United States v. Wallace, Richard

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 07-4052 & 07-4053
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RICHARD WALLACE and DOWNSTATE
TRANSPORTATION SERVICES, INC.,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Southern District of Illinois.
No. 06-40041-GPM—G. Patrick Murphy, Judge.
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ARGUED JUNE 2, 2008—DECIDED JULY 1, 2008
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Before EASTERBROOK, Chief Judge, and ROVNER and
WOOD, Circuit Judges.
EASTERBROOK, Chief Judge. Many people eligible for
health benefits under the Medicaid program do not have
access to automobiles, and many rural areas lack public-
transit systems. So Medicaid will pay the cost of taxicabs
to transport patients between their homes and medical
providers. The program reimburses taxi services at the
“community rate” for “loaded miles.” 89 Ill. Admin. Code
§140.492. (Medicaid operates through state agencies, and
Illinois supplies the rules that govern these events.) A
2 Nos. 07-4052 & 07-4053
“community rate” is the price set by the public agency
with jurisdiction over taxi services, and “loaded miles” are
miles traveled with the patient in the taxi. The forms on
which taxi companies submit claims for reimbursement
include boxes prominently labeled “loaded miles”; a
handbook covering transportation services informs busi-
nesses that only loaded miles are compensable.
Richard Wallace and his business Downstate Transporta-
tion Services (collectively “Wallace”) furnished taxi ser-
vice to Medicaid recipients in 16 rural counties in southern
Illinois. Wallace applied for payment on forms that
called for truthful statements of “loaded miles.” Evidence
in this criminal prosecution established, however, that
Wallace billed for many miles in which the taxi carried
only the driver. For some trips Wallace calculated miles
from the driver’s base station to the patient’s home, to the
medical provider, back to the patient’s home. For other
trips Wallace calculated miles as if the trip started at his
headquarters in Carterville, Illinois, and returned there.
Wallace collected from Medicaid about $500,000 more
than he was entitled to. A jury convicted him of 18 counts
of mail fraud, 18 U.S.C. §1341, and health-care fraud,
18 U.S.C. §1347.
Wallace concedes that he billed for unloaded miles. He
contends, however, that Carterville has a “community rate”
of $1.25 a mile, from the taxi’s dispatch point to the passen-
ger’s destination, plus a fee of $3.00, no matter how
many (or how few) of those miles a passenger is in the
taxi. In rural areas it may be sensible to calculate fares that
way, because a driver is unlikely to pick up another fare
on the way. Wallace says that he understood a “com-
munity rate” to cover the flag-pull (pickup) fee, the price
per mile, and the miles to which that price would be
Nos. 07-4052 & 07-4053 3
applied. The jury did not agree, and the district court
denied Wallace’s motion for acquittal. 2007 U.S. Dist.
LEXIS 49556 (S.D. Ill. July 10, 2007).
Like the district court, we find it impossible to see how
Wallace could have been confused. The form requires
operators to disclose how many “loaded miles” were
provided. The handbook tells transportation firms that
they may bill only for loaded miles, at a community
rate—that is, the regulated price per mile (or, if there is no
regulatory authority, at a rate specified by the Medicaid
program itself). If Wallace believed that $1.25 a mile for
all miles, loaded and unloaded, was a better deal for
Medicaid than some higher price per mile for loaded miles
alone, he was free to propose a variance from the pro-
gram’s normal rules. But he did not do that—not, at least,
in any way that produced a favorable ruling. He says that
his application to participate in the Medicaid program
revealed his rate structure, but no responsible official
approved it or told him to put all miles in the box labeled
“loaded miles.” Instead he lied repeatedly, saying in the
reimbursement forms that he was charging $1.25 a mile
for loaded miles. This deceit made it impossible for the
people running the Medicaid program to decide whether
Wallace was supplying transportation at a competitive
price. He was charging at least $1.75 a loaded mile—how
much more is in dispute; that depends on the ratio of
loaded to unloaded miles. If other companies were
willing to carry patients for $1.50 a loaded mile,
Medicaid would have done better to use them. By stating
that he was charging only $1.25 a loaded mile, Wallace
made his price look lower than it actually was.
That’s not Wallace’s only problem. Evidence showed
that he billed for some phantom miles. When drivers, who
4 Nos. 07-4052 & 07-4053
were stationed throughout the 16-county region, picked
up passengers near their bases, Wallace sometimes billed
as if the trip had started and ended in Carterville, which
is farther away. Sometimes Wallace just tacked miles onto
what the drivers actually logged. He contends that evi-
dence about fictitious miles should have been excluded
under Fed. R. Evid. 404(b), but this proof concerned the
charged offense rather than “other” wrongs. The indict-
ment alleged a scheme to bill for travel in addition to
loaded miles. Whether these spurious “loaded miles” were
unloaded miles, or miles never driven at all, does not
matter.
As it happens, Wallace could not prevail even if we
were to conclude that a “community rate” includes the
rate base (that is, the miles to which the rate is applied) as
well as the rate per mile. For Wallace treated Carterville’s
ordinance as if it were in force throughout 16 counties. It
wasn’t; it applied only within the City of Carterville, a
part of Williamson County. Other cities in the 16-county
area, including Carbondale and Marion, had their own
rules, and many unincorporated areas had no taxi regula-
tion. A taxi company must use the rates of the jurisdic-
tion in which it picks up passengers. Wallace does not
argue that any portion of the 16-country area other than
the City of Carterville authorized, let alone required,
taxis to charge for unloaded miles, so the bulk of Wal-
lace’s Medicaid billings is not supported by his theory
that Carterville’s “community rate” includes unloaded
miles.
This is not to say that the trial was problem-free. The
district court should not have allowed the prosecutor to
argue that Wallace put one over on Carterville when he
persuaded its city council to enact the $1.25/mile-for-all-
Nos. 07-4052 & 07-4053 5
miles ordinance. People are entitled to lobby for favorable
laws; the first amendment protects self-interested cam-
paigning. See, e.g., Eastern Railroad Presidents Conference v.
Noerr Motor Freight, Inc., 365 U.S. 127 (1961); Mine Workers
v. Pennington, 381 U.S. 657 (1965); Columbia v. Omni Outdoor
Advertising, Inc., 499 U.S. 365 (1991). The reason why
Carterville enacted its taxi-rate ordinance does not alter
the ordinance’s effects, and the prosecution’s strategy
created a risk that the jury might think that defendants
were on trial for crafty lobbying (or, worse, political
bribery). But the risk was not realized. The instructions
focused the jury on fraud in the reimbursement forms,
and Wallace does not contend that he might have been
convicted for his use of political influence, as opposed to
the excessive bills to Medicaid.
Wallace was sentenced to 36 months’ imprisonment. He
says that this is unreasonably high, even though it was
below the bottom of the Guideline range (51 to 63 months).
We have never deemed a below-range sentence to be
unreasonably high. United States v. Booker, 543 U.S. 220
(2005), gave district judges extra discretion without holding
that they must be lenient. More discretion means that
sentences are easier to justify than before. A 36-month
sentence would have been too low before Booker; an
increase in judicial discretion does not make it too high. See
United States v. Gama-Gonzales, 469 F.3d 1109 (7th Cir. 2006).
A sentence within the range is presumptively reasonable,
see Rita v. United States, 127 S. Ct. 2456 (2007); United
States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005), and it
follows that a sentence below the range also is presump-
tively not too high. (The prosecutor has not taken a cross-
appeal to argue that 36 months is unreasonably low. See
Gall v. United States, 128 S. Ct. 586 (2007).) Although in
6 Nos. 07-4052 & 07-4053
principle extraordinary circumstances could make even a
below-range sentence excessive, generic arguments for
lenity, of the sort normally wheeled out before a dis-
trict judge, are wasted on an appellate court. We have
made this point even for above-range sentences, given the
scope of the district judge’s discretion after Booker. See
United States v. Bullion, 466 F.3d 574 (7th Cir. 2006). A
feeble contention that a below-range sentence is too high
diminishes the force of the brief’s remaining arguments.
Although Wallace contends that the district court over-
stated the loss to the Medicaid program, he does not
offer a competing estimate or argue that the error (if one
occurred) affected the sentence. Any loss exceeding
$120,000 would produce a final sentencing range that
contains or exceeds 36 months. At all events, the district
judge was conservative; the real loss probably exceeded
$500,000. Wallace’s total billings were approximately
$1.4 million, and the district court gave him credit for
having a passenger in the taxi for almost 2/3 of all
billed miles. The district judge did not make a clearly
erroneous finding when setting the loss at approximately
$500,000.
AFFIRMED
USCA-02-C-0072—7-1-08