United States v. Michael A. Rosin , 263 F. App'x 16 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JAN 16, 2008
No. 06-15538
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 05-00143-CR-T-24-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL A. ROSIN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 16, 2008)
Before BLACK, HULL and FAY, Circuit Judges.
PER CURIAM:
Appellant Michael Rosin, a former dermatologist, once operated a lucrative
dermatology practice in Sarasota, Florida. In 2004, his long-time office manager
filed a qui tam action, contending Rosin had defrauded the government by
performing hundreds of unnecessary surgeries on elderly Medicare patients.
Following a government investigation, Rosin was indicted on 35 counts of health
care fraud in violation of 18 U.S.C. § 1347, and 35 counts of making false
statements in a health care matter in violation of 18 U.S.C. § 1035. Following a
17-day jury trial, Rosin was convicted on all counts and sentenced to 264 months’
incarceration, restitution in the amount of $3,697,225.38, and forfeiture in the
amount of $3,697,225.38.
Rosin appeals his conviction and sentence on myriad grounds, contending
his trial was tainted by improper evidence, prejudicial comments by the judge and
prosecutor, and misleading jury instructions. Rosin also challenges the
substantive and procedural reasonableness of his sentence and the legality of the
court’s forfeiture order. Having reviewed the record, we find Rosin’s challenges
to be largely without foundation. The trial itself was fundamentally fair, and
Rosin’s sentence was reasonable in all respects. Therefore, we affirm.
2
I. BACKGROUND
From 1983 to 2004, Rosin was the owner and sole physician of a
dermatology clinic and laboratory in Sarasota, Florida. He employed an office
manager and lab technicians to assist him in his clinical work.
Rosin was trained to perform a specialized form of dermatological surgery
called Mohs surgery. The procedure is designed to minimize scarring during the
removal of certain types of skin cancer, and is performed in one or more stages.
During each stage, the surgeon removes a thin layer of skin and examines it under
a microscope, checking the borders for malignancy and mapping the location of
any cancer. If a doctor does not see any malignancy, or determines he has
removed the outer edge of the malignancy, he stops cutting or proceeds to another
section of the skin where the cancer is located. The goal of surgery is to remove
all malignant tissue while minimizing the removal of healthy tissue. The surgery
is often performed in only one or two stages, but sometimes requires four or more
stages to ensure complete removal of the cancer. Due to the time and expertise the
surgery requires, it is costly and not appropriate for all patients.
Approximately 95% of Rosin’s patients were elderly Medicare recipients.
The federal Medicare program reimburses surgeons for Mohs surgeries at a higher
rate than it reimburses for other types of skin cancer removal. The more stages the
3
surgery requires, the higher the Medicaid reimbursement rate. From September
1998 through May 2005, Rosin performed 5,980 skin biopsies. Of these, he
reported that 99.43% revealed cancer. During the same period, Rosin billed
Medicare for 4,118 Mohs surgeries. He performed four stages of surgery in
98.93% of these cases.
In February 2004, Carolyn Ferrara, Rosin’s office manager, filed a qui tam
action, alleging Rosin had defrauded the Government by filing false Medicare
claims and performing needless surgeries. Her allegations led to an investigation
and, ultimately, to the filing of criminal charges against Rosin.
A. The Trial
At trial, the jury heard testimony from Rosin, government investigators,
character witnesses, numerous medical experts, and a number of Rosin’s former
employees and patients. The testimony of Rosin’s former employees revealed that
Rosin’s laboratory was staffed by poorly trained lab technicians who prepared
biopsy slides that were irregular and often unreadable. Former employees testified
they had altered slides on several occasions, in one case replacing skin tissue with
gum, and in another, with styrofoam. According to the employees, Rosin
diagnosed cancer on both these slides.
4
Rosin denied reviewing slides that contained foreign substances. In
addition, he challenged the credibility of his former employees, eliciting
uncontroverted evidence that several, including Ferrara, had stolen from him
during the course of their employment, and stood to benefit financially from the
qui tam lawsuit.
The Government called witnesses employed by Florida’s Medicare records
contractor to testify regarding the general manner in which Medicare claims are
processed and to summarize Rosin’s billing practice. One of these custodians,
Julie Kearn, testified that she had compiled data on all of Rosin’s Medicare
billings for Mohs surgeries performed from January 2000 to December 2003.
The compiled data was given to Klaus Miescke, a statistician from the
University of Illinois at Chicago with experience in health care fraud
investigations.
At trial, Miescke testified he used the data Kearns had compiled to select a
statistically random sample of 70 surgical slides from which he extrapolated loss
findings. The 70 slides Miescke selected were provided to the Government’s
medical experts, Drs. Pearon Lang and Franklin Flowers, and to Rosin’s medical
experts for review.
5
Over Rosin’s objection, the Government’s experts testified at trial regarding
their own surgical practices, rates of cancer diagnosis, and the percentage of four-
stage Mohs surgeries each performed, in addition to offering testimony regarding
their review of Rosin’s slides. Three dermatology experts testified on Rosin’s
behalf, stating that some of the surgical slides they reviewed had revealed the
presence of cancer. Although the experts’ testimony differed with respect to
which slides revealed evidence of skin cancer, all agreed the slides were of
substandard quality and that many were unreadable.
Pathologist Deborah Bir testified regarding the manner in which surgical
slides are typically created, stained, and read. She and Lang testified that the poor
quality of Rosin’s surgical slides was unrelated to the age of the slides or the
manner in which they had been stored. The defense countered this testimony by
arguing the slides had been readable when they were assembled and had
deteriorated due to age, poor assembly, or employee sabotage.
In addition to expert testimony, the jury heard from nine character
witnesses, who testified Rosin was an honest, charitable, and trustworthy father,
doctor, and community member.
In closing argument, the prosecutor argued Rosin’s defense was not
credible—that while Rosin claimed to be a caring doctor betrayed by his staff, he
6
was in fact “greedy,” and interested only in making money from the Medicare
program, as evidenced by the manner in which he carefully recorded patients’
financial information, but made and retained little information about their medical
history and care. The prosecutor pointed out inconsistencies in Rosin’s defense,
and called upon jurors to ignore the defense’s “attempts to confuse,” calling
Rosin’s theory of the case “misleading” and “unbelievable.”
After being given Eleventh Circuit Pattern Jury Instructions, the jury
deliberated for one and a half days before convicting Rosin on all counts.
B. Sentencing
Sentencing began June 6, 2006. After two days of testimony, the court
ordered the hearing continued until July 6, 2006. The Government moved to
remand Rosin to the custody of the United States Marshals during the recess; the
motion was granted.
When sentencing resumed on July 6, 2006, Rosin’s lawyer asked the court
to order a competency evaluation, alleging Rosin was unable to assist in gathering
mitigating evidence for the sentencing proceedings. To show that a competency
hearing was reasonably necessary, Rosin called Dr. Hyman Eisenstein, a
neuropsychologist and clinical psychologist who testified for five hours regarding
7
tests he had performed and interviews he had conducted with Rosin and Rosin’s
family.
Eisenstein testified Rosin was an intelligent man who suffered from
cognitive deficits as a result of three head injuries, the first of which occurred in
the 1960s. Although Eisenstein was unable to provide a formal diagnosis without
first conducting brain scans on Rosin, he testified he could not “rule out the
possibility” Rosin was suffering from dementia as a result of brain injury. When
asked how Rosin’s suspected dementia would affect his ability to work with
counsel, Eisenstein had no answer except to observe that Rosin appeared more
interested in discussing his criminal conviction than in preparing for sentencing.
Eisenstein also testified that Rosin appeared to suffer from an obsessive-
compulsive disorder. According to Eisenstein, this was the reason Rosin had
insisted on performing four stages of Mohs surgery for almost all of his patients.
On the basis of this testimony, counsel moved the court to stay further sentencing
proceedings and order a full-scale competency evaluation.
The judge noted Rosin had been articulate on the stand during his jury trial,
appeared to understand the pretrial, trial, and early sentencing proceedings, and
had not complained about being unable to assist his counsel until the judge
ordered him remanded. The judge questioned Eisenstein’s reliance on tests
8
administered by other psychologists, and noted Eisenstein was unable to do any
more than speculate about the possibility that Rosin might suffer some deficits
from brain injuries dating back several decades. Finding no reasonable cause to
believe Rosin was incompetent to participate in sentencing, the judge denied
Rosin’s motion for a full competency evaluation and hearing.
When sentencing resumed, Rosin raised several objections to the probation
office’s guideline calculation. First, Rosin asserted the enhancements for loss
amount and victims should be calculated with reference only to the patients whose
names were listed in the indictment. He objected to inclusion of approximately
800 patients (and the medical claims relating to those patients) on the ground that
evidence about those patients and their surgeries had not been presented to the
jury. In addition, Rosin asserted he should not be required to repay the
Government or be subject to sentence enhancements for any surgery with respect
to which any expert opined that the slide revealed evidence of cancer or was
unreadable. The district court rejected Rosin’s proposal, crediting Rosin only for
surgeries for which the Government’s expert, Dr. Flowers, had found evidence of
cancer.
After finding Rosin had used sophisticated means in carrying out his crime
and had caused serious bodily injury to several of his patients, the judge calculated
9
Rosin’s offense level as 38 and his criminal history category as I, yielding a
guideline imprisonment range of 235 to 293 months, with a fine range of $25,000
to $250,000 dollars. (The 70 counts on which Rosin was convicted carried a
cumulative maximum penalty of 700 years’ imprisonment and a $17.5 million
fine.) The judge sentenced Rosin to 264 months’ incarceration, restitution in the
amount of $3,697,225.38,1 and forfeiture in the amount of $3,697,225.38.
II. DISCUSSION
On appeal, Rosin raises seven challenges to his conviction and sentence.
He contends his trial was tainted because (1) the prosecutor introduced unfairly
prejudicial evidence and argument; (2) the trial judge intervened improperly in the
proceedings; (3) improper evidence was admitted; and (4) the jury was misled by
three erroneous instructions. Rosin contends these errors, both alone and
cumulatively, merit reversal of his conviction. In addition, Rosin challenges
(5) the district court’s failure to hold a full competency hearing; (6) the
reasonableness of his within-guideline sentence; and (7) the amount of his court-
ordered forfeiture. We address each in turn.
A. Prosecutorial Misconduct
1
The court ordered Rosin to pay $3,641,247.79 in restitution to Medicare, $7,111.90 to
Aetna (a private insurance company), and $48,865.69 to individual victims.
10
First, Rosin contends he is entitled to a new trial because the Government
engaged in misconduct throughout his trial. Although many of Rosin’s complaints
are generalized, he appears to challenge four types of conduct, contending the
Government improperly relied on evidence of his bad character in violation of
Fed. R. Evid. 404(a); made inflammatory remarks about him and his counsel
during closing argument; vouched for the prosecution’s chief investigator; and
misrepresented the testimony its expert, Dr. Flowers, would be offering at trial.
Rosin did not raise contemporaneous objections to any of the alleged misconduct
of which he now complains; therefore, “relief is available to rectify only plain
error that is so obvious that failure to correct it would jeopardize the fairness and
integrity of the trial.” United States v. Bailey, 123 F.3d 1381, 1400 (11th Cir.
1997) (applying plain error standard in context of challenges to prosecutor’s
closing argument).
1. Character evidence
Rosin contends the prosecutor violated Fed. R. Evid. 404(a) during opening
and closing arguments. Specifically, Rosin takes issue with the following
comments made during opening argument:
The Government is not trying to hold the Defendant accountable for
honest mistakes. The evidence will show that the Defendant went
through the motions to appear that he cared about his patients, and to
11
appear that he was engaged in the honest, ethical and legal practice of
medicine.
But what the evidence will show is that what he really was engaged in
was a scheme to defraud the Medicare system by performing
medically unjustified and invasive surgeries for the single purpose of
making money.
Rosin also objects to the following argument, made during closing:
[T]he evidence in this case has presented two starkly different and
irreconcilable pictures of this Defendant. He is either a caring,
dedicated physician whose only concern is a devoted interest in the
welfare of his patients, or he is a greedy, dishonest individual who is
guilty as charged of the offense in the superceding indictment.
....
The first and most sacred duty of a medical doctor, members of the
jury, is first to do no harm. And this physician was motivated by the
same thing that motivates everyone who lies and who steals. The
details of their conduct may differ, but it can be explained quite
simply and in one word, greed.
Rosin contends that by pointing to character traits such as greed, the prosecutor
invited the jury to judge his character rather than his actions.
Although Rosin has framed his argument as a challenge to the admissibility
of character evidence, he is not challenging any evidence; rather, he is challenging
the propriety of the prosecutor’s argument. The Government concedes that the
prosecutor’s remarks were “colorful and perhaps flamboyant,” but is quick to
point out that rhetoric is not impermissible in the courtroom. See United States v.
12
Smith, 918 F.2d 1551, 1561 (11th Cir. 1990). The Government insists the
prosecutor’s remarks were fair commentary on the evidence adduced at trial,
particularly with respect to Rosin’s honesty.
Even assuming the prosecutor overstepped the bounds of prosecutorial
propriety, it cannot be said that the prosecutor’s statements constituted plain error
when “viewed in the context of the record as a whole.” Bailey, 123 F.3d at 1400.
Even under the less exacting standard applied to review of preserved errors, this
Court will reverse a defendant’s conviction on the basis of prosecutorial
misconduct only where the prosecutor’s “remarks (1) were improper and (2)
prejudiced the defendant’s substantive rights.” United States v. O’Keefe, 461 F.3d
1338, 1350 (11th Cir. 2006) (emphasis added). A defendant’s substantive rights
are prejudicially affected only when a reasonable probability arises that, but for
the prosecutor’s statements, the outcome of the trial would have been different.
Id.In this case, the jury heard extensive testimony from which it could
conclude Rosin was guilty of health care fraud. Over the course of a 17-day trial,
any improper comments were limited to a few sentences in opening and closing
argument. The jury was instructed before it began deliberating that counsel’s
arguments were not evidence and that the verdict should be based on the evidence
13
alone. Looking at the record as a whole, there is no reason to believe the
prosecutor’s characterization of the evidence during opening or closing arguments
prejudicially affected the trial, much less obviously jeopardized its fairness and
integrity.
2. Allegedly improper argument
In addition to challenging the prosecutor’s remarks about Rosin’s character,
Rosin challenges remarks allegedly directed toward his trial counsel. During
closing argument, the prosecutor accused “the defense” of “talking out of both
sides of their [sic] mouth. Referring collectively to Rosin and his counsel, the
prosecutor argued, “They’re caught in their own web trying to explain all of the
conduct that occurred in the defendant’s office, and it is noise because it doesn’t
make sense.” Finally, during his closing rebuttal, the prosecutor stated:
I understand that it is difficult to believe that a physician, that a
medical doctor, would do the things that this defendant is accused of
in the superceding indictment, but there are in this world, ladies and
gentlemen, doctors who lie and steal, just as there are lawyers who lie
and steal, just as there are bankers who lie and steal. There are people
in this world who lie and steal.
For reasons that are not entirely clear, Rosin is convinced that, by making these
statements, the prosecutor intended to suggest to the jury that defense counsel lied
and stole.
14
This Court has held that it is improper to “discredit defense counsel in front
of the jury . . . and even subsequent jury instructions aimed at rectifying this error
may not ensure that these disparaging remarks have not already deprived the
defendant of a fair trial.” United States v. De La Vega, 913 F.2d 861, 867 (11th
Cir. 1990) (citing United States v. McLain, 823 F.2d 1457, 1462 (11th Cir. 1987),
overruled on other grounds by United States v. Lane, 474 U.S. 438, 106 S. Ct. 725(1986)). Despite the seriousness of such an infraction, the Court has clarified that
reversal is only warranted when the entire trial is so replete with errors the
defendant was denied a fair trial. United States v. Eckhardt, 466 F.3d 938, 947
(11th Cir. 2006).
Although the prosecutor’s remarks about the weakness of Rosin’s case came
close to crossing the line of propriety, they did not go over the line. In attacking
inconsistencies in the defense’s theory of the case, the prosecutor was commenting
fairly on the evidence adduced at trial, and on Rosin’s competing explanations for
the irregularities in his laboratory. Although the prosecutor would have been wise
to make the point with less invective, taken in context, the remarks were not
clearly improper and certainly did not deny Rosin a fair trial.
With regard to the prosecutor’s comments about doctors, lawyers, and
bankers who “steal and lie,” it is clear the prosecutor’s comments were no more
15
directed at Rosin’s counsel than at the prosecutor himself. The Government was
merely suggesting to the jury that successful people sometimes commit crimes.
That argument was not improper.
3. Vouching
Rosin argues the prosecution improperly vouched for witness Diane New,
the Government’s chief investigator. Although the argument is not entirely clear,
it appears to be this: In the course of investigating Rosin’s crime, Agent New
signed a probable cause affidavit, upon which a search warrant was issued. At
trial, without objection from the defense, the prosecutor admitted the cover sheet
from the search warrant, listing each of the items the agents were authorized to
retrieve. On that sheet was a notation that read, “Affidavit having been
made . . . by Special Agent Diane C. New.” Rosin appears to contend that, from
the notation, the jury could have inferred a magistrate had credited New’s affidavit
(or else the warrant would not have issued), and by extension, New’s credibility.
Rosin argues that, by admitting the cover sheet into evidence, the prosecutor “sent
an unfair and constitutionally inappropriate message to the jury of unparalleled
and compelling ‘proof’ of R[osin]’s guilt with the very first witness.”
When reviewing a defendant’s vouching claim, this Court examines whether
(1) the prosecutor placed the prestige of the Government behind the witness by
16
making explicit personal assurances of the witness’s credibility, or (2) the
prosecutor implicitly vouched for the witness’s credibility by implying that
evidence not formally presented to the jury supports the witness’s testimony.
United States v. Arias-Izquierdo, 449 F.3d 1168, 1177-1178 (11th Cir. 2006).
“The prohibition against vouching does not forbid prosecutors from arguing
credibility . . . it forbids arguing credibility based on the reputation of the
government office or on evidence not before the jury.” United States v.
Hernandez, 921 F.2d 1569, 1573 (11th Cir. 1991).
On several occasions during trial the prosecutor made passing reference to
the fact that a court had issued a search warrant authorizing a search of Rosin’s
office. The prosecutor did not connect New to the issuance of that search warrant,
or comment on her credibility in any way related to the warrant. Under these
circumstances, the introduction of the search warrant cover sheet did not amount
to vouching. Cf. United States v. Newton, 44 F.3d 913, 921 (11th Cir. 1995)
(prosecutor’s statement bolstering a key witness’s testimony by asserting “a judge,
state or federal, is not going to give a . . . law enforcement officer a search warrant
to search anybody’s house for no reason . . . ,” while close to the line, was not
improper). The prosecutor did not vouch for the witness; therefore, no error was
made.
17
4. Mischaracterization of testimony
As a final challenge to the Government’s conduct at trial, Rosin contends
the prosecution misrepresented the evidence Dr. Flowers would present during his
trial testimony.2 Before Dr. Flowers was permitted to testify at trial, the court held
a conference outside the presence of the jury. At that conference, the prosecution
explained Flowers would testify about his own dermatology practice, including the
rates at which he diagnosed skin cancer and performed four stages of Mohs
surgery. The prosecutor made the argument that Flowers’ proposed testimony was
not expert because it was grounded in the doctor’s personal experience treating
patients.
Rosin raised vigorous objections to the prosecution’s position, insisting
that, because Flowers had no personal knowledge regarding Rosin’s patients, his
proposed testimony had to be either expert or irrelevant. Rosin questioned
whether Flowers’ testimony was admissible under Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993), and challenged the legitimacy
2
In his opening brief, Rosin asserted in passing the Government had also made a
misleading proffer regarding the testimony of expert witness Klaus Miescke. The substance of
the argument, which Rosin did not develop in his opening brief and did not mention in his reply,
appears to relate to his claim that Miescke’s testimony was inadmissible. (See Section C.1,
infra). There was no discrepancy between the Government’s proffer and Miescke’s testimony.
18
of permitting Flowers to testify about his own practice for the purpose of inviting
comparison between Rosin’s and Flowers’ practices.
Ultimately, however, the judge had the following exchange with defense
counsel:
Court: As I understand it, Mr. Kehoe, you have no objection to
Dr. Flowers qualifying as an expert witness.
Kehoe: In all candor, no, Judge. I do believe that he is one when
it comes to this particular area . . . .
Court: All right. When it comes to his testimony and these
areas that may be subject to question by the defense, I’ll
entertain a sidebar if that’s necessary. But, the Court
will be governed and—by the case law requiring the
Court, as gate keeper, to base its determination on
admissibility on the relevance and reliability of the
proffered testimony. So, we’ll proceed on that basis.
On appeal, Rosin argues the prosecutor committed misconduct by arguing
Flowers was a treating physician who could testify as a fact witness, rather than as
the expert witness he clearly was. That argument is misguided. The prosecutor
made an obvious legal error when she argued Flowers’ testimony was admissible
as that of a fact witness, rather than an expert. Cf. Fed. R. Evid. 602 (“A witness
may not testify to a matter unless . . . the witness has personal knowledge of the
matter.”). However, a lawyer may be wrong without committing misconduct.
Although the prosecutor erred when she argued Flowers was not an expert, there is
19
no evidence she intended to mislead the court. Her mistake did not prejudice
Rosin in any way, much less compromise the integrity of the trial.3
B. Intervention by the District Court
Rosin contends the trial court improperly demonstrated bias against him and
lent its weight to the Government’s case by engaging in repeated questioning of
witnesses, commenting on the evidence, and frequently interrupting defense
counsel during questioning. Rosin did not object to the court’s questions during
trial; therefore, we review for plain error only. Hanson v. Waller, 888 F.2d 806,
813 (11th Cir. 1989); Coats & Clark, Inc. v. Gay, 755 F.2d 1506, 1511 (11th Cir.
1985).
A defendant is denied a constitutionally fair trial when a judge strays from
neutrality, abandoning his proper role and assuming that of an advocate. United
States v. Wright, 392 F.3d 1269, 1274 (11th Cir. 2004); see also Fed. R. Evid. 614,
Advisory Committee Note. Even when an objection to judicial conduct has been
preserved, in order to amount to reversible error, a judge’s remarks must
demonstrate such pervasive bias and unfairness that they prejudice one of the
parties in the case. United States v. Verbitskaya, 406 F.3d 1324, 1337 (11th Cir.
3
Furthermore, the trial court properly found (with Rosin’s concession, no less) that
Flowers was a qualified expert witness.
20
2005). Put another way, comments made by the district court will cause reversal
only when they “excite a prejudice which would preclude a fair and dispassionate
consideration of the evidence.” Brough v. Imperial Sterling Ltd., 297 F.3d 1172,
1181 (11th Cir. 2002) (internal quotation marks omitted). In determining whether
the district court’s comments are prejudicial, the court of appeals “must consider
the record as a whole and not merely isolated remarks.” Id. at 1181.
While a defendant is entitled to an impartial judge, it is also “well settled
that a federal district judge is not relegated to complete silence and inaction during
the course of criminal jury trial.” Wright, 392 F.3d at 1274 (11th Cir. 2004)
(quoting United States v. Cox, 664 F.2d 257, 259 (11th Cir. 1981)).
It is axiomatic . . . “[t]hat the trial judge has a duty to conduct the trial
carefully, patiently, and impartially. He must be above even the
appearance of being partial to the prosecution.” On the other hand, a
federal judge is not a mere moderator of proceedings. He is a common
law judge having that authority historically exercised by judges in the
common law process. He may comment on the evidence, may
question witnesses and elicit facts not yet adduced or clarify those
presented, and may maintain the pace of the trial by interrupting or
cutting off counsel as a matter of discretion.
Wright, 392 F.3d at 1274-75 (quoting Moore v. United States, 598 F.2d 439, 442
(5th Cir. 1979)).
Rosin’s arguments with respect to the district judge are wholly without
merit. In his opening brief, Rosin catalogues a number of statements and
21
questions by the trial court he contends were improper. Having examined each,
we can say with confidence that in each instance, the court did no more than ask
clarifying questions, deter counsel from eliciting irrelevant testimony or testimony
that lacked foundation, or prevent witnesses from giving extended testimony on
irrelevant points. Although it is true the court did not question the Government’s
witnesses in the same way it questioned Rosin’s, Rosin has not pointed to any
conduct by the Government that would have warranted intervention by the court.
C. Admission of Evidence
In what is a mirror image to his judicial intervention claim, Rosin contends
he was deprived of a fair trial when the district court failed to act sua sponte to bar
allegedly inadmissible evidence, and restricted the scope of testimony by Rosin’s
character witnesses. By suggesting the court should have acted sua sponte, Rosin
concedes he did not seek to bar the evidence he now challenges. When a
defendant has not preserved an objection to an evidentiary ruling, we review for
plain error. United States v. Smith, 459 F.3d 1276, 1296 (11th Cir. 2006).
1. Miescke’s Testimony
Rosin takes issue with the court’s failure to prevent statistician Klaus
Miescke from testifying he had been retained by the Government or that he had
worked in the past for the United States Attorney’s Office on health care fraud
22
cases. Rosin argues that by stating he had been hired to “extrapolate loss figures,”
Miescke implied the 75 surgical slides he reviewed were representative of the
whole universe of slides from which the random samples had been taken (meaning
that in the cases not selected for review, Rosin had performed unnecessary
surgeries at the same rate he performed them with respect to the sampled slides).
According to Rosin, the district court plainly erred by permitting such testimony.
It is true Miescke invited the jury to infer his sample was a reliable
microcosm of Rosin’s medical practice. However, it was not error to admit the
testimony. Miescke was a statistician whose job it was to obtain a representative
random sample of Rosin’s Mohs surgeries. From that sample, the Government’s
medical experts drew their conclusions about the percentage of Rosin’s surgical
cases that involved actual cancer, and from that sample the Government drew its
preliminary loss figures.4 The point Rosin misses is that there was nothing
improper about Miescke’s testimony or the inferences to be drawn from it.
At trial, the defense conceded that Miescke was an expert statistician,
qualified to perform random sampling.5 The purpose of statistical sampling is to
4
Before sentencing, the Government asked their expert, Dr. Flowers, to review more
than 4,000 slides recovered from Rosin’s office. Consequently, the final loss figures were based
on a universe of slides that was larger than Miescke’s random sample.
5
In its brief, the Government inexplicably contends Miescke was not an expert because
he did not render any expert opinion. Although an expert is permitted to render an opinion, Fed.
23
provide a means of determining the likelihood that a large sample shares
characteristics of a smaller sample. See, e.g., Laurens Walker & John Monahan,
Sampling Evidence at the Crossroads, 80 S. Cal. L. Rev. 969, 973-74 (2007)
(denoting random sampling as “a sine qua non of scientific research”). Therefore,
it surely came as no surprise to the jury that the Government had retained Miescke
for the purpose of obtaining a reliable sample and using that sample for various
purposes, including the calculation of loss amounts (none of which Miescke
revealed) in a case where the defendant was accused of health care fraud.
Rosin asserts the “court had a duty to sua sponte strike the testimony,
chastise the Government . . . for its disingenuous representation and give a
curative instruction to the jury.” He is mistaken. Before Miescke testified, the
trial judge heard argument from both sides regarding the permissible scope of
Miescke’s testimony. The Court ruled Miescke could not represent that his
sampling was representative of the full breadth of Rosin’s medical practice, but
held Miescke could represent that his sampling was representative of the data
sample he had been provided. Miescke’s testimony was consistent with the
R. Evid. 703, 704, he is not required to do so, and failure to offer an opinion does not negate an
expert’s status, see Fed. R. Evid. 702. During the Government’s proffer and during his
testimony, Miescke discussed his specialized training, as well as the methodology he employs in
selecting random samples. His specialized knowledge lay outside the province of the jury and
rendered him an expert.
24
court’s ruling, did not go beyond the bounds of his expertise, and did not unfairly
prejudice Rosin in any way.
With regard to Miescke’s testimony regarding his past affiliation with the
United States Attorney’s Office, Rosin asserts that, by telling the jury that he had
worked on health care fraud cases previously, Miescke implied Rosin had
committed health care fraud. Since that was the crime with which Rosin was
charged, it could hardly have surprised the jury to hear the Government selected a
statistician familiar with health care fraud to analyze data relating to Rosin’s case.
Consequently, Miescke’s testimony on that point could not have prejudiced Rosin
unfairly.
2. Testimony of Flowers and Lang
Next, Rosin contends the district court erred when it allowed Government
experts Flowers and Lang to testify about their own surgical practices, inviting the
jury to conclude Rosin’s practice was fraudulent because the Government’s
experts diagnosed cancer at much lower rates and performed many fewer four-
stage Mohs surgeries than did Rosin. Rosin points to a host of reasons why he
believes it was improper to invite a comparison between his practice and the
expert witnesses’ practices: he was in private practice while they were in
academic clinics; he was a solo practitioner, while they were not; his patients were
25
uniformly elderly, while their patients’ ages varied; etc. Although Rosin’s
critiques were excellent fodder for cross-examination, they went to the weight of
the evidence and not to its admissibility.
Evidence is relevant when it has “any tendency to make the existence of any
fact that is of consequence to the determination of the action more or less probable
than it would be without the evidence.” Fed. R. Evid. 401. All relevant evidence
is admissible unless it is excluded under law. Fed. R. Evid. 402. The differences
between the rates at which the Government’s witnesses and Rosin diagnosed
cancer and performed multi-stage Mohs surgery did not provide conclusive proof
that some of Rosin’s surgeries were medically unnecessary and fraudulent.
Nevertheless, if the testimony of the expert witnesses was believed, the stark
differences between their surgical procedures and outcomes and Rosin’s were
probative on the question whether Rosin had defrauded the Medicare program by
filing false claims.
Rosin is right when he asserts the expert witnesses’ testimony was
prejudicial, as all evidence of guilt is intended to be. It was not, however, unfairly
prejudicial in violation of the rules of evidence or Rosin’s rights under federal law.
The trial court did not err by failing to prevent the experts from testifying about
their medical practices.
26
3. Failure to inform jury of witnesses’ expert status
Rosin contends it was reversible error for the court not to inform the jury
that Miescke, Bir, Lang, and Flowers were expert witnesses, and to specify their
areas of expertise. Rosin cites no law for the proposition that courts must instruct
juries on the scope of an expert’s specialized knowledge, and we can think of no
reason why they should be required to do so.
At the close of trial, the judge instructed the jury as follows:
Now, when the knowledge of a technical subject matter might be
helpful to the jury, a person having specialized training or experience
in that technical field is permitted to state an opinion concerning
those technical matters. Merely because such a witness has expressed
an opinion, however, does not mean that you must accept that
opinion. The same as with any other witness, it is up to you to decide
whether to rely upon it.
The judge exercised his gatekeeping responsibilities by ruling on specific
evidentiary objections during the trial, thereby preventing the expert witnesses
from testifying to matters outside their relevant expertise. Having done so, there
was no need for him to specifically identify which witnesses were “expert” and
which were not. He properly instructed the jury to weigh the facts themselves,
relying on specialized knowledge or testimony only when it was helpful to their
deliberations.
4. Mitigating character evidence
27
Rosin contends the trial court prevented him from fully presenting his
defense by limiting his ability to elicit background testimony from his character
witnesses, and by limiting the scope of those witnesses’ testimony. The transcript
tells a different story.
Rosin called a number of witnesses to testify that he was honest, kind, and
charitable. In response to Government objections, the trial court ruled:
A witness may be asked what his opinion is of the truthfulness of the
Defendant, and can state that, in his opinion, the Defendant is a truthful
person. The other testimony about charitable activities of the Defendant are
[sic] not relevant, and I think they should be kept to a minimum.
Although Rosin may have wished to admit more testimony on the point, the trial
court properly limited him to presenting evidence relevant to the case.
With respect to Rosin’s allegation that the court curtailed his ability to elicit
background facts from his witnesses, Rosin has not pointed to any improper
interruptions on the part of the trial court. When witness testimony strayed far
afield, the court intervened on several occasions to keep the case running
smoothly. The court did so in a manner that was respectful and well within its
prerogative.6
6
See, e.g., Testimony of Mr. Samuel Uretsky, District Court Dkt. #156, at 74:17-75:23
(court directed counsel to “move on” after asking character witness extensive questions about his
military service in the 1940s).
28
D. Jury Instructions
Rosin next contends the jury instructions on reasonable doubt, character
evidence, and good faith misled the jury and therefore necessitate a new trial. His
argument fails for two reasons: First, he himself proposed the instructions, and
second, they were not erroneous.
As Rosin concedes, the law is clear that when a party invites an error by
proposing an instruction he later challenges, or by affirmatively accepting an
instruction proposed by an opposing party, this Court is precluded from reviewing
the error on appeal. United States v. Silvestri, 409 F.3d 1311, 1337 (11th Cir.
2005). That alone is reason for affirming the lower court’s instruction. It is not
the only reason, however.
In relevant part, the instruction on reasonable doubt stated:
[W]hile the Government’s burden of proof is a strict or heavy burden,
it is not necessary that the Defendant’s guilt be proved beyond all
possible doubt[.] [I]t is only required that the Government’s proof
exclude any reasonable doubt concerning the Defendant’s guilt.
Rosin contends the use of the phrase “only required” minimized the Government’s
burden of proof. Read in the context of the whole instruction, however, it is clear
the phrase to which Rosin objects was included in the instruction to help the jury
understand the prosecution’s burden. The instruction emphasizes the Government
29
bears a “strict or heavy” burden. At the same time, the instruction guards against a
reading of “reasonable doubt” that would require the Government to disprove all
possible doubt—a burden higher than the law requires. The instruction is
accurate, and it was not error for the district court to charge the jury in the words it
did.
Similarly, Rosin’s challenge to the instruction on character evidence is
without merit. The character evidence instruction stated:
Now, the Defendant has offered evidence of the Defendant’s traits of
character and such evidence may give rise to a reasonable doubt.
Where a Defendant has offered testimony that the Defendant is an
honest and truthful person, the jury should consider that testimony
along with all the other evidence in deciding whether the Government
has proved beyond a reasonable doubt that the Defendant committed
the crimes charged.
The instruction made no mention of testimony regarding the defendant’s character
for any trait other than truthfulness.
Rosin contends the instruction was flawed because it directed the jury to
consider evidence of Rosin’s “truthfulness,” but did not invite the jury to consider
evidence that Rosin was a “caring, compassionate, kind, and charitable” person.
Rosin argues that without such an instruction, the jury “likely disregarded all
Rosin’s other positive character traits” in reaching their verdict. This, he asserts,
was error.
30
Rosin appears to believe his general character for kindness and charity was
relevant because the prosecution characterized him as a greedy doctor who was
more interested in making money from Medicare than in caring for his patients.
That argument betrays a misunderstanding of the role character evidence played in
the trial. The jury was not asked to determine whether Rosin was good (honest,
kind, etc.) or bad (greedy, cruel, etc.): it was asked to determine whether he
defrauded the Medicare system by making false statements and engaging in health
care fraud. Insofar as honesty is the opposite of fraudulent misstatement, then
Rosin’s integrity in requesting payment for necessary surgeries was a legitimate
consideration. His general character was not. Nothing about the character
instruction was incorrect and there is no reason to believe it misled the jury in any
way.
Rosin’s challenge to the good faith instruction is only slightly more
substantial. As he points out, and the Government concedes, neither the parties
nor the district court tailored the pattern instruction to the facts of his case.
Specifically, Rosin takes issue with the italicized portion of the instruction below:
Now, one who expresses an honestly held opinion or an honestly
formed belief is not chargeable with fraudulent intent even though the
opinion is erroneous or the belief mistaken. And similarly, evidence
which establishes only that a person made a mistake in judgment or
31
an error in management or was careless does not establish fraudulent
intent.
On the other hand, an honest belief on the part of the defendant that a
particular business venture was sound and would ultimately succeed
would not in and of itself constitute good faith as that term is used in
these instructions if, in carrying out the venture the defendant
knowingly made false or fraudulent representations to others with the
specific intent to deceive them.
(Emphasis added.) Rosin argues the fraud with which he was charged was not
related to a business venture; therefore, the reference to unsound “business
ventures” should have been deleted from the instruction.
Perhaps, but not necessarily. Billing Medicare and other health insurers for
surgeries is part of the business of running a medical clinic. Understood in this
way, the instruction is accurate. Rosin has not suggested any way the jury would
have been mislead in its deliberations by the improper instruction, and none is
apparent. There was no error in providing this instruction to the jury.
E. Cumulative Errors
Having reviewed the alleged errors of the trial judge and prosecutor
individually, the Court must also “review the prejudicial effect of all . . . errors,
evaluated under both preserved and plain error standards, in the aggregate.”
United States v. Baker, 432 F.3d 1189, 1203 (11th Cir. 2005); United States v.
Blasco, 702 F.2d 1315, 1329 (11th Cir. 1983) (“A piecemeal review of each
32
incident does not end our inquiry. We must consider the cumulative effect of
these incidents and determine whether, viewing the trial as a whole, appellants
received a fair trial as is their due under our Constitution.”).
In this case, there are no errors to aggregate. Having concluded no
substantial errors occurred at trial, there is no more to consider with respect to this
claim. Cf. Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S. Ct. 1431, 1436
(1986) (“[T]he Constitution entitles a criminal defendant to a fair trial, not a
perfect one.”).
F. Competency Hearing
Next, Rosin contends the district court abused its discretion by failing to
order a competency evaluation and hold a hearing on whether Rosin was able to
assist his counsel in preparing for sentencing due to brain injuries he had allegedly
incurred decades earlier. See United States v. Nickels, 324 F.3d 1250, 1251-52
(11th Cir. 2003) (appellate court reviews denial of motion for determination of
competency under 18 U.S.C. § 4241 for abuse of discretion).
In determining whether a defendant is competent to be sentenced, the
district court must look at evidence indicating “a present inability to assist
counsel or understand the charges” against him. Medina v. Singletary, 59
F.3d 1095, 1107 (11th Cir. 1995). Federal law provides:
33
At any time after the commencement of a prosecution for an offense
and prior to the sentencing of the defendant, or at any time after the
commencement of probation or supervised release and prior to the
completion of the sentence, the defendant or the attorney for the
Government may file a motion for a hearing to determine the mental
competency of the defendant. The court shall grant the motion, or
shall order such a hearing on its own motion, if there is reasonable
cause to believe that the defendant may presently be suffering from a
mental disease or defect rendering him mentally incompetent to the
extent that he is unable to understand the nature and consequences of
the proceedings against him or to assist properly in his defense.
18 U.S.C. § 4241(a). Put another way, “[a] district court must conduct a
competency hearing when there is a ‘bona fide doubt’ regarding the defendant’s
competence.” United States v. Rahim, 431 F.3d 753, 759 (11th Cir. 2005) (citing
Pate v. Robinson, 383 U.S. 375, 385, 86 S. Ct. 836, 842 (1966)).
After hearing five hours of testimony from Rosin’s expert witness, Dr.
Eisenstein, the district court concluded a full blown competency evaluation and
hearing was not needed. Although Eisenstein asserted Rosin suffered from
cognitive deficits as a result of three head injuries, dating from the 1960s through
the present, Eisenstein acknowledged Rosin had above-average intelligence and
was unable to say how the alleged deficits affected Rosin’s daily life at all, much
less to a degree that would interfere with his ability to assist counsel.
In denying the motion for a competency evaluation, the district judge noted
Rosin had been articulate on the stand during his jury trial, appeared to understand
34
the pretrial, trial, and early sentencing proceedings, and had at no time prior to his
detention made any complaint about being unable to understand what was
happening or assist counsel in his defense. The judge reasonably questioned
Eisenstein’s reliance on tests administered by other psychologists, and noted
Eisenstein was unable to do any more than speculate about the possibility Rosin
might suffer some deficits from brain injuries dating back several decades.
Finding no reasonable cause to believe that Rosin was incompetent to participate
in sentencing, the judge denied Rosin’s motion for additional brain imaging tests
and a subsequent competency hearing. His ruling was logical and well-articulated,
and was not an abuse of discretion.
G. Sentencing
Lastly, Rosin raises challenges to both the duration of his sentence and the
lawfulness of the court’s forfeiture order. He contends the district court erred in
calculating his Guidelines sentence and in failing to vary downward from the
guideline range. In addition, Rosin contends the court’s forfeiture order violated
his rights under the Eighth and Fifth Amendments.
1. Sentence duration
Challenges to the duration of a sentence may come in either of two forms:
procedural or substantive. Rosin contends the court erred procedurally when it
35
applied improper sentencing enhancements, and erred substantively when it
imposed a sentence longer than needed to achieve the purposes of sentencing.
a. Guidelines calculation
When reviewing a district court’s sentencing decision, this Court “must first
ensure that the district court committed no significant procedural error, such as
failing to calculate (or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, [or] failing to consider the § 3553(a) factors . . . .” Gall
v. United States, — U.S. — , 128 S. Ct. 586, 597 (2007). This Court reviews a
sentencing court’s application of the Sentencing Guidelines de novo. United
States v. Edmonds, 348 F.3d 950, 952-53 (11th Cir. 2003).
According to Rosin, the district court miscalculated the applicable guideline
range in three ways. First, Rosin contends, the district court violated United States
v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), by enhancing his sentence based
on estimations of the loss amount and the number of victims. The jury did not find
these facts to be true beyond a reasonable doubt; therefore, Rosin contends they
were improperly used to enhance the severity of his sentence.
This Court explained in United States v. Rodriguez that “the use of
extra-verdict enhancements in an advisory guidelines system is not
unconstitutional.” 398 F.3d 1291, 1301 (2005); see also United States v. Chau,
36
426 F.3d 1318, 1323-24 (11th Cir. 2005) (holding Booker does not prohibit
district court enhancement based on facts found by a preponderance of the
evidence and not charged in the indictment, under an advisory sentencing
scheme). So long as the judge views the Guidelines as advisory and finds relevant
facts by a preponderance of the evidence, he may rely on facts not before the jury
to enhance the sentence. United States v. Douglas, 489 F.3d 1117, 1129 (11th Cir.
2007). That is what happened here.
Relying on the testimony of Dr. Flowers (the expert witness who reviewed
the greatest number of slides), the court concluded Rosin committed fraud with
respect to more than 800 different victims, and the losses associated with those
victims exceeded $4 million. The court’s reliance on the extra-verdict
enhancements was proper and did not violate the Constitution.
Next, Rosin contends the court erred by enhancing his sentence based on his
use of sophisticated means. A district court’s finding that sophisticated means
were used in the commission of a crime is a finding of fact we review for clear
error. United States v. Barakat, 130 F.3d 1448, 1456 (11th Cir. 1997).
The Sentencing Guidelines provide for a two-level enhancement if an
offense involves “sophisticated means.” U.S.S.G. § 2B1.1(b)(9)(C) (2006). The
commentary on that section states that sophisticated means are:
37
especially complex or especially intricate offense conduct pertaining
to the execution or concealment of an offense. For example, in a
telemarketing scheme, locating the main office of the scheme in one
jurisdiction but locating soliciting operation in another jurisdiction
ordinarily indicates sophisticated means. Conduct such as hiding
assets or transactions, or both, through the use of fictitious entities,
corporate shells, or offshore financial accounts also ordinarily
indicates sophisticated means.
U.S.S.G. § 2B1.1(b)(9)(C) cmt. n. 8(B). There is no requirement that each of a
defendant’s individual actions be sophisticated in order to support imposition of
the enhancement; rather, it is sufficient if the totality of the scheme was
sophisticated. Cf. United States v. Finck, 407 F.3d 908, 915 (8th Cir. 2005)
(“Repetitive and coordinated conduct, though no one step is particularly
complicated, can be a sophisticated scheme.”).
Rosin contends his scheme to defraud Medicare was not sophisticated
because he performed routine surgeries and did not use “complex tactics to cover
up his fraud.” However, the evidence adduced at trial revealed Rosin ran a
laboratory staffed with poorly trained technicians, directed his staff to discard
surgical slides, and performed complicated multistage surgeries in a manner
designed to maximize his profits while appearing falsely to treat skin cancer.
Given those facts, the court did not clearly err in finding Rosin’s means were
“sophisticated” within the meaning of the enhancement.
38
Thirdly, Rosin contends there was no evidence to support the district court’s
finding that his patients had suffered serious bodily injury as a result of his
criminal activity. Section 2B1.1(b)(12) of the United States Sentencing
Guidelines provides a two-level enhancement for crimes involving the “conscious
or reckless risk of death or serious bodily injury . . . .” Serious bodily injury is
defined as injury “involving extreme physical pain or the protracted impairment of
a function of a bodily member, organ, or mental faculty; or requiring medical
intervention such as surgery, hospitalization, or physical rehabilitation.” U.S.S.G.
§ 1B1.1, cmt. n.1(L)(2006).
In arguing there was no evidence to justify a finding of serious bodily
injury, Rosin misrepresents the facts. After hearing from numerous patients
during the sentencing hearing, the judge concluded that at least two had suffered
serious physical injuries above and beyond surgery as a result of Rosin’s conduct.
The judge did not err by enhancing Rosin’s guideline range accordingly.
b. Failure to vary
If a district court’s sentencing decision is procedurally sound, the appellate
court must “consider the substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard.” Gall, 128 S. Ct. at 597. When conducting
39
this review, the court must take into account the totality of the circumstances,
including the extent of any variance from the guideline range. Id.Rosin contends his sentence was substantively unreasonable because the
district court failed to vary downward on the basis of his charitable contributions,
his family’s need for support, his payment of restitution in full, and his allegedly
diminished mental capacity. In both Gall and Rita v. United States, 551 U.S. —,
127 S. Ct. 2456 (2007), the Supreme Court held that, in reviewing sentences for
substantive reasonableness under 18 U.S.C. § 3553(a), federal appellate courts
may apply a presumption of reasonableness to district court sentences imposed
within the guideline range. Gall, 128 S. Ct. at 591; Rita, 127 S. Ct. at 2463.
Although this Circuit has declined to adopt such a presumption, the Court has
acknowledged the rationale in Rita “calls into question our reasons for not
affording a presumption of reasonableness,” United States v. Campbell, 491 F.3d
1306, 1314 n. 8 (11th Cir. 2007), and has held that “ordinarily we would expect a
sentence within the Guidelines range to be reasonable.” United States v. Talley,
431 F.3d 784, 788 (11th Cir. 2005).
In this case, the trial judge listened to multiple days of testimony, hearing
evidence from experts, former patients, and members of the community about
Rosin’s character, his actions, and the effects of his crime. Rosin points to other
40
cases in which individuals convicted of Medicare fraud received sentences lighter
than his. That fact alone is no reason for this court to vacate Rosin’s sentence:
different defendants often receive different sentences, as the facts of each case
require. See Gall, 128 S. Ct. at 598 (“It has been uniform and constant in the
federal judicial tradition for the sentencing judge to consider every convicted
person as an individual and every case as a unique study in the human failings that
sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.”).
Unless a sentence is grossly disproportionate to the offense committed we do not
even consider the sentences imposed on other offenders who have committed
similar crimes. United States v. Arias-Izquierdo, 449 F.3d 1168, 1186 (11th Cir.
2006).
It is true Rosin received a long sentence; however, it is also true he was
found guilty of committing serious crimes that extended over a protracted period.
His crimes affected elderly persons, abused a position of trust, and cost the
Government millions of dollars. Although Rosin points to mitigating evidence,
such as his charitable works and the needs of his wife and children, the district
court found those facts insufficient to justify a sentence outside the guideline
range. Finding neither mitigating nor aggravating circumstances in Rosin’s case,
41
the district court imposed a sentence in the middle of the guideline range. We
cannot say he abused his discretion by doing so.
2. Forfeiture
Rosin raises two distinct challenges to his forfeiture order. First, he
contends that because the court ordered full restitution, the forfeiture order is an
excessive fine that violates the Eighth Amendment. Second, Rosin challenges the
$490,876.11 difference between the amount of forfeiture sought in the indictment
and the amount ordered at sentencing as an impermissible material variance.
a. Excessive fine
When sentencing a defendant convicted of a federal health care offense,
district courts are required to “order the person to forfeit property, real or personal,
that constitutes or is derived, directly or indirectly, from gross proceeds traceable
to the commission of the offense.” 18 U.S.C. § 982(a)(7). Rosin does not
challenge the court’s ability to order him to pay forfeiture, but contends the
amount ordered—$3,697,225.38—is excessive, particularly in light of the fact he
made full restitution to the Medicare program. Rosin failed to raise his objection
to the trial court; therefore, we review for plain error only. United States v. Raad,
406 F.3d 1322, 1323 (11th Cir. 2005).
42
Under the Eighth Amendment, a forfeiture is excessive “if it is grossly
disproportional to the gravity of a defendant’s offense.” United States v.
Bajakajian, 524 U.S. 321, 334, 118 S. Ct. 2028, 2036 (1998). Because
excessiveness “is a highly subjective judgment, the courts should be hesitant to
substitute their opinion for that of [Congress].” United States v. 817 N.E. 29th
Drive, 175 F.3d 1304, 1309 (11th Cir. 1999) (citing Bajakajian, 524 U.S. at 334,
118 S. Ct. at 2037 (“judgments about the appropriate punishment for an offense
belong in the first instance to the legislature”)). If the value of forfeited property
is within the range of fines prescribed by Congress, a strong presumption arises
that the forfeiture is constitutional. 817 N.E. 29th Drive, 175 F.3d at 1309.
In this case, the maximum fine authorized by statute was $250,000 for each
crime Rosin committed. 18 U.S.C. § 3571(b)(3). He was convicted on 70 counts,
which led to a maximum fine of $17.5 million dollars. Although the
recommended guideline fine was substantially less than that amount ($250,000),
given the fact Rosin defrauded the Government of more than $3.6 million, it is
difficult to say a forfeiture twice that amount is unconstitutional, particularly in
light of the fact that Rosin’s net worth exceeded $11 million.
Rosin contends the court should have taken account of his restitution when
setting the amount of his forfeiture. While superficially appealing, this argument
43
fails to account for the different goals served by restitution and forfeiture. See
United States v. Leahy, 464 F.3d 773, 793 n.8 (7th Cir. 2006) (“While we
recognize to the untrained eye, this might appear to be a ‘double dip,’ restitution
and forfeiture serve different goals . . . .”). The goal of restitution is to
compensate victims for their losses, see, e.g., 18 U.S.C. §§ 3556, 3663(a)(1)
(authorizing restitution to compensate victims of criminal offenses), while the goal
of forfeiture is to punish, United States v. Dicter, 198 F.3d 1284, 1289 (11th Cir.
1999). That a defendant may ultimately be ordered to pay in restitution and
forfeiture more than he took is of little consequence:
[P]aying restitution plus forfeiture at worst forces the offender to
disgorge a total amount equal to twice the value of the proceeds of the
crime. Given the many tangible and intangible costs of criminal
activity, this is in no way disproportionate to the harm inflicted upon
government and society by the offense.
United States v. Various Computers and Computer Equipment, 82 F.3d 582, 588
(3d Cir. 1996) (quotation marks and brackets omitted).
Although Rosin’s forfeiture amount was high, so was the amount by which
he defrauded the Government. The forfeiture order did not violate the Excessive
Fines Clause of the Eighth Amendment.
b. Variance
44
Lastly, Rosin contends his forfeiture order was invalid because there was a
material variance between the amount sought in the indictment and the amount the
court ordered him to pay. As an initial matter, we question whether the theory of
material variance even applies to forfeiture decisions, which implicate a
defendant’s right to be free from excessive punishment, see supra, rather than his
right to notice of the charges against him, United States v. Ratliff-White, 493 F.3d
812, 819 (7th Cir. 2007) (material variance implicates defendant’s Fifth
Amendment right to be informed of nature and cause of accusation against him
and Sixth Amendment right to indictment by grand jury). The claim that a
material variance exists between indictment and proof adduced at trial is a “form
of challenge to the sufficiency of the evidence,” United States v. Jenkins, 779 F.2d
606, 616 (11th Cir. 1986). Rosin does not point to precedent in this Circuit or any
other applying the law of material variance to a sentencing, fine, or forfeiture
decision, and our independent search has revealed none.
Nevertheless, for the sake of argument, we note “[a] variance exists where
the evidence at trial proves facts different from those alleged in the indictment, as
opposed to facts which, although not specifically mentioned in the indictment, are
entirely consistent with its allegations.” United States v. Gold, 743 F.2d 800, 813
(11th Cir. 1984). “The standard of review for whether there is a material variance
45
between the allegations in the indictment and the facts established at trial is
twofold: First, whether a material variance did occur, and, second, whether the
defendant suffered substantial prejudice as a result.” United States v. Chastain,
198 F.3d 1338, 1349 (11th Cir. 1999).
Rosin points out that in the superceding indictment, the Government
requested forfeiture in the amount of $3,206,349.21. However, after the
Government’s expert testified to a higher loss amount, the court ordered
$3,697,225.38 in restitution—a difference of $490,876.11. The difference
between the amount listed in the indictment and the amount Rosin was ordered to
pay differed by half a million dollars, a large sum of money, but an amount only
15% greater than the amount requested in the indictment. Considered in context,
it is doubtful the “variance” could be considered “substantial.”
Assuming the difference was significant enough to qualify as a substantial
variation from the amount sought in the indictment, the next question would be
whether the difference substantially prejudiced Rosin. To show that it did, Rosin
would be required to demonstrate that “the proof at trial differed so greatly from
the charges that [he] was unfairly surprised and was unable to prepare an adequate
defense.” United States v. Alred, 144 F.3d 1405, 1415 (11th Cir. 1998). Rosin
46
makes no effort to explain how he was prejudiced by the higher amount proven at
sentencing, and it is difficult to see how he would have been.
The court’s forfeiture order was equivalent to the amount of money Rosin
had received from Medicare, patients, and patients’ insurers as a result of the
fraudulent surgeries. Rosin’s counsel had the opportunity to argue at sentencing
that the court had included too many surgeries in assessing the extent of the fraud,
and, in fact, he presented competing expert testimony on the point. Although the
court ultimately rejected Rosin’s argument, he cannot say he was unfairly
surprised by the Government’s position and was unfairly prejudiced by it.
Therefore, even if there could be a material variance between the amount sought in
an indictment and the amount ordered forfeited following conviction, Rosin has
not shown such a variance existed in this case.
AFFIRMED.
47