United States v. Filcheck ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4472
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM C. FILCHECK, JR.,
Defendant - Appellant.
No. 04-4482
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RONALD L. HALSTEAD,
Defendant - Appellant.
No. 04-4485
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SCOTT G. TAYLOR,
Defendant - Appellant.
Appeals from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (CR-01-45)
Submitted: January 11, 2006 Decided: February 8, 2006
Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Joseph J. Harris, Morgantown, West Virginia; Richard A. Jaffe,
Houston, Texas; James B. Zimarowski, Morgantown, West Virginia, for
Appellants. Thomas E. Johnston, United States Attorney, Wheeling,
West Virginia; Patrick M. Donley, Robert F. Adams, Daniel S.
Goodman, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
William C. Filcheck, Jr., Ronald L. Halstead, and Scott
G. Taylor appeal their convictions and sentences for conspiracy to
commit health care fraud in violation of 18 U.S.C. § 371 (2000),
and health care fraud in violation of 18 U.S.C. § 1347 (2000).
Halstead also appeals his conviction and sentence for conspiracy to
launder money in violation of 18 U.S.C. § 1956(h) (2000). We
affirm Filcheck, Halstead, and Taylor’s convictions, but we vacate
their sentences and remand for resentencing in light of United
States v. Booker, 543 U.S. 220 (2005).
The Appellants challenge the sufficiency of the evidence
against them. In reviewing a sufficiency challenge, “[t]he verdict
of a jury must be sustained if there is substantial evidence,
taking the view most favorable to the Government, to support it.”
Glasser v. United States, 315 U.S. 60, 80 (1942). This court has
defined “substantial evidence,” in the context of a criminal
action, as that evidence which “a reasonable finder of fact could
accept as adequate and sufficient to support a conclusion of a
defendant’s guilt beyond a reasonable doubt.” United States v.
Burgos, 94 F.3d 849, 862 (4th Cir. 1996).
The Government presented sufficient evidence to prove
that Halstead created and instructed a system at the clinic to
recruit new patients, convince them of the need for unnecessary
treatments, perform the maximum amount of reimbursable treatments
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regardless of medical need, and then bill insurance companies under
doctors’ signatures without their consent. The Government
presented sufficient evidence that Filcheck and Taylor were fully
aware of and participated in the fraudulent practices at the
clinic. The Government also presented sufficient evidence
supporting Halstead’s money laundering conviction. The jury
reasonably accepted as sufficient the evidence to support
Appellants’ convictions, and we find no basis to overturn that
determination.
The Appellants next contend that the district court
improperly denied their requests to admit certain evidence. This
court reviews the admissibility of evidence for an abuse of
discretion and will not find an abuse unless a decision was
“arbitrary and irrational.” United States v. Weaver, 282 F.3d 302,
313 (4th Cir. 2002). The district court did not abuse its
discretion in denying Halstead’s request to admit seminar materials
because the materials were not relevant to office manager Ernest
Twigg’s testimony and were potentially confusing to the jury. As
the district court stated, Halstead could have introduced the
materials at a later time, but did not. The district court’s
evidentiary ruling was neither arbitrary nor irrational.
The district court also did not abuse its discretion in
denying Taylor’s requests to ask an investigator about potentially
exculpatory statements. Those statements were not admissible under
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Fed. R. Evid. 106 because that rule “applies only to writings or
recorded statements, not to conversations.” United States v.
Wilkerson, 84 F.3d 692, 696 (4th Cir. 1996). Taylor was also not
prejudiced because he testified about those statements. The
district court’s evidentiary ruling was neither arbitrary nor
irrational and it did not abuse its discretion.
The Appellants further claim the district court erred in
its jury instructions. This court reviews a district court’s
decision whether to give a jury instruction for abuse of
discretion. United States v. Kennedy, 372 F.3d 686, 698 (4th Cir.
2004). The Appellants claim the district court abused its
discretion when it did not include an “incident to” jury
instruction requested by Halstead that addressed the billing of
tests and services performed by someone other than a medical doctor
under the doctor’s name. A physician does not need to be present
while health care personnel in their office provide a specific
treatment procedure, but such treatments must be part of a course
of treatment prescribed by a physician with the physician’s active
participation in monitoring the entire treatment plan. In the
instances of fraud in this case, the medical doctors did not
initially examine any of the patients, did not prescribe any course
of treatment, and did not monitor treatment. The Appellants failed
to provide sufficient evidence that they engaged in “incident to”
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billing and the district court did not abuse its discretion in
refusing to submit the requested jury instruction.
The Appellants also claim that the district court erred
by including a jury instruction regarding deliberate ignorance,
also known as willful blindness. “A willful blindness instruction
is proper when the defendant asserts a lack of guilty knowledge but
the evidence supports an inference of deliberate ignorance” on the
defendant’s part. United States v. Ruhe, 191 F.3d 376, 384 (4th
Cir. 1999). The district court properly gave such an instruction
because while each of the Appellants claimed they did not know of
the fraudulent billing, the evidence fully supported the inference
of deliberate ignorance.
The Appellants next claim that the district court erred
in ordering restitution. This court reviews a district court’s
order of restitution for abuse of discretion. See United States v.
Vinyard, 266 F.3d 320, 325 (4th Cir. 2001). The government bears
the burden of establishing each victim’s amount of loss by a
preponderance of the evidence. See United States v. Henoud, 81
F.3d 484, 490 (4th Cir. 1996). The district court found that it
was required to order restitution under the Mandatory Victims
Restitution Act. See 18 U.S.C. § 3663A(a)(1) (2000). The district
court limited the restitution to the injuries proven at trial. The
Government calculated the amount of loss from the injured parties
in the indictment and proved the restitution amounts by a
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preponderance of the evidence. The district court did not abuse
its discretion in calculating restitution.
The Appellants finally claim that the district court
improperly sentenced them when it imposed a sentence greater than
the maximum authorized by the facts found by the jury alone.
Because they failed to raise this claim below, we review it for
plain error. United States v. Hughes, 401 F.3d 540, 547 (4th Cir.
2005). The district court imposed numerous enhancements to the
sentences of each Defendant in this case. The district court erred
because the enhancements occurred under the mandatory guidelines
scheme.* Hughes, 401 F.3d at 547. That error was plain because
Booker abrogated the previous law of this circuit. Id. at 547-48.
To affect their substantial rights, the sentences imposed must have
been longer than what could have been imposed based on the jury’s
finding. Id. at 548. As this was the result of the application of
the enhancements in these cases, the district court’s offense level
increases violated the Sixth Amendment.
In light of Booker, we vacate Filcheck, Halstead, and
Taylor’s respective sentences and remand for resentencing.
Although the sentencing guidelines are no longer mandatory, Booker
makes clear that a sentencing court must still “consult [the]
Guidelines and take them into account when sentencing.” 125 S. Ct.
*
Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of sentencing.
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at 767. On remand, the district court should first determine the
appropriate sentencing range under the Guidelines, making all
factual findings appropriate for that determination. See Hughes,
401 F.3d at 546 (applying Booker on plain error review). The court
should consider this sentencing range along with the other factors
described in 18 U.S.C. § 3553(a) (2000), and then impose a
sentence. Id. If that sentence falls outside the Guidelines
range, the court should explain its reasons for the departure as
required by 18 U.S.C. § 3553(c)(2) (2000). Id. The sentence must
be “within the statutorily prescribed range and . . . reasonable.”
Id. at 546-47.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART, AND REMANDED
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