                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 10a0348n.06

                                           No. 08-2163
                                                                                        FILED
                                                                                     Jun 07, 2010
                          UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                 )
                                                          )
       Plaintiff-Appellee,                                )
                                                          )
v.                                                        )   ON APPEAL FROM THE UNITED
                                                          )   STATES DISTRICT COURT FOR
RICHARD MONTGOMERY,                                       )   THE EASTERN DISTRICT OF
                                                          )   MICHIGAN
       Defendant-Appellant.                               )
                                                          )
                                                          )
                                                          )


       Before: MARTIN, RYAN, and KETHLEDGE, Circuit Judges.

       KETHLEDGE, Circuit Judge. After a jury trial in 1998, Richard Montgomery was convicted

of one count of conspiracy, in violation of 18 U.S.C. § 371; 20 counts of mail fraud, in violation of

18 U.S.C. §§ 1341, 1346; and one count of violating the Medicare anti-kickback statute, 42 U.S.C.

§ 1320a-7b(b)(2). Montgomery failed to appear for sentencing and remained at large until 2008.

The district court thereafter sentenced him to 51 months’ imprisonment on each count, all running

concurrently. On appeal, Montgomery argues that we should vacate one of his mail-fraud

convictions because the government failed to produce evidence of a mailing, and he challenges the

district court’s imposition of an aggravating-role sentence enhancement. We reject his arguments

and affirm.

                                                 I.
No. 08-2163
United States v. Montgomery

       From 1992 to 1996, Montgomery owned a one-third share of several interrelated companies

that performed diagnostic tests in chiropractors’ offices, ostensibly to provide objective verification

of suspected spinal problems. In fact, however, the tests were worthless for that purpose.

       In addition to his ownership interest, Montgomery acted as one of the companies’ principals.

He personally directed the companies’ marketing efforts, which primarily emphasized two benefits

to participating chiropractors. First, the chiropractors could increase their revenue by offering the

tests, which not only bolstered their efforts to obtain insurance payments but also helped them to

maintain control over their patients by avoiding outside referrals. Second, Montgomery’s companies

paid the chiropractors for referring patients, initially through explicitly volume-based payments and

later by nominally leasing space in the chiropractors’ offices.

       Montgomery’s companies charged significantly higher rates for their tests than neurologists

charged to perform those same tests for valid diagnostic purposes. Initially, the companies promised

participating chiropractors that they would accept whatever reimbursement that insurance companies

were willing to pay, and that they would not bill patients for the difference. Eventually, however,

one insurer, Blue Cross Blue Shield of Michigan (“Blue Cross”), decided to stop paying for the tests.

At that point, the companies began aggressively pursuing patients for payment.

       At some point along the way, the FBI’s health-care-fraud unit began investigating

Montgomery’s companies. As part of that investigation, agents arranged a sting operation in which

they had a chiropractor refer several healthy patients for testing. The FBI also identified several

chiropractors who had used the testing services and offered them the opportunity to help expose the

scheme in exchange for non-prosecution or favorable plea agreements. The investigation culminated

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United States v. Montgomery

in this 27-count indictment against both Montgomery and his daughter Patricia Sittloh, who was

another part owner of the companies. Sittloh pled guilty to the conspiracy charge in exchange for

the government’s agreement to drop the mail-fraud and kickback charges. Montgomery proceeded

to a jury trial.

        At trial, the government presented several witnesses who testified to Montgomery’s direct

involvement in various aspects of the scheme. The government also produced marketing letters he

had signed and an attorney’s letter addressed to him that discussed the lease arrangements. Finally,

the government produced two sets of insurance-claim forms: one seized from Montgomery’s

companies, and the other provided by Blue Cross. The forms were identical except that Blue Cross

had stamped its copies as “received” after they had been delivered via mail. When the government

concluded its case-in-chief, however, it voluntarily dismissed five of the mail-fraud counts because

it had not been able to locate Blue Cross’s copies of the corresponding claim forms. The jury

returned a guilty verdict on all remaining counts after about three hours’ deliberation.

        Montgomery failed to appear for his sentencing hearing, so the district court issued a warrant

for his arrest. He successfully evaded capture for more than nine years, but was finally apprehended

in 2008. The court ordered an updated presentence investigation report, which scored Montgomery’s

offense level at 21 and placed him in criminal-history category I. Montgomery’s resulting guidelines

range was 37-46 months. The court recalculated Montgomery’s offense level to be 24, however,

reducing the amount of money for which Montgomery was held responsible, but adding a 4-level

aggravating-role adjustment based on a determination that he was a leader and an organizer of an



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No. 08-2163
United States v. Montgomery

extensive criminal activity. See U.S.S.G. § 3B1.1(a). Montgomery’s new guidelines range was 51-

63 months. The court sentenced him to 51 months’ imprisonment.

       This appeal followed.

                                                 II.

                                                 A.

       Montgomery challenges the district court’s denial of his motion for acquittal under Federal

Rule of Criminal Procedure 29 on one of the mail-fraud charges. He argues that the government

failed to produce any evidence that the claim form that was the subject of count 11 had been sent via

mail. See United States v. Jamieson, 427 F.3d 394, 402 (6th Cir. 2005) (“Mail fraud consists of (1)

a scheme to defraud, and (2) use of the mails in furtherance of the scheme”). Montgomery’s

argument depends on an inference that exhibit GX11b—which the government has provided as part

of the record on appeal—was missing at trial, based on the Assistant United States Attorney’s failure

to say “11b” while reciting a list of exhibits that he was handing to a witness.

       “Specificity in a Rule 29 motion is not required.” United States v. Wesley, 417 F.3d 612, 617

(6th Cir. 2005). “When a defendant makes a motion on specific grounds, however, all grounds not

specified in the motion are waived.” Id. The distinction is practical: When an acquittal motion is

general, we have no basis for including or eliminating possible grounds for the motion. We are

therefore willing to “assume” the existence of “unarticulated disagreements[.]” See United States

v. Dandy, 998 F.2d 1344, 1357 (6th Cir. 1993). In contrast, “[t]he specification of grounds in the

motion is an indication that counsel has evaluated the record and has these particular reasons for his

motion.” Id.

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No. 08-2163
United States v. Montgomery

        Montgomery cited “a lack of sufficient evidence” in making his Rule 29 motion. (Trial Tr.

vol. 4, 197, Dec. 21, 1998.) But his argument was more specific—which is to say more

restrictive—than that. In his motion, Montgomery expressly told the district court that “[t]he

argument is the same” as to “each and every count.” Id. That representation was to the exclusion

of the argument he makes here, which is unique to count 11. The inconsistency between the two

arguments is enough to render the current argument waived. Wesley, 417 F.3d at 617.

        That result is only fair here. If Montgomery thought that a single exhibit was missing from

the ones necessary to convict him for mail fraud, he should have told the district court as much right

then and there, rather than only raise the issue with this court 12 years later. The district court could

have easily resolved the dispute on the spot. We will not reverse the district court on such a ground.

                                                   B.

        Montgomery also challenges the district court’s application of a 4-level increase to his

offense-level calculation, based on the court’s finding that he was a leader and an organizer of the

criminal activity. Montgomery argues that there is no evidence in the record to support that factual

determination. He concedes, however, that he failed to object to the enhancement on this basis and

that our review is therefore only for plain error. See United States v. Gardiner, 463 F.3d 445, 459

(6th Cir. 2006).

        Several circuits have held that “[q]uestions of fact capable of resolution by the district court

upon proper objection at sentencing can never constitute plain error.” United States v. Lopez, 923

F.2d 47, 50 (5th Cir. 1991); see also United States v. Bush, 405 F.3d 909, 922 (10th Cir. 2005);

United States v. Elion, 15 F. App’x 14, 16 (1st Cir. 2001); United States v. Alford, No. 93-5073,

                                                  -5-
No. 08-2163
United States v. Montgomery

1994 WL 258412, at *2 (4th Cir. June 14, 1994) (unpublished). This case does not require us to go

that far, because the government’s witnesses and physical evidence easily support the district court’s

finding here.

       The district court’s judgment is affirmed.




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