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April 12, 2011

Intriguing health-care fraud sentencing and restitution ruling from Sixth Circuit

Savvy federal criminal justice practitioners know that health-care fraud is a hot topic, and this morning brings a hot new ruling on heath-care fraud sentencing issues from the Sixth Circuit.  The ruling in US v. Jones, No. 09-3664 (6th Cir. Apr. 12, 2011) (available here), covers an array of sentencing issues and these snippets provide a taste of some of the specifics:

There is no rule that a district court must rely upon statistical analysis in a situation such as this to determine the amount of loss pursuant to section 2B1.1.  However, here, the district court relied solely upon a statistical analysis. Without a sound representative sample, that analysis was flawed.  As a result, the amount of loss calculation was clearly erroneous. We remand this case so that the correct amount of loss may be established by a preponderance of the evidence....

In the context of mail fraud convictions, we have read [the mandatory restitutiuon] statutory definition of “victim” to allow for restitution for the loss attributable to all the victims of a defendant’s scheme to defraud, even when the defendant was not indicted or convicted of fraud with respect to each victim....

es’s indictment defined his scheme as a broad, over-arching plan “to defraud and to obtain money by means of false and fraudulent pretenses, representations and promises.” The indictment listed as components the more specific acts falling under that plan such as up-coding, billing for services not rendered to Carter and Tubbs, billing under Stewart’s Medicare Provider Number, and others.  Therefore, the grand jury defined Jones’s scheme as a general plan to defraud Medicare and Medicaid by committing many different distinct acts. The scheme included not only the acts of which he was convicted, but also the ones of which he was acquitted.

Accordingly, once the district court correctly determines the amount of loss caused by Jones on remand, it may properly order him to pay restitution for both his convicted and acquitted conduct.

April 12, 2011 at 11:54 AM | Permalink


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