Roberts: Affirming Convictions and Sentences in Medicare Fraud

In U.S. v. Roberts, No. 12-16056 (Feb. 17, 2015), the Court affirmed convictions and sentences arising out of a multi-million dollar Medicare fraud that involved using chronic substance abusers, elderly patients with dementia, Haitian patients seeking immigration benefits, and paid patients to obtain payments from Medicare for purported mental health services. The Court rejected a number of challenges to the convictions, including the argument that the prosecutor’s allusion in closing argument to the possibility that defense counsel were aware of their clients’ guilt. The Court noted that the district court sustained an objection to this statement and gave a curative instruction. Turning to sentencing, the Court affirmed the imposition of the “mass marketing” two-level sentence enhancement of U.S.S.G. § 2B1.1(b)(2)(A)(ii). The Court noted that recruiters repeatedly targeted new patient populations to bring them to their fraudulent clinic for treatment. The Court also affirmed the imposition of the “conscious or reckless risk of death or serious bodily injury” under U.S.S.G. § 2B1.1(b)(13)(A). The Court noted that the clinic admitted elderly patients with dementia even though the clinic was not equipped to meet these patients’ needs. The Court further affirmed the imposition of the “vulnerable victim” enhancement under U.S.S.G. § 3A1.1(b)(1). The Court noted that the victims included elderly patients and substance abusers, who were vulnerable because of their need for treatment. The Court affirmed the imposition of an upward variance based on the district court’s finding that one defendant’s criminal history of I understated the seriousness of his criminal history. Finally, the Court rejected a challenge to the $9 million restitution award, affirming the district court’s finding that the clinic did not render any proper services to Medicare that could offset the restitution amount.