United States v. Rick Brown , 880 F.3d 399 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 15-3117 & 15-3261
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RICK E. BROWN & MARY C. TALAGA,
Defendants-Appellants.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
Nos. 1:13-cr-00854-1, 1:13-cr-00854-3 — Gary Feinerman, Judge.
____________________
ARGUED MAY 23, 2017 — DECIDED JANUARY 19, 2018
____________________
Before BAUER, EASTERBROOK, and RIPPLE, Circuit Judges.
RIPPLE, Circuit Judge. A grand jury indicted Rick E. Brown
and Mary C. Talaga with one count of conspiracy to commit
health-care fraud, in violation of 18 U.S.C. § 1349, six counts
of health-care fraud, in violation of 18 U.S.C. § 1347, and three
counts of falsifying a matter or providing false statements, in
violation of 18 U.S.C. § 1035(a). A jury convicted them on all
counts. The district court sentenced Mr. Brown to
eighty-seven months’ imprisonment on the health-care fraud
2 Nos. 15-3117 & 15-3261
counts and terms of sixty months’ imprisonment on each of
the falsification counts to run concurrently with each other
and with the fraud counts. In doing so, the district court ex-
plained that a significant sentence was warranted for several
reasons, including general deterrence. Ms. Talaga was sen-
tenced to concurrent forty-five-month sentences on all of the
ten counts.
Both defendants now maintain that the district court erred
in imposing their respective sentences. Mr. Brown maintains
that the district court’s assumptions about the need for gen-
eral deterrence were unfounded and constituted procedural
error. Ms. Talaga argues that, when the district court calcu-
lated the amount of loss for which she was responsible, it im-
permissibly included losses that occurred before she joined
the conspiracy. The inclusion of these amounts resulted in a
higher loss amount, corresponding to a higher offense level
and sentence.
Because the district court did not err in its reasoning or in
its sentencing determination, we affirm its judgments.
I
BACKGROUND
A.
Medicall Physicians Group, Ltd. (“Medicall”), a company
that provided home physician visits to patients, employed
both Mr. Brown and Ms. Talaga. Mr. Brown served as Medi-
call’s office manager, and Ms. Talaga had responsibility for
medical billing. Dr. Roger Lucero, a third defendant, was the
owner and medical director of the company. He pleaded
Nos. 15-3117 & 15-3261 3
guilty to the conspiracy count, cooperated with the Govern-
ment, and testified against both Mr. Brown and Ms. Talaga.
Beginning at least as early as January 2007, Mr. Brown and
Dr. Lucero began submitting false and fraudulent claims to
Medicare. Ms. Talaga, who had been trained as a medical
biller, joined Medicall in August 2007. She reported to
Mr. Brown and was paid a percentage of Medicall’s earnings.
According to the evidence, the fraud at Medicall took at
least three forms. First, Mr. Brown and Ms. Talaga billed
Medicare for “prolonged” visits, using the prolonged care
code, as a way to pay for employees’ travel time. Second, re-
gardless whether the patient qualified for, or received, the
billed-for care, every patient was billed for “Care Plan Over-
sight,” a type of physician supervision for patients requiring
complex or multi-disciplinary care. Finally, Mr. Brown and
Ms. Talaga billed Medicare for services purportedly provided
to deceased patients, as well as services by providers who no
longer were associated with Medicall.
After hearing the evidence, the jury convicted both de-
fendants on all counts of the indictment.
1. Mr. Brown
The probation office prepared a presentence report
(“PSR”) for Mr. Brown. The PSR calculated a base offense
level of six under U.S.S.G. § 2B1.1(a)(2), and then applied an
eighteen-level increase under § 2B1.1(b)(1)(J) for an intended
loss of approximately $4.3 million. The PSR also applied (1) a
two-level increase for a federal health-care offense involving
a loss of more than $1 million but less than $7 million; (2) a
two-level increase for use of sophisticated means; (3) a
4 Nos. 15-3117 & 15-3261
four-level increase for being a leader or organizer; and (4) a
two-level increase for obstruction of justice because
Mr. Brown had testified falsely at trial about his role in the
offense. These increases yielded a total offense level of
thirty-four that, when combined with Mr. Brown’s criminal
history category of I, yielded a sentencing range of 151 to 188
months.
Mr. Brown objected to various aspects of the PSR’s calcu-
lation. The district court agreed with Mr. Brown that the fraud
did not involve sophisticated means. It also gave Mr. Brown
the benefit of the loss table in the new Guidelines, which
yielded a sixteen-level increase, as opposed to an eighteen-
level increase, for amount of loss. When combined with
Mr. Brown’s criminal history category, the new calculation
yielded a guidelines range of 121 to 151 months.
The district court then considered “the 3553(a) factors one
1
by one.” It also observed that “[s]ubsection (a)(2) requires the
Court to consider the need for the sentence imposed to accom-
plish the various purposes of criminal punishment. The first
purpose is to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the
2
offense.” The court considered the crimes to be “serious” be-
cause they occurred “over an extended period of time” and
3
involved “$4.3 million in false claims.” The second purpose
1 R.386 (1:13-cr-00854-1) at 95.
2 Id. at 100.
3 Id. at 95.
Nos. 15-3117 & 15-3261 5
articulated in 18 U.S.C. § 3553(a) “is to afford adequate deter-
4
rence to criminal conduct.” The court considered this pur-
pose “a significant factor” because Medicare fraud unfortu-
nately is widespread “in this country; and those who are in
the medical field and who are tempted to engage in fraud
must know, they have to know, that the penalties are severe,
5
particularly given the low likelihood of getting caught.” The
court stated that it agreed with the Government
that people in the healthcare business and in the
home healthcare business in particular will
know about this sentence, and this sentence has
to send a signal. It’s not the only consideration,
and it’s not the most important consideration,
but it is a consideration that 3553(a)(2)(B) directs
me to consider, and I do have to consider that.[6]
Finally, the court noted that, with respect to specific deter-
rence, it was “highly unlikely” that Mr. Brown would commit
7
a crime in the future. The court then sentenced Mr. Brown to
eighty-seven months’ imprisonment.
The court reiterated many of these considerations in its
oral statement of reasons:
I don’t think that anything less than 87
months would be sufficient to fulfill the pur-
poses of 3553(a), and here’s why: The duration
4 Id. at 100.
5 Id.
6 Id. at 101.
7 Id.
6 Nos. 15-3117 & 15-3261
of the scheme. It went on for several years. This
wasn’t a momentary slip … . This was a sus-
tained course of knowing criminal conduct.
The amount actually stolen, over $1.3 mil-
lion. That’s a lot of money.
I’m going to come back to general deter-
rence. This is a white collar crime, so the sen-
tence imposed here is far more likely to have a
deterrent effect on Mr. Brown’s cohorts, those
also involved in the medical profession, than a
sentence in a drug case or an illegal re-entry
case.
I do agree … that people in the healthcare
field, people who are business—men and
women who are business people, they engage in
a cost/benefit analysis. And the benefit is the
benefit if you don’t get caught, and the cost is
the probability of getting caught multiplied by
the sanction.
And there’s a low probability of getting
caught, so the sanction has to be serious. It has
to be real, if there’s any hope of ensuring that at
least when people look at the cost and the bene-
fits, when they’re contemplating fraud, that
they realize that cost will outweigh the benefits.
Nos. 15-3117 & 15-3261 7
And finally, there’s Mr. Brown’s failure to
accept responsibility, and in particular his repe-
tition of the claim … that he wasn’t responsible
for the fraud.[8]
2. Ms. Talaga
The probation office also prepared a PSR for Ms. Talaga. It
set her base offense level at six pursuant to § 2B1.1, and ap-
plied an eighteen-level increase for the amount of loss (greater
than $2.5 million, but less than $7 million). It also included a
two-level increase for use of sophisticated means and a
two-level increase for a federal health-care offense. These de-
terminations yielded an offense level of twenty-eight that,
when combined with a criminal history category of I, yielded
a guidelines range of seventy-eight to ninety-seven months.
Ms. Talaga objected to various aspects of the PSR. Her pri-
mary argument was that the intended loss amount should be
reduced. She submitted that her “intended loss could not
have been more than the amount that Medicare actually paid
because Ms. Talaga knew that Medicall … would not have ob-
9
tained the full $4M+ that Medicall … fraudulently billed.”
Specifically, she noted that an application note to the fraud
guideline states “that the aggregate dollar amount of fraudu-
lent bills ‘is evidence sufficient to establish the amount of [the]
8 Id. at 105–06.
9 R.242 (1:13-cr-00854-3) at 1.
8 Nos. 15-3117 & 15-3261
10
intended loss, if not rebutted’ by the defendant.” She claimed
that
[u]nlike co-defendants Rick Brown and
Dr. Roger Lucero, [she] “was intimately familiar
with the billing procedures of the medical prac-
tice” as well as with 42 U.S.C. § 1395w-4(a)(1),
which provides that Medicare can never pay
any more than “the amount determined under
the Medicare fee schedule.” The Government’s
own investigation establishes that Ms. Talaga
successfully completed “Medical Billing,” a
course at Triton Junior College, and the “Medi-
cal Billing” course syllabus explains than the
course is “all about Medicare and medical bill-
ing problems,” but that the course covers
mostly Medicare issues. Further, Triton College
staff and a Triton Medical Billing course profes-
sor confirmed that the course “cover[s] in
depth” the Medicare regulation that Medicare
can never pay any more than the Medicare fee
schedule. Even aside from Ms. Talaga’s school-
ing, Ms. Talaga would have had to have under-
stood Medicare’s payment practices because
her income was based entirely on Medicare pay-
ment amounts with respect to her submitted
bills to Medicare.[11]
10 Id. (quoting U.S.S.G. § 2B1.1 cmt. n.3(F)(viii)).
11 Id. at 3–4 (footnotes omitted).
Nos. 15-3117 & 15-3261 9
Consequently, she claimed, she had rebutted the Govern-
ment’s prima facie case.
Ms. Talaga also argued that the amount of loss should be
decreased because she did not recognize that she was com-
12
mitting fraud when she first began at Medicall. Ms. Talaga
pointed to the testimony of another biller, Arian Shogren,
who testified that Mr. Brown told her that all patients actually
were receiving Care Plan Oversight. At first, Shogren stated
that she believed Mr. Brown; however, “she recognized the
13
fraud ‘at the end’ of her time working at Medicall.” Ms. Tal-
aga submitted that she, similarly, did not recognize the fraud
at the outset.
The court accepted that, as an experienced biller, she
would be familiar with Medicare’s reimbursement levels.
Therefore, concluded the court, Ms. Talaga should not be re-
sponsible for the amount of all the false claims, but only those
that fell within the reimbursement schedule set by Medicare.
Thus Ms. Talaga’s amount of loss was reduced to $3.262 mil-
14
lion. The court also reduced Ms. Talaga’s loss amount by
$222,000 for the few months during the conspiracy that she
did not work for Medicall. These reductions, however, did not
result in a reduction in offense level.
The court rejected Ms. Talaga’s argument that she should
not be responsible for fraudulent billings from the beginning
12 See id. at 6.
13 Id. (footnote omitted).
14 See R.387 (1:13-cr-00854-3) at 34–35.
10 Nos. 15-3117 & 15-3261
15
of her tenure. The court found by the preponderance of the
evidence that a seasoned and trained medical biller would
have realized, from the outset, that not every single patient
was receiving Care Plan Oversight, that the number of hours
being billed for Care Plan Oversight could not be reconciled
with the number of actual services that Dr. Lucero was per-
forming, and that she did not have the required documenta-
16
tion for the bills that she was submitting.
Giving Ms. Talaga the benefit of the upcoming amended
schedule, the court calculated a new guidelines range of
fifty-one to sixty-three months. After considering the
§ 3553(a) factors, the court imposed a sentence of forty-five
months’ imprisonment.
Both Mr. Brown and Ms. Talaga timely appealed their sen-
tences.
II
DISCUSSION
Both Mr. Brown and Ms. Talaga maintain that the district
court committed procedural error when imposing their sen-
tences. “Whether a district court followed proper sentencing
procedure is a question of law that we review de novo.”
United States v. Olmeda-Garcia, 613 F.3d 721, 723 (7th Cir. 2010).
To ensure that the sentencing judge did not
commit any “significant procedural error,” we
15 See id. at 29.
16 See id.
Nos. 15-3117 & 15-3261 11
examine whether the district court: i) properly
calculated the Guidelines range; ii) recognized
that the Guidelines range was not mandatory;
iii) considered the sentencing factors in
18 U.S.C. § 3553(a); iv) selected a sentence based
on facts that were not clearly erroneous; and v)
adequately explained the chosen sentence in-
cluding an explanation for any deviation from
the Guidelines range.
United States v. Lockwood, 840 F.3d 896, 900 (7th Cir. 2016)
(quoting Gall v. United States, 552 U.S. 38, 53 (2007)). We con-
sider first Mr. Brown’s claim of error and then turn to Ms. Tal-
aga’s.
A.
With respect to Mr. Brown, the district court properly cal-
culated the guidelines range, recognized its ability to depart
from the Guidelines, considered all of the § 3553(a) factors,
and imposed a sentence that was thirty-four months below the
guidelines range—a sentence that the court characterized as
17
“a significant downward variance.” The court noted that
four factors prevented it from departing further: the duration
of the scheme, the amount of the fraud, the need for general
18
deterrence, and Mr. Brown’s failure to accept responsibility.
17 R.386 (1:13-cr-00854-1) at 103.
18 See id. at 105–06.
12 Nos. 15-3117 & 15-3261
All of these factors are legitimate considerations for the court
to take into account. See 18 U.S.C. § 3553(a).
Mr. Brown maintains, however, that the district court
committed procedural error because it relied on “unfounded”
19
assumptions in articulating a need for general deterrence.
Specifically, Mr. Brown questions the district court’s belief
that would-be white-collar criminals engage in cost-benefit
analyses in deciding whether to engage in illicit activities. He
further questions the court’s application of this principle to
the health-care context, specifically that, given the “low prob-
20
ability of getting caught,” a serious penalty was necessary to
21
deter others from engaging in this kind of crime.
We previously have endorsed the idea that white-collar
criminals “act rationally, calculating and comparing the risks
and the rewards before deciding whether to engage in crimi-
nal activity.” United States v. Warner, 792 F.3d 847, 860–61 (7th
Cir. 2015). They are, therefore, “prime candidates for general
deterrence.” Id. at 860 (quoting United States v. Peppel, 707 F.3d
627, 637 (6th Cir. 2013)). Our approach comports with that of
our sister circuits. See United States v. Musgrave, 761 F.3d 602,
19 Appellant Brown’s Br. 35.
20 R.386 (1:13-cr-00854-1) at 100 (observing that Medicare fraud unfortu-
nately is widespread “in this country” and that “those who are in the med-
ical field and who are tempted to engage in fraud must know … that the
penalties are severe, particularly given the low likelihood of getting
caught”).
21Id. at 105 (“[M]en and women who are businesspeople, they engage in
a cost/benefit analysis. And the benefit is the benefit if you don’t get
caught, and the cost is the probability of getting caught multiplied by the
sanction.”).
Nos. 15-3117 & 15-3261 13
609 (6th Cir. 2014) (“Because economic and fraud-based
crimes are more rational, cool, and calculated than sudden
crimes of passion or opportunity, these crimes are prime can-
didates for general deterrence.” (quoting Peppel, 707 F.3d at
637)); United States v. Martin, 455 F.3d 1227, 1240 (11th Cir.
2006) (using language identical to that in Musgrave); cf. United
States v. Goffer, 721 F.3d 113, 132 (2d Cir. 2013) (noting that
“high sentences” were necessary to alter the calculus “that in-
sider trading ‘was a game worth playing’”). The district court,
therefore, did not err in relying on such a widely accepted
principle.
The district court was entitled to conclude that, given that
health-care fraud is widespread and that therefore there is a
lower likelihood of getting caught, a serious penalty was nec-
essary to ensure deterrence. At sentencing, the Government
specifically brought to the district court’s attention that “the
Medicare program has imposed a moratorium on additional
companies joining the program to provide home healthcare
22
services because it is–the fraud in the area is so prevalent.”
Mr. Brown did not dispute this assertion, either by way of ar-
23
gument or contrary evidence. Indeed, in his brief to this
22 Id. at 71.
23 Indeed, any such argument by Mr. Brown would have been unfounded
because the Centers for Medicare & Medicaid Services did extend its mor-
atorium on new home health agencies in Chicago, among other metropol-
itan areas, based on the “significant potential for fraud, waste, or abuse.”
Medicare, Medicaid, and Children’s Health Insurance Programs: An-
nouncement of the Extension of Temporary Moratoria on Enrollment of
Part B Non-Emergency Ground Ambulance Suppliers and Home Health
14 Nos. 15-3117 & 15-3261
court he acknowledges that “white collar crimes such as
health care fraud, public corruption, and the like, seem to con-
24
tinue unabated.”
Mr. Brown also submits, however, that “[s]ome press re-
leases and news articles leading up to Brown’s September
2015 sentencing hearing include rather dramatic statistics
about the success of intensified law enforcement efforts in the
25
area of Medicare fraud.” Given these increased efforts and
the publicity they received, Mr. Brown suggests that “it is dif-
ficult to understand how the district court could have so
heartily agreed with the proposition that white-collar offend-
26
ers in Brown’s field are less likely to get caught.” Mr. Brown
never invited the district court’s attention to these press re-
leases and articles. Therefore, we can hardly fault the court for
not considering them. “[S]entencing judges cannot be ex-
pected to rely on evidence not before them.” United States v.
Reibel, 688 F.3d 868, 872 (7th Cir. 2012).
Moreover, even if this material had been presented to the
district court, it would not have required the court to alter its
conclusion that those who engage in Medicare fraud have a
27
“low likelihood of getting caught.” In determining the im-
portance of deterrence in crafting a sentence, the sentencing
Agencies in Designated Geographic Locations, 82 Fed. Reg. 2363 (Jan. 9,
2017).
24 Appellant Brown’s Br. 41.
25 Id. at 37–38.
26 Id. at 39.
27 R.386 (1:13-cr-00854-1) at 100.
Nos. 15-3117 & 15-3261 15
court must answer the situation from the perspective of the
prospective offender. From that perspective, the likelihood of
getting caught depends not simply on the amount of re-
sources that the Government expends on a particular type of
crime, but the frequency with which the particular crime is
committed and the ease with which it can be committed and
go undetected. Indeed, Mr. Brown observed in his brief that
28
“health care fraud … seem[s] to continue unabated.” The
vast size and complexity of the Medicare program makes
29
fraud detection especially difficult. Indeed, the unique prob-
lems faced in detecting fraud in the home-health-care indus-
try prompted the Centers for Medicare & Medicaid Services
to extend its moratorium on new home-health-care agencies
in Chicago—a fact specifically brought to the district court’s
30
attention. In short, because of the magnitude of the Medicare
program, an increase in resources would not necessarily re-
sult in a potential offender determining that there is a mean-
ingful increase in the likelihood of detection. The district court
did not err, therefore, in resting its conclusion about the need
28 Appellant Brown’s Br. 41.
29 The Government Accountability Office continues to designate “Medi-
care as a high-risk program … due to its size, complexity, and susceptibil-
ity to mismanagement and improper payments.” Gov’t Accountability Of-
fice, High Risk Series 520 (2017), https://www.gao.gov/assets/690/
682765.pdf; see also United States v. Kuhlman, 711 F.3d 1321, 1328 (11th Cir.
2013) (observing that “deterrence is an important factor in the sentencing
calculus because health care fraud is so rampant that the government lacks
the resources to reach it all”).
30 See R.386 (1:13-cr-00854-1) at 71.
16 Nos. 15-3117 & 15-3261
for general deterrence on the basis that there was a low likeli-
hood of getting caught for Medicare fraud.
Mr. Brown maintains, however, that his case is indistin-
guishable from United States v. England, 555 F.3d 616 (7th Cir.
2009), and other cases in which we have found error because
the district court based the sentence on unfounded assump-
tions. In England, the defendant, while incarcerated, threat-
ened witnesses over the telephone and later was convicted of
threatening force against a witness, his brother-in-law. At sen-
tencing, the court articulated the belief that, had the defend-
ant been out on bond, he would have armed himself and used
“what degree of force … was necessary to get them to drop
the charges against him.” Id. at 620–21 (internal quotation
marks omitted). The district court, therefore, determined that
the appropriate guideline was § 2A2.1, “Assault with Intent
to Commit Murder; Attempted Murder,” and that the nature
of the offense warranted a sentence within the attempted-
murder guideline range. Id. at 618–19. On appeal, we evalu-
ated whether the district court’s findings “were sufficiently
‘based on reliable evidence’ to satisfy due process, or if they
amount[ed] to speculation, albeit informed, that f[ell] short of
satisfying due process requirements.” Id. at 622 (quoting
United States v. Santiago, 495 F.3d 820, 824 (7th Cir. 2007)). We
explained that
[t]he preponderance of the evidence standard
satisfies due process in a case, such as this one,
where the district court sentences a defendant
based on the guideline for a crime the court be-
lieves the defendant would have committed if
out of prison on bond. Simply put, the question
Nos. 15-3117 & 15-3261 17
here is whether a preponderance of the evi-
dence supports the court’s belief that the defend-
ant would have committed the crime. Adhering
to such a standard operates to preclude a sen-
tencing court from sentencing defendants for
crimes not sufficiently supported by reliable ev-
idence.
Id. In England, we were “unable to conclude that a preponder-
ance of the evidence buttresse[d] the court’s belief that Eng-
land would have” committed the crime of attempted murder
because all of the defendant’s family, including the threat-
ened witness, “testified that they did not feel threatened by
England’s statements” but “that England was merely ‘blow-
ing off steam’ in issuing threats.” Id. at 623. “[B]ecause the ev-
idence appear[ed] at least in equipoise,” the preponderance
of the evidence standard was not met. Id.
Mr. Brown’s situation stands in stark contrast to the de-
fendant in England. In England, the district court drew conclu-
sions about England’s individual conduct, which were not
supported by a preponderance of the evidence, to determine
England’s presumptive guideline range and then sentenced
England within that range. Here, however, the factual foun-
dations for the district court’s guideline calculation are sound.
Moreover, the district court’s statements regarding white-col-
lar crime and the prevalence of Medicare fraud are not un-
founded assumptions but are grounded in case law, in the rec-
31
ord, and in common sense.
31The other cases on which Mr. Brown relies are equally unhelpful. In
United States v. Halliday, 672 F.3d 462 (7th Cir. 2012), the district court, in
18 Nos. 15-3117 & 15-3261
Here, Mr. Brown faults the district court for not address-
ing and accepting his policy argument, based on penological
studies, that “it is the certainty of conviction rather than the
32
length of sentence that serves to deter.” In the district court,
the only mention of these studies was at the sentencing hear-
ing. Defense counsel stated:
reviewing § 3553(a) factors, stated that “Halliday believed [child pornog-
raphy] was ‘victimless’ and that he did not ‘believe any of this is crimi-
nal.’” Id. at 474. However, there was no evidence in the record for the
court’s conclusions; the “statements about Halliday’s belief that the crimes
at issue were ‘victimless’ were pure speculation.” Id. at 475. Here, the
court’s statement about the low likelihood of being caught for health-care
fraud is grounded in the fact that Medicare fraud, and specifically home-
health-care fraud, is prevalent, a fact that explicitly was raised during sen-
tencing.
Similarly in United States v. Bradley, 628 F.3d 394, 395 (7th Cir. 2010),
the district court imposed a sentence that was 169 months above the guide-
lines range. The district court believed a severe penalty was necessary be-
cause, according to the court, the defendant had a long, undiscovered his-
tory of engaging in sexual activity with minors. However, there was no
evidence in the record that the defendant had engaged in sexual activity
with any minor except for the victim. In reviewing the sentence, we ob-
served that the district court had made “a questionable … prediction
about future conduct based on rank speculation about other, multiple in-
stances of deviant behavior.” Id. at 401. Here, the court did not engage in
any speculation about the defendant’s past or future conduct, and specu-
lation was not used to justify an above-guidelines sentence. Cf. United
States v. Martin, 718 F.3d 684, 688 (7th Cir. 2013) (noting that, “although
we have held that a district court’s unfounded speculation that sex offend-
ers are not deterrable may necessitate remand, we have done so only
where the court imposed an above-guidelines sentence for purposes of
deterrence” (citation omitted)).
32 Brown’s Reply Br. 3.
Nos. 15-3117 & 15-3261 19
I’ll just note briefly that the statute only requires
adequate deterrence, not maximal deterrence
with the sentence the Court imposes. And I
would also add that studies have shown that it’s
really the certainty of punishment that drives
people more in terms of deterrence than the ac-
tual severity or even the swiftness of the impo-
sition of punishment.[33]
For these reasons, counsel urged, “even a modest prison term
for Mr. Brown could send that adequate message to society
that law enforcement can and will investigate you for Medi-
34
care fraud.” The district court did not have before it any spe-
cific studies. Indeed, Mr. Brown did not bring specific studies
35
to this court’s attention until his reply brief.
There is no question that, from a procedural perspective,
the district court addressed and rejected this argument. In its
statement of reasons, the court stated that it “agree[d] with
[Government counsel] that people in the healthcare field …
engage in a cost/benefit analysis. And the benefit is the benefit
if you don’t get caught, and the cost is the probability of get-
36
ting caught multiplied by the sanction.”
The district court was under no obligation to accept or to
comment further on Mr. Brown’s deterrence argument. In
United States v. Schmitz, 717 F.3d 536, 542 (7th Cir. 2013), the
33 R.386 (1:13-cr-00854-1) at 61.
34 Id.
35 See Brown’s Reply Br. 3–4.
36 R.386 (1:13-cr-00854-1) at 105.
20 Nos. 15-3117 & 15-3261
defendant pleaded guilty to mail fraud, and the resulting
guidelines sentence was 87 to 108 months. Before the district
court, the defendant argued that the recently increased “pen-
alties for fraud offenses represented a departure from the phi-
losophy animating the original version of the Guidelines,
namely that a short but definite period of incarceration would
suffice as a deterrent to most white collar offenders.” Id. at
539. The district court, without explicitly addressing this ar-
gument, sentenced Schmitz to a term of eighty-four months.
On appeal, we determined that Schmitz’s argument was
“not one addressed to his own characteristics and circum-
stances,” but “was a categorical challenge to the validity of
the fraud guideline, on the ground that the severity of sen-
tences called for by the current incarnation of that guideline
is unsupported by any empirical data demonstrating the
need” for longer sentences. Id. at 542. Because it was a “blan-
ket challenge to the guideline rather than one tailored to [the
defendant’s] unique characteristics and circumstances, it
[wa]s not one that the district judge [had to] explicitly ad-
dress.” Id. Moreover, the district court “was perfectly entitled
to accept the penal philosophy embodied in the current fraud
guideline and was not obligated to explain why [it] chose to
do so.” Id.; see also United States v. Hancock, 825 F.3d 340, 344
(7th Cir. 2016) (quoting Schmitz for the proposition that a dis-
trict court need not address Hancock’s policy argument that
“the Guidelines’ offense-level increases for receipt, transport,
possession, or distribution of child-pornography, fit poorly
with modern practical realities” and specifically reiterating
that “the district judge was ‘perfectly entitled to accept the
penal philosophy embodied in the current [child-pornogra-
phy] guideline’” (alteration in original)).
Nos. 15-3117 & 15-3261 21
Like the district courts in Schmitz and Hancock, here the
district court was “perfectly entitled to accept the penal phi-
losophy embodied” in the Guidelines that societal goals are
served by increasing fraud sentences to reflect the amount of
loss, as opposed to imposing only nominal sentences. We find
no substantive or procedural error in the district court’s im-
position of sentence on Mr. Brown.
B.
We turn now to Ms. Talaga’s sentence. She takes issue
with one of the factual bases on which the court’s calculation
of loss rests. Specifically, she claims that the district court’s
calculation of loss should not include amounts for claims da-
ting back to 2007 because the Government did not prove that
she was aware at that time that the claims were fraudulent.
We review the district court’s determination of loss for clear
error, see United States v. Diamond, 378 F.3d 720, 726 (7th Cir.
2004), and will reverse the district court “only if we are left
with the definite and firm conviction that a mistake was
made,” United States v. Bryant, 557 F.3d 489, 497 (7th Cir. 2009)
(internal quotation marks omitted).
The record supports the district court’s conclusion that, in
2007, Ms. Talaga would have known that her submissions
were fraudulent. Before the district court, Ms. Talaga argued
that she had training in Medicare billing and “was intimately
37
familiar with the billing procedures of the medical practice.”
37 R.242 (1:13-cr-00854-3) at 3 (internal quotation marks omitted).
22 Nos. 15-3117 & 15-3261
She also submitted documentation of her successful comple-
tion of a course at Triton Junior College on Medical Billing
38
that was “all about Medicare and medical billing problems.”
Consequently, she maintained that her intended loss should
be based on what Medicare actually paid, not what was billed,
because she “knew that Medicall … would not have obtained
39
the full $4M+ that [it] fraudulently billed.” The district court
accepted this argument to reduce Ms. Talaga’s amount of loss
to $3.262 million. This same evidence supports the district
court’s conclusion that Ms. Talaga would have recognized
from the outset that there was a problem with billing every
patient for Care Plan Oversight, that the numbers of hours for
Care Plan Oversight could not be reconciled with the number
of hours that the physicians spent performing other services,
and that there was a lack of documentation to support the
40
claims she was submitting.
Having convinced the district court of her expertise,
Ms. Talaga now tries to discount the training she received. As
we already have noted, however, in addition to her formal
education, Ms. Talaga was an experienced Medicare biller
when she arrived at Medicall. There was testimony that she
performed her work quickly, that she knew how to re-code
rejected claims so that they would be paid, and that she
41
trained other staff. The district court reasonably concluded
38 Id. at 3–4 (internal quotation marks omitted).
39 Id. at 1.
40 See R.387 (1:13-cr-00854-3) at 29.
41 See R.374 (1:13-cr-00854-3) at 100 (Trial Tr. 346).
Nos. 15-3117 & 15-3261 23
that, based on Ms. Talaga’s training and experience, she
would have recognized, based on the sheer volume of claims
for Care Plan Oversight (totaling up to three weeks per month
42
of Dr. Lucero’s time), that these claims were fraudulent.
Ms. Talaga also submits that other evidence in the record
undermines the court’s conclusion that she would have rec-
ognized the fraud. Ms. Talaga points to the testimony of an-
other Medicall biller, Arian Shogren, who stated that she ini-
tially believed that all patients actually were receiving Care
Plan Oversight. However, Shogren did not have experience
with Medicare billing before she began working at Medicall.
Indeed, when she began working at Medicall, she was a tech-
nician who did scheduling, took vitals, and kept track of pa-
43
tients’ medications. Later, she performed some billing after
44
receiving training from Ms. Talaga. Consequently, the fact
that she did not immediately recognize the fraud does not
suggest that Ms. Talaga, an experienced biller, also failed to
do so.
Second, Ms. Talaga observes that one Government wit-
ness, Kelly Hartung, gave conflicting definitions of Care Plan
Oversight. In her view, because the Government’s own wit-
ness could not articulate consistently a definition for Care
Plan Oversight, it “is unrealistic” to expect that she would
42 See R.265 (1:13-cr-00854-3) at 9 (citing Gov’t Trial Ex. 7-S).
43 See R.375 (1:13-cr-00854-3) at 6–7 (Trial Tr. 402–03).
44 Id. at 9–10 (Trial Tr. 405–06).
24 Nos. 15-3117 & 15-3261
have been able to recognize that the bills for Care Plan Over-
45
sight were fraudulent. However, the fact that Hartung had
difficulty articulating the definition of Care Plan Oversight
46
during cross-examination does not negate the fact that
Ms. Talaga, as a trained Medicare biller, knew when it was
appropriate to bill for Care Plan Oversight and knew that
Care Plan Oversight bills—in such a high volume that they
represented the bulk of Dr. Lucero’s time—were fraudulent.
Ms. Talaga has not established that the district court com-
mitted clear error in holding her responsible for fraudulent
claims from the beginning of her tenure with Medicall. We
therefore affirm her sentence.
Conclusion
For the foregoing reasons, we affirm the district court’s
judgments with respect to the sentences of Mr. Brown
and Ms. Talaga.
AFFIRMED
45 Appellant Talaga’s Br. 10–11.
46 See R.373 (1:13-cr-00854-3) at 40–49 (Trial Tr. 127–36).