Professional Documents
Culture Documents
No. 96-1203
Appellee,
v.
Defendant, Appellant.
____________________
____________________
Before
____________________
Terry A. Fralich
________________
United
States
Attorney, with
Jay P. McCloskey, United States Attorney, was on brief for the Uni
_________________
States.
____________________
November 6, 1996
____________________
____________________
BOUDIN, Circuit
Judge.
from his
______________
sentence,
following a
charges, to
of guilty
victim
plea
to various
determinations made by
adjustment,
U.S.S.G.
3A1.1(b);
facts,
which
we
briefly
presentence report,
other materials
criminal
the
summarize,
are
the
Id.
___
an
3B1.3.
The
from
the
drawn
sentencing transcript
other,
and
various
United States v.
_____________
From
operated
Counseling
August 1993
the
Maine
Center
until November
Health
in
1994, Gill
Trust, doing
Fryberg,
Maine,
business
and
owned and
as
The
provided
psychological
Counseling
counseling
Center
February 1994
services
during this
to
period.
individuals
at
the
Additionally, from
where he
his employers
at
the Bethel
Area
Health Center,
that
he
a psychologist or counselor
In
fact, Gill
either
psychology or
counseling.
Gill
had a
substantial
-2-
-2-
to submit
the
Medicare and
provided
to them.
Medicaid programs
The
for services
total value of
that Gill
false
statements as to his
Gill
individual patients.
In
March
1995,
willfully
using
statement,
18
passport when
of
one
pled
a passport
U.S.C.
secured
statements to
1341,
by
1542, Gill
at
the start
count of
guilty
wire
fraud, and
to
42
U.S.C.
proffered
his employment.
to one count
of
false
the
count of
1320.
All
In
of mail fraud,
making
1343;
count
of
one
one
means of
having
his citizenship
October
Gill
false
18 U.S.C.
charges
were
Following a
hearing on
supervised release,
the district
and a requirement of
amount of $43,481.49.
two-level increase
restitution in the
in Gill's
-3-3-
for victim
vulnerability, U.S.S.G.
for abuse of a
3A1.1(b), and
a two-level increase
3B1.3.
from
Gill was
his sentence.
1995 edition
of Gill's appeal
sentenced under
of the guidelines,
It is these
the November
to that
deceptively so,
court's
factual
erroneous,
novo.
____
1991).
in the
and the
standard formulation:
findings
are
respected
determinations
of law
the district
unless
clearly
are reviewed
de
__
undisputed
facts
is
also an
issue
of
law,
id., but
___
in
1989,
the
Victim vulnerability.
_____________________
Since
provision now
designated
substantially
unchanged, although
commentary
(discussed
states that
is
pertinent
below).
The
November 1,
U.S.S.G.
to
3A1.1(b) has
the
recent change
issue
black letter
a two-level increase in
of
remained
in
"targeting"
of section
3A1.1(b)
age, physical
victim
was
or mental
condition, or
otherwise particularly
the
that a
susceptible to
-4-4-
applied
to
objections,
patients
Gill.
the
As
amended
report reasoned
with whom
difficulties, mental
to
reflect
that
Gill
he would
be dealing
health
disorders and
rulings
knew that
be
on
the
"had psychological
substance
abuse
problems."
knew
his
that
victims were
vulnerable
to
of a
and
"specifically
`vulnerability' by [choosing]
person who
treats such
people with
At sentencing,
victims "were
that
imposing
to
their
The court
such
an
F.3d
adjustment
175, 180-81
United States
_____________
seeking
cited
33
court
especially vulnerable
gave rise
services."
the district
(2d
because of their
and their
decisions
on
concluded that
needs
receiving
in other
individuals
the
of
circuits
fraudulently
Cir.
v. Bachynsky, 949
_________
1994) (unlicensed
doctor);
(5th Cir.
506
grounds.
based on
evidence as to
membership
in a
class.
He
denies
-5-5-
that the
upon mere
patients
he
he
did
not
"target"
vulnerability, a
based
victims
requirement
on commentary
related; the
the
language.
on
he imputes
The
account
of
to
guideline
the
first
their
two claims
are
of this opinion.
The vulnerable
victim guideline is
primarily concerned
the
the victim.
The latter
other
_____
provisions of
upward
departures
the
where
aggravation is dealt
guidelines,
the
crime
with in
five
expressly
permitting
resulted
in
death,
significant
special
physical
injury, extreme
property damage,
injury or
prolonging of
or
the
pain or
psychological injury,
gratuitous infliction
humiliation.
of
U.S.S.G.
to have
interpreted
to the
criminal
was
less
likely
to
thwart the
crime,
Thus,
mental
health
facilities
average citizen
where
Gill
practiced
were,
on
Gill's fraud.
judge's
comments
that suggests
a misunderstanding
on this
-6-6-
point.
guideline at the
susceptibility
without
some
notion
of
what
kind
____
of
Even
thus narrowed,
our case
is
peculiarly difficult
fall
that they
health
centers for
have or think
counseling and
therefore are
likely to
emotional or mental
problem--
Gill
finding to be based on
than on
Appeals
courts have
been
rather more
basis
than when
the focus
was on
willing to
set
the susceptibility
of a
specific individual.
Id. at 17.
___
The
are
guideline makes
permissible
by
clear that
saying
in
-7-7-
its
"class" determinations
commentary
that
the
adjustment
cancer
cases
would apply
cure.
U.S.S.G.
have
upheld
determinations.
518, 522-23
F.3d
at
McDermott,
_________
teenagers);
to someone
3A1.1(b), comment.
upward
adjustments
an ineffective
n.2.
based
Numerous
on
group
(11th Cir.
180-181
29
who sold
(medical
F.3d
404,
patients);
411
(8th
F.3d
Echevarria, 33
__________
United
States
_______________
Cir.
1994)
v.
(black
(9th
Cir.
1992)
(people
with
poor
credit
histories);
hard
for us to see
fraud.
F.3d 9 (1st
different.
There,
directed
15-16.
"unusually" vulnerable to
this court
was concerned
is quite
with
a crime
Id. at
___
to a more
Yet
even
characteristic
as to settle the
commentary
robbery
in
one-victim
case,
single
"class"
Indeed,
the guideline
victim was
confined to
-8-8-
a wheelchair.
U.S.S.G.
individual rest on an
about an
In our
own case,
have simplified
patients
as
to their
concerns about
why
from
might wish
considerations
that many
At the
the prosecutor
apart
own conditions.
to avoid
of time
was free to
and
same time,
it pretty obvious
this course--quite
expense.
In all
inference
In
conclude
our
view,
based on
sentencing
general
judge
knowledge that,
could
reasonably
in the
typical
situation,
stress.
True, some
in mental
that
health matters
most people
reason, it
treat
is a step
Counseling
as private
and,
but to
if for
likely to take
affairs
no
other
only to
is thus
safe to infer
that at
-9-9-
least some of
It
these victims
Gill's fraud.
Id.
__
3A1.1(b).
patient and we
knew nothing
Yet
general
inference as
unlikely
to most
clinics but
to involve
much patient
stress.
offered evidence
special problem
But neither
of
enough
Targeting.
_________
Gill
makes a
separate complaint
did not
"target"
unusual
vulnerability.
proposition that
or select
He
his
victims because
cites several
this motivation
cases
is a additional
that his
because he
of
for
their
the
requisite
element.
3A1.1
Until
stated
November
that
the
1995, the
section was
commentary to
applicable
section
"where
an
____________________
1This contrasts
with the
situation,
described by
the
fraud
comment.
and largely
n.2
(enhancement
U.S.S.G.
not applicable
to
3A1.1(b),
purveyor
of
-10-10-
unusually
vulnerable victim
activity by the
is
defendant."
made a
U.S.S.G.
target of
3A1.1,
criminal
comment. n.1
(Nov. 1994).
Commission in
section
1995).
deleted
by the Sentencing
the operation" of
3A1.1.
U.S.S.G.
But Gill's
amendment date.
previously
So,
required
App.C, Amend.
521, at
430 (Nov.
to the
element
motivation,
of targeting
the
principles.
See
___
U.S.S.G.
1B1.11;
United States
______________
v.
Gill's
argument about
opinion in
Rowe.
____
fraudulent
health
businesses, that
The
targeting leans
Rowe case
____
insurance
were
not,
involved a scheme
policies
in our
to
When the
insured they
that
there
victims."
was no
easily switch
"special
small
to
be
999 F.2d at
the employee-
could not
once
companies--we replied
targeting
[by Rowe]
of
such
Id. at 17.
___
The confusion
making, but
shown
Rowe,
____
our
to sell
various
opinion,
16-17.
heavily on
it does not
help Gill.
All that we
of our own
meant was
Rowe's fraud
-11-11-
had involved
patients
the latter's
vulnerability.
See, e.g.,
___ ____
patients).
nothing to
do
separate and
with laying
down a
additional requirement
Although the
requirement
guideline,
of
is
guideline: to
more
"targeting,"
at
673, 676
with the
punish more
culpable and
deterrence.
odds
even
under
evident
the pre-amendment
purpose
to protect
such victims
(10th Cir.),
such an additional
cert. denied,
_____ ______
of
the
is morally
by adding
more
Brunson, 54
_______
F.3d
(1995);
Cir.
_____________
1993).
_______
the defendant
"knew or
of the
victim's
unusual vulnerability.
____________________
a scienter requirement
United States v.
______________
additional
Smith, 39
_____
60 F.3d 1134,
targeting
F.3d 119,
-12-12-
requirement),
124 (6th
and
___
Cir. 1994)
Gill's fraud
include both
the patients
with whom he
dealt directly
those
parties
were billed,
such
third
companies.
that
It is
the former
who
private
insurance
include at
least some
guideline, pre
as
and
who were
motivation.
If
Rowe
____
has
unusually
confused
of Gill's own
matters,
as
that the
3B1.3.
"if the
trust
defendant abused
. . . in
a two-level enhancement
position of
a manner that
public or
private
U.S.S.G.
3B1.3.
Thus, the district court must first decide that the defendant
position to
facilitate or conceal
the offense.
See United
___ ______
Here
the district
court concluded
that, at
least "in
to his
the
patients'
psychologist to
both
reliance
on
further his
his
took advantage of
claimed
fraud scheme.
status
as
Gill challenges
a position of
-13-13-
trust as intended
by the
there was
no
Were
status
Gill a
as a
fraud or
there
mental health
doubt
"Effective
atmosphere
willing
licensed psychologist
is no
apply.
duly
perpetrate some
their insurers,
that section
3B1.3's enhancement
psychotherapy
a frank
his
professional to
of confidence and
to make
who used
. .
depends
trust in which
upon
an
the patient is
of facts,
fears."
Ct.
readily describes
Jaffee
______
would
the relationship
v. Redmond, 116
_______
of a psychologist
S.
vis a
the position
of counselor, he
This argument
has persuaded at
himself out
that
do not believe
he
purports
commentary."
We
to
as a
on a defendant
physician, stating
that an imposter
occupy within
that
the
meaning
of
this
be taken to
least
Circuit reversed
"[w]e
that position
refer only
to one who
legally or
legitimately
-14-14-
But
the
threat
present
that animates
the
guideline may
as
easily be
threat--illustrated by the
trust funds
that wrongdoer's
That
client out of
abuses a patient--is
See U.S.S.G.
___
3B1.3, comment.
n.1.
The
threat is
equally
present whether
the lawyer
or
wrongdoer is
to facilitate or
Our own
The district court here found that Gill did acquire, "in
____________________
enhancement upheld
defrauded a
corporation that
despite the
fact that he
authority
over
the
police
officer
subject
a defendant
corporation);
against
cf.
__
who
actual control,
obtained legal
United
States
_______________
v.
enhancement
if
prior position
-15-15-
not
enough; there
pretending,
must
also
be
Affirmed.
________
"position."
But
by
-16-16-