United States v. Popov, No. 12-10045 (9th Cir. 2014)
Annotate this CaseDefendants were convicted of one count of conspiracy to commit health care fraud and three counts of health care fraud. On appeal, defendants challenged their sentences. The court held that, in health care fraud cases, the amount billed to an insurer shall constitute prima facie evidence of intended loss for sentencing purposes. If not rebutted, this evidence shall constitute sufficient evidence to establish the intended loss by a preponderance of the evidence. However, the parties may introduce additional evidence to support arguments that the amount billed overestimated or understated the defendant's intent. In this instance, the court vacated defendants' sentences on the issue of intended loss because the record left the court uncertain as to what the district court understood the law to be with respect to calculating intended loss for sentencing purposes and there was evidence suggesting that defendants may have been aware that Medicare only payed a fixed amount. When viewed in conjunction with the evidence that defendants were the only two named physicians on the clinic's sign, the documents were sufficient to support the district court's finding that Defendant Popov's bills to Medicare were foreseeable to Defendant Prakash. The court vacated the sentences and remanded for resentencing.
Court Description: Criminal Law. The panel reversed the district court’s findings regarding the amount of loss and remanded for resentencing, in a case in which the defendants were convicted of conspiracy to commit health care fraud in violation of 18 U.S.C. §§ 1347 and 1349, and health care fraud in violation of 18 U.S.C. § 1347, arising from the submission of fraudulent bills to Medicare. The defendants argued that the district court erred in finding that the intended loss was the amount billed to Medicare, rather than the amount Medicare actually paid. The panel held that in health care fraud cases, the amount billed to an insurer shall constitute prima facie evidence of intended loss for sentencing purposes, and if not rebutted, shall constitute sufficient evidence to establish the intended loss by a preponderance of the evidence, but that the parties may introduce additional evidence to support arguments that the amount billed overestimates or understates the defendant’s intent. Because the record left the panel uncertain as to what the district court understood the law to be, and there is evidence suggesting that the defendants may have been aware that Medicare only pays a fixed amount, the panel vacated the sentences and remanded for resentencing on this issue. Regarding defendant Prakash’s argument that he should not be held accountable in the loss calculation for claims submitted to Medicare under defendant Popov’s provider number, the panel held that the evidence in the record was sufficient to support the district court’s finding that Popov’s bills to Medicare were foreseeable to Prakash. The panel addressed other claims in a memorandum disposition wherein the panel affirmed the district court.
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