UNITED STATES of America, Appellee, v. Jean Maxon LUCIEN, Frantz Mevs, Waldon Desir, Joseph Agnant, Marie Agnant, Sherly Bouche, Max Deralus, Harry Desir, Rhode Dorlus, Gino Faurelus, Pierre Francois, Soline Germain, Jean Germain, Oddy Jean-Marie, Claudia Paul, Joseph Noncent, Daniel Richard, Edouarcin Romeo, Guerline Dormetis, Jean Sereme, Marie Berger, Claudette Augustin, also known as Claudette Franck, Vincent Virgil, Ketty Israel, Lahens Castile, Defendants, Yves Baptiste, Policia Baptiste, Guerline Dormetis, Defendants-Appellants.
02-1228
02-1266
02-1395
United States Court of Appeals, Second Circuit
Argued March 11, 2003. Decided October 14, 2003.
347 F.3d 45
Jason L. Solotaroff, New York, New York (Giskan & Solotaroff, New York, New York; Robert A. Culp, Law Office of Robert A. Culp, New York, New York, of counsel), for Defendant-Appellant Guerline Dormetis.
Martin G. Goldberg, Franklin Square, New York, submitted a brief for Defendant-Appellant Yves Baptiste.
Andrew J. Frisch, Assistant United States Attorney, Brooklyn, New York (Roslynn R. Mauskopf, United States Attorney, Peter A. Norling, Scott B. Klugman, Assistant United States Attorneys, Eastern District of New York, Brooklyn, New York, of counsel), for Appellee United States of America.
Before: MESKILL, CARDAMONE, and CABRANES, Circuit Judges.
CARDAMONE, Circuit Judge.
Because health care fraud drains billions of dollars from public and private payers annually, Congress has since 1992 sought a tool to combat this problem. See Comm. on Gov‘t Reform and Oversight, Health Care Fraud: All Public and Private Payers Need Federal Criminal Anti-Fraud Protections, H.R.Rep. No. 104-747 (1996). In 1996 Congress enacted the latest in a series of health care fraud statutes making any fraud perpetrated against a public or private payer a federal criminal offense. See Health Insurance Portability and Accountability Act of 1996,
Yves Baptiste and Policia Baptiste (unrelated) and Guerline Dormetis (defendants or appellants) appeal from judgments of the United States District Court for the Eastern District of New York (Gleeson, J.), entered on April 10, April 17, and July 26, 2002, respectively, convicting them — after a jury trial — of health care fraud in violation of
Defendants challenge their convictions and sentences on a variety of grounds. This opinion considers: (1) whether the federal health care fraud statute applies to the conduct of defendants, who participated as passengers in staged automobile accidents designed to exploit New York‘s no-fault automobile insurance regime; (2) whether the district court fulfilled its statutory duty to inquire into defendant Yves Baptiste‘s economic circumstances when
BACKGROUND
All three defendants participated in staged automobile accidents and fabricated personal injury claims to take advantage of the operation of the New York Comprehensive Motor Vehicle Insurance Reparations Act, see
The New York No-Fault Act provides compensation for victims of automobile accidents without regard to fault. Central to the law is the requirement that every owner of a motor vehicle maintain a liability insurance policy that provides the owner, members of the owner‘s household, operators and occupants of the vehicle and pedestrians with compensation for “basic economic loss” resulting from injuries occasioned by the use or operation of that vehicle in New York State, regardless of fault.
The government proved at trial that defendants were recruited to participate in the charged health care fraud by Binsonn Guillaume, Jackson Clerveaux and Frantz Mevs. The trial in this case was one of six trials arising from related indictments charging numerous individuals with participating in an overarching scheme of health care fraud based on a series of deliberately staged automobile accidents in several boroughs of New York City. This is the first appeal from these trials to reach this Court. Guillaume and Clerveaux — who both testified for the government in the instant case — and Mevs recruited and paid individuals to drive or ride as passengers in vehicles that were deliberately crashed into other vehicles. Following the accidents, the recruited passengers were referred, in exchange for a fee, to various medical clinics in New York City. The recruited passengers assigned their no-fault insurance benefits to the health care clinics (medical providers), which billed the insurance companies directly. The recruited passengers subsequently advanced their own civil causes of action for their feigned injuries. To receive no-fault reimbursements, the health care clinics generated fictitious treatment records for the passengers in the accidents. The accident participants used these fictitious medical records to support their claims of personal injury and to obtain settlements from insurance companies.
Each of the present defendants participated in this health care fraud by riding as
DISCUSSION
I The Health Care Fraud Statute
On appeal the defendants contest the application of the health care fraud statute,
Analysis begins with a review of the two relevant statutory provisions in question,
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.
Section 24(b) sets out the relevant definition of a “health care benefit program.” It provides
As used in this title, the term “health care benefit program” means any public or private plan or contract, affecting commerce, under which any medical benefit, item, or service is provided to any individual, and includes any individual or entity who is providing a medical benefit, item, or service for which payment may be made under the plan or contract.
With the foregoing definitions in mind, we turn to Yves Baptiste‘s assertion that the statute applies only to health care professionals and that the New York State no-fault automobile insurance program is not a health care benefit program within the meaning of the statute. These arguments raise questions of first impression and involve statutory construction and questions of law that we review de novo. See United States v. Alfonso, 143 F.3d 772, 775 (2d Cir.1998).
Yves Baptiste points to no legal authority in support of his construction of the statute, and the basic principles of statutory construction identified render his position untenable. We cannot adopt his view that the statute applies only to health care professionals because such construction is obviously at odds with the language of
Congress’ use of this word does not support Baptiste‘s suggestion that the legislature aimed for the health care fraud statute to apply only to medical professionals. Rather, we read the statute to mean that any person — whether that person is a medical professional, a patient, or otherwise — who purposefully endeavors to defraud a health care benefit program may be found guilty of health care fraud, if his or her conduct otherwise conforms to the elements of the offense. The broad language of
Beyond the unambiguous language of the statute, our conclusion that the defendants’ participation in staged automobile accidents was encompassed and proscribed by
Baptiste endeavors to bolster his argument that the fraud statute should not apply to him by pointing out that the no-fault benefits were paid not to him but to the medical providers and by noting that the passengers in the staged accidents only directly benefitted from the settlement of subsequent civil personal injury claims. This point ignores the fact that the submission of fraudulent no-fault claims by the medical providers and the subsequent settlements received by the defendants as passengers were interdependent parts of one integrated fraudulent
In addition to declaring that Congress did not intend for the health care fraud statute to apply to persons outside of the medical profession, Yves Baptiste further maintains that the statute is inapplicable to his conduct because the New York State no-fault automobile insurance program is not a health care benefit program within the meaning of the statute. He suggests that the program is distinguishable from “true” health care benefit programs because the New York program does not operate nationwide, and it does not cover all injuries and illnesses — only those resulting from automobile accidents. This argument is wholly without merit because the distinctions Baptiste attempts to make are not relevant to the federal health care fraud statute. The statute provides quite simply that ”any public or private plan or contract ... under which any medical benefit, item, or service is provided to any individual” qualifies as a “health care benefit program.”
In the instant case, private insurers — bound by insurance contracts purchased by vehicle owners pursuant to the No-Fault Act‘s requirement that vehicle owners maintain a liability insurance policy that provides coverage for automobile accident injuries regardless of fault — reimbursed various medical providers for fraudulently billed medical expenses that were incurred on behalf of Yves Baptiste and the other two defendants. Because Yves Baptiste — as well as Policia Baptiste and Guerline Dormetis — received a medical benefit as a result of the vehicle owners’ no-fault insurance contracts, a health care benefit program is, under the statutory definition of
In sum, the federal health care fraud statute applies to defendants’ participation as passengers in staged automobile accidents designed to profit from New York‘s no-fault automobile insurance regime. We recognize that this holding authorizes the application of the federal health care fraud statute to circumstances that are atypical of the health care fraud case law, which to date has concerned itself more exclusively with conduct within the medical community. Despite this factual twist, it is clear that defendants’ conduct falls squarely within the unambiguous terms of the statute and therefore the statute applies in the circumstances presented by this case.
II Yves Baptiste‘s Restitution Order
As a result of his conviction, Yves Baptiste was ordered to pay restitution in the amount of $46,701. This restitution order was based on the money paid to his medical providers, the monies paid to the medical providers of his fellow passengers, and the monies paid to him and his fellow passengers in civil settlements. On appeal, he insists that restitution of $46,701 was an error because it was made without the district court conducting a statutorily-required inquiry. He also challenges the scope of the fraud and loss attributed to him by the district court. We review a district court‘s order of restitution for abuse of discretion. See United States v. Jacques, 321 F.3d 255, 259 (2d Cir.2003).
A. Statutory Factors
Appellant avers that in ordering restitution the trial court did not consider any factor except the loss sustained by the insurance companies that made the no-fault medical payments and the payments for civil settlements. He believes the sentencing court erred by failing to consider other statutorily mandated factors, which Baptiste identifies as including his financial resources, financial needs, earning ability and dependants. Appellant does not specify the authority he relies on for his argument, but the language used in his brief tracks the language of
Section 3663A, in contrast to
Although Baptiste‘s economic circumstances were not relevant to the determination of the amount of restitution, the district court was nonetheless required to consider those circumstances when determining a schedule of payment to satisfy the restitution order. Specifically,
We have held that while a sentencing court need not make detailed factual findings on each factor, the record must disclose some “affirmative act or statement allowing an inference that the district court in fact considered the defendant‘s ability to pay.” See United States v. Kinlock, 174 F.3d 297, 300 (2d Cir.1999); see also Harris, 302 F.3d at 75 (district court‘s assertion that it read the presentence report will not suffice because it does
Here, the record indicates that during Baptiste‘s sentencing proceedings, Judge Gleeson addressed Baptiste‘s longstanding employment history, his military service, his dependant living in Chicago, and his present living arrangements. The trial court also questioned Baptiste‘s counsel about an error detected on Baptiste‘s tax returns and made the amendment of the returns a condition of appellant‘s supervised release. We are satisfied, on this record, that the district court did in fact consider the defendant‘s ability to pay in setting a payment schedule, as required by
B. Scope of Fraud and Loss
As a further challenge to the order of restitution, appellant takes issue with the district court‘s findings on the scope of fraud and loss attributable to him. He insists the amount of restitution should have been limited either to the amount of his civil settlement or, in the alternative, to that amount plus the amounts paid to medical providers for his treatment. Appellant also believes the trial court should have ordered that his liability be made joint and several with his co-defendant and with the medical care providers who received the no-fault reimbursements.
As already noted, appellant‘s restitution order is governed by the MVRA as codified in
[i]f the court finds that more than 1 defendant has contributed to the loss of a victim, the court may make each defendant liable for payment of the full amount of restitution or may apportion liability among the defendants to reflect the level of contribution to the victim‘s loss and economic circumstances of each defendant.
Under the express terms of
III Appellant Dormetis’ Appeal
A. Loss Calculation
We turn now to Guerline Dormetis’ appeal. First, she challenges the scope of fraud attributed to her by the
Under the Guidelines applicable to Dormetis’ sentence, a criminal defendant‘s offense level is determined not only by her own acts, but also by all the acts and omissions of others whom the defendant aided and abetted, or, “in the case of a jointly undertaken criminal activity ... all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity.”
B. Risk of Serious Bodily Injury Enhancement
Additionally, Dormetis contests the district court‘s enhancement of her total offense level during sentencing. In determining Dormetis’ total offense level, her base offense level was enhanced by two levels, pursuant to
Dormetis contests the decision to adjust her offense level on the basis of this enhancement, arguing that while the Guidelines require a specific finding that she was conscious of or in reckless disregard of a risk of serious bodily injury, the district court expressly found that she was not aware of the dangerousness of her conduct.
In protesting the district court‘s application of the offense level enhancement to her offense, Dormetis makes much of that court‘s comment that it did not “mean to suggest” that Dormetis was “necessarily aware that she was putting her health and life at risk” or that she “knowingly put life and limb at risk.” Judge Gleeson added that “[m]ore often than not she thought she could get into a fender bender and make money.” Appellant believes these statements mean the district court found that she did not act while conscious of, or in reckless disregard of, a risk of serious bodily injury and that the enhancement is thus improper in her case.
Appellant‘s insistence that the above statements somehow invalidate the application of the enhancement is unavailing.
We observe that there has been some disagreement among our sister Circuits regarding the proper construction of the Guidelines requirement that an offense involve “conscious or reckless risk of serious bodily injury.” The Eighth Circuit, on the one hand, has appeared to distinguish between a conscious risk and a reckless risk by holding that an offense involves a conscious risk when the defendant is aware of the risk but consciously disregards it, whereas a reckless risk is one that the defendant recklessly disregards despite his awareness of the risk. See United States v. McCord, Inc., 143 F.3d 1095, 1098 (8th Cir.1998). The Ninth Circuit has resisted this analysis for several reasons. First, the Ninth Circuit has pointed out that, if an offense that involves a “reckless risk” of injury requires an awareness of the risk, there is no meaningful distinction between a “reckless risk” and a “conscious risk” as the terms are used in the Guidelines. See United States v. Johansson, 249 F.3d 848, 858 (9th Cir.2001) (“The use of the disjunctive conjunction ‘or’ between ‘conscious’ and ‘reckless’ ... suggests that a conscious risk of injury is something different from and an alternative to a reckless risk of injury.“). The Ninth Circuit has also pointed out that the Guidelines describe a “reckless risk,” and not “the reckless disregard of a known risk.” See id. at 858-59 & n. 4. Finally, the Ninth Circuit has pointed out a flaw that results from the Eighth Circuit‘s framework, namely, that a defendant can escape the application of the enhancement by claiming that he was not aware that his conduct created a serious risk. See id.
We are persuaded that the approach taken by the Ninth Circuit, including its conclusion that a defendant does not have to subjectively know that his or her conduct created a serious bodily risk, is correct. Accordingly, we read the Sentencing Guidelines to say that, in order for the 1997
In the case at bar, appellant is subject to the offense level enhancement of
CONCLUSION
Accordingly, for the foregoing reasons, as well as for the reasons stated in the order filed concurrently with this opinion, the judgm