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Restitution Remanded in Fraudulent Medical Billing Conviction

U.S. v. Williams, Case No. 09-3521 (C.A. 6, July 15, 2010)

A jury convicted Martin T. Williams on five counts of fraudulently overbilling Medicare, Medicaid, and several private insurance companies as an employee of a psychiatric medical practice. The district court sentenced Williams to 12 months of probation and ordered him to pay restitution in the amount of $822,459.21. Williams appeals his conviction, as well as the amount of restitution that he was ordered to pay. He also brings a claim of ineffective assistance of trial counsel. For the reasons set forth below, we AFFIRM the portion of the district court’s judgment relating to Williams’s conviction, DISMISS WITHOUT PREJUDICE Williams’s ineffective-assistance-of-counsel claim, VACATE the portion of the district court’s judgment that concerns restitution, and REMAND the restitution issue for further consideration.
I. BACKGROUND


In January 2002, Dr. Lal P. Rohira, Sharonne A. Szyrej, and Williams were indicted on one count of conspiracy to commit mail fraud, wire fraud, and healthcare fraud; on three counts of wire fraud; and on one count of healthcare fraud. The relevant conduct took place between approximately July 1991 and September 1997. Szyrej and Williams worked as employees of Rohira, a psychiatrist. All three were charged with illegally billing the federal government’s Medicare and Medicaid programs, as well as a number of private insurance companies, primarily at the direction of Rohira. Specifically, the indictment charged Rohira, Szyrej, and Williams with “upcoding” (billing for full therapy sessions when only medicine checkups were provided), billing for scheduled patients who missed their appointments, and billing for therapy services provided by Szyrej, who was not licensed to perform such services.

The district court severed the trial of Williams from the joint trial of Rohira and Szyrej. Szyrej subsequently pled guilty to the conspiracy charge and agreed to testify against her codefendants in exchange for the dismissal of the remaining four charges against her. She later testified as a government witness at the separate trials of both Rohira and Williams.

Rohira was tried before a jury in July 2003 and was found guilty on all five counts. He then filed motions for acquittal and for a new trial. These motions remained pending before the district court when Williams went to trial.
 

 

Judge(s): Daughtrey, Gilman and Sutton
Jurisdiction: U.S. Court of Appeals, Sixth Circuit
Related Categories: Criminal Justice , Health Care
 
Circuit Court Judge(s)
Martha Daughtrey
Ronald Gilman
Jeffrey Sutton

 
Appellant Lawyer(s) Appellant Law Firm(s)
Kenneth Tableman Kenneth P. Tableman PC

 
Appellee Lawyer(s) Appellee Law Firm(s)
Carol Skutnik U.S. Department of Justice

 

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Click the maroon box above for a formatted PDF of the decision.
no. 09-3521 united states v. williams page 4 government's arguments during williams's sentencing. that mr. williams knew the conspiracy's main purpose and that he on february 14, 2005, rohira filed with the district court a timely prejudicial." united states v. kuehne, 547 f.3d 667, 679 (6th cir. 2008) (citation and > rohira was tried before a jury in july 2003 and was found guilty on all five counts. enforcing valid laws for no better reason than that a government official has performed his foolishness was not the same as knowledge." because williams did not raise this objection in rohira's plea agreement, for instance, the government and rohira stipulated that to the calculation of the conspiracy victims' losses. and unlike in united states v. vonner, states v. elson, 577 f.3d 713, 721 (6th cir. 2009) (explaining that the mvra applies to presentence report." brady/giglio violations, williams remains free to file any subsequent collateral attack upon based on the above representations and the information in rohira's psr, the district applies regardless of any plea agreement and, significantly, it does not include the provision his trial counsel was ineffective for failing to timely move the district court for counsel had anything further to add, counsel responded: "your honor, i merely stand by the the district court did not defer issuing restitution orders applicable to rohira and szyrej until after hearing the parties' arguments, the court sentenced williams to one year of information from the probation office about the victims' losses so that it may order defendants . . . ."). any amount of restitution ordered must be "reduced by any amount later recovered martin t. williams, loss calculations made to determine the defendant's u.s. sentencing guidelines range and the report was first prepared in january 2004 and then revised the following month. these difference between the actual service provided and the incorrect charged blakely, that is a fact that must be admitted by the defendant arguments advanced in our sentencing memorandum." the court said, "all right," but it did no. 09-3521 united states v. williams page 2 1 testify about the amount of financial loss caused by the party seeks to avoid the coverage of a law because of a government agent's risk of becoming financially responsible for the entire amount of the conspiracy victims' civil proceeding. id. 3664(j)(2). this is because "the restitution statutes do not permit taking conflicting positions concerning restitution as between him and his codefendants. instruction was provided well before the court's instruction about the elements of a criminal and the statement in rohira's psr that the actual and intended loss amount was (holding that "a sentencing court that misses the 90-day deadline [for imposing restitution no. 09-3521 united states v. williams page 9 action was dismissed. government from claiming, as it did during williams's sentencing proceedings, that the total wished his sentencing memorandum to be construed as williams's objection. appeal on a ground that was not raised before the district court). and they will have to divide up the $400,000 that has been negotiated. as instructionisharmlesswherethereissubstantialevidenceofactualknowledge"(citationand restitutionary relief. he estimated the loss at over $1 million. under booker and rule 32(f) of the federal rules of criminal procedure requires a party to state in omitted). and circumstances existed in this particular case. while plea negotiations were taking place between the government and rohira, the government from relitigating any issue that was necessarily decided by a jury's acquittal in evidence are denied without prejudice." id. at 910. court determined that "there is no restitution still remaining." the court also noted in its for the northern district of ohio at cleveland. amount of restitution ordered by the district court is reviewed under the abuse-of-discretion is. our inquiry is therefore limited to whether the above-described procedural missteps restitution, leaving open (for more than 90 days) only the amount"); see also united states [i]f the victim's losses are not ascertainable by the date that is 10 days prior the ausa, and then to seek confirmation of these amounts from the identified victims. id. motion for reconsideration. in that filing, rohira asked, in the interest of defendants have contributed to a victim's loss, "the court may make each defendant liable (mvra), 18 u.s.c. 3663a-3664, applies to the present case. the mvra mandates the the guidelines does not include `intended loss.'" (citation omitted)). moreover, the mvra consideration of the economic circumstances of the defendant." id. 3664(f)(1)(a). the supreme court or sixth circuit precedent showing that such a prosecutorial strategy would "jury was never expressly charged with finding the amount of loss," the this instruction allegedly "contradicted the court's later instruction that mere knowledge or reconsideration and specifying that the prosecution's failure to "turn over a turning now to the issue of restitution, we note that williams offers four arguments united states v. russell, 595 f.3d 633, 642 (6th cir. 2010). "when jury instructions are before: daughtrey, gilman, and sutton, circuit judges. if you are convinced that there was a criminal agreement, you must decide wunder, 919 f.2d 34, 37 (6th cir. 1990). such claims "are more properly available in a victims of the conspiracy, when in fact a federal claims act judgment is payable only to the 645, 667 (6th cir. 2003). according to the dates listed on the first page of williams's psr, 2. merits of the arguments williams acted, and any other facts and circumstances in evidence that show agreement" not to prosecute the witnesses in exchange for their testimony memorandum, filed in response to the court's request for briefing on restitution, to function the government has proved that mr. williams joined this conspiracy. conviction between the time that the first two psrs were prepared in 2004 and the restitutionordersagainstrohira and szyrej based on incomplete and inaccurateinformation, has not followed this procedure, rule 32(i)(1)(d) permits the district court "for good cause" identified in his post-trial motion, including a brady violation, prosecutorial violate a defendant's due process rights"). accurate information and provides a clear record for appellate courts, prison if the sentencing court fails to make these factual findings, we must remand subsequently discovers further losses, the victim shall have 60 days after government was asking the court to impose. the probation office then prepared a second determine that a ruling is unnecessary either because the matter will not affect sentencing, review an ineffective-assistance-of-counsel claim on direct appeal where "the record is may also order restitution in any criminal case to the extent agreed to by the parties in a plea the dollar loss is not an element of the crime of conspiracy, of wire fraud, or for all of the reasons set forth above, we affirm the portion of the district court's thepurposeofequitabledoctrinesis"toavoidinjusticeinparticularcases." heckler restitution on williams than on his two codefendants. of healthcare fraud. and that the dollar amount is a loss--the dollar amount whether the government has proved that mr. williams knowingly and calculation of the restitution amount. given these irregularities, we will vacate the order of (inaccurately) stated that the qui tam settlement payment would be divided up among all inconsistency claim" as it related to his "death sentence in particular." bradshaw v. stumpf, ruling on williams's estoppel argument. williams now appeals both his conviction and the his convictions that he deems proper." id. in conclusion, the court reversed the grant of a conspiracy. thedeliberate-ignorance instruction instead explained the degree ofknowledge no. 09-3521 united states v. williams page 10 the obvious. if you are convinced that mr. williams deliberately ignored a doctrine of waiver or estoppel . . . to excuse the employer from its statutory duty to bargain united states v. tackett, 113 f.3d 603, 613-14 (6th cir. 1997) (citations and footnote "the district court substituted `their' for `his' in the last paragraph of the instruction, so that the restitution was calculated in the presentence report" and to the fact that "there was no advance or achieve its goals. that is essential. counts of wire fraud; and on one count of healthcare fraud. the relevant conduct took place even approval was not enough to show that williams was part of the conspiracy." result in a constitutional violation that entitled the defendant to a new trial. williamsfiledtimelypost-trialmotionsforjudgmentofacquittaland losses of all victims "directly and proximately harmed" by the conspiracy. see id. capable of arriving at an informed decision." united states v. rahal, 191 f.3d 642, 645 (6th week before williams's sentencing. this psr was the first to list the total amount of the 1. standard of review c. restitution misconduct, and ineffective assistance of counsel. eight days later, on same parties settled a qui tam action filed against rohira for submitting false claims to 2. relevant statutory law cir. 1999). 516 f.3d 382, 388-89 (6th cir. 2008) (en banc), williams objected to a factual matter over in january 2002, dr. lal p. rohira, sharonne a. szyrej, and williams were indicted x voluntarily joined that agreement to convict. the government must prove the probation office then prepared a second revised psr on march 13, 2009--one for the first time on direct appeal, since there has not been an opportunity to develop and the constitutional rights of a private party would otherwise be infringed. see, e.g., ashe v. estoppel against the government. caselaw recognizes that estoppel may be so applied where no. 09-3521 united states v. williams page 11 never hinted, much less held, that the due process clause prevents a state from prosecuting as a post-conviction proceeding pursuant to 2255. 60 n.12 (noting that "at least two of our cases seem to rest on the premise that when the for payment of the full amount of restitution or may apportion liability among the defendants is premature and decline to depart from the general rule that such a claim should be brought no. 09-3521 united states v. williams page 16 same as knowledge, and is not enough to convict. this, of course, is all for restitution at sentencing by adopting the loss amounts submitted by the victims in the revised to correct the error only if the error seriously affected the fairness, integrity, or public and blakely v. washington, 542 u.s. 296 (2004)). because the defendant's not only williams's motions for judgment of acquittal and for a new trial, companies, primarily at the directionofrohira. specifically, the indictment charged rohira, ascertain, should have been the same with respect to all three of the codefendants. the rule set forth by the supreme court in blakely and booker was not implicated because what rohira paid in the qui tam action against him. this court later reversed the district district judge "concluded that williams is entitled to a new trial under williams next argues that constitutional considerations warrant the application of to determine whether a particular equitable doctrine is applicable. see new hampshire, 532 order of restitution. see united states v. lanesky, 494 f.3d 558, 560-61 (6th cir. 2007) the ausa also took a new position concerning the amount of restitution owed, claiming over a year later, on february 4, 2005, the district court addressed russell, 595 f.3d at 643 (explaining that, under plain-error review, this court has "discretion for a total of $984,000. the actual loss to the victims for the upcoding is the as an objection to the psr. the district court did not directly address this statement, but as compensatory damages for the same loss by the victim" in a subsequent federal or state the obligation to pay restitution for the conspiracy victims' losses should be apportioned f.3d 121, 134 (5th cir. 2003) (holding that "an error in giving the deliberate ignorance where a defendant denies knowledge of the illegal activity, but prejudicial where a defendant recommendations for rohira and szyrej on the other. it then ordered briefing from the two no. 09-3521 united states v. williams page 19 any restitution." id. 3664(i). and any such "sentence that imposes an order of restitution 171 f.3d 58, 66 (1st cir. 1999) (declining to apply estoppel to "prevent[] the sovereign from warshawsky, 20 f.3d 204, 210 (6th cir. 1994) (explaining that "a `deliberate ignorance' appropriate restitution. see 18 u.s.c. 3664(a), (f)(1)(a). the district court therefore did at rohira's sentencing, the government stated that the "negotiated" total amount of opinion changed circumstances"). conspiracy"). v. united states, 405 u.s. 150 (1972), supreme court decisions requiring required mental state. ordinarily, there is no way that a defendant's state finally, williams urges us to "vacate the restitution order and remand the case for two individuals; one of whom pleaded guilty, one of whom stood trial in this mitigation arguments that the defendant claimedwere not considered by the district court did decide. assistance-of-counsel claim, vacate the portion of the district court's judgment that "the district court never imposed sentence upon [williams]," and the rule does not otherwise charged in the indictment, the restitution provision applicable in this case is 18 u.s.c. carelessness or negligence or foolishness on their part is not the williams argues that the government should be bound in the present case by its officials, and administrative agencies who may later be involved in the case. he then filed motions for acquittal and for a new trial. these motions remained pending she later testified as a government witness at the separate trials of both rohira and williams. august 9 ruling (docketed here as no. 05-4160). the two matters have now 2005 (docketed here as no. 05-3293). on august 9, 2005, however, the no. 09-3521 united states v. williams page 15 defendants in this case were not similarly situated at the time of their sentencing." or because the court will not consider the matter in sentencing." this court "has consistently amount of the conspiracy victims' loss was greater than $400,000--the amount set forth by on his ineffective-assistance claim on direct review. we therefore conclude that his claim nov. 6, 2006) (brackets and ellipses removed). - stumpf v. mitchell, 367 f.3d 594 (6th cir. 2004), for this proposition--a case in which this williams to 12 months of probation and ordered him to pay restitution in the amount of victims to obtain multiple recoveries for the same loss." united states v. mcdaniel, 398 - no. 09-3521 united states v. williams page 18 satisfied all restitution issues. at rohira's sentencing hearing, the ausa gave the following government, without providing any factual findings concerning the amount of the loss or several months after the district court sentenced rohira, this court reversed the there is in fact authority to the contrary. see united states v. mendoza-medina, 346 857, 1999 wl 196575, at *3 (6th cir. mar. 29, 1999) (unpublished table decision) ("since decisions, however, the district judge focused upon an issue that had not crimes that occurred prior to and continue past the effective date of the mvra, and that this sentence, and remanded for further consideration of the defendant's "prosecutorial no. 09-3521 united states v. williams page 22 instruction somehow confused the jury about the mental state required to join a conspiracy cir. 2007) (collateral estoppel). conspiracy, or everyone else involved, or that he was a member of it from the insurance companies are not here today complaining, but they each defendant may be required to shoulder the entire restitution burden for the loss caused government's possession that could be considered exculpatory or that could been consolidated for appeal. under the due process clause when it entered the order of restitution against williams. see in his first and fourth arguments against the imposition of restitution, williams the law because the conduct of its agents has given rise to an estoppel, the interest of the to say nothing of the fact that the restitution amount shown in 2004 is essentially equal to conspiracy'smainpurposeandthathevoluntarily joined it, intendingtohelp court erred in holding that blakely and booker mandated a new trial for williams. id. at *4. because they both pled guilty, whereas williams elected to proceed to trial. thus, according billing for therapy services provided by szyrej, who was not licensed to perform such new trial on the ground of the prosecution's alleged violation of brady v. file name: 10a0204p.06 the contested deliberate-ignorance jury instruction provided at williams's trial was at the time of their sentencing." we conclude that the government was not estopped from the government during rohira's sentencing proceedings. the government responds that appeal from the united states district court the sentencing court made clear prior to the deadline's expiration that it would order government acts in misleading ways, it may not enforce the law if to do so would harm a argued: kenneth p. tableman, kenneth p. tableman, p.c., grand rapids, williams argues that this instruction confused the jury and contradicted the district exchange for the testimony of two key government witnesses" did indeed 3. estoppel no. 09-3521 united states v. williams page 14 [rohira] and his co-conspirators, [the conspiracy victims] suffered a loss of $500,000." deliberate ignorance. his counsel argued that this instruction conflicted with a later court did not listen to, consider and understand every argument [the defendant] made" against rohira and williams, despite the witnesses' own guilt in the participating in a conspiracy that continued after the effective date of the mvra. see 18 but the record does not show any such ruling, nor does it otherwise indicate that the no. 02-00022-003--ann aldrich, district judge. february 22, williams filed his own motion for reconsideration, referencing and williams's counsel informed the court at the sentencing hearing seven days later that he (describing judicial estoppel). our circuit nevertheless reviews the application of these based on a theory that he was deliberately ignorant about the conspiratorial agreement." denied without prejudice the defendant's motion for a new trial based upon alleged pending appeal. the government replies that the record is insufficiently developed for us $822,459.21. williams argued in response that the government's prior representation that post-conviction proceeding under 28 u.s.c. 2255, after the parties have had the williams's ineffective-assistance-of-counsel claim, vacate the portion of the district v. vandeberg, 201 f.3d 805, 814 (6th cir. 2000) (holding that the mvra's 90-day deadline preparation of the final version in 2009. given the fact that the district court vacated not present "controverted matters," thus leaving "no `dispute' for the district court to have of review." united states v. johnson, 440 f.3d 832, 849 (6th cir. 2006). we review de of mind can be proved directly, because no one can read another person's , but the government's assessment of the total loss did change as to each of them, and government bears the burden ofproving the amount ofeach victim's loss by a preponderance checkups were provided), billing for scheduled patients who missed their appointments, and been ordered to pay restitution. this is because the application of estoppel against the the prosecution to provide criminal defendants with evidence in the is a final judgment notwithstanding the fact" that the sentence may later be modified. id. v. cmty. health servs., 467 u.s. 51, 59 (1984). courts typically utilize a multi-factored test the victims' losses due to upcoding. he argued as follows: it could find williams'[s] required mental state--that he intended to join the violated the mandates of brady v. maryland, 373 u.s. 83 (1963), and giglio consistent with the mvra's statutory framework. amount of the conspiracy victims' losses as restitution in williams's case. the equitable conflicting positions. on remand, the district court held two status conferences to discuss restitution. but proof that mr. williams simply knew about a conspiracy or was (noting that "the statute's text places primary weight upon, and emphasizes the importance ii. analysis 320 f. app'x 396, 418 n.26 (6th cir. 2009) (noting that there is no "`clearly established' we review challenges to jury instructions under the abuse-of-discretion standard. the total amount of the conspiracy victims' losses was $400,000. second, williams asserts obligation to stipulate to identical loss amounts with co-conspirators"). letter which could readily be construed as a promise of nonprosecution in argued: june 8, 2010 1348 (5th cir. 1996) (refusing to apply estoppel against the government where "a private shall ensure that all other victims receive full restitution before the united states receives adequately developed to allow the court to properly assess the merits of the issue." united no. 09-3521 united states v. williams page 12 objections because "williams did not file any objections to the presentence report." previous representation thattheconspiracyvictims'losseshadbeensatisfied by rohira'squi similarly, just because mr. williams may have done something that court's grant of a new trial and, on remand, the district court ordered briefing on the issue losses were greater than the approximately $400,000 reported in the 2004 psrs. in hammer v. ins, 195 f.3d 836, 840 (6th cir. 1999) (setting forth a five-factor test for to reflect the level of contribution to the victim's loss and economic circumstances of each fraud, but to find this you must be convinced beyond a reasonable doubt that the parties." but this observation undercuts williams's argument that he should not have objection has been made, rule 32(i)(3)(b) provides that the court "must--for any disputed id. 3664(d)(5). williams's conviction, dismiss without prejudice williams's ineffective- private party as a result of governmental deception"). no. 09-3521 cir. 1995). williams has therefore failed to demonstrate that the district court plainly erred f.3d 754, 761 (6th cir. 2005). "a judgment may be reversed based upon an improper jury reinstated williams's convictions, and remanded the matter for sentencing. id. mind and tell what that person is thinking. but a defendant's state of mind on one count of conspiracy to commit mail fraud, wire fraud, and healthcare fraud; on three claiming that williams owes any money beyond the $600 paid by szyrej and the $400,000 on appeal, williams challenges his conviction on the ground that the district court noted that it had concerns about the amount of restitution sought by the government. williams urges us to vacate his conviction for an additional reason: he contends that process violation." id. at 611, 616. but the supreme court later reversed this court's we recognize that this court provides an exception to this general rule and will contrary are without merit. during the second conference, which was held in october 2008, the court expressed its both parties acknowledge that the mandatory victims restitution act of 1996 of collateral estoppel and judicial estoppel. see, e.g., dantran, inc. v. u.s. dep't of labor, "[a]s a result of conduct of defendant and his co-conspirators, [the conspiracy victims] when the district court granted williams's motions for a new trial and for court has previously held that such an instruction is permissible. see united states v. government's medicare and medicaid programs, as well as a number of private insurance 545 u.s. 175, 186-88 (2005); see also id. at 190 (thomas, j., concurring) ("this court has to review the claim on direct appeal and, in any event, that williams's ineffective-assistance writing any objections to the psr within 14 days of receiving the report. but where a party was obvious. that the court violated rule 32 of the federal rules of criminal procedure by failing to rule prosecution had failed to disclose a letter sent by the government to two can be proved indirectly from the surrounding circumstances. this includes fairness, integrity, or public reputation of the judicial proceedings." id. at 376-77. contends that the equitable doctrines of collateral estoppel and judicial estoppel barred the court noted: judgment concerning the defendant's guilty plea, vacated the judgment concerning the death matters by adopting the factual statements in the psr does not convince us that the court nevertheless a permissible outcome under the mvra. this is because the act provides that district court's decision to grant a new trial to williams, as detailed above, and remanded the u.s. at 750-51 (citation omitted) (describing a three-factor test for judicial estoppel); that the amount should be less than stated in the ps[r]. 3663 as opposed to 18 u.s.c. 3663a." both representations are inaccurate--the former to sentencing, the attorney for the government or the probation officer shall cause for the failure to include such losses in the initial claim for knowledge requirement concerning the illegal activity." the second instruction "required companies, more than a negotiated amount, not more than the negotiated instruction is permissible to show a conspirator's knowledge of the unlawful aims of a when ordering restitution in a case where the district court determines that multiple erroneous jury instruction if the error was harmless." frederick, 406 f.3d at 761. as follows: revised psr that incorporated the higher amount of restitution requested by the government, instruction was harmless error. is not jurisdictional and that the act "permits amendments to restitution orders to reflect in this case, the district court was unable to exercise its discretion to determine how basis in law for aiding the jury in reaching its decision." united states v. frederick, 406 f.3d 805, 814 (6th cir. 2000). as we have explained: (6th cir. 2008) ("it is true that the mvra refers only to `actual' loss, and unlike 2b1.1 of probation office to obtain a list of the victims and the amounts subject to restitution from or expressly found by the jury beyond a reasonable doubt defendants based on inconsistent theories."). this court has not yet issued a decision on were in the witness box at trial, and each one of them came and testified to 595 f.3d at 643 (utilizing this standard where a defendant challenged a jury instruction on judgment of acquittal should be denied "because the jury's guilty verdicts sentencing hearing, the district court asked if there were any unresolved objections to the to determine the appropriate amount of restitution, the district court must order the before the district court when williams went to trial. applies to only the actual loss amount. see united states v. simpson, 538 f.3d 459, 465-66 public laws."); cf. mclean v. nlrb, 333 f.2d 84, 88 (6th cir. 1964) (refusing to apply "the foundinthediscretionaryrestitutionstatute citedinrohira'spleaagreementthat"[t]hecourt what was in mr. williams'[s] mind. doctrines de novo. lorillard tobacco co. v. chester, willcox & saxbe, llp, 546 f.3d 752, district court lacked jurisdiction to enter the august 9, 2005 order, that order "was a legal submitted it to you. court accepted and adopted those statements when it sentenced rohira. crimes. id. 3663a(a)(1), (c)(1). section 3664 sets forth the relevant procedures for becoming final, the united states filed an appeal to this court on march 3, counts of the indictment in exchange for a stipulation that, "[a]s a result of the conduct of for a new trial with the court. in the latter filing, he alleged that the "the reasons more fully elucidated" by rohira. - swenson, 397 u.s. 436, 445-47 (1970) (determining that the fifth amendment's guarantee role in the conspiracy or that his connection to it was substantial. a slight because of the government's misstatements, as well as the district court's entry of not err in refusing to apply these doctrines against the government in the present case. under the mvra] nonetheless retains the power to order restitution--at least where, as here, required by williams concerning the illegality of his actions and the actions of others. this maryland and his motion for judgment of acquittal due to insufficient inconsistent prosecutorial theories violate due process. see united states v. presbitero, 569 no. 09-3521 united states v. williams page 5 a. deliberate-ignorance instruction first two drafts of the psr listed the total amount of the conspiracy victims' losses at present at times or associated with members of the group is not enough, even between the three codefendants due to its (and the government's) failure to comply with the inconsistent, irreconcilable theories to convict two defendants for the same crime is a due correct value is an amount $289,411.65. it is unclear how this amount was procedural requirements of the mvra. but the restitution ordered in williams's case is williams was tried before a jury in december 2003. after the close of the evidence, five counts of fraudulently overbilling medicare, medicaid, and several private insurance companies as an employee of a psychiatric medical practice. the district court sentenced that mr. williams knowingly did, and whether it is reasonable to conclude court vacated a defendant's plea of guilty and sentence of death, reasoning "that the use of sentence. you to decide. f.3d 565, 569 (6th cir. 2009). if we determine that restitution is permissible, then the later during williams's sentencing hearing, when the court asked if williams's split precludes a finding of plain error." united states v. williams, 53 f.3d 769, 772 (6th williams argues that "[t]he use of inconsistent theories to secure convictions against pending, the parties reached a plea agreement. rohira agreed to plead guilty to all five outweighed by the countervailing interest of citizens in some minimum standard of decency, without more, these are not enough. more than one defendant in proceedings for the same crime violates due process." he cites government would not extinguish the court's independent duty under the mvra to obtain the statutes expressing the will of congress or unduly undermine the enforcement of the prosecution witnesses, a letter that williams contends constituted a "secret seeking additional restitution against him. but williams did not raise this argument below. three days later, the district court sentenced szyrej to one year of probation. in williams acknowledges in his reply brief that "[t]he mvra requires the court to for resentencing. court's judgment that concerns restitution, and remand the restitution issue for further contending that williams waived this argument by failing to timely file any written main purpose, but it is up to the government to convince you that such facts further contended that the government's methodology was flawed in arriving at its new loss williams first contends that the deliberate-ignorance instruction is flawed because raised for the first time on appeal). under this standard, we will not reverse a challenged plaintiff-appellee, victim in the full amount of each victim's losses as determined by the court and without inaccurate statements to the district court during rohira's sentencing proceedings, and the court's later instruction concerning the conspiracy charge, which was as follows: henry, 545 f.3d 367, 376 (6th cir. 2008) (applying the plain-error standard to an argument paid by rohira in restitution because the government previously represented to the court that no. 09-3521 united states v. williams page 13 3663a(a)(2). the total loss suffered by the victims of the conspiracy, even if difficult to i. background file an objection to the psr at the time, but instead, in january 2004, filed motions for of the victim's losses, not to exceed 90 days after sentencing. if the victim district court fully understood and considered williams's argument. cf. vonner, 516 f.3d theory."). and, at worst, any error in giving the instruction was harmless. see united states apply to "the jury's resolution of the issues presented to it." id. nullity." id. at *7. the panel noted, however, that "because the district court originally agreement." 18 u.s.c. 3663(a)(3). we conclude that this minor defect did not render the instruction itself confusing. the obligation, in contrast, are discretionary in nature. because we are faced with choosing the total amount of the conspiracy victims' losses was paid in full through rohira's $400,000 finally, williams contends that judicial estoppel prohibits the government from taking such 1. standard of review things like what mr. williams said or what mr. williams did, how mr. he pleaded guilty to a massive fraud scheme that lasted six years and caused in summary, significant litigation took place concerning the validity of williams's his psr was his reference to his sentencing memorandum at the [s]entencing [h]earing." grounds. the government appealed the court's orders as to rohira but, while that appeal was case, and whose case is presently on appeal. more complete information could be obtained, as perhaps it should have. such deferral is order of restitution. opportunity to develop an adequate record on the issue from which the reviewing court is cleveland, ohio, for appellee. on brief: kenneth p. tableman, kenneth p. decision of the district court unless there was (1) an error, (2) that "was obvious or clear," her codefendants in exchange for the dismissal of the remaining four charges against her. permissible under the mvra, as demonstrated by the supreme court's recent decision in at trial, we will review the alleged misstatement under the plain-error standard. see russell, psr is inaccurate, and its argument that the district court effectively ruled on all disputed error"). remand, and no other case in this circuit has determined the issue. see blalock v. wilson, internal quotation marks omitted). this means that we "will not reverse on the basis of an rohira'squitamsettlementpayment. thegovernmentthusrepresentedthatthetotalamount the district court also concluded, however, that williams's motion for we conclude that, under these circumstances, williams properly raised an objection government and the relator. see 31 u.s.c. 3729(a)(1), 3730(d). rohira was therefore williams does not argue that this instruction was incorrect, and he has failed to demonstrate b. ineffective assistance of counsel satisfied rule 32, given the multiple psrs and the court's ambiguous ruling. see united defrauded insurance companies." but this was not correct, as demonstrated by the (3) that affected the substantial rights of the defendant, and (4) that "seriously affected the disputes at sentencing, but adopted the psr in its sentencing order"). conspiracy: whether they adequately informed the jury of the relevant considerations and provided a serve to impeach the credibility of prosecution witnesses. not ordered to pay any further restitution, and he was sentenced to one year of probation. which there was a genuine dispute between the parties. cf. id. (concluding that the what the government must prove is that mr. williams knew the settlement estopped the government from seeking additional restitution from williams. he court here was required by rule 32(i)(3)(b) to "rule on the dispute or determine that a ruling concerning the government's second appeal, this court determined that because the directing the jury that it could not find conspiracy based upon a deliberate ignorance response, williams raised an objection concerning the manner in which the psr calculated reputation of the judicial proceedings" (citation and internal quotation marks omitted)). government still had a mandatory obligation under the mvra to seek the full remaining 3664(d)(1)-(2). the mvra further requires that, imposition of restitution as part of the sentence of a defendant who has committed certain aresupportedbysubstantialandcompetentevidence." thegovernmentthen include in the record evidence bearing on the merits of the allegations." united states v. seeking additional restitution from williams, but for reasons different from those advocated new trial in case number 05-3293, vacated the judgment in case number 05-4160, doctrines that williams seeks to have imposed against the government to thwart this citizenry as a whole in obedience to the rule of law is undermined." id. accordingly, if the medicare and medicaid programs, as well as numerous insurance controlled every aspect of his practice, including the supervision of the other by the government, as explained below. estoppel doctrines are equitable in nature and therefore are "invoked by a court at _________________ concern about the disparity between the government's recommendations for williams's the law that has not been conclusively decided by this court or the supreme court, a "circuit sentencings of the three codefendants. it further argues that the district court did not violate losses. the restitution order in his case may well be disproportionate when compared to that restitution order. such order may be granted only upon a showing of good happened to help the conspiracy does not necessarily make him a you may also consider the natural and probable results of any acts the aims of the conspiracy, the district court was not required to give a specific instruction no. 09-3521 united states v. williams page 17 counsel judicial economy, for a ruling by the court on his unresolved request for "the propriety and the amount of a restitution order are subject to different standards not err in ordering williams to pay restitution, and we conclude that his arguments to the united states v. coker, 514 f.3d 562, 569 (6th cir. 2008) (rejecting a similar challenge to ruled on" (brackets, citation, and internal quotation marks omitted)). in contrast, the district been raised by either williams or rohira. in williams's case, the district 3664(o). acquittal and for a new trial. his motion for a new trial was granted over a year later, in that it provided to the district court, and the court issued an ambiguous ruling on the provisions, 1996 acts). the mvra therefore applied to rohira's sentencing. see united no. 09-3521 united states v. williams page 20 by multiple defendants. see 18 u.s.c. 3664(h) ("if the court finds that more than 1 a prior trial). williams contends that the due process clause precludes the government from the conspiracy victims' losses was $400,000, and that this loss had been fully satisfied by moreover, the circuits that have considered the issue have not agreed on whether against double jeopardy requires the application of collateral estoppel to preclude the the district court severed the trial of williams from the joint trial of rohira and "as a general rule, a defendant may not raise ineffective assistance of counsel claims doctrine against the government and invoke it only when it does not frustrate the purpose of payment as previously represented, and seeking restitution from williams in the amount of filed a second appeal to this court that challenged only the propriety of the the beginning, nor does it require proof that mr. williams played a major (vacating and remanding for resentencing where "the district court did not rule on the united states v. williams, 355 f. supp. 2d 903, 908 (n.d. ohio 2005) construed the requirements of rule 32 in a strict manner." united states v. vandeberg, 201 fraudulent billing scheme. according to the defendant, such non-disclosure williams next argues that the deliberate-ignorance jury instruction "told the jury that $403,475.56 (according to the government's sentencing memorandum). williams did not the government responds that williams is conflating two separate instructions. it amount. thus, the victims were damaged in an amount of $25.00 per hour conspiracy." the district court overruled williams's objection and included the instruction instruction still "adequately informed the jury of the relevant considerations and provided no. 09-3521 united states v. williams page 3 exercise its discretion in fashioning a restitution order." id. 3664(a). this requires the explanation of the government's position on the losses caused by rohira's healthcare-fraud language of the mvra trumps the equitable policies underlying the discretionary doctrines states v. gapinski, 561 f.3d 467, 473-78 (6th cir. 2009); united states v. darwich, 337 f.3d of loss is for the court to decide by a preponderance of the evidence at (brackets, citation, and internal quotation marks omitted)). we emphasize that this is not an michigan,forappellant. carolm.skutnik,assistantunitedstatesattorney, portion of the presentence report or other controverted matter--rule on the dispute or substantive argument concerning why the record here is sufficiently developed for us to rule reasons set forth below, we affirm the portion of the district court's judgment relating to determinations, that there was "no further restitution owed to either medicare or the restitution and remand the case to the district court so that it may properly rule on williams's no. 09-3521 united states v. williams page 6 - objections to the psr. it further notes that"[t]he only disagreement williams expressed with gave an improper jury instruction that allowed "the jury to convict williams of conspiracy although the use of the word "their" in this instruction was incorrect grammatically, williams's conviction in february 2005, his failure to object to the 2004 psrs is irrelevant, tableman, p.c., grand rapids, michigan, for appellant. carol m. skutnik, by evidence, a deliberate ignorance instruction that properly states the law is harmless government had to prove that "williams knowingly and voluntarily joined" the conspiracy. rule 32 of the federal rules of criminal procedure by failing to rule on williams's reliable way to determine the amount of loss to the victim[s]." the government responds by collateral estoppel). where the doctrine is invoked against the government, additional medicare. rohira agreed to pay $400,000 as a result of this settlement, and the qui tam united states v. williams, nos. 05-3293, 05-4160, 2006 wl 3203748, at *1-*2 (6th cir. rohira's psr listed six healthcare and insurance providers (including medicare) as szyrej, and williams with "upcoding" (billing for full therapy sessions when only medicine ordinary case. the government significantly revised the information in the multiple psrs (psr). he next argues that his right to the due process of law prohibits the government from of restitution. in his sentencing memorandum provided in response to the court's order, novo "[w]hether a restitution order is permitted under the law." united states v. bogart, 576 enforcement duties negligently"); united states v. marine shale processors, 81 f.3d 1329, pursuant to sixth circuit rule 206 no. 09-3521 united states v. williams page 21 despite the mistakes made during the sentencings of rohira and szyrej, the defendant'sallegedbillingfraud;throughadubiousmethod, between a statutory obligation and an equitable doctrine, we conclude that the mandatory v. mr. williams was aware of a high probability that he was engaged in the 757 (6th cir. 2008) (judicial estoppel); united states v. vasilakos, 508 f.3d 401, 405 (6th of the federal rules of criminal procedure by failing to address his objections to "the way does not require proof that mr. williams knew everything about the misrepresentation that the law does not apply" and noting "the importance of separation of no authority for his argument that a deliberate-ignorance instruction is appropriate in cases instruction explaining the mental state required to show "the defendant's connection to the of the loss was $100,000 less than that set forth in the plea agreement, and then defendant has contributed to the loss of a victim, the court may make each defendant liable employees of rohira, a psychiatrist. all three were charged with illegally billing the federal no one can avoid responsibility for a crime by deliberately ignoring ronald lee gilman, circuit judge. a jury convicted martin t. williams on interest in ensuring that the government can enforce the law free from estoppel [is] government asserts that the instruction was proper and, even if it was improper, the with regard to the government's first appeal, this court concluded that the district of his codefendants, but when compared to the losses sustained by the innocent victims of noted that the prosecution's alleged brady violation might entitle williams to the 3553(a) factors, dr. rohira is a highly educated man, who ran his own and, thus, was not an impediment to the district court's february 4 ruling the mandate issuing in december 2006. tam settlement payment. this argument has some plausibility because the government made applying the mvra. this section requires the district court to "order restitution to each probation and issued an order of restitution against him for the full amount sought by the requirement helps to ensure that defendants are sentenced on the basis of - sentencing. the parties have negotiated that $400,000 amount and - in good faith with the union during the certification period"). the district court therefore did suffered a loss of $500,000" and that, "under ex post facto principles, due to the dates district judge issued a decision addressing williams's motion for in its charge to the jury. williams was found guilty on all counts. restitution that williams owed. 532, 533-34 (6th cir. 2004) (same). instruction only if the instructions, viewed as a whole, were confusing, misleading, or calculations. defendant." 18 u.s.c. 3664(h). in cases where the united states is a victim, "the court not consider the matter in sentencing." - conspiracy victims' losses at approximately $823,000. during the march 20, 2009 in the present case, the government's assertion that williams never objected to the calculates this loss from upcoding as 60 patients a week at $85.00 per hour _________________ statement of reasons, filed with the probation office as a part of the court's sentencing not comport with the requirements of 18 u.s.c. 3664. all three either pled guilty or were but also rohira's similar motions that had remained unresolved during the for the first time on the date of the october 2008 status hearing that the conspiracy victims' considerations are warranted because "it is well settled that the government may not be sentencing (prison time) and restitution on the one hand and the government's was ordered to pay. he also brings a claim of ineffective assistance of trial counsel. for the specifically, it contends that rohira and szyrej were differently situated from williams in any event, the district court's use of the word "their" does not constitute plain error. see williams's trial counsel objected to a proposed jury instruction dealing with the concept of probation office to issue a report that includes "information sufficient for the court to the deliberate ignorance instruction was clearly directed toward defendants' knowledge of of the evidence. id. 3664(e). consideration. dispersed throughout the victim impact calculations, but it does demonstrate the procedures utilized in this case to impose restitution on rohira, szyrej, and williams did dolan v. united states, no. 09-367, 2010 wl 2346548, at *3 (u.s. june 14, 2010). see id. their loss and to their victim status in this case. and they do wait to be paid, in paragraph 12 of the ps[r], the government states that dr. rohira would and in any event, the government asserts that the court "made a factual finding about these doctrines are inapplicable because rohira and williams "were not similarly situated services. amount of $400,000. i submit to you that before booker and after booker, charge of the case. this new ausa disagreed with williams as to the appropriate sentence. instead, the court simply adopted the psr's recommendation concerning the amount of upcoding argument under rule 32(i)(3)(b) and, after having done so, issue an appropriate estoppel ever applies against the government, it is only in the rare case where "the public thus, by participating in a conspiracy to commit healthcare fraud, williams bore the decided and filed: july 15, 2010 reconsideration of its order on his motion for a new trial before it lost jurisdiction due to the order restitution in the full amount of each victim's losses as determined by the court, not conspirator. these are all things that you may consider in deciding whether the conspiracy victims had not been able to establish the amount of their losses. he performed services worth $40.00. in paragraph 14, the government then no. 09-3521 united states v. williams page 7 as follows: misconduct--let alone misconduct that rises to plain error--because the government has no 5. rule 32 at 388 (holding that "[n]othing in the record, or the context of the hearing, suggests that the february 2005. the district court's order was later overturned by this court on appeal, with claim is meritless. the government's primary response to williams's arguments is that "[t]he conspiracy--even if he deliberately ignored the conspiracy." but the deliberate-ignorance rohira and szyrej are not, however, before us in the present appeal--only williams reconsideration, the court also granted rohira's motions for the same relief on the same case for sentencing. on remand, a new assistant united states attorney (ausa) took charged, then you may find that he knew that they were engaged in that _________________ addition, the court ordered szyrej to pay restitution in the amount of $600, concluding that that mr. williams intended those results. this, of course, is all for you to united states court of appeals no. 09-3521 united states v. williams page 8 claimed to be erroneous, we review the instructions as a whole, in order to determine - discovery of those losses in which to petition the court for an amended reasoning that "the government's different loss calculations cannot be prosecutorial u.s.c.a. 3663a note (historical and statutory notes, effective and applicability judgment relating to williams's conviction, dismiss without prejudice to "allow a party to make a new objection at any time before sentence is imposed." once an its discretion." new hampshire v. maine, 532 u.s. 742, 750 (2001) (citation omitted) role or connection may be enough. the prosecution called fbi special agent graupmann to concerns restitution, and remand the restitution issue for further consideration. parties on the propriety of imposing a harsher sentence and a much larger amount of preclude the district court fromordering williamsto pay additional restitution. this requires voluntarily joined it, intending to help advance or achieve its goals. this (footnote omitted), (citing united states v. booker, 543 u .s. 220 (2005), for the sixth circuit is accordingly without merit. see united states v. smigiel, nos. 97-1571, 97-1577, 173 f.3d second revised psr. williams's counsel responded that he intended his sentencing in support of his contention that the district court erroneously ordered him to pay victims of the conspiracy, and inaccurately stated that rohira's $400,000 qui tam settlement no. 09-3521 united states v. williams page 23 to a new trial as well," id. at 904, but, having already relied upon booker and how this instruction contradicts the court's deliberate-ignorance instruction. he has cited concludingthatwilliams'smotionforreconsiderationwasuntimely before it may be used to help convict him or to increase his united states of america, assistant united states attorney, cleveland, ohio, for appellee. convicted of conspiracy to commit healthcare fraud, and thus were each responsible for the n the government conceded in its sentencing memorandumthat it informed williams the conspiracy, williams has no basis to complain. see dolan, 2010 wl 2346548, at *5 a defendant's knowledge can be proved indirectly by facts and high probability that the alleged co-conspirators were engaged in the fraud a basis in law for aiding the jury in reaching its decision." see frederick, 406 f.3d at 761. bill for half hour psychotherapy sessions at a rate of $65.00 when actually _________________ powers principles to claims of estoppel against the government"); fdic v. husley, 22 f.3d 1472, 1489 (10th cir. 1994) ("courts generally disfavor the application of the estoppel so inform the court, and the court shall set a date for the final determination circumstances which lead to a conclusion that he knew the conspiracy's if he approved of what was happening or did not object to it. practice for many years. he has been in this country for 30 years. he we therefore review this belated claim under the plain-error standard. see united states v. of, imposing restitution upon those convicted of certain federal crimes"). this circuit requires "literal compliance" with this provision. this strict us to determine whether applying an equitable doctrine against the government would be on his objections to the victims' loss calculations as set forth in the presentence report for payment of the full amount of restitution or may apportion liability among the williams raised several objections to the much higher amount of restitution that the iii. conclusion that the victims' losses had not in fact been fully compensated by rohira's settlement a prior panel of this court described the subsequent procedural history of this case defendant-appellant. internal quotation marks omitted)). williams's argument that the deliberate-ignorance pendency of williams's trial. in ruling upon those motions in separate the facts in the indictment underlying the conspiracy charge, the court clearly stated that the not expressly rule on the objections that had been raised in the memorandum by williams. between approximately july 1991 and september 1997. szyrej and williams worked as for all upcoding. substituting the amount of $25.00 for the $85.00, the application does not violate the ex post facto clause); united states v. yaker, 87 f. app'x as a factual matter and the latter as a legal matter. here, the government charged rohira with the jury was not given the clear direction that williams'[s] carelessness, negligence, or inacompletelyseparateportion of the instructions, after the district court had recited the jury to find williams `knowingly and voluntarily' joined the conspiracy." thus, the the supreme court has explained that "[w]hen the government is unable to enforce judgment of acquittal and for a new trial on grounds that he had originally to the government, it did not take inconsistent positions regarding restitution during the admits such knowledge. v. rayborn, 491 f.3d 513, 520 (6th cir. 2007) (explaining that "even when it is unsupported further proceedings" due to the fact that the district court allegedly violated rule 32(i)(3)(b) f.3d 540, 555 (6th cir. 2005). estopped on the same terms as any other litigant." heckler, 467 u.s. at 60. 4. due process szyrej. szyrej subsequently pled guilty tothe conspiracy charge and agreed to testify against contends that the first instruction dealt with "deliberate ignorance and williams'[s] booker and blakely." williams, 355 f. supp. 2d at 909-10. the court "also approximately $1.8 million does little to remedy this misrepresentation because the mvra blakely to grant relief to the defendant, ruled that "williams's motion for a standard. id. recommended for full-text publication fraud charged, and that mr. williams deliberately closed his eyes to what f.3d 691, 702 (7th cir. 2009) (citing cases). and where a defendant challenges an area of is unnecessary either because the matter will not affect sentencing, or because the court will honor, and reliability in their dealings with their government." id. at 60-61; see also id. at states v. fortson, 194 f.3d 730, 736 (6th cir. 1999). but williams has not provided any $822,459.21. williams appeals his conviction, as well as the amount of restitution that he $822,459.21. he first argues that the government should be collaterally estopped from


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