United States v. Henry Posada

In the
United States Court of Appeals
For the Seventh Circuit
No. 18-1586
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
HENRY POSADA,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 17 CR 00165-1 — Edmond E. Chang, Judge.
ARGUED APRIL 3, 2019 — DECIDED JULY 18, 2019
Before WOOD, Chief Judge, and BAUER and ROVNER, Circuit
Judges.
BAUER, Circuit Judge. Henry Posada (“Posada”) was found
guilty of 18 counts of health care fraud by a jury. At sentenc-
ing, the district court found a loss amount of $4,087,736, and
imposed a sentence of 60 months in the custody of the Bureau
of Prisons. Posada appeals his sentencing, arguing that the
2 No. 18-1586
district court’s loss calculation is clearly erroneous. We
disagree, and for the following reasons, affirm.
I. BACKGROUND
Posada was a licensed chiropractor and the owner-operator
of Associated Back Care and Rehabilitation, doing business as
Spine Clinics of America, S.C. (“Spine Clinics”). Spine Clinics
provided chiropractic and physical therapy services and was
a Medicare enrolled provider. In March 2017, Posada was
indicted for a scheme to defraud Medicare and other health
care benefits programs (“Insurers”) by submitting fraudulent
claims and falsely representing that certain health care related
services were provided.
At trial, the Government presented evidence that Posada
billed Insurers for deceased patients and services never
performed, created fake files to cover-up his fraud, and failed
to document the actual services rendered. Witnesses from
Medicare and an Insurer testified regarding the thousands of
claims submitted. Two physical therapists also testified about
the services they performed for Spine Clinics, how they billed
Posada, and that they never performed many of the services
for which he charged Insurers and Medicare. Following
Posada’s conviction, the Government submitted a Presentence
Investigation Report (“PSIR”) that had an offense level of 26,
due in large part to a loss amount of $4,087,736, and recom-
mended a term of incarceration between 63 and 78 months.
To calculate the loss amount the Government reviewed files
seized from Spine Clinics, and when no documentation in
support of treatment was present, the amount billed was
treated as a loss. The Government also credited Posada with,
No. 18-1586 3
among other things, treating 20 patients a day (10 Insurer
patients and 10 Medicare patients), three days a week every
week during the period of the fraud. Posada argued for an
estimate of 25 or 26 patients per day and a loss amount less
than $3.5 million dollars. But, the district court found that the
Government’s loss calculation was premised on a reasonable
estimate and found a loss amount of $4,087,736.
II. DISCUSSION
Posada contends that the district court’s loss amount
determination was clearly erroneous. Posada argues that the
Government relied on flawed assumptions to determine the
number of patients treated in a day and the district court
inappropriately discounted evidence demonstrating he saw in
excess of 20 patients per day, three days per week. He suggests
the total loss amount was below $3.5 million, and he saw far
more than 20 patients per day.
A. Standard of Decision
We review the district court’s loss determination for clear
error. United States v. Frith, 461 F.3d 914, 917 (7th Cir. 2006). “A
loss determination must be based on the conduct of conviction
and relevant conduct that is criminal or unlawful, and the
government must demonstrate by a preponderance of the
evidence that the loss amount is attributable to that criminal or
unlawful conduct.” United States v. Orillo, 733 F.3d 241, 244 (7th
Cir. 2013) (citing United States v. Littrice, 666 F.3d 1053, 1060
(7th Cir. 2012)). We will only disturb the district court’s
findings if “we are left with the definite and firm conviction
that a mistake has been committed.” United States v. Severson,
4 No. 18-1586
569 F.3d 683, 689 (7th Cir. 2009) (internal citations and quota-
tions omitted).
During sentencing, the district court may rely on informa-
tion presented in the PSIR “so long as this information ‘has
sufficient indicia of reliability to support its probable accu-
racy.’” United States v. Sunmola, 887 F.3d 830, 839 (7th Cir. 2018)
(quoting United States v. Vivit, 214 F.3d 908, 916 (7th Cir. 2000)).
“When the district court relies on information contained in the
[PSIR], the defendant bears the burden of showing the infor-
mation is inaccurate or unreliable.” Id. (citing United States v.
Heckel, 570 F.3d 791, 795 (7th Cir. 2009)). A bare denial is not
enough. United States v. Betts-Gaston, 860 F.3d 525, 539 (7th Cir.
2017), cert. denied, 138 S. Ct. 689 (2018).
B. The District Court Correctly Relied on Information
Contained in the PSIR to Determine the Loss Amount
Following trial, the Government submitted a PSIR compiled
by the Probation Department; the Government’s sentencing
memorandum agreed with the loss calculations reached in the
PSIR. The initial loss amount was calculated to be $5,182,988.
The loss was reached by reviewing files seized from Spine
Clinics and Posada, and where there was no documentation to
support the services billed, that amount was treated as a loss.
But, to reach the reduced loss figure, $4,087,736, Posada
was credited for seeing 20 patients per day, three days per
week for the duration of the fraud. In reaching that number the
Government considered Posada’s patient witnesses and
concluded that he saw at a minimum of 10 patients per day.
The Government also considered the testimony of Posada’s
wife who testified that he worked at least three days per week.
No. 18-1586 5
The Government also credited Posada with seeing a large
number of patients on an ad hoc basis, for example he was
credited with seeing 60 patients per day for 15 days from
July 7, 2014, through August 8, 2014. Moreover, Posada was
given credit for 20 patients per day, three days per week for the
duration of the fraud, even during times when the Govern-
ment knew him to be traveling or hospitalized.
Posada argued, in his filed objections to the PSIR and at
sentencing, that the Government failed to interview many of
the potential patients that were observed during the two
surveillance operations conducted; that the Government
placed too much weight on the testimony of John Tiu and
Richard Latane because the services they rendered were
different than those performed by Posada; and that not enough
weight was given to patient testimony because in some cases
the care provided outweighed the care billed.
At sentencing, the district court considered the PSIR as well
as Posada’s objections. The district court judge stated that he
considered the testimony of Mr. Tiu and Mr. Latane and the
number of patients they saw—noting that if Posada were given
credit for more than 20 patients per day it would be over
double the number Mr. Tiu and Mr. Latane saw. He considered
the patient testimony which stated that treatments were
typically 15 to 20 minutes long—noting that 15 to 20 minute
treatments translated to between 18 and 21 patients in a 6 to 7
hour workday. The judge also considered the FBI surveillance
conducted and discounted the number of “patients” observed
because if Posada were treating each of the observed patients,
their treatments would have been approximately 5 minutes on
the first surveillance date and less than 10 minutes on the
6 No. 18-1586
second date—considerably less than the 15 to 20 minutes
treatment range articulated by the testifying patients.
Finally, the district court judge observed that the objections
of the defense were “a lot of adjectives without a lot of concrete
facts[.]” Transcript of Sentencing Hearing at 16, USA v. Posada,
No. 1:17-cr-165 (Feb. 13, 2018). Essentially, the testimony was
that Posada’s practice was always very busy but no other
evidence supported this position. The court concluded that 20
patients per day, three days per week was a reasonable
estimate and the single greatest factor was the lack of actual
patient records and so in these circumstances crediting Posada
with more would reward him for absence of records.
Posada’s argument here is the same as his argument before
the district court: he would prefer a different interpretation of
the Government’s evidence used to determine the loss amount.
However, to have the court reach a different result, Posada was
required to present some evidence that called the PSIR into
question. To disturb the district court’s determination, he must
show a clear error. He has not.
III. CONCLUSION
At sentencing, the district court carefully considered the
recommendation contained in the PSIR and evaluated the
evidence used to reach that conclusion. The court articulated
its myriad considerations for determining the loss amount and
his refusal to adopt Posada’s patient recommendation. Because
we find no error at sentencing, we AFFIRM.