepancy appears to favor Defendant. Based upon a review of Government Exhibits 121C, 122C, 123C, 125C, 126C, 127C, 128C, 130C, 132C, 133C, 134C, 138C, 141C, 142C, 143C, 145C, 146C, 147C, covering the time period of September 23, 2007 through May 24, 2009, it appears that BCBS paid Defendant a total of $14,190 for alleged services related to the Steger family.
There could be very reasonable explanations for these discrepancies. For example, Agent Provost could be relying on information in addition to the trial exhibits in order to reach his calculations. These discrepancies do not necessarily require the wholesale disregard of Agent Provost’s calculations, particularly where his extrapolation method has calculated a fraud figure that far exceeds the amount sought by the Government in a forfeiture order. See United States v. Kasi,
One other method is contained in Agent Provost’s affidavit, and reflects the internal method utilized by BCBS to ascertain the overpayments to Defendant. BCBS calculated that the total overpayment was approximately $244,339.46. (Dkt. - 98 at ¶ 15). Again, as with Agent Provost’s calculation, the calculation by BCBS credits Defendant with the value of services pro
Another method would be to simply consider the charges submitted by Defendant under CPT code 90808. According to Agent Provost’s affidavit, BCBS paid Defendant $323,600.99 for CPT code 90808 during the time period January 1, 2006 to April 30, 2009. (Id. at ¶ 5). According to the trial testimony, at least during the time period December 1, 2007 through November 2008, approximately 97.5% of Defendant’s bills were charged under CPT code 90808. (Tr. 211). In other words, the evidence supports the conclusion that most of the charges submitted to BCBS by Defendant for services allegedly rendered to families were billed under CPT code 90808. (See also Tr. 334 (Agent Provost testified that he received material from BCBS and observed that almost all of the families being treated by Defendant were billed using CPT code 90808)); Dkt. 98 at ¶ 5 (Agent Provost indicates in his affidavit that his investigation revealed that the majority of irregularities in Defendant’s billing “stemmed from the defendant billing each of the individuals who saw the defendant in a family group therapy session as though they actually saw the defendant in an individual counseling session.”).
Generally speaking, ■ approximately half of Defendant’s patient base consisted of families (as opposed to individuals). (Id. at ¶ 12 (Defendant treated 94 families and 106 individuals)). It is certainly reasonable to conclude, based upon the totality of the evidence before the Court, that most of the charges billed by Defendant to BCBS under CPT code 90808 for the treatment of families were fraudulent. This would fully support a forfeiture money judgment in the amount of $125,000 (i.e., less than half of the total fees paid to Defendant by BCBS for charges under CPT code 90808). In other words, if approximately half of Defendant’s patient base was comprised of families, and most of the charges for those families .were submitted using CPT code 90808, then at least half of the payments to Defendant for CPT code 90808 would be fraudulent.
In the end, it is simply not possible for the Court to calculate a forfeiture money judgment with exact precision, nor is that required. Indeed, Defendant’s fraudulent conduct makes any such precise calculation impossible. However, based upon the various methodologies discussed above, under any scenario, a forfeiture money judgment in the amount of $125,000 is well supported by the evidence before the Court. Therefore, the Court concludes, based upon the totality of proof, that the Government has established by a preponderance of the evidence that the Government is entitled to a preliminary order of forfeiture, and orders that Defendant’s right, title and interest in the amount of one hundred twenty-five thousand dollars ($125,000.00) shall be forfeited to the United States as gross proceeds Defendant obtained, directly or indirectly, from the scheme to defraud a health care program.
CONCLUSION
For the foregoing reasons, the Government has established its right to a personal money judgment against Defendant pursuant to 18 U.S.C. § 982(a)(7) in the amount of one hundred twenty-five thousand dollars ($125,000.00).
SO ORDERED.
Notes
. 18 U.S.C. § 1347 provides, in relevant part, as follows:
(a) Whoever knowingly and willfully executes, or attempts to execute, a scheme or artifice—
(1) to defraud any health care benefit program; or
(2) to obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody or control of, any health care benefit program, in connection with the delivery of or payment for health care benefits, items, or services, shall be fined under this title or imprisoned not more than 10 years, or both.
. The patients are identified by their insurance numbers in the indictment. However, the trial exhibits and testimony, as well as the papers submitted in connection with the Government’s motion for a preliminary order of forfeiture, identify the patients by their names. No motion to seal or otherwise keep confidential the identities of the patients has been filed. As a result, the Court will also reference the patients by their names for purposes of this Decision and Order.
. References to "Tr.” are to the corresponding page number(s) of the official transcript of the trial filed at Docket numbers 89 through 96.
. The exception to the incorporation of '21 U.S.C. § 853 is subsection (d) of that section, which creates a rebuttable presumption in favor of the government under certain circumstances. See 18 U.S.C. § 982(b)(1). In other words, no rebuttable presumption exists with respect to health care forfeiture.
. The district court in Poulin,
. Defendant also argues that the Court should consider her lack of financial resources and inability to satisfy any money judgment. The Court finds this argument unpersuasive. The law is clear that a district court need not consider a defendant’s argument in opposition to forfeiture that she lacks the financial resources to satisfy the forfeiture judgment. United States v. Roble,
. In addition to Mario’ Ferrucci, and his wife and daughter, Government Exhibit 10 also reflected charges billed for services allegedly rendered to a "Sando Ferrucci.” The Court has not considered this information, as there was no trial testimony pertaining to the identity of "Sando Ferrucci.” However, even if those charges were included, the amount still does not equal the number contained in Agent Provost’s affidavit.
. It is not clear whether this discrepancy in the trial evidence and Agent Provost’s affidavit relates to Government Exhibits 192 through 197C that were marked as exhibits at the trial, but not introduced into evidence. Those exhibits appear to reflect additional charges related to various Sidoti family members. The Court is not able to resolve the issue based upon the record before it.