United States v. Janati , 237 F. App'x 843 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4255
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ABDORASOOL JANATI; FOROUZANDEH JANATI,
Defendants - Appellants.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (CR-03-433)
Argued: March 13, 2007 Decided: August 1, 2007
Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Stuart Alexander Sears, ZWERLING, LEIBIG & MOSELEY, P.C.,
Alexandria, Virginia; Matthew William Greene, SMITH & GREENE,
P.L.L.C., Fairfax, Virginia, for Appellants. David Benjamin
Joyce, Special Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON
BRIEF: John K. Zwerling, ZWERLING, LEIBIG & MOSELEY, P.C.,
Alexandria, Virginia, for Appellant Forouzandeh Janati. Paul J.
McNulty, United States Attorney, Steve A. Linick, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dr. Abdorasool Janati and his wife, Mrs. Forouzandeh Janati,
were convicted of one count of conspiracy to defraud the United
States, in violation of 18 U.S.C. § 371, and 61 substantive counts
of health care fraud, in violation of 18 U.S.C. § 1347. They
challenge both their convictions and sentences. We affirm.
I
For over ten years, Dr. Janati and his wife, Mrs. Janati, ran
the Neurological Institute of Northern Virginia. Dr. Janati was
a neurologist, and the Neurological Institute was his practice.
Mrs. Janati was the office manager.
Between 1996 and 2003, the Janatis defrauded Medicare and
private insurance companies, overbilling them in three ways.
First, in billing insurers for nerve conduction tests, they
inflated the number of tests actually performed. Second, they
billed insurers for brain wave studies that were never conducted.
Third, they “upcoded” office visits, meaning that when they billed
insurers, they represented that an office visit was more involved
or complex than it actually was, justifying a higher billing rate.
The Janatis submitted bills to insurers, coding the work
performed in accordance with the Physicians’ Current Procedural
Terminology (CPT) manual. The CPT manual lists standardized codes
which correlate to procedures and services performed by
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physicians. The CPT manual has five codes for office visits,
which are at issue in this case, ranging from Code 99211 to Code
99215, in increasing order of complexity and comprehensiveness.
Code 99211, the lowest level for such visits, is used when “the
presenting problem(s) are minimal. Typically, 5 minutes are spent
performing or supervising these services.” Code 99215, the
highest level for office visits, applies to visits that have at
least two of the following three components: (1) “a comprehensive
history”; (2) “a comprehensive examination”; and (3) “medical
decision making of high complexity.” The “presenting problem(s)”
are usually of moderate to high severity, and physicians
“typically spend 40 minutes face-to-face with the patient and/or
family.”
At trial, the evidence showed that the Janatis billed
virtually all office visits using the highest code, Code 99215,
without regard to the seriousness of the patient’s problem or the
complexity of the visit. The government’s expert on medical
billing codes examined 471 office visits, including the visits
which were the subject of the indictment, and determined that
every one of the office visits was billed using Code 99215. When
asked if the use of that billing code was justified for any of the
office visits, the expert replied, “Not a one.”
While the Janatis correctly pointed out that selecting the
proper billing code for a given visit required some judgment, the
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government’s expert reiterated that the visits that she examined
were “[n]ot even close” to being properly classified at the Code
99215 level. Additionally, the government presented evidence that
Mrs. Janati had removed all billing codes below the Code 99214
level from the standard billing form used in the office. Former
employees testified that the Janatis instructed them to bill all
follow-up visits under Code 99215, even though representatives of
Medicare and other insurance plans had warned them that this was
improper.
Following conviction, the government offered another expert
on medical billing to support the forfeiture order. He testified
by affidavit that of 364 billing records reviewed, 358 had been
billed using Code 99215 (six records were missing), and that each
of the records reviewed involved an inappropriate upcoding.
At sentencing, the government and Dr. Janati (but not Mrs.
Janati) stipulated to the appropriate sentencing factors for
calculating the offense level under U.S.S.G. § 2B1.1 (offenses
involving fraud or deceit). To the base offense level of 6, they
agreed to add 14 levels, based on a calculation of the insurers’
economic losses from the fraud of between $400,000 and $1 million.
See U.S.S.G. § 2B1.1(b)(1)(H). The calculation resulted from
adding overpayments made by insurers ($136,110 for nerve
conduction tests that were never performed and $37,583 for brain
wave tests that were never performed) to losses caused by
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overbilling for office visits (estimated by statistical sampling
to be $359,468.58). While the calculation resulted in a figure
greater than $530,000, Dr. Janati and the government stipulated to
the somewhat smaller figure of $445,598.66. In addition, they
agreed that the number of victim insurers was between 10 and 50,
resulting in another 2-level increase. Thus, under the
stipulation, the final offense level was 22, although the
government remained free to argue for an additional 2-level
enhancement for abuse of a position of trust.
In sentencing Dr. Janati, the district court found that “the
loss and role in the offense that was agreed to by the parties
here [was] properly assessed.” Declining any additional
enhancement, the court sentenced Dr. Janati to 41 months’
imprisonment, the bottom of a Guidelines range. The court also
entered, by consent of Dr. Janati and the government, an order of
restitution, requiring payment to the victim insurers of
$445,598.66 (the same as the stipulated economic losses).
In sentencing Mrs. Janati, who represented herself at
sentencing, the district court imposed the same sentence.
Incorporating the findings that the court made with respect to Dr.
Janati, the district court found Mrs. Janati’s “Guideline factors
to be properly assessed at a range of 41 to 51 months as well.”
The court also entered a restitution order making Mrs. Janati
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jointly and severally liable for the restitution required of Dr.
Janati.
II
First, the Janatis contend that their convictions for
upcoding should be overturned, because the standards for choosing
one billing code over another were “fatally vague,” in violation
of the Fifth Amendment’s Due Process Clause. They reason that the
fraud alleged in the “upcoding” counts was based on the standards
of the CPT manual, which are too “vague and ambiguous” to “provide
adequate guidance and/or notice upon which a criminal conviction
could validly exist.”
While the Janatis focus on potential ambiguities in various
terms of the CPT manual, the fact remains that they were charged
with violating the health care fraud statute, 18 U.S.C. § 1347,
not the CPT manual. The vagueness inquiry rests on whether the
challenged law provides sufficient notice for people to conform
their conduct to the law and to prevent arbitrary or
discriminatory enforcement. See Hill v. Colorado, 530 U.S. 703,
732 (2000); Kolender v. Lawson, 461 U.S. 352, 357 (1983) (noting
due process requires that “a penal statute define the criminal
offense with sufficient definiteness that ordinary people can
understand what conduct is prohibited and in a manner that does
not encourage arbitrary and discriminatory enforcement”). The CPT
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manual simply does not contain mandates backed by legal sanctions,
such that officials must enforce them or that people need
sufficient notice of them so as to avoid penalties. Any vagueness
in the CPT manual itself cannot be the basis for a due process
challenge to the fraud violations in this case.
The Janatis were convicted under the health care fraud
statute, 18 U.S.C. § 1347, which punishes one who
knowingly and willfully executes . . . a scheme or
artifice . . . to obtain, by means of false pretenses,
representations, or promises, any of the money or
property owned by, or under the custody or control of,
any health care benefit program, in connection with the
delivery or payment for health care benefits.
This provision is not overly vague. It gives ample notice that
criminal liability attaches to those who knowingly give a
representation that could be shown to be objectively false about
services performed for the purpose of obtaining money. These
specific, particular elements more than satisfy the demands of due
process. It is therefore unsurprising that courts have uniformly
rejected vagueness challenges to the parallel mail, bank, and
securities fraud statutes, see 18 U.S.C. §§ 1341-48. See, e.g.,
United States v. Welch, 327 F.3d 1081, 1109 n.29 (10th Cir. 2003);
United States v. Szur, 289 F.3d 200, 209 n.5 (2d Cir. 2002).
The Janatis’ contention that the CPT manual supports a
vagueness claim would merit more serious consideration if the
government failed to prove scienter, thereby undermining the legal
basis for their convictions. The health care fraud statute
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requires a specific intent to defraud, see 18 U.S.C. § 1347, and
the indictment charged that the Janatis knowingly misrepresented
that Dr. Janati had performed services that qualified for billing
at the Code 99215 level. Any opacity of the CPT manual would have
to be so great that one could not know the proper code and
therefore could not knowingly record an improper code. But then,
the Janatis’ vagueness challenge would be no more than a challenge
to the sufficiency of the evidence of their mental states.
The evidence overwhelmingly demonstrates, however, that the
Janatis knowingly used improper CPT codes if for no other reason
than the fact that they altered their forms to eliminate even the
option of billing at a level lower than Code 99214. In addition,
before 1996, the Janatis billed the majority of their services at
the Code 99213 level, which demonstrates their knowledge of the
proper codes. After 1996, they billed every visit at the highest
level, showing a lack of any good faith concern with how to bill
at the proper level. The government’s expert testified at trial
that none of the charged visits came “even close” to warranting
the Code 99215 billing level. Finally, there was evidence that
the Janatis continued to bill falsely even after being
specifically warned by Medicare officials and other insurers that
their billing was improper. The evidence that the government
presented was thus incompatible with the Janatis’ claim that the
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CPT manual was too vague to understand, and we therefore reject
the vagueness challenge.
III
Mrs. Janati contends that, in sentencing her, the district
court failed to make findings on the record relating to the
sentencing factors of economic loss and the number of victims,
claiming that she was improperly saddled with the stipulation
entered into by her husband and the government. We conclude that
her contention is without merit. The loss figure, while
stipulated to by her husband, was actually based on the scrupulous
calculation by government experts and was agreed to be the actual
loss by the presentence report. Moreover, the district court made
an independent finding of the loss figure, stating, “I find the
Guideline factors in this case to be properly assessed [with
respect to Dr. Janati’s sentence] at a range of 41 to 51 months.
I find that the loss and role in the offense that was agreed to by
the parties here to be properly assessed.” He then incorporated
that independent finding into Mrs. Janati’s Guidelines
calculation: “I find the Guideline factors to be properly
assessed at a range of 41 to 51 months as well.” Because Mrs.
Janati’s participation in the conspiracy gave no basis for a
different calculation and she provided no information suggesting
the calculation was wrong, the district court was undoubtedly
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correct, and certainly did not commit clear error. This procedure
satisfied the district court’s obligation to make factual
determinations on the record. See United States v. Bolden, 325
F.3d 471, 497 (4th Cir. 2003) (permitting district court to
resolve disputed issues of fact simply by making findings on the
record or adopting findings contained in the record).
IV
Mrs. Janati similarly contends that the amount of
restitution was improperly ordered by the district court based on
her husband’s stipulation. For the reasons discussed in Part III,
the district court did not clearly err in assessing the
restitution amount, which was simply the actual loss determined by
the government, probation office, and district court. She also
contends that the probation officer and the district court failed
to comply with the procedural requirements for entering her
restitution order. See 18 U.S.C. §§ 3663A, 3664. But she has
presented no evidence of such a failure, and we therefore find
this argument without merit.
V
Both of the Janatis contend that their sentences of 41
months’ imprisonment plus three years’ supervised release are
unreasonable. They claim that reason required the district court
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to impose a lower, variance sentence in light of their commitment
to medicine; the destruction of their medical practice; Dr.
Janati’s age and health problems; their responsibilities to their
adult children; and Dr. Janati’s continuing to treat patients
after their insurers stopped reimbursing him.
We disagree. First, we observe that the sentences fell at
the bottom of the Guidelines range. Second, any sentence within
the Guidelines enjoys a presumption of reasonableness. See United
States v. Green, 436 F.3d 449, 457 (4th Cir. 2006); see also Rita
v. United States, ___ S. Ct. ___ (June 21, 2007) (approving this
court’s presumption of reasonableness for a sentence within the
Guidelines). Third, the reasons advanced by the Janatis for a
variance sentence are actually discouraged in most instances. See
U.S.S.G. § 5H1.1 (age); U.S.S.G. § 5H1.2 (education and vocational
skills); U.S.S.G. § 5H1.5 (employment record); U.S.S.G. § 5H1.6
(family ties and responsibilities); U.S.S.G. § 5H1.11 (prior good
works). To the extent that the Guidelines already take them into
account, consideration of such factors would tend to undermine the
sentencing goals of fairness and uniformity.
The reasonableness of these sentences is bolstered by the
fact the Janatis benefited from several decisions that the
district court made in calculating the Guidelines range. An
argument could have been made that the loss amounts upon which the
offense levels rested should have been substantially higher.
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Similarly, the number of victims defrauded may have been
substantially greater than 50, which would have triggered a
further two-point enhancement. In addition, Dr. Janati could have
received a 2-level enhancement for abuse of a position of trust,
and Mrs. Janati could have received a 2-level enhancement for
obstruction of justice, as the presentence report recommended.
Finally, both could have received enhancements for aggravated
roles in the offense. In relation to the provisions of the
Sentencing Guidelines, the Janatis received relatively lenient
sentences.
Given the far-reaching nature of the Janatis’ fraudulent
scheme, involving many victims and large sums of money over many
years, the sentences appear to fulfill the purposes of sentencing.
See United States v. Shortt, 485 F.3d 243, 249 (4th Cir. 2007) (“A
sentence that does not serve the announced purposes of §
3553(a)(2) is unreasonable”). They “reflect the seriousness of
the offense, [] promote respect for the law, and [] provide just
punishment for the offense,” 18 U.S.C. § 3553(a)(2)(A), as well as
“afford adequate deterrence to criminal conduct,” id. §
3553(a)(2)(B).
VI
Finally, we reject the Janatis’ argument that the district
court failed to provide an adequate explanation of the basis for
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their sentences. See United States v. Johnson, 445 F.3d 339, 345
(4th Cir. 2007) (noting that the district court need not
“robotically tick through § 3553(a)’s every subsection”); see also
United States v. Eura, 440 F.3d 625, 632 (4th Cir. 2006).
* * *
The Janatis’ convictions and sentences are
AFFIRMED.
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