           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                       2     United States v. Raithatha                    No. 02-6013
        ELECTRONIC CITATION: 2004 FED App. 0143P (6th Cir.)
                    File Name: 04a0143p.06                               David P. Grise, ASSISTANT UNITED STATES
                                                                         ATTORNEY, Lexington, Kentucky, for Appellee.
                                                                         ON BRIEF: Glenn V. Whitaker, Eric W. Richardson,
UNITED STATES COURT OF APPEALS                                           VORYS, SATER, SEYMOUR & PEASE, Cincinnati, Ohio,
                                                                         for Appellant. David P. Grise, Charles P. Wisdom, Jr.,
                  FOR THE SIXTH CIRCUIT                                  ASSISTANT UNITED STATES ATTORNEYS, Lexington,
                    _________________                                    Kentucky, for Appellee.

 UNITED STATES OF AMERICA , X                                                                 _________________
              Plaintiff-Appellee, -
                                    -                                                             OPINION
                                    -   No. 02-6013                                           _________________
             v.                     -
                                     >                                   FEIKENS, District Judge.
                                    ,
 P. G. RAITHATHA,                   -                                    I. INTRODUCTION
          Defendant-Appellant. -
                                   N                                       Defendant, Dr. P.G. Raithatha, was convicted by a jury of
        Appeal from the United States District Court                     scheming to defraud private health insurance companies and
      for the Eastern District of Kentucky at London.                    Medicare/Medicaid, in violation of 18 U.S.C. §1347, and of
  No. 00-00041—Karl S. Forester, Chief District Judge.                   making false statements to the Department of Labor (DOL)
                                                                         and to the Immigration and Naturalization Service (INS), in
                   Argued: January 29, 2004                              violation of 18 U.S.C. §1001. Defendant was sentenced to 27
                                                                         months of imprisonment. Defendant appeals his conviction
               Decided and Filed: May 19, 2004                           and sentence.

     Before: MERRITT and SUTTON, Circuit Judges;                            On appeal, defendant argues: (1) the jury’s conviction as
               FEIKENS, District Judge.*                                 to all counts should be reversed because defendant alleges
                                                                         there is insufficient evidence to sustain his conviction, or
                      _________________                                  alternatively, that defendant should be granted a new trial;
                                                                         and (2) the district court erred in attributing any loss figure to
                           COUNSEL                                       defendant as to Counts 1 through 20, and that therefore the
                                                                         district court’s loss calculations for sentencing purposes
ARGUED:  Glenn V. Whitaker, VORYS, SATER,                                should be reversed.
SEYMOUR & PEASE, Cincinnati, Ohio, for Appellant.


    *
     The Honorab le John Feikens, United States District Judge for the
Eastern District of Michigan, sitting by designation.

                                  1
No. 02-6013                   United States v. Raithatha       3    4    United States v. Raithatha                  No. 02-6013

II. FACTUAL BACKGROUND                                              performed more expensive services than were actually
                                                                    provided.
  A. Defendant’s Medical Practice
                                                                       In 1998, defendant helped recruit seven foreign physicians
   Defendant is a physician who owned and operated two              for MAHC. Defendant recruited them under a program that
clinics in 1997, the McKee Medical Center in McKee,                 allows foreign doctors to stay in the United States if they
Kentucky, and the Richmond Medical Center in Richmond,              secure employment in medically under-served areas. Under
Kentucky. In 1997, defendant sold the clinics to Mountain           this program, MAHC had to meet several requirements
After Hours Clinic Corporation (“MAHC”). As part of the             including submitting a Labor Condition Application (“LCA”)
sale, defendant became an employee of MAHC and was                  to the DOL, and a Petition for Nonimmigrant Worker (an “I-
issued one-sixth of the shares of stock in MAHC. By 1998,           129 form”) to the INS, setting forth information such as the
MAHC owned four other clinics in Hazard, Nicholson,                 physician’s wage, for each physician hired. MAHC was
London, and Somerset, Kentucky.                                     required to pay each foreign doctor no less than the prevailing
                                                                    wage for the area – the average wage paid to physicians in the
  During 1997, when defendant owned the McKee and                   area for comparable work.
Richmond clinics, the billing for both clinics was done at the
McKee clinic. Tammy Spurlock, defendant’s office manager,             The McKee clinic was designated a “rural health clinic” by
testified that she, Beverly Lainhart, and Renee Hudson did          Medicare. As a rural health clinic, the McKee clinic was
billing work. Between January and December of 1998, all             reimbursed a flat rate for each Medicare/Medicaid patient it
billing for the six MAHC clinics was performed by an outside        saw, regardless of the treatment rendered. The McKee clinic
billing service, Office Management Services (“OMS”). In             was required to submit to Medicare a yearly “cost report” – a
April of 1999, OMS stopped providing billing services for           summation of the costs incurred by the clinic in treating
MAHC, and the McKee clinic began doing billing for all of           patients. Once a clinic reached the maximum reimbursement
the clinics.                                                        rate set by Medicare/Medicaid, additional expenses on the
                                                                    cost report were not reimbursed during that year. However,
  To bill its services, a medical clinic issues an invoice to the   reported costs were used to calculate future
patient’s insurer that contains a current procedure terminology     Medicare/Medicaid reimbursement rates per patient. (Shreve,
(“CPT”) code. The CPT code indicates to the insurer the             Tr. 100.)
level of service rendered by the clinic and the amount of
reimbursement owed to the clinic. When a medical                       In May 1998, a cost report was prepared for the McKee
practitioner sees a patient, the practitioner records a CPT code    clinic for the period of October 1, 1996 through
on an “encounter form” to record the services performed. The        September 30, 1997, which included $50,393.53 of
CPT codes for established patients range from the least             defendant’s personal expenses. Defendant alleges that when
expensive, 99211, to the most expensive, 99215. The CPT             defendant operated as a sole proprietor of the Richmond and
codes for new patients range from the least expensive, 99201,       McKee clinics, prior to their purchase by MAHC, defendant
to the most expensive, 99205. (Cost. Tr. 53.) One type of           “often used business checks to pay personal expenses and
“up-coding” scheme occurs where the CPT numbers are                 would, at the end of the year, separate the personal and
changed on the encounter forms and/or billing sheets sent to        business expenses in order to prepare the corporation’s tax
the insurance companies so that it appears as if the clinic         returns.” (Def. Br. 113.) Defendant contends that his
No. 02-6013                   United States v. Raithatha       5    6      United States v. Raithatha                 No. 02-6013

personal expenses were inadvertently included on the cost           expenses unrelated to patient care. Included in those
report.                                                             expenses was money which was actually spent to furnish and
                                                                    complete defendant’s home. (Indictment, 6-7.)
  B. Prosecution of Defendant
                                                                      Counts 6 through 13 charged defendant with submitting
  On July 24, 2000, a twenty-count indictment was filed             false statements to the DOL, in violation of 18 U.S.C. §1001,
against defendant. Counts 1 and 4 charged defendant with            by submitting LCAs that misstated the salaries of seven
defrauding private insurance companies in 1997 (Count 1)            foreign physicians employed by MAHC. The indictment
and 1998 and 1999 (Count 4), in violation of 18 U.S.C.              charged defendant as “the person in charge of recruiting
§1347. Counts 1 and 4 charged defendant with instructing            physicians for the Corporation.” (Indictment, 12.) The
billing staff to: (a) raise the CPT codes on invoices when the      indictment alleged that the “forms falsely overstated the
physician had reported a lower level of service; (b) submit         salary to be paid to the physicians, in order to disguise the
invoices to insurance companies for services performed by           fact that the physicians were being paid less than the required
other physicians, as if defendant had performed them; and           amount.” (Indictment, 13.)
(c) submit claims with a diagnosis listing an illness, when the
patient did not have an illness. (Indictment, 2-3, 8-10.)             Counts 14 through 20 charged defendant with submitting
                                                                    false statements to the INS, in violation of 18 U.S.C. §1001,
   Counts 2 and 5 charged defendant with scheming to                by submitting I-129 forms that misstated the salaries of the
defraud Medicare/Medicaid in 1997 (Count 2) and 1998 and            seven foreign physicians identified in Counts 6 through 13.
1999 (Count 5), in violation of 18 U.S.C. §1347. (Indictment,       (Indictment, 15-16.)
4-6, 10-12.) Counts 2 and 5 charged defendant with causing
patients to present themselves for medically-unnecessary                The defendant pleaded not guilty to all counts.
visits by: (a) refusing to authorize refills on prescriptions and
preventing employees from authorizing refills of                      Trial began on July 2, 2001, before Chief Judge Karl S.
prescriptions; (b) making unannounced and unrequested home          Forester. Defendant moved for a judgment of acquittal. The
visits to patients; (c) approaching people on the street and        district court denied the motion. On July 19, 2001, the jury
ushering them into the clinic for unscheduled examinations;         returned a guilty verdict as to all counts (Counts 1 through
(d) examining people who had come into the clinic for non-          20). Defendant timely moved for a new trial. On
medical reasons, such as to pay debts owed to defendant;            September 12, 2001, the district court denied the motion for
(e) ordering medical tests not related to patients’ conditions;     a new trial. This appeal followed, both as to defendant’s
(f) falsely representing that other physician employees had         conviction and sentence as to all counts.
specialties so that patients would be examined an additional
time by a “specialist”; and (g) refusing to give test results           C. Presentence Investigation Report (PSR) Loss
until an additional appointment was kept. (Indictment, 4-6,                Calculation
10-12.)
                                                                       The probation office determined that it would be difficult
  Count 3 charged defendant with defrauding                         to discern an actual loss figure for Counts 1 and 4, but that an
Medicare/Medicaid, in violation of 18 U.S.C. §1347, by              intended loss figure could be calculated “for the up-coding
submitting a cost report for 1997 that included personal            conduct which occurred in 1999.” Therefore, the PSR
No. 02-6013                 United States v. Raithatha    7    8    United States v. Raithatha                 No. 02-6013

calculated an intended loss figure of $206,461.43 for Counts      Fifth, an average payment difference was computed for
1 and 4, based on evidence of defendant’s up-coding scheme.    each of the above categories of possible CPT up-codes. For
The PSR calculated an intended loss figure of $50,393.53 for   example, the probation office determined that the average
Count 3, equal to the amount of defendant’s personal           payment difference between services coded 99211 and 99213
expenses which were included in the cost report submitted to   was $28.24. (PSR, ¶50-54.) Sixth, the number of encounter
Medicare/Medicaid. The probation office determined that an     forms in each CPT category (determined in step 2) was
intended loss amount for Counts 2 and 5, related to            multiplied by the average payment difference for each
defrauding Medicare/Medicaid, could not be quantified.         category (determined in step 5) to calculate an intended loss
Thus, the PSR recommended that a total intended loss figure    figure for each category of CPT codes. For example, for CPT
of $256,854.96 ($206,461.43 + $50,393.53) should be            code 99211, the probation office calculated an intended loss
attributed to defendant as to Counts 1 through 5.              figure for 1999 of $35,221.10 by multiplying $28.45 (the
                                                               average payment difference between 99211 and 99213) by
  The PSR arrived at the intended loss figure of $206,461.43   1,238 (the number of 99211 encounter forms for 1999 seized
for Counts 1 and 4 through a complex series of ten steps.      from the McKee Clinic). Seventh, the intended loss figures
First, the probation office went through encounter forms       for each CPT category were added together to come up with
seized from the McKee Medical Center on November 17,           a total intended loss figure for 1999 of $112,820.45. This
1999, and extracted all of the encounter forms from 1999 for   figure represents the loss which would have occurred had
patients with private insurance that were marked with 99211,   each claim in each CPT category for 1999 been up-coded.
99212, 99201, and 99202 CPT codes. Second, the encounter       (PSR, ¶55-56.)
forms in each CPT code category were counted. Third, of the
sixty-four private insurance companies billed by MAHC in          Eighth, the probation office determined an intended loss
1999, a sample of ten insurance companies were contacted to    figure for 1998 of $56,410.23, by backtracking from the
determine their usual and customary charges for each CPT       intended loss figure calculated for 1999. The probation office
code.                                                          determined that defendant had “extensive control” over the
                                                               billing of three of the six clinics in the MAHC system during
  Fourth, using the customary charges for each CPT code at     1998, when the billing for MAHC was conducted by OMS.
each of the ten selected insurance companies, the probation    (PSR, ¶57.) Therefore, the probation office calculated the
office computed the payment difference that would have         intended loss figure for 1998 by multiplying the intended loss
resulted had each category of CPT codes been up-coded and      figure for 1999 by 50%.
billed at a higher CPT code. For example, the probation
office calculated the payment difference between 99211 to         Ninth, the probation office determined an intended loss
99213 to determine the amount of loss each of the ten          figure for 1997 of $37,230.75. Since defendant operated only
insurance companies would have suffered had encounter          two clinics in 1997, the probation office calculated an
forms marked with a 99211 been up-coded and billed under       intended loss for 1997 by multiplying the intended loss figure
a 99213 CPT code. The probation office determined the          for 1999 by 33%. (PSR, ¶58.) Finally, the probation office
payment differences between the following additional CPT       added together its intended loss calculations for 1999, 1998,
categories for each of the ten insurance companies: 99212 to   and 1997 to arrive at a total loss calculation of $206,461.53
99213, 99201 to 99203, and 99202 to 99203.                     for Counts 1 and 4. (PSR, ¶59.)
No. 02-6013                  United States v. Raithatha      9    10   United States v. Raithatha                   No. 02-6013

  For Counts 6 through 20, the probation office calculated an     calculation of an intended loss of $206,461.43 for Counts 1
actual loss figure of $216,833.94. (PSR, ¶73.) This was           and 4, and an intended loss of $50,393.53 for Count 3, for a
based on the amount of pay the foreign physicians were            total intended loss of $256,854.96 for Counts 1 through 5.
entitled to but did not receive during their employment with
MAHC. (PSR, ¶73.) For Counts 6 through 20, the probation             With regards to Counts 6 through 20, the district court
office calculated an intended loss of $523,670.00. This figure    adopted the PSR’s actual loss calculation of $216,833.94,
equals the difference between the wage reported to the United     after determining that the intended loss calculation relating to
States minus the contract amount, multiplied by the number        Counts 6 through 20 was too speculative. (Sentencing, Tr.
of years of the contract, for each foreign physician. This        77-80.) However, because the court determined that the
intended loss amount represents the amount of money per           conduct charged in Counts 6 through 20 fell outside the
contract that MAHC stood to gain by illegally paying its          heartland of cases that U.S.S.G. §2F1.1 (the applicable
foreign physicians below the prevailing wage. The probation       Sentencing Guideline) was designed to address, the court
office used the intended loss calculation for Counts 6 through    decided not to hold defendant accountable for the actual loss
20 ($523,670.00), because it was greater than the calculated      caused by his alleged conduct in Counts 6 through 20.
actual loss, and combined it with the intended loss calculation   Accordingly, the district court determined that the total loss
for Counts 1 through 5 ($256,854.96) to calculate a total         attributable to defendant was $256,854.96 (the intended loss
intended loss figure for Counts 1 through 20 of $780,524.96.      calculated for Counts 1 through 5 minus the actual loss
                                                                  calculated for Counts 6 through 20).
  Based on this loss calculation, the probation office
recommended a total offense level of 20. U.S.S.G §2F1.1             Applying U.S.S.G. §2F1.1, the district court determined
calls for a base offense level of 6 for violations of 18 U.S.C.   that the base offense level was 6, and added 4 points as
§1347 and §1001. The PSR recommended a 10 level increase          recommended in the PSR because the offense involved more
because the intended loss totaled more than $500,000 but less     than minimal planning and the violation of a private trust.
than $800,000. U.S.S.G. §2F1.1(b)(1)(K). The PSR                  The district court added an 8 level increase because the
recommended a 2 level increase because the offense included       amount of loss it determined was attributable to defendant
more than minimal planning, and an additional 2 level             was above $200,000 and below $350,000. U.S.S.G.
increase because the abuse of a private trust facilitated the     §2F1.1(b)(1)(I). Thus, the district court assessed a total
offense. Thus the PSR recommended a base offense level of         offense level of 18, for which the applicable guideline range
6 plus a 14 level increase, for a total offense level of 20.      was 27 to 33 months. (Sentencing Tr. 86.) The district court
Based on the recommended total offense level of 20 and            sentenced defendant to 27 months of imprisonment and two
defendant’s criminal history category of I, the PSR               years supervised release on each count to be served
recommended a guideline range for imprisonment of 33 to 41        concurrently. (Sentencing Tr. 95.) Now defendant appeals
months.                                                           both his conviction and sentence as to all counts.

  D. Defendant’s Sentencing
  On August 2, 2002, the district court sentenced defendant
to 27 months. The district court did not order restitution.
(Sentencing, Tr., 37.) The district court adopted the PSR’s
No. 02-6013                  United States v. Raithatha      11    12   United States v. Raithatha                   No. 02-6013

III.        ANALYSIS                                                 Defendant argues there is insufficient evidence to sustain
                                                                   his conviction for Counts 1 and 4, defrauding or attempting
  A. SUFFICIENCY OF EVIDENCE                                       to defraud private health insurance companies. However,
                                                                   many staff members testified that defendant instructed them
       1.    Standard of Review                                    to bill office visits covered by private insurance under CPT
                                                                   codes 99213 or 99203, regardless of the CPT code entered by
  When evaluating a claim of insufficient evidence, a              the attending physician on the encounter form. The staff
reviewing court must determine “whether, after viewing the         members were aware that this “up-coding” scheme resulted in
evidence in the light most favorable to the prosecution, any       higher reimbursement from private insurance companies.
rational trier of fact could have found the essential elements     (Justice, Tr. 164.) After the FBI searched the McKee clinic
of the crime beyond a reasonable doubt.” United States v.          and defendant’s home and seized encounter forms, insurance
Harris, 293 F.3d 970, 974 (6th Cir. 2002) (citing Jackson v.       information, and records, staff members testified that the up-
Virginia, 443 U.S. 307, 319 (1979)(emphasis in original)). A       coding ceased. (Howard, Tr. 76-77.)
defendant claiming insufficiency of evidence bears a “very
heavy burden.” United States v. Vannerson, 786 F.2d 221,              In addition, staff members testified that defendant routinely
225 (6th Cir. 1986). “[C]ircumstantial evidence alone can          ordered tests unrelated to his patients’ conditions and
sustain a guilty verdict.” United States v. Ellerbee, 73 F.3d      supported the tests with false diagnoses. (Meadors, Tr. 5-10.)
105, 107 n.2 (6th Cir. 1996) (citation omitted). The evidence      Zeren, a nurse practitioner working at the McKee clinic,
need not remove every possible hypothesis except that of           testified that after she performed sports physicals on children
guilt. United States v. Williams, 195 F.3d 824, 826 (6th Cir.      at local schools and found no indication of upper-respiratory
1999) (citations omitted).                                         infections, defendant, who had not been present at the
                                                                   examinations, falsely diagnosed them as having upper
       2.    Health Care Fraud (Counts 1-5) – 18 U.S.C.            respiratory infections. (Zeren, Tr. 45-51.) Taking this
             §1347                                                 evidence in the light most favorable to the prosecution, a
                                                                   reasonable juror could have found defendant guilty of
  To convict a defendant of health care fraud under 18 U.S.C.      defrauding or attempting to defraud private insurance
§1347, the Government must demonstrate that the defendant:         companies, as charged in Counts 1 and 4.
(1) knowingly devised a scheme or artifice to defraud a health
care benefit program in connection with the delivery of or           Defendant argues there is insufficient evidence to sustain
payment for health care benefits, items, or services;              his conviction for Counts 2 and 5, defrauding
(2) executed or attempted to execute this scheme or artifice to    Medicare/Medicaid by causing patients to come into
defraud; and (3) acted with intent to defraud. (Jury Instruction   defendant’s clinics for medically unnecessary examinations
No. 12, July 19, 2001.) The defendant must have intended,          or treatments. However, physicians working for defendant
through some deception, “to induce another to part with            testified that defendant told them to bring Medicaid patients
property or to surrender some legal right.” United States v.       back for additional office visits, instead of giving them a
Frost, 125 F.3d 346, 354 (6th Cir. 1997) (cited in United          prescription with refills, so that Medicaid could be billed for
States v. DeSantis, 134 F.3d 760, 764 (6th Cir. 1998)).            additional visits. (Patel, Tr. 25-26.) Staff members testified
                                                                   that when business was slow, defendant solicited patients
                                                                   from the street and billed them as office visits. (Justice, Tr.
No. 02-6013                  United States v. Raithatha    13    14   United States v. Raithatha                   No. 02-6013

183.) Staff members testified that people would come into        tendency to influence, or is capable of influencing, the federal
the office for purposes unrelated to receiving medical care,     agency.” Id. at 361 (citations omitted).
such as paying debts to defendant, and “before they left, they
were a patient,” and billed as a patient. (Amon, Tr. 114.)         Defendant argues there is insufficient evidence to sustain
Taking this evidence in the light most favorable to the          his conviction for making false statements or causing false
prosecution, a reasonable juror could have found defendant       statements to be made to the DOL and the INS, regarding the
guilty of defrauding or attempting to defraud                    salaries of seven foreign physicians employed by MAHC.
Medicare/Medicaid, as charged in Counts 2 and 5.                 For each foreign physician hired, MAHC was required to file
                                                                 an LCA with the DOL and an I-129 form with the INS stating
   Defendant also argues there is insufficient evidence to       the employee’s prevailing wage salary. The evidence
sustain his conviction for Count 3, defrauding                   demonstrated that the submitted LCAs and I-129 forms
Medicare/Medicaid by including personal expenses in a cost       overstated the salary MAHC actually paid the foreign
report submitted to Medicare/Medicaid for the McKee Clinic       physicians. Defendant’s payroll manager testified that she
in 1997. The cost report included expenses for defendant’s       signed the LCAs and I-129 forms at defendant’s direction.
personal residence totaling $50,393.53. Though defendant         (Bowling, Tr. 13.)
did not sign the report, he was given an opportunity to review
it before it was submitted. (Lynn, Tr. 131-132.) When              In addition, several foreign physicians testified to
defendant purchased a TV and stereo system for his residence     defendant’s role in making contracts with the physicians, after
he instructed the salesman to issue the invoice to the McKee     the forms had been submitted to the DOL and the INS, that
Clinic, as if the items had been purchased by the clinic and     reduced the physician’s salary from that stated on the
not for defendant’s personal use. (Miller, Tr. 203; Ware,        submitted forms. (Dani, Tr. 37-39.) One physician testified
Tr.198.) Taking this evidence in the light most favorable to     that defendant threatened her with visa problems when she
the prosecution, a reasonable juror could have found that        questioned having to sign an amendment to her original
defendant intended to defraud Medicare/Medicaid by               contract (for $110,000/year) which reduced her salary to
including personal expenses on the cost report submitted to      $70,000/year. (Ravisankar, Tr. 6-9.) Taking this evidence in
Medicare/Medicaid.                                               the light most favorable to the prosecution, a reasonable juror
                                                                 could have found that defendant was guilty of intentionally
    3.   Making False Statements (Counts 6-20) –                 causing false statements to be made to the DOL and INS.
         18 U.S.C. §1001
                                                                   Defendant argues that his conviction on Counts 7 and 15,
   In order to establish a violation of 18 U.S.C. §1001, the     charging defendant with causing false statements to be made
Government must demonstrate that: (1) the defendant made         to the DOL and INS about one of the foreign physicians,
a statement; (2) the statement is false or fraudulent; (3) the   Dr. Patel, should be reversed. Defendant contends that the
statement is material; (4) the defendant made the statement      forms submitted by the government are forms which were
knowingly and willfully; and (5) the statement pertained to an   actually prepared and submitted for Dr. Divya Joshi, and not
activity within the jurisdiction of a federal agency. United     for Patel. With regard to defendant’s contention as to Counts
States v. Logan, 250 F.3d 350, 361 (6th Cir. 2001) (citations    7 and 15, the record is abundantly clear that such false
omitted). A statement is “material” if it “has the natural       statements were made. Defendant’s contention that certain
No. 02-6013                  United States v. Raithatha     15    16       United States v. Raithatha                          No. 02-6013

forms referring to another physician were submitted               clarified that “intended loss” means “the pecuniary harm that
mistakenly for Patel is therefore harmless error.                 was intended to result from the offense” and “includes
                                                                  intended pecuniary harm that would have been impossible or
  B. AMOUNT OF LOSS ATTRIBUTED                             TO     unlikely to occur.” §2B1.1, comment. n.3(A)(ii) (emphasis
     DEFENDANT FOR SENTENCING                                     added).1
    1.   Standard of Review                                            2.     Loss Calculation
  A court of appeals reviews de novo a sentencing court’s            In this case, the only amounts of loss attributed to
interpretation of the Sentencing Guidelines, but must uphold      defendant, and thus at issue on appeal, are $206,461.43 for
a sentencing court’s factual findings unless “clearly             Counts 1 and 4 and $50,393.53 for Count 3. Defendant
erroneous.” United States v. Ware, 282 F.3d 902, 907 (6th         argues the loss calculation for Counts 1 and 4 adopted by the
Cir. 2002). A factual finding is “clearly erroneous” when         district court is based on speculation. Defendant argues that
“the reviewing court on the entire evidence is left with the      there is no evidence that he ordered “all” encounter forms to
definite and firm conviction that a mistake has been              be up-coded, that all of the encounter forms in the
committed.” Id. (citing United States v. U.S. Gypsum Co.,         Government’s sample were not up-coded, and that there was
333 U.S. 364, 395 (1948)).                                        never an order to up-code new patient forms or to up-code
                                                                  defendant’s encounter forms and that therefore neither of
  A sentencing court “need not determine the amount of loss       these should have been included in the loss calculation.
with precision.” United States v. Kohlbach, 38 F.3d 832, 835      Defendant argues the intended loss calculation as to Count 3
(6th Cir. 1994) (citations omitted). A sentencing court “need     is clearly erroneous because it was allegedly impossible for
only make a reasonable estimate, given the available              him to inflict the amount of loss for which the district court
information.” United States v. Guthrie, 144 F.3d 1006, 1011       held him accountable.
(6th Cir. 1998). A defendant who challenges such a
computation must carry the burden of demonstrating “that the         Unlike the contentions of defendant as to evidence
court’s evaluation of the loss was not only inexact but outside   regarding his conviction, his contentions regarding Counts 1,
the universe of acceptable computations.” United States v.        4, and 3 relate only to sentencing procedures. Defendant was
Tardiff, 969 F.2d 1283, 1288 (1st Cir. 1992) (cited in            found guilty of the charges in these counts and our inquiry
Kohlbach, 38 F.3d at 841).                                        goes only to the amount of loss for which defendant may be
                                                                  held accountable.
  For sentencing purposes, a defendant will be held
accountable for the actual or intended loss to a victim,
whichever is greater, or a combination thereof. United States
v. Wade, 266 F.3d 574, 586 (6th Cir. 2001). See also
U.S.S.G. §2F1.1, comment. n.7. “[S]o long as the intended              1
                                                                        The 200 1 am endments consolidated the Guid elines for Theft,
loss is supported by a preponderance of the evidence, the         §2B1.1, Property Destruction, §2B1.3 and Fraud, §2F1.1, into one
district court may use it in reaching the appropriate offense     guideline, §2B 1.1 (Theft, Property Destruction, and Fraud). The revised
level.” United States v. Logan, 250 F.3d 350, 371 (6th Cir.       §2B 1.1 guideline, though not app licable at the time o f defendant’s
2001). In 2001, amendments to the Sentencing Guidelines           sentencing, clarified the meaning o f “intende d loss” referred to in § 2F1 .1
                                                                  and thus should be taken into co nsideration b y this Court.
No. 02-6013                  United States v. Raithatha    17    18    United States v. Raithatha                   No. 02-6013

  As to the loss calculation regarding Counts 1 and 4,              With regards to Count 3, defendant argues that no loss
defendant contends there was no evidence that any order was      should be attributed to him because he contends that it was
given to up-code new patient CPT codes (the “9920-" series).     impossible for him to have caused Medicare/Medicaid any
The record shows otherwise:                                      loss by including the $50,393.53 in personal expenses on the
                                                                 cost report because his clinic had already reached its
  Q. “Okay. Now, did he also give you orders to up-code          maximum reimbursement rate.             (Appellant, Br. 62.)
     a 99201 code to a higher-paying code?”                      However, loss can be attributed to a defendant based on a
  A. “We was [sic] told to up-code any office visit like         finding of actual loss or intended loss, and a finding of
     that.”                                                      intended loss is not limited to those losses possible to inflict,
                                                                 or those gains possible for a defendant to achieve. U.S.S.G.
  Q. “Okay. All Right. So he told you to code a 99201 up to      §2B1.1, comment. n.3(A)(ii).
     the highest level that you could do, 99203?”
  A. “Yes.”                                                         There was sufficient evidence to find that defendant
                                                                 intended to mislead Medicare/Medicaid as to the $50,393.53
(Lainhart, Tr. 40-41.) Defendant suggests that his encounter     in personal expenses included on the cost report. It is unclear
forms were erroneously included in the loss calculation.         what difference defendant anticipated the inclusion of his
However, the Government stated unequivocally at                  personal expenses would make in the amount defendant’s
defendant’s sentencing hearing that “Dr. Raithatha’s forms       clinic was reimbursed for 1997, or in future reimbursement
were not counted in the encounter forms for the 1999 figures     rates. However, where a defendant seeks to fraudulently pass
that were given to the probation office.” (Grise, Sentencing,    off an amount of personal expenses as legitimate patient-
Tr. 74.)                                                         related expenses, as in the present case, logic dictates that a
                                                                 defendant be held accountable for intending to cause the
  In addition, the selection of the ten most frequently billed   amount of loss about which he intentionally lied. Therefore,
insurance companies to provide figures upon which to             it was not clearly erroneous for the district court to hold
compute average pay differences between CPT code                 defendant accountable for an intended loss of $50,393.53 as
categories was reasonable.         Furthermore, defendant’s      to Count 3.
argument that all of the encounter forms in the Government’s
sample were not up-coded goes to actual loss, and therefore      IV. CONCLUSION
does not disturb the district court’s calculation of intended
loss. Finally, the use of the 1999 intended loss amount to         For the above reasons, the conviction and sentence of the
calculate the lesser intended loss amounts for 1998 and 1997     district court is AFFIRMED.
was reasonable. Therefore, it was not clearly erroneous for
the district court to hold defendant accountable for an
intended loss of $206,461.43 as to 1 and 4. Defendant has
failed to demonstrate that the loss calculation as to Counts 1
and 4 was “outside the universe of acceptable computations.”
Kohlbach, 38 F.3d at 841.
