           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                       2        United States v. Raithatha                      No. 02-6013
        ELECTRONIC CITATION: 2004 FED App. 0328A (6th Cir.)
                    File Name: 04a0328a.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, -
                                    -                                                        AMENDED 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: September 29, 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.1
SEYMOUR & PEASE, Cincinnati, Ohio, for Appellant.
                                                                              1
                                                                              On M ay 19, 2004, this Court issued an Opinion affirming
    *
                                                                         Defendant’s conviction an d sentence. Subsequently, on June 2, 2004,
     The Honorab le John Feikens, United States District Judge for the   Defendant filed a Petition for P anel R ehearing. Now, in accordance with
Eastern District of Michigan, sitting by designation.                    Rule 40(a)(4) of the Federal Rules of Appellate Procedure, this Court

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

II. FACTUAL BACKGROUND                                                  to the most expensive, 99205. (Cost. Tr. 53.) One type of
                                                                        “up-coding” scheme occurs where the CPT numbers are
  A. Defendant’s Medical Practice                                       changed on the encounter forms and/or billing sheets sent to
                                                                        the insurance companies so that it appears as if the clinic
   Defendant is a physician who owned and operated two                  performed more expensive services than were actually
clinics in 1997, the McKee Medical Center in McKee,                     provided.
Kentucky, and the Richmond Medical Center in Richmond,
Kentucky. In 1997, defendant sold the clinics to Mountain                  In 1998, defendant helped recruit seven foreign physicians
After Hours Clinic Corporation (“MAHC”). As part of the                 for MAHC. Defendant recruited them under a program that
sale, defendant became an employee of MAHC and was                      allows foreign doctors to stay in the United States if they
issued one-sixth of the shares of stock in MAHC. By 1998,               secure employment in medically under-served areas. Under
MAHC owned four other clinics in Hazard, Nicholson,                     this program, MAHC had to meet several requirements
London, and Somerset, Kentucky.                                         including submitting a Labor Condition Application (“LCA”)
                                                                        to the DOL, and a Petition for Nonimmigrant Worker (an “I-
  During 1997, when defendant owned the McKee and                       129 form”) to the INS, setting forth information such as the
Richmond clinics, the billing for both clinics was done at the          physician’s wage, for each physician hired. MAHC was
McKee clinic. Tammy Spurlock, defendant’s office manager,               required to pay each foreign doctor no less than the prevailing
testified that she, Beverly Lainhart, and Renee Hudson did              wage for the area – the average wage paid to physicians in the
billing work. Between January and December of 1998, all                 area for comparable work.
billing for the six MAHC clinics was performed by an outside
billing service, Office Management Services (“OMS”). In                   The McKee clinic was designated a “rural health clinic” by
April of 1999, OMS stopped providing billing services for               Medicare. As a rural health clinic, the McKee clinic was
MAHC, and the McKee clinic began doing billing for all of               reimbursed a flat rate for each Medicare/Medicaid patient it
the clinics.                                                            saw, regardless of the treatment rendered. The McKee clinic
                                                                        was required to submit to Medicare a yearly “cost report” – a
  To bill its services, a medical clinic issues an invoice to the       summation of the costs incurred by the clinic in treating
patient’s insurer that contains a current procedure terminology         patients. Once a clinic reached the maximum reimbursement
(“CPT”) code. The CPT code indicates to the insurer the                 rate set by Medicare/Medicaid, additional expenses on the
level of service rendered by the clinic and the amount of               cost report were not reimbursed during that year. However,
reimbursement owed to the clinic. When a medical                        reported costs were used to calculate future
practitioner sees a patient, the practitioner records a CPT code        Medicare/Medicaid reimbursement rates per patient. (Shreve,
on an “encounter form” to record the services performed. The            Tr. 100.)
CPT codes for established patients range from the least
expensive, 99211, to the most expensive, 99215. The CPT                    In May 1998, a cost report was prepared for the McKee
codes for new patients range from the least expensive, 99201,           clinic for the period of October 1, 1996 through
                                                                        September 30, 1997, which included $50,393.53 of
                                                                        defendant’s personal expenses. Defendant alleges that when
                                                                        defendant operated as a sole proprietor of the Richmond and
grants Defendant’s Petition for Panel Rehearing and makes a final       McKee clinics, prior to their purchase by MAHC, defendant
disposition of this case without reargument in this Amended O pinion.
No. 02-6013                   United States v. Raithatha       5    6      United States v. Raithatha                 No. 02-6013

“often used business checks to pay personal expenses and              Count 3 charged Defendant with defrauding
would, at the end of the year, separate the personal and            Medicare/Medicaid, in violation of 18 U.S.C. §1347, by
business expenses in order to prepare the corporation’s tax         submitting a cost report for 1997 that included personal
returns.” (Def. Br. 113.) Defendant contends that his               expenses unrelated to patient care. Included in those
personal expenses were inadvertently included on the cost           expenses was money which was actually spent to furnish and
report.                                                             complete Defendant’s home. (Indictment, 6-7.)
  B. Prosecution of Defendant                                         Counts 6 through 13 charged Defendant with submitting
                                                                    false statements to the DOL, in violation of 18 U.S.C. §1001,
  On July 24, 2000, a twenty-count indictment was filed             by submitting LCAs that misstated the salaries of seven
against Defendant. Counts 1 and 4 charged Defendant with            foreign physicians employed by MAHC. The indictment
defrauding private insurance companies in 1997 (Count 1)            charged defendant as “the person in charge of recruiting
and 1998 and 1999 (Count 4), in violation of 18 U.S.C.              physicians for the Corporation.” (Indictment, 12.) The
§1347. Counts 1 and 4 charged Defendant with instructing            indictment alleged that the “forms falsely overstated the
billing staff to: (a) raise the CPT codes on invoices when the      salary to be paid to the physicians, in order to disguise the
physician had reported a lower level of service; (b) submit         fact that the physicians were being paid less than the required
invoices to insurance companies for services performed by           amount.” (Indictment, 13.)
other physicians, as if Defendant had performed them; and
(c) submit claims with a diagnosis listing an illness, when the       Counts 14 through 20 charged Defendant with submitting
patient did not have an illness. (Indictment, 2-3, 8-10.)           false statements to the INS, in violation of 18 U.S.C. §1001,
                                                                    by submitting I-129 forms that misstated the salaries of the
   Counts 2 and 5 charged Defendant with scheming to                seven foreign physicians identified in Counts 6 through 13.
defraud Medicare/Medicaid in 1997 (Count 2) and 1998 and            (Indictment, 15-16.)
1999 (Count 5), in violation of 18 U.S.C. §1347. (Indictment,
4-6, 10-12.) Counts 2 and 5 charged Defendant with causing              Defendant pleaded not guilty to all counts.
patients to present themselves for medically-unnecessary
visits by: (a) refusing to authorize refills on prescriptions and     Trial began on July 2, 2001, before Chief Judge Karl S.
preventing employees from authorizing refills of                    Forester. Defendant moved for a judgment of acquittal. The
prescriptions; (b) making unannounced and unrequested home          district court denied the motion. On July 19, 2001, the jury
visits to patients; (c) approaching people on the street and        returned a guilty verdict as to all counts (Counts 1 through
ushering them into the clinic for unscheduled examinations;         20). Defendant timely moved for a new trial. On
(d) examining people who had come into the clinic for non-          September 12, 2001, the district court denied the motion for
medical reasons, such as to pay debts owed to Defendant;            a new trial. This appeal followed, both as to Defendant’s
(e) ordering medical tests not related to patients’ conditions;     conviction and sentence as to all counts.
(f) falsely representing that other physician employees had
specialties so that patients would be examined an additional
time by a “specialist”; and (g) refusing to give test results
until an additional appointment was kept. (Indictment, 4-6,
10-12.)
No. 02-6013                  United States v. Raithatha       7    8    United States v. Raithatha                 No. 02-6013

  C. Presentence Investigation Report (PSR) Loss                   insurance companies would have suffered had encounter
     Calculation                                                   forms marked with a 99211 been up-coded and billed under
                                                                   a 99213 CPT code. The probation office determined the
   The probation office determined that it would be difficult      payment differences between the following additional CPT
to discern an actual loss figure for Counts 1 and 4, but that an   categories for each of the ten insurance companies: 99212 to
intended loss figure could be calculated “for the up-coding        99213, 99201 to 99203, and 99202 to 99203.
conduct which occurred in 1999.” Therefore, the PSR
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
No. 02-6013                  United States v. Raithatha      9    10   United States v. Raithatha                   No. 02-6013

two clinics in 1997, the probation office calculated an           recommended a guideline range for imprisonment of 33 to 41
intended loss for 1997 by multiplying the intended loss figure    months.
for 1999 by 33%. (PSR, ¶58.) Finally, the probation office
added together its intended loss calculations for 1999, 1998,       D. Defendant’s Sentencing
and 1997 to arrive at a total loss calculation of $206,461.53
for Counts 1 and 4. (PSR, ¶59.)                                     On August 2, 2002, the district court sentenced Defendant
                                                                  to 27 months. The district court did not order restitution.
  For Counts 6 through 20, the probation office calculated an     (Sentencing, Tr., 37.) The district court adopted the PSR’s
actual loss figure of $216,833.94. (PSR, ¶73.) This was           calculation of an intended loss of $206,461.43 for Counts 1
based on the amount of pay the foreign physicians were            and 4, and an intended loss of $50,393.53 for Count 3, for a
entitled to but did not receive during their employment with      total intended loss of $256,854.96 for Counts 1 through 5.
MAHC. (PSR, ¶73.) For Counts 6 through 20, the probation
office calculated an intended loss of $523,670.00. This figure       With regards to Counts 6 through 20, the district court
equals the difference between the wage reported to the United     adopted the PSR’s actual loss calculation of $216,833.94,
States minus the contract amount, multiplied by the number        after determining that the intended loss calculation relating to
of years of the contract, for each foreign physician. This        Counts 6 through 20 was too speculative. (Sentencing, Tr.
intended loss amount represents the amount of money per           77-80.) However, because the court determined that the
contract that MAHC stood to gain by illegally paying its          conduct charged in Counts 6 through 20 fell outside the
foreign physicians below the prevailing wage. The probation       heartland of cases that U.S.S.G. §2F1.1 (the applicable
office used the intended loss calculation for Counts 6 through    Sentencing Guideline) was designed to address, the court
20 ($523,670.00), because it was greater than the calculated      decided not to hold Defendant accountable for the actual loss
actual loss, and combined it with the intended loss calculation   caused by his alleged conduct in Counts 6 through 20.
for Counts 1 through 5 ($256,854.96) to calculate a total         Accordingly, the district court determined that the total loss
intended loss figure for Counts 1 through 20 of $780,524.96.      attributable to Defendant was $256,854.96 (the intended loss
                                                                  calculated for Counts 1 through 5 minus the actual loss
  Based on this loss calculation, the probation office            calculated for Counts 6 through 20).
recommended a total offense level of 20. U.S.S.G §2F1.1
calls for a base offense level of 6 for violations of 18 U.S.C.     Applying U.S.S.G. §2F1.1, the district court determined
§1347 and §1001. The PSR recommended a 10 level increase          that the base offense level was 6, and added 4 points as
because the intended loss totaled more than $500,000 but less     recommended in the PSR because the offense involved more
than $800,000. U.S.S.G. §2F1.1(b)(1)(K). The PSR                  than minimal planning and the violation of a private trust.
recommended a 2 level increase because the offense included       The district court added an 8 level increase because the
more than minimal planning, and an additional 2 level             amount of loss it determined was attributable to Defendant
increase because the abuse of a private trust facilitated the     was above $200,000 and below $350,000. U.S.S.G.
offense. Thus the PSR recommended a base offense level of         §2F1.1(b)(1)(I). Thus, the district court assessed a total
6 plus a 14 level increase, for a total offense level of 20.      offense level of 18, for which the applicable guideline range
Based on the recommended total offense level of 20 and            was 27 to 33 months. (Sentencing Tr. 86.) The district court
Defendant’s criminal history category of I, the PSR               sentenced Defendant to 27 months of imprisonment and two
                                                                  years supervised release on each count to be served
No. 02-6013                  United States v. Raithatha     11    12   United States v. Raithatha                   No. 02-6013

concurrently. (Sentencing Tr. 95.) Now Defendant appeals          125 F.3d 346, 354 (6th Cir. 1997) (cited in US v. DeSantis,
both his conviction and sentence as to all counts.                134 F.3d 760, 764 (6th Cir. 1998)).
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." U.S. v. Harris, 293      and Defendant’s home and seized encounter forms, insurance
F.3d 970, 974 (6th Cir. 2002) (citing Jackson v. Virginia, 443    information, and records, staff members testified that the up-
U.S. 307, 319 (1979)(emphasis in original)). A defendant          coding ceased. (Howard, Tr. 76-77.)
claiming insufficiency of evidence bears a “very heavy
burden.” US v. Vannerson, 786 F.2d 221, 225 (6th Cir.                In addition, staff members testified that Defendant routinely
1986). “[C]ircumstantial evidence alone can sustain a guilty      ordered tests unrelated to his patients’ conditions and
verdict.” US v. Ellerbee, 73 F.3d 105, 107 n.2 (6th Cir.          supported the tests with false diagnoses. (Meadors, Tr. 5-10.)
1996) (citation omitted). The evidence need not remove            Zeren, a nurse practitioner working at the McKee clinic,
every possible hypothesis except that of guilt. US v.             testified that after she performed sports physicals on children
Williams, 195 F.3d 824, 826 (6th Cir. 1999) (citations            at local schools and found no indication of upper-respiratory
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              Defendant’s clinics for medically unnecessary examinations
Instruction No. 12, July 19, 2001.) The defendant must have       or treatments. However, physicians working for Defendant
intended, through some deception, “to induce another to part      testified that Defendant told them to bring Medicaid patients
with property or to surrender some legal right.” US v. Frost,     back for additional office visits, instead of giving them a
                                                                  prescription with refills, so that Medicaid could be billed for
No. 02-6013                         United States v. Raithatha           13     14    United States v. Raithatha                No. 02-6013

additional visits. (Patel, Tr. 25-26.) Staff members testified                         3.    Making False Statements (Counts 6-20) –
that when business was slow, Defendant solicited patients                                    18 U.S.C. §1001
from the street and billed them as office visits. (Justice, Tr.
183.) Staff members testified that people would come into                          In order to establish a violation of 18 U.S.C. §1001, the
the office for purposes unrelated to receiving medical care,                    Government must demonstrate that: (1) the defendant made
such as paying debts to Defendant, and “before they left, they                  a statement; (2) the statement is false or fraudulent; (3) the
were a patient,” and billed as a patient. (Amon, Tr. 114.)                      statement is material; (4) the defendant made the statement
Taking this evidence in the light most favorable to the                         knowingly and willfully; and (5) the statement pertained to an
prosecution, a reasonable juror could have found Defendant                      activity within the jurisdiction of a federal agency. US v.
guilty of defrauding or attempting to defraud                                   Logan, 250 F.3d 350, 361 (6th Cir. 2001) (citations omitted).
Medicare/Medicaid, as charged in Counts 2 and 5.                                A statement is “material” if it “has the natural tendency to
                                                                                influence, or is capable of influencing, the federal agency.”
   Defendant also argues there is insufficient evidence to                      Id. at 361 (citations omitted).
sustain his conviction for Count 3, defrauding
Medicare/Medicaid by including personal expenses in a cost                        Defendant argues there is insufficient evidence to sustain
report submitted to Medicare/Medicaid for the McKee Clinic                      his conviction for making false statements or causing false
in 1997. The cost report included expenses for Defendant’s                      statements to be made to the DOL and the INS, regarding the
personal residence totaling $50,393.53. Though Defendant                        salaries of seven foreign physicians employed by MAHC.
did not sign the report, he was given an opportunity to review                  For each foreign physician hired, MAHC was required to file
it before it was submitted. (Lynn, Tr. 131-132.) When                           an LCA with the DOL and an I-129 form with the INS stating
Defendant purchased a TV and stereo system for his residence                    the employee’s prevailing wage salary. The evidence
he instructed the salesman to issue the invoice to the McKee                    demonstrated that the submitted LCAs and I-129 forms
Clinic, as if the items had been purchased by the clinic and                    overstated the salary MAHC actually paid the foreign
not for Defendant’s personal use. (Miller, Tr. 203; Ware,                       physicians. Defendant’s payroll manager testified that she
Tr.198.) Taking this evidence in the light most favorable to                    signed the LCAs and I-129 forms at Defendant’s direction.
the prosecution, a reasonable juror could have found that                       (Bowling, Tr. 13.)
Defendant intended to defraud Medicare/Medicaid by
including personal expenses on the cost report submitted to                       In addition, several foreign physicians testified to
Medicare/Medicaid.2                                                             Defendant’s role in making contracts with the physicians,
                                                                                after the forms had been submitted to the DOL and the INS,
                                                                                that reduced the physician’s salary from that stated on the
    2
                                                                                submitted forms. (Dani, Tr. 37-39.) One physician testified
       In Defendant’s Petition for Panel Rehearing, Defendant                   that Defendant threatened her with visa problems when she
inappropriately attempts to reargue the sufficiency of the evidence             questioned having to sign an amendment to her original
underlying his convictions. This Court adequately addressed and rejected
Defendant’s arguments regarding the sufficiency of the evidence in its
                                                                                contract (for $110,000/year) which reduced her salary to
Opinion, by summarizing the evidence against Defendant and citing, by           $70,000/year. (Ravisankar, Tr. 6-9.) Taking this evidence in
way of example, to the testimony of a few of the many witnesses who
provided testimony supporting Defendant’s convictions. It is clear that
after taking all of the evidence in the record in the light most favorable to
the prosecutio n, a reasonable juror co uld have found Defendant guilty of      Counts 1 through 5.
No. 02-6013                          United States v. Raithatha            15     16    United States v. Raithatha                         No. 02-6013

the light most favorable to the prosecution, a reasonable juror                        B. AMOUNT OF LOSS ATTRIBUTED TO
could have found that defendant was guilty of intentionally                               DEFENDANT FOR SENTENCING
causing false statements to be made to the DOL and INS.
                                                                                          1.   Standard of Review
  Defendant argues that his conviction on Counts 7 and 15,
charging defendant with causing false statements to be made                          A court of appeals reviews de novo a sentencing court’s
to the DOL and INS about one of the foreign physicians, Dr.                       interpretation of the Sentencing Guidelines, but must uphold
Vivek Patel, should be reversed. Defendant contends that the                      a sentencing court’s factual findings unless “clearly
forms submitted by the government are forms which were                            erroneous.” US v. Ware, 282 F.3d 902, 907 (6th Cir. 2002).
actually prepared and submitted for Dr. Divya Joshi, and not                      A factual finding is “clearly erroneous” when “the reviewing
for Patel. With regard to defendant’s contention as to Counts                     court on the entire evidence is left with the definite and firm
7 and 15, the record is abundantly clear that such false                          conviction that a mistake has been committed.” Id. (citing US
statements were made. Defendant’s contention that certain                         v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
forms referring to another physician were submitted
mistakenly for Patel is therefore harmless error.3                                  A sentencing court “need not determine the amount of loss
                                                                                  with precision.” US v. Kohlbach, 38 F.3d 832, 835 (6th Cir.
                                                                                  1994) (citations omitted). A sentencing court “need only
    3                                                                             make a reasonable estimate, given the available information.”
      In Defendant’s Petition for Panel Rehearing, Defendant again argues         US v. Guthrie, 144 F.3d 1006, 1011 (6th Cir. 1998). A
that Defend ant’s convictions as to C ounts 7 and 15 should be reversed,
and asserts that “the Government cannot point to any forms (i.e. any              defendant who challenges such a computation must carry the
alleged ly false statem ents) actually submitted as to D r. Patel.” (De f. Pet.   burden of demonstrating “that the court’s evaluation of the
Panel Rehearing, 12.) Defendant is mistaken. The record contains an               loss was not only inexact but outside the universe of
LCA and an I-129 form for each of the 7 physicians, including Patel,              acceptable computations.” US v. Tardiff, 969 F.2d 1283, 1288
about whom Defendant was convicted of causing false statements to be              (1st Cir. 1992) (cited in Kohlbach, 38 F.3d at 841).
mad e (for a total of 14 statem ents).
     The LCA for Patel, which corresponds to Count 8, is dated July 14,
1998 and appears as the first page of Government Exhibit 8A. (J.A.                  For sentencing purposes, a defendant will be held
194 6.) The I-129 form for Patel, which corresponds to Count 15, is dated         accountable for the actual or intended loss to a victim,
July 14, 1998 and appears (somewhat confusingly) as the next three pages
of Governme nt Exhibit 8A. (J.A. 1947-49.) The LCA and I-129 form for
Dr. Joshi, which correspond to Count 6 and C ount 1 4, are dated March
20, 1998 and appear respectively as Government Exhibit 6A and 14A.                Count 7), the LCA for Joshi. Thus, it appears that a single document was
Thus, the record suppo rts Defenda nt’s conviction for causing false              used erroneously by the Government as the basis to convict Defendant for
statements to be mad e regarding both Patel and Joshi, and D efendant’s           both Counts 6 and 7.
argum ent with respect to Co unt 15 has no merit.                                     However, as this Court noted in our Opinion, any error with regard
     W hile the record supports Defendant’s conviction as to making two           to Defendant’s conviction as to Count 7 is “harmless.” The district court
false statements regarding Patel, Defendant was actually convicted of             did not attribute any loss to Defendant as to Counts 6 through 20.
making three false statements regarding Patel. In addition to C ounts 8           (Sentencing Tr. 84-86, J.A. 1096-98.) The district cour t sentenced
and 15, Defendant was also convicted of Count 7, for allegedly submitting         Defendant to 27 months on each count to be served conc urrently.
a second false LCA regarding Patel. Defendant’s conviction as to Count            (Sentencing Tr. 94-96, J.A. 1100 -1101.)        Therefore, Defendant’s
7 may ha ve be en in error, be cause the LCA subm itted as Government             conviction as to Count 7 did no t affect Defendant’s sentence, an d this
Exhibit 7A (for Count 7), allegedly the second LCA for Patel, appears to          Court properly considered any error with regard to Defendant’s
be an exact copy of the LCA submitted as Government Exhibit 6A (for               conviction fo r Count 7 to be harmless.
No. 02-6013                        United States v. Raithatha           17     18   United States v. Raithatha                 No. 02-6013

whichever is greater, or a combination thereof. US v. Wade,                       Unlike the contentions of Defendant as to evidence
266 F.3d 574, 586 (6th Cir. 2001). See also U.S.S.G. §2F1.1,                   regarding his conviction, his contentions regarding Counts 1,
comment. n.7. “[S]o long as the intended loss is supported by                  4, and 3 relate only to sentencing procedures. Defendant was
a preponderance of the evidence, the district court may use it                 found guilty of the charges in these counts and our inquiry
in reaching the appropriate offense level.” US v. Logan, 250                   goes only to the amount of loss for which Defendant may be
F.3d 350, 371 (6th Cir. 2001). In 2001, amendments to the                      held accountable.
Sentencing Guidelines clarified that “intended loss” means
“the pecuniary harm that was intended to result from the                         As to the loss calculation regarding Counts 1 and 4,
offense” and “includes intended pecuniary harm that would                      Defendant contends there was no evidence that any order was
have been impossible or unlikely to occur.” §2B1.1,                            given to up-code new patient CPT codes (the “9920-" series).
comment. n.3(A)(ii) (emphasis added).4                                         The record shows otherwise:

        2.    Loss Calculation                                                   Q. “Okay. Now, did he also give you orders to up-code
                                                                                    a 99201 code to a higher-paying code?”
   In this case, the only amounts of loss attributed to                          A. “We was [sic] told to up-code any office visit like
Defendant, and thus at issue on appeal, are $206,461.43 for                         that.”
Counts 1 and 4 and $50,393.53 for Count 3. Defendant
argues the loss calculation for Counts 1 and 4 adopted by the                    Q. “Okay. All Right. So he told you to code a 99201 up to
district court is based on speculation. Defendant argues that                       the highest level that you could do, 99203?”
there is no evidence that he ordered “all” encounter forms to                    A. “Yes.”
be up-coded, that all of the encounter forms in the
Government’s sample were not up-coded, and that there was                      (Lainhart, Tr. 40-41.) Defendant suggests that his encounter
never an order to up-code new patient forms or to up-code                      forms were erroneously included in the loss calculation.
defendant’s encounter forms and that therefore neither of                      However, the Government stated unequivocally at
these should have been included in the loss calculation.                       Defendant’s sentencing hearing that “Dr. Raithatha’s forms
Defendant argues the intended loss calculation as to Count 3                   were not counted in the encounter forms for the 1999 figures
is clearly erroneous because it was allegedly impossible for                   that were given to the probation office.” (Grise, Sentencing,
him to inflict the amount of loss for which the district court                 Tr. 74.)
held him accountable.
                                                                                 In addition, the selection of the ten most frequently billed
                                                                               insurance companies to provide figures upon which to
                                                                               compute average pay differences between CPT code
    4                                                                          categories was reasonable.         Furthermore, Defendant’s
      This Court’s reference to the 2001 amendm ents to the Sentencing         argument that all of the encounter forms in the Government’s
Guidelines are inconseq uential to this case because removing $50,393.53
from the loss calculatio n – an intended loss amo unt attribu ted to
                                                                               sample were not up-coded goes to actual loss, and therefore
Defendant by the district court as to Count 3 that Defendant argues was        does not disturb the district court’s calculation of intended
impossible for him to inflict – would not have affected D efendant’s           loss. Finally, the use of the 1999 intended loss amount to
offense level. Remo ving that amo unt would have resulted in a loss            calculate the lesser intended loss amounts for 1998 and 1997
amount of $206,46 1.43, and the same 8 level increase in effect prior to the   was reasonable. Therefore, it was not clearly erroneous for
200 1 am endments.
No. 02-6013                         United States v. Raithatha           19     20    United States v. Raithatha              No. 02-6013

the district court to hold Defendant accountable for an                         Defendant accountable for an intended loss of $50,393.53 as
intended loss of $206,461.43 as to 1 and 4. Defendant has                       to Count 3.
failed to demonstrate that the loss calculation as to Counts 1
and 4 was “outside the universe of acceptable computations.”                    IV.    CONCLUSION
Kohlbach, 38 F.3d at 841.
                                                                                  For the above reasons, the conviction and sentence of the
   With regards to Count 3, Defendant argues that no loss                       district court is AFFIRMED.
should be attributed to him because he contends that it was
impossible for him to have caused Medicare/Medicaid any
loss by including the $50,393.53 in personal expenses on the
cost report because his clinic had already reached its
maximum reimbursement rate.             (Appellant, Br. 62.)
However, loss can be attributed to a Defendant based on a
finding of actual loss or intended loss, and a finding of
intended loss is not limited to those losses possible to inflict,
or those gains possible for a Defendant to achieve. U.S.S.G.
§2B1.1, comment. n.3(A)(ii).5
   There was sufficient evidence to find that Defendant
intended to mislead Medicare/Medicaid as to the $50,393.53
in personal expenses included on the cost report. It is unclear
what difference Defendant anticipated the inclusion of his
personal expenses would make in the amount Defendant’s
clinic was reimbursed for 1997, or in future reimbursement
rates. However, where a defendant seeks to fraudulently pass
off an amount of personal expenses as legitimate patient-
related expenses, as in the present case, logic dictates that a
defendant be held accountable for intending to cause the
amount of loss about which he intentionally lied. Therefore,
it was not clearly erroneous for the district court to hold


    5
      As noted above, whether it was “possible” or “impossible” for
Defendant to inflict a loss of $50,393.53 as to Count 3 is of no
consequence. However, there is evidence in the record that the inclusion
of Defendant’s personal expenses on the co st repo rt, even after the
maximum reimbursement rate had been reached for the clinic, would have
resulted in an actual loss for M edica re/M edica id by way of an increase in
future rates of reimbursem ent. (See e.g. Shreve, Tr. 100, J.A. 580;
Sco ggins, T r. 173 , J.A. 611.)
