United States v. Abdur Tai

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 13-1998

_____________

UNITED STATES OF AMERICA

v.

ABDUR RAZZAK TAI,

Appellant

____________

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT OF

PENNSYLVANIA

(D.C. No. 2-10-cr-00769-001)

District Judge: Honorable Juan R. Sanchez

______________

Argued March 27, 2014

Before: FUENTES and SHWARTZ, Circuit Judges, and

ROSENTHAL, District Judge.*

*

The Honorable Lee H. Rosenthal, United States

District Judge for the Southern District of Texas, sitting by

designation.

(Filed: April 30, 2014)

Paul G. Shapiro, Esq. [ARGUED]

Office of the United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

Peter Goldberger, Esq. [ARGUED]

50 Rittenhouse Place

Ardmore, PA 19003

Counsel for Appellant

______________________

OPINION

______________________

SHWARTZ, Circuit Judge.

Defendant Abdur Razzak Tai appeals his conviction

and sentence for mail and wire fraud in connection with

claims for payment from the Fen-Phen Settlement Trust. Tai

argues that the District Court committed plain error by

implicitly shifting the burden of proof in its “willful

blindness” jury instruction and applying upward adjustments

under the advisory Sentencing Guidelines for abuse of a

position of trust, use of a special skill, and aggravated role.

For the reasons set forth below, we conclude that the District

Court’s jury instruction and its upward adjustments based

upon position of trust and special skill were not in error, but

we will remand to enable the District Court to make the

2

required factual findings concerning whether Tai supervised a

criminally culpable subordinate, which is necessary to award

an aggravated role enhancement.

I

In the late 1990s, individuals who had taken the

prescription diet-drug combination commonly known as Fen-

Phen began filing lawsuits against American Home Products

Corporation (“AHP”), the predecessor of Wyeth, claiming

that the drugs caused valvular heart disease. In 2000, the

United States District Court for the Eastern District of

Pennsylvania approved a class action settlement (the

“Settlement”), which included the establishment of the Fen-

Phen Settlement Trust (the “Trust”), through which Wyeth

paid compensation to class members who demonstrated that

they sustained valvular heart damage.

Financial compensation for these heart conditions was

determined under a pre-established matrix.1 To receive

compensation, claimants were required to provide a recording

of and a physician’s report about an echocardiogram

(“echo”)2 and a document referred to as a “Green Form”3

1

The amount of a claimant’s benefits was determined

by several factors, including the length of time the claimant

used Fen-Phen, the severity of the claimant’s valvular heart

condition, and the claimant’s age.

2

Typically, a technician performed and video recorded

the echoes, and a qualified physician reviewed the video and

the technician’s worksheet setting forth the measurements.

3

The Green Form provided the formulae for

determining if the claimant had a condition that qualified for

3

signed by a board-certified cardiologist or cardiothoracic

surgeon with Level 2 training in echocardiography.4 The

Trust then reviewed the submissions and, when appropriate,

tendered payment.

A representative of the Trust explained that the Trust

relied on the integrity of the physicians signing the reports

and Green Forms to ensure that the claimants actually had

heart conditions that were covered by the Settlement. Both

the Trust and Wyeth had “audit rights,” which allowed them

to have highly trained, board-certified physicians review the

materials submitted to ensure “the tape . . . matche[d] with the

rest of the substantiation.” App. 87. Under the original terms

of the Settlement, only 15% of all claims could be audited. In

November 2002, the District Court ordered that 100% of the

claims would be subject to audit because of concerns about

the bona fides of the claims being submitted.5

compensation. Part II of the Green Form required the

physician to sign beneath a warning that explained that it was

an official court document and the physician was declaring,

under penalty of perjury, that the information on the form was

correct.

4

Level 2 training reflects a high degree of experience

reading and interpreting echoes.

5

On March 15, 2005, the District Court approved an

amendment to the Settlement (the “Seventh Amendment”),

under which Wyeth agreed to create a new supplemental fund

with a separate, faster process for reviewing and paying

claims for which there was documentation that on its face

qualified the claimant for Matrix Benefits. The Seventh

Amendment claims were all subject to medical review.

4

Attorneys who represented certain Fen-Phen claimants

retained Tai, a board-certified and Level 2-qualified

cardiologist, to read echoes and prepare reports to submit to

the Trust. Tai estimated that he read 12,000 echoes for this

purpose, and asserted that he was owed over $2 million

dollars for the services he provided. This amount was based

upon a fee for each echo read and a bonus payment for each

approved payment.6 Most of the Green Forms Tai signed

were submitted before the 100% audit rule was imposed.

Tai acknowledged to law enforcement that in about

10% of the cases, he dictated physician’s reports consistent

with the findings in the technicians’ reports despite knowing

that the measurements were wrong. He also admitted that he

had his technician and office manager, Debbie Patrick, review

about 1,000 of the echoes because he did not have the time to

do the work himself. Patrick testified, via deposition, that she

reviewed “a couple hundred” echoes, App. 605, and provided

Tai with her notes to “help him out” with the volume of

echoes he was asked to review. App. 589-90. Patrick

testified that she did not know whether Tai read the echoes

himself before signing the physician’s report and Green

Form, but she “would assume that he did because there were

several times that [she] even asked him” if he agreed with her

conclusions and he sometimes told her she was wrong. App.

591-92. For one particular lawyer representing Fen-Phen

claimants, Tai signed more than 1,400 Green Forms, and of

the 1,173 of those Green Forms that were audited or

reviewed, only 109 were approved. A government expert

6

For example, one attorney agreed to pay Tai a $100-

150 fee for each echo read, plus an additional “expert fee” of

$900-1000 for each Green Form that the Trust approved.

5

reviewed a nonrandom sample of the forms Tai submitted for

this attorney and found that, in a substantial number of the

cases, the measurements were not only clearly incorrect, but

were actually inconsistent with a human adult heart.7

Tai was charged in a thirteen-count indictment for

mail and wire fraud, in violation of 18 U.S.C. §§ 1341 and

1343, respectively. The jury found Tai guilty of all charges,

and he was sentenced to concurrent sentences of 72 months’

imprisonment8 and three years’ supervised release, and

ordered to pay restitution of $4,579,663, a fine of $15,000,

and a special assessment of $1,300. Tai appeals.

7

Tai testified that he agreed with these conclusions but

claimed that the signature on the physician reports attributed

to him was not his. Tai’s employees, however, testified that it

was his signature, and, in fact, his office administrator

testified that she had stamped Tai’s signature on the reports

with his permission.

8

The base offense level was 7, 18 levels were added

under U.S.S.G. § 2B1.1(b)(1)(J) (loss was more than $2.5M

but less than $7M), 2 levels were added under U.S.S.G. §

3B1.3 (defendant used a special skill or abused his position of

trust), and 2 levels were added under U.S.S.G. § 3B1.1(c)

(defendant was an organizer, leader, manager or supervisor).

This resulted in an offense level of 29, with an applicable

advisory Guidelines range of 87-108 months. The District

Court then granted a two-level variance following

consideration of the Section 3553(a) factors due to Tai’s age

and health, and lowered the offense level from 29 to 27, with

an applicable Guidelines range of 70-87 months. The Court

sentenced Tai near the bottom of that range to 72 months’

imprisonment.

6

II9

The parties agree that none of the issues Tai presents

were preserved for appeal and that plain error review

applies.10 United States v. Couch, 291 F.3d 251, 252-53 (3d

Cir. 2002) (stating that where no objection to the Guidelines

calculation was preserved at sentencing, it is reviewed for

plain error); United States v. Antico, 275 F.3d 245, 265 (3d

Cir. 2001) (reviewing a jury instruction for plain error where

the challenge on appeal was not raised at trial); Fed. R. Crim.

P. 30(d), 52(b). The defendant bears the burden to establish

plain error. United States v. Olano, 507 U.S. 725, 734-35

(1993). For reversible plain error to exist, there must be (1)

an error; (2) that is plain; (3) that affects substantial rights;

and (4) which seriously affects the fairness, integrity, or

public reputation of judicial proceedings. Johnson v. United

States, 520 U.S. 461, 466-67 (1997).

9

The District Court had jurisdiction pursuant to 18

U.S.C. § 3231, and this Court has jurisdiction pursuant to 28

U.S.C. § 1291.

10

At argument, the Government for the first time

argued that Tai waived his right to appeal the role

enhancement because he withdrew his objection to its

imposition before sentencing. While we recognize that

withdrawing an objection constitutes a waiver of the right to

appellate review in most instances, we will not foreclose

appellate review in this case, where the Government did not

rely on waiver in its brief and enforcing the waiver rule here

would not serve “the interests of justice.” United States v.

Barrow, 118 F.3d 482, 491 (6th Cir. 1997).

7

III

A. Jury Instruction

We will first address whether the District Court

committed plain error by employing the language of the Third

Circuit’s model jury instruction when instructing the jury

about willful blindness. Tai argues that the model jury

instruction is constitutionally infirm because it shifts the

burden of proof to the defendant to disprove intent.

A willful blindness instruction is typically delivered in

the context of explaining how the Government may sustain its

burden to prove that a defendant acted knowingly in

committing a charged offense. Here, the willful blindness

instruction was delivered after the District Court explained

the elements common to mail and wire fraud, including that

the Government must prove that Tai “acted knowingly with

respect to an element of the offenses.” Supp. App. 824. The

District Court defined “knowingly” as meaning “that the

Government must prove beyond a reasonable doubt that he

was conscious and aware of the nature of his actions and of

the surrounding facts and circumstances as specified in the

definition of the offenses charged.” Id. The District Court

then instructed the jury as follows:

As I just explained, members of the jury,

to find Dr. Tai guilty of mail fraud or wire

fraud, you must find that the Government

proved beyond a reasonable doubt that Dr. Tai

knowingly devised or wil[l]fully participated in

8

a scheme to defraud, and that he acted with

intent to defraud.

Both of these elements involve the

question of whether Dr. Tai had knowledge of

an inaccuracy of the echocardiogram reports

and green form[s] that he signed.

When, as in this case, knowledge of a

particular fact or circumstance is an essential

part of the offense charged, the Government

may prove that Dr. Tai knew of the fact or

circumstance if the evidence proved beyond a

reasonable doubt that Dr. Tai deliberately

closed his eyes to what would otherwise have

been obvious to him.

No one can avoid responsibility for a

crime by deliberately ignoring what is obvious;

thus, you may find that Dr. Tai knew about the

falsity of the echo reports and green forms

based on evidence which proves that, one, Dr.

Tai himself actually subjectively believed that

there -- there was a high probability that the

reports or forms were not accurate, and, two,

Dr. Tai consciously took deliberate actions to

avoid learning about the existence of the falsity.

You may not find Dr. Tai knew that the

reports or forms were not accurate if you find

that the defendant actually believed that the

reports and forms were accurate. Also, you

may not find that Dr. Tai knew the reports and

forms were not accurate if you -- you find only

that Dr. Tai consciously disregard [sic] a risk

that the reports and the forms were not

accurate or that Dr. Tai should have known

9

that the reports and forms were not accurate,

or that a reasonable person will have known

of a high probability that the reports and

forms were not accurate.

It is not enough that Dr. Tai may have

been reckless or stupid or foolish or may have

acted out of accident. You must find that Dr.

Tai himself actually subjectively believed that

there was a high probability that the reports and

forms were not accurate, consciously took

deliberate actions to avoid learning about their

inaccuracy and did not actually believe that they

were accurate.

Supp. App. 828-30 (emphasis added). Tai argues that the

emphasized phrases in the fifth paragraph told the jury that

certain innocent states of mind preclude a finding of

knowledge, and he asserts that this suggests to the jury that it

can find that Tai did not meet the element of knowledge only

if the jury finds those innocent states of mind to have existed.

This in turn, Tai argues, impermissibly shifts the burden from

the government to Tai to disprove his knowledge.

There is no doubt that a jury instruction violates due

process if it fails to place squarely on the Government the full

burden of proving beyond a reasonable doubt the required

mental state for the offense. See Patterson v. New York, 432

U.S. 197, 204-07 (1977). The language of the fifth

paragraph, however, did not impose any burden, implicit or

explicit, on Tai to prove or disprove his knowledge. Rather,

the willful blindness jury instruction as a whole came after

the jury was told the Government bears the burden to prove

that Tai acted knowingly and with an intent to defraud. The

10

willful blindness instruction then explicitly explained that

“the Government may prove” this element through evidence

that established beyond a reasonable doubt that Tai

“deliberately closed his eyes to what would otherwise have

been obvious to him.” Supp. App. 829. The instruction then

explained to the jury what this meant and how it could not

find him guilty if the jury found that Tai actually believed the

forms were accurate, that he disregarded a risk of inaccuracy,

or that he or a reasonable person should have known the

reports were inaccurate. The instruction then reiterated that,

to convict, the jury must find Tai subjectively believed there

was a high probability the reports were inaccurate and he

consciously took steps to avoid learning about their

inaccuracy. These instructions told the jury when willful

blindness does or does not exist, but did not imply in any way

that Tai must present evidence concerning his own beliefs or

knowledge. Thus, there was no implicit or explicit shifting of

the burden of proof to Tai.11

11

Courts have approved similar instructions. United

States v. Flores, 454 F.3d 149, 158 (3d Cir. 2006) (stating that

a willful blindness instruction saying that “[i]f the [evidence]

shows you that [the defendant] actually believed . . .”

reflected the “correct burden of proof”); see also United

States v. Clay, 618 F.3d 946, 952 & n.5 (8th Cir. 2010)

(approving the following in a willful blindness instruction:

“You may not find [defendant] acted ‘knowingly’ if you find

he was merely negligent, careless, or mistaken . . . . You may

not find that [defendant] acted knowingly if you find that he

actually believed . . .” and finding no merit to the argument

that this instruction shifted the burden of proof).

11

Moreover, the District Court told the jury that it could

not find knowledge based on a willful blindness theory unless

the Government proved Tai’s knowledge beyond a reasonable

doubt, and in fact the jury was expressly told at the beginning

of the instructions that Tai never had to prove anything, and

that the burden always remained on the government.12 This

was “more than sufficient to dispel any possible

misconception that [Tai] bore a burden to prove that he was

not willfully blind.” United States v. Flores, 454 F.3d 149,

159 (3d Cir. 2006) (holding that even when the district court

had misspoken and erroneously shifted the burden of proof in

its willful blindness instruction, repeated references to the

government’s burden and the district court’s general

instruction that the burden does not shift ensured that there

was no plain error). When the instructions are read as a

whole, it is clear that no jury could conclude that Tai bore the

burden of proof as to any aspect of his knowledge and the

District Court committed no error in connection with its

willful blindness instruction.

12

The District Court instructed that

[t]he presumption of innocence means that the

defendant has no burden or obligation to present

any evidence at all or to prove that he is not

guilty. The burden or obligation of proof is on

the Government to prove that the defendant is

guilty, and this burden stays with the

Government throughout the entire trial.

Supp. App. 818-19.

12

B. Sentence

1. Abuse of a Position of Trust or use of a Special Skill

under U.S.S.G. § 3B1.3

Tai argues that the District Court plainly erred by

imposing a two-level increase under U.S.S.G § 3B1.3 for

abuse of a position of trust and use of a special skill. Section

3B1.3 allows an increase of two offense levels “[i]f the

defendant abused a position of public or private trust, or used

a special skill, in a manner that significantly facilitated the

commission or concealment of the offense.” Because either

an abuse of a position of trust or use of a special skill supports

the two-level enhancement the District Court applied, Tai

must establish plain error with respect to both to avoid it. We

will examine each separately.

a. Abuse of Position of Trust

To receive an enhancement for abusing a position of

trust, the facts must show that the defendant took “criminal

advantage of a trust relationship between himself and his

victim.” United States v. Hickman, 991 F.2d 1110, 1112 (3d

Cir. 1993). Courts consider the following three factors to

determine whether a position of trust or a trust relationship

exists: “(1) whether the position allows the defendant to

commit a difficult-to-detect wrong; (2) the degree of authority

which the position vests in defendant vis-a-vis the object of

the wrongful act; and (3) whether there has been reliance on

the integrity of the person occupying the position.”13 United

13

Tai argues that the position of trust guideline applies

only to those who were selected or paid for by the entity with

13

States v. Dullum, 560 F.3d 133, 140 (3d Cir. 2009) (internal

quotation marks omitted). Once a position of trust has been

found, § 3B1.3 requires a finding that the defendant “abused

that position in a way that significantly facilitated his crime.”

United States v. Sherman, 160 F.3d 967, 969 (3d Cir. 1998)

(internal quotation marks omitted).

As to the first factor, Tai’s position as a cardiologist

with Level 2 training in echocardiology allowed him to

commit a difficult-to-detect wrong. Only an equally well-

trained physician was permitted to support claims for

payment and only one with access to the same patient

information would be able to detect Tai’s fraud. Indeed, it

would be impossible to verify the accuracy of his reports

whom the trust relationship is said to exist. He provides no

support for this position and, indeed, our precedent makes

clear that this is not a requirement. See United States v.

Sherman, 160 F.3d at 967, 970 (3d. Cir. 1998) (holding that a

doctor was in position of trust with insurance company who

insured his patients). At argument, Tai tried to distinguish

Sherman on the grounds that insurance companies approve

providers under a health insurance plan and are therefore in a

pre-existing trust relationship with those providers. Our

analysis in Sherman, however, did not make this distinction,

as we did not focus on whether the insurance company had

pre-approved the doctor, but instead concentrated on the fact

that “the insurance company relied on the integrity of

Sherman as a doctor holding a medical license.” Id. Like the

insurance company in Sherman, the Trust accepted Tai’s

representations because of his expertise.

14

without a second and similarly qualified doctor reviewing the

same information.14

As to the second factor, Tai had a large degree of

authority over the submission of the claims as he was one of

the physicians authorized to read echoes and sign Green

Forms for submission to the Trust. Moreover, his license and

experience allowed him to do so without supervision.

As to the third factor, the very nature of the Settlement

and structure of the Trust required reliance on the integrity of

the doctors who were signing the physician reports and Green

Forms. To verify the existence of qualifying heart damage,

the Trust depended upon the fact that licensed and board-

certified cardiologists or cardiothoracic surgeons with Level 2

training in echocardiography had reviewed the claimants’

echoes and had prepared and signed reports attesting to the

findings under penalty of perjury. See United States v. Liss,

265 F.3d 1220, 1229 (11th Cir. 2001) (“Of the other circuits

that have addressed whether a physician occupies a position

of trust in relation to Medicare, or a private insurance carrier,

14

Tai relies on United States v. DeMuro, 677 F.3d 550

(3d Cir. 2012), in which this Court held that the “difficult to

detect” factor of the position of trust analysis had not been

proven when defendants had failed to pay taxes that they had

withheld from employees’ paychecks and placed into a trust

fund account the IRS required defendants to maintain. Id. at

555, 567-68. The defendants in DeMuro, however, did not

exercise any professional judgment in their actions vis-a-vis

the IRS trust fund on which the IRS relied, and thus that

situation is very different from the one here.

15

all have answered that question in the affirmative.”). It was

reasonable for the Trust to have relied upon Tai’s

representations both based on his training and the fact that to

have a second doctor “shadow him” would be an

unreasonable expense. Sherman, 160 F.3d at 970.

Finally, Tai’s credentials, and the deference he was

accorded as a result of them, placed him in a position that

facilitated his criminal conduct. His signature gave claimants

the opportunity to receive, collectively, hundreds of millions

of dollars in compensation, yielding more than $2 million in

potential payments to him.

The Trust’s ability to audit claims does not mean that

the Trust limited the authority the doctors were given to

submit claims and the expectation that they would have done

so honestly. See Sherman, 160 F.3d at 970. Rather, the

Trust depended almost exclusively on the professional

integrity of the physicians who submitted reports and signed

Green Forms under penalty of perjury, particularly during the

period Tai submitted most of the claims. Many of Tai’s

reports were signed and completed when the Trust and Wyeth

were entitled to audit up to only 15% of the claims.

Moreover, the audit looked only at whether any reasonable

physician could have reached the conclusion of the certifying

cardiologist that the claimant had the heart condition depicted

in the echocardiogram tape, and thus the audit was geared

toward accepting the medical judgments of the highly trained

physicians who rendered them. Cf. Sherman, 160 F.3d at 970

(upholding abuse of trust adjustment for a physician who

occupied a position of trust with the insurance company to

which he submitted inflated bills and rejecting defendant’s

argument that his authority to act was narrowed by insurance

16

company oversight via regular audits of bills submitted to

them).

For these reasons, the District Court did not plainly err

in finding Tai abused a position of trust and enhancing his

sentence under § 3B1.3.

b. Use of Special Skill

Although the abuse of a position of trust alone is

sufficient to justify the two-level enhancement under § 3B1.3,

we will also examine whether it was plain error to find that

Tai also used a special skill. The following two factors must

be present to support the application of an upward Guidelines

adjustment for use of a special skill: “(1) the defendant

possesses a special skill; and (2) the defendant used it to

significantly facilitate the commission or concealment of the

offense.” United States v. Batista De La Cruz, 460 F.3d 466,

468 (3d Cir. 2006).

Tai admits that he possessed a special skill as a highly

trained doctor but argues instead that he does not meet the

second prong of the test because he did not use his special

skill to commit his crimes as he refrained from exercising his

skill when he did not review the echoes and simply signed the

reports.

Here, Tai’s skill and credentials were the means by

which he could participate in the claims process. Without

them, he would not have been permitted to submit reports to

support claims and collect a fee. Moreover, without his

training, Tai would have lacked the skill to review the videos

of the echoes, would have been unable to determine whether

17

the technicians’ conclusions were correct or incorrect, and

would have been unable to decide whether a particular case

was one that was wrong but that he would “let . . . go.” Supp.

App. 645-46; see United States v. Lewis, 156 F.3d 656, 659

(6th Cir. 1998) (“Unlike simply billing for a procedure that

has not been performed, exaggerating the nature of a medical

procedure does require the use of special medical

knowledge.”). Thus, Tai’s special skill was integral to his

commission of his crimes and the District Court did not err in

finding Tai used a special skill to commit his crime.

2. Aggravated Role under U.S.S.G. § 3B1.1(c) 15

Lastly, Tai argues that his two-level leadership

enhancement under U.S.S.G. § 3B1.1(c) was unwarranted.

Section 3B1.1 allows for a two-level enhancement if the

defendant was “an organizer, leader, manager, or supervisor

in any criminal activity” with fewer than five participants. A

participant is defined as “a person who is criminally

15

If the enhancement under § 3B1.3 had been based

only on the use of a special skill, the role enhancement would

not apply. See U.S.S.G § 3B1.3 (“[I]f this adjustment is

based solely on the use of a special skill, it may not be

employed in addition to an adjustment under § 3B1.1

(Aggravating Role).” (emphasis added)); Hickman, 991 F.2d

at 1112 & n.5 (accord, but noting that the basis for this

distinction is unclear and the connection “between . . .

supervising others and using a special skill [is] elusive”).

Because we conclude that the enhancement is applicable

based upon both the abuse of a position of trust and use of a

special skill, it is appropriate to consider the application of a

role enhancement.

18

responsible for the commission of the offense, but need not

have been convicted. A person who is not criminally

responsible for the commission of the offense (e.g., an

undercover law enforcement officer) is not a participant.”

U.S.S.G. § 3B1.1 cmt. n.1. To be deemed “a participant

under the Guidelines,” the “individual must be criminally

responsible, i.e., s/he must have committed all of the elements

of a statutory crime with the requisite mens rea.” United

States v. Badaracco, 954 F.2d 928, 934-35 (3d Cir. 1992).

Thus, to apply the enhancement, “the government must prove

by a preponderance of the evidence that the [alleged

participants] were criminally responsible participants.” Id. at

935.

Tai initially objected to the inclusion of this

enhancement. After receiving the Government’s sentencing

memorandum, Tai sent a letter to the District Court

withdrawing the objection. As a result, the Government

presented no additional evidence concerning this

enhancement at sentencing and the District Court made no

factual findings concerning its applicability other than to say:

An additional two levels were added pursuant to

the guideline section 3B1.1(c) because he was

an organizer, leader, a manager or supervisor in

criminal activity[,] based on his employment of

a non-physician technologi[st] whom he

directed to read echocardiograms and then

prepared and signed a physician’s

echocardiogram report falsely implying or

asserting the conclusions were the result of his

own observations and conclusions.

19

App. 672-73 (emphasis added). Absent from this recitation

is any statement about whether the “technologist” had the

requisite state of mind to be deemed criminally responsible.

Furthermore, to the extent the District Court incorporated by

reference the explanation in the PSI concerning the role

adjustment, the PSI also lacked facts from which to conclude

that the technologist acted with the requisite mens rea. 16

Under our precedent, the culpable participation of the person

being supervised is central to the applicability of an upward

16

The PSI, which the District Court adopted, stated the

following as the basis for applying the § 3B1.1 adjustment:

Adjustments for Role in the Offense: The

defendant employed a technologist in his office,

identified as D.P., who was qualified to conduct

echocardiograms, but who was not a physician,

and did not have Level II training in

echocardiography. In order to save his own

time, and in abrogation of his obligation to

exercise independent medical judgment, the

defendant directed D.P. to read

echocardiograms that had been submitted by . . .

attorneys who represented persons who claimed

to have been injured as a result of having

ingested Fen-Phen, and then prepared and

signed physician’s echocardiogram reports that

falsely implied or asserted that his conclusions

were the result of his own observations and

conclusions. Pursuant to U.S.S.G. § 3B1.1(c),

two levels are added.

PSI ¶ 54.

20

adjustment for role. The question here then is whether the

absence of such a finding of criminal culpability of a

participant constitutes plain error. We conclude that it does.

First, the error was plain, as Badaracco has been the

law of this Circuit since 1992, and to sentence Tai based on

his role supervising a technologist in the absence of any

finding about that person’s culpability is contrary to

established law.

Second, the error affects Tai’s substantial rights, as it

affects the length of his sentence. United States v. Pollen,

978 F.2d 78, 90 (3d Cir. 1992). Here, the two-level

enhancement for an aggravated role raised Tai’s advisory

Guidelines offense level from 27 to 29, with an advisory

range of 87-108 months. The District Court varied downward

by two offense levels from that range because of Tai’s age

and health, and imposed a term at the low end of the 70-87

month range of 72 months’ imprisonment. If the offense

level had not been enhanced for an aggravated role, then the

Guidelines offense level would have been calculated at 27,

and if the District Court had applied the same variance, it

would therefore have lowered the offense level to 25, with an

applicable range of 57 to 71 months. If the District Court

had again chosen to sentence near the bottom of that range,

then the sentence could have been less than five years, which

is a year shorter than the sentence he received.

Finally, we exercise our discretion to correct the error

because it increased the sentence without the necessary fact

finding and thereby affected the integrity of the proceedings.

United States v. Saferstein, 673 F.3d 237, 244 (3d Cir. 2012)

(concluding that a higher sentencing range “too seriously

21

affects the fairness, integrity, or public reputation of judicial

proceedings to be left uncorrected” (internal quotation marks

omitted)). We are unwilling to speculate about the facts on

which it was based, particularly in a situation like this, where

the decision may have been based on a credibility

determination or where there may be facts beyond the trial

record that may have been considered had Tai not withdrawn

his objection to the role enhancement. Thus, we express no

view as to the applicability of the enhancement but rather, to

ensure the integrity of the proceedings, we will remand for

resentencing to allow the District Court to make factual

findings concerning the culpability of the individuals with

whom Tai worked and impose the enhancement if it finds at

least one of these participants was criminally culpable.

Pollen, 978 F.2d at 90.

III

For the foregoing reasons, we will affirm the judgment

of conviction and vacate and remand the judgment of

sentence to address the applicability of the role enhancement.

22