Eleventh Circuit Court of Appeals - Published Opinions

Wednesday, May 27, 2009

Hoffman-Vaile: Dermatologist Obstruction Conviction Affirmed

In U.S. v. Hoffman-Vaile, No. 07-12629 (May 27, 2009), the Court affirmed the convictions of a dermatologist charged with Medicare fraud and obstruction of justice.
Applying plain error review, the Court rejected a challenge to the admission of reports prepared by a private administrator that processes and reviews claims for Medicare. Their admission did not affect the defendant’s substantial rights in view of the other substantial evidence. The Court also found no plain error in the admission of testimony of repeated instructions to the defendant on how to properly bill Medicare, because this testimony related to the defendant’s intent.
The Court also rejected the challenge to the conviction under 18 U.S.C. § 1519, which criminalizes destruction of documents in response to a federal investigation. Hoffman-Vaile claimed that the statute does not apply to responses to a grand jury investigation. The Court rejected this interpretation of the statute.
The Court rejected the argument that the calculation of loss, for sentencing purposes, was erroneous, because based on 100% of the fraudulent billing, when Medicare only paid Hoffman-Vaile for 80% of the billing, with the patient or private insurers paying 20%. The Court noted that patients and private insurers were also victims, and the amount was part of what Hoffman-Vaile intended to recover.
Turning to the forfeiture order, the Court rejected the argument that the amount of forfeiture should be reduced by the amount that Hoffman-Vaile paid in restitution to victims other than Medicare. The Court noted that forfeiture focuses on the defendant, not the victim.
Forfeiture is "punitive."